Accountability Under Constraint:

xiii

Preface

Since the completion of the fourth edition of this book, unions have encountered fierce attacks from Republicans, Tea Party zealots, and conservative Democrats. Those in the private sector have suffered membership declines for more than 60 years. Despite determined efforts to reverse this unhappy trend, the unions have made little, if any, progress in stemming the powerful tide against them in the pri- vate sector. In government, union membership, stagnant from the 1980s to 2010, has suffered substantial declines nationwide as the consequence of layoffs driven by the Great Recession and retraction of collective bargaining rights in Michigan, Wisconsin, and other states. Conservative forces against public employee unions and collective bargaining have been in a perpetual attack mode in many states and localities. Meanwhile, spurred by New Public Management reforms, fundamental restruc turing of private and public organizations and the processes they use to con- duct their business continue at a fast pace. Globalization of labor, manufacturing, and services profoundly challenges unions in the business sector. For their coun- terparts in government, continuing citizen resistance to government taxing and spending joined with efforts to marketize and outsource government have posed serious challenges to unions. Nonetheless, managing in a union environment is a reality for approximately 40% of public managers, with unions remaining as key political actors in the federal government and in a large proportion of state and local jurisdictions.

This fifth edition of Labor Relations in the Public Sector has been completely updated in terms of the scholarly and professional literature and relevant events. As in previous editions, collective bargaining and labor relations are addressed at all levels of government, with comparisons to the private and nonprofit sectors. Interest-based (win–win) negotiations are a prominent theme in discussions of the bargaining process and contract administration. The fifth edition features new case studies that are intended to provide students with experiential learning opportuni- ties. The fundamental organization of the book remains the same.

The fifth edition is designed to be classroom friendly. As before, the book is intended for use in graduate and undergraduate courses in labor relations, collective bargaining, human resource management, and problems in public administration.

xiv ◾ Preface

A new coauthor contributes to this edition, Dr. Patrice Mareschal. Patrice completed her Masters of Industrial & Labor Relations at Cornell University and her PhD in Political Science at the University of Oklahoma. She contributes a blend of research interests and practical experience working in labor employment relations.

We appreciate the comments and suggestions of professors and students who have used earlier editions of this book. Thanks also go to Lauren Hales and John Strange at North Carolina State University and Patricia Ciorici at Rutgers University, who helped gather information and materials, prepare tables and figures, and update the bibliography for the fifth edition. Richard Kearney is indebted to Kathy, Joel, Laura, Andrew, and Nicole for their love and support. Patrice Mareschal is grateful to her children, Jacob and Arielle, and her mom, Peggy, for inspiration and support.

Richard C� Kearney North Carolina State University

Patrice Mareschal Rutgers University

Authors

Dr� Richard C� Kearney is a professor, and inaugural director, in the School of Public and International Affairs at North Carolina State University. He previ- ously held teaching and administrative positions at East Carolina University, the University of Connecticut, and the University of South Carolina. He earned his BS in business from Mississippi State University and his MPA and PhD in politi- cal science at the University of Oklahoma. He has published widely in the areas of labor relations, human resource management, and state and local government. He is a retired member of AFSCME.

Dr� Patrice Mareschal is an associate professor and chair/graduate director of the Department of Public Policy and Administration, Rutgers University. Her research and teaching interests include conflict resolution, personnel/labor relations, labor unions/organizing, and public policy. In addition to her academic training, she has extensive professional work experience in organizational consulting, human resource management, and labor–management relations. She has worked for both public and private sector employers, including the National Labor Relations Board, Ford Motor Company, and Andersen Consulting. She also completed the Federal Mediation and Conciliation Service New Mediator Training Program.

xvii

List of Case Studies

Case Study 2�1: Portrait of a Union Leader: Randi Weingarten, American Federation of Teachers��46

Case Study 4�1: Whose Union Is It? �� 116 Case Study 5�1: Sanitation Workers and the City of Belview,

Minnesota—Contract Negotiation ��150 Case Study 6�1: The Merit Pay Dilemma ��187 Case Study 7�1: A Blooming Labor Dispute ��230 Case Study 7�2: A Chocolate High? ��231 Case Study 8�1: The Boston Police Strike of 1919 ��234 Case Study 8�2: Faulty Negotiations in Chicago ��252 Case Study 8�3: The PATCO Strike ��260 Case Study 9�1: Tough Times in Garden Junction ��302 Case Study 10�1: Chain of Custody ��337 Case Study 10�2: The Arbitration Case of Keyshaun King ��338

http://unionstats.gsu.edu

Chapter 1

History and Development

I. Introduction As the Industrial Revolution dawned in England in the mid-eighteenth century, the employer’s authority was absolute and completely free from laws or government regulations. Employers unilaterally determined wages and the terms and conditions of employment for their workers. As a practical matter, all but the most skilled workers had to take jobs as they came, with little or no opportunity to influence compensation levels or the nature of work. Conditions in the factories were deplor- able: poorly lighted and ventilated, noisy, dangerous, and dirty working spaces; 12- to 14-hour days, 7 days a week; and children as young as 6 years toiling on the factory floor. Early efforts to form trade unions were violently suppressed by laws forbidding organization as a criminal conspiracy that interfered with commerce.

It was a long, hard struggle for employees in England and Europe to gain the rights to organize and bargain collectively, and it took nearly 200 years in the United States. The transition from autocratic corporate authority to organized labor and collective bargaining was long, arduous, and sometimes bloody. Early union organizers and their supporters often met with brutal repression by police and hired thugs (see, e.g., Salmond 2004; Green 2006). Today, labor rights are held in nearly all nations. Labor, in this sense, is triumphant. But unions in the United States today face new sets of problems and challenges, the outcomes of which could well determine their very existence in the next few decades.

This chapter discusses the history and development of unionization and collec- tive bargaining in the private sector and in government. The roots of government unions are traced through a historical examination of the American trade union movement. The development of public sector unionization is examined, including key factors that contributed to the growth of unions in government.

2 ◾ Labor Relations in the Public Sector

II. Early American Unionism Labor organizations have existed in the United States since the earliest days of the Republic. The environment within which they have been created and grown, how- ever, has not always been friendly or even tolerant.

The earliest domestic roots of American unionism may be traced to the self- help organizations formed by workers in the crafts and skilled trades prior to the Revolutionary War. These organizations were, in a sense, close cousins of the European guilds, whose own genealogy may be traced back to professional trade associations in the Middle Ages. The guilds regulated wages, working hours, prod- uct quality, and other concerns in trades such as bookbinding, weaving, and pottery making. The first guild to develop in the United States was probably the cordwain- ers (shoemakers) in 1648 in Boston, Massachusetts (Commons 1980). This guild eventually evolved into what some historians believe to be the first American trade union—the Society of Master Cordwainers. The guilds were not true “unions” in that there was no separation of labor between worker and owner. Nonetheless, workers were united in a common cause of self-protection.

The early American labor organizations were based on handicraft technologies such as shoemaking, stonecutting, carpentry, hat finishing, and printing. Their membership was composed of skilled laborers organized along the lines of indi- vidual crafts. Today, such organizations are known as craft unions. It is not surpris- ing that organized labor began with highly skilled, strategically situated workers, because they were the first to enjoy what is referred to today as bargaining power.

Public policy toward early labor organizations was, to put it kindly, suppressive. Unions had no legal basis for existence and were considered “criminal conspira- cies in restraint of trade” under common law. This criminal conspiracy doctrine emerged from a court case involving cordwainers, in which a judge ruled it illegal for Philadelphia, Pennsylvania, shoemakers to act collectively in efforts to raise their wages. Several of the early craft unions were prosecuted for criminal con- spiracy, but the doctrine was brought to an end by the Massachusetts court decision of Commonwealth v. Hunt (1842), which held that such organized labor activities were lawful.

Some local labor organizations entered the political arena during the 1820s and 1830s through affiliating with “workingmen’s parties.” These organizations sought to elevate the social and economic status of craft and skilled laborers. They pressed Congress and state legislatures for job-related concessions, such as the 10-hour day, and also for broader reforms, such as free universal education, an end to the military draft, abolition of debtors’ prisons, and expansion of suffrage. Many of these orga- nizations, which were strongest in large cities such as New York and Philadelphia, even took a short-lived step toward national organization in 1834 by forming the National Trades Union to coordinate the activities of the locals.

It was during this same time period (1820s–1830s) that labor organizations began to penetrate public employment, as public workers in skilled occupations

History and Development ◾ 3

sought the 10-hour day won in some cities by their private counterparts. Most of this activity was concentrated in federal naval shipyards in Philadelphia, Boston, and New York. Later, when agitation for the 8-hour workday began, the first employer to grant it was the federal government, at the Charleston Navy Yard, South Carolina, in 1842. According to Spero (1948: 87), the drive for the 8-hour day “led to the crystallization of the principle of the state as a model employer maintaining the highest possible working standards in its services as an example for others to follow.”

During this early period of growth and development, unions’ organizational health was highly dependent on national economic conditions; unions suffered dur- ing hard times and revived during more prosperous times. For example, there was a tremendous increase in union membership during the Civil War and immedi- ately afterward as a consequence of industrial growth related to the war effort. The Depression of 1873, however, was accompanied by a startling decline in national union membership, from 300,000 to 50,600 within 5 years. By 1885, improved economic conditions pushed membership growth back to the 300,000 mark. The direct relationship between economic tailspins and union membership declines reversed early in the twentieth century. Unions declined during the prosperous 1920s and made their most spectacular gains during the Great Depression era of the 1930s.

Nonetheless, economic conditions continue to influence union fortunes. For instance, when unemployment is low and consumer demand for products is high employers tend to accommodate employee demands, perhaps even the demand for unions. Concurrently, risk-taking union advocates and organizers find it relatively easy to locate new jobs if they are fired. Thus, unionism is likely to flourish during favorable economic conditions but flag during periods of high unemployment and a weak economy (Reder 1988: 92, 93). Of course, many other factors also influence union fortunes. During the past six decades, private sector unions have struggled with membership losses during good and bad economic times. However, the Great Recession of 2008–2011 was accompanied by the most severe attack on unions— particularly in government—since the 1930s.

A. Ideological Battles in United States Unionism Even though labor organizations could no longer be legally prosecuted for criminal conspiracy in restraint of trade after the 1842 Commonwealth decision, this did not by any means signal a new era of tolerance and encouragement of unionism. Bitter union–management battles erupted during the 1870s. Employer “union-busting” tactics such as lockouts; espionage; blacklisting of union organizers; summary fir- ings of “agitators”; and, to break strikes, club-swinging “goon squads” forced some unions to go underground and operate as secret societies. One of these societies— the Molly Maguires, formed by coal miners—met employer violence with violence of its own, perpetrating acts of arson and murder in the Pennsylvania coal mines.

4 ◾ Labor Relations in the Public Sector

Many opposing union philosophies competed for the allegiance of the American working class during the late 1800s and early 1900s. Some groups sought victories through the political process, whereas others advocated collective bargaining. Most organizations wanted to operate and pursue their goals within the boundaries of the capitalist system, but others spoke out in favor of the emerg- ing European philosophies of socialism and communism.

Perhaps the strongest of the leftist groups was the Industrial Workers of the World (IWW), which rejected capitalism outright and strove to organize the global working class, take control of the state, and overturn the capitalist system.

Founded in 1905 by radical socialists and syndicalists, whose penchant for a good fight took precedence over “planning, negotiating, and politiking [sic]” (Stegner 1990: 13), the “Wobblies” enjoyed their greatest strength among mining, lumbering, and agricultural workers in the western states of Idaho, Colorado, and Utah. (Their nickname reportedly was taken from a Chinese cook’s pronuncia- tion of IWW as “I wobble wobble.”) The Wobblies committed numerous acts of industrial sabotage and were successful in leading several large strikes in the United States and other countries during World War I. Many martyrs were produced along the way, including the legendary Joe Hill, who just before his very public execution in 1915 cried to his fellow Wobblies, “Don’t waste time mourning—organize!” However, severe repression by the federal government—including the incarcera- tion and lynching of union leaders such as Joe Hill—and the lack of broad appeal of IWW philosophies to the American working class led to the organization’s demise shortly after the war (see Rosemont 2002; Buhle and Schulman 2005). The Wobblies’ utopian vision of “one big union” for the workers of the world remains a historical curiosity to all except a handful of diehards who have recently sought to revive the IWW through leftist movements. (For current information on the Wobblies, see the IWW website: www.IWW.org.)

Other labor organizations on the ideological far left have enjoyed some sup- port in the United States, including the Farm Equipment Workers, Tobacco and Allied Workers, United Office and Professional Workers, and Fisherman’s Union. Two communist unions even managed to survive the McCarthy-era repression of the 1950s: the International Longshore and Warehouse Union (ILWU) and the United Electrical, Radio, and Machine Workers. But a number of factors have conspired to mitigate socialist- and communist-oriented labor organizations in the United States. The rigid class structures of Europe have never developed in the United States to set boundaries for class conflict, largely because of a relatively high standard of living for working people, a fairly steady economic growth with the opportunity for individual advancement and upward mobility, the diverse eth- nic and religious characteristics of American immigrants, and a strong ethos of individualism in the American public. From a political perspective, organized labor has been hemmed in by the absence of a labor-based political party and by actions of federal and state courts that have constricted the boundaries of union political and organizing activities (Galenson 1980: 73–79; Forbath 1991; Archer 2007).

http://www.IWW.org

History and Development ◾ 5

B. Business Unionism The real battles within the labor movement in the United States have been fought not over questions of political ideology but over issues of which types of workers should be organized and by whom. The ethos of business unionism, as originally professed by Samuel Gompers, has dominated the American labor movement. Economic gains and improvements in working conditions have served as the pri- mary objectives of trade unionism, not social and political change. Theories of the labor movement in the United States reflect the early ascendancy of business unionism, asserting that American workers have joined unions out of concern for job security (Tannenbaum 1921; Perlman 1928), as a means for democratizing the workplace (Webb and Webb 1897), as a result of expansion of the job market from increased industrialization (Commons et al. 1936), from a crystallization of group interests arising from workers’ social and economic situations (Hoxie 1928), and in response to various pay and fringe benefit incentives (Olson 1965). The Marxist (and IWW) philosophy that unions should form the locus of a working class con- sciousness and serve as the basis for restricting competition over jobs has never been widely accepted in the United States.

As already noted, the earliest organizing efforts were among the craft unions. Heavy industrialization, which began during the mid-1800s, provided a new and rapidly growing industrial labor force of unskilled and semiskilled workers who were not trade or craft oriented. Organization of this new pool of workers would have to be along “shop” lines, based on the place of work rather than the type of work. The Knights of Labor launched the first significant effort to capture this industrial segment of the workforce.

Originally formed in 1869 as a craft union for custom tailors in Philadelphia, the Knights gradually began to include other crafts under its organizational umbrella. Within 10 years, it had evolved into the first national labor union in the United States. The Knights dropped its status as a secret society and, under the leadership of an affable Irishman named Terence V. Powderly, began to seek both craft and industrial affiliates throughout the country. By the time of its successful 1886 strike against financier Jay Gould and the Wabash Railroad, the Knights claimed a membership of 700,000. However, the Knights’ membership was somewhat unstable and divisive, and a subsequent series of ill-conceived and violent strikes led to one defeat after another for the union (Phelan 2000). By the turn of the twentieth century, the Knights of Labor was nearly extinct. Further organization of unskilled workers awaited the development of the Congress of Industrial Organizations (CIO) in the 1930s.

The remaining craft union pieces of the complex Knights of Labor organiza- tional mosaic were quickly gathered by the American Federation of Labor (AFL), which was originally established in 1881 in Pittsburgh, Pennsylvania, as a federa- tion for skilled craft workers. The 25 national craft union affiliates elected Samuel Gompers, head of the Cigar Makers Union, as their first president. The ultimate pragmatist, Gompers soon made the AFL a major actor in the American economic

6 ◾ Labor Relations in the Public Sector

system. Gompers was, in essence, a free marketeer who rejected philosophical, politi- cal, and social issues in favor of advancing and protecting members’ economic inter- ests. Under his leadership, the AFL grew steadily, surviving both the Depression of 1893–1896 and a violent strike that broke the back of an AFL local at the Carnegie Steel Company in Homestead, Pennsylvania. The AFL also proved strong enough to withstand the scientific management movement of Frederick W. Taylor, court injunctions against strikes and other union actions, and years of stifling “yellow- dog contracts” (a contract in which a worker promised not to join a union while under the hire of an employer). There were, however, some dark times, particularly following World War I and during the early years of the Great Depression.

The AFL’s resurgence after the Great Depression was, in the words of Sloane and Witney (1981: 75–76), “in spite of itself,” as the union “almost snatched defeat from the jaws of victory.” A leadership gap was part of the problem (Gompers had died), but more to blame was the union’s continuing reactionary posture against mass production workers whom the Knights of Labor had first tried to organize. The AFL’s unrelenting refusal to allow unskilled industrial workers into the orga- nization eventually prompted a secessionist movement steered by John L. Lewis of the United Mine Workers. After Lewis’ efforts to gain affiliation for industrial workers failed at the 1935 AFL convention in Atlantic City, New Jersey, he did not exit meekly. According to Sloane and Witney (1981: 77), “Lewis, never one to cam- ouflage his emotions for the sake of good fellowship with his AFL colleagues, left Atlantic City only after landing a severe uppercut to the jaw of Carpenter Union president William L. Hutcheson….” Lewis then formed his own industrial union, which came to be known as the CIO. There followed another, later attempt to affili- ate under the AFL banner, but it culminated in expulsion of CIO leaders and the more than 30 national unions that had joined forces with the CIO.

Lewis’s independent CIO was highly successful in organizing industrial work- ers, such as those in the automobile and steel industries, so much so that the AFL finally recognized the error of its ways and began competing for unskilled workers. Not to be outdone, the CIO responded in kind by organizing craft workers. In 1955, after years of fierce interunion conflict and competition, the AFL merged permanently with the CIO, becoming “the united house of labor.”

The labor battles had been fought not over political ideology or competing grand visions of American society but over organizing workers and the mundane bread-and-butter issues that remain paramount to this day: wages, benefits, work- ing conditions, and job security. To George Meany, as well as to other mainstream labor leaders, ideology was “baloney” (Sloane and Witney 1981: 94). Unions did become active in the political arena during the 1960s and remain so today, pressing a broad national agenda for social betterment and economic reform with varying degrees of success. However, no coherent ideology is apparent, and a capitalist men- tality pervades the U.S. economy and polity (Godard 2009). Ironically, the year following the AFL–CIO merger marked the beginning of a long and continuous decline in union organization in private employment.

History and Development ◾ 7

In 1956, the first year in which the total number of U.S. white-collar employees exceeded the number of blue-collar workers, one-third of the nation’s nonagricul- tural workers were unionized. By 2013, fewer than one in eight was a member, just 11.3% of the total workforce, the lowest level since 1916, and only 6.6% of private sector workers. The absolute number of private sector union members continued to rise until 1970, but it has since dramatically declined to 7.2 million (U.S. Bureau of Labor Statistics 2013). Table 1.1 provides membership figures for the largest private sector unions today. Table 1.2 shows union membership for all workers—public and private sectors—by state.

Table 1.1 Membership in the Largest Private Sector Unions, 2013

Membership Count Union

1,400,000a International Brotherhood of Teamsters

1,300,000 United Food and Commercial Workers International Union

1,100,000b SEIU

850,000 United Steelworkers of America

720,000 International Association of Machinists and Aerospace Workers

700,000a Communications Workers of America

675,000 International Brotherhood of Electrical Workers

500,000 Laborers’ International Union of North America

500,000 United Brotherhood of Carpenters and Joiners of America

400,000 International Union of Operating Engineers

390,000 International Union, United Automobile, Aerospace, and Agricultural Implement Workers of America

340,000 United Association of Journeymen and Apprentices of the Plumbing and Pipe-Fitting Industry of the United States and Canada (UA)

230,000 Union of Needletrades, Industrial, and Textile Employees (UNITE HERE)

Note: Table contains self-reported figures from each organization’s Internet web- site and telephone calls to organizations.

a Denotes public and private sector membership. b Denotes private sector membership only.

8 ◾ Labor Relations in the Public Sector

Table 1.2 Union Density for All Wage and Salary Workers, Public and Private, 2011

Union Members Represented by Unions

State Total (K) Percentage Total (K) Percentage

New York 1906 24.1 2068 26.1

Alaska 68 22.1 73 23.7

Hawaii 113 21.5 118 22.5

Washington 517 19.0 557 20.4

Michigan 671 17.5 703 18.3

Rhode Island 79 17.4 81 17.9

California 2379 17.1 2532 18.2

Oregon 270 17.1 286 18.1

Connecticut 259 16.8 272 17.7

Illinois 876 16.2 929 17.2

New Jersey 615 16.1 641 16.8

Minnesota 371 15.1 390 15.8

Massachusetts 422 14.6 445 15.4

Nevadaa 154 14.6 175 16.6

Pennsylvania 779 14.6 846 15.8

West Virginia 93 13.8 102 15.2

Ohio 647 13.4 706 14.7

Wisconsin 339 13.3 358 14.1

Montana 49 13.0 55 14.6

Maryland 316 12.4 348 13.7

Vermont 35 12.0 39 13.5

U.S. average 14,800 11.8

Indianaa 302 11.3 333 12.4

Maine 63 11.3 74 13.4

Iowaa 155 11.2 187 13.5

(Continued)

History and Development ◾ 9

Table 1.2 (Continued) Union Density for All Wage and Salary Workers, Public and Private, 2011

Union Members Represented by Unions

State Total (K) Percentage Total (K) Percentage

New Hampshire 68 11.1 77 12.5

Missouri 275 10.9 316 12.5

Delaware 39 10.5 42 11.2

Alabamaa 178 10.0 193 10.8

Kentucky 150 8.9 173 10.3

District of Columbia

23 8.3 28 9.9

Colorado 179 8.2 203 9.3

Nebraskaa 65 7.9 83 10.0

Kansasa 97 7.6 128 10.1

Wyominga 18 7.2 21 8.4

New Mexico 49 6.8 65 9.0

Oklahoma 94 6.4 113 7.7

Floridaa 460 6.3 557 7.6

North Dakotaa 20 6.3 27 8.6

Arizonaa 149 6.0 183 7.3

Utaha 67 5.8 82 7.1

Texasa 534 5.2 643 6.3

Idahoa 31 5.1 36 6.1

South Dakotaa 18 5.1 23 6.5

Mississippia 54 5.0 73 6.8

Tennesseea 115 4.6 139 5.6

Virginiaa 163 4.6 198 5.6

Louisianaa 77 4.5 91 5.3

(Continued)

10 ◾ Labor Relations in the Public Sector

III. Factors Contributing to Private Sector Union Decline

The fading fortunes of unions in the private sector have spawned a great amount of discussion and debate. Four major factors have contributed to union decline, although their relative importance is subject to dispute (e.g., Freeman and Medoff 1984; Bennett and Kaufman 2002).

A. Structural Elements Structural elements refer to the broad social and economic changes that have affected the composition of the workforce, general nature of employment, shift of jobs from the heavily organized Northeast and Midwest to the predominantly nonunion South and Southwest, and demographic characteristics of the work- force. More specifically, the labor force has become increasingly female, minority, contingent, and part time, with correspondingly different needs from the mostly white male workers of the past. It is also increasingly white collar, as employ- ment has shifted from union-dense manufacturing, mining, construction, and transportation jobs to white-collar and pink-collar services such as banking and finance, health care, insurance, telecommunications, and information technol- ogy. Historically, white-collar workers have been difficult to organize because of the prestige and professionalism associated with their jobs, special interests and needs that have not been attended to by unions, and the generally poor image of organized labor among this group (Sloane and Witney 1981: 10–13). Forces of globalization have pushed and pulled some traditionally union jobs to other countries (Farber and Western 2001). In a sense, unions have also inadvertently

Table 1.2 (Continued) Union Density for All Wage and Salary Workers, Public and Private, 2011

Union Members Represented by Unions

State Total (K) Percentage Total (K) Percentage

Arkansasa 47 4.2 57 5.1

Georgiaa 153 3.9 185 4.8

South Carolinaa 59 3.4 86 5.0

North Carolinaa 105 2.9 149 4.1

Source: U.S. Bureau of Labor Statistics, Economic News Release: Union Members Summary, http://www.bls.gov/news.release/union2.nr0 .htm, 2013.

a Denotes right-to-work states.

http://www.bls.gov

History and Development ◾ 11

contributed to their own decline. Union-ratcheted salaries and wages placed firms in Pennsylvania, Illinois, Michigan, and New York at a competitive disadvantage, encouraging many of them to move to low-wage nonunion states such as Texas, Tennessee, and North Carolina and, increasingly, to China, India, and other low- wage countries. The structural explanation seems compelling on the surface, but empirical investigations have determined that it does not tell the whole story of the factors underlying union decline.

B. Government Substitution Union-advocated public policies have, over time, reduced the benefits of organizing and joining unions for individual workers. In addition to elevating wages, unions have aligned with other organizations to advocate for policy reforms that have effectively substituted for union-negotiated collective bargaining benefits. Workers’ compensation, federal labor standards, child labor laws, social security, unemploy- ment compensation, and an assortment of other such programs have improved the lot of potential union members. Legislation and court decisions help shield work- ers from unjust or arbitrary discharges (Neumann and Rissman 1984; Coombs 2008). Efforts to assess the government substitution effect, however, have found little empirical support for the argument (Coombs 2008).

C. Unfavorable Legal and Policy Environment It can be argued that the decline of unions is to some extent attributable to restric- tions on labor organizing and other activities by Taft–Hartley, Landrum–Griffin, and other federal legislation. For example, Taft–Hartley significantly weakened the Wagner Act by prohibiting a requirement of union membership as a condition of employment (the “closed shop,” which makes union membership mandatory “before” employment) and permitting “right-to-work” laws (which also bar the “union shop,” which requires union membership “at the time of ” employment). Taft–Hartley also restricts job slowdowns, sit-down strikes, and wildcat strikes. Moreover, the National Labor Relations Board (NLRB), which administers fed- eral labor law and investigates and decides on allegations of unfair labor practices against employers and unions, has delivered a high proportion of unfavorable deci- sions to unions (Forbath 1991; Gross 1995).

The federal courts have been criticized for their antiunion decisions as well. For example, the so-called MacKay Doctrine, promulgated by the U.S. Supreme Court in 1938 but not widely applied until President Ronald Reagan emboldened business by sacking 11,000 federal air traffic controllers in 1981, allows firms to hire permanent replacements for striking workers. These concerns have led union supporters to call for congressional actions to level a labor–management playing field that appears to be tilted against the unions. Yet Congress is heavily influ- enced by business interests who have frequently succeeded in rallying Republicans

12 ◾ Labor Relations in the Public Sector

and conservative Democrats to defeat labor-friendly legislation. For instance, bills to ban permanent replacement of striking employees are regularly introduced in Congress but just as regularly defeated by business interests.

D. Management Opposition Employer resistance to unions has progressed from “blackjacks to briefcases” (Smith 2003). Toting those briefcases are employees of hundreds of management consulting firms specializing in union busting (Gagala 1983: ch. 3; Bernstein 1985; Bronfenbrenner and Warren 2011). Various tactics bolster employer resistance to unions. Some are framed as “positive employee relations,” which ostensibly means establishing a compensation system and working conditions that are as good as or better than those found in unionized workplaces. Other resistance techniques involve legal or illegal negative tactics to suppress unionization. These include hiring consultants to help contest union elections through tough, well-financed campaigns to keep unions out; stirring worker doubts about the potential benefits of unions; delaying certification elections until a majority of employees have lost interest in joining a union; and refusing to bargain collectively or negotiate and sign a contract even if a union is established. Often, union-busting strategies are implemented after employees initially express an interest in organizing.

Some firms also engage in blatantly illegal activities to fight unions, calculat- ing that it is cheaper to pay a small fine to the NLRB now than to meet the demands of the unions later (Kleiner 2001: 528–532). Workers are threatened or intimidated, union organizers are fired, and lies and distortions are disseminated. Such employer opposition is asserted by some scholars to be the leading “cause of the slow strangulation of private sector unionism” (Freeman and Medoff 1984: 239; see also Goldfield 1987). The reasons for management intransigence are not difficult to fathom. Keeping unions out means higher profits for the firm and fewer headaches for management. It also means that certain managers keep their jobs; those perceived to be responsible for losing a union election may find them- selves quickly on the street (Freeman and Kleiner 1990: 363).

E. Strategic Factors The strategic choices made—and not made—by union leaders have contributed to union decline. Some critical choices made decades ago, including the rejection of ideological approaches to labor’s relationship to government and the failure to mount a labor party to compete for a legitimate voice in government, have debili- tated labor’s political power and influence today. Labor’s long-term reliance on the Democratic Party for political clout continues to this day (Dark 1999; Francia 2006). To many Democrats, however, labor is just another interest group.

From the 1970s to 1998, unions spent less money on organizing new mem- bers and participated in fewer NLRB certification elections than in earlier years

History and Development ◾ 13

(the trend was reversed in 1998 with AFL–CIO President John Sweeney’s organiz- ing initiatives). What is more, managements won far more union elections than they lost. Merely to survive, unions must continually recruit new members. Organized labor has not told a compelling story of why today’s workers should want to join a union, nor has it manufactured the positive public image and support necessary to nurture a receptive audience of unorganized workers or a receptive general public.

Ultimately, the responsibility for strategic errors made by unions must be laid at the feet of unimaginative, reactive, and—all too often—self-interested and corrupt union leaders. Private sector unions, like other failed or flagging organizations, have failed to adapt to a changing environment (Kearney 2003). Labor has too often poisoned its own well by betraying its members through fraud and corruption and by forming indefensible alliances with organized crime (Fraser 1998).

Can private sector union decline be reversed, or is it an inevitable part of a postindustrial society? Where is the bottom? The hemorrhaging has been going on for some 50 years and shows no signs of arrest. Unions had suffered earlier periods of decline (Rachlett 1999). For instance, unions lost almost 40% of their mem- bership from 1920 to 1933 and then recovered strongly. Another such reversal is plausible, but it presupposes more astute union leadership, more effective organiz- ing strategies, effective coalition-building strategies with other powerful interest groups, a “mobilization of bias” in employer and public opinion in favor of unions (Schattschneider 1988), and a more facilitative legal environment, among other fac- tors (see Tillman and Cummings 1999).

Some cause for optimism arose in 1995, when former Service Employees International Union (SEIU) president John J. Sweeney was elected president of the 13-million-member AFL–CIO (Dark 1999: 178–184). Sweeney, whose SEIU membership had doubled even as most other AFL–CIO affiliates’ ranks thinned, worked hard to reverse labor’s declining fortunes and provoked a far-reaching reex- amination of labor’s role in the twenty-first century. Sweeney took steps to include more women and minorities in union leadership positions, dedicated millions of new dollars to organizing drives, and greatly elevated labor’s profile during the presidential election of 1996 and the congressional elections of 1998.

Sweeney’s actions were not sufficient to stimulate a rebirth of labor in the U.S. private sector. For every action taken to rejuvenate the unions, business interests and their Republican allies countered with efforts to rewrite labor laws and other strategies designed to disadvantage unions, such as restrictions on using members’ dues for political and lobbying expenses.

And it seems that each time the resuscitation of the sickly patient is being widely heralded, labor once again suffers an untimely relapse. Self-destructive leadership actions and decisions, including the almost predictable Teamster scandal, reinfect the union movement and send it back to its deathbed. Sweeney’s desire to reinvent, reinvigorate, and reposition organized labor was effectively countered by congres- sional Republicans and business interests. Then, in 2005, following a year of inter- nal labor turmoil, rising dissatisfaction with Sweeney’s leadership, and continuing

14 ◾ Labor Relations in the Public Sector

decline in the private sector, four dissident unions seceded from the AFL–CIO. The new group, called the Change to Win Coalition, consisted of the United Food and Commercial Workers, UNITE HERE, the Teamsters, and SEIU; three other unions joined subsequently. Together, the seven unions make up less than half of total AFL–CIO membership. The rift was reminiscent of the old CIO split from the AFL in the 1930s.

The prolonged decline of private sector unions increasingly resembles a death spiral, as Chapter 11 indicates.

IV. Unions in Government A. Early Years As noted earlier, public employee organizations first became active during the early 1800s, particularly in federal shipyards. However, until 1836, even in the shipyards they experienced limited success because their military bosses tended to be rather insensitive to the opinions of their workers. In that year, a Washington, D.C., naval shipyard strike and a mass demonstration prompted intervention by President Andrew Jackson, who personally granted the federal employees the 10-hour day they sought. Thus, a tradition of direct presidential involvement in federal labor problems was established, and it continues to this day.

The New York Letter Carriers formed the first federal employee organization of national significance in 1863. In 1886, the Knights of Labor chartered locals in Chicago, Illinois; Omaha, Nebraska; and other cities. Postal clerks were organized in 1888 in New York, and the National Association of Letter Carriers was estab- lished in 1890. Rural carriers formed their own national organization in 1903.

The rise of postal workers under the banners of their various organizations was not met with equanimity by the federal government. In 1895, Postmaster General William L. Wilson issued a departmental order prohibiting any postal employee from visiting Washington for lobbying purposes, at the risk of being fired. When intensive lobbying by postal workers and their organizations continued, much to the annoyance of the executive branch and some members of Congress, President Theodore Roosevelt retaliated in 1902 with his infamous gag rule forbidding all fed- eral employees from seeking congressional legislation in their own behalf, directly or indirectly, individually or through their organizations (Spero 1948: 117–127). Postal employee militancy was also met with union-busting tactics that included the use of paid informers; disciplining and/or discharge of organizational leaders; and, ironically, opening of their personal mail (Nesbitt 1976: 8).

Ever tenacious, the postal workers responded with an antigag rule cam- paign, spearheaded by a magazine, The Harpoon, which was edited by a railway clerk named Urban A. Walter. Finally, the postal workers, led by the AFL and the National Federation of Post Office Clerks, garnered sufficient congressional

History and Development ◾ 15

support to win the passage of the Lloyd–LaFollette Act of 1912, guaranteeing fed- eral employees the First Amendment right to organize and petition Congress for a redress of grievances. Although the Lloyd–LaFollette Act had only a small effect on federal union-busting activities (which continued), it did denote a positive direc- tion in the development of postal and other federal labor organizations as they increasingly began to seek the full labor rights granted to private sector workers in the National Labor Relations Act (Spero 1948: 143).

Early organizational efforts outside the defense establishment and post office included “almost every civil occupation from charwoman to zoologist, from astronomer to stonecutter” (Nesbitt 1976: 56). These efforts were rebuffed by the U.S. Civil Service Commission. In 1912, however, customs inspectors success- fully organized on a national scale, and in 1917 the National Federation of Federal Employees was formed as an umbrella organization intended to cover all federal civilian employees except postal employees and those workers permitted to join AFL affiliates (Nesbitt 1976). Two other significant general-purpose federal orga- nizations followed: the American Federation of Government Employees (AFGE) in 1932 and the National Association of Government Employees soon thereafter. As will become evident later in our discussion, however, substantial growth in these and other federal organizations awaited the implementation of President Kennedy’s Executive Order 10988 of 1962.

Organizational progress in the state and local government sectors was also uneven before the 1960s. A crafts orientation was clearly prevalent during the for- mative years, especially in local government, as teachers, firefighters, and police organized separately. The National Teachers Association (NTA) was formed in 1857. The National Education Association (NEA) was created in 1870 through a merger of the NTA and two other teacher associations. These early teacher associa- tions were set up and directed by administrators and other school authorities to advance the interests of the teaching occupation and to provide mutual aid pro- grams, but a steady accumulation of grievances eventually drove the teachers into a more aggressive posture. State laws and local ordinances forbade teachers from smoking, placed restrictions on their dress, imposed curfews, and even sought to regulate their leisure time. In Westchester County, New York, for example, teach- ers were ordered to bed by 10:00 p.m. One North Carolina town admonished its teachers “to sleep at least 8 hours a night, to eat carefully, and to take every precau- tion to keep in the best of health and spirits” (Spero 1948: 298–300). In 1900, the Chicago and San Antonio, Texas, teachers’ federations responded to such intrusive rules by affiliating with the AFL. Joined by other teacher organizations in 1916, they formed the American Federation of Teachers (AFT).

Firefighters and police began organizing during the late 1800s and the early years of the twentieth century, primarily as mutual benefit societies to provide pension and insurance programs and to fulfill the social needs of their members. In 1918, the AFL chartered the International Association of Fire Fighters, which remains the second oldest nationally affiliated state or local union (after the NEA).

16 ◾ Labor Relations in the Public Sector

Police officers first applied for an AFL charter in 1897 in Cleveland, Ohio. By 1919, 37 police organizations had received certification in various municipali- ties. Growing militancy by police and firefighters, particularly in the larger cities, led to a relatively large number of strikes in the public safety services during 1918– 1919. One of these strikes—by police officers in Boston—took on serious national proportions after several days of unrestrained looting and mob rule and even- tual intervention by Governor Calvin Coolidge and the Massachusetts National Guard. Negative public reaction to the 1919 Boston police strike set back public safety unionization by some 40 years (see Chapter 8). Local police benefit associa- tions continued to exist, but little union activity took place again in the public safety services until the 1960s.

The largest state and local union today, the American Federation of State, County, and Municipal Employees (AFSCME), was born in 1932 as the Wisconsin State Employees Association. Efforts to expand its scope of organization to other states and to extend membership to local employees were made through a 1935 affiliation with the AFGE. However, the AFGE affiliation was unworkable and the AFSCME successfully won independent status the very next year (see Kramer 1962). As in the case of public safety organizations in local government, AFSCME’s progress was uneven. By 1950, it had reached a membership total of about 68,000, but in most jurisdictions the organization was “harassed, coerced, dismissed— or entirely ignored” (Spero and Capozzola 1973: 18). Although the founder of AFSCME, Arnold Zander, eventually supported collective bargaining and the use of strike when deemed necessary, the formal goals of the organization were rather conservative, being “to stimulate the growth and extension of civil service and to improve existing merit systems” (Kramer 1962: 31). A leadership change at the 1960 national convention produced a new president with a more aggressive style (Jerry Wurf ), a more militant posture by the national union and its locals across the United States, and subsequent membership gains.

As the 1960s progressed, it became clear that government employers could no longer bank on a docile, passive worker who was content with a secure job and a modest salary and pension. Federal, state, and local government workers in many jurisdictions were on the cusp of launching a new venture that few had imagined.

The following section explores the reasons for the rise of public employee unions in the United States after first considering the converse question that is begged, that is, why public sector organization lagged behind the private sector for some 30 years.

B. Why Government Employees Did (and Did Not) Unionize In retrospect, there seem to be three principal factors that inhibited public employee unionism and collective bargaining prior to the 1960s: the sovereignty argument, the nature of government employment, and an unfavorable legal environment. Each of them is examined here.

History and Development ◾ 17

Ideology for its own sake has never been widely embraced in the United States. For many government employers determined to resist unions, however, the doctrine of sovereignty assumed the aura of ideology, although the aura was somewhat dimmed by its self-serving usage by those opposed to unions. Briefly, the sovereignty argument contends that in a representative democracy the people are sovereign and their will is served by their elected representatives. If government, through these representatives’ appointees or civil servants, bar- gains over terms and conditions of employment with a union, then sovereignty is violated through the illegal delegation of the people’s sovereign power (Slater 2004).

The argument would perhaps stand if the various American governments could demonstrate their delegative virginity. However, representatives of the national, state, and local governments have for more than two centuries negotiated contracts and arrangements with private sector entities without the expressed permission of the electorate. (Examples include contracting weapons systems to private manu- facturers or garbage collection to firms.) As a consequence of the daily deflower- ing of sovereignty throughout the country, invoking the doctrine in opposition to unions appears to be at best self-serving and at worst hypocritical. Stieber (1973: 17) sums up the counterargument well: “… the doctrine of sovereignty as applied to employment has been substantially dismembered by legal and academic critics, joined by government lawmakers and rule makers. Governments, how- ever supreme, make deals.” They also make and sign legal contracts. Nonetheless, the sovereignty argument has been used with various degrees of success to stifle govern ment unionization, and it continues to be a credo propounded by many political conservatives.

The nature of government employment also had a strong bearing on slow pub- lic sector union growth and development. A number of factors are salient here. Government work is predominantly white collar in nature, and government work- forces frequently include disproportionate numbers of women and minorities. In the past, all three categories of employees were traditionally difficult to organize. Moreover, government employment, particularly at the federal level, has been char- acterized by strong job security, generous pensions, and merit system protections against partisan political pressure and other forms of management abuse. Merit systems offered an alternative to collective bargaining for determining wages, ben- efits, and working conditions and for providing formal grievance procedures for unhappy workers wishing to file complaints.

Finally, the legal environment for public sector unionism was highly unfavor- able prior to the far-reaching labor law changes instituted at all levels of government during the 1960s. Many public employees were forbidden to strike or take other job actions and, most important, statutory provisions for recognizing public employee organizations and implementing collective bargaining were very rare. When unions asserted their rights to be recognized and to bargain with employers in courts, they were usually spurned by a hostile judiciary.

18 ◾ Labor Relations in the Public Sector

C. Rise of Public Employee Unions As mentioned earlier, circumstances changed dramatically during the 1960s, as public employee unions and collective bargaining spread rapidly across jurisdic- tions at all levels throughout that decade and the next. Several important develop- ments moved the unions to the forefront of government employment. Although the causal variables facilitating government union growth are complex, multiple, and interrelated, it is possible to identify several factors that significantly contrib- uted to unionization: (1) the growth of government, (2) the private sector experi- ence, (3) changes in the public sector legal environment, and (4) the social change and turmoil that characterized the 1960s and early 1970s (Shaw and Clark 1972: 901–904).

1. Growth of Government

During the 1960s and 1970s, the number of civilian government jobs approxi- mately doubled, with most of the growth occurring in the state and local sectors. This greatly expanded workforce presented an attractive target for union organiz- ers. By 1980, almost one of every six working people in the United States was employed at some level of government. From a base year of 1951, employment in federal government rose by 24% to 2,866,000 workers in 1980, whereas state and local employment increased by about 227% to 13,383,000. The nation’s total employment over this time period registered a gain of 89%.

After 1980, the number of federal civilian employees actually declined, drop- ping from about 2.9 million in 1980 to 1.85 million in 1998, primarily as a result of massive downsizing during the Clinton–Gore administration. Federal jobs then rose in the early 2000s with the wars in Afghanistan and Iraq and federalization of airport security under the Transportation Security Agency (see Figure 1.1). The exit of military and civilian employees from Iraq and the withdrawal from Afghanistan, along with efforts to downsize the federal civilian government to help lessen an enormous budget deficit, resulted in a new wave of job cutbacks, further depressing federal employment levels in the early 2010s.

Several factors help explain the rapid gains in state and local government employment that commenced in the 1950s and continued until the Great Recession hit in 2008: first, national population growth necessitated additional government workers to service the expanding number of programs intended to address people’s health, education, social service, and other needs. Second, the age distribution of the population shifted. Larger proportions of the population were situated in the “less than 25” and “65 years and over” ranges, the two groups that claim the bulk of government services. Finally, federal mandates for state and locally administered programs (including social services, transportation, and envi- ronmental protection programs) contributed to the surge in state and local jobs.

History and Development ◾ 19

Not surprisingly, government employment figures also depict a steady shift from blue-collar to white-collar jobs as well as gains in the proportion of women and minorities in government employment. More than half of public employees are women. African Americans, Latinos, and Asian Americans make up more than one-third of total public employment.

Along with the growth of government came increasing bureaucratization and depersonalization of the public service, twin forces that tended to isolate and alien- ate the individual employee (Shaw and Clark 1972: 902; Shutt 1986). No longer was most government employment characterized by a small “family” of people who know and relate to one another in a neighborly fashion from the top of the hierar- chy to the bottom. Dissatisfaction with personalism, arbitrary management actions, and clogged communication channels within an increasingly complex organiza- tional structure convinced many government workers of the need for intermediary organizations like unions to represent them collectively in their relationships with management.

Ballooning government employment rolls presented a very attractive orga- nizing target for private sector unions, which were suffering from a precipitous decline in the number of blue-collar jobs in industry. Unions that heretofore had

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Figure 1.1 Public employment, by level of government, 1955–2011: The Union Membership and Coverage Database can be found at http://unionstats.gsu.edu/. For the years 1973–1981, data were collected from the May Current Population Survey (CPS). For the years 1983–2011, data were collected from the CPS Outgoing Rotation Group Earnings Files. There were no union questions in the 1982 CPS. (From U.S. Bureau of Labor Statistics, Economic News Release: Union Members Summary, http://www.bls.gov/news.release/union2.nr0.htm, 2013.)

http://www.bls.gov

20 ◾ Labor Relations in the Public Sector

concentrated their membership drives on the private sector began courting public employees, often through their existing professional organizations. A natural com- munity of interest among public workers such as teachers, firefighters, and police officers had found expression through professional associations and had precondi- tioned them to the values of organizational membership (Moskow, Loewenberg, and Koziara 1970: 287). Unions helped convince the members of these associa- tions that they could enjoy the same benefits of unionization as union members in the private sector.

2. Private Sector Spillover

Unions in the private sector successfully won wage and benefit increases and improved working conditions for their members. This did not go unnoticed by public employees, who were becoming increasingly dissatisfied with government wages and conditions of employment. Even the traditional security of a government job became problematic in some jurisdictions.

The ponderous civil service systems entrenched in most large government jurisdictions were unable or unwilling to satisfactorily respond to public employee demands. For instance, wage and benefit adjustments typically required legislative—not collective bargaining—action. In light of these circumstances, public workers became more receptive to the notion of collective voice through unionization and began demanding compensation and labor rights equal to those in the private sector.

As private sector unions moved aggressively into the relatively unplowed and fertile fields of public employment, preexisting professional organizations rightfully felt threatened. Strong organizing efforts by emergent unions such as the AFT, for example, spurred the NEA to reconsider its own future role in public education and eventually to embrace the full panoply of union and collective bargaining activi- ties. In many jurisdictions, predominantly private sector unions such as the SEIU and the International Brotherhood of Teamsters began to compete directly with the professional associations. In some cases, professional and fraternal organiza- tions had to adopt an overt union strategy to survive. The rivalries between these various types of organizations led to increased militancy and intensified organizing drives, which, on the whole, further enhanced government unionization (Stieber 1973: 830).

3. Changes in the Legal Environment

However widespread they are within a government jurisdiction, unions may be functionally impotent in the absence of a legal framework requiring public employ- ers to recognize and bargain with them. Two events during the early 1960s indirectly

History and Development ◾ 21

contributed to the creation of a more favorable legal environment for enactment of public sector labor laws: first, the U.S. Supreme Court ordered reapportionment of Congress and the 50 state legislatures (Baker v. Carr [1962]; Reynolds v. Simms [1964]) on the basis of one person, one vote. These decisions ended or at least eased the domination of many state legislatures by rural, predominantly antiunion inter- ests. Unions, which have always found their strongest support among people in metropolitan areas, soon discovered more sympathetic ears in the reapportioned legislative bodies of the states.

The second development encouraging bargaining legislation was President John F. Kennedy’s Executive Order 10988 of 1962, which guaranteed unionization and bargaining rights for federal employees. This order might have been the turning point in state and local unionization. Although it is impossible to ascertain a direct cause-and-effect relationship between Executive Order 10988 and the subsequent enactment of labor relations legislation in numerous jurisdictions, it did have a sub- stantial spillover effect in legitimizing public employee unionization and collective bargaining practices.

4. Era of Social Change and Turmoil

There was a massive infusion of young people and racial minorities into the public workforce during the 1960s. Both groups tended to be distrustful of authority and the existing management structure. Furthermore, both groups, on the whole, were favorably disposed to unions (Barrett 1973). Meanwhile, public life in general was riddled with conflicts over the unpopular war in Vietnam, the civil rights move- ment, and rising pressure for social change.

Police officers, for instance, became “sick and tired of being harassed, cursed, spit on, and shot at” (Juris and Feuille 1973: 18). Especially in large urban areas, police found themselves working in an extremely hostile environment inhabited by militant blacks and students whose ire was often directed specifically at law enforcement personnel. Supreme Court decisions that restricted police discretion, such as Miranda v. Arizona (1966), and community demands for civilian review boards to assess alleged police misconduct were seen as threats to the officers’ pro- fessional and personal well-being. At the same time, public officials lodged increas- ingly adamant demands for “law and order” and improved police protection for the community. To many police officers, these intense and often conflicting external pressures, when examined in conjunction with perceptions of low pay and anti- quated personnel practices, became unbearable. The options, as Hirschman (1970) has pointed out, were exit (resign), voice (protest), or loyalty (suck it up). Some, indeed, decided to look for other, less demanding lines of work; others chose to suffer through the experience while awaiting retirement. Many, however, elected to give voice to their complaints through unions. Figure 1.2 displays the rise in public employee unionization in relation to unionization in the private sector.

22 ◾ Labor Relations in the Public Sector

V. Why Government Workers Join Unions— The Individual Perspective

Identifying the broad societal forces that precipitated and accompanied the growth in public sector unionization during the 1960s and 1970s provides only a partial explanation of the union phenomenon. To gain a more complete understanding of collective action within government employment, one must also consider the problem from a microperspective, or individual perspective. What persuades the individual government worker to join a union?

Extensive research clearly shows that American workers join unions because they are dissatisfied. They want higher wages and better benefits, job security, participation in decision making, and protection of their rights as workers. Job- related conditions especially conducive to unionization include hazardous, phys- ically demanding, or repetitive tasks; little input into job-related decisions; and perceptions of arbitrary and unfair management actions and decisions (Hills 1985; Sherer 1987; Hundley 1988; Premack and Hunter 1988). Seldom have political or ideological appeals persuaded U.S. workers to organize. Rather, the principal motive has been to improve conditions of employment through collective voice and action (Friedman, Abraham, and Thomas 2006). For blue-collar workers,

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Figure 1.2 Union membership, by public and private sectors, 1973–2012: The Union Membership and Coverage Database can be found at http://unionstats .gsu.edu/. For the years 1973–1981, data were collected from the May Current Population Survey (CPS). For the years 1983–2012, data were collected from the CPS Outgoing Rotation Group Earnings Files. There were no union questions in the 1982 CPS. (From Hirsch, B.T. and Macpherson, D.A. The Union Membership and Coverage Database 2013, http://unionstats.gsu.edu/.)

http://unionstats.gsu.edu

History and Development ◾ 23

bread-and-butter economic issues are usually paramount. For white-collar workers, psychological reasons such as job security and the desire for a stronger voice in decision making are of somewhat greater significance (Kochan 1980: 26). For almost all employees, job dissatisfaction “must be quite severe before a majority will support unionization as an option for improving these conditions” (Kochan 1980: 26). Recent examples include janitors, nurses and other health-care provid- ers, meat cutting and meatpacking plant workers, and agricultural laborers.

But dissatisfaction alone is not sufficient. Workers must also believe that union representation will be instrumental in securing the desired benefits and that the value of these benefits will exceed the costs associated with unionization. Race, gender, age, and life experiences also play a part in the propensity to join a union. Research indicates that women, African Americans, Latinos, the less educated, the young, and individuals who have been previously exposed to unions are more likely to join them, for example, than highly educated white males born of parents who are professionals (Leigh and Hills 1987; Hundley 1988; DeFreitas 1993; Freeman, Boxhall, and Haynes 2007; Martinez and Fiorito 2009; Booth, Budd, and Munday 2010). No doubt these factors are related. For instance, historically women, African Americans, Latinos, and the less educated have had fewer opportunities for career advancement and thus may tend to see unions as a vehicle for gaining status and pay. Individuals with these union-friendly characteristics are also more likely to have union parents.

Union membership is still higher among men (13.1%) than women (11.9%), but the gap is closing. In 2012, a higher percentage of African Americans (14.8%) were members of unions than whites (12.3%) and Latinos (10.9%) (U.S. Bureau of Labor Statistics 2013). Today’s propensity of women, Latinos, and African Americans to join labor organizations reverses a long-term pattern in which these groups were least likely to join. Historically, women and minorities were system- atically discriminated against by unions in both the public and private sectors. In the 1960s and early 1970s, however, the civil rights movement and the women’s movement forged links with organized labor. Today, low-paid women and minor- ity employees often have the most to gain from unions, and many public employee organizations in particular have recognized the potential for membership gains represented by unorganized minority groups, including recent immigrants.

The case of Latinos is complex and remains a work in progress for researchers. The Latino labor force has rapidly expanded in the United States, largely because of high immigration rates from the Caribbean, Central America, and Mexico. However, the growth rate of Latino union membership, although it now exceeds that of whites, has not kept pace with the increasing penetration of the labor force. Among the factors that may be depressing unionization among Latinos are immigration status, short duration of residence in the United States, and deficient English-language skills (DeFreitas 1993: 285; Milkman 2000; Briggs 2001).

As this segment of the population continues to surge and unions fully recog- nize their organizing potential and reach out to Latinos, higher unionization rates

24 ◾ Labor Relations in the Public Sector

are possible. The success of the “justice for janitors” campaign in organizing large numbers of Hispanic custodial workers in Los Angeles and San Diego, California, and many other cities is one indication of the potential for low-skilled, low-paid immigrants to join unions (Johnston 1994; Devinatz 2008). Heroic struggles by immigrant workers in New York City to overcome their “illegal” status, employer opposition, and the challenges of a new social and economic environment have been chronicled (Ness 2005). (Future prospects for public employee unions are addressed in Chapter 11.)

Chapter 2

Unions Today

I. Introduction This chapter surveys the organizational landscape of public employee unions, including the factors that are correlated with unionization. The key term is diversity. For virtually every generalization about public employee unions, there are notewor- thy exceptions. Public sector unions vary along many dimensions and across levels of government and the nonprofit sector. They are different in terms of affiliation. Some are federated with national organizations such as the AFL–CIO. Others are local independent organizations with no national affiliation. Some unions repre- senting government workers also organize and bargain for workers in the private and nonprofit sectors (e.g., Service Employees International Union [SEIU]). Others (e.g., the Fraternal Order of Police [FOP]) essentially restrict their boundaries to public employees. There are unions with membership rolls numbering more than 1 million, and there are unions whose ranks are counted in double digits. The occu- pations of union members are also highly diverse. Clerical personnel, firefighters, nurses, social workers, welders, physicians, architects, and university professors all work under union banners. Wherever workers experience high levels of job dissat- isfaction, unionization is a possibility.

II. The Federal Government Despite the early recognition in a presidential executive order of federal employ- ees’ right to organize, federal unions operate within a legal framework much less favorable than that which governs private sector labor relations. The scope of bar- gaining in federal labor relations is quite restricted; federal employees represented

26 ◾ Labor Relations in the Public Sector

by bargaining units do not have to join the union, and there is a strong no-strike policy. Federal employee unions represented 33.2% of the 3.57 million civilian workforce (including postal workers) in 2012 (U.S. Bureau of Labor Statistics 2013).

Between 1964 (the first year for which such data were collected) and 1968, federal employee union membership figures climbed rapidly to about half of the total federal civilian workforce. The high watermark was 1987, when 59% of federal employees were covered by collective bargaining agreements. But dramatic reduc- tions in the size of federal employment, particularly through outsourcing of union- dense blue-collar and technical jobs, have driven down the number and percentage of employees represented by unions.

Federal labor relations policy, as embedded today in the Civil Service Reform Act of 1978 and subsequent agency-specific legislation and presidential executive orders (see Chapter 3), severely constrains the potential influence of federal unions on wages, benefits, and working conditions. It is important to note that federal law prohibits membership-enhancing union security provisions such as the Fair Share, which requires individuals whom the union represents in collective bargaining to either join the union or pay their “fair share” of union dues for representational expenses. This provides an ideal situation for encouraging free riders, who enjoy the benefits of union representation in collective bargaining and grievance procedures, but who are not required to contribute out of their own paychecks for union ser- vices. Free riders pose a serious problem for federal unions, which are mandated by law to represent, equally and fairly, all members of their bargaining units, whether they belong to the union or not. Financial resources are the primary measure of a union’s strength and ability to finance representational and political activities, and members’ dues make up a substantial proportion of such financial assets.

Many federal employees are, indeed, free riders. For example, the largest federal union, the American Federation of Government Employees (AFGE), represented approximately 650,000 bargaining unit members in 2012, but less than half of them were dues-paying members. All told, out of the approximately 1.9 million full-time federal wage system (blue-collar) and General Schedule (white-collar) employees who are represented by a collective bargaining contract, only one-third actually belong to the union and pay dues.

The most notable exception to this pattern of free riding is the U.S. Postal Service. As noted in Chapter 1, postal workers were instrumental in early federal employee unionization efforts. They are the most highly organized of all federal workers today. They enjoy their own statutory framework, which was won in the aftermath of a 1970 postal strike. As a consequence, postal unions have full private sector collective bargaining rights, with the exception of union security provisions and the right to strike. Postal union membership figures are almost equal to the proportion under contract, about 90%. The near absence of a free-rider problem for postal unions is attributable to these superior bargaining rights and, in turn, to the union’s greater success in winning improvements in wages, benefits, and working conditions from management.

Unions Today ◾ 27

Federal employee unions represent workers in nearly every agency, from the U.S. Department of Agriculture to the U.S. Information Agency. The largest num- ber of represented employees are civilian workers for the Department of Defense and the departments of Homeland Security, Veterans’ Affairs, and Treasury. Some 90 unions represent employees in at least one federal bargaining unit; the National Treasury Employees Union (NTEU) alone represents about 150,000 federal work- ers in 31 different agencies and departments.

It is useful to review briefly the principal federal unions and some of their distinctive characteristics. The largest federal union, AFGE, represents 650,000 federal and District of Columbia government employees. In 2011, AFGE won exclusive representation rights for 40,000 Transportation Security Administration employees after a fierce battle with NTEU. AFGE was created by the AFL–CIO in 1932 when a preexisting organization, the National Federation of Federal Employees (NFFE), withdrew from the AFL–CIO over jurisdictional and policy conflicts. AFGE membership today is heaviest in the District of Columbia area and, somewhat surprisingly, in the Southeast, where large numbers of civilians are employed in military facilities. AFGE has substantial minority and female repre- sentation both in the rank and file and in leadership positions.

Former AFGE president Kenneth Blaylock helped convince convention dele- gates in 1976 to approve a resolution supporting extension of the union’s jurisdiction to military personnel. Although a vote of the total membership soundly defeated the resolution, merely raising the issue was enough to generate severe consternation and apprehension in the defense establishment and, subsequently, in Congress.

Ostensibly, the American military would appear to offer a ripe environment for union organizers. Pay is low in relation to comparable work for private defense contractors, and many civilian jobs (although benefits are competitive or even supe- rior) and working conditions certainly do not rank among the finest, or for that matter, the safest. In addition, a highly defined and rigorously enforced division exists between military “management” and “labor,” represented by distinctions in uniformed dress, privileges, and other factors, creating a natural and sometimes intense adversarial relationship between officers and enlisted personnel. Not of least importance to the unions is the huge number of potential members in the active military (more than 1.5 million in 2012).

Organization of the armed forces in several Western European nations (e.g., Germany, Holland, Sweden, and Belgium) shows that military unionization is fea- sible. However, some rather serious objections may be lodged. The strike issue is of obvious importance, as is the matter of maintaining military discipline. Other troubling questions involve allocation of less desirable job assignments, effective representation of diverse military occupations by a single large union, and the potential scope of bargaining. Joining a labor union or organizing military per- sonnel by any union is prohibited by federal law and a Department of Defense directive. Civilian workers in defense establishments may belong to unions, but uniformed personnel may not.

28 ◾ Labor Relations in the Public Sector

As AFGE’s major competitor, NFFE has historically assumed a lower profile in its organizing and political tactics. NFFE began in 1917 as an affiliate of the AFL, but withdrew in 1931 largely because of opposition to the strike and other aspects of collective bargaining as practiced by AFL affiliates in the private sector. NFFE even opposed the conservative provisions of Executive Order 10988 for some time. The timid posture of the organization led to steady declines in its membership until 1967, when new leadership was elected. NFFE, like AFGE, then purged a no-strike pledge from its constitution and assumed a more active political posture. NFFE, currently affiliated with the International Association of Machinists and Aerospace Workers (110,000 employees covered by collective bargaining agreements in 39 agencies and departments), is much smaller than AFGE and suffers even more from the free-rider problem.

The third largest federal organization, with 150,000 covered under bargaining agreements in 31 federal entities, is NTEU. NTEU is a nonaffiliated union that began in the Internal Revenue Service in 1938 (as the National Association of Collectors of Internal Revenue) and has since expanded throughout the Depart- ment of the Treasury and other federal agencies. Its aggressive organizing drives made NTEU one of the fastest growing federal unions, and it enjoys a higher per- centage of dues-paying members than most other federal unions.

The National Air Traffic Controllers Association (about 20,000 air traffic controllers, engineers, and safety-related professionals) rose from the ashes of the Professional Air Traffic Controllers Organization, which was effectively destroyed by the actions of President Ronald Reagan. Two major associations (the Senior Executives Association and the Federal Managers Association) represent upper-level federal employees in lobbying the president and the Congress for improvements in compensation and working conditions and greater respect for the public service, but under federal law they cannot engage in collective bargaining. The Federal Managers Association claims to represent the interests of 200,000 federal supervi- sors, managers, and executives.

Postal employees, who officially work for a quasi-government corporation, are represented by several major organizations. The oldest, the National Association of Letter Carriers (200,000 active duty letter carriers), was founded in 1889 and later became an affiliate of the AFL–CIO. The other, larger postal organization is the American Postal Workers Union (220,000 members), formed in 1971 through an amalgamation of five smaller organizations that represented clerks, carriers, and crafts workers. Other postal organizations of significance today are the National Rural Letter Carriers Association (105,000 members) and the National Postal Mail Handlers Union (47,000 members) (see Table 2.1).

Prospects for membership growth in postal unions are rather dismal. Con- tinuing technological changes, and competition from private firms such as United Parcel Service, DHL, and Federal Express, along with years of rising operating deficits that have exhausted the patience of Congress, have resulted in large job cuts in the postal service. With membership figures already around 90%, postal unions

Unions Today ◾ 29

can gain little or no benefit from attempting to enlist the remaining represented (but nonunion) workers. And additional job cuts are anticipated if Saturday mail service is terminated.

Prospects seem equally doubtful for the other federal unions, most of which remain unable to bargain over the important issues of wages and benefits and con- tinue to lack union security provisions that would allow them to increase their dues- paying membership. Far-reaching reductions in force, since 1992, have reduced the absolute number of civilian jobs, translating directly into membership losses and a concomitant weakening of federal union strength and influence. Reversing these negative trends will be tough in the current political climate.

III. Nonprofit Organizations Churches, some schools, charities, hospitals, clubs and fraternal organizations, credit unions, lobbying organizations, museums, and even labor unions themselves are nonprofit organizations. Although there are various legal distinctions based on state and federal law, as organizations with 501(c) tax-exempt status under the Internal Revenue Code, all nonprofit organizations exist for purposes other than generating profits. They rest uneasily in a vast and expanding gray area of organi- zational society: neither government nor business, but typically partnering or oth- erwise interacting with both. They range in size from a one-woman day care center to a massive hospital complex.

The nonprofit or “third sector” is an attractive organizational arena for unions. Hospitals and other health-care organizations account for the largest portion of the nonprofit sector’s resources, making them particularly tempting targets. SEIU; the American Federation of State, County, and Municipal Employees (AFSCME); the Office and Professional Employees International Union; and many others court these and other nonprofit workers throughout the United States.

Print and Internet resources do not permit identification of the extent of union membership and representation in the sector. Existing data are sketchy, although it is known that a significant portion of the membership of SEIU, AFSCME, United

Table 2.1 Major Postal Employee Unions, 2013

Organization Membership

American Postal Workers Union 222,000

National Association of Letter Carriers 200,000

National Rural Letter Carriers Association 104,718

National Postal Mail Handlers Union 47,000

Source: Data from union websites (http://www.apwu.org, http:// www.nalc.org, http://www.nrlca.org, http://www.npmhu.org).

30 ◾ Labor Relations in the Public Sector

American Nurses, and other unions with significant presence in the third sector is composed of nonprofit workers. SEIU, for instance, represents a large number of nurses, hospital workers, and other health-care employees (Clark and Clark 2006). As will be discussed in Chapter 3, nonprofit workers are incorporated within the provisions of the National Labor Relations Act, which governs employer–employee relations in the private sector.

IV. State and Local Government As of January 2013, according to the U.S. Bureau of Labor Statistics, 31.3% of state government employees and 41.7% of local government employees belonged to labor organizations. When occupation is considered, the most heavily organized are teachers, firefighters, and police officers, followed by sanitation workers, social welfare workers, highway personnel, and hospital workers. Recent gains in sanita- tion, health care, and social service occupations have been offset by state employee membership losses in Wisconsin, Indiana, and other states in recent years.

A. Determinants of State and Local Unionization Econometric models have been reasonably successful in explaining private sector unionization, assisted, from a practical perspective, by a national legal setting that places all private workers and employers on an equal footing under the National Labor Relations Act and its amendments. These econometric models indicate that levels of unionization are influenced by wage and benefit levels, the rate of unem- ployment, urbanization, region, “right-to-work” laws, and various worker- and job-related characteristics. What they largely miss, due to a lack of data, is the contribution of worker dissatisfaction to unionization.

Determining the correlates of state and local unionization is more problem- atic because of the complex legal environment (one set of laws for federal workers and 50 sets for the states, plus numerous executive orders, local ordinances, legal rulings, provisions, and practices). It is well accepted that organizational mem- bership is closely related to the presence and scope of state bargaining legislation. Those states with the most permissive legal environment report the highest levels of union membership. Table 2.2 provides information about organized state and local employees for all 50 states, the presence or absence of collective bargaining laws, and a measure of state political ideology.

The relationship between public employee labor relations policy and unioniza- tion, however, recalls the chicken and egg dilemma. This intriguing question of which comes first receives further discussion in Chapter 3; for now, let it suffice to note that the relationship is reciprocal: political pressure from unions helps foster favorable policy outcomes from the state and local legislative processes, and, at the same time, union organizing drives have been aided greatly by laws encouraging or mandating collective bargaining.

Unions Today ◾ 31

Table 2.2 Bargaining Status, Political Ideology, and Union Density, 2013

State

State Collective Bargaining

Lawa

Local Bargaining

Rights

Citizen Political Ideology

Scoreb

State Union

Density c

Alabama — Local government

39.9 29.8

Alaska X All 56.9 57.7

Arizona — None 30.8 22.8

Arkansas — None 59.2 14.1

California X All 65.4 62.6

Colorado Xd None 52.4 27.6

Connecticut X All 91.8 61.5

Delaware X All 84.0 40.3

Florida X All 64.7 30.3

Georgia — MARTA/ firefighters

54.0 13.1

Hawaii X All 82.9 51.2

Idaho — Firefighters/ teachers

35.6 15.3

Illinois X All 68.0 53.4

Indiana — Teachers 46.9 26.8

Iowa X All 57.0 44.0

Kansas Y All 43.7 21.8

Kentucky — Police/ firefighters

52.2 27.1

Louisiana — None 48.0 22.6

Maine X All 90.7 57.1

Maryland X Education/park police/local government

75.4 31.3

Massachusetts X All 88.2 63.9

(Continued)

32 ◾ Labor Relations in the Public Sector

Table 2.2 (Continued) Bargaining Status, Political Ideology, and Union Density, 2013

State

State Collective Bargaining

Lawa

Local Bargaining

Rights

Citizen Political Ideology

Scoreb

State Union

Density c

Michigan X All 76.2 55.4

Minnesota X All 74.7 56.9

Mississippi — None 37.4 13.8

Missouri Xe All 56.0 23.2

Montana X All 66.8 45.5

Nebraska X All 55.5 25.0

Nevada — All 43.2 46.4

New Hampshire

X All 55.0 55.1

New Jersey X All 71.3 61.2

New Mexico Xd All 75.2 20.8

New York X All 78.3 73.6

North Carolina

— None 61.1 13.1

North Dakota Y Teachers/all local government

75.0 21.6

Ohio X All 59.1 44.1

Oklahoma — None 33.0 23.2

Oregon X All 81.3 51.9

Pennsylvania X All 73.9 57.7

Rhode Island X All 81.2 62.5

South Carolina

— None 45.8 15.1

South Dakota X All 56.7 21.7

(Continued)

Unions Today ◾ 33

Economic models are not particularly helpful for understanding or explaining public sector unionization. A more useful approach is to treat unionization in gov- ernment as a socioeconomic, political, and policy phenomenon. Figure 2.1 displays a suggestive comprehensive model that identifies the direct and indirect effects of the state’s socioeconomic environment, the political culture, the state political sys- tem, and labor relations policy.

As shown in Table 2.2, unionization is lowest in the Sunbelt states, such as Arizona, Arkansas, Mississippi, North Carolina, South Carolina, Texas, and Vir ginia. Clearly, collective bargaining laws make a difference in levels of unioniza- tion. Even within a single state, the salience of law can be seen. State labor rela- tions policy may be the single most critical element that determines the fortunes of unions in state and local government.

Table 2.2 (Continued) Bargaining Status, Political Ideology, and Union Density, 2013

State

State Collective Bargaining

Lawa

Local Bargaining

Rights

Citizen Political Ideology

Scoreb

State Union

Density c

Tennessee — None 46.0 17.7

Texas — Police/ firefighters

46.8 22.1

Utah — Teachers 28.4 18.6

Vermont X All 89.8 53.4

Virginia — None 66.7 13.4

Washington X All 70.0 53.5

West Virginia Y All 78.3 26.5

Wisconsinf — None 69.2 40.3

Wyoming — Firefighters 25.2 15.7

a “X” denotes collective bargaining. “Y” denotes meet and confer. b Citizen political ideology scores were calculated by Berry, Ringquist, Fording, and Hanson

(2007). Lower scores denote political conservatism; higher scores denote political liberalism. Data are current as of 2008 (http://www.bama.ua.edu/~rcfording/stateideology.html).

c Union density refers to the percentage of employees represented by unions (union coverage) in each state. Data are current as of 2012 (Bureau of Labor Statistics).

d Collective bargaining granted through executive order. e Collective bargaining through court decision. f At the time of publication, Wisconsin was in a court dispute regarding the 2011 law ending

collective bargaining in the state.

http://www.bama.ua.edu

34 ◾ Labor Relations in the Public Sector

In 2011–2012, collective bargaining laws fell under a determined Republican-led assault in several states, including Wisconsin (where bargaining rights were elimi- nated for all but police and firefighters), Ohio, Tennessee (teachers), Oklahoma (local government), Idaho (teachers), and other states. In these and other states, a significant shift in the political climate has resulted in shocking membership losses. In Wisconsin, union membership dropped from 50% to 37% in a single year (Gilbert 2013).

The socioeconomic environment portrayed in Figure 2.1 may be operational- ized through variables such as wealth (personal or family income), level of edu- cation, unemployment rate, urbanization, and manufacturing. Wealth and high levels of urbanization and manufacturing activity were conventionally conducive to unionization in industry, which in turn became correlated with government unionization. Bad economic times and government fiscal crises, such as the recent Great Recession, may produce retrenchment and reductions in force, which will retard unionization. High unemployment inhibits unionization because employees are concerned about layoffs and hesitate to jeopardize their jobs by joining a union. Education levels are likely to be inversely related to unionization because a highly educated workforce earns good pay, has more individualized bargaining power, has better working conditions, and generally perceives less need for unionization.

Political culture shapes unionization through historical and demographic forces. As originally formulated by Elazar (1966), a traditionalistic culture, with its elitist and paternalistic elements, should be hostile to unions, as certainly has been the case in the South. A moralistic political culture is more conducive to unions, with its emphasis on equity, collective choice, and “doing good.” The indi- vidualistic political culture views politics as a marketplace, with the primary pur- pose of government and politics being the furtherance of individual and business interests. Thus, unions face greater obstacles in states with such a culture than in moralistic states, but through effective political action they can win bargain- ing rights. Political culture is related to ideology. States characterized by political liberalism (typically Democratic “Blue States”) are more favorable toward unions than are politically conservative states. Political ideology also helps determine public policy in the states. As shown by Berry et al. (2007), changes in citizens’ “policy mood” can lead to policy change by influencing the actions of state and local officials. The expectation is that collective bargaining finds a friendlier policy

Socioeconomic environment

Political culture

State political system

State labor relations

policy

State and local

unionization

Figure 2.1 A comprehensive model of state and local government unionization.

Unions Today ◾ 35

environment in politically liberal states than in conservative states. Evidence for this expectation is shown in Table 2.2.

Obviously, political culture, socioeconomic environment, and political ideology have a strong regional bias. A brief look at unionization in the Sunbelt states dem- onstrates that conclusion. Generally speaking, the Sunbelt states (those below the Mason–Dixon Line and extending to the West Coast) do not have the characteris- tics that have been associated with unionization in other regions. Although Sunbelt growth has been generally accompanied by gains in urbanization, industrializa- tion, and economic diversity; a healthy business climate; and massive in- migration of people from other regions and countries, unions in neither government nor industry have done an effective job of attracting members and winning bargain- ing rights. Two special factors seem to be operating in the Sunbelt to discourage unionization: the political culture and ideology, on the one hand, and determined union resistance tactics by employers on the other. The latter is at least partly a product of the former.

To preserve the values comprising traditional political culture, employers in the Sunbelt have become highly sophisticated in applying union resistance tactics. Some, such as the meat packing and processing company Smithfield Foods, have regularly employed extralegal means to fight off the unions. Most firms and many governments, however, have practiced the more gentle union suppression tactics of “positive human resource management,” which involves offering competitive wages and benefits, good working conditions, and participative decision-making programs. Whatever rubric management assigns to the activity, unions tend to perceive it as at best union-averse behavior and at worst “union-busting.” Often, specialized law firms and management consulting firms are retained to direct the employer’s antiunion strategies and train employers in “union-avoidance” tactics. Although these strategies and a predominantly antiunion climate are also in evi- dence in other portions of the United States, they are strongest in the Sunbelt.

Large gains in public sector union membership and influence do not seem likely in the Sunbelt, unless permissive legislation is enacted or union-friendly governors issue executive orders extending collective bargaining rights. These possibilities, in turn, presume a shift in public mood in favor of bargaining (Berry et al. 2007). In most of the Sunbelt, a vicious cycle seems to be present in which the traditionalistic, conservative political culture, conservative political ideology, Republican legislative and executive branch majorities, and the absence of union strength diminish the chances of new collective bargaining legislation, and in the absence of a favorable legal environment, union membership gains remain arduous.

Nonetheless, there is some basis for not writing off all prospects for union growth in the region. The area continues to prosper economically and to develop characteristics similar to geographic areas with more highly unionized states. Surveys have reported a strong reservoir of potential support for unions in the region, particularly among Latinos and African Americans. Moreover, population shifts and socioeconomic change have influenced political ideology, tending to

36 ◾ Labor Relations in the Public Sector

make it less conservative. The problems, however, remain substantial. Unions have not yet discovered a means to break through the barriers of politically conservative influences and adapt to the abiding conditions and norms of the region.

Looking again at Figure 2.1, it can be seen that the state political system is linked to the socioeconomic environment and to political culture and ideology. The state political system encompasses factors such as executive–legislative rela- tions, legislative professionalism, interparty competition, and the political and eco- nomic strength of private sector unions. For example, competitive two-party states should be more conducive to unionization because union interests are more likely to receive legislative representation. Similarly, a strong Democratic Party presence in the three branches of state government should facilitate unionization in govern- ment; traditionally (and to this day), Democrats have been more “pro-labor” than the “pro-business” Republicans.

Why, today, are government workers organized in much larger proportions (about 5:1) than workers in private sector employment? There are several major rea- sons. One reason is the legal environment, which, with the exception of the nonbar- gaining states, is more amenable to signing up members and keeping them on the rolls than the private sector legal environment under the National Labor Relations Act. Second, most public employees are protected by a blanket of civil service rules and regulations that prevent management from firing them for engaging in union activities. Third, a prime objective of unions is greater worker participation in decision making, and there is evidence that managers in government organizations are gen- erally more willing to share authority and decision making than their counterparts in business (Morse 2008; Morse, Buss, and Kinghorn 2007). Part of this willing- ness is no doubt associated with the prevalence of highly educated professional and white-collar employees in many government organizations and the sense that both management and labor are working “for the people.” Finally, government managers have much less to gain from actively opposing unions than do business managers.

B. Employee Organizations in State and Local Government Public employee organizations may be categorized according to several charac- teristics. The first important distinction is between associations and unions. State and local government employee associations were organized in the first half of the twentieth century as mutual benefit and service-providing organizations (Stieber 1973: 8). These early organizations provided credit unions, group benefit plans for health and life insurance, and other member services; some even handled griev- ances. Although most associations were concerned with serving their members and, in some cases, enhancing the status of various government-related professions, they also engaged in legislative and executive branch lobbying activities in efforts to win favorable treatment for their members. However, these early employee associations did not seek collective bargaining as the fundamental means for winning improved wages, benefits, and working conditions from government employers.

Unions Today ◾ 37

A second type of categorization involves the nature of the employer. Some of the public employee unions are primarily public, such as the FOP, whereas others are mixed membership unions claiming membership in government and industry and, increasingly, in the nonprofit sector as well. Examples of mixed membership unions are SEIU, the International Brotherhood of Teamsters (IBT), and, increas- ingly, AFSCME. Third, unions may be distinguished by the functional coverage of their organizing activities. Some, like AFSCME, are general-purpose organizations, which seek out members at all levels of government and in almost any occupation. Others, such as the International Association of Firefighters (IAFF), are functionally specific, concentrating membership in a single government job category. Table 2.3 displays the largest state and local employee organizations and their memberships.

Most professional associations in state and local government initially opposed collective bargaining and the other trappings of unions; some still do. However, once a collective bargaining law was adopted, associations adapted to it by seeking certification as bargaining representatives, then participating in collective bargain- ing, and negotiating written agreements. By the early 1970s, there was a marked convergence in goals, strategies, and tactics among many of the associations and the unions. Some of the state and local associations have maintained their indepen- dence while functioning as unions. Other associations have merged with unions; for instance, the Illinois State Employees Association merged with SEIU, as did the California State Employees Association, and the State Employees Association of

Table 2.3 Membership of Largest State and Local Employee Organizations, 2013

Organization Membership

National Education Association 3,000,000

American Federation of State, County and Municipal Employees

1,600,000

American Federation of Teachers 1,500,000

Service Employees International Union 1,000,000a

American Federation of Government Employees 650,000

Fraternal Order of Police 325,000

International Association of Firefighters 298,000

International Brotherhood of Teamsters 260,000a

Source: Data from union websites (http://www.nea.org, http://www.afscme.org, http://www.aft.org, http://www.seiu.org, http://www.afge.org, http:// www.fop.net, http://www.iaff.org, http://www.teamster.org).

a Denotes public membership only.

http://www.nea.org

http://www.afscme.org

http://www.teamster.org

38 ◾ Labor Relations in the Public Sector

North Carolina. The Massachusetts State Employees Association joined with the National Association of Government Employees and the New York, Ohio, Arizona, and Mississippi civil service employees associations affiliated with AFSCME. Nevertheless, many associations remain predominantly service-oriented lobbying organizations that do not engage in collective bargaining. Examples include the South Carolina and Virginia state employees associations.

Although there has been some debate on the relative effectiveness of indepen- dent unions versus unions affiliated with national labor organizations, it is dif- ficult to sort out key empirical dimensions of organizational influence and power. However, the consensus seems to be that independent organizations can be as effec- tive as or even more successful than affiliated organizations, depending on factors such as leadership, group cohesiveness, financial and human resources, community acceptance, and the general labor environment.

Competition over members and collective bargaining recognition led to some rather severe interunion conflicts during the late 1960s and early 1970s (Spero and Capozzola 1973: 32–37; Stieber 1973: 89–100). A stable and comprehensive legal environment in the majority of states, embodied by formal nonaggression pacts between some of the larger unions, has helped alleviate some overt conflict. However, internecine union warfare occasionally breaks out, as it did in 2005 when SEIU, the Teamsters, and five other unions split off from the AFL–CIO to form a new federation called Change to Win. A major battlefield is the nonprofit sec- tor’s health-care providers and workers in child care and nursing home establish- ments. The fight between SEIU and AFSCME over child-care providers in Iowa was likened by the state’s human services director to “the Bloods versus the Crips” (Walters 2006: 29). Other AFSCME–SEIU clashes have erupted in the health-care sector in California and in the Midwest.

Public employee unions may be characterized by their membership and orga- nizing targets as general purpose or functionally specific.

1. General-Purpose Unions

The paramount general-purpose organization in government is AFSCME. Mem- bership estimates were about 1.6 million in 2012 (see Table 2.3). It is the largest AFL–CIO affiliate. AFSCME’s greatest membership gains were registered dur- ing 1962–1978. The union lost about 10% of its membership from 2009 to 2012 (Hananel 2012a). Its strongest presence is in the clerical, health care, technical, pro- fessional, and law enforcement fields. AFSCME has four “Special National Bodies”: United Nurses of America (UNA, 60,000 members), AFSCME Corrections United (85,000 corrections officers and personnel); Child Care Providers Together (mem- bership not available); and AFSCME Retirees (240,000).

Internally, AFSCME is organized through an “international” office and its executive committee, 58 regional councils, and some 3400 locals that report to the councils. The president (Lee Sanders, elected in 2012 following a 31-year reign

Unions Today ◾ 39

by Gerald McEntee) appoints his or her own staff, which performs executive and judicial functions for the organization. The highest policy-making body is the International Convention. The convention is held annually; delegates decide basic policy questions. The locals elect their own delegates and operate under their own constitutions, with the number of delegates determined by total membership. Between conventions, policy is developed and implemented by the executive com- mittee. Dues are apportioned among the national, local, and council (regional) organizations. Dues increases are tied to average earnings increases of full-time state and local government employees.

As an organization, AFSCME is an indefatigable political activist closely aligned with the Democratic Party. It has not hesitated to take positions on salient questions of domestic and foreign policy or to enter the electoral arena with large campaign contributions to friendly candidates and massive get-out-the-vote drives. Its principal political action committee, PEOPLE (Public Employees Organized to Promote Legislative Equality), typically ranks as one of the top campaign fun- draisers in national elections. AFSCME’s primary purpose in much of its political activity has been to legitimize and expand the bargaining rights of public employ- ees, principally through electing Democratic members of Congress and state leg- islatures. Within its own ranks, AFSCME usually has taken care to ensure proper representation of women and people of color, who hold a number of important national offices and a majority of the national membership.

Three other strong, general-purpose organizations operate in government, all of them mixed unions with a major presence in the private and nonprofit sectors. SEIU counts more than 1 million of its members in government employment, but the union is also strong in the nonprofit services and health-care sectors, as well as in education. SEIU’s major organizing campaigns recently have focused on health- care workers, day-care providers, and long-term care workers, using the themes of quality care and consumer protection within the rapidly growing health-care industries to attract new members. The union reports more than 1.1 million mem- bers in health care, including nurses, home-care workers, nursing-home workers, and lab technicians. SEIU has also rung up victories and attained a significant pres- ence among janitors and security guards.

SEIU is governed by a 68-member executive board, which makes policy deci- sions at its national meetings. SEIU counts more than 150 local affiliates organized into 15 state councils. SEIU President Mary Kay Henry replaced long-time presi- dent Andy Stern in 2010.

The IBT has been a strong competitor of SEIU and AFSCME in some local government jurisdictions. The IBT has organized approximately 260,000 public employees (out of a total membership of 1.4 million). The IBT public membership includes clerks, school employees, corrections officers, custodial workers, police and firefighters, health-care workers, and skilled and semiskilled laborers. President James P. Hoffa leads the union with a 26-member executive board elected at-large and by geographic area. Local delegates meet once every 5 years.

40 ◾ Labor Relations in the Public Sector

2. Functionally Specific Organizations

A substantial amount of unionization in government has occurred along professional lines, similar in some respects to craft organization in the private sector. The major organizations in education, police and fire protection, health care, and miscellaneous government professions are examined next.

a. Education: Primary and Secondary

Public education is the largest public employer by far in state and local government—more than 5 million individuals work in public education. It is also the most expensive of all state and local services, consuming some $571 billion in expenditures.

Two organizations have dominated the union movement in education: the independent National Education Association (NEA) and the AFL–CIO-affiliated American Federation of Teachers (AFT). The NEA, the largest labor union in the United States, claims a national membership of about 3 million active and retired members, but it lost more than 100,000 between 2010 and 2011, attributable to the Great Recession and its aftermath. The NEA operates with 14,000 local affiliates, with its primary strength in mid-sized cities and suburbs. Its largest state affiliate is the California Teachers Association, with a whopping 325,000 members. Eighty percent of its members are classroom teachers.

The AFT, with a membership roll of about 1.4 million, is concentrated in large cities such as New York, Boston, Chicago, Minneapolis, and Denver. The AFT has presented itself as an aggressive union seeking collective bargaining rights for teachers since its inception in 1919. In contrast, the NEA was born in 1857 as a professional organization open to both teachers and supervisory personnel. Even though many NEA locals function as unions today, and the national organization is officially labeled a “union” by the Bureau of Labor Statistics and the Internal Revenue Service, a large portion of the members are found in locals that do not engage in collective bargaining relationships.

Early in its history, the NEA proclaimed that discussions on teachers’ salaries with the local school board or superintendent were “unprofessional.” The national organization’s attitude changed, however, with the 1961 election of New York City’s United Federation of Teachers (an AFT affiliate) as teacher bargaining agent for the city—a painful loss for the NEA. Soon thereafter, the NEA leadership made a number of policy changes, including support for “professional negotiations” and “professional sanctions” against arbitrary or unethical school management prac- tices. The NEA also began sponsoring state legislation for teacher bargaining.

Although there is little doubt that the NEA and the AFT have become more alike in their strategies and activities, there remain important differences that have stifled recurring attempts to merge. Beginning in 1969, formal merger dis- cussions were held and some NEA and AFT locals did join ranks (e.g., in Flint, Michigan), but the national leadership of the NEA eventually backed out for three

Unions Today ◾ 41

major reasons: AFL–CIO affiliation (the NEA did not desire it); the composition of bargaining units (the NEA wanted to retain supervisory personnel in some locals); and, in general, more conservative NEA policy positions on a number of issues (Stern 1979: 63–64). The organizations officially decided to go their separate ways, with the NEA continuing to limit its membership to professional educa- tion personnel and the AFT electing to pursue the organization of teachers’ aides, paraprofessionals, library workers, cafeteria workers, bus drivers, and noneducation employees in civil service and health care (Stern 1979: 66–67). Drawing the two organizations even farther apart was the rancorous conflict over President Carter’s proposed Department of Education in 1979. The NEA supported the new depart- ment (which was subsequently created), whereas the AFT, led by the late President Albert Shanker and encouraged by the AFL–CIO, fought it adamantly.

During the 1980s, the two organizations continued to compete for new mem- bers and to raid the others’ jurisdictions for representation rights (see Cooper 1988). Nonetheless, on several occasions in the 1990s, efforts were undertaken to bring the two organizations together but to no avail. Periodically, merger discussions resume (most recently in 2012), but significant differences have so far kept the two unions at arm’s length. Today, a “partnership” between the NEA and the AFT helps advance common goals through a joint council, although the two organiza- tions remain fiercely independent.

Perhaps the differences between them are best illustrated by their leadership. AFT President Al Shanker, who died in February 1997, was a charismatic figure whose persuasive and respected voice influenced education policy debates from the White House to the schoolhouse. His arguments for higher national education standards and other reforms received much attention during the 1990s. Shanker was an aggressive New Yorker with a sharp voice and wit as well as undisguised policy ideas.

Replacing Shanker as AFT president was Sandra Feldman. Feldman also rose from the ranks of New York City teachers, progressing through the organizational hierarchy to the presidency in 1998. She was a Shanker disciple who, in many ways, served out his legacy as a strong voice for teachers and education policy issues. Feldman resigned in 2004 due to illness. She was followed briefly (and innocu- ously) by Edward J. McElroy (2005–2008), then by Randi Weingarten, a tough NYC union negotiator who, like Feldman, rose through the union ranks to the presidency. Weingarten is a complex and highly controversial leader who has served as a lightning rod for criticism of teachers and their unions. Case Study 2.1 provides a deeper examination of Weingarten.

In comparison to the AFT, the NEA has been headed up by relatively lower profile individuals. The successive presidencies of Mary Hatwood Futrell, Keith Geiger, Bob Chase, Reg Weaver, and current president Dennis Van Roekel faced the challenge of holding together a highly diverse constituency with 14,000 chapters in both bargaining and nonbargaining settings. Although NEA leadership is aligned with the Democratic Party, its positions on social welfare issues have generally been

42 ◾ Labor Relations in the Public Sector

more moderate than those of the AFT. But the NEA, until very recently, was less likely than the AFT to make accommodations to education reform issues such as teacher evaluation and merit pay.

b. Higher Education

Collective bargaining by public college and university faculty in the United States was initiated in 1967 by the AFT at the U.S. Merchant Marine Academy. Approximately 368,000 professors and professional staff are represented by faculty unions today. This amounts to about one-fifth of all faculty in higher education. Two-year colleges report the highest level of organization followed by four-year colleges and research universities. Among the larger universities with organized faculty are the California State University system, the State University of New York system, Rutgers University, and the University of Connecticut.

The major faculty unions are the NEA, the AFT, and the American Association of University Professors (AAUP). The NEA first dabbled in organizing college faculty in 1870 with the creation of a higher education unit, which was dissolved during the 1920s but re-created in 1943. After an early emphasis on teachers’ colleges and com- munity colleges, the NEA moved strongly into more comprehensive higher education institutions in the early 1970s (Ladd and Lipset 1973: 6–7). The AFT first focused its energies on organizing the nation’s two-year campuses, but, following the path of the NEA, has since gained the right to represent faculty at several four-year institutions.

The AAUP, like the NEA in elementary and secondary education, existed for many years as a professional association not interested in collective bargaining or other union-like activities. The AAUP was founded in 1915 to help protect academic freedom and tenure rights and to advance faculty salaries through information gath- ering and other modest lobbying activities. Campus organizing successes by com- peting groups (the AFT and, ironically, the NEA) forced the AAUP to the table. After the collective bargaining strategy was officially adopted in 1972, however, the AAUP suffered losses in membership, primarily due to more effective organization and representation by its rivals, dropouts among faculty at noncollective bargaining institutions, and the negative fallout of the U.S. Supreme Court’s Yeshiva decision (discussed in Chapter 4). Many AAUP chapters continue to eschew collective bar- gaining. Nonetheless, the AAUP has demonstrated moderate success by organiz- ing faculty at 64 colleges and universities, including the University of Connecticut, University of Rhode Island, Rutgers, the University of Illinois, the State University of New York campuses, and the University of New Hampshire, institutions gener- ally viewed as more prestigious than those represented by the NEA or the AFT.

A large majority of the organized institutions are publicly supported colleges and universities. The predominance of faculty organization in public institutions results from the Yeshiva decision of the U.S. Supreme Court in 1980. The Court ruled that faculty at private colleges are “managers” under the National Labor Relations Act and therefore are not protected for collective bargaining purposes

Unions Today ◾ 43

(National Labor Relations Board [NLRB] v. Yeshiva [1980]). Yeshiva has directly resulted in the denial of bargaining rights at more than 80 institutions (Metchick and Singh 2004: 54). Management responsibility, according to the Court, is found in the faculty’s “absolute authority over such matters as grading, teaching methods, graduation requirements, … student discipline, … academic calendars, and course schedules.” The Yeshiva decision has not damaged unionization in state and locally supported institutions, and the ruling does not require a private academic institu- tion to forgo faculty bargaining if it determines on its own that faculty, adjunct professors, and teaching assistants are not “managers” (Metchick and Singh 2004).

A number of theorists have attempted to explain the reasons for the rather shocking reversal of scholars’ historical aversion to unionism. Faculty in American higher education long valued a tradition of high social status and acute professional independence, two norms in deep conflict with the egalitarian and collective values associated with those occupations most given to unionization (Ladd and Lipset 1973: 2–4). However, conditions changed rapidly in academe during the late 1960s and early 1970s. Low salaries became less acceptable, and threats to the sacrosanct tradition of academic tenure arose through reductions in force at some financially hard-pressed institutions. In addition, many higher education institutions under- went a metamorphosis in size and mission that stimulated faculty organization. For example, former teachers’ colleges were upgraded to major state universities, with a concomitant change in the administration’s research-related expectations for faculty. Other institutions had grown so large, so fast, that seemingly vast and unresponsive administrative bureaucracies had arisen. Such a strong degree of administrative centralization led many faculty members to seek a unified and col- lective voice of their own, particularly in the context of the social turmoil of the 1960s, much of which was concentrated on or around campuses (Ladd and Lipset 1973: 4). Finally, it should be noted that almost all organized college and university faculties are in states that are characterized by a legislative environment conducive to faculty unionization and collective bargaining. Rarely do faculty organize into unions in the absence of permissive legislation.

Interest remains in faculty unionization as state legislatures cut higher education funding and push colleges and universities toward a business model of operations run by administrators acting like corporate CEOs, and, indeed, recent member- ship data indicate a sizable boost in faculty unionization (Schmidt 2012). There is currently a determined drive for unionization and collective bargaining rights for part-time faculty and graduate teaching assistants, who engage in part-time teach- ing and research but are paid far less than regular faculty, and who enjoy few, if any, benefits (Singh, Zinni, and MacLennan 2006). As of 2012, approximately 20% of faculty were represented in bargaining units (Schmidt 2012).

Graduate teaching assistants (TA) shoulder heavy loads in teaching classes (relieving the declining ranks of tenure-track professors) while working on their dis- sertations. TAs usually receive tuition reimbursement and a modest stipend for their efforts, but many believe this is small recompense for what amounts to full-time

44 ◾ Labor Relations in the Public Sector

work as well as full-time study for a PhD (Maynard 2012c). TAs certainly feel like “ employees” and as such should be eligible for collective bargaining. The first graduate student association to win recognition was at the University of Wisconsin (Madison) in 1969. Since then, graduate assistants have successfully organized at other pub- lic campuses in California, Illinois, Indiana, Michigan, New York, and nine other states. Long-suffering graduate assistants have gone out on strike on several occasions at the prestigious Yale University, protesting their low pay and poor benefits.

c. Protective Services

Firefighters are among the most highly organized of municipal employees. A large majority belong to the IAFF, although AFSCME represents a small number and various independent organizations speak for firefighters in some jurisdictions. With its roots in early social and benefits societies for firefighters, the IAFF was founded as an AFL affiliate in 1918. It has a highly decentralized structure with a small national headquarters and staff in Washington, D.C., which functions mainly to distribute information on salary, benefits, and other job-related topics to the locals, provide technical assistance for collective bargaining, and actively lobby Congress and state and local legislative bodies for greater firefighter compensation and favor- able treatment with other issues. The 3100 IAFF locals have a high degree of auton- omy in their activities and in their bargaining relationships with local governments. About 298,000 members were reported by the IAFF in 2012, including a growing number of emergency medical personnel.

Police officers are represented by several national organizations. Some locals are affiliated with general-purpose unions: AFSCME (whose first police affiliate was chartered in 1937 in Portsmouth, Virginia), SEIU, and the Teamsters (although their latest membership figures are relatively low). The International Union of Police Associations (IUPA), which is in essence an “association of associations,” is affiliated with the AFL–CIO. The IUPA serves as a coordinating body for local, independent police associations and conducts police wage and benefit surveys, among other activities. Its membership is heaviest in the southern states, Massachusetts, and New York. The IUPA also reports local corrections officer affiliates.

The FOP is the oldest and largest police organization, founded in 1915. The national FOP provides collective bargaining assistance to locals, actively lobbies governments at all levels, and offers a wide variety of professional services. Its 325,000 members and 2100 “lodges” are concentrated in the north-central and southern states. Other national police organizations include the International Brotherhood of Police Officers, created in 1964, which also represents correc- tional officers, EMTs, and paramedics, and the National Association of Police Organizations (NAPO), which is a coalition of police unions and associations that advances members’ interests through political and legal advocacy and education. Founded in 1978, NAPO reported representing 2000 unions and associations and more than 241,000 sworn officers in 2012.

Unions Today ◾ 45

d. Health Care

The nation’s burgeoning health-care industry presents an enticing organizing target for the unions. Nurses, technical employees, maintenance workers, clerical work- ers, and employees in nursing homes, assisted living facilities, clinics, and other health-care facilities face uncertainties (e.g., facility mergers and privatization) and experience dissatisfaction (e.g., low wages and tough working conditions) that make unions look attractive. “Professional” health-care employees in proprietary and nonprofit institutions were excluded from collective bargaining coverage until an amendment to the National Labor Relations Act in 1974 unleashed intense organizing activity by the American Nurses Association, AFT, UNA (an affiliate of AFSCME), SEIU, and other unions. In 2009, a “super union” of nurses was formed through a merger of the California and Massachusetts nurses associations and the United American Nurses, forming National Nurses United. Shortly thereafter, six states’ nurses associations formerly affiliated with the United American Nurses established the National Federation of Nurses (Sanders and McCutcheon 2010).

SEIU, which has been concentrating on organizing hospital, nursing home, and health maintenance organization (HMO) chains, represents about 110,000 nurses and 40,000 physicians.

The health-care sector represents a ripe fruit ready for union picking as the nation’s population continues to age, with a growing number of people entering nursing homes, long-term care facilities, and other health-care institutions. Even physicians, looking for an antidote to the perceived intrusions of HMOs, man- aged care organizations, and insurance companies into doctors’ pay and autonomy with patients, have been actively exploring union representation. In 1999, the American Medical Association voted to form a labor union on behalf of profoundly discontented practicing physicians. A key issue, however, is the status of private and nonprofit sector physicians under the National Labor Relations Act. Are they “employees” of HMOs, for instance, and therefore employees who may engage in collective bargaining? Or, like professors in private colleges and universities, are they “supervisors,” who are excluded from National Labor Relations Act coverage (as a 2006 ruling of the National Labor Relations Board determined in the case of regis- tered nurses)? Eventually, this question may have to be resolved by the federal courts.

V. Prospects When union strength is measured by the proportion of potential public and private sector members who actually belong to a union, the United States trails all other industrialized or “developed” countries. Union strength in the United States has declined significantly in the private sector since its 1954 peak and has dropped slightly in government since its peak in the mid-1980s. Union membership has also declined in most other industrialized countries, but labor remains politically

46 ◾ Labor Relations in the Public Sector

strong, particularly in Germany, the Netherlands, and the Scandinavian coun- tries. The membership losses appear to be the result of various forces, including reductions in the size of heavily organized public sectors, the shift to services and information-related employment in the private sector, and the expansion of the temporary and part-time (“contingent”) work forces. There are no convincing indi- cations that the declining fortunes of unions worldwide are poised for a reversal. Indeed, many of the same negative patterns for organized labor that have been observed in the United States appear to be present across the globe. Chapter 11 addresses the future of public employee unions in detail.

Case Study 2.1 Portrait of a Union Leader: Randi Weingarten, American

Federation of Teachers

Perhaps the toughest job in public sector labor relations is that of Randi Weingarten, president of the AFT. Quickly rising through the organizational ranks, Weingarten is, to friends and foes alike, the face of teacher unionism. She is a prominent player in national education policy and a tireless defender of those who earn their living in the classroom.

With a majority of her membership opposing virtually every proposed education reform—charter schools, merit pay, teacher evaluation, and ending tenure—Weingarten shoul- ders heavy organizational challenges. She must “humanize” America’s teachers by representing them favorably to the pub- lic and policy makers, while countering undesirable educa- tion reform initiatives and influencing national, state, and local policy makers to view the AFT agenda favorably. To succeed, Wein garten must navigate the perilous waters between educa- tion policy reformers and rank-and-file union membership. If she sails too close to the reformers’ positions, she risks forfeit- ing her membership’s support, and even her job. But if her advocacy for more teacher pay, benefits, and privileges is too strident and unyielding, she places her national education pol- icy voice in jeopardy. The stakes are high: education quality, children’s futures, and the survival of collective bargaining for teachers.

So far, Weingarten has been a successful union leader. She uses her distinctive voice to bring others to her point of view. Yet she has proven to be adaptable to concerns of oth- ers when necessary, while recognizing and seizing opportuni- ties. Weingarten, like all union leaders, has suffered setbacks.

Unions Today ◾ 47

But she has been resilient, showing the capacity to learn from them. Weingarten has been effective at playing both offense (proposing and advocating new education quality initiatives to develop teachers and improve their classroom performance) and defense (fending off attacks on teachers and their unions).

Vicious political attacks on the AFT and Weingarten have taken a toll on public sentiment toward teachers and their unions. The popular documentary Waiting for Superman por- trayed teacher unions and Weingarten in particular as educa- tion reform villains. But even many of Weingarten’s opponents recognize her basic integrity and the validity of the role she plays in the education policy arena. They may not agree with her, but many do respect her.

Sources: Kearney, R.C., Public Admin. Rev., 772–781, 2011; Medina, J., nytimes.com, 2008; Gabriel, T., nytimes.com, 2010.

Chapter 3

Legal Environment of Public Sector Labor Relations

I. Introduction The legal basis for government labor relations and collective bargaining is a hodgepodge of statutes, ordinances, attorney general opinions, executive orders, and court decisions. The federal government does not have a single policy gov- erning labor–management relations for all of its workers, and to say that state and local government labor policies vary widely is a gross understatement. Some states continue to prohibit collective bargaining in government at all levels, whereas in others virtually all public employees are in a bargaining unit. Most states forbid public employees to strike, but some permit strikes under certain conditions. Such extreme labor relations diversity is in stark contrast to other industrialized nations, wherein a single national collective bargaining law pre- vails for all public workers.

This chapter describes the legal environment of public sector labor relations in federal, state, local, and nonprofit sectors and introduces the major institutions and political actors that establish the legal context, including the president, Congress, federal and state courts, state and local legislative bodies, governors, attorneys general, and the public. After a brief examination of the right to form and join unions (a right that is shared by virtually all public employees in the United States), the federal context of labor relations is described, including the 1978 Civil Service

50 ◾ Labor Relations in the Public Sector

Reform Act (CSR A). The remainder of the chapter focuses on the state and local legal environments, the basic provisions of comprehensive bargaining laws, and authorization for unionization and collective bargaining.

II. Right to Form and Join Unions Before 1967, public employee assertions of the right to form and join unions were frequently met by words similar to those of Justice Holmes in the case of McAuliffe v. City of New Bedford (1892). Holmes allowed that whereas the petitioner in the case, a former policeman who had been fired for engaging in electoral activi- ties, “may have a constitutional right to talk politics, … he has no constitutional right to be a policeman…. There are few employments for hire in which the servant does not agree to suspend his constitutional right of free speech.… The servant cannot complain as he takes the employment on the terms which are offered him.”

Although McAuliffe did not directly address the issue of freedom of associa- tion, the case was influential because it invited “judges to analyze governmental restrictions on public employees’ First Amendment rights in a curious way; that is, as if public employees were different from everyone else; as if, with respect to public employees, government is especially empowered to restrict the political and civil rights the rest of us enjoy” (Wellington and Winter 1971: 70). In other words, government could condition employment on forfeiture of the employees’ right to organize, thereby restricting application of the First Amendment right of associa- tion solely to workers in private employment. Holmes’ line of reasoning was cited as late as 1963 by the Supreme Court of Michigan in the case of AFSCME Local 201 v. City of Muskegon (1963), upholding the constitutionality of a regulation issued by Muskegon’s chief of police that prohibited labor unions.

Denial of the right of government workers to form and join unions was but- tressed by the sovereignty doctrine. A sovereign government, the argument goes, has the power to fix through law the terms and conditions of government work. This power is unilateral, and it cannot be given away or shared through negotia- tions with a public employee organization. But the counterpoint to the sovereignty argument is a strong one. As noted by Wellington and Winter (1971: 71–73), the right of Americans to freely join together in what constitutional framer James Madison called “factions” has long been recognized as characterizing a free society and constituting a necessary safeguard against a tyranny of the majority:

Organizations based on mutual economic interests, such as trade associa- tions or labor unions, are paradigms of associations, factions, or as they are usually called today—interest groups. Such groups are absolutely nec- essary to the survival of political democracy in the United States. They are the means by which individuals make claims upon government; thus they are important to the structure of our federal system…. [T]he point

Legal Environment of Public Sector Labor Relations ◾ 51

is that unless individuals can freely band together to advocate whatever they please, we shall not have democracy.

These arguments are interesting in their own right, but what is important is how they have been applied by the federal arbiters of constitutional disputes— courts. Since 1967, the federal courts have held that the First Amendment’s free- dom of association clause outweighs government sovereignty claims. The first in a long line of cases was Keyeshian v. Board of Regents (1967), in which the U.S. Supreme Court ruled that public employment could not be predicated on work- ers relinquishing the right of free association. Other important decisions include Atkins v. City of Charlotte (1969), in which a U.S. district court invalidated a North Carolina state law that prohibited law enforcement personnel and firefighters from joining or being members of labor organizations because it violated the right of association and the Fourteenth Amendment’s equal protection clause, and Letter Carriers v. Blount (1969), a case in which a federal district court found that a fed- eral statute and oath intended to prevent postal workers from asserting the right to strike, and from joining any organization claiming the right to strike, violated the First Amendment.

The landmark case supporting the right of public employees to organize and join unions, however, is McLaughlin v. Tilendis (1967). In this case, one Cook County, Illinois, teacher was dismissed and another one’s contract was not renewed because of their alleged association with the local chapter of the American Federation of Teachers (AFT). The Seventh Circuit of the U.S. Court of Appeals held that these actions violated the employees’ right of free association and that they unjustly inter- fered with the employees’ right to due process under the Fourteenth Amendment. The court concluded that “unless there is some illegal intent, an individual’s right to form and join a union is protected by the First Amendment.” He or she cannot be disciplined or dismissed for joining a union or advocating that others join.

Today, then, the constitutional right of public employees to organize and join unions is protected by the courts. The sovereignty-based “doctrine of privilege,” which granted public employees few rights vis-à-vis their employer, has been dis- carded by the courts. It is now accepted that public employees also have the rights (1) to engage in protected political activities and (2) to receive due process through a written statement of reasons for dismissal and/or a formal hearing (Cleveland Board of Education v. Loudermill [1985]). In public employee–employer relations gener- ally, the U.S. Supreme Court’s reasoning in Pickering v. Board of Education (1968) prevails: the state’s interest in restricting public employees’ First and Fourteenth Amendment rights must be significantly greater than its interests in limiting simi- lar rights for members of the general public. In this respect, public employees enjoy greater constitutional protection than private sector workers.

Although public workers enjoy the right to form and join unions, they do not have a constitutional right to collective bargaining with their employer. Permissive legislation or other authorizing actions are normally required (Smith v. Arkansas

52 ◾ Labor Relations in the Public Sector

State Highway Commission Employees Local 1315 [1979]). In Indianapolis Education Association v. Lewallen (1969), the Seventh Circuit Court ruled shortly after McLaughlin that “there is no constitutional duty to bargain collectively with an exclusive bargaining agent. Such duty when imposed is imposed by statute.” However, nothing prevents a public employer from voluntarily engaging in collec- tive bargaining in the absence of enabling legislation.

Private sector labor relations and collective bargaining are governed by (1) the Railway Labor Act (RLA) of 1926 and (2) the National Labor Relations Act (NLR A) of 1935 (also known as the Wagner Act), as amended by the Labor Management Relations Act of 1947 (the Taft–Hartley Act) and the Labor Management Reporting and Disclosure Act of 1959 (the Landrum–Griffin Act). In the RLA, Congress sought to establish labor–management peace in the railroad industry by requiring firms to negotiate with bargaining representatives selected by railroad employees. The RLA was extended to the airline industry in 1936.

Under the NLR A, which provides coverage to all other private sector workers, labor policy is administered by the National Labor Relations Board, which investi- gates and adjudicates allegations of unfair labor practices (ULPs) and administers matters concerning composition of the employee bargaining unit and selection of the union to represent the bargaining unit. Passage of the NLR A encouraged pri- vate sector workers to form and join unions and engage in collective bargaining with their employers. Taft–Hartley balances the NLR A by imposing certain restrictions on union procedures and conduct, such as prohibiting compulsory union member- ship. Landrum–Griffin requires unions to meet various internal operating stan- dards, such as guaranteeing their members rights of free association and speech, maintaining certain financial records, and accounting for expenditures.

With the precipitous decline of private sector union membership, unions and their allies claim that terms of the NLR A and restrictive decisions by the National Labor Relations Board have tilted the playing field to the advantage of employers. In 2009, unions orchestrated a drive to rebalance the field through the Employee Free Choice Act (EFCA). This proposed legislation requires employers to accept a “card check” as demonstration of majority support for the union instead of a lengthy, secret ballot election ripe with possibilities for the employers’ antiunion propaganda and discrimination to “reeducate” workers as to the dangers of union representation (Drummonds 2009). Following a hopeful campaign in which pas- sage seemed to be within reach, union hopes were dashed as the EFCA was greeted by presidential indifference and stout business and Republican resistance. The bill languished in committee and then died.

The NLR A specifically exempts public employees. Section 2(2) of the Taft– Hartley amendment to the NLR A states that “the term ‘employee’ includes any person acting as an agent of an employer, directly or indirectly, but shall not include [emphasis added] any state or political subdivision thereof.” It also excludes agricul- tural workers, independent contractors, supervisors, managerial employees, small businesses employees, and domestic workers.

Legal Environment of Public Sector Labor Relations ◾ 53

III. Labor Relations in Federal Employment: The Legal Basis

Although employee organizations have existed in federal employment since the 1830s, it was 1960 before any union was formally recognized by a federal employer (with the exceptions of the Tennessee Valley Authority, the Bonneville Power Administration, and a handful of other quasi-governmental organizations). Further more, no statu- tory basis existed for federal employee collective bargaining before the passage of the CSRA of 1978.

The Pendleton Act of 1883 established the federal merit system and gave Congress the authority to regulate the wages, hours, and working conditions of federal work- ers. It did not grant a collective voice for employees. As workers began to orga- nize extensively anyway, two presidents (Theodore Roosevelt in 1902 and William Howard Taft in 1906) felt obliged to issue executive orders to preclude employee organizations from collectively lobbying Congress for improved wages, working conditions, or other matters, upon threat of dismissal. These “gag rules” stifled federal union activity until 1912, when passage of the Lloyd–LaFollette Act guaran- teed federal workers the right to petition Congress and to join labor organizations, as long as those organizations prohibited strikes against the federal government. As a result, federal employees were permitted to lobby members of Congress for pay increases and improved benefits and working conditions. Employer–employee relationships, however, continued to be determined unilaterally by management.

As private sector unions received statutory permission for collective bargaining under the 1935 NLRA (Wagner Act) and the RLA, public employee organizations continued to be ignored. The only mention of public unions in the 1947 Taft–Hartley Act was Section 305’s prohibition of federal employee strike activity. Thereafter, federal employees attempted to gain statutory recognition for their organizations through support of the Rhodes–Johnson bill, which failed repeatedly in Congress from 1949 to 1961. This proposed legislation would have required federal agencies to meet and confer with employee representatives and establish an arbitration board to resolve federal labor disputes. Finally, recognition was won indirectly in the adminis- tration of President John F. Kennedy. Kennedy, who was strongly supported by orga- nized labor throughout his campaign, appointed a presidential task force headed by Secretary of Labor Arthur Goldberg to recommend a labor– management relations program for the federal service. The task force’s recommendations were embodied in President Kennedy’s Executive Order 10988 (E.O. 10988) of 1962, which became the foundation of federal employee labor relations and collective bargaining.

A. Executive Orders E.O. 10988 established for the first time the principle that federal workers have the right to form and join unions and bargain collectively. It proved to be tremendously important in public sector labor relations, stimulating employee organization and

54 ◾ Labor Relations in the Public Sector

collective bargaining at all levels of government. Within 2 years, 730,000 employ- ees were covered by collective bargaining agreements (Blum and Helburn 1997). Although many of the provisions of E.O. 10988 were supplanted by subsequent executive orders and provisions of the CSR A of 1978, it is useful to consider the labor relations framework the order established.

The order covered almost all federal workers with the exception of uniformed military, the Federal Bureau of Investigation (FBI), the Central Intelligence Agency (CIA), and others whose work involved security needs. Three forms of rec- ognition for labor organizations were provided: informal recognition was granted to any organization that could demonstrate it represented a minimum number of employees; formal recognition was gained when the organization could claim at least 10% of the workers in a proposed bargaining unit as members; and exclusive recognition, the only form of recognition allowed under present federal policy, was awarded to an organization that gained the support of the majority of a unit’s employees. Exclusive recognition meant that the designated union had the right to meet and confer with agency management over personnel policies and practices and working conditions affecting all members of the bargaining unit represented by the union. Determination of the bargaining unit was based on the NLR A model of an identifiable “community of interest” among employees. Further cor- responding to the NLR A, managers and supervisors were excluded from exclusive bargaining units.

E.O. 10988 established a code of fair labor practices to regulate the interac- tions between unions and management. The code, essentially consistent with provi- sions in the NLR A, stipulated various ULPs by both unions and federal agencies and listed procedures for hearing complaints. (Examples of ULPs are coercion of employees, discrimination, and “bad faith bargaining.”) Certain management rights enumerated in E.O. 10988 remain important to this day and continue to be in effect in most federal collective bargaining contracts:

To direct employees of the agency To hire, promote, transfer, assign, and retain employees in positions within the

agency, and to suspend, demote, discharge, or take disciplinary action To relieve employees from duties because of lack of work or other legitimate

reasons To maintain the efficiency of government operations entrusted to them To determine the methods, means, and personnel by which such operations are

to be conducted To take whatever actions may be necessary to carry out the mission of the agency

in situations of emergency

E.O. 10988 served as the basic legal framework for federal labor relations for about 7 years, but dissatisfaction arose from a variety of sources, particularly unions. From their perspective, the executive order did not go far enough. The

Legal Environment of Public Sector Labor Relations ◾ 55

scope of bargaining was severely restricted by the management rights clause and by prohibitions against bargaining over wages, benefits, and union security provisions. Furthermore, although striking was forbidden no substitute for striking had been provided, and final authority for the implementation and administration of the executive order, including the arbitration of grievances, remained with the respec- tive federal department and agency heads. The scales were clearly tilted in favor of management.

President Richard Nixon’s Executive Order 11491 (E.O. 11491) of October 1969 was intended to alleviate these and other deficiencies. The deficiencies had been officially identified by two presidential committees: one appointed by Nixon’s predecessor, President Lyndon Johnson (whose recommendations were not acted upon by a president awash in more pressing issues, including the war in Vietnam), and the other by a Nixon-appointed review committee headed by Secretary of Labor George P. Schultz. The Schultz Committee advised six major policy changes (Fox and Shelton 1972: 118), most of which were adopted in E.O. 11491 of 1969. A Federal Labor Relations Council (FLRC) composed of the chairman of the Civil Service Commission, the secretary of labor, and one or more presidential designees was named to administer and interpret the new executive order, decode major labor policy issues, and hear appeals resulting from decisions rendered by the new assistant secretary for labor–management relations (ASLMR). The ASLMR’s duties included resolving unit determination and representation disputes, supervising and certifying elections, and hearing ULP allegations and other alleged violations of labor relations procedures and standards.

E.O. 11491 abolished the unwieldy formal and informal types of recogni- tion, retaining only exclusive recognition. The nonbargaining status of supervisors remained unchanged, but the scope of bargaining, contrary to union aspirations, was restricted even further. In addition, financial disclosure and reporting require- ments similar to those set forth for private unions under the Landrum–Griffin Act were imposed on federal unions.

Major changes were made in procedures for resolving bargaining impasses and grievance disputes. Binding grievance arbitration was authorized as negotiable for the first time. To resolve impasses, two new entities were created: the Federal Mediation and Conciliation Service (FMCS) to mediate labor disputes and the Federal Service Impasses Panel (FSIP) to settle impasses or recommend impasse resolution procedures to the parties involved. Thus, a neutral third party could now overrule agency heads and resolve impasses over contract negotiations and grievances.

Nixon amended E.O. 11491 with Executive Order 11616 of 1971, which, among several relatively minor changes, made mandatory the use of the negoti- ated grievance procedure for settling contract disputes. Further amendments to E.O. 11491 were issued in 1975 by President Gerald Ford. This final document in this chain of presidential directives, Executive Order 11838, marginally broadened

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the scope of bargaining, encouraged the consolidation of small bargaining units, defined “supervisor” more specifically, and implemented minor procedural changes.

Thus, the early legal basis of federal labor–management relations was deter- mined incrementally through a series of executive orders, rather than through statutes. Even though executive orders have the effect of law, their provisions are much easier to modify or abolish than provisions written into statute. Any subse- quent president, or Congress, may take action to rescind or alter an executive order, whereas legislation can be modified or abolished only through formal congressional action. Not surprisingly, legally insecure federal employees continued to lobby for a statutory guarantee for collective bargaining. Their demands were embodied, at least in part, in the CSR A of 1978.

B. Civil Service Reform Act of 1978 Passage of the CSR A was one of the few significant legislative victories for the administration of President Jimmy Carter, although many scholars and practitio- ners regard it today as a well-meaning failure at best. There is no doubt that the CSR A was the most important piece of legislation regarding federal employment since the Pendleton Act nearly 100 years earlier.

The Reform Act proceeded quickly and relatively unhindered through the congressional process. Its rapid progress may be attributed to a number of fac- tors, the most important being the strong support of the president, the influen- tial leadership of Civil Service Commission Chairman Allan (Scotty) Campbell, widespread support among career civil servants, and the reform-mindedness of a post-Watergate Congress. Furthermore, Title VII of the CSR A, the chapter on federal labor–management relations, was endorsed, with some reservations, by the American Federation of Labor–Congress of Industrial Organizations (AFL–CIO) and the largest federal employee union, the American Federation of Government Employees (AFGE). Although the National Treasury Employees Union (NTEU) and the National Federation of Federal Employees opposed the measure, mainly because they felt the scope of bargaining continued to be too narrow, their resis- tance did not stop the passage of the legislation.

Federal employee labor rights were placed into statute by Title VII of the CSR A, the Federal Service Labor–Management Relations Statute. The act also cre- ated the Federal Labor Relations Authority (FLR A) to administer the labor rela- tions program and established the Office of Labor–Management Relations within the U.S. Office of Personnel Management. The Office of Labor–Management Relations provides technical advice to federal agencies on labor policies, leadership, and contract administration.

Under the CSR A, most General Schedule (GS) and wage grade employees enjoy “the right to form, join or assist any labor organization, or to refrain from any such activity, freely and without fear of reprisal, and each employee shall be protected in the exercise of such rights,” including the right to present a labor organization’s

Legal Environment of Public Sector Labor Relations ◾ 57

views to agency heads and other officials in the executive branch, and the right to “engage in collective bargaining with respect to conditions of employment.…” Conditions of employment are defined as “personnel policies, practices, and matters, whether established by rule, regulation, or otherwise, affecting working conditions.” Excluded from the scope of negotiable issues are wages and benefits, prohibited political activities, union security arrangements (e.g., union shop and fair share), and position classification. Thus, the scope of bargaining for federal employees, in essence, remained unchanged. The severely circumscribed scope of bargaining continues to be a topic of controversy and profound union discontent. President Clinton’s Executive Order 12871 of 1993 expanded the mandatory fed- eral scope of bargaining to embrace previously permissible topics, including the numbers, types, and grades of employees and positions as well as the technology, methods, and means of performing work. Clinton’s executive order was revoked by President George W. Bush in 2001.

An important provision of Title VII expanded the scope of grievance activities. Under Title VII, all federal labor agreements must include negotiated grievance procedures, with binding arbitration as the final step. Previously, grievance arbitra- tion was optional. Other sections of Title VII recognize the right of federal workers to engage in informational picketing, authorize official or “union” time for union representation, and allow checkoff of dues at no cost to the employee or the union.

CSR A’s Title VII covers most federal employees except for supervisory per- sonnel; members of the armed forces; foreign service employees; and workers in the Government Accounting Office (GAO), FBI, CIA, National Security Agency (NSA), Tennessee Valley Authority (TVA), U.S. Postal Service, and certain other exemptions, as described in the following section. Employees of the TVA, a govern- ment corporation, bargain collectively under the 1935 “Employment Relationship Policy,” created as part of the New Deal legislation of Franklin D. Roosevelt. Postal workers, as a result of a settlement with the Nixon administration follow- ing a 1970 postal strike involving 200,000 employees, gained bargaining rights through the Postal Reorganization Act of 1970, which removed them from the authority of executive orders and granted full NLR A collective bargaining rights with the exception of the right to strike and union security provisions. Armed forces personnel are prohibited from collective bargaining and engaging in other union activities such as strikes and picketing by a secretary of defense directive of October 5, 1977. GAO, FBI, CIA, and NSA personnel have no legal authority for collective bargaining.

C. Exceptions from Civil Service Reform Act Coverage As noted, President Clinton’s Executive Order 12871 modestly expanded the scope of bargaining under Title VII. Most importantly, it directed federal agen- cies to develop “partnerships” with unions representing their workers. Through collaboration and cooperation, labor–management partnerships resulted in

58 ◾ Labor Relations in the Public Sector

improvements in customer services, technology, quality of work life, and overall quality of labor–management relations over the span of about 7 years (Masters 2001; Thompson 2007).

Upon assuming office in January 2001, the decidedly antiunion President Bush immediately rescinded Clinton’s executive order and dissolved existing partnerships. He also set about revoking the bargaining rights of certain employ- ees in the Department of Justice and elsewhere. Following the terrorist attacks of September 11, 2001, the Bush administration sought and won congressional approval of a new department, the Department of Homeland Security (DHS). Twenty-two existing security-related agencies with some 175,000 employees, including the Federal Emergency Management Agency, Coast Guard, Immigration and Customs Enforcement, Border and Transportation Security, and other entities, were consolidated in the behemoth department.

After a vicious battle with unions and congressional Democrats, President Bush won the authority to waive collective bargaining rights for designated DHS employees on the grounds of national security (Masters and Albright 2003). Transportation Security Administration baggage screeners were the first to be exempt from Title VII. For other DHS employees, the scope of bargaining was narrowed and management authority was expanded. DHS managerial discre- tion over pay, discipline, position classification, and other personnel matters was enlarged. Collective bargaining disputes would no longer be addressed by the FLR A, but instead by a new DHS labor relations board. The new DHS human resource management (HRM) system also restricted the review authority of the Merit Systems Protection Board (MSPB) for adverse actions against employ- ees and created a new pay banding system to replace the long-standing GS pay system.

Federal unions led by NTEU and AFGE filed suit against the new rules on grounds that the Bush administration had exceeded the authority granted to it by congressional legislation establishing DHS. A federal district court ruled in favor of the unions in 2005 (NTEU v. Michael Chertoff ). The district court decision was basically upheld by the U.S. Court of Appeals for the D.C. Circuit in 2006, but many important questions remained unanswered and the rules were permit- ted to go forward. Finally, in October 2007 collaboration between the Office of Personnel Management and MSPB led to implementation of the new rules for nonunion personnel in the DHS. Decisions concerning the 50,000 DHS employ- ees covered by collective bargaining agreements came with the next round of bar- gaining (Barr 2007).

Similarly, a new HRM system for the Department of Defense (DoD), called the National Security Personnel System (NSPS), was approved and final regula- tions were issued in 2005. Like the contested DHS changes, the DoD HRM system reduced the scope of bargaining, established a new agency- specific labor relations board, expedited disciplinary and dismissal processing, and imple- mented a pay banding scheme (Thompson 2007: 111). Upon appeal by the

Legal Environment of Public Sector Labor Relations ◾ 59

unions, a federal district court enjoined the implementation of the DoD rules in 2006 (AFGE, et al. v. Donald H. Rumsfeld ). On appeal, a divided three-judge panel overturned the district court decision. Turning to Congress, the unions won a prohibition on NSPS rules implementation through the National Defense Authorization Act of 2008. In the reauthorization of this act in 2010, Congress abolished the NSPS altogether (Kellough, Nigro, and Brewer 2010: 417).

President Bush’s “failed effort to impose radical personnel reforms” on DHS and DoD workers was the product of mixed motivations (Kellough, Nigro, and Brewer 2010). At its heart was the antiunion ideology of the president and his supporters. Other more legitimate concerns included a perceived need for improve- ment in HRM techniques, such as position classification, examination, and per- formance appraisal. There was also a manifest desire to exercise greater executive control over the federal bureaucracy so that the administration’s policy preferences would receive sympathetic attention (Kellough, Nigro, and Brewer 2010). That the federal unions would fight the new personnel rules so fiercely in courts and in Congress was no surprise.

D. Federal Labor Relations Authority The FLR A is a three-member, presidentially appointed bipartisan entity charged with integrating all labor relations administrative functions previously divided among the FLRC, the ASLMR, the FSIP, the FMCS, and executive agencies. The terms run for 5 years, staggered by 2-year intervals.

The FLR A is intended to serve as the final authority in federal labor rela- tions matters, but judicial review of most authority rulings by the U.S. Court of Appeals is permitted. Specific functions of the FLR A are very similar to those of the private sector National Labor Relations Board (NLRB). They include (1) determining bargaining units, (2) supervising and conducting union elec- tions, (3) resolving allegations of ULPs (this constitutes the bulk of its activities), (4) resolving exceptions to arbitrators’ awards, and (5) deciding issues concern- ing what is negotiable between labor and management. The FLR A is served by a general counsel—appointed by the president to investigate ULP allegations and to serve as prosecutor in such cases—and a number of administrative law judges. The FSIP remains an ongoing organization within the FLR A, continuing its original executive order function of resolving federal impasses. The FMCS, an independent agency, has broadened its mission to include preventive mediation and alternative dispute resolution.

In its primary role as the principal adjudicatory body for federal labor– management relations, the poorly regarded FLR A has come under heavy criti- cism from the courts, unions, and management. It has frustrated all parties for its sluggish pace in making even pro forma decisions and decisions that tend to drive unions and agencies to seek judicial resolution. The FLR A provides four alternative dispute resolution paths, creating needless confusion and redundancy

60 ◾ Labor Relations in the Public Sector

and often ultimately resulting in court review. The length of dispute resolution is measured in years rather than months, not exactly a morale booster for either employees or managements.

The CSR A did not represent radical change in the basic federal labor relations framework, essentially placing into code what had originally been created through executive orders. Now long of tooth, the CSR A has been subjected to serious criti- cism from many different quarters. Significant problems beset the CSR A. Among the most pressing are the obsolescence of the GS classification and pay system, and the “balkanization” of the federal personnel system with “multiple sets of person- nel rules that have created governance concerns” across the federal bureaucracy (Thompson 2010: 41).

Title VII has received special opprobrium from the unions. To all inter- ested parties, parts of the legislation are ambiguous. According to the union perspective, the FLR A is biased and ponderously slow. Union security restric- tions depress membership, and free-rider problems abound. The narrow scope of nonpostal bargaining, particularly the exclusion of wages and benefits from negotiations, leaves little for the unions to bring to the bargaining table. Left with filing grievances as one of the few tactics available to them, unions are pressured by dissatisfied and frustrated members of the bargaining unit. Taken together, the weaknesses of Title VII have promoted “fierce disagreement and hostile litigation” (Tobias 1998: 263) and marginalized human resource managers.

IV. Legal Basis of Labor Relations in State and Local Governments

The legal framework for federal employee unionization and collective bargaining is somewhat fragmented, but the majority of workers are covered under two statutes: the CSR A and the Postal Reorganization Act. DoD and DHS employees’ status remains in flux. But compared to that of the private sector and the federal govern- ment, the legal basis for state and local government labor relations is a Byzantine web of myriad statutes, ordinances, court decisions, executive orders, attorney gen- eral opinions, and other policy articulations. If ever the state and local governments have served as political laboratories, it is in public sector labor relations. The advan- tages of diversity are many. But there are also important disadvantages of policy fragmentation for governments and their workers.

Since the mid-1970s, there has been recurring public debate on national labor legislation for state and local government employees, which would force a sub- stantial amount of standardization in the legal environment of labor relations. Occasionally (most recently 2007), it appears that national legislation stands a reasonably good chance of passage. After briefly considering the pros and cons of a national law for state and local collective bargaining and the possibilities for

Legal Environment of Public Sector Labor Relations ◾ 61

adoption of the idea in the future, we examine in detail the diffusion and the gen- eral characteristics of state and local collective bargaining policies today.

A. Federal Legislation for State and Local Governments A number of bills have been introduced in Congress with the intent of federally regulating state and local government labor relations. Three basic approaches have been represented in the proposed legislation. One seeks to amend the NLR A to cover some, or all, state and local government employees. The reasoning behind this approach is that public employees should have labor rights identical to those enjoyed by private sector workers. Accordingly, jurisdiction of the NLRB would be extended to cover nonfederal public employee collective bargaining, thereby preempting existing state and local government policies.

A second approach to federal legislation would create a new federal labor author- ity to cover state and local government bargaining: in other words, an NLRB or FLR A for state and local employees. The act would be administered by a National Public Employment Relations Commission, much like the NLRB. This proposal receives strong union support and would supersede all existing state and local bar- gaining laws and any other inconsistent statutes.

The third approach to a federal statute envisions a state–federal partnership, with the federal government setting minimum standards for labor relations and collective bargaining and ensuring conformity through the federal power of the purse, much as federal highway safety requirements and the mandatory 21-year legal drinking age were implemented. This “minimum standards” or “partial preemption” approach avoids complete federal takeover of labor relations while permitting a measure of continued state and local experimentation. States already conforming to the federal standards would have authority to administer their own programs without federal interference.

Proponents of various bills have argued that federal legislation would decrease the incidence of strikes by (1) making union recognition mandatory, thereby eliminating the need for recognition strikes and (2) stipulating impasse procedures designed to preclude strikes. Proponents further contend that fed- eral legislation would provide equal treatment for all state and local govern- ment employees in the United States. Labor relations uniformity would, as an added benefit, enable a common national approach to training all labor rela- tions participants, thereby enhancing the overall quality of labor–management relations.

Opponents of the proposals fail to see the purported advantages of unifor- mity. “In the case of public employee unionism,” argued Wellington and Winter (1971: 53, 54), “uniformity is most undesirable and diversity in rules and structure virtually a necessity.” Regulation by the states “provides a more flexible approach than national legislation.” State officials are likely to be more sensitive to prob- lems of local government than federal officials, and legislation that proves to be

62 ◾ Labor Relations in the Public Sector

inappropriate can be modified more easily at the state level than at the national level. Other critics contend that any form of federal regulation or mandate would violate the autonomy of state and local governments and, furthermore, that there is no “one best way” to regulate public employee unionization and collective bargaining.

A bill titled “HR 980: Public Safety Employer–Employee Cooperation Act of 2007” was introduced in the U.S. House of Representatives. It passed by a healthy majority (314 to 97), and chances for its passage in the Senate were looking reason- ably good when the bill’s champion, Massachusetts Senator Edward Kennedy, was hospitalized and diagnosed with a brain tumor. The bill languished in the Senate while Congress fixated on the national financial crisis and then adjourned for the holidays and to await installation of the Barack Obama administration.

If adopted, HR 980 would provide collective bargaining rights for state and local “public safety officers,” defined as law enforcement officers, firefighters, and emergency medical personnel. The scope of bargaining would include “hours, wages, and working conditions.” Strikes and lockouts would be prohibited. The existing FLR A would be charged with issuing regulations for union recognition and collective bargaining in the states that do not currently provide such. The FLR A would also conduct and supervise elections of bargaining representatives, ensure good faith bargaining, and hear allegations of ULPs, among other responsibilities. Existing collective bargaining agreements and processes would not be preempted, and jurisdictions with a population of 5000 or less or with fewer than 25 full-time employees could be excluded by state action (U.S. House of Representatives 2009).

Nonbargaining jurisdictions lobbied hard to stop the passage of HR 980, call- ing it an unfunded mandate and an unconstitutional intrusion into state and local affairs. With the bill’s influential champion, Senator Kennedy, out of the fight, the bill perished with him in August 2009.

Would HR 980 have withstood a court challenge? It would have offered a test similar to that decided by the U.S. Supreme Court in Garcia v. San Antonio Metropolitan Transit Authority (1985) on the applicability of the federal Fair Labor Standards Act to state and local governments. The court’s view on congressional authority over state and local governments has vacillated during the nearly three decades since Garcia, so it remains possible that congressional preemption of state labor relations policy could be declared unconstitutional on Eleventh or Fourteenth Amendment grounds (Clark and Powers 2003). Because public employees do not hold a constitutional right to engage in collective bargaining, employers are not required to grant such a right unless specified by state law or local ordinance.

Although national bargaining legislation remains high on the wish list of unions and may be reincarnated in the future, congressional action is uncertain. Organized labor’s political influence in Congress is weak; a presidential veto of such a bill might squelch it, and the record now shows that the decentralized approach to state and local labor relations has functioned reasonably well. Other national laws may be enacted that influence labor relations at the margins (see Table 3.1), but an all-embracing policy change stands a dim chance at present.

Legal Environment of Public Sector Labor Relations ◾ 63

Table 3.1 Major Federal Laws Affecting Public Sector Labor Relations

Legislation Subject Matter

Civil Rights Act of 1964 Prohibited employer discrimination on the basis of race, color, gender, religion, or national origin

Equal Employment Opportunity Act of 1972

Extended Civil Rights Act of 1964 requirements to public employers and extended the enforcement powers of Equal Employment Opportunity Commission

Age Discrimination in Employment Act (1967)

Prohibited discrimination by the employer against employees aged 40–70 years

Occupational Safety and Health Act (1970)

Prescribed health- and safety-related working conditions

Employee Retirement Income Security Act (1974)

Addressed pensions, health care, disability, and accident plans

Urban Mass Transportation Act (1964) Required that interests of employees, including collective bargaining rights, be protected when ownership of the transit system changes

Social Security Act of 1935 Stipulated personnel policies for state and local workers paid in whole or in part with federal grant dollars

Fair Labor Standards Act (as amended)

Applied federal wage and hour laws to state and local governments

Americans with Disabilities Act (1990) Caused changes in personnel policies for mentally and physically disabled workers

Civil Rights Act of 1991 Reversed and altered 12 U.S. Supreme Court decisions that had narrowed civil rights protections

Family and Medical Leave Act (1993) Ensured that leave is available to employees for authorized medical reasons and for compelling family reasons

64 ◾ Labor Relations in the Public Sector

B. State and Local Government Policies Today, representing a celebration of policy diversity, more than 100 separate stat- utes govern state and local labor relations, augmented by numerous local ordi- nances, court decisions, attorney general opinions, and executive orders. State legislation, for instance, ranges from a single comprehensive statute providing cov- erage for all public employees in Iowa to coverage of only firefighters in Wyoming and total prohibition of collective bargaining in North Carolina. Public employees in some states bargain under the authority of an attorney general’s opinion (North Dakota), executive order (Colorado), or civil service regulations (Michigan state employees).

The earliest legislation regulating state and local government employer–employee relationships aimed to abolish strikes by public workers. Shortly after World War II, eight states enacted no-strike laws with stiff penalties for violators. In other states, beginning in 1951, laws were passed that established the right of public workers to join employee organizations and provided a limited degree of support for developing some form of bilateral relations between government jurisdictions and their workers. Several local governments passed ordinances or issued execu- tive orders regulating collective bargaining. As Schneider (1988: 197) observed, “The stand that any form of bargaining in the public sector was impossible was crumbling in the face of experience and political expediency.” Finally, in 1959 Wisconsin broke out of the state legislative limbo with a law establishing collec- tive bargaining rights for local government employees. Today, legislation or other policies imposing a duty to bargain or meet and confer with at least one group of public workers are in effect in 41 states.

Most of the bargaining laws were enacted over a period of about 10 years, from the mid-1960s through the mid-1970s. A variety of important issues had to be faced by the state lawmakers, including (1) whether each jurisdiction within a state should be permitted to establish its own labor relations policy or all jurisdictions should con- form to a single policy applied uniformly, (2) whether one comprehensive law should apply to both levels of government and all occupational functions or separate policies should be established for state and local governments and for each functional cate- gory, (3) who or what entity should administer the policy, and (4) what labor relations and collective bargaining principles and procedures should be adopted. Legislative outcomes were hammered out in fierce battles fought between public employee unions, public employers, and numerous interest groups. Since the mid-1970s, most legislative activity has focused on refining existing policy rather than enacting new legislation. Only four states have passed major collective bargaining laws since the 1970s—Ohio, Illinois, New Mexico, and Washington—although others have imple- mented collective bargaining through executive orders, court decisions, and local ordinances. Table 3.2 shows the legal framework for collective bargaining in 2013. If there is a trend today, it appears to be in the direction of revoking collective bargain- ing rights, as recently seen in Wisconsin, Tennessee, Oklahoma, and other states.

Legal Environment of Public Sector Labor Relations ◾ 65

Table 3.2 State Bargaining Status, 2013

State State Local Police Firefighters K–12 Teachers

Alabama — Y — Y —

Alaska X X X X X

Arizona — — — — —

Arkansas — — — — —

California Y Y1 Y1 Y1 X

Colorado X3 — — — —

Connecticut X X X X X

Delaware X X1 X X X

Florida X X1 X X X

Georgia — — — X —

Hawaii X X X X X

Idaho — — — X X

Illinois X X X X X

Indiana — — — — X

Iowa X X X X X

Kansas Y Y1 Y1 Y1 X

Kentucky — — X X —

Louisiana — — — — —

Maine X X X X X

Maryland X X2 X — X

Massachusetts X X X X X

Michigan X X X X X

Minnesota X X X X X

Mississippi — — — — —

Missouri X4 X X X X

Montana X X X X X

Nebraska X X X X Y

Nevada — X X X X

(Continued)

66 ◾ Labor Relations in the Public Sector

Table 3.2 (Continued) State Bargaining Status, 2013

State State Local Police Firefighters K–12 Teachers

New Hampshire X X X X X

New Jersey X X X X X

New Mexico X3 X X X X

New York X X X X X

North Carolina — — — — —

North Dakota Y2 Y2 Y2 Y2 X

Ohio X X X X X

Oklahoma — — — — —

Oregon X X1 X X X

Pennsylvania X X X X X

Rhode Island X X X X X

South Carolina — — — — —

South Dakota X X X X X

Tennessee — — — — X

Texas — — X1 X1 —

Utah — — — — X

Vermont X X X X X

Virginia — — — — —

Washington X X X X X

West Virginia Y2 Y2 Y2 Y2 Y2

Wisconsin — — — — —

Wyoming — — — X —

Source: Data from state websites, state legislative summaries, and various news- paper articles.

Notes:

1 Local option permitted. 2 Meet and confer established by attorney general opinion. 3 Collective bargaining established through executive order. 4 Court ordered collective bargaining.

X: Collective bargaining provisions; Y: Meet and confer provisions (under meet and confer policy, the employer retains final decision-making authority).

Legal Environment of Public Sector Labor Relations ◾ 67

Most state labor relations policies reflect a realization of the value of developing a formal framework to direct bilateral relationships between public workers and their employers. Clearly, many variations in policies exist, but the pattern has been to extend comprehensive coverage to all state and local government workers. Thirty states and the District of Columbia currently provide bargaining coverage by statute for all major employee groups, with either a single comprehensive public employee relations policy or separate policies for different functions. Twelve states regulate employer–employee negotiations in one to four occupational categories, and eight states do not have public policies permitting bargaining for any group (see Table 3.2).

As noted in Chapter 2, bargaining laws are both a product of public employee unionization and a stimulant of unionization. This reciprocal relationship has been both observed and validated in the scholarly literature (Waters et al. 1994; Farber 1987). Specifically, politically influential public sector unions have spurred the enactment of bargaining legislation in the states, and newly passed collec- tive bargaining laws have been associated with a growth in union membership. In Washington, some 65,000 new union members were registered after a state bargaining law was enacted. When bargaining rights are revoked, membership plummets. Union membership in Indiana declined by about two-thirds from 2005 to 2010 after Governor Mitch Daniels rescinded an executive order issued by his predecessor that permitted collective bargaining for state workers.

Bargaining laws are the single most important factor in determining the nature and temperament of public employer–employee relationships in state and local governments. The states with comprehensive bargaining laws tend to share certain traits and experiences. Generally, they are industrialized, urbanized, and relatively affluent states of the Frostbelt. Many of them have traditionally been policy innovators. Strong private sector unionization (indicating pro-union sen- timent) is associated with comprehensive public sector bargaining policy at the time it is adopted and so is the alignment of the political stars—most of the comprehensive statutes were enacted by liberal Democratic majorities in state legislatures and signed by a Democratic governor (see Hundley 1988: 302, 303; Saltzman 1985). In Ohio, comprehensive bargaining bills were passed in the leg- islature in two consecutive sessions, only to be vetoed by Republican Governor James Rhodes. The third time was the charm, when newly elected Democratic Governor Richard Celeste signed the bill in 1983. It took 14 years of legislative struggle and a new Democratic governor for Washington state employees to win full collective bargaining rights in 2002.

C. States without Collective Bargaining Policies Six of the eight states that do not formally permit collective bargaining are situated in the South: Arkansas, Louisiana, Mississippi, North Carolina, South Carolina, and Virginia (see Figure 3.1). The other two states (Arizona and Oklahoma) are in

68 ◾ Labor Relations in the Public Sector

the Southwest. North Carolina and Virginia are formally on the legislative record as being hostile to collective bargaining—both have passed laws that prohibit it. It is difficult to categorize Wisconsin, which passed a law in 2012 that prohibits public worker unions from bargaining over benefits and working conditions and limits what they can bargain in wages to the rise in the Consumer Price Index. And to bargain over wages, locals must first “recertify” (a majority of bargaining unit members must vote that they want the local).

Nonetheless, “informal bargaining” occurs regularly in some North Carolina school districts and local governments (Rhodes and Brown 1992), and strikes have occurred in Virginia. Arizona has exhibited a schizophrenic posture on state employees. In December 2008, then-governor Janet Napolitano granted them meet-and-confer rights, which were swiftly revoked by her successor.

History and political culture have predisposed the southern states against unions. Slave-based, plantation economies gave way to antiunion corporate owners and industries such as textiles that continued the traditions of intimidating and controlling workers. In the 1950s, beatings and physical tactics were replaced by psychological techniques, including appointment of antiunion preachers and teach- ers in “company town” churches and schools.

As mentioned at the beginning of this chapter, public employees in these and all other states enjoy the right to form and join unions. They also have the right to petition their employers as individuals or through an organization, but there is no concomitant obligation on the part of the government employer to meet with the organization, engage in collective bargaining, or even withhold organizational dues from paychecks. However, if the public employer voluntarily elects to conduct negotiations with a union in the absence of enabling legislation, the courts have

– Comprehensive – Noncomprehensive – None

OR ID

MT ND

SD WY

COUT NV

CAHI

AZ NM OK

AR MS

MN WI

IL IN

OH WV

KY TN

AL GA

VT NH MA

NJ DE

RI CT

Figure 3.1 Collective bargaining policy in the states, 2013.

Legal Environment of Public Sector Labor Relations ◾ 69

generally upheld the bargaining relationship, with at least one exception. In the case of Virginia v. Arlington County Board of Education (1977), the Virginia Supreme Court unanimously ruled that public employers in that state had no authority to recognize a union or negotiate and enter into a binding agreement without express statutory authority. (At the time of the decision, about 30,000 local government workers were under collective bargaining contracts, which immediately became void.) The Virginia legislature forcefully and unequivocally reified the court ruling with a 1993 statute:

No state, county, municipal, or like governmental officer, agent, or governing body is vested with or possesses any authority to recognize any labor union or other employee association as a bargaining agent of any public officers or employees, or to collectively bargain or enter into any collective bargaining contract with any such union or associa- tion or its agents with respect to any matter relating to them or their employment or service (VA Code 40.1-57.2).

When a service changes from private ownership to public ownership, an interesting problem arises in those states that deny negotiating rights for public employees. Just such a situation developed in several instances involving local gov- ernment takeovers of private transit systems. Prior to the transfer of ownership, of course, collective bargaining agreements are administered under the authority of the NLR A. Upon change in ownership, however, private sector policies no longer apply. The new transit authority must retain the existing contractual arrangements with the union under Article 13(c) of the Urban Mass Transportation Act of 1964, which states that “workers and unions will lose no rights as the result of public take- overs financed by federal funds.” (Most urban transportation services are partly subsidized with federal dollars.) The implications for the new public owner are quite clear, but possibly disturbing.

Without a preexisting legal framework to guide labor relations, the city, county, or special-purpose government may find itself in the midst of a dilemma. One rather imaginative solution is the “Memphis formula,” which was developed in that city prior to the passage of Tennessee’s 1971 bargaining law for transit employees. Under the Memphis formula, government owners of a transit system contract out transit activities to a management services firm, which bargains collectively with the union. The management firm thus serves as the bargaining agent for the local government under the authority of the NLR A (Oestreich and Whaley 2001).

Of course, ownership can change in the opposite direction as well, with func- tions formerly operated by government being contracted out to a private or non- profit organization. In this event, private sector law (the NLR A) normally applies. However, there is a certain irony with respect to transit systems. As stated ear- lier in this section, the Urban Mass Transportation Act of 1964 requires, among other things, that existing labor rights be preserved when transit operations change

70 ◾ Labor Relations in the Public Sector

ownership. Early on, most ownership changes involved public takeovers of private systems. Today, the trend is to privatize transit through contracting out. Local gov- ernments and transit managers argue that the requirement to protect labor rights, including collective bargaining, impedes contracting out because union contracts, which exist in 95% of transit systems, are not acceptable to potential private transit contractors (Luger and Goldstein 1989). The legalities surrounding transit owner- ship and labor rights remain far from settled, as do those associated with changing ownership of other state and local services, such as sanitation and utilities.

In most of the states that do not permit negotiations with government workers, antipathy toward unions, unionization, and collective bargaining remain strong. For many policy makers in these states, the sovereignty argument still holds water. In upholding a 1959 ban on public sector bargaining in North Carolina, for exam- ple, a U.S. district court reasoned as follows:

To the extent that public employees gain power through recognition and collective bargaining, other interest groups with a right to a voice in the running of the government may be left out of vital political deci- sions.… All citizens have the right to associate in groups to advocate their special interests to the government. It is something entirely dif- ferent to grant any one interest group special status and access to the decision-making process (Atkins v. City of Charlotte [1969]).

Pressure occasionally builds in North Carolina to invalidate the 1959 state law that prohibits public workers from collective bargaining. (The law was enacted in response to the efforts of Jimmy Hoffa’s Teamsters seeking to organize the Charlotte police department). In 2006, Local 150 of the United Electrical, Radio, and Machine Workers of America filed a complaint with the International Labor Organization (ILO) contending that the state’s prohibition of collective bargaining violates inter- national labor law’s basic principles of freedom of association. The complaint was upheld by the ILO and filed with the federal government and the state of North Carolina (to no effect). Unrest among municipal sanitation workers in Raleigh led to meetings with the mayor, and their tales of low pay, tough working conditions, and arbitrary management actions gained them widespread sympathy in the capital city. Aggressive lobbying by the State Employees Association of North Carolina (SEANC) nearly won a vote on a bargaining bill in the state House of Representatives in 2007, and in 2008 SEANC formally affiliated with the Service Employees International Union (SEIU). Nonetheless, North Carolina remains a decidedly nonunion state with suppressive public policy against collective bargaining in government.

Other states, such as South Carolina, have had to confront few real “problems” with organized public employees. Any sort of legal basis for unionization or collective bargaining is unlikely to be established in the absence of strong organized pressure by public employees, a Democratic governor, and Democratic majorities in the legis- lature. Like its neighbor to the north, South Carolina has exhibited a long-standing

Legal Environment of Public Sector Labor Relations ◾ 71

aversion toward unions in the private as well as the public sector. Unions are still associated in some minds with communism, socialism, and other “foreign doctrines.” Many in the South still hold a basic suspicion of the purposes of unions and a fear that they exist in the public sector only to extort money from the public through winning unwarranted wage and benefit increases. In the case of some southern states, racial prejudice has also played a role in fostering antiunion feelings. A high percentage of minorities are found in many public services, especially sanitation, health-care, and custodial functions. Though largely forgotten today, the Memphis sanitation strike of 1968 and the 1969 Charleston, South Carolina, hospital workers’ strike convinced some people that public unions were serving as vehicles for increasing black militancy.

Today, in the group of states that do not formally permit negotiations with public workers, the policy of no labor relations appears to be a calculated choice of state decision makers interested in providing a “good business climate” by holding down public employee compensation. In some nonbargaining states, however, a considerable amount of bargaining or meet and confer does transpire but without the statutory regulation provided by a labor relations law. Labor relations policies in these states may be established by local ordinances or on an ad hoc basis by mayors, city managers, department heads, and school boards.

Indeed, it is safe to assume that some form of bilateral decision making between public employers and workers takes place somewhere within each of the nonbar- gaining states discussed in this section. In Louisiana, for instance, teachers bargain with school boards in several districts, even though such activities are not protected by state legislation. The Louisiana courts have ruled that collective bargaining in public education is not inconsistent with law or public policy and is therefore per- mitted (Dilts, Boyda, and Sherr 1993). Even in a few South Carolina school dis- tricts, representatives of the National Education Association (NEA)-affiliated South Carolina Education Association assemble at the same table with school board rep- resentatives and the district superintendent to “sit and talk” about teachers’ wages, benefits, and working conditions. In these and other nonbargaining jurisdictions, bilateral discussions and decision making make more sense than other alternatives for resolving disagreements with public employees. Public employee unions and associations can play an important representational role even in the absence of col- lective bargaining. They can lobby the legislature or city council, represent mem- bers in grievance proceedings, file equal opportunity complaints, and attempt to influence policies and procedures through campaigns and elections.

D. States with Noncomprehensive Policies Within the states that have policies permitting some form of bilateral relations for one or more employee groups, firefighters and teachers are the most common benefi- ciaries. Police, municipal employees, and state workers operate less frequently under a labor relations policy. This is not surprising when one considers the history of teacher and firefighter organizational activity and the strength of their national labor

72 ◾ Labor Relations in the Public Sector

organizations. What is somewhat unexpected is the relatively low incidence of col- lective bargaining policies for police officers. Perhaps this is a legacy of the persistent ill will that followed the infamous 1919 Boston police strike (see Chapter 8) and a function of the comparatively weak and divided national police organizations.

Most of the policies in this category were enacted through statute, and a large majority of policies require collective bargaining rather than meet-and-confer activi- ties. In principle, the two approaches are quite distinct. “Meet and confer” is an activity peculiar to the public sector. It implicitly rejects the legitimacy of transferring private sector bargaining rights to public employees in that it formally denies bilateral (equal) decision-making responsibility for the unions. Under meet-and-confer policies, an employer retains final decision-making authority—there is no obligation to negotiate and sign a written agreement. Furthermore, meet-and-confer laws typically are less comprehensive in their treatment of labor relations issues, such as determining and representing bargaining units, establishing an administrative framework, and settling disputes and ULPs. Although a meet-and-confer approach is sometimes favored by management, unions argue that the arrangement more closely approximates “collective begging” than collective bargaining. Actually, true meet-and-confer activities rarely take place. In reality, employers adopt a modified approach to bilateral relations that more closely approximates collective bargaining than meet and confer and that results in a signed agreement. Often, it is not an easy matter to distinguish between the two.

Nearly half of the comprehensive bargaining states achieved across-the-board coverage in an incremental fashion, authorizing negotiations first for one or two occu- pational categories and then later for others. California is such a case, as are Maine and Washington. It is plausible that other states presently offering noncomprehen- sive coverage will eventually enact legislation for additional occupational categories. However, the struggle is likely to be a difficult one for unions, as illustrated by set- backs suffered by public workers in Indiana and Kentucky. In 1980, Indiana’s original comprehensive state and local government bargaining law was declared unconstitu- tional on the basis of a technicality (Klingner and Smith 1981). Efforts to enact a new statute in the late 1980s foundered because of gubernatorial vetoes. The election of prolabor Democrat Governor Evan Bayh stirred hopes for passage of a bargaining bill in 1992, but the bill did not pass the Senate. Governor Bayh did issue an executive order that lasted for 16 years granting state workers the right to collective bargaining. But on his second day in office in 2005, Governor Mitch Daniels rescinded it.

In a case study of Kentucky, Wanamaker (1977) offered some perspective on the Herculean tasks involved in winning bargaining legislation. Police and fire- fighters lobbied strongly for 4 years before the Kentucky General Assembly autho- rized collective bargaining statutes for the two groups, and even then the legislation was restricted in scope to counties with a population of more than 300,000. Only one county fit that description: Jefferson County (which contains Louisville). (Lexington’s population has since also exceeded 300,000.) Teachers’ hopes for a bargaining statute that same year (1972) were dashed when the governor vetoed a bill that had passed both houses of the legislature.

Legal Environment of Public Sector Labor Relations ◾ 73

The next year, Kentucky teachers decided that their best strategy was to join a coalition of several other public employee unions to seek the passage of a compre- hensive bill permitting bargaining for all Kentucky public employees. The coali- tion was composed of virtually every important employee organization in the state: American Federation of State, County, and Municipal Employees (AFSCME); AFL–CIO; Associated Professional Firefighters of Kentucky; Fraternal Order of Police; Kentucky Nurses Association; and local chapters of the American Association of University Professors, NEA, and AFT. However, groups opposing bargaining legislation carried more clout in the General Assembly. Business inter- ests, school administrators, the Chamber of Commerce, the Farm Bureau, and the Municipal League managed to kill the bill in legislative committee.

Frustrated by their notable lack of success with the legislature, the teachers next tried the executive branch, asking the new Democratic governor to extend them bargaining rights through an executive order. The strategy was declared illegal by the attorney general. Today, teachers do conduct negotiations with school boards in nine Kentucky school districts (Office of Education Accountability 2010), although they still have no statutory right to bargain.

E. States with Comprehensive Collective Bargaining Of the states that provide for collective bargaining for all major groups of state and local government workers, only three are in the Sunbelt: California, Florida, and Hawaii. Florida truly is an anomaly because it is the only southern state with a comprehensive labor relations policy. As one might suspect, the circumstances surrounding the Florida case are unique.

The judicial role in public sector labor relations in the South has typically consisted of responding to requests from government employers for injunctions to halt job actions. And, as discussed previously, early court decisions regarding the legality or constitutionality of collective bargaining frequently were anathema to negotiating rights for public employees. In Florida, however, the state supreme court in effect initiated and implemented a comprehensive bargaining policy (see Miller and Canak 1991).

In the case of Dade County Classroom Teachers Association v. Ryan (1968), the Florida Supreme Court enforced a provision in the 1968 revised constitution that afforded the state’s government workers the same right to engage in collective bargain- ing as Florida’s private sector employees. The court held that, except for the right to strike, it was incumbent on the state legislature to enact appropriate legislation to set regulations and standards implementing this constitutional provision. Nonetheless, collective bargaining legislation failed to pass during the 1969–1971 legislative ses- sions. In the following year, the chief justice of the Florida Supreme Court notified the legislature that failure to implement the constitutional requirement for bargain- ing legislation for public employees would force the court to issue its own guide- lines in lieu of legislation. When legislation still was not forthcoming, the court

74 ◾ Labor Relations in the Public Sector

appointed a seven-person commission that issued guidelines for court-mandated col- lective bargaining. Shortly thereafter, with a legal gun held to its collective head, the legislature enacted the Public Employee Relations Act of 1974.

Collective bargaining also came in through the courthouse door in Missouri, although the case was less dramatic than Florida’s. In May 2007, the state supreme court overturned 60 years of a policy prohibiting collective bargaining by public employees. In response to litigation from the Missouri NEA, the court interpreted language from the 1935 Missouri Constitution that granted collective bargaining rights to “employees” in the state. According to the court, “‘employees’ plainly means employees. There is no adjective; there are no words that limit ‘employees’ to private sector employees” (Lieb 2007: 2).

In most of the other states with comprehensive labor relations policies, a more conventional approach was employed. Staudohar (1973) provided an interesting description of the events preceding the passage of the Hawaii Public Employee Relations Act of 1970, one of the nation’s most comprehensive state collective bar- gaining statutes. Hawaii has had a history of strong organized labor since World War II. As early as 1950, public workers were granted the right to organize and present proposals and grievances to their employers. Even in this labor-friendly environment, however, public employees had to work hard for the passage of col- lective bargaining legislation. A bill that would have granted limited bargaining rights failed in 1965. But in 1967 a meet-and-confer statute requiring discussion on working conditions, personnel policies, and other matters was enacted, and the new 1968 state constitution mandated a public employee collective bargaining law. The struggle then turned to questions of how bargaining was to be structured.

A total of eight bargaining bills were considered during the next 2 years, each bill substantially differing in major provisions and each supported by separate interest groups and employee organizations. Major points of contention were as follows: (1) bargaining over wages as opposed to using a prevailing wage rate tied to private sector pay, (2) union security provisions, (3) appropriate bargaining units, and (4) the right to strike. The issue of appropriate bargaining units was especially salient in Hawaii. It is a small state that has only four counties. The county governments provide many traditional municipal government services, such as police and fire protection, public works, and sanitation, whereas the state handles typical county functions such as welfare services and property taxation. In the 1970 act, it was decided to establish statewide bargaining units to provide uniformity in personnel practices.

The right to strike also presented a sensitive issue in a four-county state where education, for example, is governed by a single jurisdiction and a teachers’ strike can cripple the education system of the entire state. After concluding that prohibitions of strike in other states had been ineffective, and at times even dysfunctional, the legislature granted a limited right to strike. Before striking, Hawaii unions must first exhaust mandatory dispute settlement procedures, wait through a cooling-off period, and give a 10-day notice of the intent to strike to the employer and the public employee relations board (PERB). In addition, no strike may threaten public

Legal Environment of Public Sector Labor Relations ◾ 75

health or safety, which effectively prohibits police and firefighter strikes. Ironically, a strike was called to spur desired legislative action on the very day the legislature was scheduled to vote on the collective bargaining bill.

The first states to enact comprehensive bargaining legislation tended to be strong two-party states with active and powerful organized labor groups and a large manu- facturing sector. These early innovators, such as Michigan, Rhode Island, New York, Massachusetts, Delaware, and Connecticut, patterned their legis lation on the NLR A. Most of the subsequent public sector labor relations statutes also were guided by NLR A principles on employee labor rights, scope of bargaining, unit determination and recognition, ULPs, and other bargaining topics.

The major elements of typical comprehensive labor–management relations leg- islation are briefly examined in the following subsections. (Each of these concepts is further discussed in Chapters 4–10.)

1. Employee Rights

Generally, the NLR A (Section 7) rights apply to public workers: “Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or mutual aid and protection, and shall also have the right to refrain from any or all of such activi- ties.” In the comprehensive bargaining states, all nonsupervisory workers are typi- cally guaranteed recognition and bargaining rights on request. Some bargaining states incorporate a clause stating that employees also have the right to refrain from joining a union, engaging in other union-related activities, or paying union dues.

2. Employer Rights

The great majority of state statutes provide a management rights clause excluding certain matters from the scope of negotiations. Typical management rights include the right to determine the nature of work to be performed and how it is to be performed; the tools and equipment necessary to do the work; retention of tradi- tional personnel management functions, including recruitment, hiring, promotion, and dismissal; and the right to determine the mission of the agency and maintain the efficiency and effectiveness of government operations. Some states (e.g., New Hampshire) stipulate that existing merit system provisions are excluded from col- lective bargaining, whereas others (e.g., Washington) provide that negotiated agree- ments supersede all existing policies or regulations.

3. Administrative Agency

All comprehensive statutes designate some form of administrative machinery to administer public sector labor relations. The administrative agency may be an exist- ing entity such as the state department of labor or the Civil Service Commission

76 ◾ Labor Relations in the Public Sector

or, as is the norm, a PERB or something with a similar name. Regardless of which strategy is employed, it is important to establish an administrative agency to resolve recognition claims by employee organizations, certify bargaining representatives, provide training in rules and techniques of collective bargaining, conduct research and disseminate information, hear complaints of ULPs, resolve disputes between the parties, and otherwise provide authoritative interpretations of existing policies. A major advantage of the PERB is its neutral posture, which is necessary if the agency is to develop the confidence and respect of both parties that is required for its effective functioning. PERBs are normally composed of three to five members appointed by the governor for staggered terms of office.

4. Unit Determination

A PERB or some other administrative agency determines the appropriate bargain- ing unit of employees. A bargaining unit consists of one or more workers repre- sented by a single union under one contract. These workers select a bargaining agent (union) to represent them as a unit. The most commonly used criteria for unit determinations are “community of interest” among the employees; duties, skills, and working conditions of the employees; desires of the employer; the his- tory of employee representation; effects on the efficiency of agency operations; the exclusion of supervisory employees; and the avoidance of unnecessary fragmenta- tion of units. The number of recognized bargaining units varies widely from state to state. New York, for example, has hundreds of local government bargaining units, whereas Hawaii has only a handful. In practice, unions often determine the bargaining unit’s boundaries by way of their organizing activities and the initial “showing of interest” through petition signatures.

5. Recognition Procedures

Once the parameters of a bargaining unit are determined, employee organizations compete over the right to represent that unit’s members in collective negotiations. All comprehensive statutes, such as the NLR A, provide for exclusive recognition, wherein a single union has the authority to speak on behalf of all employees in the bargaining unit. A union’s exclusive recognition is usually obtained through an expression of support by a majority of workers via a secret ballot. (In almost all other countries, recognition is achieved through signatures of a prescribed percent- age of employees; this is permitted in some states as well [e.g., Ohio].) An election is conducted in cases in which two or more unions compete to represent the bargain- ing unit. The PERB administers the election and certifies the results. The winning union must receive a majority of the votes cast. A runoff election is held when no organization receives a majority vote. After exclusive recognition is authorized by the administrative agency, management must deal only with that labor organiza- tion in bargaining matters, and the union must effectively and fairly represent all

Legal Environment of Public Sector Labor Relations ◾ 77

individuals in the unit, whether they are dues-paying members or not. Most statutes also establish procedures for decertifying a previously recognized organization.

6. Scope of Bargaining

Collective bargaining items may be mandatory, permissive, or prohibited depending on provisions of the bargaining policy. In the absence of specific language, adminis- trative agencies or the courts resolve ambiguities in the scope of bargaining.

Although scope of bargaining provisions vary greatly, most comprehensive policies follow the NLR A in mandating a broad scope of negotiations over wages, hours, and other terms and conditions of employment. As noted earlier, most states exclude certain management rights or civil service provisions from negotiations, including the right to supervise or manage employees, determine agency mission, and make most HRM decisions. The norm is to treat all topics as negotiable unless specifically excluded by statute or administratively interpreted to fall within the realm of agency “mission.” As a general rule, management prefers a narrow scope of bargaining, whereas unions seek a broad scope. Because the vital interests of both parties are at stake, battles over the scope of bargaining tend to break out frequently.

7. Impasse Resolution Procedures

In the private sector, impasses may ultimately (and legally) be resolved by a strike. In public employment, however, strikes are either prohibited or subject to restric- tive conditions. Thus, the need for other procedures to resolve impasses is quite clear. With only one or two exceptions, state labor–management relations policies address the need to resolve impasses resulting from grievances and contract nego- tiations. Each state with a comprehensive labor relations statute provides for one or more forms of dispute resolution that are either invoked by the administrative agency or left for the parties to adopt voluntarily. The three primary dispute settle- ment devices are mediation, fact-finding, and arbitration. Most states that permit strikes make them subject to compliance with prestrike impasse procedures.

8. Union Security

This provision addresses the topics of membership, payment of dues or fees, and arrangements for sustaining a functional employee organization. There are five pos- sibilities for securing the institutional viability of a union as the exclusive represen- tative of a bargaining unit:

Closed shop: Under this arrangement, the prospective employee must become a union member prior to beginning the job and maintain membership as a condition of continuing employment. The closed shop approach is illegal

78 ◾ Labor Relations in the Public Sector

in both public and private sectors under the Taft–Hartley amendments but continues to exist de facto in a few settings, principally through “hiring halls” that vet job applicants.

Union shop: Here, all continuing and new employees must, as a condition of employment, join the union within a specified time period (usually 30 days) and maintain their membership through the duration of the contract. Unlike the closed shop approach, there is no preemployment membership requirement. This arrangement is provided for in only a few states, and it applies to a limited number of employee functions.

Agency shop/fair share: Under this provision, employees are not required to join a union, but they must still pay the employee organization a sum of money equivalent to union dues (agency shop) or a portion of union dues to defray the union expenses incurred during contract negotiations and administration of an agreement (fair share).

Dues checkoff: Most public employee relations laws permit an arrangement in which the employer automatically deducts union dues or agency fees from paychecks of employees and remits the funds to the employee organization. The dues checkoff is normally found in conjunction with one of the other union security provisions.

Maintenance of membership: This arrangement requires all union members to maintain their organizational affiliation as a condition of employment. Nonmembers need not join. Few states explicitly provide for this arrange- ment, although in practice it is prevalent in contract language throughout the comprehensive bargaining states.

Union security policies are desirable for unions because they help increase or maintain membership and ensure a high rate of dues payments. A financially sound union is a more secure union and a more powerful organization politically. Furthermore, union security provisions obviate the problem of “free riders,” who enjoy the benefits of exclusive union representation in contract negotiations, griev- ance procedures, and other activities without paying organizational dues. It is also argued that union security is beneficial for the public employer, who gains labor peace from a stable union with a steady membership and income.

A powerful argument against the union shop and closed shop approaches is that they violate an individual employee’s right to freedom of association and speech under the First Amendment by compelling the individual to join or finan- cially support a union. Twenty-four “right-to-work” states prohibit union security arrangements requiring union membership or financial contributions as condi- tions of employment (i.e., union and agency shops). Eleven right-to-work states are in the old Confederacy; the remainder are scattered about the United States mostly to the west of the Mississippi River (see Figure 3.2). Among the right-to- work states, only the most recent, Indiana (2012) and Michigan (2012), have a history of strong organized labor or are traditional industrialized states. Unions are

Legal Environment of Public Sector Labor Relations ◾ 79

adamantly opposed to right-to-work laws and have fought to have the authorizing provision removed from Section 14(b) of the Taft–Hartley amendments since its adoption in 1947.

The empirical evidence is not clear on whether right-to-work laws hinder union growth and effectiveness through depressing the number of dues-paying members. Preexisting antiunion sentiment may inspire the adoption of right-to-work laws and lower workers’ interest in unions. Alternatively, right-to-work policies may inde- pendently depress future unionization by constricting union financial resources with which to recruit new members and effectively represent the bargaining unit. One review of scholarly research indicated that right-to-work laws do depress union membership by 3%–8% in the long run and boost free riding by 6%–10% (Moore 1998). Another review estimates that right-to-work laws depress union density by 8.8% (Holger, Shulman, and Weiler 2004; see also Ellwood and Fine 1987; Davis and Huston 1995).

The reasoning behind a ban on union security arrangements is that unions are private voluntary organizations in which membership should be by conscious free choice of the worker. An individual made to join a union or pay dues may be forced to support an organization, ideology, or political program that he or she does not condone. Thus, union security provisions may appear to violate an employee’s First Amendment rights of free speech and association. It is also argued that union secu- rity measures conflict with the merit principle because all public employees should be hired and retained on the basis of their job qualifications and performance, not membership in an organization.

The federal courts have upheld the right of individual states to bar union secu- rity provisions through right-to-work laws (Davenport v. Washington Education

– Right-to-work state – Not right-to-work state

OR ID

MT ND

SD WY

COUT NV

CAHI

AZ NM OK

AR MS

MN WI

IL IN

OH WV

KY TN

AL GA

SC NC

VT NH MA

NJ DE

RI CT

Figure 3.2 Right-to-work states, 2013.

80 ◾ Labor Relations in the Public Sector

Association [2007]). The federal courts have also addressed the First Amendment rights of free speech and association that are raised when a union uses dues for pur- poses not related to collective bargaining, such as campaign support for a political candidate or legislative lobbying. If an employee objects to financially supporting these activities, does this not constitute a violation of free speech? Concerned about this question, the federal courts have determined the procedural safeguards that a union must establish for nonunion members to receive a rebate of nonchargeable fees.

In a trilogy of cases, the U.S. Supreme Court upheld and protected private sector employees’ First Amendment rights under the RLA (see Mitchell 1978). In Railway Employee Department, IAM v. Hanson (1956), the court found that a union security agreement was constitutional as long as dues collection did not serve as a “cover for forcing ideological conformity … in contravention of the First Amendment.” In International Association of Machinists v. Street (1961), the court held that unions cannot utilize dues to support political causes if an employee objects. And in Brotherhood of Railway Clerks v. Allen (1963), the Supreme Court suggested that unions adopt a voluntary plan to enable dissenters to avoid having a portion of their dues used for political expenditures. The principles developed in these three cases were applied to the public sector in Abood v. Detroit Board of Education (1977) and Communications Workers of America v. Beck (1988).

It is not a simple matter to draw a bright line distinguishing between accept- able and unacceptable uses of service fees. This problem was first addressed in the private sector case of Ellis v. Railway Clerks (1984), in which the court decided that “the test must be whether the challenged expenditures are necessarily or reason- ably incurred for the purpose of performing the duties of an exclusive representa- tive of the employees in dealing with the employer on labor–management issues.” The court specifically approved national union conventions, social activities, and publications as “necessarily or reasonably incurred” while prohibiting a portion of the service fee for activities not directly related to contract negotiation, administra- tion, or grievance handling. In Ellis, the court also found “inadequate” the union’s scheme for rebating the portion of the service fee not spent on allowable items. By collecting an amount equal to full dues and then refunding a portion later, the union was in effect borrowing from nonmembers and not providing them with a viable mechanism for challenging the size or proportion of the rebate (see Darko and Knapp 1985).

In Chicago Teachers Union v. Hudson (1986), the Supreme Court specified a procedure for drawing a line between acceptable and unacceptable uses of a ser- vice fee. The Chicago Teachers Union had negotiated a contract with the Board of Education, requiring nonmembers to pay a service fee of 95% of members’ dues. The court ruled that the union was required to give nonmembers “an adequate explanation of the basis for the fee, a reasonably prompt opportunity to challenge the amount of the fee before an impartial decision maker, and an escrow for the amounts reasonably in dispute while challenges are pending.” The nonunion employee was “entitled to have his objection addressed in an expeditious, fair,

Legal Environment of Public Sector Labor Relations ◾ 81

and objective manner” (this is now known as a “Hudson notice”). In the case of Lehnert v. Ferris Faculty Association (1991), the Supreme Court provided further instruction by devising a three-part test to determine the share of dues that may be deducted for a nonmember’s agency fee. Under Lehnert, expenses are charge- able to nonmembers if they are (1) germane to collective bargaining activities, (2) justified by the government interest in labor peace and avoiding free riders, and (3) not significantly burdensome to free speech. Permissible expenditures include national and state union convention expenses and strike preparation costs. Lobbying, electoral, and other political activity costs are disallowed. The Supreme Court dived deeper into the agency fee issue in a 2012 ruling, Knox v. SEIU Local 1000, requiring that unions provide a notice to nonmembers in the bargaining unit specifying the use of fees and permit the employees to opt out of paying them. Moreover, the court held that when a union issues a supplemental fee assessment it must provide a second notice with the opportunity for nonmem- bers to object.

The Ellis and Chicago Teachers Union decisions cast doubt on the constitutional- ity of agency fee practices in a number of state and local jurisdictions. At least two states, Minnesota and New Jersey, have acted to keep the service fee issue out of the federal courts by statutorily providing for a maximum service fee percentage of 85% of full union dues (Volz and Costa 1989). Although this approach holds promise for balancing the unions’ free-rider problem against the First Amendment rights of nonmember workers, more litigation has followed in the state courts. Generally, the Lehnert principles have been applied by state courts, but there are inconsistencies, with expenses found to be chargeable to union dues in one state, for example, and not chargeable in another (Lund and Maranto 1996: 35–45). The facts of the indi- vidual situation determine which union expenses are payable with nonmembers’ dues. Several states have explicitly identified chargeable expenses (e.g., California and New Jersey).

9. Unfair Labor Practices

Following the model of the NLR A, bargaining statutes specify ULPs that must not be committed by public employers or unions. These ULPs are intended to protect the rights of the parties under law.

Prohibited practices by public employers include the following:

◾ Interfering with, restraining, or coercing public employees in the exercise of their rights granted under statute

◾ Dominating, interfering with, or assisting in the formation or administration of an employee organization

◾ Encouraging or discouraging membership in any labor organization through discrimination in hiring, tenure, or other terms or conditions of employment

◾ Questioning employees about their union sentiments

82 ◾ Labor Relations in the Public Sector

◾ Discharging or discriminating against an employee because he or she has filed charges or given testimony under the labor relations statute or because he or she has formed or joined an employee organization

◾ Refusing to meet and bargain in good faith with the recognized employee organization

◾ Denying rights of exclusive representation to the duly designated bargaining agent

◾ Refusing or avoiding statutory impasse procedures ◾ Instituting a lockout ◾ Dealing directly with employees rather than with their bargaining represen-

tatives on matters within the scope of bargaining ◾ Violating the terms of a collective bargaining contract

ULPs by an employee organization may include the following:

◾ Interfering with, restraining, or coercing public employees in the exercise of their rights granted under statute

◾ Interfering with, restraining, or coercing a public employer with respect to protecting the exercise of employee rights under statute or selecting a bar- gaining representative

◾ Refusing to meet and bargain collectively with a public employer in good faith ◾ Refusing or avoiding statutory impasse procedures ◾ Engaging in or instigating an illegal strike ◾ Hindering or interfering with an employee’s work performance or productivity

Upon written notice from an employer or a union plaintiff, the administrative agency determines whether a ULP has occurred. The accused party has a certain period of time in which to respond (normally 7 days). If the alleged ULP is found to have taken place, the administrative agency generally has the authority to issue a cease-and-desist order against the accused and to reinstate any unjustly dismissed employees, with back pay, or issue other remedial orders.

F. Initiative and Referendum As discussed at the beginning of this chapter, state legislation is not the sole means of regulating labor relations in the public sector. Court decisions, attorney general opinions, and executive orders have played significant roles in establishing labor relations policies in a number of states. And in some states, most notably California, an additional vehicle for public policy making has been utilized to govern labor relations: the public referendum.

Eighteen states permit citizen initiatives to amend the state constitution and adopt statutory law, and 23 states have initiative provisions in place to change statutory law. Most states also allow local initiatives and referenda. Under California’s version of

Legal Environment of Public Sector Labor Relations ◾ 83

home rule, a local government can amend its city charter through action by the legis- lative body (council), a charter commission, or a citizen initiative petition. Normally, charter amendments or ordinances are enacted by the council. However, the initiative petition plays an important part in California local governance. The local initiative was used by police and firefighters to set wages, establish retirement systems, and enact rules governing working hours as early as 1907 (Crouch 1978: 191). A state initiative created the civil service system for California local government workers, and the pro- cess also has been utilized to establish prevailing wage principles and parity formulas.

California’s state initiative procedure requires supporters to obtain the valid signa- tures of at least 8% of the total votes cast for all gubernatorial candidates in the last general election for a statewide initiative and 5% of the votes cast for a statutory initia- tive. Proposition 13, which severely limited state taxation and expenditures, is perhaps the most famous, or infamous (depending on one’s perspective), statewide measure ever passed. A number of local initiatives are decided each year throughout the state.

That California’s use of the initiative has been so popular is a function of the state’s political system. California has long been known for its weak political parties. Because interest aggregation and articulation must occur if democracy is to be a reality, other entities, namely, interest groups, have assumed direction and a signifi- cant degree of control over politics of the state. California politics is interest-group politics, and nowhere else have interest groups enjoyed more successful application of the initiative procedure as a means of influencing and determining public policy as in California. Needless to say, organized labor is one of the most powerful inter- est groups.

The California State Employees Association and California Teachers Association have used the state initiative process to achieve goals denied them at the bargaining table. However, rising voter discontent with large salary gains by police and firefight- ers culminated in a rebellion of sorts in San Francisco in 1975, when the city govern- ment refused to honor the wage and parity amendments. Police and firefighters went on strike, but voters used the initiative procedure against them by approving strong antiunion charter amendments. Since then, antiunion initiatives have also been passed in Oakland, Santa Barbara, San Diego, and other California cities. California witnessed its fair share of antiunion initiatives as part of the fallout from the Great Recession, as did several other initiative states. Most failed at the ballot box. In Ohio, voters overturned a legislatively adopted law weakening collective bargaining in 2011.

Through the initiative process, state employee organizations have suffered both dramatic defeats and stunning victories. Recent union victories include defeat- ing “paycheck protection” initiatives that would have required unions to obtain permission from their members each year before spending their dues for political purposes.

The tremendous expense of conducting initiative campaigns has dampened the interest of public employees in this method of policy change. (In California, it costs more than $1 million just to place an initiative on the ballot.) However, employee organizations participate aggressively when their interests appear to be threatened.

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G. Labor Relations in Nonprofit Organizations As a general rule, nonprofit organizations occupy an uncertain legal terrain (see Chapter 2). The NLR A is the governing law for nonprofit organizations, but in some cases state law prevails. As observed in Chapter 2, the rapid growth of the nonprofit sector along with a friendly environment for labor and its causes have heightened union interest in organizing nonprofit agencies and workers.

AFSCME, SEIU, and the Office and Professional Employees Association have enjoyed some recent success in organizing workers in nonprofit foundations, cul- tural organizations, day care centers, schools, and churches. They are aggressively pursuing health-care workers in hospitals, home care, nursing homes, and other institutions paid wholly or in part under contracts with state and local govern- ments (Kearney 2011; Mareschal 2006). In several states, including California, Oregon, and Washington, SEIU won policy changes that create public authorities as home care aides’ employers of record and then won collective bargaining rights to represent them under state law (Mareschal 2006: 27; Delp and Quan 2002). An executive order by Governor Eliot Spitzer in 2007 granted home-based child care providers collective bargaining rights in New York (Greenhouse 2007).

Nonprofit management tends to be at a disadvantage when unionization occurs. The board of directors and chief executive officer may find themselves in unfamiliar territory and with little or no knowledge of the NLR A or state labor provisions. Even if they are inclined to fight unionization, they rarely have sufficient funds to hire a union-busting firm.

From a practical perspective, nonprofits differ fundamentally from firms and public government organizations in their missions, assumptions, and operating procedures. For example, a nonprofit that operates a number of assisted-care homes for the aged and disabled under a state contract may find itself in a dispute with one or more unions demanding a substantial wage increase. If the nonprofit cannot or refuses to pay, the assisted-care workers may legally walk out the door, abandoning their patients. What is the role of the state government in such a situation? Legally, it probably has insufficient authority to intervene unless, as in California, the work- ers are employed by and paid through an agency of the state government. Morally and politically, it must act to protect the lives and well-being of citizens who do not have the resources to take care of themselves. Such crises have induced governors to take direct action to hike employee pay by unilaterally amending the operating contract with the nonprofit.

V. Summary This chapter describes the legal basis of labor relations in federal, state, and local governments in the United States, including the right to form and join unions, and the various statutes, ordinances, executive orders, attorney general and court

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decisions, and public referenda that have established labor relations policies for public employees.

The “political laboratory” of labor relations policies in the states was examined by classifying state policies into three groups: those with no statutory bargaining rights, those with partial coverage, and those with comprehensive policies mandat- ing bargaining. Major provisions of typical collective bargaining legislation were outlined, including employee and employer rights, administrative agencies, unit determination, recognition, scope of bargaining, impasse resolution procedures, union security, and ULPs.

Unlike in the private sector, there is no single, coherent legal framework for public sector labor relations. In the federal sector, the CSR A regulates labor– management relations through an increasingly inadequate framework that has not withstood the test of time. Federal unions struggle to justify their existence in the absence of union security arrangements and of a broad scope of negotiable topics. The prohibition of bargaining over wages and benefits is particularly burdensome to the federal unions. The Reform Act itself is in dire need of reform.

It has been only a little more than four decades that public employees in the United States have enjoyed the legally protected right to form and join employee organizations. Many state and local government employees still do not have statu- tory collective bargaining rights, and prospects do not look good for substantial change. Regional variations in labor relations policies and union membership persist, with Sunbelt states likely to continue denying bargaining rights to pub- lic workers. With a few possible exceptions, the legal environment will probably be altered only at the margins, although the recent cases of Wisconsin and Ohio demonstrate the power of antiunion forces to retract collective bargaining rights. Barring the emergence of a new prolabor majority coalition in the respective state legislative bodies or a profound change of course by Congress and the president, any policy changes are likely to suppress—rather than facilitate—unionization and collective bargaining.

The legal environment for public sector labor relations is important and deserves careful attention. It is strongly associated with the levels of unionization, extent and nature of collective bargaining, and general character of employer–employee rela- tions. The legal environment of public sector labor relations underlies and shapes everything that follows in this book, and it largely determines who wins or loses on the labor–management playing field.

Chapter 4

Fundamentals of the Bargaining Process

I. Introduction Collective bargaining and other forms of management–union relations in gov- ernment are replete with formal and informal procedures, official and unofficial participants, and—perhaps above all else—politics. This chapter examines the multidimensional bargaining process in the public sector and attempts to shed some light on the mysteries of labor–management negotiations. At the outset, it is important to understand the ways in which collective bargaining differs between government and the private sector. Next, the basic elements of the bargaining pro- cess are considered in some detail. The chapter concludes with a look at the internal and external politics of public sector collective bargaining.

II. Public–Private Sector Differences Perhaps because of the sovereignty doctrine or, in some cases, the shock of early union successes in government, the differences in collective bargaining between the public and private sectors are often overstated. Upon close inspection, one sees that the same sort of people and occupations are involved in government and corporate jobs and not uncommonly the work is identical. The day-to-day activities of the welder, the classroom teacher, the vehicle operator, the maintenance person, the medical technician, the scientist, and the information technology specialist are indistinguishable regardless of public or private ownership of their place of

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employment. Most would dispute the claim that the duties of the county hospital nurse are somehow less “essential” than those same duties performed in private hospitals. Moreover, the principles and processes of collective bargaining exhibit many more sectoral similarities than differences.

Nonetheless, important distinctions can be drawn between government and business concerning the environment, actors, and procedures of collective bargaining.

A. The Environment Chapter 3 established that the environment of collective bargaining in government differs from that of business in the legal framework, particularly with regard to statutory and regulatory policy. Three additional environmental factors distinguish collective bargaining in the two sectors: (1) financial setting and incentives, (2) the nature of work, and (3) the role of politics.

1. Financial Setting and Incentives

Corporate financial policy and decision making are driven by the profit motive. A business entity cannot remain a going concern unless assets and net income exceed liabilities and net expenses over the long haul. In simple terms, a corporation that falters must fold its tent and move its operations to a more favorable location (most recently to Asia), declare Chapter 13 bankruptcy, or negotiate a takeover by a more successful firm. Private sector organizations adjust financial policy in response to the demands of the marketplace. For example, increased labor costs may be passed on to consumers through boosting product prices; they may be offset through introducing productivity improvements; they may be absorbed internally through lower profits; or they may be outsourced to China or Vietnam.

As the mortgage debt conflagration and the onset and aftermath of the Great Recession (2008–2012) showed, general-purpose governments sometimes confront serious fiscal crises and revenue–expenditure imbalances, but they cannot “go out of business.” Municipalities may file bankruptcy under Chapter 9 of the federal code, but they cannot lock their doors, lay off all employees, and cease the provision of public services. The Great Recession spawned a number of municipal, county, and special district bankruptcies, including those in Vallejo and San Bernardino, California; Jefferson County, Alabama; and Harrisburg, Pennsylvania. The unin- terrupted provision of law enforcement, fire protection, potable water, sewer ser- vices, and (especially during July and August) trash collection is critical to the health and well-being of the citizenry. These jurisdictions may have defaulted on their debt instruments and current accounts payable, laid off employees, turned hat-in-hand to their state governments for bailouts, and taken other steps to get a financial grip, but they could not retreat from their legal and moral obligation to provide essential services to their residents.

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There is no profit motive in government. Higher service provision costs must be passed on to consumers through a fee or tax increase or ameliorated through productivity gains. Because there are no “profits” to reduce, and a balanced budget is mandated by law, government’s fiscal choices are rather constrained.

2. Nature of Work

In addition to financing, the type and scope of government services differ from services provided by the private sector. In general, government services are labor intensive. They also tend to be monopolistic; typically, there is no convenient alternative supplier of police and fire protection, water, sewage, or garbage pickup. This is not to say that no alternatives exist: particularly in rural areas, one may sink one’s own well, install a septic tank, and take the trash to the nearest sanitary landfill in the trunk of the family vehicle; volunteer fire departments are responsible for protecting the great preponderance of property in the United States; private schools educate some 6 million students in grades K–12; and private security firms can perform the police and military functions, to some extent, as demonstrated by the U.S. Department of Defense contractors in Iraq and Afghanistan, who outnumbered uniformed troops. Indeed, one is hard pressed to imagine a single government func- tion that could not, in theory (if not in practice), be performed by a nongovern- mental entity. However, the point is that alternative services are not immediately available in most cases. The implications of an employee strike in services essential to the health and safety of a community are obvious and not to be taken lightly.

3. Role of Politics

Public sector labor relations are deeply and inherently suffused in politics at many different levels. The activities of all labor unions (organizing workers, lobbying elected and appointed officials, influencing public opinion, and representing work- ers in collective bargaining and grievance procedures) are political in nature. But the level of politicization is much higher in the public sector.

The primary distinction between the politics of public and private sector unions and collective bargaining rests in the basic contexts of the two systems: the public arena (and public policy) versus the marketplace (and corporate policy). Private sector firms are responsive to the citizenry primarily through adjusting to and influencing consumer demand for their products. In the public sector, government service providers must be responsive not only to their immediate “customers,” or service recipients, but also to elected officials, civil servants, the voting public, other levels of government, and certain private and nonprofit organizations. Collective bargaining assumes a multiparticipant character, with its outcomes highly depen- dent on the political interplay among unions, elected officials, interest groups, and taxpayers. In addition, the access points of labor organizations to the govern- ment employer are much more numerous than those of private sector unions.

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For example, in government, public employees may help elect their own employers through voting and campaign support. As explained by Stieber(1973: 20), “In both public and private sectors, organized employees use power to affect the distribution of resources and the management of men [sic] and materials. In the private sector they do this primarily as employees. In the public sector they exert influence as employees, as pressure groups, and as voting citizens.”

The principal reason that government employees are involved at a high level in politics is that legislative bodies have the authority to appropriate funds; enact laws that permit, regulate, or prohibit collective bargaining; and even supersede agreements between labor and management. Therefore, both labor and manage- ment engage not only with one another but also with whatever political entities and individuals can help them realize their objectives. This is not to say that private sector bargaining is apolitical and that private meetings with public officials do not occur or that broader constituencies are completely insignificant. But engaging in external politics away from the table is generally considered bad faith bargaining in the private sphere.

B. The Parties The principal players in private sector labor relations have well-defined roles. The union team entails the union leadership, bargaining representatives, and rank and file; the management team includes designated labor relations specialists and nego- tiators. Both parties are likely to have legal counsel at the table or readily available. Team membership may vary on occasion as specialists are brought in to address special topics, such as the future costs of pension or health-care benefits.

Management authority is securely situated at the top of the organizational hierarchy. Major corporations delegate responsibility for contract negotiations to specified individuals within various facilities or geographic locations. Management is rewarded according to that division’s contributions to corporate profits; prof- its depend in large measure on minimizing labor costs. Typically, facility execu- tives are assisted in collective bargaining and contract administration by a human resource director or industrial relations specialist, whose future with the company depends on his or her success in negotiating and administering the contract. Labor lawyers are often consulted or contracted with to prepare for and conduct nego- tiations. There are strong career and financial incentives to “deliver” for corporate executives. Of course, union negotiators who do not deliver for their membership face the same grim possibility as does management’s negotiator: losing the job.

Management’s labor relations roles in public sector collective bargaining are less clearly defined. Separate staff functions for labor relations are found predominantly in the largest local governments and in states with comprehensive bargaining laws and many years of bargaining experience. In other jurisdictions, the responsibility for labor relations is not clearly fixed. This is unsatisfactory for at least two rea- sons: (1) no individuals are held directly accountable for promoting and protecting

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management’s interests and (2) when labor relations is not treated as a distinct function or specialization, it is likely to be a secondary duty of the management negotiators and not receive the careful attention it deserves. Faced with a well- prepared opponent, a disorganized or indifferent participant may pay high costs.

Blurred management responsibility for labor relations fosters motivation prob- lems. Motivation suffers when a poorly trained, part-time negotiator fails to see how this temporary job assignment will further his or her career because top manage- ment has not helped him see the connections. Unclear management responsibility also invites the union to exploit any fragmentation or inconsistency in management’s position. Although projecting team solidarity on both sides of the table is a time- honored tradition, certain differences usually exist, and ostensible team solidarity is sometimes an illusion. A good negotiator detects this and can use it to advantage.

Negotiations are not a war game or an exercise in animal cunning. No amount of style or glibness can substitute for preparation and teamwork. It is imperative to come to the table focused, organized, and prepared to work hard to reach a settle- ment. It is one thing to fail to successfully negotiate an acceptable contract because of intractable issues or the other party’s determination not to make concessions. It is quite another for negotiations to break down because of a lack of clear lines of authority, carelessness, or failure to prepare.

The diffuse nature of management authority in government is compounded by weak or unfocused labor relations responsibility. Even those with only passing familiarity with federal and state constitutions seem to believe intuitively in the separation of powers and checks and balances among institutions of government. Power is divided both between levels of government (federal/state/local) and within individual governments (executive/legislative/judicial), and all relationships are characterized by elaborate provisions for checks and balances. What happens at one point of the federalism matrix may be influenced by what happens at other points. For example, state legislatures sometimes reject collective bargaining settlements agreed to by the parties and the executive branch.

In this context, labor relations responsibility is ambiguous. With respect to municipal government labor relations, for example, the federal government regu- lates some working conditions, the state legislature may establish benefits packages, and the city council may set salaries. A coherent chain of command may be lacking and can be further muddied by the election cycle. Such diffusion of management authority poses serious problems especially during the early stages of a collective bargaining relationship, and it encourages unions to circumvent formally desig- nated management representatives through “end runs” to more sympathetic indi- viduals. At the very least, the process becomes highly political.

A final nettlesome problem in government concerns how merit system pro- visions mesh or clash with collective bargaining processes and agreements. It is not unwise for central personnel office staff to participate in or closely observe the negotiation process to discern how any agreement might relate to provisions of the merit system.

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C. The Process Finally, public and private sector labor relations differences exist in the process of collective bargaining. Some of them are obvious. For example, the diffusion of management authority results in multiple decision points in government labor relations. And, as noted in Section 3, the bargaining process is highly politicized in government and subject to influence by citizens and interest groups. Additionally, some of the formal elements and steps in collective bargaining differ, such as the legal absence of the strike option in most government jurisdictions and the sub- sequent reliance on other impasse resolution procedures. Section III discusses the elements of the collective bargaining process in government, pointing out the dis- tinctions between the public and private sectors where appropriate.

III. Electing a Union and Getting a Contract: The Elements of Collective Bargaining

Informal meet-and-confer arrangements in which negotiations are not sanctioned are not uncommon in government, but such interactions do not constitute collective bargaining. This section restricts discussion to conventional collective bargaining relationships. “Collective bargaining” refers to the continuous process in which representatives of the employer (government) and employees (the union) meet jointly to establish the terms and conditions of employment for workers in a bargaining unit. The discussion proceeds sequentially from bargaining unit determination to contract ratification (see Figure 4.1). Strikes, impasse resolution procedures, and contract administration receive extensive treatment in subsequent chapters.

Unit determination

Representation election/ show of majority support Impasse

Mediation Fact-finding Arbitration

Settlement

Court injunction

Strike

Contract administrationContract negotiation

Certification of bargaining representative

Arbitration

Strike Consultation Grievance procedure

Figure 4.1 The collective bargaining process.

Fundamentals of the Bargaining Process ◾ 93

A. Bargaining Unit Determination A specific group of employees must be identified for the purposes of collective bar- gaining; this group of employees is the bargaining unit. The appropriate bargain- ing unit may be (1) specified by a state public employee relations board (PERB) or other administrative agency, in accordance with statute; (2) arrived at through adjudication on a case-by-case basis; or (3) accepted as defined by a union seeking recognition as the bargaining agent with a show of majority support from members of the intended bargaining unit. Support for the union is documented by a majority of eligible employees signing cards or petitions for union recognition as bargaining agent.

In the private sector and nonprofit sectors, unit determination depends on the type of firm or nonprofit organization and its functions. The National Labor Relations Board (NLRB) certifies bargaining units in the nonpublic sector. In instances in which a union and management disagree on unit composition, the NLRB is the final arbiter of what constitutes an “appropriate unit.” In federal employment, unit determination is the responsibility of the Federal Labor Relations Authority (FLR A).

During the early (prestatutory) years of collective bargaining in state and local governments, the makeup of the bargaining unit was frequently decided by the union’s preferences; management simply concurred out of weakness or indifference. In most cases today, however, the process is set forth in statute or in the administra- tive procedures of a state public employee labor relations board.

Unit determination and certification usually require multiple steps: petition for a certification election, proper showing of employee interest in the election, a hearing to establish the petition’s validity, determination of the unit boundaries by an administrative entity, and final certification (see Figure 4.2). A proper showing of interest typically requires signed cards or a petition demonstrating that at least 30% of the workers in the proposed unit desire collective bargaining representa- tion. The hearing is used to gather information on the validity of the show of inter- est and the timeliness of the petition. A petition is timely only if (1) there has not been a representation election within the past 12 months, (2) an existing certifica- tion is not in effect, and (3) a valid collective bargaining contract is not in effect (Rubin 1979: 123).

Petition for election

Unit clarification procedures

Administrative body determines the unit

Show of employee interest in holding an election

Hearing on validity of petition for election

First unit certification

Figure 4.2 Steps for determining the bargaining unit.

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Statutory and administrative agency criteria for unit determination decisions vary greatly but usually take into account these factors: (1) community of interest, (2) desires of the employees, (3) bargaining history, (4) efficiency of agency opera- tions, (5) avoidance of bargaining unit fragmentation, and (6) exclusion of super- visory and confidential employees. The parameters of the unit may depend in part on the union’s membership structure. The American Federation of State, County, and Municipal Employees (AFSCME), for example, may desire a citywide non- uniformed bargaining unit, whereas the International Association of Firefighters is likely to want uniformed firefighters only. The union’s bottom line is that it wants a unit that will support it in the representation election and that will be sufficiently strong and united to negotiate a favorable contract. A certain degree of workforce solidarity is needed (Martinez, Fiorito, and Ferris 2011).

1. Community of Interest

Usually, the most salient criterion in determining the bargaining unit, “community of interest,” refers to duties, skills, and abilities held in common among employees. These employees are engaged in similar work or are treated in a like fashion by management.

2. Desires of Employees

Normally, employees sort themselves into appropriate bargaining units based on community of interest and union petitions. In some cases, workers are polled by the relevant labor relations board. Workers with clear conflicts of interest are not usually placed within the same unit (e.g., teachers and principals).

3. Bargaining History

“Bargaining history” refers to previous relationships between labor and management within the jurisdiction, including patterns of negotiation and recognition that may reflect traditions, past practice, or appropriateness of how units were first developed.

4. Efficiency of Agency Operations

The efficiency of agency operations becomes a factor if a proposed unit would dis- rupt standard human resource management policy and practice to the detriment of agency performance, work routines, or other factors.

5. Fragmentation of Bargaining Units

Fragmentation of bargaining units, which is most often found in the absence of legislative guidelines or administrative regulations, is related to unit size and the occupational characteristics of unit members. The conventional wisdom is that a

Fundamentals of the Bargaining Process ◾ 95

large number of small bargaining units create serious administrative problems for management. Such problems include multiple, time-consuming negotiations; con- stant problems in administering the labor agreements; end runs to elected officials or other third-party “friends”; leapfrogging (where each union fights to position its wage increase and other bargaining gains at a level higher than any other union); and disruptive jurisdictional battles and rivalries between competing organizations (Spero and Capozzola 1973: 142–145).

Additional disadvantages of a large number of small bargaining units are the difficulty of maintaining uniformity and equity in wages, benefits, and working conditions for all workers in the jurisdiction, a greater potential for conflicts and job actions, and problems estimating future wage and benefit costs in the jurisdic- tion’s budget. In a nutshell, fragmentation means inefficiency and complexity. In a state government with 50 bargaining units, management might have to go to the table half a hundred times with assorted unions. Significant administrative support is required on behalf of both parties. And administering numerous contracts with multiple unions can be a nightmare for management and a headache for union leaders (who find that what they have negotiated is compared by their members with the performance of every other bargaining agent).

The bargaining unit is, in effect, the election district in which employees vote for a union (or for no union) to represent them. Objective criteria for unit determi- nation notwithstanding, unions have a pragmatic interest in organizing units for which they can win elections against both competing unions and the employer. An analogy is found in activities to reconfigure, or redistrict, congressional and state legislative districts following each decennial census. Although the principles of good government and fair representation may be espoused to justify a change in boundaries, gerrymandering districts to favor one candidate or party over another is common practice.

Because of these widely recognized problems with bargaining unit proliferation, there is a tendency to consolidate existing units. In New York City, for example, 400 units were collapsed into fewer than 100 over a 10-year period; in the federal government, the Civil Service Reform Act encouraged a 32% drop in the number of bargaining units from 1975 to 1981. At the state level, problems with unit frag- mentation have led to a trend toward statewide units.

The boundaries of bargaining units are not etched in stone. They may be amended through unit clarification procedures such as accretion, which permits assimilation of employees filling newly created positions, and consolidation, which combines two or more existing units into a single entity. A consolidation might involve combining police and firefighters into a single unit within a public safety department. But strong professional identification by members of each group leads to vigorous opposition to consolidation. Many police and firefighters’ unions have negotiated a ban on consolidation into the contract.

Despite arguments in favor of large units, numerous small bargaining units do offer certain advantages. First, it is simpler to identify the bargaining interests of

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a small unit. There is evidence that in some cases, small, occupationally based units reflect the needs and objectives of their members better than units organized along departmental or agency lines (Perry and Angle 1981). Diverse membership interests within a broad unit can create negotiating problems and internecine tensions that the union may find difficult to manage. The union may have trouble placating each faction in the bargaining unit. Second, a small group of craft or other specialized workers might have its interests ignored within a larger unit and thus can make a case for separate recognition. This is closely related to the community-of-interest principle, which posits that employees with similar work and job interests should be located within the same unit. Third, from the perspective of the public employer, small bargaining units can be dealt with effectively in some cases through a strat- egy of divide and conquer. Small units tend to be weak in political power and thus easier for the employer to dominate.

6. Exclusion of Supervisory and Confidential Employees

The sixth criterion usually taken into account in unit determination decisions is the exclusion of supervisory and confidential employees. In the private sector, Taft–Hartley excludes supervisors from membership in a bargaining unit. Although it once was simple to distinguish private sector supervisors from nonsupervisory employees, more recently, greater decision-making responsibility for workers in manufacturing, the service sector, and health care has complicated the situation. Some rulings by the NLRB have expanded the definition of “supervisor,” thereby reducing the number of private sector workers eligible for union representation. Others, however, have narrowed the supervisory distinction. In several cases, the U.S. Supreme Court has become involved in either upholding or overturning NLRB decisions (e.g., NLRB v. Kentucky River Community Care [2001]; Oakwood Healthcare, Inc. [2006]).

Supervisors in the federal government are likewise prohibited from being rep- resented in a bargaining unit. Several states, like the federal government and the National Labor Relations Act (NLR A), deny all bargaining rights to supervisors. Some states exclude only certain classes of “bona fide” supervisors. Others permit supervisory bargaining by creating separate units for supervisors. The most preva- lent approach, used by some 22 states, is to provide for mixed units of supervi- sors and rank-and-file employees. Forces such as downsizing, decentralization of authority, and rampant politicization have pushed local government supervisors in the direction of collective bargaining to protect their jobs and to secure pay raises commensurate with those won by their unionized subordinates.

The conventional operating assumption is that supervisors are part of man- agement and therefore should not be permitted to bargain in league with their subordinates. Moreover, supervisors included in subordinates’ bargaining units face significant role conflicts, may become loyal to management, or may be less effective in dealing with disciplinary problems and grievances. However, evidence

Fundamentals of the Bargaining Process ◾ 97

concerning these assumptions is mixed, and the question of supervisors’ bargaining rights remains very much unresolved in the public sector.

In government, the laws, job titles, and other position characteristics are highly variable, and “sprawling bureaucracies make empty shells of many impressive titles” (Spero and Capozzola 1973: 145). Furthermore, public sector managers frequently hold close working relationships with and perform many of the same duties as the rank and file, particularly in functions such as police and fire protection, nursing, and teaching. As team approaches to work have expanded, role ambivalence among public sector supervisors has grown.

The principle that legitimate, bona fide supervisors should not be placed with their subordinates in bargaining units is seldom disputed. The bona fide supervisor is the primary management agent in contract administration, and, to further the effi- ciency, effectiveness, and purposes of the organization, he or she should be committed to the management point of view. The key determination that must be made is who is a bona fide supervisor and who is a supervisor only in title. Some collective bar- gaining statutes and administrative procedures spell out what constitutes a bona fide supervisor and exclude those individuals from bargaining units composed primarily of subordinates. Less-than-bona-fide supervisors are placed within units of rank-and- file employees. Several states have adopted this approach, including Connecticut, Nevada, and Oregon, which apply an NLRA-type operational test to the definition of supervisor and then exclude only bona fide supervisors from bargaining law cover- age. Typically, bona fide supervisors have “independent judgment” as demonstrated in their authority to hire, fire, promote, and discipline or are involved in policy for- mulation, collective bargaining, or contract administration activities.

When managers join a union and win collective bargaining rights, they may encounter some interesting role conflicts. As managers, they tend to have a natural antipathy to unions, and they will fight tooth and nail to defend management rights. But as union members themselves, managers are aligned against their own appointed and elected bosses. In a sense, these “supervisors have discovered how to have it both ways: managerial authority with union benefits” (Piskulich 1995: 281).

That supervisory identification is not always a cut-and-dried affair is illustrated by two examples. In complex higher education institutions, the management line is drawn at the level of the department head in some universities and at the dean’s office in others. Department heads are true “middle managers,” with responsibilities in the classroom as well as in hiring and evaluating faculty and staff; setting departmental goals and objectives; and making merit pay, tenure, and promotion determinations. There is a long-established tradition of “faculty governance” in higher education, but in large, bureaucratic institutions, this is more an ideal than reality. Recall from Chapter 2 that the U.S. Supreme Court ruled that faculty at Yeshiva University held certain manage- rial duties, including involvement with hiring and retention decisions, and therefore had to be excluded from faculty bargaining units (National Labor Relations Board v. Yeshiva University [1980]). This decision effectively disenfranchised private college and university faculty from collective bargaining rights under the NLRA.

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A second example of role confusion among supervisors and employees is seen in nursing. Here, the question of “independent judgment” is salient in an occupa- tional hierarchy that includes nurses, registered nurses, charge nurses, nurses’ aides, and head nurses, some of whom do exercise independent judgment in patient care or as supervisors of other nurses (see Huckell 2008).

B. Representation Election or Show of Majority Support When de facto bargaining arrangements exist within a legal vacuum, a union has already been selected to represent workers and no new election need be held if a collec- tive bargaining statute is enacted. In most instances, however, there must be a formal determination of which union, if any, shall represent the unit in collective bargaining. This may be accomplished through a representation election or by the employer’s volun- tary recognition of a unit representative. The latter normally occurs only when a single employee organization seeks recognition and is able to demonstrate to the satisfaction of the employer that it enjoys the support of a majority of the employees in the unit.

If more than one union is involved or majority support has not been demon- strated to the employer’s satisfaction, a representation election is normally held. The election may be requested by the employer or, under some state laws, by a union. If the union asks for an election, it usually must present evidence (a “showing of inter- est”) indicating a show of support of at least 30% of the bargaining unit. This show- ing of interest or support is typically done by employees signing authorization cards designating a union to represent them or by signing a petition for the same purpose. For years, private sector unions have made it a legislative priority in Congress to enact a “card check” bill amending the NLR A to grant bargaining rights upon presenta- tion of signed authorization cards by a majority of the unit (most recently embodied in the Employee Free Choice Act). Unions believe that the current requirement for a secret ballot election disadvantages them. In comprehensive bargaining states, the show of support is validated by the state labor relations agency.

Once it is decided that a representation election will be conducted, a number of procedural issues must be resolved, including who will pay for the election and who will administer it. Typically, the PERB or other state labor board will do both. Next, the agency must determine who is eligible to vote (typically, those employees working within the unit on election day), when the election is to be held (usually within 30 days), the type of election (public or secret ballot), and what vote percent- age is required for certification (usually the majority of votes cast).

As a general rule, the secret ballot is preferred by certifying agencies. Use of the secret ballot, a longstanding tradition within the American democratic experience, helps protect voting employees from undue preelection pressures from management or the union and, after the election, from retributive measures taken by a sore loser. A union election for representation rights looks much like any election for public office. For example, there are voting booths, voter lists, and rules against campaign- ing near the polling sites.

Fundamentals of the Bargaining Process ◾ 99

Before voting day, the employer posts notices of the forthcoming election and takes other steps to ensure a large turnout of eligible voters. Each of the principal parties usually is permitted to post observers at the polls and at the site where elec- tion results are compiled. The ballot itself includes the names of all organizations demonstrating a show of support along with a choice of “no representative.” In the event that none of the choices receives majority approval, a runoff election is held between the top two. Voting matters, particularly when turnout is low. In Florida’s first election for a statewide administrative clerical unit of nearly 30,000 employees, AFSCME gained certification of the unit with only about 5000 votes.

For its part, the union will arrange and call a meeting, distribute information by print and electronic media, recruit and train volunteers, and persuade bargaining unit members to support it. The union’s job is made easier if the workplace consists of employees and jobs characterized by low morale, high levels of stress, job insecu- rity, arbitrary management actions, and low levels of compensation (Godard 2011).

During the period preceding the election, management sometimes attempts to influence the results through various tactics. Employer-induced election delays can help management’s cause (Riddell 2010). Public concern with future salary increases or costly benefits packages can also boost the employer’s chances. Union suppression tactics may even continue after a union election victory, through procedural objections, court actions, and other activities. As noted in Chapter 1, employers in the private sector sometimes use illegal tactics such as threats and reprisals to suppress unions, and often they get away with it. Such behavior is less common in government, but not unknown. Because these are all considered unfair labor practices, charges can be filed by the injured party with the appropriate labor board for redress. If such a board does not exist, the aggrieved party may turn to the courts.

If an employee organization wins majority support, and various challenges to the election are resolved short of a change in outcome, the union is certified as bargaining representative. Obviously, if “no representative” is victorious, the unit remains unrepresented and no collective bargaining will occur. If a union wins the vote, an “election bar” typically prohibits new elections for a specified period of time to give the union sufficient time to negotiate a contract and otherwise “prove itself.”

C. Certification of the Bargaining Representative Certification by the state or local labor relations agency (or FLR A in federal employment and NLRB in the private and nonprofit sectors) normally stands for at least 1 year from election day. The status of unit representation thereafter may be challenged by a rival organization or by dissidents within the certified union through petition for a decertification election. Election procedures similar to those outlined in the preceding discussion then come into effect to determine if the union will be decertified as bargaining representative—a fairly common outcome in the

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private sector since the early 1980s, but rare in the public sector. The process works in the same way as certification, only in reverse, with a showing of interest of 30% to decertify the union and a subsequent vote.

Workers may decertify unions for various reasons, including nonresponsiveness to member needs and demands; antiunion campaigns by the employer; the union’s failure to win and maintain favorable wages, benefits, and working conditions; and raids by competing unions. For example, union givebacks in negotiations with the State of Connecticut in 2011 provided an opening for raids on bargaining units of correctional officers and other state employees (Walters 2011b). If the union loses a challenge, it ceases to function as bargaining representative. A second election may then be held to select a new representative; otherwise, the collective bargaining status of the unit is dissolved.

The employer grants exclusive recognition to the successful employee orga- nization. Exclusive recognition provides significant benefits to the employer, the employees, and the union. The employer is assured that the union, and only that union, will represent all employees in the bargaining unit whether they are mem- bers of the union or not. Management will have only one organization to deal with, simplifying administration, saving time, and eliminating costly interunion struggles.

The union is guaranteed that management will deal with it alone concerning any issue within the scope of bargaining, both at the bargaining table and during admin- istration of the contract. Exclusive recognition also benefits employees because a negotiated contract applies to all members of the bargaining unit even if they are not dues-paying union members. The organization has a duty to fairly represent all employees without any form of discrimination or favoritism (see Vaca v. Sipes [1967]). However, the duty of fair representation can be a double-edged sword for a union. If a union fails to adequately represent a member of the bargaining unit, it may be sued for lost earnings or other damages (Bowen v. U.S. Postal Service [1983]).

D. Negotiating the Contract After union recognition, we move into the heart of labor relations—negotiation of the contract between union and management representatives. Bargaining is a way to change the terms and conditions of a relationship and to make decisions between competing workplace alternatives. What happens at the bargaining table determines the substance, tone, context, and commitments in labor relations during the next 1–3 years. The satisfaction of employees with their wages, benefits, and working conditions—not to mention the union and its leadership—is directly influenced by the outcome, as is the financial solvency of the jurisdiction. At issue as well is the nature of the relationship between the parties. Poor relations between some unions and employers have little to do with present-day issues, but rather reflect bit- ter memories of unresolved prior conflicts. Resentments and vengeance can blur the primary objectives of the bargaining process, which are to provide both parties with

Fundamentals of the Bargaining Process ◾ 101

an agreement they can live with, achieve good working relations with representa- tives of the other party, and protect the interests of the jurisdiction’s citizens.

1. The Participants

a. The Union

Management and union representatives are the primary participants in contract negotiations. Unless an impasse necessitates the intervention of a third-party neu- tral or other individual(s), labor and management representatives, often assisted by professional negotiators, hammer out the terms of the labor agreement on their own. Later, of course, the contract must be ratified by the union rank and file and by elected public officials, but the contract wheeling and dealing is the responsibil- ity of the individuals sitting across the table from one another. The primary union figure—not only during contract negotiations but throughout virtually the entire process of labor–management relations—is the union leader, or president of the local. Although the union leader has many responsibilities, it is primarily what he (the vast majority are men, so the masculine form is used) delivers to the member- ship from the bargaining table that determines his tenure in the position.

The job of the union leader is a demanding one, requiring strong political, managerial, interpersonal, and oratorical skills. Union leaders have been found to exhibit high activity and energy levels, strong goal direction, idealism, and a desire to change things for the better (Sayles and Strauss 1967: 58–60). Successful union leaders must be sharp negotiators and effective public relations people as well. They are faced constantly with the need to prove themselves to their mem- bership, who may include militant extremists, avowed dissidents, loyal supporters, and the apathetic. “The script,” according to Spero and Capozzola (1973: 115), “calls for a mixture of reason, explosive talk, threats, fear, justice, optimism, and pessimism.”

Union leaders must be careful not to appear too friendly with management or they risk dissension in the ranks that may produce a strong opposing faction and ultimately result in membership rejection of a negotiated contract. Obtaining ratification of agreements is probably the most difficult—and delicate—problem union leaders confront. The membership may spurn the proposed contract because of dislike or distrust of the leader, overblown expectations for a settlement, disen- chantment because of more substantial gains won by other organizations, or for any number of other reasons. Thus, it is critical that union leaders keep their fingers on the pulse of the organization and be highly persuasive in communicating with the membership.

In instances of union coalition bargaining, such as between state employee unions and the state executive branch, the challenge of membership support is even greater. For example, in 2011, two Connecticut unions unexpectedly broke ranks and spurned a deal that had been painfully negotiated to avoid widespread layoffs in exchange for wage and benefit givebacks.

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A time-tested means of “rallying the troops” for a leader whose status and position are challenged is to create a crisis and an “us versus them” situational per- ception—not a difficult task given a highly adversarial and emotional bargaining context. One of the great stories is that of the overt enmity between the late union leader Mike Quill, president of the Transport Workers Union (TWU), and his nemesis, Mayor John Lindsay, during the 1966 New York City transit strike. Quill took great delight in humiliating Lindsay, publicly calling him a “pip-squeak” and an “ungrateful sourpuss” (Horton 1973: 80–81). Quill carried his disdain for the mayor and other opponents to new theatrical heights. During the strike (Raskin 1972: 129–130), “The TWU chief was near death from heart disease; he had to swallow great gobs of pills in his moments of privacy; but none of them dulled his appetite for melodrama. He went before the television camera to tear up no-strike injunctions like confetti. When a judge ordered him carted off to jail, he said, ‘Let the judge drop dead in his black robes.’”

Although such drama may help unite the rank and file behind the union leader and draw clear lines of battle with management, it can severely inhibit agreement making and compromise when carried too far; settlement may come only after a protracted and painful strike. As management–union relations have matured, such histrionics have yielded to cool professionalism and quiet political deal making. In many settings, bargaining responsibility is turned over to union staff, with the leader active only behind the curtain.

Perhaps more so than most organizations, unions are victimized by the “Iron Law of Oligarchy.” As originally described by Michels (1949), the Iron Law of Oligarchy refers to control of an organization by a small, self-perpetuating, self- interested elite. The membership, except during times of extraordinary provocation, remains apathetic. Even when new leaders emerge, they soon revert to oligarchic tactics to thwart opposition and ensure their own survival. This pattern does indeed appear to be applicable to most large labor organizations where a leader emerges, consolidates power, and, along with a small but loyal staff, controls the organiza- tion’s activities with an iron fist. Contract rejections by union membership may reflect dissatisfaction with this situation and the perception (sometimes accurate) that the leadership is cutting “backdoor deals” with management while maintain- ing an elaborate public charade.

Occasionally, disenchanted internal opponents arise to challenge the union and to displace the leadership. For some unions, such as New York City’s Transport Workers Union, rank-and-file revolt has been a fact of daily life. The TWU repre- sents bus and subway workers—a diverse, volatile, and chronically dissatisfied lot. Since the 1940s, various factions have attempted to unseat the ruling oligarchy. One called “Hell on Wheels/New Directions” successfully attacked the entrenched union bureaucracy through election of its own supporters to leadership positions in 2001.

The roles and behavior of rank-and-file union members received some early scholarly attention. Child, Loveridge, and Warner (1973) suggested a four-celled typology of member attachment to the union, based on the congruence between

Fundamentals of the Bargaining Process ◾ 103

union policies and member expectations. “Cardholders,” the most typical mem- bers, are committed to the organization as long as they benefit from its policies. “Troublemakers” are highly involved in union affairs, but their notion of what union policies should be is not congruent with that of the ruling elite. The “stal- warts” also are very active in the organization, but they are loyal to the leadership and personally identify with union objectives. Finally, “alienated members” may be ideologically opposed to the notion of union or, in some cases, are defeated former troublemakers who have withdrawn from active union involvement.

Researchers have been interested in identifying the correlates of employee commitment to the union. The level of commitment is important because it helps determine union effectiveness in organizing, bargaining, retaining membership, and taking political action (Gallagher and Clark 1989). Four dimensions of union commitment have been identified (Gordon et al. 1980): (1) union loyalty—member pride in the union; (2) responsibility to the union—the extent to which the mem- ber fulfills the obligations and duties of membership; (3) willingness to do work on behalf of the union; and (4) belief in the concept of unionism, or a pro-union bias.

Interesting differences characterize male and female members. Women tend to believe there is more to be gained from union membership and express greater loyalty to the organization than men, but women appear to feel less responsibil- ity to the union and are not as willing to work for it. This divergence could be due to the fact that women typically have greater family commitments that limit their ability to participate and because men still dominate the top leadership posi- tions (Gallagher and Clark 1989). Inconclusive findings are reported regarding union activity rates of African Americans or Latinos versus whites (Hoyman and Stallworth 1987; Bacharach and Bamberger 2004).

Perhaps counterintuitively, union commitment is found to be positively related to commitment to the employer: the quality of one relationship apparently feeds the other (Gallagher and Clark 1989: 58–60). However, union commitment is bolstered by a poor relationship between the member and his or her immediate supervisor, particularly when the supervisor and/or the employer is believed to have broken their “psychological contract” with the worker by failing to maintain jobs or ben- efits, for example. Members also appreciate democratic processes (Jarley, Kuruvilla, and Casteel 1990), an effective grievance procedure (Clark 1989a), a certain level of personal trust and confidence in the union leader (Hoell 2004; Twigg, Fuller, and Hester 2008), and, of course, a union that produces the bread and butter— good pay and benefits (Fiorito, Gallagher, and Fukami 1988). The perceived posi- tive impact of the union on compensation, benefits, working conditions, and other valued outcomes is known as “union instrumentality”; it is one of the strongest cor- relates of union commitment (Turnley et al. 2004), along with pro-union attitudes (Fiorito, Gall, and Martinez 2010; see also Bamberger, Kluger, and Souchard 1999).

Are union members more satisfied with their jobs than nonmembers? Research findings are somewhat contradictory (Freeman 1978; Kochan and Baderschneider 1981). During an organizing campaign, the union may attempt to

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garner support by pointing out negative aspects of the job. Once certified, however, it is in the union’s best interest to increase worker satisfaction through collective bargaining and to proudly herald the many benefits won for members of the bar- gaining unit. In other words, happy members keep the union in business (Gordon and Denisi 1995).

b. Management

The initial problem that must be resolved by a jurisdiction becoming involved in union–management relations is developing a satisfactory operational definition of “management.” Public sector management tends to be diffused, subject to political pressures, and conflicted.

Diffused Authority — In government, there are myriad complications in identi- fying and designating management for the purposes of collective bargaining. Power and decision-making authority are divided among the three branches of govern- ment. For instance, human resource management authority is situated within the executive branch, whereas budget authority resides with the legislative body. Both are critical to negotiating outcomes, yet the two functions are seldom coordinated. In addition, budgetary and personnel authority are themselves fragmented among various agencies, departments, and individuals. Further management identification problems are created by overlapping functional responsibilities and jurisdictions among the approximately 89,000 governmental entities in the United States; state and county social service agencies provide one typical example.

Jurisdictional confusion in management authority is compounded by the intergovernmental nature of government revenues. It is highly unusual for a pub- lic jurisdiction to raise all its funds from its own sources. The vast majority of governmental entities draw revenues from a variety of sources, including other governments. The federal grant-in-aid is the prototypical example, in which bil- lions of federal dollars are transferred to state and local governments for various functions. The transfer of dollars is almost always accompanied by “strings” on how those funds may be spent. When the strings are attached to personnel-related expenditures, as they often are, management authority in a very real sense is one level of government removed from making certain personnel-related decisions, thereby obscuring who has human resource management decision-making authority at the bargaining table. Similarly, federal strings on grant spending can affect funding available for employee compensation. Diffused management authority to make decisions concerning labor–management relations frustrates government managers. It presents unions with opportunities for end runs and spawns management conflicts. But legislative or other authoritative specification of precisely “who” is to represent management for purposes of collective bargain- ing and contract administration helps surmount some to the inherent difficulties of diffused authority.

Fundamentals of the Bargaining Process ◾ 105

Multilateral Bargaining — The diffusion of public management authority has been the focus of a considerable body of research, much of it focused on a common outcome of diffusion—multilateral bargaining. Multilateral bargaining is charac- terized by a plethora of direct and indirect participants, official and unofficial, all of whom seek to influence the outcome of negotiations. According to Kochan (1973), multilateral bargaining develops from four factors: (1) goal diversity among man- agement officials, (2) dispersion of management power, (3) open management con- flicts, and (4) union political influence and access to management officials.

Based on his early analysis of negotiations in city governments, Kochan dem- onstrated the variety of professional goals and personal agendas brought by man- agement officials into the bargaining process. Elected officials are most concerned about their constituencies and prospects for reelection, whereas department heads, city managers, budget directors, and human resource directors are driven by dif- ferent considerations. Overt evidence of goal diversity is displayed, for example, when a city council refuses to ratify a proposed contract that has gained union and management bargaining team approval, as the Jacksonville (Florida) City Council did in rejecting five negotiated contracts in 2012. The financial problems faced by states during and after the Great Recession prompted the Minnesota legislature to reject state bargaining contacts, insisting that increased pay and benefit costs were unsustainable (Ragsdale 2012). As a rule, a high degree of goal diversity translates into elevated levels of management conflict during negotiations, characterized by multilateral, multiparty bargaining.

Management Conflict — From a broad perspective, the dispersion of manage- ment power and authority results from the constitutional separation of powers in American government and the precept of checks and balances. Conflict between and within branches of government is an innate part of politics, as is conflict between federal, state, and local governments. The greater the dispersion of author- ity, and the more it is fueled by political and personal agendas, the greater the conflict within the ranks of management.

Open conflicts are especially inimical to effective management negotiations. Such conflicts often develop and fester when unresolved personal and profes- sional frictions and controversies spill over into the collective bargaining process. Kochan (1973: 25) provides the following example from a dispute over police and firefighter salary parity (wage equalization):

Clear and open disagreement among management officials existed on what the city’s position should be on this issue. The city personnel director, who was acting as chief negotiator, vigorously opposed it. The mayor did not take a position at the outset of the dispute but ended up arguing in support of it. The city council was rather evenly divided on the issue. Finally, there were two civil service types of bodies involved in the dispute and one opposed parity and one supported it.

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A predictable result of this open conflict was an impasse over the parity issue. Hearings were conducted by one civil service commission, the council passed vari- ous resolutions in response to the impasse, and the second civil service body sought court action. A 3-day strike prompted a final settlement.

Kochan (1975) developed a model of management conflict and multilateral bargaining through an analysis of city government. According to the model, goal incompatibility among management officials and the extent to which decision- making authority is dispersed determine the level of internal management conflict, which in turn determines the extent of multilateral bargaining. Union negotiating and political tactics such as end runs can expand the scope of conflict and mul- tilateral bargaining. That management conflicts will exist during the bargaining process is a given. The important policy question is how to resolve them so that management effectiveness is not diminished.

Specification and Centralization of Management Bargaining Authority — The initial response of most jurisdictions to unionization and collective bargaining has been to superimpose the new bargaining responsibility over the existing orga- nizational structure (Burton 1972). Thus, management attempts to utilize exist- ing expertise and personnel while maintaining prevailing authority relationships. However, the time-consuming nature of bargaining and the typical dearth of labor relations expertise among existing staff intensify the dispersion of management authority, heighten conflict, and create an altogether unstable and unfavorable situ- ation for management.

It is usually effective to concentrate authority in the executive branch when coordinating and conducting collective negotiations. Typically, organization for collective bargaining is centralized within the executive branch (especially in those jurisdictions that are large and/or have comprehensive bargaining units) within a labor relations office or agency. Full-time specialists may be appointed as chief management negotiators. The ideal situation, according to labor relations experts, is to specify clearly in statute or administrative regulations exactly where management responsibility for collective bargaining is located. Most comprehensive bargaining states have done this. Nonetheless, bargaining remains inescapably multilateral. Internal management cohesiveness may improve, but multiple external actors, such as legislative bodies and interest groups, remain actively engaged.

Management Bargaining Responsibility in the Three Levels of Govern ment — There is no conventional model of management representation for collective bargaining in government. The actors and their roles vary greatly among jurisdic- tions and levels of government.

Federal government: In federal employment, collective bargaining is essentially an individual agency’s responsibility subject to the provisions of the Civil Service Reform Act and the oversight of the FLR A. (Excepted agencies have their own arrangements, as discussed in Chapter 2.) The national negotiating team normally

Fundamentals of the Bargaining Process ◾ 107

is composed of full-time labor relations specialists appointed by agency heads. In the Social Security Administration, a team of professionals from the Center for Negotiation and Dispute Resolution negotiates agreements with the American Federation of Government Employees. The Congress has no direct involvement in collective bargaining. Overall, the federal system is highly decentralized, with around 4000 bargaining units and a wide variety of bargaining participants.

State government: During the early history of collective bargaining in state government, management negotiating responsibility was frequently added to the duties of existing bodies, such as the state civil service commission or department of labor, or handed over temporarily to designated individuals on a part-time basis. Such arrangements became untenable as bargaining activities expanded. Eventually, most states centralized negotiating responsibility within the executive branch under the ultimate authority of the governor.

Composition of the bargaining teams varies among states, but a general operat- ing principle is to include a chief negotiator with direct responsibility to the governor, a budget or finance officer, a personnel officer, and representatives from the relevant state agencies. As a rule, it is important to include agency representation in negotia- tions. Agency management must live with the contract on a day-to-day basis and thus has a very high and direct stake in the bargaining outcomes. Agency manage- ment should be involved throughout the bargaining process, including in formulat- ing management positions and evaluating the potential impact of union demands on agency budget and personnel. Generally speaking, the larger the bargaining unit conducting negotiations, the greater the extent of agency head involvement.

The role of the state legislature in collective bargaining activities is usually quite limited. Nonetheless, the legislative body has the final legal and budgetary respon- sibility to ensure that negotiated agreements are in tune with the public interest and fiscal limitations. Unacceptable bargaining outcomes may lead to legislative override and renewed negotiations, as they did in 2012 in Minnesota. New Jersey legislators also acted unilaterally and outside the bargaining process to roll back negotiated pension and health-care benefits for some 750,000 state workers and retirees in 2011.

From the management perspective, bargaining proceeds best when the executive and legislative branches are unified on major negotiating issues and resistant to union efforts to win favorable settlements through the end run. Legislative– executive cooperation is attained through early, regular, and meaning- ful communications between legislative leaders and staff, the governor, and the bargaining team on key issues being negotiated, when and how they are resolved, and remaining sources of contention. If the legislative body feels blindsided with the terms of a negotiated contract, it may reject it outright, sending the whole pro- cess back to the table. Similarly, a governor may veto a bargaining settlement that the legislature supports.

Recently, governors have taken an active role in state collective bargain- ing, often assuming personal responsibility for brokering deals with the unions.

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Connecticut Governor Dannel Malloy worked within the collective bargaining process, including participating in all-day discussions, to exact $1.6 billion in union concessions to help balance the troubled state budget in 2011. After an ini- tial deal was spurned by rank-and-file union members, Malloy threatened, cajoled, and argued to convince the state’s 15 unions to sign on to a deal that all parties could live with (Keating 2011b). Governors Rick Snyder (Michigan), Chris Christie (New Jersey), Andrew Cuomo (New York), and Mark Dayton (Ohio) were also deeply involved in negotiations with state workers in 2011–2012.

Approximately 35 states have state labor relations agencies that act as quasi- judicial bodies with administrative and general oversight authority for labor rela- tions. The agencies consist of three to seven members (usually three) appointed by the governor. There may be labor and management representatives and one or more “neutrals,” or all may be neutral members. The Connecticut State Board of Labor Relations consists of three members and two alternates appointed by the governor for a 4-year term; Ohio’s three-member board is appointed by the governor for a term of 6 years. Because the state agency is charged with protecting the rights of both labor and management, it is critical that the appointees be acceptable, cred- ible, and legitimate in the eyes of both parties.

In at least nine of the comprehensive bargaining states, the agencies were cre- ated solely for the purpose of administering and overseeing labor relations. Some states, however, have placed labor relations administrative responsibility within existing entities, such as the state department of labor, the state personnel office, or the civil service commission. Other states have lodged administrative responsibility in existing functional entities, such as the state board of education. The opinion of most labor relations professionals is that the optimum situation is centralization in an entity created expressly for public sector labor relations. This type of arrange- ment encourages professionalism, centralizes executive financial controls, promotes consistent compensation and human resource management policies statewide, and, in general, helps stabilize and rationalize union–management relations.

Although combining public and private sector labor relations functions within an existing agency also offers certain advantages, including reduced administrative costs and the use of existing experienced personnel, public–private sector differ- ences in labor relations are substantial enough to require staff personnel with dis- tinctive backgrounds and training. However, none of the possible organizational arrangements is inherently superior. As Helsby and Tener (1979: 34) explain, “the single most important ingredient appears to be the caliber of the persons selected for and employed by the agencies … the ideal is to combine good law with top quality appointments.”

Local government: As might be expected, local government has the widest vari- ety of management participants in collective bargaining. There are, of course, tens of thousands of municipal, county, town, school district, and other local govern- ments within the United States, and each has its own set of labor relations policies and actors. Some of the actors have expertise in labor relations, but the majority,

Fundamentals of the Bargaining Process ◾ 109

especially those employed in small to medium-sized governments, can hardly be considered labor relations professionals. Consequently, labor law firms are often retained to assist in preparing for and conducting contract negotiations.

Management representation in local government follows a similar centralizing path as that of state government. In some cases, aborted attempts by mayors or council members to negotiate for the city or county led to centralized management responsibility within the executive branch. However, the structure of municipal or county government influences union–management interactions and the locus of management authority. In “strong mayor–council” forms of government, the mayor is the center of gravity and the embodiment of management authority. In “weak mayor” cities, the council may play a significant or even dominant role in labor relations. In the council–manager form of government, primary executive branch authority for labor relations typically resides in the city manager’s office.

Although it is difficult to pinpoint any specific union advantages or disadvan- tages related to city government structure, it would be logical to assume that the council–manager form results in reduced leverage for the unions, primarily because the council tends to remove itself from the bargaining process and the mayor is essentially a figurehead. Moreover, it may be argued that city managers view them- selves as management representatives and therefore are basically disposed to engage union demands and protect management authority. Furthermore, the city manage- ment profession tends to attract individuals who are politically and socially moder- ate to conservative, and not union advocates.

In some council–manager cities, the manager takes on the role of chief negotia- tor; in others, the assistant manager is appointed to that job. Often, both are team members. In large to medium-sized cities (>100,000 population), professional nego- tiators, consultants, city attorneys, and labor relations staff frequently act as man- agement negotiators regardless of government form. In small cities (<100,000), a part-time bargaining team approach has yielded gradually to delegating bargaining responsibility to the city attorney or a labor relations professional. The most com- mon approach appears to be city manager/assistant manager, city attorney, person- nel director, and department head in council–manager cities. In mayor–council forms of government, a chief administrative officer or other representative of the municipal labor relations office (large city) or mayor’s office (small to midsized city) typically is joined on the management team by an attorney, personnel director, department head, and, in some cases, the budget director (Chandler and Judge 1993; Hebdon 2000).

The logic behind the presence of the legal and human resource officers is obvious—they will have to administer the city payroll and benefits, position classi- fication plans, personnel procedures, and the final labor contract, all of which are affected by the outcomes of negotiations. A legal officer or attorney may prove valu- able in assessing important questions of law in the proposed contract. Labor lawyers and other labor relations professionals are increasingly serving as chief city negotia- tors and team members in mayor–council cities. They are particularly likely to sit

110 ◾ Labor Relations in the Public Sector

on negotiating teams in cities with an extensive union presence and history of high levels of strikes and other job actions (Gely and Chandler 1993; Hebdon 2000).

The role of the department head is more nebulous. Department chiefs rarely are directly involved in negotiations, largely because they want to avoid a potentially adversarial relationship with department personnel. The department heads usually participate only insofar as they furnish information to the regular management team, make relevant recommendations, and, in general, serve as observers and advisors. The specialized knowledge and direct interest of department heads in bargaining outcomes argue strongly for some form of participation, even if they merely dispatch their personnel director or assistant to serve as liaison with the bargaining team.

Mayors and members of council rarely sit on the management bargaining team. A deadlock, however, may force their intervention as mediators. And they will eventually have to approve or disapprove the agreement that is submitted to them in their official capacity as elected officials. Where management conflict is at a high level and the local government is highly politicized, however, the mayor and/or individual council members may fall victim either to the “hero syndrome,” by attempting to arrange a settlement personally, or to an end run by a union seeking to circumvent the bargaining team. Such direct involvement may have a political price in the next election. It can be a no-win situation for elected officials. If they take a hard-line stance against the unions, they risk sacrificing union votes in the next election. If they side with the union, fiscally conservative voters will likely cast their votes for another candidate.

During and after the Great Recession, “strong” mayors in midsized to large cities were effectively forced into direct involvement in negotiations. Fiscal crises must be addressed by strong mayors, who must find a means to reduce expenditures to bal- ance the budget. Because the largest proportion of municipal operating budgets are dedicated to wages and benefits, mayoral actions may encounter union opposition. In 2012, the nation’s third largest city, Chicago, witnessed a showdown between Mayor Rahm Emanuel and city workers in which Emanuel ordered work rule changes, layoffs, and other actions unpopular with the unions. Mayoral–union tensions came to a head with a 9-day strike by 26,000 Chicago teachers and school workers. Throughout the crisis, Emanuel was deeply and personally involved in negotiations with leaders of the Chicago Teachers Union, asserting his responsibility to protect the city’s taxpayers and to be their voice (see Davey and Greenhouse 2012; Davey 2012).

For conventional collective bargaining, both management and the unions must designate a chief negotiator. The duties of the chief negotiator are to present one side’s views and, in general, to serve as chief spokesperson. The chief negotiator leads the discussion during caucuses and serves as the main link with other local government (or union) officials. The most valuable attributes of the chief negotiator are personal integrity, patience, stamina, intelligence, strong communication skills, and intimate familiarity with the issues, motives, and pressures in the negotiations. Practice and painstaking preparation are also demanded. Table 4.1 is an interesting exercise for those who think they might want to be a chief negotiator.

Fundamentals of the Bargaining Process ◾ 111 Ta

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s an

d b

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e rs

is te

n t

ab o

u t

se e

k in

g a

cc e

p ta

b le

a n

sw e

rs .

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w g

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d a

re y

o u

a t

si le

n ce

? If

t h

e b

al l

is i

n t

h e

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co u

rt , d

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it b

ac k

. I f

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a re

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a n

sw e

le ar

n t

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ai t

fo r

it . M

an y

p e

o p

le h

av e

d if

fi cu

lt y

d e

al in

g w

it h

s il

e n

ce a

n d

t h

u s

m ay

r e

ve al

m u

ch i

fi ll

in g

w h

at i

s to

t h

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a n

u n

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p ta

b le

v ac

u u

m . A

ls o

, w ai

t p

as t

an a

n sw

e r

to s

e e

w h

at e

ls e

m ay

b e

rt h

co m

in g

Is p

at ie

n ce

a v

ir tu

e o

r an

su e

f o

r yo

u ?

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e p

as sa

g e

o f

ti m

e a

ls o

c an

i m

p ac

t e

xp e

ct at

io n

s. W

ai ti

n g

f o

r th

e r

ig h

t m

o m

e n

t to

p re

ss a

n i

ss u

e ,

m ak

e a

n a

rg u

m e

n t,

p ro

p o

se a

s o

lu ti

o n

, o r

co u

n te

r an

o ff

e r

is a

p ra

ct ic

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s k

il l,

n o

t a

g if

t o

f b

ir th

C an

y o

u f

o ll

o w

a p

la n

? If

i t

is y

o u

r p

la n

t o

r e

la te

a g

ro u

p o

f is

su e

s to

e ac

h o

th e

r, p

ac k

ag e

a p

ro p

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l, o

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k e

a h

ar d

l in

o n

s o

m e

i ss

u e

s an

d a

s o

ft r

e sp

o n

se o

n o

th e

rs , d

e ve

lo p

a p

la n

a n

d i

m p

le m

e n

t it

H o

w e

as il

y d

o y

o u

r b

u tt

o n

s g

e t

p u

sh e

d ?

Le ar

n y

o u

r h

o t

b u

tt o

n s.

W o

rk o

n i

n te

rn al

iz in

g t

h e

e xp

re ss

io n

, “ It

a in

’t a

b o

u t

yo u

!” I

f yo

u f

e e

l th

fa m

il ia

r ti

n g

le i

n y

o u

r g

u t

o r

w ar

m i

n t

h e

f ac

e (

o r

h o

w e

ve r

yo u

g e

t w

h e

n y

o u

a re

g e

tt in

g u

p se

t) ,

g e

t o

u t

o f

th e

r o

o m

a n

d g

e t

co n

tr o

l o

f yo

u rs

e lf

. C o

n ve

rs e

ly , i

f yo

u h

av e

a r

e as

o n

t o

d e

m o

n st

ra te

e m

o ti

o n

( u

su al

ly o

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ag e

a t

th e

o th

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p e

rs o

n ’s

s h

e e

r au

d ac

it y

to m

ak e

s u

ch s

il ly

d e

m an

d s)

, m

ak e

s u

re i

t is

c ar

e fu

ll y

p la

n n

e d

a n

d s

ta g

e d

. I f

yo u

a re

r e

al ly

t ic

k e

d o

ff , s

ta y

aw ay

f ro

m t

h e

t ab

u n

ti l

yo u

g e

t o

ve r

it . R

e m

b e

r, “

It a

in ’t

a b

o u

t yo

u .”

C an

y o

u s

p e

n d

a m

o n

se tt

in g

u p

a d

e al

? I

am n

o t

ta lk

in g

s o

m u

ch a

b o

u t

p at

ie n

ce h

e re

a s

sy st

e m

at ic

al ly

la yi

n g

t h

e g

ro u

n d

w o

rk p

ie ce

b y

p ie

to m

ak e

a d

e al

a tt

ra ct

iv e

a t

a p

o in

t in

t im

e . L

o ts

o f

is su

e s

g e

t p

u t

o n

t h

e t

ab le

a t

th e

s am

e t

im e

. T h

o n

e s

yo u

p u

t th

e re

s h

o u

ld e

ac h

b e

a p

ar t

o f

an o

rc h

e st

ra te

d e

ff o

rt t

o a

d va

n ce

a n

u m

b e

r o

f p

o te

n ti

d e

al s.

Y o

u c

an n

o t

b e

t au

g h

t th

is . Y

o u

h av

e t

o s

e t

it u

p b

as e

d o

n y

o u

r se

n se

o f

ti m

in g

, r e

ad in

e ss

, e tc

(C o n ti n u ed

)

112 ◾ Labor Relations in the Public Sector Ta

b le

4 .1

( C

o n ti

n u ed

) D

o Y

o u H

av e

W h

at I

t Ta

ke s

to B

e a

C h ie

f N

eg o ti

at o r?

C an

y o

u l

e t

so m

e o

n e

ls e

d o

y o

u r

ta lk

in g

f o

r yo

u ?

T h

e re

a re

i ss

u e

s an

d t

im e

s w

h e

n i

t is

b e

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r fo

r yo

u n

o t

to d

o t

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t al

k in

g o

n a

n i

ss u

e u

n ti

l yo

u a

re ad

y. T

h at

i s

n o

t to

s ay

t h

e m

at te

r is

n o

t d

is cu

ss e

d , b

u t

yo u

h av

e m

ad e

a c

o n

sc io

u s

d e

ci si

o n

t o

av e

a t

e am

m e

m b

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ta k

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h e

i ss

u e

t o

a c

e rt

ai n

p o

in t

b e

fo re

y o

u w

e ig

h i

n . T

h is

w o

rk s

w e

ll i

n a

u m

b e

r o

f si

tu at

io n

s, b

u t

th e

o n

e m

o st

c it

e d

i s

“g o

o d

c o

p –b

ad c

o p

.”

C an

y o

u l

e t

a m

e m

b e

r o

f yo

u r

te am

m ak

e a

is ta

k e

w it

h o

u t

co rr

e ct

in g

i t?

T h

e re

i s

al w

ay s

ti m

e t

o fi

x an

e rr

o r.

I n

te rr

u p

ti n

g a

t e

am m

e m

b e

r yo

u h

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c h

ar g

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w it

h c

ar ry

in g

i ss

u e

m ay

d e

m o

n st

ra te

l ac

k o

f co

n fi

d e

n ce

t o

t h

e o

th e

r si

d e

o f

th e

t ab

le . T

h e

re i

s n

co m

m it

m e

n t

u n

ti l

yo u

, a s

ch ie

f, m

ak e

o n

e , s

o d

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o t

b e

e ag

e r

to r

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t. T

h e

re m

ay b

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h in

g s

le ar

n i

n y

o u

r co

u n

te rp

ar t’s

r e

ac ti

o n

o r

la ck

t h

e re

o f.

C an

y o

u s

u ff

e r

a fo

o l?

Y o

u w

il l

h av

e v

ir tu

al ly

n o

c o

n tr

o l

o ve

r w

h o

s it

s o

n t

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o th

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si d

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f th

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o o

d n

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o ti

at o

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lo p

s a

b e

h av

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o r

tw o

t o

u se

w h

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n fr

o n

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w it

h a

v ar

ie ty

o f

d if

fi cu

lt -t

o -s

to m

ac h

vo ca

te s

fo r

th e

o th

e r

g u

y. I

f yo

u a

re l

u ck

y (a

n d

b e

s u

re t

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re li

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u s

an d

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p ra

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th an

k sg

iv in

g i

f it

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p e

n s)

, y o

u w

il l

g e

t a

co u

n te

rp ar

t ch

ie f

n e

g o

ti at

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t h

at i

s, a

d e

ce n

t p

e rs

o n

t o

e al

w it

h . M

y fa

vo ri

te b

e h

av io

r w

h e

n s

tu ck

w it

h a

f o

o l

o r

ap p

ar e

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m ad

d o

g i

s to

l o

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o n

I k

n o

w i

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r at

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al w

h il

e t

h e

t ir

ad e

f ro

m t

h e

i d

io t

p ro

ce e

d s.

I f

yo u

n e

ve r

u n

d e

rs to

o d

e i

d e

a o

f “ co

p in

g b

e h

av io

r,” s

it ti

n g

fi rs

t se

at a

t a

b ar

g ai

n in

g t

ab le

w il

l b

ri n

g i

t h

o m

e t

o y

o u

D o

y o

u n

e e

d t

o b

vi si

b ly

i n

c o

n tr

o l?

M an

ag e

m e

n t

o w

n s

th e

c o

o k

ie j

ar . T

h e

d e

ci si

o n

t o

d is

p e

n se

c o

o k

ie s

p u

ts t

h e

j ar

h o

ld e

r in

c h

ar g

in a

v e

ry r

e al

w ay

. T h

e n

e e

d t

o a

p p

e ar

i n

c o

n tr

o l

o ft

e n

s ig

n al

s a

la ck

o f

co n

fi d

e n

ce i

n y

o u

r ro

le .

T h

e re

i s

n o

d e

al u

n le

ss y

o u

s ig

n i

t an

d u

n le

ss y

o u

a re

w il

li n

g t

o p

ay f

o r

it .

So u rc

e: R

e p

ri n

te d

w it

h p

e rm

is si

o n

f ro

m G

il so

n , R

.J .,

Fe d

e ra

l b ar

g ai

n in

g p

re p

ar at

io n

: R e

vi e

w in

g a

n e

xp ir

in g

a g

re e

m e

n t.

h tt

p :/

/w w

.f e

d sm

it h

.c o

m . J

u n

e 1

6, 2

01 3.

http://www.fedsmith.com

Fundamentals of the Bargaining Process ◾ 113

Administration of local government labor relations varies among and within states. For example, in public schools, the chief administrative agency may be the state board of education. Alternatively, labor administration may be provided by the superintendents of the individual school districts or where schools are established by municipal, town, or county governments, by their local government’s central labor relations agency. In large cities, there is usually some form of central labor relations office, although often it is exclusively devoted to management interests. The most prominent example of an independent agency is New York City’s Office of Collective Bargaining (OCB), which was created jointly by the city and municipal unions. It is composed of two management representatives appointed by the mayor, two labor representatives appointed by the unions, and three “impartial” members elected by unanimous vote of the city and labor representatives. OCB also includes a Board of Certification and a Board of Collective Bargaining. The former has the task of determining bargaining units and certifying unions; the latter determines the scope of bargaining determinations, issues advisory opinions on city bargaining law, handles grievance arbitration, and helps resolve disputes arising during negotiations.

Some state administrative agencies exercise administrative oversight over labor relations in local governments. Iowa’s PERB, for instance, oversees allegations of prohibited practices, enforces the duty to bargain in good faith, aids in dispute settlement, and determines the appropriate bargaining unit. Although local admin- istrative machinery may exist, those states that have established statewide agencies often exercise overall responsibility for local government labor relations.

2. Role of the Public

The role of the general citizenry in collective bargaining varies by jurisdiction. Public participation in the negotiation process can range from an active and formal role at the bargaining table to simple citizen access to the terms of the negotiated agreement. Public involvement represents, of course, a major point of departure from private sector collective bargaining, where there is no meaningful third-party role for the general public.

Public access to collective bargaining may be either direct or indirect. Direct access provides a formal and legal means of citizen involvement through, for exam- ple, comments on bargaining proposals, public hearings on negotiations, trilateral bargaining with citizens participating in bargaining sessions, citizen observation of open negotiating sessions, or voter referenda on contract settlements or other labor relations issues. Indirect access includes citizen or interest group participation in hearings on the budget, use of court injunctions, lobbying elected officials on behalf of one of the negotiating parties, and opening up informal lines of commu- nication to legislators and other elected officials.

With the call for more accountability and transparency in government, the trend has been toward formal, or direct, access. Public disclosure and open meetings laws expose government policy making to some extent in all states and localities. However,

114 ◾ Labor Relations in the Public Sector

most such laws exempt collective bargaining activities, thus permitting negotiations to be carried out behind closed doors. Also, tides of public distrust and resentment of government in general and “underworked and overpaid” public employees in partic- ular have led to demands for increased citizen oversight of public sector collective bar- gaining. After all, the taxpayer must pay the final costs of the negotiated settlement. Where the perception exists that elected officials have not effectively represented the public’s interest in negotiations, movements for direct citizen involvement may ensue.

Several states have institutionalized a public role in collective bargaining through “sunshine laws.” Eighteen states require some sort of bargaining in the sunshine (i.e., in public). Florida’s collective bargaining law is the strongest, mandating that all negotiations be held in public. Kansas law provides that teacher bargaining be open. California’s statutes for state employees and public schools require initial bar- gaining proposals to be presented at a public hearing and new proposals to be made public within 48 hours; a reasonable period of time must be allowed for the public to become informed and express opinions on all proposals before a new round of negotiations begins. In Montana, Maine, Florida, and Oregon, students in higher education institutions have the right to attend negotiations. In Idaho, the state teachers’ law mandates that minutes of negotiating sessions be made public and that contracts be ratified in open meetings. Sunshine bargaining is optional (both par- ties must agree to it) in Iowa, Massachusetts, New Jersey, and several other states.

Much debate has raged on the pros and cons of bargaining in the sunshine. Advocates of sunshine laws contend that public deliberation on important public policy issues promotes citizen understanding and confidence in government and makes government more responsive to voter concerns. It deters misappropriation of public funds and conflicts of interest and helps the public become a constructive partner in reaching hard decisions on difficult problems. It is also believed to help moderate union demands by subjecting them to formal public and media scrutiny.

Public management, union leaders, elected officials, and professional labor nego- tiators are all quick to point out the disadvantages of bargaining in the sunshine. Open negotiations are time consuming and may promote rancorous conflict and stalemates, thus destroying productive working relationships. The presence of the media may encourage “bargaining through the press” and grandstanding instead of constructive bargaining over the issues (Cassidy 1979: 12). The process may “… take on the aspects of a poorly produced drama where emotions upstage good judgment and egos, not issues, get the best lines” (Sherman 1979: 274). Skeptics also assert that sunshine bargaining suffers from inexpert and uninformed reporting in the media and very little citizen interest.

Although the advantages and disadvantages of bargaining in the sunshine have not yet been systematically assessed across the states, it has become apparent par- ticularly from the Florida experience (where substantial majorities of labor and management representatives have supported it) that many of the criticisms have been exaggerated (see West and Feiock 1989). For instance, despite delays caused by the presence of the media and other representatives of the public, the content

Fundamentals of the Bargaining Process ◾ 115

of the vast majority of agreements has not been affected. Moreover, the stringent requirements of some of the sunshine laws may be circumvented through creative actions. In one state requiring that school board meetings be open, for example, mediators have avoided open meetings by carrying out delicate negotiations with a few of the board members at a time or by meeting with the board in executive session over “personnel issues.”

It is clearly consistent with democratic processes for citizens to have a formal third-party role in public sector collective bargaining. Examined judiciously, col- lective bargaining as it is presently conducted in most jurisdictions may or may not be conducive to the best interests of the public. Appointed officials typically control the negotiations; final agreements are usually rubber-stamped by elected represen- tatives. Public participation is sparse and indirect, coming perhaps only in the guise of after-the-fact judgments. Yet, citizens have a fundamental right to hold officials accountable for how their tax dollars are being spent.

There is no one best way to involve the public in collective bargaining. But given the high levels of citizen discontent and distrust in government that have generally prevailed for the past several decades, benefit of the doubt might be given to inclu- sive, sunshine-style experiments. Exclusion of the public builds neither confidence nor trust, and it perpetuates voter ignorance.

IV. Summary and Conclusions Collective bargaining shares common structures and processes in the public and private sectors, but it also differs in many important respects, including the envi- ronment of labor relations, the major actors and their motivations, and some aspects of the process itself.

Unit determination raises a number of important issues in public sector bar- gaining, including criteria with which to determine the unit and its size, fragmen- tation of bargaining units, and the inclusion or exclusion of supervisors. Once the unit is determined, a representation election is held to select the organization that will represent the unit in collective bargaining, or the employer may voluntarily recognize the union upon a showing of majority support. The victor is certified as exclusive representative of the bargaining unit.

The next step is negotiation of the contract. The union leader and designated management representatives play the starring roles. It is difficult, however, to identify “management” in the public sector because of the large number of inter- ested parties who participate directly or indirectly in multilateral bargaining. This is reflected in the wide compositional variety of management bargaining teams within and among the three levels of government. Public concern with some of the less edifying aspects of bargaining has led to increased interest in sunshine bargaining and the institutionalization of a public voice in collective bargaining.

116 ◾ Labor Relations in the Public Sector

The collective bargaining process in government is highly politicized, with politics pervading behavior at the bargaining table and suffusing the labor relations environ- ment. Collective bargaining has been compared to a Shakespearian play, complete with actors, roles, and script. The ending of the play, however, is not predetermined. It depends on the bargaining power of the parties, how they play the game, and whether the bargaining is primarily about “getting to yes” or just getting the best of the other side. Bargaining outcomes also depend on the effectiveness of public employee unions as interest groups engaged in lobbying, electoral activities, and public opinion making.

Case Study 4.1 Whose Union Is It?*

INTRODUCTION Simon looked down at the stack of petitions on his desk. Union members were reacting with their signatures to rumors they had heard regarding the layoff of 500 workers among five large bargaining units totaling 2500 members. They were call- ing for the ouster of the current union president and all union stewards. A membership survey (see Table 4.2), conducted by union leaders to determine the preferred bargaining path for the union, had produced results that the union leadership did not concur with. Out of five possible scenarios, the largest majority of respondents had indicated that Scenario 4 was pre- ferred, yet the union was negotiating for Scenario 5.

Simon, a union steward for Bargaining Unit #4 (500 mem- bers) in the state Department of Transportation (DOT) for 15 years, was not accustomed to feeling uneasy with the posture of the union he represented. But this one made him wonder.

CleaNINg Up The STaTe BUDgeT CRISIS The latest budgetary crisis in state government had caused the governor once again to request concessions from all state employee unions. The concessions took the form of an increase in the length of the work week from 37½ to 40 hours with a corresponding increase in pay. The increased work week was meant to calm state residents, who viewed state workers as underworked and overpaid and who wanted massive layoffs to reduce their personal state income taxes. Because the bud- get supporting the state workers’ salaries was not to increase, the extension to 40 hours per week would result in layoffs

* Adapted from a case study submitted to the author by University of Connecticut MPA student Kim Trella.

Fundamentals of the Bargaining Process ◾ 117

in every union and bargaining unit, including an estimated 100 in Simon’s.

Workers in the union who had been with the state for more than 10 years had a nice pension built up, full medical ben- efits upon retirement, and job security. They were not eager to work an extra 2½ hours a week, even with additional pay. Ernie Banks, with the DOT for 19 years, made it his business to know how his share of the pie would be affected. And he did not like what he saw.

Table 4.2 Union Survey

Please indicate which scenarios are acceptable or not acceptable to you regarding a 40-hour work week. The current work week is 37.5 hours. Please mark each scenario

Scenario 1—The contract provides for no general wage increase for 5 years, skips the payment of one annual increment, makes no guarantee to avoid layoffs, and institutes a 40-hour work week phased in with pay

– Acceptable – Not Acceptable

Scenario 2—The contract provides for three 2% general wage increases in January of the last 3 years of a 5-year period, skips the payment of one annual increment and delays the payment of the other annual increments for 5 months, makes no guarantee to avoid layoffs, and institutes a 40-hour work week phased in with pay

– Acceptable – Not Acceptable

Scenario 3—The contract provides for general wage increases that keep pace with inflation, pays annual increment on time, makes no guarantee to avoid layoffs, and does not institute a 40-hour work week

– Acceptable – Not Acceptable

Scenario 4—The contract provides for no general wage increases, pays annual increment and lump sum payments on time, makes a guarantee of no layoffs for general and special transportation fund employees, and institutes a 40-hour work week with pay

– Acceptable – Not Acceptable

Scenario 5—The contract provides for general wage increases that exceed inflation, pays annual increments on time, institutes a 40-hour work week with pay, and results in 500 P4 bargaining unit employees being laid off

– Acceptable – Not Acceptable

118 ◾ Labor Relations in the Public Sector

“Simon, Ernie here, just wondering about the union’s stand regarding the 40-hour work week proposal. We’re not going to work longer hours, are we?” “Well, Ernie, you know I’m always out to protect our interests. What do you think about it?” “Don’t like it. I’m getting ready to start thinking about retirement. The last thing I need to do is work longer hours. You keep on protecting our rights, okay, buddy?”

Simon swallowed hard as he hung up the phone. The “good” days in state government were over. Every year now, it was how much will you give up. Three years with no increases and now an addition of 2½ hours per week. But the message was not getting to the older union members. They wanted to hold on to an era gone by, when unions got much of what they asked for.

Ernie knew the leaders in the union. He called the presi- dent, negotiators, and steward by their first names. And he let each of them know that he expected his union to protect his rights earned through 19 years of state service.

UNION RepReSeNTS MaNy FaCeS Brenda McGuire worked as an entry-level engineer at DOT. She got the position right out of college, and although the wages were lower than those in the private sector, she opted for the job security of working for the state. After 2 years, she felt fairly comfortable performing her duties and understood how the state government functioned. She was happy to have a steady job.

Jason Steel, Brenda’s coworker, stopped her on the way to a meeting.

“Did you hear about the layoffs?” Brenda bristled, “No, what have you heard?” “The older union members are selling us out. The union won’t agree to reduce wage increases to compensate for the 40-hour work week, so the governor is going to order layoffs. Anyone with under three years of service has no seniority.” Brenda thought of her daughter who had just started private preschool. That would have to stop with no job. “Well, what can we do?”

Fundamentals of the Bargaining Process ◾ 119

“There’s a meeting right after work to discuss the options for the younger members of our union. Seems there are a lot of us who don’t believe the union represents us. We’re pretty certain that we younger members represent the majority. There’s talk that we may try to get rid of Evans and all of the union officials. Maybe you should attend.”

[DOT Commissioner’s Office]

“There’s a message here from three of the field supervisors. They’re wondering why the union has agreed to layoffs. Each of them has field staff with fewer than three years’ experience with the depart- ment. They are concerned that they will not meet their deadlines or fulfill their other management responsibilities if they lose staff. All would like a return call from you.”

Commissioner Smith was not certain how to proceed. He had major projects with funding that were going to suffer seri- ous delays if the layoffs went through. That would reflect badly on his executive management objectives and he would lose the bonus he had been working toward. He also had people who had worked in the department for more than 20 years who had little sympathy for the “youngsters” who could lose their jobs. He needed their experience to make the projects go.

Smith called Simon, the union steward, to request a meeting.

[Simon’s Office—Phones Ringing]

“That makes 420 against and 80 for. The callers are not appreciating the stance of the union on this one. Saying we don’t care about young families, only the retirement-age workers. Is this really worth it? I heard rumors that they may call for your resignation,” said Samantha Edwards, Simon’s longtime assistant.

Simon sat down heavily. There did not seem to be a way out. Another phone rang.

“Commissioner’s on the phone … wants to come over for a meeting to discuss the options.” “Oh, great.”

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[After-Work Meeting of Bargaining Unit 4 Members]

“I say we get rid of Simon. He is so out of touch with the majority of this bargaining unit. Who does he think he’s representing?” “I need my job. I don’t really want to work more hours, but I need the job. We do what we have to do.” “Can we oust Simon? Will that help our cause? Do we have legal recourse if we see no hope of our views being represented?”

Simon knew the contract inside and out. He had special coverage under the contract that made him the last to go if lay- offs ever went that deep in the agency. They called it superse- niority. He also knew that “incompetence, inefficiency, neglect of duty, or misconduct” were grounds for dismissal.

The contract survey that the union members had filled out had shown that the majority of members opted for Scenario 4, which did not include layoffs. Although this information had not been publicly acknowledged, it had somehow found its way back to the membership. In fact, the union had decided to opt for Scenario 5 because they thought they would end up in a better bargaining position by asking for as much as possible and then, perhaps later, conceding on some points. The union’s plan, however, had backfired. Now they faced a membership who sought retribution for not having their wishes followed.

[Simon’s Office]

“Commissioner Smith is here.”

Simon got up to present his plan.

DISCUSSION QUeSTIONS 1. What are the main issues in this case study? 2. If you were union steward Simon, how would you

proceed? 3. Are layoffs preferable to givebacks in this situation? 4. Would the ouster of the union president and stewards help

the younger union members? 5. What are the possible outcomes of this situation?

121

Chapter 5

Process and Politics of Public Sector Collective Bargaining

I. Introduction Collective bargaining in the private sector is about profits, products, labor markets, and productivity—in short, economics. In government, politics, not profits or prices, is paramount, within an environment composed of a rich variety of interests with clashing views and values. The outputs of the bargaining process in government—decisions rendered concerning staffing levels, compensation, and the allocation of tax dollars— are produced in this often chaotic milieu. The direct participants are clearly political players, locked in a political contest with high stakes for both the players and the public.

II. Internal Process and Politics Collective bargaining is both a relationship and a process. It involves both formal and informal relationships that continue over time between labor and management with the purpose of jointly determining wages and other terms and conditions of employment. The process embraces activities that include identifying proposals, preparing for bargaining, negotiating an agreement specifying the terms and condi- tions of employment for a fixed period of time, and administering the agreement on a day-to-day basis. (Contract administration is discussed at length in Chapter 10.) The formal collective bargaining process prevailing in most jurisdictions is discussed in the following sections.

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A. Identifying Proposals Both sides in the bargaining process anxiously anticipate the receipt of propos- als that either alter the existing agreement or identify new issues in the collective bargaining relationship. Initial agreements are particularly difficult because they represent the first attempt by the concerned parties to significantly change preexi- sting processes used to solve problems and determine the terms and conditions of employment. Today, most contract bargaining involves parties who have already negotiated one or more formal agreements.

As proposals are being readied on both sides, decisions must be made as to how to package them and sort out the more important from the less important. A “bar- gaining book” or spreadsheet can cross-reference contract clauses and provide the history and meaning of contract terminology and clauses. Negotiators bring their teams together to help them make these strategic determinations and to talk about readiness and strategy. There are a lot of “what if ” scenarios to ponder. A division of labor is made in terms of contract sections and language. One or two team members may be assigned to watch the interpersonal dynamics, body language, and facial expressions on the other side of the table. The customary principle is to have a single spokesperson for each team.

How are subjects for negotiation identified? The union will have a standing list of issues, many of them arising from difficulties with the existing contract. Some issues may arise from a reexamination of compromises made during past negotia- tions that are no longer satisfactory because relevant facts have changed. Other union demands may resurrect objectives not realized in past contracts but that are still important to the labor organization. The union holds membership meetings in which its rank and file can raise new issues or provide guidance that limits the chief nego- tiator’s discretion on key matters that might have to be brought back to the mem- bership for discussion. Some unions do a special mailing or survey to solicit input from their members. Others use social media to disseminate and collect points of view. Invariably, certain individual members will insist that a pet problem or concern become part of the bargaining proposals, usually to no avail. In successor agreements, there is typically a series of complaints emerging from grievances that the labor orga- nization lost because present contract language did not support its position before an arbitrator. If the local union is affiliated with a national union, matters that were iden- tified as priorities during the past national meeting may be advanced. The challenge is to pare down the membership’s “wish list” into a package of realistic proposals.

Management brings proposals to the table, too. This may seem obvious, but for years in some jurisdictions the union was the only moving party at the table. Management’s posture was to react to what the union wanted. This has changed. Management understands that there is more to negotiating an agreement than get- ting the state legislature or city council to pay the bill. Contracts cover nearly all human resource (HR) management functions, issues, and operational matters that deeply influence how an organization’s work gets done every day. Managers have

Process and Politics of Public Sector Collective Bargaining ◾ 123

ideas too about how to change the organization to make it run better, but union cooperation may be required. Effective managers are not indifferent to how people feel about their work. Managers do their homework by examining grievance files, the scope and cost of benefits, wage surveys, and practices in other departments or agen- cies. When both management and union come to the table ready, the negotiations process proceeds more efficaciously than if they just stroll in from the golf course.

B. Preparation for Bargaining Preparation is the most critical component of bargaining success. The best prepared party, the one that has done its homework, is usually the one that emerges from negotiations with the balance of its objectives secured. It is an axiom that “table time is showtime, but preparation time is dough time.”

Preparation usually entails the following steps:

1. Establish a bargaining committee and a negotiating team, including a chief spokesperson.

2. Analyze the experience under the previous contract (if any). This process often starts soon after the current agreement is signed. Department heads and supervisors are asked to determine problem areas from the management’s perspective and offer advice on the next contract. Both parties study the grievance records under the old contract, including arbitration awards, and consider the motives, strategies, views, and likely demands of their counter- parts on the opposite team. The union committee solicits and screens issues arising from the membership (see earlier).

3. Analyze wage and benefits data, particularly comparable information from similar jurisdictions and occupational groups. Conduct a wage and benefits survey if necessary. Respond to the other party’s requests for data. The union reviews the employer’s budget and other financial data.

4. Analyze recent legal developments and relevant agreements in other jurisdic- tions for personnel, law, and policy changes.

5. Prioritize demands, and prepare justifications for them. 6. Arrange joint prenegotiation conferences to establish the rules of the game

and determine schedules. Include preliminary discussions on acceptable data, facts, and definitions to be used during negotiations.

7. Make formal presentations of written proposals and demands. 8. Set the bargaining agenda, including which issues will be considered first.

Attempt to resolve simple, noncontroversial matters first to create a cooperative atmosphere. Consider dividing controversial issues into those that are primar- ily economic in their implications and those that are not, and decide whether to take up issues as a package or break them down into smaller decision units.

9. Arrange negotiating sessions. These should normally be held during regular working hours for short (1- to 3-hour) periods of time. They should be held

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at a “neutral” location at the workplace or elsewhere. Provide for separate, private caucus rooms. The minutes of each meeting should be maintained by a neutral secretary and kept by each party as well.

10. Conduct negotiations. Convene caucuses to exchange reactions of members of the bargaining team, reconsider tactics and strategy, and check with supe- riors for guidance and direction.

11. Draft and sign a written agreement. 12. Ask union membership and the legislative branch to ratify the written

agreement.

The reality of the bargaining process is not nearly as orderly and straightforward as these steps imply. The process is highly dynamic, changing in response to the role behavior and personalities of the participants, the actual and perceived bargaining power of the parties, and any number of other tangible and intangible factors that may impinge on negotiations.

Not surprisingly, unions and management increasingly rely on information- based technology. Such technology helps them to develop and respond to proposals, keep historical records and personnel data, analyze the costs of alternative wage and benefit proposals, and compare contracts and data across other jurisdictions. Spreadsheets, database management software, and other decision support systems are utilized to examine and display data. Perhaps some employee organizations of the future will be known as “cyberunions,” which knit together information tech- nology to redefine, reinvent, and reinvigorate themselves (Shostak 2002a).

C. Duty to Bargain All state bargaining laws include the duty of the parties to bargain or meet and confer “in good faith.” In most of these states, the duty to bargain closely approximates that defined for the private sector by the National Labor Relations Act (NLR A). It applies only to mandatory subjects within the scope of bargaining. Permissive subjects may be discussed at the discretion of the parties. Prohibited topics, such as those listed in a management rights clause, may not be enforceable even if they find their way into a written agreement. The NLR A (Section 8) describes the duty to bargain as follows: “The mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment … but such obligation does not compel either party to agree to a proposal or require the making of a concession.”

In essence, the obligation to bargain in good faith, as interpreted by the courts, requires active participation in negotiations with a sincere effort to reach an agree- ment. It is a cooperative state of mind that is embodied in specific standards of behavior. In the public sector, the states that provide for collective bargaining (rather than meet and confer) have adopted statutory standards that closely approx- imate the NLR A’s standards (see Table 5.1).

Process and Politics of Public Sector Collective Bargaining ◾ 125

Once a term or condition is legally inserted in a signed and ratified contract, neither party is obligated to reopen discussion on that term or condition during the life of that contract. Such discussions may ensue, however, if mutually agreed upon.

D. Script In the traditional model of collective bargaining, the procedures and activities are sometimes compared to those of a poker game, complete with bluffs, deceptions, and the luck of the draw. The bargaining process is highly variable across jurisdic- tions, but certain common strategies and informal patterns of behavior are recog- nizable everywhere.

For example, the chief negotiator is normally the only bargaining team member to speak at the table. He or she seeks to keep the other team members under control

Table 5.1 Standards for Bargaining in Good Faith

1. Time limits for commencement of negotiations. Parties must furnish notice of the intent to modify or terminate an existing agreement, usually within at least 60 days of contract expiration.

2. Obligation to provide information. The public employer is required to provide relevant information on any matter within the mandatory scope of bargaining that the employee organization formally requests.

3. Prohibitions against bypassing the bargaining representatives. In an effort to avoid end runs, some jurisdictions prohibit communications between union representatives and any other official who is not a designated management bargaining representative.

4. Requirement that the employer should make no unilateral changes in existing wages, hours, and working conditions while negotiations are under way. (Unilateral implementation is usually permitted for nonmandatory bargaining subjects.)

5. Prohibition against work stoppages during negotiations.

6 Formal procedures to resolve impasses.

7. Duty to manifest the bargaining agreement in writing and to execute it.

8. Prohibition against bad faith bargaining, which exists when one party or both parties simply go through the motions without any real intention of reaching an agreement. Indications of bad faith bargaining include dilatory tactics, failure to offer proposals or counterproposals, or refusal to make concessions on any issue. (The U.S. Congress presents a great example of bad faith bargaining.)

9. Requirement that both parties sign the written, negotiated agreement.

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and restrained from speaking out of turn (unless it is part of the script). Team members strive to keep a “poker face,” uttering a squeal of delight on hearing a generous counteroffer is not recommended. Disagreements among team members are carefully concealed to prevent the opposing team from driving a wedge between them and weakening their overall position. Usually one person on each side acts as a recording secretary, keeping detailed notes of the proceedings. Recording devices are normally forbidden. They can cause problems later if, for example, heated words are exchanged and individuals say things they later regret.

As noted earlier, one member of the team may be assigned the responsibility of observing members of the opposing team, scanning their faces for telling expressions, eye contact, or blinking; listening for voice tone and volume, involuntary sighs, laughs, or other nonverbal language; and observing body language for gestures or other indica- tions of true feelings and reactions. All can convey important messages (Lincoln 2000).

During the initial presentation of demands and proposals, there may be some grandstanding as each side tries to sniff out the resistance points of the other and the strength of feelings on separate issues. During this stage, union leaders in particu- lar sometimes make demands “that exhibit a greater use of imagination than that shown by Fellini or Hitchcock” (Sloane and Witney 1981: 190). A Long Island, New York, police association once demanded “85 concessions, including a gymnasium and swimming pool; 17 paid holidays, including Valentine’s Day and Halloween; and free abortions.” This strategy, sometimes called “blue-skying,” is intended to (1) appease influential members of the union by formalizing their pet demands, (2) allow ample room for later concessions, and (3) raise new issues that may become important in future contract negotiations. As one would expect, management usually takes the full plate of demands with hoots of disbelief or at least with a grain of salt, rejecting some items outright and ignoring others. Serious demands must be justified with documentation, appropriate data, and compelling arguments.

A classic illustration of the “script” in the traditional bargaining model involved negotiations between the New York City Transit Authority and President Mike Quill of the Transport Workers Union (Spero and Capozzola 1973: 108):

Along about May or June every other year, Quill … would summon members of the press to announce the demands of the TWU for justice, the 30-hour week and various other possible—and impossible—goals to be enshrined in the forthcoming contract with the Transit Authority. “Or else,’’ Quill would thunder, “the trains won’t run!” After the rejec- tion of the union’s demands by the Transit Authority and possibly the breaking off of a meeting or two, quiet would descend upon New York for the balance of the summer. In the fall, a series of meetings, usually stormy, would take place, building up to a peak in early December, when someone, usually the TWU leader, would break off negotia- tions. Quill would warn that there would be no transportation for Christmas shoppers unless talks became serious. The Transit Authority

Process and Politics of Public Sector Collective Bargaining ◾ 127

would announce that there was no money to meet the union’s “exorbi- tant” demands. Just in the nick of time a third party would step in, at the request of the Mayor, to mediate the dispute. Shoppers would be saved, the negotiations would begin to build up to a New Year’s climax. Both parties would be summoned to city hall; the mediators would move from the union to the Mayor to the union, building suspense as they went. Finally, a settlement would be announced—usually in time for late television and radio news broadcasts and the morning papers, and Quill would declare that the embattled transit workers had been victorious.

In less dramatic settings, after initial meetings have permitted each party to size up the other and estimate its “true” bargaining position, serious negotiations begin over the substantive issues. The negotiating atmosphere from that point on depends on a number of factors, including the past history of the bargaining relationship and outcomes, the basic attitude of the employer toward unions, macroeconomic factors, the employer’s financial situation, the political environment, and the motivations of management and union representatives. As a general rule, however, as illustrated by the aforementioned example from New York City, as the deadline approaches for completing negotiations the talks take on increasing intensity. The expectations of the parties in “the game” are that if one side moves toward the other on one or more issues the second party will reciprocate. Informal discussions away from the bargain- ing table in a hallway, courtyard, or restroom may be used to privately explore pos- sible avenues toward compromise. All-night bargaining may become necessary. There is nothing like the tedium and discomfort of around-the-clock bargaining to separate the insignificant issues from the truly important ones. Negotiations continue until an agreement is attained or all movement toward a settlement stops and the two parties declare an impasse. In general, for a settlement to be reached both sides must avoid rigid or unrealistic positions and try to remain flexible, while keeping in mind the reciprocal nature of the bargaining relationship (see Tables 5.2 and 5.3).

E. Concession Bargaining Flexibility is usually in short supply when government fiscal problems produce crisis or concession bargaining. Unions, which often have contributed significantly to fis- cal problems through predictable activities designed to drive up wages, expand ben- efits, and maintain jobs, are asked to make givebacks to the employing jurisdiction.

Concession bargaining has always occurred in the private sector during the down cycles of capitalism. The first major experience with it in the public sector came in 1975, as a consequence of New York City’s fiscal collapse (see Maier 1987). Concession bargaining is more commonplace during economic recessions, when- ever state and local fiscal crises erupt and “doomsday budgets” threaten to shred services to the bare minimum. During and after the Great Recession, concession

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Table 5.2 Twenty Bargaining Homilies

1. Know the law and contract provisions.

2. Be sure that you have set clear objectives on every bargaining item and that you understand on what grounds the objectives were established.

3. Do not hurry; practice patience.

4. When in doubt, caucus.

5. Be well prepared with firm data to support clearly identified objectives.

6. Always strive to keep some flexibility in your position—do not get yourself out on a limb.

7. Do not concern yourself only with what the other party says and does— find out why. Remember that economic motivation is not the only explanation for the other party’s conduct and actions.

8. Respect the importance of face-saving for the other party.

9. Constantly be alert to the true intentions of the other party, with respect to not only goals but also priorities.

10. Be a good listener.

11. Build a reputation for being fair but firm.

12. Learn to control your emotions—do not panic. Use emotions as a tool, not an obstacle.

13. Be sure as you make each bargaining move that you know its relationship to all other moves.

14. Measure each move against your objectives.

15. Pay close attention to the wording of every clause negotiated; words and phrases are often the source of grievances. In this situation, a lawyer can be your friend.

16. Remember that collective bargaining is by its very nature part of a larger, more comprehensive process.

17. There is no such thing as having all the pie.

18. Learn to understand people and their personalities; it may pay off during negotiations.

19. Consider the impact of present negotiations on future negotiations.

20. Shake hands all around the room when the agreement is signed.

Source: The author, with the contributions of federal management negotiator John Dodd (interviewed by the author).

Process and Politics of Public Sector Collective Bargaining ◾ 129

Table 5.3 Negotiating Your First Contract: Tips and Tricks for Management

1. Do not forget your basic logistical requirements. You will need laptop computers, secure Internet access, thumb drives, a printer, memory sticks, an overhead projector, tape, paper, scissors, a copy machine, and maybe even a three-hole punch. Plan ahead.

2. Remember bargaining discipline. Know who will speak for your side. Know and understand the rules for calling a caucus before sitting down at the table.

3. Go for a small agreement early. Agree that the weather is nice, crummy, cloudy, cold, or whatever. The important thing is to obtain a mind-set of agreement. This may sound trivial, but it is important because it works.

4. Once you are bargaining, go for another small agreement early. Select something that neither side cares about. Your goal, once again, is to obtain a mind-set toward agreement.

5. Find out as much as you can about the union’s agenda. Find out as much as possible about potential schisms in the union’s bargaining team.

6. Foster poor discipline on the union team by talking directly to members rather than to their principal spokesperson.

7. Listen to what they say. Explore alternatives. They may want less than you think they do and less than you were willing to give. Go first with your initial proposals, but do not go first with your last best offer.

8. Use interest-based techniques. The union does not care a fig about your position.

9. Be respectful and courteous. Never talk down to the union.

10. Be patient. Negotiating labor agreements is a frustrating endeavor. Often, it is the most patient team that gets the best contract.

11. Do not believe everything that is said, but do not call anyone a liar.

12. Movement is the most important thing. If the parties keep moving toward the goal (a contract), you will eventually get there. Do not allow yourself to get stuck on anything. This can lead to impasse and a general mind-set of futility.

13. Ask the union to explain their proposals. Sometimes they want something that you will be happy to give them, but they do not ask for it in the right way. Properly done, management can end up writing (for better or worse) almost all the language that ends up in the contract.

14. Remember the old school crossing instructions: stop, look, and listen.

Source: The author, with the contributions of federal management negotiator John Dodd (interviewed by the author).

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bargaining became the norm, as fiscally desperate state and local jurisdictions clawed for all available savings. Cities, confronted with various budget gaps, have been known to turn off streetlights; lay off hundreds and thousands of employees; and close libraries, clinics, and even city zoos. Governors have instituted rolling 1-day shutdowns of state governments, during which “nonessential” employees stay home without pay. For essential employees, unpaid workdays are ordered. Public employees in nearly all jurisdictions have begun copaying health-care insurance premiums for themselves and their families and increasing their deductions for prescription drugs and medical procedures. Deals in some jurisdictions will cost future employees pensions and paid health care altogether.

Concession bargaining implies changes in the script. Instead of asking for more, unions must fight to avoid giving back what they have already gotten. Management takes the bargaining initiative, seeking wage and benefit givebacks and changes in work rules. If the union refuses to bend, layoffs are one likely alter- native. Connecticut offers a helpful example of concession bargaining.

Facing a projected state budget deficit of $3.2–$3.5 billion, Democratic Governor Dannel P. Malloy sought to negotiate up to $2 billion in union conces- sions over 2 years. This sum, plus record high tax hikes and substantial program reductions, would move the state budget into balance as required by the constitu- tion. Failing a deal, Malloy threatened to lay off up to 5000 workers across state government (Applebome 2011).

Following 2 months of negotiations, union representatives for 45,000 state employees agreed to $1.6 billion in givebacks from wage freezes, a higher retire- ment age, and other concessions. The union won a guarantee for no layoffs for 4 years and other relatively minor provisions. Tense negotiations had been con- ducted with a cordial tone, exemplifying good faith bargaining.

But when union leaders took the agreement to their 34 bargaining units for ratification, they were shocked by resounding rejections. Malloy stepped back into the fray by threatening 7500 layoffs and drastic spending cuts by shuttering Department of Motor Vehicles offices, courthouses, ferries, and even jails. He then began sending out pink slips.

Union leaders called for new talks. Following tense, marathon bargaining ses- sions, a new agreement was drafted with clearer language but only modest changes and the same $1.6 billion in savings (Keating 2011b). Meanwhile, the coalition of unions met and adopted a simplified voting process that made ratification easier. Once again, the membership voted. This time, only two bargaining units—the Connecticut State Police Union and a Service Employees International Union (SEIU) local representing prison guards—voted in the negative. The contract was adopted, and Malloy laid off 56 state troopers and 23 corrections officers (Phaneuf and Pazniokas 2011).

Concession bargaining poses serious problems for unions. Members react to layoffs and other management concessionary threats with “insecurity, frustra- tion, and strong suspicion” (Craft, Abboushi, and Labovitz 1985: 169). Frustration

Process and Politics of Public Sector Collective Bargaining ◾ 131

mounts as hard-fought gains from past contract negotiations come at risk. Union leaders tend to lose their credibility and control over the rank and file. Combined with low levels of public support, these patterns portend a loss of union power and influence. Future relations with management are more likely to be confrontational and adversarial. Frustrated unions, weakened at the bargaining table, are likely to seek to win objectives outside the bargaining process, through grievances, the courts, and the political arena.

Ironically, a financially weak government employer may flex its muscles and become stronger at the bargaining table. Retrenchment presumes reducing, or at least holding the line on, personnel expenditures, which means reductions in force, wage freezes, rollbacks on pensions and health-care benefits, and similar actions. If the unions are uncooperative, the public employer can act unilaterally in several important ways besides layoffs. For instance, most state bargaining laws provide that financial agreements in labor contracts depend on legislative appropriation of funds, which might not be forthcoming in a fiscal emergency. Also, the U.S. Supreme Court and lower courts have recognized that a state may break a bar- gaining contract in certain cases of financial emergency (Befort 1985: 1243–1251). In a worst-case scenario, local governments can seek bankruptcy protection under Chapter 9 of the Federal Bankruptcy Code and, presumably, break union contracts.

In general, fiscal crises tend to stiffen the backs of public employers, shift public blame to unions, and tip the balance of power in management’s favor. Fortified by support from unhappy taxpayers, public management in fiscally stressed states and localities can successfully limit, and in some cases recover, previous union bargaining gains. In some instances, as shown recently in Tennessee, Wisconsin, and other states, unfriendly governors and legislatures may revoke bargaining rights completely.

III. External Politics In public sector collective bargaining, the intensely political nature of the enter- prise frequently spills over from the bargaining table to the broader environment of labor–management relations and vice versa. Public employee unions are influential and active interest groups whether contract negotiations are taking place or not. As interest groups, they participate in lobbying, campaigning, and other activities typical of organized interests seeking to mold public policy to the benefit of their members. Government unions differ in that they enjoy a special place in the public decision-making process in those jurisdictions where they have gained collective bargaining rights.

Public officials are legally required to recognize and bargain with unions in bargaining jurisdictions, an advantage rarely available to other interest groups. In addition, most labor–management decisions are made in private and beyond the immediate influence of other interest groups that also stake claim to a piece of the public pie. Although public employee unions do enjoy distinct access points not

132 ◾ Labor Relations in the Public Sector

available to other groups, it must be recognized that government employees are vulnerable to counteracting political pressures. They may, for instance, have their jobs taken away from them for participating in an illegal strike, the union may suffer the wrath of the voters in an antiunion referendum, or hostile elected officials may seek to curtail collective bargaining rights. Other interest groups cannot be slapped down so resoundingly when they offend the general public. To lessen their vulnerability and to manipulate levers of power and influence beyond the bargain- ing table, public employee organizations engage in a medley of political activities. This discussion on external politics considers the major political activities of public employees and their unions, specifically lobbying, electoral activities, and efforts to influence public opinion.

A. Lobbying Union lobbying activities assume a variety of forms, including writing letters and e-mails to elected officials; producing blogs and wikis; introducing, preparing, or sponsoring bills; making presentations on proposed legislation at hearings and meetings; providing information to elected officials; and cultivating an ongoing atmosphere of trust and cooperation with elected officials. Lobbying activities may be specific (aimed at a specific objective such as legislative approval of a wage increase) or diffuse (promoting goodwill toward unions among legislators). Before collective bargaining was institutionalized in government, lobbying constituted the preeminent means of political influence for public employee organizations, and for nonbargaining employee associations it still does.

Lobbying efforts are usually directed at members of legislative bodies, because of the legislative role in structuring the legal environment and approving the finan- cial provisions of any negotiated agreement. However, executive branch officials are also targets. Most lobbying activities are concentrated at the same level of gov- ernment, that is, the teacher union focuses on members of the school board, the firefighters lobby the city council and the mayor, and state employees devote their attention to state representatives and the governor. Nonetheless, local government organizations often attempt to influence legislative decisions at the state level when state law controls local terms and conditions of employment or when a more general piece of legislation is of indirect interest to the union. An example of a specific state-controlled policy is a statewide health-care benefits package for teachers or, in the case of firefighters, statewide fire safety standards. General legislation of interest could involve tax increases or taxation and expenditure limitations.

Union interest and active involvement in the legislative process is appropriate and legitimate. Public employee organizations are registered to lobby in most states. Some unions retain full-time professional lobbyists in their state capital and in Washington, D.C. Others employ their own members, particularly when lobbying at the local level. A group of police officers, firefighters, or teachers visiting local representatives usually gets a hearing. After all, they are voters and people of some influence.

Process and Politics of Public Sector Collective Bargaining ◾ 133

When lobbying takes on the look of an end run, certain activities are ques- tioned. There are instances in which elected officials’ concern for their personal political futures has compromised the process of collective bargaining. The end run occurs when employee representatives discuss demands with officials who are not part of the bargaining team. If successful, an end run can result in a union winning from the legislative body what it was denied at the bargaining table. The tactic is inimical and chilling to collective bargaining. It makes future negotiations more problematic and undercuts management authority. In several states, the end run is treated as an unfair labor practice.

As is the case with most interest groups, it is difficult to measure the direct effects of public employee union lobbying. Recent studies, however, have found that politically active teacher unions exert a significant influence on education reform policies (Hartney and Flavin 2011) and that legislators consider them to be highly effective lobbyists (Moe 2006; Hrebenar and Thomas 2004). At the national level, unions in neither government nor industry have been particularly effective over the past three decades. The limited impact of union lobbying activities may be due to a number of factors, including declining private union membership and leveling off of public union membership, hostility on the part of employers and the public, statutory restrictions on union political activities, antiunion bias in the media, ineffective and unimaginative leadership, and the decline of political liber- alism. To these might be added the conflicting philosophies among union leaders and members, the divided partisan political loyalties of members, the myopia of narrow occupational interests, increased competition from other interest groups, and the growing dominance of antiunion corporate interests.

B. Electoral Activities Electoral activities are designed to help elect candidates for public office who are believed to be sympathetic to a union. The relationship clearly is intended to be reciprocal: “We’ll help you win the election if you will support the union.” Union electoral activism is common; indeed, it is expected. Because federal law prohibits direct contributions of union dues to candidates for political office, political action committees (PACs) are used to raise and disburse “voluntary” contributions to candidates. In the 2010 congressional elections, the American Federation of State, County, and Municipal Employees (AFSCME) and SEIU contributed approxi- mately $100 million through PACs to “friendly” congressional candidates, nearly all of whom were Democrats.

In 2012, public employee unions redirected a sizable proportion of their cam- paign contributions from federal candidates to state and local races in an effort to head off passage of laws undermining union bargaining rights (Hananel 2012b). As a consequence of the U.S. Supreme Court’s Citizens United v. FEC decision in 2010, state and federal laws governing union and corporate spending on political activities and elections were effectively rendered invalid, unleashing a flood of PAC and “Super

134 ◾ Labor Relations in the Public Sector

PAC” dollars in the 2010 and 2012 elections. Citizens United also freed unions to use dues money to fund campaign activities to reach out to nonmembers (Greenhouse 2011b). Nonetheless, corporations have billions of dollars to draw upon in contests versus unions, whose own financial resources are much more constrained.

Unions commonly endorse candidates for state, local, or national office. This of course implies that the candidate will be the recipient of the “union vote,” which is usually understood to include each member’s voting age family. If the candidate wins, the union presumably enjoys access and favorable consideration. If, however, the endorsee loses, the union “later finds itself dealing with the victor, who may have a long memory” (Spero and Capozzola 1973: 91). Instead of officially putting the employee organization out on a limb, union officials will sometimes proffer an informal endorsement through public statements support- ing the candidate’s record.

The official or tacit endorsement of a candidate is accompanied by contribu- tions of money, human resources, or both. This may represent the most effec- tive labor tactic in American electoral politics because it is directly related to voter turnout for union-supported candidates. As a member of the firefighters’ union in Hartford, Connecticut, said long ago, “councilmen are interested in two things, the vote and money. We supply both” (Gerhart 1973: 26, 27). In recent years, the National Education Association has supplied enough money to political candidates to rank in the top five of all PACs. PAC contributions from AFSCME, SEIU, the National Association of Letter Carriers, and other large unions have grown tremendously. Human resource contributions include door-to-door canvassing of prospective voters; distributing campaign literature; stuffing envelopes; operating telephone banks; driving union voters to the polls; and developing and maintaining e-mail lists, web posts, and blogs. Such direct aid in some instances produces very tangible returns in future wage and benefits packages and increased agency and departmental expenditures and favorable leg- islation (Gely and Chandler 1995; Hammer and Wazeter 1993; O’Brien 1996). These direct campaign activities are generally considered to be more effective than monetary contribution alone. The American Federation of Labor–Congress of Industrial Organizations has taken candidate support to a new level in New Jersey, where the federation recruits, trains, and supports candidates for state, county, and municipal offices. Candidate training includes a 2-day workshop at Rutgers University, in which they learn about fund-raising, media relations, campaign finance reporting, issue framing, and other elements of an effective race (Pérez-Piña 2010).

Although union electoral activities can help a favored candidate win office and perhaps ensure a sympathetic ear in the legislative body, and research shows that unions help mobilize general voter turnout (Leighley and Nagler 2007), no union or any other interest group can guarantee the delivery of all or even most of the votes. This is especially true at the national level, where the political views of union leaders often differ markedly from those of the rank and file.

Process and Politics of Public Sector Collective Bargaining ◾ 135

Some unions, such as the huge District Council 37 of AFSCME in New York, are potent political forces that can mobilize strong support for union-supported candidates or issues. But union leaders must work hard to politicize, educate, and activate the members. Most count on a dedicated core of union activists for cam- paign activities. District 37 sponsors “campaign courses” and other educational opportunities to entice members into politics and to hone their political skills. Of course, the union also aggressively encourages its members to register and vote on Election Day.

How successful are unions in organizing the vote? Empirical research indicates that union members are more likely to register and vote than nonmembers (Freeman and Medoff 1984: 192, 193). Union households made up 17% of the national electorate in the 2012 elections. Do members vote in accordance with the wishes of their union? More often than not they do, but support varies by jurisdiction and by election. Unions must compete with larger socioeconomic, political, and “value” issues for the voting allegiance of their members. One study found that members who attend union political meetings, read the union newsletter, and otherwise actively participate in their organization are more likely to support the union-endorsed candidate than the less active rank and file (Juravich and Shergold 1988).

Historically, the union vote has strongly favored liberal and Democratic can- didates, although some erosion in this pattern was noted beginning with the 1968 presidential election (Masters and Delaney 1987: 343). From the mid-1990s until today, the congressional strength of the Republican Party has encouraged legis- lative attacks on laws and policies that benefit unions and their members. The Democratic Party continues to be the only potentially friendly political port in a storm, despite regular assertions—occasionally followed up by action—by union leaders that Democratic candidates who are not in the camp of organized labor will not receive union campaign support or votes. Unquestionably, relations between unions and the Democratic Party frayed during the Great Recession and even long- time union supporters in Congress and state legislatures questioned, or in some cases rejected, negotiated wage and benefit awards. Former allies also questioned teacher union resistance to proposed education reforms (Mehta 2012; Rich 2012). It is important to recognize that unions negotiate and play a game of give and take with individual candidates and officeholders more so than with the political party (Dark 2003: 458). A union that is displeased with one candidate may quietly defect to another or strongly endorse a candidate from a different political party. A third- party movement is frequently a topic of discussion among frustrated unionists, but the political reality is that votes for third-party candidates increase the likelihood of Republican electoral victories (Delaney, Fiorito, and Jarley 1999).

The most important question, of course, is whether the union vote makes any difference in public policy; in other words, does the union vote elect national, state, and local officials who support and help secure union political objectives? The answer depends on the time, place, issue, and union, but generally the unions have fought a defensive battle for the past three decades. It also depends on whether

136 ◾ Labor Relations in the Public Sector

the glass appears to be half empty or half full. Unions have counted precious few legislative victories (e.g., occasional hikes in the minimum wage, defeats of school choice, Obamacare), and labor rights have been seriously diluted in some states. But unions have been a major—although usually losing—force in issue advocacy for immigration reforms, trade agreements, and health-care reforms (Francia 2006).

C. Public Opinion Interest groups intend to influence public opinion as well as voting behavior. Some labor organizations directly undertake campaigns specifically designed to affect public opinion on various issues of immediate or long-range concern to the union. Information may be conveyed to the public through press releases, television and radio spots, websites, blogs, informational picketing, rallies and demonstrations, and other techniques. As unions rallied with public demonstrations and building occupations in Wisconsin, Ohio, Indiana, and elsewhere in attempts to stifle unfa- vorable legislation in 2011–2012, emotions—and noise levels—ran high.

AFSCME, for example, engages in a variety of efforts to shape public opinion. Operating through its umbrella organization, the Public Employees Organized to Promote Legislative Equality, AFSCME coordinates its national political activi- ties to influence public opinion on affordable health care, civil rights, social equity issues, collective bargaining rights, and unions themselves. Through these efforts, AFSCME promotes programs as diverse as antipoverty programs, higher minimum wages, immigration reform, pay equity, and consumer and environmental protec- tion. AFSCME, SEIU, and other unions concentrate some of their public opinion initiatives on national “image” advertisements designed to promote the organiza- tion and the union movement in general.

Public approval ratings of unions generally declined during the 1980s and 1990s but experienced modest gains during the early 2000s. But public approval of unions nose-dived to an all-time low of 48% in 2009 before ticking up to 52% in 2011 (see Figure 5.1). Why? Labor critics assert that unions are perceived by more people to be too demanding and stubborn and that their members enjoy wage and benefit levels experienced by few of their private sector counterparts. Unions counter that public support has suffered due to a barrage of advertisements and other messages portray- ing them as being greedy and supplicative. Figure 5.2 shows how public opinion of unions is bifurcated between Democrats and Republicans. About three-fourths of Democratic voters approve of them, compared to just one in four Republicans.

D. Restrictions on Public Employee Political Activity Civil servants have been involved in political activities of one sort or the other since the earliest days of the Republic. In a legal and constitutional system characterized by multiple levels of legislative, executive, and judicial decision-making authority at three levels of government, government workers and their unions will always have

Process and Politics of Public Sector Collective Bargaining ◾ 137

strong incentives to exploit various access points. Collective bargaining, legislative politics, and litigation are not mutually exclusive processes.

Given the pervasive presence of politics in government labor–management relations, a salient issue arises: Should political activity by public employees be restricted? If so, how? As observed in Chapter 3, court interpretations of the First Amendment have narrowed union activities with regard to political expenses

2012

Year

A pp

ro va

l p er

ce nt

ag e

1936 1953 1961 1967 1981 1997 2003 2007 2011

Approve

Disapprove

Figure 5.1 Gallup poll: Do you approve or disapprove of labor unions? (From Jones, J., In U.S., Labor Union Approval Steady at 52%. http://www.gallup.com/ poll/157025/labor-union-approval-steady.aspx. August 31, 2012.)

0 1999 2002 2005 2008 2011 2012

Year

A pp

ro va

l p er

ce nt

ag e

Democrats

Independents

Republicans

Figure 5.2 Approval level of labor unions, by political party. (From Jones, J., In U.S., Labor Union Approval Steady at 52%. http://www.gallup.com/poll/157025/ labor-union-approval-steady.aspx. August 31, 2012.)

138 ◾ Labor Relations in the Public Sector

paid with dues from nonmembers who are in the bargaining unit; this weakens union speech. So does recent state legislation to prohibit automatic deduction of union dues from government paychecks. Another limitation on political activity is through statute. The first national statutory limitations on union political activi- ties were included in the Pendleton Act of 1883. In 1939, the Hatch Act further restricted federal employee activities; it was extended to state and local government workers paid with federal dollars in 1940. Thereafter, most states and many local governments enacted their own “little Hatch acts” to apply to nonfederally funded employees. The laws taken together are highly diverse. Some prohibit all electoral activities except voting; others permit public employees to run for office. Most restrict partisan political activities, reflecting their origins in the reform struggle against the patronage and spoils systems. All constrain union members’ political activities in one or more ways.

Hatch Act–like restrictions have been eased through legislative actions and court decisions. Although the constitutionality of the Hatch Act has been upheld by the U.S. Supreme Court (United States Civil Service Commission v. Letter Carriers [1973]), it is generally ignored, on the whole, by both public workers and their employers, with some exceptions.

Unions would like to abolish virtually all restraints on political activities by public employees. Federal employee unions lobbied successfully for Congress to pass and President Clinton to sign an overhaul of the federal Hatch Act in 1993. The amendment permits most federal employees to engage in political activities that were previously prohibited, including distributing partisan campaign literature, working for partisan candidates and campaigns, soliciting votes, and holding office in political parties. Pressure for similar laws at state and local levels continues, with varying degrees of success. But it is difficult to justify denying public workers the fundamental constitutional rights enjoyed by their counterparts in the private sector.

IV. Internal Bargaining Processes: From Traditional to Interest-Based Bargaining

As union and management representatives come to the table, bringing issues important to them with respect to the current contract and the agreement that is about to be negotiated, they are intent on improving or eliminating old vocabulary and creating new language for the future. A reshaping of both a document and a relationship unfolds.

The union usually submits and explains its proposals first. An opening state- ment sounds the theme for this round of negotiations and reminds management how dedicated, hardworking, and long-suffering these employees have been. Management follows the union by making its own statement, usually indicating the employer’s deep concern for the agency it represents, pointing out its regard for its loyal and dedicated workers, but stressing its sacred duty to protect the interests

Process and Politics of Public Sector Collective Bargaining ◾ 139

of the general public. Management is clear about its willingness to find ways to help solve problems and then customarily reminds the union of various limitations that make it difficult to accommodate all of the union’s demands, particularly those of a financial nature. There are countless possible responses from the union to manage- ment’s statement, but the most common may be that it is not a problem of ability to pay, but rather willingness to pay, for the union’s demands.

The opening statements, and responses, are meant to apprise each side as to what the other wants or does not want. In a sense, during this initial session each party is reminding the other that it has equal standing in the process and that it must be treated with respect. Much of what is said is expected, but it is not unusual to hear things that are quite unanticipated. This introductory period also signals the tone the negotiations might take, and teams begin the bonding process as the real bargaining is soon to commence. Both sides pledge to work in good faith.

This is all part of the opening dance ritualistically performed by the parties. Nonetheless, serious messages get delivered and sophisticated negotiators glean important information or suppositions about what to expect in future meetings. The parties watch nonverbal communication quite closely during this time, searching for clues to attitudes on the other side that may be predictive of what is to follow and identifying individuals who may represent problems—or opportunities—in the bargaining process. When the initial exchange is completed, the parties are ready for serious negotiations.

A. Traditional Negotiations* Traditional negotiations fit the stereotype that most people have about collective bargaining. This image represents what Fisher and Ury (1981) characterize as the “hard” approach to bargaining and what Walton and McKersie (1965) refer to as distributive (zero-sum) bargaining. It features (1) looking at participants as adver- saries and wanting to win at all cost, (2) lacking trust of the other side, (3) trying to force the other party to make concessions through sheer use of power, (4) using threats, and (5) seeing issues in dualistic terms (e.g., “right or wrong” and “sensible or irrational”). In terms of collective negotiations, the hard bargaining approach frames the issues using two contested perspectives with only one possible outcome: win or lose.

“Positional” is the word often associated with traditional bargaining. Having a position means having a specific idea on how any differences or problems should be resolved. Many people believe that there is a “right” answer to any question or problem. At the bargaining table, the attachment to a single “correct” concept or solution makes reaching settlements very difficult. The dynamics are such that one side publicly digs into its position and rejects or denigrates the ideas of the other.

* David G. Carnevale made important contributions to the following discussion in an earlier edition of the book. His assistance and insights are greatly appreciated.

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As negotiators become more and more identified with a singular view of the world, they are less able to listen to contrary arguments. A mere difference of opinion can quickly turn into a personal matter. Threats or statements such as “under no circumstances will we ever …” might be made. Obviously, such behavior does not help the parties to reach a settlement and it has a deleterious impact on the rela- tionship between the parties. For example, a management that refuses to negotiate in good faith and demands that the union accept its nonnegotiable positions on all issues (this behavior is known as “Boulwarism”) leaves the union few choices: concede or go to arbitration (or strike). A prisoner’s dilemma is created (Leventoglu and Tarar 2005). However, the parties have to work together once the contract is settled. A party can win the bargaining battle but lose the war.

Fisher and Ury (1981) also describe a “soft” approach to bargaining, which is the opposite of the traditional forceful method but also dysfunctional in the long run. In the soft strategy, negotiators—like the family dog—want to see people as friends or colleagues. They make concessions to show their good faith in wanting to reach an agreement and have a tendency to yield to pressure. They perceive conflict in general as an uncomfortable and unseemly sort of fighting that is to be avoided. Soft strategists do what they can to dodge trouble and are overly willing to make compromises and accommodations to demonstrate their willingness to be collabo- rative. They forget that they have representational responsibilities for one side or the other and that it takes two serious strategies to fashion an agreement that works for both parties.

Avoiding conflict can lead to more problems in the future than directly confronting it when it first needs to be engaged. Collective bargaining is a process that fully recognizes that conflicts in the workplace are natural and that the par- ties need to resolve their differences peacefully and productively. Soft bargaining undermines the process and does damage to the public, public institutions, and public employees. It does not advance either of the major objectives of collective bargaining: to achieve a workable contract and to maintain a productive relation- ship between the parties. In this regard, the soft approach is “lose–lose.” Avoiding conflict may be wise on some occasions. However, as an overall philosophy of bar- gaining it courts disaster.

Traditional or distributive bargaining is adversarial and conflict oriented by nature. As in a game of poker, neither side reveals its hand to the other. It involves deception and bluffing and a number of other games that negotiators play. The desired image is to be tough and clever.

For example, during negotiations between the California State Employees Association and its own staff (union staffs are often unionized and bargain with the leaders of the union), the management team proposed installing time clocks and maintained an apparent seriousness about the issue throughout the negotiations. No manager actually wanted time clocks, but the issue was included in the pack- age so that it could be conceded near the end of bargaining when things were most intense. This was a way of giving the union a win (no time clocks) in exchange for

Process and Politics of Public Sector Collective Bargaining ◾ 141

something that the management really wanted. During the same negotiations, the management’s chief negotiator would deliberately leave on the table at the end of the day some of the notes that were routinely passed between team members. The notes were full of false information. As expected, the union read the notes and spent time developing defenses against management strategies that were in fact nonexis- tent. It is no wonder that trust levels are low in negotiations in which one or both sides are intent on manipulating the other. (The world’s leading experts in negotia- tion drama might be the North Koreans, who have been known to shorten the table legs on the American negotiators’ side and provide the negotiators with low chairs.)

It is difficult under such circumstances to tell what is real and what is an illusion. Rumors are commonplace during negotiations, and they are often personal and negative in terms of individuals and organizations on both sides. It is also common for people to treat colleagues suspiciously if they are on the “wrong side” or appear to be insufficiently loyal to the side they are supposed to support. Information frequently gets distorted, sometimes intentionally. All of these gamesmanship dynamics make it difficult to come to mutual terms in solving problems. Fundamentally, traditional bargaining is adversarial, contentious, and emotionally draining. It does ultimately produce a settlement, but the costs may be destructive to the relationship.

The traditional approach to bargaining is about power, not collaborating for mutual gain. The behavioral characteristics associated with the traditional approach are competition (win–lose and zero-sum assumptions), aggression, resistance, hos- tility, and even bullying (Barrett 1995). It is replete with contentious tactics, includ- ing gamesmanship, “guilt tripping,” irrevocable comments (if–then messages), and threats (Rubin, Pruitt, and Kim 1993). The traditional approach attempts to wear down, seduce, manipulate, threaten, and dominate.

Personal attacks are not unusual, and sarcasm has a central place in the dis- course. For example, during negotiations between the Police Benevolent Associ- ation and New York City’s extraordinarily wealthy Mayor Michael Bloomberg, the union did not hold back from personal attacks. The chief negotiator spoke emo- tionally at a rally and on camera, yelling the following: “We are not asking to be rich like you, Mr. Mayor. All we are asking for is to make our lives better for our families” (Steinhauer 2004). The New York City teachers’ union claimed that the mayor did not want a settlement, just a scapegoat to blame for his failure to improve public education (Greenhouse 2004). Bloomberg’s predecessor, Rudy Giuliani, turned the tables on striking transit workers in 1997, accusing them of crippling the transportation system and delaying emergency services, thus placing the lives of citizens at risk. In Wisconsin, AFSCME Executive Director Marty Beil spewed personal insults on state legislators whose votes he did not like, calling the senate president a “whore” and the speaker of the house and his brother “lightweights,” “crybabies,” and “whiners” (Greenhouse 2011a).

The underlying idea is that “I cannot get what I want unless you don’t get what you want.” This is zero-sum thinking. Every concession is seen as a loss. The prob- lem with these tactics is that much of what is being done appears to be personal

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and threatening. It raises emotions, and any perceived attack generates reciprocal behavior. A spiral of conflict spins as sides form, positions harden even more, commu- nication is impaired, hostility escalates, and threats become issues until the top of the spiral is reached where people want revenge more than a fair and workable contract.

The style and approach of traditional bargaining is rough on the problems and tough on the people (Fisher and Ury 1981). Traditional talks gone awry damage the ongoing working relationship between the parties, disrupt teamwork, lower produc- tivity, and spawn an “us versus them” work climate that is destructive to the creation of high-performance organizations. Everything tends to become personal. During efforts to settle the 2012 Chicago teachers’ strike, Chicago Teachers Union President Karen Lewis and Mayor Rahm Emanuel clearly illustrated the problems of personal- ization. Lewis tagged Emanuel a “bully” and a “liar.” Emanuel was less public with his own thoughts, but he played hardball politics (Davey and Yaccino 2012). Both were described as “biting, pushy, witty, and unwavering” (Spielman 2011).

Contemporary public administration theory and practice are marching in an entirely different direction from the assumptions, values, and practices of tradi- tional bargaining. The principal leadership and management models in government and business today rely a great deal on collaboration and participative decision making at all levels of organizations (Kearney and Hays 1994). Teamwork, reinven- tion, reengineering, quality, benchmarking, learning, and other innovations (and, unfortunately, fads) depend on trust and the use of genuine dialogue to improve performance. How organizations negotiate labor agreements, and their outcomes, both real and intangible, matter greatly in delivering high-quality public services.

B. Interest-Based Bargaining Interest-based bargaining (IBB) is also known as win–win bargaining, integrative bargaining, and principled negotiations. The IBB method is intended to change the operating assumptions of persons who have learned to negotiate in traditional ways using traditional tactics (comparison of the two approaches is presented in Table 5.4).

Table 5.4 Comparison of Traditional and IBB Principles

Traditional Interest Based

Issues Issues

Positions Interests

Arguments Options

Power and forced compromise Standards and problem solving

Short-term gain Long-term relationship

Win–lose outcome Win–win outcome

Process and Politics of Public Sector Collective Bargaining ◾ 143

It is worth pointing out that win–win may overstate what is possible in many negotiating settings. The term makes it sound as if differences can be resolved with- out costs, but “win–win” ought to be used with care because it is important to keep people’s expectations realistic. The level of expectations in any form of bargaining is an important factor determining how the talks will go. Obviously, parties that expect to get a lot, or perhaps everything that they desire, are usually in for a comeuppance.

“Winning” in IBB means reaching an agreement that both parties can live with. Such an agreement satisfies the interests of both parties and encourages smooth administration once the pact is consummated. The idea that each side can go to the bargaining table and have all its desires met without making some conces- sions or having to engage in give and take is unrealistic and can make the negotia- tions extremely difficult. This is why mediators are cautious about the win–win phrase. Instead, what negotiators and mediators focus on is helping the parties to understand that the real spirit of the win–win philosophy means being assertive about one’s needs and, at the same time, being willing to actively listen to what the other party wants. The idea is that agreements are produced more efficiently and equitably if the interests of both sides are taken into account. Another underlying aspect of the win–win philosophy is that there are many ways to solve problems if people will work together. Interest-based negotiation is not a soft approach, in which people have to like each other and bend over backward to make concessions. It is, instead, a method to get a tough job done in a way that settles the immediate problems and sets conditions for improved future working relationships. It is meant to be efficient and fair to both sides.

The principles of IBB are as follows:

1. Negotiate on the merits of a proposal; do not reject it out of hand because someone from the other side suggested it.

2. Separate the people from the problem, which means “do not shoot the mes- senger” and do not blame someone from the other side for doing his or her job.

3. Be hard on the problem and professional with the people; avoid assigning blame and recognize the value of face-saving.

4. Determine the interests of the other side instead of just reacting to their posi- tions; understanding the overall interests helps to open up more options for solving problems.

5. Avoid fighting issue by issue, position by position, from an adversarial pos- ture; when called for, consider using a facilitator to help generate dialogue and to mediate.

6. Invent options for mutual gain; brainstorm to identify a range of possible options that reconcile differences and advance shared interests.

7. Have someone chart the ideas that are brainstormed by the groups in the room, and then post the charts on the walls so that there is one set of data that is public and available to all; type up the charts each evening, and give them to the parties the next morning so that everyone is working from the same set of notes.

144 ◾ Labor Relations in the Public Sector

8. Establish criteria upon which a proposal may be judged on the merits, and have the parties determine whether any idea satisfies the interests and criteria of both parties; these become likely candidates for inclusion in the contract (Fisher and Ury 1981).

9. Develop a best alternative to a negotiated agreement (BATNA) that you can live with.

An example would be helpful. In one state the parties knew from the outset that they would have a good deal of difficulty in getting a contract, so they asked for two labor facilitators (mediators) to help them with this new process called IBB. Before the mediators agreed to facilitate an entire agreement, they put the workers and management through IBB training. The parties were told to pick a real prob- lem, one that was a problem in the relationship that would certainly find its way to the bargaining table and that they had not been able to resolve. They chose a problem involving welders. After some very basic training in IBB, the parties were broken into groups and about 40 people went into brainstorming on how to fix the problem. This is a well-tested technique for inventing options for mutual gain. The groups came up with more than 60 ideas, which were written on a board. The criteria were then established: the solution had to be affordable, it should be legal, it should not lead to any layoffs, it should be ethical, and so on. About a dozen of the ideas fit the criteria. Two or three ideas were especially good and were used to settle the issue. In this particular case, an entire labor agreement was negotiated using the IBB method in slightly more than 1 week.*

It would be nice to think that negotiators move smoothly and enthusiastically to IBB and away from the more pathological aspects of traditional bargaining, but it is not that easy. Individuals have different perceptions of the world. Some are open to changing their cosmology, and others simply are not. Some negotia- tors begin the IBB process but revert to traditional tactics. The actual negotiations experience frequently involves some traditional methods and some IBB techniques. Compromise and give-and-take strategies tend to prevail in any negotiation. Things may proceed smoothly for a while, but eventually someone or something pushes the parties back to where they started—being suspicious, confrontational, and adver- sarial. It is normal. Even the closest family, friendship, or marriage contains some conflict. People forced to address difficult issues do not behave consistently with models. They say and do what they feel is right at the time. It is a challenge for a facilitator to allow venting and regression while gently prodding folks back to the IBB method. Bargaining is real time, and actions and reactions naturally occur. It does the facilitator no good to disallow a discussion because it fits the wrong model or is not timely. It is a sure way to get the facilitator replaced. The process has a way of working itself out in its own way and in its own time. Solid advice for facilitators and mediators is “try not to step on the conversation.”

* David Carnevale contributed to this discussion on IBB.

Process and Politics of Public Sector Collective Bargaining ◾ 145

There are times and places where traditional bargaining is called for because of the comfort zone of the parties, nature of the issues in dispute, intense constituent pressures from the union’s side, or the high level of strain being exerted downward from upper management in a public agency. Some traditionalists like the model they use because it is predictable and they know how to play the game. The idea of a new process like IBB is viewed as risky. Both union and management sides have many of the same fears. There are those who stereotype the other (“unions are destructive and unnecessary” or “managers do not care about employees and can- not be trusted”).

Some negotiating situations are doomed from the start. You cannot bargain successfully with a 2-year-old, a madman, an ideologue, or a fool. If one party is irrational, any agreement (other than to cease negotiations) is extremely unlikely. Perceived fairness and legitimacy of the bargaining process encourages the interper- sonal trust that enables win–win solutions (Leach and Sabatier 2005).

Another barrier to implementing IBB is intraorganizational conflict. Friction, disagreement, or just plain personal animosity may surface within the union team or among union members not part of the team. Similarly, elected and appointed officials may be working counterproductively behind the scenes. Interpersonal and professional conflicts may play a role as well. Many a negotiator has to keep one eye looking across the table and the other on the behavior of people ostensibly on his side. Bargaining teams from both sides rarely have the internal solidarity they seek to project.

Other confounding factors can interfere with getting a good agreement. Negotiation is a dispute resolution mechanism, which means that it is inherently about conflict. There are honest differences of opinion about issues. This helps to explain why some negotiations can be so contentious. There is rarely agreement among a group of people on what it is the organization should be doing or where it should be headed. This manifests itself in the bargaining strategy. People may come to terms with where they would like to go but have differences on how to get there. So, we have disputes on ends and means. People have different values and ideologies and do not let go of them easily. There are personality conflicts. The same “facts” may be viewed in very different ways. People’s perceptions in every aspect of life tend to be self-serving and distorted. We tend to attribute bad motives to people who disappoint us but are quick to blame situational factors beyond our control for our own failings. People do not communicate very effectively. Memories are short, and information gets confused. Perhaps it is accurate to say that people are better at being assertive about their own needs than listening to the other party express its needs.

Traditional bargaining and IBB should be appreciated as methods and tech- niques that are conducted in the thicket of human personalities and emotions that exist at every workplace. Some situations are favorable for IBB, and some are not. Healthy organizations are conducive to IBB; sick ones are usually not. Table 5.5 summarizes the differences in attitudes and behaviors among hard, soft, and principled bargaining.

146 ◾ Labor Relations in the Public Sector

Table 5.5 Contrasting Bargaining Approaches

Soft Bargaining Hard Bargaining Principled Negotiations

Participants are friends. Participants are adversaries.

Participants are problem solvers.

The goal is agreement. The goal is victory. The goal is a wise outcome reached efficiently and amicably.

Make concessions to cultivate the relationship.

Demand concessions as a condition of the relationship.

Separate the people from the problem.

Be soft on the people and on the problem.

Be hard on the people and on the problem.

Be soft on the people but hard on the problem.

Trust others. Distrust others. Trust, but verify.

Change your position easily.

Dig in to your position. Focus on interests not positions.

Make offers. Make threats. Explore interests.

Disclose your bottom line.

Mislead as to your bottom line.

Avoid having a bottom line; have a BATNA instead.

Accept one-sided losses to reach agreement.

Demand one-sided gains as the price of agreement.

Invent options for mutual gain.

Search for the single answer: the one they will accept.

Search for the single answer: the one you will accept.

Develop multiple options; decide on one later.

Insist on agreement. Insist on your position. Insist on using objective criteria.

Try to avoid a contest of will.

Try to win a contest of will.

Try to reach a result based on standards independent of will.

Yield to pressure. Apply pressure. Reason and be open to reason; yield to principle not pressure.

Process and Politics of Public Sector Collective Bargaining ◾ 147

If these factors are not enough, there are a few more that make any successful conclusion to bargaining problematic. First, there is the pressure of time. Bar- gaining may start slowly, but there is normally a legal or other deadline that has to be met if the contract is to be placed before the jurisdiction’s legislative body for ratification. Late-night bargaining against the clock is not uncommon. There is the problem of union ratification. Each member of the bargaining unit gets to vote on whether to accept an agreement or to send their negotiators back to the table. “Soft” negotiators may push their chairs back from the table with the assumption that bar- gaining is essentially a friendly process, but the deals they make will have trouble being ratified because of the perception that they are too weak or “sellouts.” In other words, a dominator-dominated relationship confounds a win–win solution. Another problem, “unresolved prior conflict,” means there will be no new agree- ment until some past issue is resurrected, rectified, and reinterred. Experienced negotiators characterize this as “sin bagging.” Issue after issue may come and go, and the parties may avoid dealing with them. Then, one day an incident breaks the dam and all of the past problems come flooding out at once. This is another example in which problem avoidance today may cause the price of peace to be higher tomorrow.

The prevalence of integrative (win–win) or distributive (traditional win–lose) strategy depends to a great extent on the distance between the union’s objec- tives and those of the employer. A cooperative approach tends to prevail if the two sides are not far apart to begin with. Coercive tactics tend to prevail when a large gap separates bargaining objectives. The gap between the positions of the parties is referred to as the “bargaining zone” (Walton and McKersie 1965). The bargaining zone spans the distance between the resistance points of each party, that is, the point beyond which a strike or impasse will result. Each side tries to determine the resistance point of the other. A negative zone exists if there is a gap between the farthest point of compromise acceptable to each party. For instance, if the union will accept no less than a $2 per hour wage increase and manage- ment is unwilling to agree to a penny more than $1.50, a negative zone exists and impasse is likely. A positive zone is characterized by overlapping resistance points: the union wants no less than $1.75 and management has already decided to grant up to $2. Here, settlement is a foregone conclusion.

The resistance points of the respective parties depend to a large degree on their bargaining power. Power, as defined by Robert Dahl (1957: 203), is the extent to which A can get B to do (or not do) something that B otherwise would not (or would) do. In the words of Chamberlain and Kuhn (1965: 162–190), power “is the ability to secure an agreement on one’s terms.” Power is a product of the resources available to each party with which to influence bargaining outcomes. The resources that may be used include money, votes, political party support, budgetary expertise, negotiating skills, information technology skills, access to the media and elected officials, and potential or actual job actions. In government, power resources are predominantly political. In the private sector, they are primarily economic.

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Collective bargaining is about dealing with differences and constructing a relationship. If it is treated purely as a game or a contest of wills, IBB techniques will be inappropriate. Getting good settlements that the parties can live with is a formidable task given the nature of the processes used, mind-sets of the parties, history and nature of the relationship, psychological nature of human beings, and complexity and difficulty of the issues.

After negotiations are finished and signatures made, certain postnegotiation rituals are performed. Handshakes and congratulations are exchanged around the room. Joint media releases are issued. Printed and electronic copies of the contract are distributed. Union leadership and top management publicly recognize the achievements of the bargaining teams. A deep sense of satisfaction (and relief ) is experienced by all (Oestreich and Whaley 2001: Appendix A1).

V. Ratification of the Contract Two critical steps remain once a contract has been negotiated. First, bargaining unit membership must ratify the contract in a vote, which usually requires a superma- jority, depending on the union’s procedures. Ratification is typically not a problem, but occasionally a vocal faction may work hard to reject the contract or the terms might simply be unacceptable to a majority of the unit membership. Union leader- ship may have overpromised and underdelivered.

The second critical step is ratification by the state legislature or local council. At the state level, a legislative committee may first review the contract and make a recommendation to the entire body. This stage is typically not a problem, either. But legislative rejections have increased recently as budget problems and conservative politics intervene. Connecticut legislators shot down a negotiated pay increase for 27,700 state workers in 2012 out of unhappiness with how employees are paid and because of the costs of health care (Ragsdale 2012). If the contract is rejected at this stage, or the legislature fails to act on it, the terms do not go into effect. Rarely does the legislative body have the legal authority to unilaterally modify the agreement. Instead, negotiations must resume and produce a contract both the union and the elected representatives find acceptable.

Sometimes, union and legislative contract ratification is not the end of the story. There is always the governor, who has the authority to veto legislative approval of contract terms, as Iowa Governor John Culver did in 2008. An aggrieved party can always turn to the courts for relief, although usually without satisfaction if the issues being litigated are a product of a negotiated and signed contract. The courts will likely be more sympathetic to hearing a union complaint that management or the legislature unilaterally changed the terms of an existing contract. For instance, the Florida legislature cut state employee pay by 3% without renegotiating con- tracts. A court held that the law doing so was an “unconstitutional taking of private property” that violated the terms and conditions of employment (Klas 2012).

Process and Politics of Public Sector Collective Bargaining ◾ 149

However, in consideration of the financial problems of Richmond, California, the California Supreme Court ruled that local governments can lay off employees without union consultation or negotiations during conditions of financial exigency (Egelko 2011).

VI. Interest-Based Bargaining’s Potential Collective bargaining mostly follows the traditional model, although IBB is spread- ing to a growing number of jurisdictions. IBB promotes the kind of work climate that is consistent with teamwork. It has the potential to make collective bargaining a strategic asset in organizations because it pushes to the surface numerous prob- lems that management may not know exist. In other words, the bargaining process gives management and employees at all levels an opportunity to talk constructively about mutual problems that can be rectified. Organizational learning and perfor- mance are enhanced. In a broad sense, IBB is part of the trend toward greater employee involvement and participation (Kearney and Hays 1994). It is a type of empowerment and sharing of responsibility. IBB also comports with the growing presence of alternative dispute resolution, which is being used throughout govern- ment and the private sector to help resolve disputes involving family, labor relations, civil relations, commercial interactions, custody disputes, and many others. IBB is similar in process to many organizational development third-party peacemaking and team-building interventions. Further, as public and nonprofit administrators know, the handling of conflict through negotiations is an important part of the day-to-day operation of every public service organization. Negotiations expertise is an important skill at work and in life.

VII. Summary and Conclusions The bargaining process commences with each party communicating its proposals to the other. Many political and psychological considerations are relevant in deter- mining which proposals to make and how to portray them. As in the courtroom, preparation is a critical component of the process. Both parties are bound by law and practice to bargain in good faith.

Government fiscal constraints in many state and local jurisdictions have produced an emphasis on concession bargaining, in which unions are pressed to make financial or work rule givebacks to their employer. Although traditional, zero-sum bargaining remains the norm, a great deal of attention is being given to interest-based, win–win negotiations. The latter approach differs substantially from the former in its assumptions, processes, and potential outcomes. However, it involves significant changes in thought and behavior and naturally provokes resis- tance from parties who want to cling to a more conventional approach.

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Case Study 5.1 Sanitation Workers and the City of Belview, Minnesota—Contract Negotiation

INSTRUCTIONS Two negotiating teams should be formed, each consisting of three to six individuals. The teams should be named before the day of the exercise and given sufficient time to organize and prepare themselves for the negotiations. A leader and a recorder should be elected by each team. The job of the recorder is to record proposals, counterproposals, agreements, and other useful information in a “negotiations ledger.” A lap- top computer may be useful.

The teams should negotiate an agreement, record their final settlement in writing, and calculate the financial costs of the settlement. The length of the negotiations should be 1–3 hours. If one or more items go to arbitration (see later), the instructor or a designated individual should serve as the arbitrator.

BaCkgROUND The Belview Sanitation Department (BSD) has 75 employees. Seventy are members of the bargaining unit, which is repre- sented by the Sanitation Workers of America. The BSD col- lects household and business trash and recyclables twice per week throughout the city limits. It utilizes 20 garbage trucks and 5 vehicles for collecting recycled aluminum cans, paper, glass, and plastics. Three employees work on each garbage truck and two on each recycle vehicle. The rolling stock is get- ting a bit old: the garbage trucks average about 8 years and the other vehicles around 5 years. The technology is somewhat outdated as well. Some nearby jurisdictions, for example, use one- or two-person garbage trucks that collect household trash in large, green “herbie curbies.” This technology requires resi- dents to push their herbie curbies out to the street once per week and then return them to the rear of the house.

During the past two decades, the BSD employees received competitive pay raises and their benefits package compared favorably with those of neighboring jurisdictions. There was an illegal strike to gain union recognition about 20 years ago, but until recently relations between the union and management were good. Then came the Great Recession. Moreover, because of a recent state supreme court ruling, strikes by public employ- ees are now legal, although none has yet occurred. Deadlocked negotiations have gone, instead, to binding arbitration.

Process and Politics of Public Sector Collective Bargaining ◾ 151

The present 2-year contract expires in 3 days. Negotiations have gone nowhere during the past month, but now the parties are prepared to engage in a marathon bargaining session to settle the remaining issues.

INTeReSTS OF The paRTIeS Wages: The union is asking for an increase of $1.25 per

hour for the first year of a new contract and $1 for the second year. Management, preferring a 3-year contract, has countered with an offer to freeze wages for 2 years and provide a raise of 50¢ an hour for the third year. The average hourly rate for sanitation workers is $15 per hour, slightly below the regional average of $15.75.

Health-care benefits: The City of Belview currently pays the full cost of medical insurance for its sanitation workers, currently valued at $300 per month. Approximately 75% of the employees have dependents also covered under the city health insurance program. Under the existing contract, the city pays 50% of the total cost of $400 for dependent coverage, which is $200 per month. The union is asking for full (100%) coverage of dependents. Management has received notice from the preferred provider organizations that the cost of each policy will increase by $50 next year. Management wants employees to copay 25% of their personal health-care insurance and 100% of dependent coverage.

Sick leave: The present contract includes 7 paid sick days. The BSD workers claim that the nature of their work causes them to be ill and injured more frequently than other city employees, and they are asking for 10 paid sick days. Other city employees also have 7 days.

aSSIgNMeNT 1. Negotiate and record your agreement on pay and ben-

efits. If no agreement has been reached on one or more issues when time expires, the disputes will have to be submitted to conventional arbitration. Each party must develop a written defense of its positions and perceived interests.

2. Each party should calculate the costs of the economic items, including the wage increase (at 2080 h/year), health insurance benefits, and sick leave.

3. Reflect on the bargaining approach employed by each team.

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Management roles: (1) Sanitation director: The sanitation director is very pater-

nalistic. Although a strong advocate for the sanitation department, the director is rather antiunion (which is viewed as an indicator of disharmony and distrust). However, the director favors full funding of the family health-care option.

(2) City manager: The city manager wants to keep his or her job (after all, this is a truly wonderful place to live). Pleasing the city council—encouraging economic development while avoiding tax increases—is paramount. Introducing herbie curbies (as long as the change does not cost too much) and controlling escalating health-care costs are of major importance.

(3) HR director: The HR director is an advocate of progressive personnel practices. The HR director opposes changes in sick leave benefits due to cost. Similarly, the HR director is concerned about health-care costs.

Labor roles: (1) Union shop steward: The union head is a truck driver with

over 16 years of experience. He or she favors changes in the vacation system and opposes the proposed retirement changes.

(2) Chief sanitation worker (with 6–10 years of experience): With four young children, he or she is a strong advocate for the family health-care package. The chief sanitation worker is the “spokesperson” for the younger workers and is considering a challenge to the shop steward at the next union election.

(3) Truck driver (with 11–15 years of experience): As a “maxed out” employee, he or she favors the change in pay increases. He or she also does not like the retirement changes proposed by management.

(4) Sanitation worker (with 0–5 years of experience): For this younger worker, pay increases in any form and family health care are important factors.

Should the approach be hard, soft, principled, or a blend?

153

Chapter 6

Financial Impacts of Unions and Collective Bargaining

I. Introduction Most state and local governments intermittently suffer the throes of fiscal crisis. The fiscal problems that can assault governments are legion: inflation, recessions, increased service demands and costs, shifts in population and tax base, declining intergovernmental aid, expensive court orders or settlements, tax and expenditure limits, citizen resistance to tax increases, infrastructure deterioration, burdensome federal mandates, and so on; the list is almost endless. Severe fiscal stress ran ram- pant during the Great Recession and its aftermath as virtually all state and local governments, as well as the federal government, struggled to balance their budgets. Some failed; among them were Jefferson County, Alabama; Central Falls, Rhode Island; and San Bernardino, Stockton, and Mammoth Lakes, California. All filed for bankruptcy protection during 2010–2012. Financial adversity has become a chronic affliction for some state and local governments, particularly those that have been net losers in coping with the challenges of technology and global markets. The major social, economic, and political forces contributing to government fiscal stress show little sign of abatement. Meanwhile, state and local government employment and payroll costs have risen steadily. States employ more than 4.4 million full-time equivalent workers, and local governments employ approximately 12 million. Total state and local payroll costs exceed $70 billion (U.S. Census Bureau 2012).

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The conventional wisdom is that unions, through collective bargaining and various political activities, contribute to state and local fiscal difficulties by inflating payrolls and operating budgets. It is often asserted that the primary impact of public employee unions is to drive up the cost of wages and benefits. Because 40%–70% of the typical local government and school district operating budget is allocated to employee compensation, strong union influence in setting pay and benefits can, indeed, press financially troubled local jurisdictions up against the fiscal wall by achieving monetary gains that they cannot afford. State government payroll costs represent a smaller percentage of the operating budget, but they are also influenced by union pressures for wage and benefit increases. Because government remains a highly labor-intensive enterprise, if unions drive up pay and benefits then they also establish an upward bias on state and local expenditures. In the private sector, a firm may recapture compensation increases through higher prices or improved productivity or absorb them through reduced profits. In government, a wage increase may translate into a tax or fee hike or a service cutback, making choices more constricted, more difficult to make, and more visible to the relevant public.

This chapter assesses the financial impacts of public employee unions. There are two major types of impacts: impacts on the budgetary process and outcomes and impacts on employee wages and benefits. After a description and appraisal of union influences in budgeting, the empirical literature is examined to identify the dollars and cents wage and benefits effects of unionization. Various factors that influence wage and benefits outcomes are discussed, including parity arrangements, prevail- ing pay rules, seniority rules, and comparable worth criteria. The consequences of public sector wage and benefits decisions for government decision makers are considered, along with possible citizen reactions to these decisions. A brief descrip- tion and analysis of gainsharing and productivity bargaining is followed by a look at the financial impacts of federal employee unions and collective bargaining.

The chapter provides no simple, quantitative answer to the question of what are the specific financial impacts of unions and collective bargaining on government. The nature, size, and significance of union effects on budgeting, pay, and benefits are variable, complex, and multifaceted. The major conclusions are that (1) whereas unions have exercised an upward influence on budgeting and compensation outcomes in most jurisdictions, the overall effects have been moderate and not as substantial as the monetary impacts of unions in the private sector and (2) the mag- nitude of the impact varies greatly over time, function, and jurisdiction.

II. Budget Making and Unions The annual (or in some states, biennial) operating budget determines who gets what monies for which purposes. To the extent that budgetary allocations go to public employee compensation, there is that much less money for other expenditure items. For public employees, however, the operating budget determines the size of their

Financial Impacts of Unions and Collective Bargaining ◾ 155

raises; the scope and cost of health insurance; retirement and other benefits; and, in tough economic times, which of them will retain their jobs. Not surprisingly, unions are active participants in the budget-setting process through collective bar- gaining and political activities intended to influence the decisions of elected and appointed officials in the executive and legislative branches.

A. Budgetary Process In the absence of unions, employee compensation is determined almost unilaterally by elected officials and public sector management. In the case of a council–manager form of government, where mayoral power is typically weak, department heads make expenditure recommendations to the city manager, who formulates a budget for consideration by the council. In this highly simplified model, compensation decisions are implemented after the council ratifies the budget.

Public employees have no formal role in determining wages and benefits under this nonbargaining model. Their chief collective influence over compensation levels is limited to statements at budget hearings and informal lobbying of the manager and council as one of a plethora of interest groups in the local political arena. Indirectly, public employees may exercise some collective impact on wages and benefits through electoral support of “friendly” candidates. Acting as individuals, workers may attempt to convince superiors to recommend them for higher pay. Once compensation decisions are rendered, however, public workers must usually accept their pay allocations without recourse.

The situation is not dissimilar for unrepresented state employees, who do exer- cise at least a modest collective voice through their state employees association, which testifies and introduces data before legislative budget committees and sup- ports legislative and executive branch allies through electoral activities. However, individual state employees are largely at the mercy of legislative and gubernatorial decisions and the pay distributions of supervisors.

Public employees enjoy direct formal access to budget making as well as infor- mal channels of influence such as lobbying and campaign and election activities. At the state level, unions negotiate their terms and conditions of employment with a management team representing the executive branch; the legislature typically honors the results by incorporating them into the budget.

The procedural implications of this bilateral (or, one might say, multilateral) arrangement for budgeting can substantially impact the budget timetable. Public employee unions can seriously constrict the ability of budget makers to rationalize, control, and manage the budget. In the absence of collective bargaining, allocations for wage and benefit increases are normally settled well ahead of legislative ratification, guided by department head and budget staff recommendations and anticipated revenues. Under collective bargaining, however, wage and benefit allotments cannot be finalized until contracts are negotiated and signed between the jurisdiction and its various employee organizations. Uncertainty occurs when bargaining is extended

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near or past the legal deadline for having a budget in place. When this happens, the government may have to enact a continuation budget, seek new revenue sources, or take other measures to provide for an undetermined increase in compensation. Unions have been known to take advantage of the situation by deliberately drawing out nego- tiations beyond the budget finalization date in an effort to maximize contract gains.

Most state and local government jurisdictions try to complete all collective bar- gaining contracts expeditiously. But reconciling the budget and bargaining sched- ules is a regular problem. Some jurisdictions have attempted to resolve the problem of coordinating bargaining and budgeting through legislation. For example, col- lective bargaining must begin a specified period of time before budget making in New Hampshire and Massachusetts. Hawaii and Iowa tie the bargaining sched- ule to the fiscal year, and quite a few bargaining jurisdictions declare an impasse automatically if no agreement has been signed by a specified time, and proceed to mediation or arbitration. Various formal and informal venues for legislative con- sultation and participation are also provided in some states, including Minnesota (legislative hearings), Connecticut (formal consultation), and California (legislators may attend and speak at bargaining sessions). Still, late contract settlements are not unusual even in those jurisdictions that attempt to eliminate them through statute.

When jurisdictions are in the early years of a multiyear contract, the bud- get schedule can become derailed because of fiscal shortfalls. This occurred in numerous jurisdictions during the Great Recession as unions were asked to give back negotiated wage and benefit increases to avoid layoffs or furloughs. In some instances, statewide contracts were reopened, with high-stakes budget negotiations being needed to produce new agreements in New York, Pennsylvania. New Jersey, California, and other states.

What kinds of problems do late settlements create? Clearly, there is a certain loss of efficiency. Continuation of bargaining past the final budget date makes the budget process less predictable and controllable for management, and financing late settlements may necessitate shifting of other allocations, enacting supplementary appropriations, or adopting new revenue measures. Layoffs, furloughs, or service cutbacks are also a possibility.

Budget makers anticipating a late settlement may decide to earmark or “hide” dollars in unrelated budget lines or contingency accounts to pay for delayed wage and benefit settlements or to keep in reserve for other financial emergencies. Such hiding behavior is rather common and generally considered to be part of the bargaining game by both parties. Although hiding tactics are successful to varying degrees as a means of coping with late settlements, their utility in holding down union compen- sation gains remains a matter of speculation; unions are certainly not oblivious to the possibility that management has tucked away some resources. Moreover, in this age of transparency public sector managers should consider the possible repercussions of concealing funds in case unions, the media, or citizens discover their actions.

Unions play their own budget games. They may attempt to bring supervisors into their support group by implicitly tying together a pay hike for bargaining unit

Financial Impacts of Unions and Collective Bargaining ◾ 157

members with a salary increase for supervisors. Union spokespersons may seek out the relevant media, soliciting reports and anecdotes supporting the credibility and importance of government programs and how important new dollars are for ser- vice maintenance and improvements. Alliances with client groups help turn up the burner on the legislative body during budget deliberations.

Late contract settlements may or may not cause problems with respect to the financial situation of the government depending on the amount of compensation that is finally agreed on. In some instances, a settlement well beyond the contract expira- tion date can help make a moderate pay increase more acceptable to public employees by reducing rank-and-file expectations. As workers yearn more and more for their lump-sum retroactive checks and increases in weekly paychecks, they tend to become more “realistic” in their expectations. But when late, unanticipated salary increases must be absorbed in an agency’s own predetermined budget, and services may suffer.

Clearly, integration of bargaining and budgeting makes the budgeting process more convenient, more controllable, and less stressful for management. The quan- dary lies in finding an effective means to achieve coordination. Statutory require- ments that bargaining be concluded prior to a budget completion date apparently have not had the intended outcome; the budget finalization date comes and goes while negotiations run on with no significant legal consequences. However, non- statutory steps can help link budgeting with collective bargaining. For instance, negotiations can begin early in the fiscal year; certain benefits such as pensions can be provided uniformly, thereby simplifying bargaining; and, in general, revenue and expenditure data can be transmitted to management and labor negotiators and analysts in a timely fashion. The widespread infusion of information technology into budgeting has helped to speed up the flow of financial information to all par- ties, aiding budget preparation and analysis in numerous ways.

State and local bargaining and budget making are likely to remain askew where collective bargaining prevails, with mandatory budget adoption dates serving only as benchmarks. In such a context, budgeting can be frustrating for all concerned parties, including the interest and clientele groups seeking government largess for their special programs and concerns. State and local discretionary funds are already highly constricted because of tax and expenditure limitations, federal mandates, citizen opposition to taxing and spending, and many other factors. With more and more special interests fighting over a shrinking government budget pie, the level of conflict climbs. The additional uncertainty introduced by a tardy collective bargaining settlement elevates the intensity of the budget battle even more.

B. Budgetary Outcomes Because personnel costs constitute a large proportion of the operating budget for state and local governments, an increase in wages and benefits will likely result in higher budget outlays. How will the growth in the compensation bill be funded? In the absence of sufficient new revenues from economic growth or state or federal

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grants-in-aid, the local jurisdiction must weigh various options, including hiking the property tax rate or user fees, reducing other expenditures, reducing or con- tracting out services, seeking productivity gains from ongoing operations, freez- ing vacant positions, or using reserve funds (Kearney 2005: 30, 31). Of course, compensation costs rise whether unions are in the picture or not, with “catch-up” or cost-of-living adjustments and seniority and merit pay increases. Nonetheless, unions are typically blamed by public officials, political conservatives, and the media for creating financial difficulties. The vitriol often smears the government itself for being “bloated” with workers who receive excessive wages and generous benefits.

Empirical research indicates that unions are, indeed, associated with larger budget outlays in cities, although the impact appears to be moderate when other budget-expanding and budget-restricting factors are taken into account. Specifically, collective bargaining is linked to higher personnel expenditures (as a proportion of the operating budget), but the strength of the relationship varies by city size and the functional area examined, and it is tempered by declines in employment levels. The union effect apparently was once relatively lower in large cities (100,000+ population), suggesting that large cities may cope with union-driven compensation increases by cutting back on employment and service levels (Benecki 1978; Kearney 1979). But later studies (Zax 1988; Lewis and Stein 1989; Valletta 1989; O’Brien 1994) found that municipal unionization and collective bargaining are associated with higher expenditures, notwithstanding city size. The important point is that municipal unions influence the budgetary process to their members’ advantage by driving up personnel outlays through collective bargaining and political activities.

However, in some cases there appears to be a tradeoff between pay and positions—an “employment effect.” Collective bargaining clearly boosts compen- sation levels, as discussed in detail later in this chapter. Its effects on total city expen- ditures, however, are less certain (Valletta 1989: 438, 439; O’Brien 1994), probably because wage and benefit increases are sometimes accompanied by reduction in the number of jobs in bargaining units or in nonbargaining departments. In the words of union critics, collective bargaining has “greatly distorted state spending priori- ties” contrary to citizens’ best interest (McGinnis and Schanzenbach 2010).

Do unions protect pay levels at the expense of jobs? Sometimes. Under union contracts, reductions in force are applied with reverse seniority—“last hired, first fired.” Junior rank and file typically constitutes a relatively noninfluential minority of total union membership. The more numerous senior members of the bargaining unit are not generally vulnerable to layoffs, and they may choose to protect their pocketbooks instead of other employees’ positions (see Freeman and Medoff 1984). The negative relationship identified between unionization and employment (Clark and Ferguson 1983; Stein 1990: 491; Trejo 1991; O’Brien 1994) also indicates that some union-related factor or set of factors is at work to hold down job levels. Perhaps unions prompt a cutback in the quality and quantity of services, enabling job cuts. Or management may be able to institute productivity and technological

Financial Impacts of Unions and Collective Bargaining ◾ 159

improvements to maintain service levels with a reduced number of workers. And there is always the possibility that bureaucratic fat is being sliced off instead of muscle. Indeed, unions may force city officials to become more efficiency minded.

There are countercurrents, however, and union political activities can push overall city employment levels higher (see Freeman and Valletta 1988; Valletta 1989; Zax 1989). Union campaign contributions and endorsements of political candidates have been found to significantly affect the demand for services, and employment, of police officers and firefighters (Chandler and Gely 1995).

Conflicting findings on the union impact on budget outcomes and employ- ment levels are a result of the variable time periods and employee functions exam- ined, quality of available data, and researcher’s methodological approach. Most likely, other salient yet unmeasured factors remain unaccounted for in the empiri- cal research, such as the average age of the bargaining unit, quality of union and management eadership, and sense of solidarity among union members.

III. Unions, Wages, and Benefits A popular research topic for the community of labor relations scholars has been the impact of unions on wage and nonwage compensation. It is also one of the most important topics for research because it represents a fundamental measure of union power and organizational success or failure.

A great many factors influence government wage and benefit levels, includ- ing social, economic, and political forces and conditions; decision-making rules and processes; and circumstances peculiar to particular jurisdictions and settings. Before one can isolate the effects of unions and collective bargaining on compen- sation, these micro- and macroeconomic factors must be satisfactorily taken into account.

A. Socioeconomic Factors The socioeconomic forces that establish boundaries within which public sec- tor compensation determinations are made are many, diverse, and interrelated. Economists refer to them as labor market factors or, more specifically, labor supply and demand factors.

Five variables that help measure the supply, or availability, of labor are cost of living, labor concentration, labor force composition, opportunity wage, and employer demand for workers:

1. “Cost of living” represents how much one must spend to acquire the necessities and wants of life, as well as how rapidly prices are rising. A high and rising cost of living is associated with higher public employee wage and benefit levels, but, in some cases, it is also associated with a shrinking labor force,

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as workers move to jobs located in areas with lower costs of living. Cost of living also varies according to geography. In general, wages are higher in New England, the mid-Atlantic, and the Great Lakes and Pacific states; about aver- age in most of the Midwest; and lowest in the South and Southwest. Within regions, cost of living tends to be dearest in metropolitan areas and least in small and rural communities. Unions often base wage and benefit demands on measures of cost of living, such as those compiled by the U.S. Department of Commerce (e.g., the consumer price index).

2. “Labor concentration,” or “labor density,” refers to the number of potential workers within a labor market. Wages and benefits normally are greater in government jurisdictions with high levels of population and population den- sity. Several explanations exist for this phenomenon, including the availability of a well-trained and educated labor force in heavily populated areas, a stronger tax base from which to extract resources for employee compensation, a high urban cost of living, and the simple expectation that highly populated cities and states will remunerate their workers more generously than rural jurisdictions.

3. The “composition of the labor force” is a third labor supply variable. These “human capital” variables account for differences in compensation that occur as the result of variations in education, experience, race and ethnicity, and gender of the workforce. Because of vestiges of racial, ethnic, and gender discrimination, as well as personal choices (e.g., a woman temporarily leaving the workforce to have children and raise a family), white males still enjoy pay advantages over their African American, Latino, and female counterparts that cannot be attributed to different backgrounds in education and job expe- rience. Although equal opportunity and affirmative action laws and policies have assuaged these disparities, equal pay for equal work is not yet a reality across all U.S. governments.

4. The “opportunity wage” is a fourth labor supply influence on wages and benefits. Briefly, the opportunity wage is that which would be available to the same individual for work in a similar occupation for another govern- ment, private, or nonprofit sector employer. Raiding nearby municipalities for highly qualified or otherwise desirable workers is a common phenomenon in many metropolitan areas, and many state and local governments compete in the job market with private firms, nonprofits, other jurisdictions, and even the federal government. Thus, there are pressures on the employer to keep wages and benefits at levels high enough to discourage employee turnover for more generous economic rewards elsewhere and at the same time attract well-qualified job seekers in a competitive labor market.

5. Three factors related to employer demand for labor are “fiscal capacity,” “monopsony,” and “unemployment”:

a. Fiscal capacity is positively associated with wage and benefit levels. Generally speaking, wealthier state and local governments with high tax bases and relatively low expenditures enjoy revenue advantages that may

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accrue to the benefit of public employees. Related factors are the amount of funds obtained through federal grants-in-aid and other intergovern- mental transfers, as well as tax effort. For example, a relatively poor state may pay quite competitive wages and benefits if it receives large amounts of federal aid and taxes its citizens heavily.

b. Monopsony is, in effect, a monopoly in the labor market that is exercised by a single employer. Thus, an employer demands a large enough quantity of a particular type of labor so that the wages within one or more occu- pations are pushed downward. For example, a geographically isolated municipality with a single school district exercises a monopsony over public school teachers who have no alternative education employment available to them (except, of course, in the private sector, where wages in most cases are lower for teachers). Teachers, like nurses and university professors, may be disadvantaged in the labor market when there is a scarcity of alternative places of employment within reasonable commut- ing distance (Merrifield 1999). However, the relevance of the monopsony argument to the public sector appears to be rather limited when other occupations such as law enforcement and fire protection are considered.

c. Finally, unemployment rates are inversely related to compensation. High levels of unemployment exert a downward pressure on wages, as the number of job seekers exceeds employment opportunities. Jurisdictions in areas with low levels of unemployment may be forced to pay a wage premium to attract qualified employees.

B. Political Factors Political factors also have an impact on government compensation outcomes. Although numerous political variables influence pay and benefits, three of them deserve to be singled out: the legal environment, the nature of government manage- ment, and government structure.

The legal environment of public sector labor relations affects compensation in a variety of ways. Bargaining laws reflect union power and influence in the politi- cal arena, which spills over into wage and benefit decisions. One would expect, for example, that public employees benefit from more favorable compensation out- comes in a state with a comprehensive bargaining law, such as Iowa, than in a state like South Carolina, which prohibits collective negotiations. Arbitration laws also may influence compensation outcomes. A study of police bargaining over a 10-year period found that the availability of interest arbitration is associated with higher police salaries (Feuille and Delaney 1986; see also Chapter 9). Recent research also has identified a positive relationship between the availability of arbitration and the earnings of other local government workers, including teachers (Zigarelli 1996). Many additional elements in the legal and policy environment can affect compen- sation levels, including a legal or de facto right to strike (Zigarelli 1996), taxation

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and expenditure limitations, the threat or reality of outsourcing, and the setting of certain employee benefits statewide (teacher pensions, for instance).

How management organizes itself for wage and benefit decisions is relevant to compensation outcomes. As noted earlier, in nonunion settings such decisions may be rendered unilaterally—by a city manager or state legislature, for instance. But multilateral negotiations frequently take place where collective bargaining exists. One expects that unilateral compensation determination would tend to hold down wages and benefits, whereas the involvement of multiple actors, which often reflects internal management conflict and political forces, would play out to the repre- sented employees’ advantage.

The structure of government itself may affect public employee compensation outcomes. “Reformed” political institutions such as a council–manager govern- ment, nonpartisan elections, and at-large or mixed constituencies may tend to min- imize the access of public workers to the decision-making arena. Public employees should have stronger influence on wage and benefit decisions where they find it relatively easy to apply political pressure on elected officials. Thus, mayor–council systems, partisan elections, and single-member electoral districts should be asso- ciated with more favorable compensation outcomes. However, empirical research on the structure of government variable reports mixed findings (Ehrenberg 1972; Gerhart 1976; Lewis and Stein 1989; Chandler and Gely 1995).

C. Politics and Decision Rules in the Compensation Decision Process

As noted in Chapter 3, in nonunion jurisdictions the role of the public worker in compensation decisions is normally limited to informal individual or group requests for a satisfactory increase in monetary awards. But where public employee unions enter the scene by way of formal or informal bilateral negotiations, the compensation determination process assumes an important new political dimension.

The politics of compensation involve union activities in election campaigns, including member support of and financial contributions to candidates and politi- cal action committees. Politicians may trade favorable pay and benefits for union political support (Hammer and Wazeter 1993; O’Brien 1994; Chandler and Gely 1995). Union tactics include lobbying elected and appointed officials; collecting, analyzing, and disseminating pertinent information on pay and benefits; and influ- encing citizen opinion through public relations. Unions may apply raw political power through real or threatened job actions, warnings of electoral defeats, and other intimidating behavior.

Formal and informal decision rules also influence pay outcomes. Union and management each strive to win acceptance of decision rules that work to their perceived advantage, but several rules have been widely accepted by both par- ties: the across-the-board increase, the prevailing rate, pay parity, cost-of-living

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adjustments, comparable worth, and the ability to pay. Unions usually prefer to have increases awarded across the board or in equal percentages (e.g., a 5% hike for everybody). This limits management discretion and is perceived to be fair by most bargaining unit members. But this equity-based decision rule does nothing to encourage or reward special effort or outstanding performance, and this disturbs management. Merit pay or pay for performance ties remuneration to achievement and maximizes management discretion to reward high performance and produc- tivity. It may take the form of incentive pay or group performance bonuses. In principle, it makes a great deal of sense and it has been widely adopted in some form throughout government at all levels. But in practice, merit pay is plagued by a multitude of problems (see Kellough and Selden 1997; Perry 2003), including a tenuous link to employee performance, a perception of supervisory favoritism, and relatively meaningless merit pay amounts (Perry, Engbers, and Jun 2009; Bowman 2010). Unions generally, and often successfully, oppose it.

The “prevailing rate” for pay is important both symbolically and substantively. Symbolically, it represents a fair day’s pay for a fair day’s work. Substantively, it keeps workers reasonably satisfied and helps preclude attrition of the workforce to higher paying area employers. The prevailing rate is determined from secondary sources, such as the U.S. Bureau of Labor Statistics’ Area Wage Surveys or data from national, state, business, or labor organizations, or calculated independently through salary and benefits surveys by individual jurisdictions. All states and the great majority of local governments with populations of 10,000 or more conduct such surveys either regularly or intermittently. Some are mandated by law; others are done informally.

Typically, data comparing a jurisdiction’s salaries and benefits with those of neighboring public and private organizations are sought for “benchmark” jobs such as key entry-level positions. Through mail, telephone, or Internet surveys, wage data are obtained from other relevant employers. Benchmark positions must be closely comparable in job descriptions; knowledge, skills, and abilities required; and hours worked. Examples include beginning schoolteachers, administrative assistants, police sergeants, and social service caseworkers. It is also important to collect data on benefits. Variability in benefits sometimes makes meaningful com- parison problematic, but the dollar value of major benefits such as pensions and health care should be taken into account.

At first blush, establishing the prevailing rate through surveys appears to be rather objective and straightforward. However, politics is inherently involved. For example, which employers should be surveyed? What should be the scope of the inves- tigation? Survey outcomes are related to characteristics of responding employers, including population and geographic size, fiscal capacity and status, prevailing labor climate, and cost of living. Thus, how the sample is drawn helps to determine results. Moreover, interpretation of survey results is subject to dispute. Should data from extreme or “outlying” respondents be tossed out? Are benchmark positions truly comparable? Should respondents be classified by population size, geography, or some other characteristic? Should both union and nonunion employers be surveyed?

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Because so much judgment and discretion is involved, employee organiza- tions often seek to determine the prevailing rate independently, through their own surveys or with the help of national union staff. Data collected by unions and public employers may be shared, but each tends to look suspiciously at the survey results produced by the other.

“Parity” is the third decision rule widely used by management and labor, particularly in many local government jurisdictions. The parity rule is an old one. As early as 1898, a parity provision for police and firefighters was in effect in New York City (the police were still fighting against it in 2013), about 65 years before collective bargaining began its great period of growth in urban areas. Parity may be set at 100%, where two occupational groups always receive the same levels of pay and benefits, or it may be set at a certain percentage of the pay of a key occu- pation. (For example, police officers in Hawaii receive a 5% pay advantage over firefighters.) After one bargaining unit negotiates a raise, a comparable increase is automatically granted to the other unit. Parity provisions usually apply to the police and fire functions, with police setting the pay standard. However, parity also may exist between other workers in the public sector and their private sector counterparts.

Parity rules may be embodied in collective bargaining contracts, state or local legislation, or city charters, or they may be implemented informally. Sometimes, as in New York City, parity rules become the subject of intense rivalry between police and firefighters. Firefighters, who often seek to achieve or maintain parity with police, claim that they work longer hours and perform more dangerous work, they must spend more time away from home and family, and their job requires a substantial amount of technical training and expertise. Police officers respond that their job is more dangerous, involves more intensive work, and requires greater use of interpersonal skills. Furthermore, police officers claim that they need higher entry-level pay to attract recruits into the demanding and hazardous field of law enforcement.

Police unions sometimes attempt to break parity arrangements, and they have been struck down by the courts in several jurisdictions, including local governments in Maine, Connecticut, and New York, on the grounds that they effectively withdraw bargaining rights from a union that is not a party to the arrangement.

Another decision rule is “cost of living,” which, of course, usually is rising. Cost-of-living arguments tend to resonate with voters and public officials, who understand the pain of salaries that are stagnant in value. Unions want to incorpo- rate inflation’s effects in salaries so that members do not lose ground in purchasing power. During periods of price inflation, unions seek to negotiate escalator clauses so that future wage increases track cost-of-living increases. Slowdowns in inflation may provoke the elimination of public sector escalator clauses.

“Comparable worth” rose to prominence in the public sector in the 1980s largely because of public employee unions. As a compensation decision rule, it means equal

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pay for work of comparable value. Equal pay for equal work is a widely accepted legal principle, but comparable worth is a contentious issue that challenges conven- tional market-based wage-setting practices.

Fifty years ago, the vast majority of working women were employed in only a handful of occupations. Few alternatives were available beyond teaching, nursing, and clerical work. In these “female ghettos,” women earned less than 60% of the median pay of males. Today, there are essentially no occupational barriers that large numbers of women have not broken down, yet as a group they still earn only about 78% of what men do. Frustration with this wage gap continues. Supporters of comparable worth argue that the wage differential is primarily caused by con- tinuing (if voluntary) job segregation and wage discrimination. Comparable worth seeks to address these sources of gender-based pay inequities.

Opponents counter that comparable worth takes wages beyond the market law of labor supply and demand and would wreak devastating results on national, not to mention organizational, pay policies. They further contend that wage discrimi- nation is a myth. Women are paid less because many of them are part-time and temporary workers, they tend to leave the labor force to give birth and raise chil- dren, and they choose to segregate themselves in lower paying jobs.

In the absence of congressional action, the arguments for and against compa- rable worth have been addressed in courtrooms and state and local legislative bod- ies across the country. The bell for the first round of the comparable worth fight was sounded in San Jose, California, in 1981. The American Federation of State, County, and Municipal Employees (AFSCME) Local 101 tried to force the city to implement comparable worth adjustments to close a pay gap identified by a salary study. An agreement between union leaders and city officials was quickly reached that hiked the pay of about 20% of the city’s employees (Flammang 1986).

Two important court cases also arose from the West Coast: County of Washington v. Gunther (1981) and AFSCME v. State of Washington (1983). In the first case, female jail “matrons” (guards) sued Washington County, Oregon, under Title VII of the Civil Rights Act of 1964 because they were paid 30% less than male guards for substantially equal work. A lower court ruled against the matrons, but a federal court of appeals reversed the decision and was later narrowly upheld by the U.S. Supreme Court. In the second case, AFSCME spearheaded a class action suit against the state of Washington for failing to act on several comparable worth studies that the state had commissioned. The studies had discovered a 20% gender-based wage gap for comparable positions. The union argument prevailed in the U.S. District Court but was later overturned on appeal. Nonetheless, the state of Washington settled with AFSCME and the 15,500 female workers it represented and fully implemented comparable worth within 10 years.

AFSCME President Gerald McEntee recognized the potential benefits of the comparable worth issue for the union, observing that “the ruling in Tacoma (Washington) is going to reach into every one of the 50 state governments, every one of the 3041 counties, and each and all of the townships and cities and school

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districts. In fact, it is going to affect every one of the nearly 83,000 public jurisdic- tions in this land …” (quoted in Legler 1985: 241, 242). McEntee may have over- stated his case, but other public employee unions joined AFSCME in latching onto comparable worth during the 1980s and thereafter, recognizing it as an excellent tool for organizing the female labor force in government. Today, unions continue to pursue comparable worth through legal actions, the collective bargaining process, and state legislation. Pay equity arrangements have been negotiated in Connecticut, Iowa, Massachusetts, and other states. Comparable worth laws have been passed in Minnesota, Montana, New York, Iowa, Oregon, Washington, Wisconsin, and elsewhere. More than 20 states have comparable worth policies in place today.

The basic comparable worth methodology is point factor analysis. Critical job factors, which typically include knowledge, skills, and abilities, are identified for male- and female-dominated positions and assigned numerical scores on the basis of their relative importance to the organization. The factor scores are summed for each position. Jobs with equal or nearly equal scores receive equal pay. For example, an administrative secretary’s wages might be brought up to the level of a transporta- tion department crew leader or a state grain inspector or the pay of a nurse might be raised to equal that of a truck repair foreman.

Unions must tread a fine line in accommodating the comparable worth demands of female members without alienating males, who may fear that pay adjustments will be extracted from their own earnings (see Riccucci 1990). The public workforce is approaching 60% female; yet pay inequities persist, so the issue remains salient.

Obviously, comparable worth policies drive up the price of women’s labor. As a practical matter, men’s wages are not reduced to make up the difference. Thus, the total wage bill of comparable worth jurisdictions grows rather substantially. The impact of full implementation of comparable worth appears to drive total payroll from 1% to 4% in comparable worth states (Gardner and Daniel 1998).

When faced with employee demands for compensation increases, whether based on comparable worth or other factors, public employers often invoke the “principle of ability to pay.” In a sense, it is more of a negotiating tactic than a decision rule, but its omnipresence certainly demands discussion. Usually, the ability to pay principle is argued in the negative. In making an “inability to pay” argument, government is claiming that it is unable to grant its workers more than a certain amount in wages and benefits because of revenue shortfalls, expenditure demands, or other contingen- cies. Ostensibly, inability to pay is a valid argument. Nevertheless, public employee unions often translate inability to pay as unwillingness to pay. Certainly, the issue is subject to debate. For example, when is a government unable to pay? When it defaults on outstanding debts? When it fails to meet its payroll? Or before such crises arise?

Surely, if a state or local government is prohibited by law from running an oper- ating deficit, then a union-proposed wage settlement that would force the budget into the red could be successfully countered by an inability-to-pay argument. But government employers raise the inability-to-pay flag so frequently that unions no longer salute it and instead demand exquisite details on revenues, expenditures, and

Financial Impacts of Unions and Collective Bargaining ◾ 167

debts and assiduously search for money hidden in the budget. Management may seek to bolster its own case with figures on cash flow, debt and debt service lev- els, inadequately funded retiree pension and health-care benefits, pending or actual court decisions that present future liabilities, legally mandated budget expenditures, and various comparisons with wage and benefit levels and tax burdens in other jurisdictions.

Unions carefully examine management’s data and financial projections and calculate their own. Often, assistance is available from national unions, which maintain budget analysis staffs. Most have the capability to conduct econometric analyses. The National Education Association, for example, has a budget analysis software package for local school districts. And, in general, information technol- ogy and resources have greatly simplified such analyses. A thorough union review of data will also examine the proposed budget, including expenditure forecasts and economic assumptions, past budgets, external audit reports, budget reviews and financial statements, minutes of council or legislative meetings, news reports, bond prospectuses, promotional literature, independent fiscal data from citizens’ groups, “inside” information from personnel in key offices, a search for contin- gency funds or other hidden monies, and human resource reports on unfilled posi- tions (Leibig and Kahn 1987: 194–204; Toulmin 1988: 622, 623).

D. Monetary Impacts of Unions: Approaching the Research Question

Unionization (the extent, or density, of employee organizational membership) and collective bargaining (formalized labor–management decision making within a collective framework) push salaries and wages upward. Even in the absence of collective bargaining, unions may influence compensation policies. Unions in one jurisdiction may affect compensation levels in neighboring, nonunion settings through a “threat effect,” as employers seek to discourage employee organizing by paying competitive wages and benefits.

Some four decades ago, unions and collective bargaining in government were unknown quantities that aroused reactions running the gamut from blind, ideological devotion to fearful, virulent criticism. The most influential and thought-provoking attack on public sector unions and collective bargaining was set out in a controversial Brookings Institution study in 1971. According to The Unions and the Cities, union activity and collective bargaining distort the democratic political process:

The distortion results from unions obtaining too much power, rela- tive to other interest groups, in decisions affecting the level of taxes and the allocation of tax dollars. The distortion therefore may result in a redistribution of income by government whereby union members are subsidized at the expense of other interest groups (Wellington and Winter 1971: 167).

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Public employee unions “leave competing groups in the political process at a permanent and substantial disadvantage” (Wellington and Winter 1971: 30, 31) for several major reasons: (1) some government services are essential, so prolonged interruption resulting from a strike directly threatens public health and safety; (2) the demand for public services is relatively inelastic and insensitive to changes in price because government services lack close substitutes and competitive service providers rarely exist; and (3) the disruption of government services inconve- niences voters who may punish political leaders in the next election. Implicitly, “rent-seeking” elected officials solicit and reward union political support. Thus, the authors argue that unions in government inherently have greater power than those in the private sector. A product of this power advantage, one would logically assume, is higher compensation for unionized government employees compared to their union counterparts in private employment or nonunionized colleagues in other governmental units.

Have public sector unions achieved wage and benefit gains that outstrip their union counterparts in the private sector and nonunion workers in other governmen- tal jurisdictions? Wellington and Winter furnish no quantitative data to support their assertions, but these claims have been tested by other researchers.

IV. Are Public Sector Workers Paid More than Private Sector Workers?

Until the rise of unions in government in the 1960s and 1970s, public employ- ees were consistently underpaid relative to similar workers in the private sector. Since then, several studies have attempted to compare wage and benefit levels in public and private sector employment. It is generally agreed that public employees improved their pay position relative to private sector workers in most occupational categories from the late 1960s through the mid-1970s (Reder 1975; Field and Keller 1976; Orr 1976).

Have public employees continued to close or even reverse the pay gap? Which sector pays the highest today? The findings are mixed on these questions. The answers depend on government function; the level and size of government; time period; methodology; and, apparently, the political values or ideology of the researcher.

The first study to directly address relative public–private sector pay (Smith 1976) determined that federal workers made substantially more (10%–20%) than simi- lar private sector workers, but state and local employees enjoyed only a very slight (1%–2%) advantage. Subsequent research has tended to support these findings (Linneman and Wachter 1990), although state and local earnings growth lagged the private sector during the 1980s according to one researcher (see Krueger 1988). Two studies using 1991 data found that public sector employees earned a “signifi- cant wage premium” that exceeded private sector wages by 5.4% and total pay and benefits by 10.3% (Choudhury 1994). The public sector compensation advantage

Financial Impacts of Unions and Collective Bargaining ◾ 169

rose to 25% when the shorter government workweek was taken into account, lead- ing Cox and Brunelli (1992) to call for cutting state and local jobs, reducing payroll, and contracting out government services to save money. However, recent research on state and local governments indicates that the government wage premium no longer exists and in fact has been reversed to a wage deficit, as will be seen later.

Research results are mixed when federal employees are singled out. Perloff and Wachter (1984) and Krueger (1988) found that postal employees were much better paid than similar private sector workers. On the other hand, there are long- standing shortages in some federal position classifications due to inferior pay and benefits; engineers, doctors, and other health-care personnel are three examples. U.S. Bureau of Labor Statistics’ wage comparability studies consistently find that private sector workers are paid substantially more than most federal employees for similar work. Independent studies by the U.S. Governmental Accountability Office, the Merit Systems Protection Board, the Federal Pay Agent, and consult- ing firms have arrived at the same conclusion and point to a high turnover rate for federal workers leaving for higher pay and better opportunities elsewhere. These studies, however, are suffused with methodological difficulties and swamped by the magnitude of the task. For example, the aggregate data used in many of the stud- ies, including the aforementioned ones, do not account for important information, including occupational categories, position levels, units of government, geographic differences, or variances in individuals’ education and experience. As observed by M. L. Miller (1996: 21), the comparability question should be framed as follows: “If two persons are doing the same job, at the same level of duties and responsibilities, with one person performing that job in state or local government service and the other in private industry, are they also paid alike?”

Several studies address some of the major methodological pitfalls in compar- ing public and private sector earnings. Belman and Heywood (1995) compared public and private sector earnings in seven states, statistically controlling for occu- pation and individual worker characteristics (e.g., age and experience). Results indi- cated that lower-level government employees earned more than their private sector counterparts, but mid-level to upper-level employees in government were paid less than those in the private sector. For the seven states examined, six underpaid local government employees and three underpaid state government workers compared to similar workers in the private sector. Bender and Heywood (2010) extended the Belman and Heywood methodology to a large (50,000–60,000 households) national sample of workers and statistically controlled for age, education, and other demographic characteristics. They found that state and local government employ- ees are, on average, comparably compensated or slightly undercompensated relative to their counterparts in the private sector. An important finding of this research is that state and local employment disproportionately consists of occupations that garner high earnings. Some of these relatively highly paid jobs are not directly comparable to jobs found in the private sector (e.g., firefighters and police offi- cers). Moreover, government work demands a more highly educated workforce and

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a much greater proportion of managerial and professional employees than the pri- vate sector (Belman and Heywood 1995: 196; Belman and Heywood 2004).

The aforementioned studies, along with the research conducted by a Bureau of Labor Statistics economist (Miller 1996) identify interesting patterns in the data: state and local employers pay more than private industry at the low end of the pay scale and private firms pay better than state and local governments for higher- level jobs, particularly those involving administrative and professional responsibili- ties and more years of education. But highly paid, highly educated administrative and professional employees comprise 30% of the local and 40% of the state labor force, compared to only 10% of private employment. This distribution artificially pushes the average earnings of government employees above that of private sector employees unless occupation is taken into account. When education and other demographic factors are controlled for, state and local employees earn 11%–12% less than comparable private sector workers (Bender and Heywood 2010). Moreover, this public sector earnings disparity has grown over the past two decades.

The related issue of pay compression is troubling for public employers. The relatively high-paid positions at lower levels of government organizations are typically easy to recruit for and staffed with qualified workers, but the relatively low-paid positions at upper and upper-middle levels of agencies and departments do not compare favorably to positions with similar responsibilities in business. The result is difficulty in recruiting and retaining mid- to top-level government officials.

The paycheck represents only a portion of the total compensation picture; benefits, which typically consume one-third of the total compensation package, are very important. The evidence with respect to the dollar value of benefits favors government workers but increasingly less so as a consequence of state and local policy changes driven by budget pressures from the Great Recession. With regard to specific benefits, state and local pension plans traditionally provide more generous payouts than the average private sector plan. State and local workers can also expect to retire with fewer years of service and to experience more growth in their monthly retirement check (from cost-of-living adjustments) than private employees.

Moreover, the financial risk for funding future pension payments continues to be assumed by most government employers in “defined benefit plans,” which promise retirees monthly pension checks with the specific amount based on years of service and salary levels. Firms, on the other hand, typically pass along the risk to future retirees under “defined contribution plans,” which determine the amount of retirement benefits based on investment choices made by the employee. Poor choices translate into low payments. The government is off the hook as far as cost-of-living adjustments are concerned. Public–private differences exist for other benefits as well. Health-care insurance for public employees, retirees, and their dependents is more widely available and often more generous than insurance provided (or not provided) by firms. Vision and dental care benefits are comparable. Public work- ers typically enjoy more annual sick and vacation leave than their private sector counterparts (Kearney 2003). Taking the dollar value of benefits into account, the

Financial Impacts of Unions and Collective Bargaining ◾ 171

public–private compensation differential falls to an estimated 6.8%–7.4% in favor of private sector workers (Bender and Heywood 2010).

Generous—but sometimes underfunded—pension and retiree health-care plans became a topic of great concern with the accounting standards adopted by the Governmental Accounting Standards Board, requiring public reporting of accrued, unfunded benefits. Some state and local governments have revealed startling levels of unfunded liabilities, and the total gap between promised pension and health-care benefits on the one hand and funds set aside to pay for them on the other is a shock- ing $1.38 trillion (Pew Center on the States 2012). New Jersey, for example, as a result of significant underpayment into its pension plan along with exceedingly generous (free) health-care coverage for retirees, will need approximately $194 billion to pay the benefits promised to current and future retirees (Pew Center on the States 2012). Some fiscally responsible state and local governments are in relatively good shape, but most are faced with the need to step up retiree funding, reduce benefits, or do both.

The Great Recession proved to be the catalyst for state and local actions on unfunded pension and health-care liabilities. A substantial proportion has reduced such benefits through legislative action or revised collective bargaining contracts. Jurisdictions including Colorado, Minnesota, and Vermont have hiked copays for health care and pensions, dropped dependent health-care coverage, raised minimum retirement age and time-in-service requirements, and mandated that defined con- tribution plans replace defined benefit plans for new workers (see Maynard 2011a). The result is that state and local employee benefit levels are beginning to close the gap with private sector employees in both unionized and nonunionized settings.

V. Comparing the Relative Effects of Unions in the Public and Private Sectors

What is the compensation impact of unions in the public and private sectors? In which sector are unions most effective in driving up wages and benefits? The empirical evi- dence is fairly conclusive that private sector unions have been more successful than unions in the public sector. The most comprehensive examination of unions and wages in business is H. G. Lewis’s Union Relative Wage Effects: A Survey (1986). According to Lewis, the wage effects of unions were 10%–15% from the late 1950s to the late 1970s. Later research indicates that this differential prevailed into the mid-1990s but has declined somewhat since (Hirsch and Schumacher 2001). However, measurement error is more likely due to declining unionization in the private sector (Hirsch 2004), so any specific comparison is subject to dispute. The relative wages of unionized work- ers in business tend to rise during periods of recession and fall during inflationary times and, in general, they vary greatly across time, occupation, and the state of the economy.

Direct comparisons with union wage effects in government indicate that private sector wage gains ran about 10% higher when controlling for occupation in the time period from 1960 to the late 1990s (Shapiro 1978; Moore and Raisian 1987; Ashraf

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1997; Blanchflower and Bryson 2004). Bender and Heywood (2010) determined that private sector unions are associated with a wage premium of 22.7% versus a public sec- tor wage premium of 11.2%, that is, a difference of 11.5% (see also Bahrami, Bitzan, and Leitch 2009). Thus, it appears that, in general, private sector workers have gained more in terms of pay from unionization than their counterparts in public employment.

Unions in both sectors appear to change the distribution of earnings as well. As noted earlier, unions have been associated with salary compression, reflected in a reduction in the spread between the average pay of the lowest and highest rank- ing employees in an organization. To a union member, salary compression may be interpreted as less salary inequity between management and rank and file through collective bargaining—a good thing. Unions are also associated with a lessening of inequality in earnings between women and men (Flaherty and Caniglia 1992; Card 2001). In principle, unions seek greater egalitarianism in pay structures throughout the economy. For those laboring in very-low-paying jobs, unions desire a “living wage.” This typically takes the form of a push for a hike in the minimum wage to a level that is conducive to self-support. Unions have been influential in boosting state minimum wages above the national and in convincing Congress in 2007 to pass a staggered minimum wage increase. Minimum and living wage campaigns have a desirable secondary effect for unions in government because increasing private sector pay reduces the impetus for privatization of public services.

VI. Effects of Public Employee Unions on Compensation: Methodological Problems

Like all research conducted in the social sciences, where laboratory-like condi- tions cannot usually be approximated, research concerning union effects on public employee compensation suffers from certain methodological shortcomings. Seven specific problems have plagued researchers in this area of investigation:

Measurement error and unexplained variance: Almost without exception, multiple regression analyses intended to isolate the relative influence of unionization on wages and benefits have been unable to account for much more than half of the total variation in compensation for the occupational group under consider- ation. Poor specification and measurement of independent variables appear to be the culprit. The result is that union impacts could be overstated.

Operationalization of “union”: Some studies have employed measures of union- ization that are simply inadequate. For example, many ignore the potential role of nonaffiliated employee organizations or employee groups that do not call themselves unions even though they represent their members in wage and benefit negotiations. The most appropriate measures of unionization are (1) whether there is a contract and (2) the percentage of employees belonging to a union. These data are not easily available.

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Unit of analysis: Most pay studies routinely aggregate data across states and localities to make broad nationwide conclusions about union effects. State- and city-level results may be confounded by variability in union representation and legal envi- ronment. For example, some state or local agencies may engage in bargaining, whereas others may not, and some, as a matter of policy, may consistently pay higher salaries to their employees than what local firms pay their own (Belman and Heywood 1995). Aggregation of data across governments obscures internal differences in bargaining outcomes. Generally, the study of individual functional areas (e.g., police, sanitation, and social welfare) is recommended, controlling for legal environment (see Ichniowski, Freeman, and Laver 1989).

Threat effects: Employers may raise pay and benefits of nonunion workers to fore- stall threatened unionization or to prevent morale problems that could result in losing valued employees. Thus, in jurisdictions that experience high levels of union density and collective bargaining, bargaining tends to set market- wide pay and benefit levels, driving up payroll costs for all employers, making union–nonunion comparisons difficult.

Cross-sectional research designs: Most compensation studies limit the scope of investigation to a narrow time range, usually a single year. Time-series research designs that attempt to capture the changing union influence over a longer period of time are preferred. This shortcoming primarily is a function of the lack of adequate longitudinal data on public employee unionization.

Neglect of benefits as a dependent variable: The dollar value of benefits should be included as part of a total compensation package if researchers are to depict the full financial impact of public employee unions. Although wages are the most visible aspect of bargaining settlements, benefits can be the most bur- densome in the long term, as shown by the underfunded retiree benefits. Indeed, benefits may represent the most significant long-term union influ- ence of all. There is evidence of a tradeoff between pay and benefits when unions participate in determining the compensation package. Unions tend to favor increases in benefits (or fight harder to maintain existing benefit lev- els) over pay hikes for several reasons: First, unions reflect the desires of the “median member,” who is older; typically more established in a life pattern; and concerned with health-care protection, a pension, and similar benefits (Freeman and Medoff 1984). Second, there is a public choice argument for public employee benefits. From a political perspective, maximizing benefits over salaries makes sense. Pay hikes are highly visible to taxpayers and easy for them to oppose. Improvements in benefits, while perhaps even more expen- sive in the long run, provide union members with highly valued rewards that have lower taxpayer visibility (Belman and Heywood 1991: 112, 113; Peng 2004). Finally, most public workers, whether in a union or not, enjoy certain tax advantages from taking compensation increases in the form of employer- provided benefits. In summary, if benefits are not captured in the research design, union-associated impacts will likely be significantly understated.

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The values and political ideology of researchers: Economic and social science research should be objective and free of investigator bias, but unfortunately sometimes it is not. For instance, there are at least three possible values or perspectives that researchers may associate with the public employee pay issue. First is equity: Should public and private sector employees be paid equally for equal work, whether unions are in the picture or not? The second value is efficiency: Should the public sector pay no more than is necessary to attract and retain an adequate supply of workers and consider privatizing all possible activities? The third value is government as the model employer: Should public organiza- tions be the standard-bearers for how to remunerate and treat workers fully and fairly by paying high salaries and benefits and offering the best feasible working conditions? How a researcher personally feels about these values or perspectives may influence his or her assumptions, methodology, findings, and conclusions.

VII. Effects of Public Employee Unions on Compensation: A Review of the Findings

Taken together, published scholarly studies on unions and public employee pay indicate that unions have exerted a slight to moderate influence on pay, depending on the methodology employed, state or local function examined, and time period observed. Although compensation impact studies have been relatively few in recent years, basic patterns may be discerned over time.

A. Salary and Wages Most research on the effects of union activity on public employee salaries and ben- efits uses a traditional economic approach. Public sector labor supply and demand equations are specified to “solve” the wage and/or benefits rate of public workers while statistically controlling for various nonunion influences. Multiple regression analysis is the most common statistical technique. Through multiple regression procedures, input and decision process variables (such as socioeconomic character- istics of the labor market and government structure, respectively) are held constant, permitting the isolation of any specific union-related impacts on pay.

Teachers: Most of the early studies on public employee union influence were concerned with the occupational category that continues to receive the bulk of scholarly attention—K-12 classroom teachers. It is understandable that public edu- cation has dominated scholarly interest in this field of research. About one half of all state and local government employees work in public education, and a major- ity of these workers are classroom teachers. Their sheer numbers, magnified by aggressive political and organizing activities, parental concern, and public visibility, ensure that teachers are frequently in the spotlight.

The results of union and teacher compensation studies have been inconsistent. Overall, teacher salaries barely kept pace with the cost of living in the 1990s and

Financial Impacts of Unions and Collective Bargaining ◾ 175

rose less than wages for other full-time employees. Generally speaking, research- ers who have aggregated their data at the state level have not found a significant association between unionization and teachers’ salaries. Those who have examined data at the school district level have uncovered statistically significant associations between unionization and teacher pay. The mean wage effect of teacher unions, calculated by averaging available research findings, was approximately 5% during the 1960s and 7% in the 1970s–1990s, indicating a union advantage varying from 1.0% to 28.8% of base pay (e.g., Delaney 1988; Freeman and Valletta 1988; Winters 2011). Most of the research finds that the greatest salary advantage accrues to senior teachers, who presumably enjoy greater bargaining power than less expe- rienced teachers. Unfortunately, none of the studies attempts to account for the nonsalary aspects of teachers’ earnings and their relationship to unionization.

Pay for teacher performance has become a highly controversial issue. Such merit pay approaches encompass individual bonuses or base pay increases, special pay for teachers in high-demand subjects such as math or biology, statewide teacher bonuses, and “combat pay” for teaching in less desirable schools (especially those in high-crime areas) (see Goldhaber, DeArmond, and DeBurgomaster 2010.). Although pay for performance sounds like a sensible means for encouraging high performance and dedication on the part of teachers, controversy arises over exactly how to measure these qualities and who should be responsible for doing the assess- ment. What factors should be taken into account: student scores on standardized exams or overall school improvement? Should the principal be in charge of assess- ment and acting on the results, or a peer group of teachers? What pay increment represents a meaningful raise or bonus?

Though teacher unions have been vehemently opposed to merit pay plans, public and political pressure to improve public education has forced the American Federation of Teachers and the National Education Association to assume a more cooperative stance and, as a result, teacher pay experiments are under way in most states. However, research has cast doubt on the effectiveness of teacher pay for per- formance (see National Center on Performance Incentives 2012).

College and university faculty: Early faculty studies matched unionized institu- tions with nonunion institutions with similar characteristics and found relatively modest salary and benefits advantages for unions during the late 1960s to mid- 1970s (Birnbaum 1974; Morgan and Kearney 1977). In percentage terms, the salary advantage for organized faculty ranged from 11% in 1970–1971 (Freeman 1978) to only 2% in 1977 (Barbezat 1989). Apparently, however, the union-related advan- tage for faculty leveled off in later years (Marshall 1979; Guthrie-Morse, Leslie, and Hu 1981), and unions may even have been a net detriment to faculty salaries since the 1980s in doctoral and research institutions (Hedrick et al. 2010; Hu and Leslie 1982; Kesselring 1991; Ashraf 1997; Ashraf and Williams 2008). However, collective bargaining appears to be more favorable for community college faculty, in a range of 2%–6% (Ashraf 1998; Henson et al. 2012). Past research indicates that senior tenured faculty benefits more from unionization than junior faculty

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(mostly from across-the-board raises instead of merit-based pay raises) (Barbezat 1989). Also, unionized faculty tends to enjoy superior benefits in comparison with their nonunion colleagues (Guthrie-Morse, Leslie, and Hu 1981).

Police officers: According to published research, organized police have experi- enced a salary advantage from 4% to 8%, which peaked around 1977 and has declined since (e.g., Ehrenberg and Goldstein 1975; Hall and Vanderporten 1977; Kearney and Morgan 1980a,b; Feuille and Delaney 1986; Trejo 1991; Chandler and Gely 1995). One study suggests that police unions temporarily force up sala- ries, but the threat effect pulls pay to the same level in nonunion police depart- ments functioning within the same state legal environment (Ichniowski, Freeman, and Laver 1989). Unionized police do appear to hold an advantage with respect to benefits. A national study of cities of 25,000 and above for the 1981–1984 period found a “very large and strongly positive association” between police bargaining and retirement and insurance benefits (Feuille, Delaney, and Hendricks 1985b; see also Hunter and Rankin 1988). Presumably, the union advantage persists today.

Firefighters: Although no recent studies are available, early research on fire- fighter unionization identified a wage advantage of 2%–18%, averaging about 8% (Ashenfelter 1971; Ehrenberg 1972; Smith and Lyons 1980; Trejo 1991).

Other municipal employees: An assortment of research efforts has investi- gated the union compensation effects of other local government workers, includ- ing sanitation: 0%–17% (Karper and Meckstroth 1976; Edwards and Edwards 1982; Chandler 1995; Hoover and Peoples 2003); hospital employees: 8%–12% (Feldman and Scheffler 1982); and secretaries: 14% (Gomez-Mejia and Balkin 1984). Inclusive studies of city and county workers across various functions find that bargaining increases monthly payroll by 8.5% (Zax 1989) and hourly com- pensation by 5.6% (Zax 1988). “Common function” employees such as blue-collar and clerical workers experience an average positive impact from unions of 8%–10% (Freund 1974; Ehrenberg and Goldstein 1975; Belman, Heywood, and Lund 1997).

State employees: State government has received little attention from scholars, except for higher education. One study (Kearney and Morgan 1980b) of various categories of state employees across the United States found that unions captured a combined salary and benefit gain of approximately 4% for their members. More recent research using 1991 data indicates that unionized state employees enjoy a wage premium of about 7% over nonunion workers (Belman, Heywood, and Lund 1997; Kearney 2003).

In conclusion, unions are associated with higher wages and benefits in state and local governments, but the magnitude of the impact varies widely over time, func- tion, and study methodology. The best estimate of an overall union effect is prob- ably 5%–6%, which is well below the 10%–15% union compensation advantage associated with the private sector. However, the dearth of research on union wage effects in the 2000s means that one should exercise caution in assuming that the union-associated pay differential continues today.

Financial Impacts of Unions and Collective Bargaining ◾ 177

B. Benefits Benefits typically make up 20%–40% of the total compensation package in government, averaging 35% in 2012 (compared to an average of 29.6% of the total compensation package for private sector workers) (U.S. Bureau of Labor Statistics 2013). The quantity and quality of benefits vary considerably across states, locali- ties, and employee functions. The most costly are defined benefit pension systems and health-care insurance. Unfortunately, benefits information is very difficult to collect, standardize, and operationalize. In addition, research is complicated by the lag between the time when benefits increases are won and the time when their effects become measurable. The sheer variety of potential benefits also defies precise measurement and comparison (see Kearney 2003). They include the following:

1. Insurance (medical, mental health, dental, hearing, vision, disability, life, malpractice, workers’ compensation, unemployment compensation, and spousal or partner insurance)

2. Leave (sick, vacation, holiday, education, military, jury duty, voting, family, maternity, paternity, union business, funeral, and personal)

3. Retirement (pensions, social security, and optional and supplemental retire- ment plans)

4. Survivor’s benefits 5. Severance pay 6. Employee development (tuition reimbursement, book or software allowances,

and time off for education and training) 7. Employee assistance programs and wellness programs 8. Dependent and elder care 9. Longevity pay 10. Premium pay (emergency overtime, call-in and callback pay, police court

time, compensatory time, shift differentials, standby time, holidays, and hazardous duty)

11. Miscellaneous (meals, parking fees, professional travel expenses, moving expense, uniform allowance, automobile allowance, legal services, and retire- ment counseling)

As noted, retirement and health-care benefits are the most significant from a public employer’s cost standpoint. This is particularly true for police officers and firefighters whose pensions typically commence after only 20 years on the job and who may experience extended job-related health-care problems. Research (Kearney 2003) finds that state employee unionization pushes up the cost of retirement and retiree dependent health care to a statistically significant level.

Retirement payments typically amount to 50%–100% of the employee’s final salary figures, with annual adjustments for cost of living. The burden on govern- ment revenues can become substantial. A growing number of states and localities

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are considering moving from expensive defined benefit plans (in which the govern- ment funds the full cost of pensions, which are based on years of work experience and age) to defined contribution plans (in which the pension recipient has a propor- tion of his or her salary deducted and invested in retirement plan choices along with a contribution by the employer).

Bargaining over public employee pension funds may include how the funds are invested. Traditionally, investment decisions concerning pension funds are handled by the employer and its investment advisors. But unions argue that the trillions of dollars in public employee pension fund assets represent deferred compensation and therefore should be controlled by public workers or their representatives, not by management. In addition, unions prefer investment policies that favor in-state firms and firms with pro-union policies. And, in some cases, they want pension fund assets to be invested to advance certain social and political objectives.

A benefit undergoing rapid reconfiguration today is employee and retiree health- care insurance. Spiraling health-care costs have damaged employers’ budgets and employee pocketbooks. The average cost of state health-care plans has been grow- ing annually in double digits. Health-care plans have become a major flash point in collective bargaining as employers, in cost-cutting moves, are adopting managed care plans and other arrangements that require larger financial contributions from employees but sometimes permit fewer health-care options.

C. Evaluating the Union Effect on Wages and Benefits A review of the literature concludes that unions boost wages and benefits in govern- ment. The impact varies along dimensions of time, space, methodology, and func- tion in response to numerous and highly variable social, economic, and political factors. The union compensation impact, which has averaged 5%–6% for salaries and perhaps even more for the dollar cost of benefits, is much less than the impact attributed to private sector unions. Nonetheless, the effects are strongly felt in states and localities, which are much more labor intensive than most private enterprises. Considering, for example, that if 50%–75% of a school district’s revenues are dedicated to teacher pay, a 6% or 8% salary increase exacts a substantial toll on the school budget. Firms, especially large ones, can usually enhance efficiencies or pass along salary and benefit hikes to the consumers of their goods and services. Governments have fewer options for funding the price of a new labor agreement.

Clearly, public sector constraints do help limit union-inspired employee com- pensation gains. These constraints are powerful, even though they differ in nature from the private sector market constraints of competition, profits, and product prices. In government, political and economic forces help contain union demands. Budgets must be adopted, taxes levied, bonds issued, and user fees imposed within a context of participatory democracy.

Citizens’ groups, particularly those with an antitax bent, pay attention to wage and benefit settlements and look over the shoulders of responsible elected officials.

Financial Impacts of Unions and Collective Bargaining ◾ 179

Citizen oversight behavior helps stiffen the backbone of public officials during con- tract negotiations and reduces the scope of union demands. A patently equitable compensation settlement may proceed relatively unmolested, with little media or public attention. Citizen review is tacit in such instances. But when bargaining outcomes appear to be excessive, the media and general public may respond with outrage. A bond issue or tax proposal may go down to defeat at polling places, or an aroused electorate may defeat incumbent politicians running for reelection.

As of 2013, the vitriol of political conservatives directed toward governments and their workers, exacerbated by the resistance of fiscal conservatives to public spending, had turned the tables against generous wage and benefit settlements. As indicated earlier, benefits were a special target of state and local governments. Among state actions regarding pubic compensation were the following:

◾ Washington’s 54,000 state employees suffered a 3% salary reduction over 2 years and a hike in health insurance contributions.

◾ Ohio increased pension contribution rates and the minimum retirement age. ◾ West Virginia eliminated health insurance premium funding for new workers. ◾ New York raised the minimum retirement age from 55 to 62 years, increased

employee pension contribution rates, and extended pension vesting to 10 years of service.

VIII. Responding to Public Sector Compensation Cost Increases

Though wage and benefit increases attenuated since the onslaught of the Great Recession, they cannot be entirely contained and funds must be set aside to pay the bills. Within a context of limited competition or substitutability for govern- ment services and general fiscal austerity, public managers have a variety of options available to them:

1. Raise taxes. Local property taxes can usually be increased without a ref- erendum. State or local sales or income tax hikes must receive voter or legislative approval. Elected officials, of course, rarely favor the option of a tax increase and usually exhaust all other remedies first. Some state laws preclude tax increases when statutory taxing or spending limits have been reached.

2. Increase other revenues. User fees or charges may be raised to cover compensation awards within a particular government function. For example, water rates, trash collection fees, recreation charges, or sewer charges can be hiked. This option may be subject to state law or local ordinance and, like a tax increase, it can be highly visible and subject to vehement citizen resistance.

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3. Borrow the necessary funds. Bonds or short-term notes may be issued and sold, with the proceeds diverted to worker payrolls. A second option is to borrow from employee pension funds. Restrictive legislation, however, may prohibit borrowing and, in principle, borrowing to pay operating costs is a bad idea.

4. Cut back elsewhere in government spending. This may take the form of an across-the-board reduction in all departmental appropriations or more selective reductions.

5. Divert capital expenditure allocations to personnel costs. Capital construc- tion or purchasing projects may be postponed or eliminated so that wage and benefit settlements can be honored.

6. Divert intergovernmental revenues. State and local jurisdictions may be able to channel grant-in-aid funds to meet some personnel costs.

7. Mandate a hiring freeze. Unfilled positions may remain unfunded, with further savings realized through attrition. This is often the first step taken to address budget shortfalls.

8. Impose layoffs. Reductions in force may be implemented across the board or by department, agency, or program. Camden, New Jersey, axed almost half of its police department employees and one-third of its firefighters in 2011.

9. Offer a “golden handshake.” Provide incentives for early retirement. Florida, Wisconsin, Ohio, New York, and other states did so in 2010–2012.

10. Adopt a temporary attrition policy. Vacated positions will not be filled until the budget is in better shape.

11. Furlough employees by placing them on temporary, unpaid leave. 12. Reduce the quantity or quality of services. For instance, trash can be col-

lected once per week rather than twice weekly (quantity), or leaf and yard trash pickup can be eliminated (quality).

13. Cut working hours and reduce wages proportionately. Compensatory time off may be substituted for overtime.

14. Adopt labor-saving technology. Technology is available in functions such as trash collection (one-person trucks), human resource management functions (e.g., payroll processing), and other services.

15. Contract out (outsource) services to other jurisdictions or to private firms. Water, engineering, fire protection, and sanitation are good candidates for this strategy.

16. Consolidate existing functions. Some financially pressed local governments have consolidated police and fire functions into a public safety department. Other alternatives exist as well.

17. Refuse to fund negotiated payroll or benefit increases, making the argument of inability to pay. Collective bargaining laws in at least 11 states offer this final option to public employers. For example, the Iowa law provides, “No collective bargaining agreement or arbitrator’s decision shall be valid or enforceable if its implementation would be inconsistent with any statutory limitation on the public employer’s funds, spending, or budget or would substantially impair or limit the

Financial Impacts of Unions and Collective Bargaining ◾ 181

performance of any statutory duty by the public employer.” The efficacy of this strategy may be questioned, however, because courts generally have affirmed the obligation of public employers to implement agreed-on compensation increases.

18. Reopen labor contracts and negotiate union givebacks. 19. Declare bankruptcy. When a state or local government is insolvent, it can,

in theory, file for protection under Chapter 9 of Title II of the Federal Bankruptcy Code. As noted earlier, several local governments took this option in the aftermath of the Great Recession.

20. Engage in productivity bargaining and/or a gainsharing program to reap financial savings.

IX. Productivity Bargaining (Gainsharing) Productivity bargaining involves the “negotiation and implementation of formal collective bargaining agreements which stipulate changes in work rules and prac- tices with the objective of achieving increased productivity and reciprocal worker gains” (Newland 1972: 807). Thus, employee rewards are linked to increases in productivity through the bargaining process. Collective bargaining is not a prereq- uisite for collaborative productivity enhancements. Dollar savings may also be cap- tured through productivity improvements or changes in work procedures agreed on by labor–management committees or partnerships.

In the United States, productivity bargaining has been attempted within a variety of industrial concerns, including meatpacking, steel, railroads, and long- shoring. In government, the experience is still limited to a relatively small number of jurisdictions, primarily municipalities.

Some jurisdictions have had success with work rule “buyouts.” These involve a pay- ment of money (for bonuses) or other financial inducements by management to the bargaining unit in return for union acceptance of changes in work rules that hinder productivity. The parties’ agreement is formalized in the collective bargaining contract. Work rules that might be changed include work scheduling, work processes, mini- mum number of employees on a crew, or any previous understandings or agreements that tend to obstruct the introduction of labor-saving technologies and approaches.

“Gainsharing” (essentially another name for productivity bargaining) refers to a financial incentive system in which a financial bonus is offered for measurable increases in productivity attributable to extra efforts by employees. Here, man- agement and the union work together in identifying barriers to productivity and implementing changes that enhance productivity. Outcomes are measured and the monetary savings that ensue are shared.

Gainsharing has been adopted in various forms in state and local governments. Examples include the following:

Detroit, Michigan: A productivity bonus was granted to sanitation workers based on savings from attrition and reductions in overtime pay.

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New York City: Sanitation workers agreed to use one-person trucks and run lon- ger collection routes in exchange for a 17% raise over 4½ years.

New Rochelle, New York: A gainsharing program was implemented in which productivity gains were used to help fund wage increases. The sanitation department reduced crew size from four employees per truck to three through attrition.

Indianapolis, Indiana: In collaboration with AFSCME Council 62, gainsharing programs were implemented in the public works department.

Productivity or gainsharing savings may be paid out to workers on a one-time basis as a cash bonus, used to augment their salaries, or deferred into a shared savings plan for retirement. Most productivity provisions require a defined split of savings (e.g., 50%) between management and labor. Some of the productivity bargaining experiences have achieved a measure of success in cost savings and/or quality of service improvements. Most productivity or gainsharing experiments, however, have been relatively short-lived, lasting through a single collective bar- gaining contract. And there have been several reports of embarrassing failure for productivity bargaining, especially from management’s perspective, where the agreement had unintended negative consequences.

To succeed, productivity and gainsharing programs require strong employer and union leadership and consistent oversight, widespread employee involvement, accurate measurement of service outputs, mutual trust and respect, training in interest-based problem solving, and win–win expectations (Holzer 1988; Matzer 1988: 185, 186; Gill 2009). Where such conditions do not exist, productivity improvement programs can collapse. In Detroit, for instance, problems arose in determining who was to receive productivity bonuses besides the sanitation work- ers on trucks. Dispatchers, clerical employees, and supervisors also wanted a piece of the action. In other jurisdictions, lack of commitment by key participants and difficulty in negotiating the terms of the productivity bargaining agreement and in sustaining the productivity efforts have led to a loss of interest. Additional problems include the natural resistance of management and union bureaucracies to change, difficulties in developing accurate and meaningful standards for measuring trade- offs between service efficiency (quantity) and effectiveness (quality), failure to link productivity bargaining/gainsharing with overall program goals or agency mission, distrust between parties, and interference by elected officials.

Ironically, a serious obstacle to meaningful productivity gains is cost. It often takes money to save money. For example, substantial productivity gains may ensue from technology enhancements and improved data collection, both of which require addi- tional expenditures. Adding, rather than reducing, staff may enhance productivity (e.g., purchasing a new crime-fighting technology such as COMPSTAT and hiring staff to operate it). Productivity, especially in government, becomes a popular buzzword when money is tight and retrenchment is under way, so there is less money for productivity enhancements such as capital or human resource investments or financial incentives.

Financial Impacts of Unions and Collective Bargaining ◾ 183

Productivity bargaining/gainsharing deserves further attention and experimen- tation. The popularity of interest-based negotiations helps promote such agreements. Almost everyone desires and benefits from improved government performance. Productivity bargaining/gainsharing offers a means of containing government costs by directly involving employees who are most knowledgeable about service provi- sion problems, thereby permitting them to become a part of the solution.

X. Monetary Impacts of Federal Employee Unions The environment surrounding unions and pay determination in federal employ- ment is quite different from the situation prevalent in state and local governments. Most relationships between unions and federal agencies are well structured, and compensation determination is generally unilateral.

The federal government, in theory, could pursue one of several possible strate- gies in setting wages and benefits for its employees. As a conservative approach, it could seek to award its workers as little as possible, assuming that government employment is either a privilege or not difficult work and, above all, that the tax- payer should be protected from the unnecessary burden of high federal employee wages and benefits. A far different strategy would be to assume the role of a model employer, awarding above average salaries and benefits to its workers as a model for other employers. A middle-of-the-road approach, the one long accepted in federal employment, is to apply the principle of prevailing wage.

Unlike in state and local governments, the prevailing wage principle has a long formalized role in federal compensation determination. The principle was first established through statute by Congress for federal navy yard workers during the Civil War. It was extended to employees of the U.S. Government Printing Office in 1924 by the Kiess Act, to Tennessee Valley Authority (TVA) workers by the Tennessee Valley Authority Act of 1933, and to other federal employees by the Classification Acts of 1923 and 1949. However, the prevailing wage principle was not explicitly applied to nonindustrial (classified) employees until the passage of the Salary Reform Act of 1962, which established that civil service salaries should be comparable to those of similar workers in the private sector. The Federal Pay Comparability Act of 1970 reaffirmed this principle and delegated authority to the executive branch to make periodic adjustments to the pay of federal schedule, foreign service, and other federal employees to establish comparability with private sector workers. These acts were major steps in coordinating federal pay setting.

Procedures for determining the prevailing, or comparable, wage vary by agency and by type of employee. They are established through collective bargaining in TVA, by conference in the Government Printing Office, by the U.S. Bureau of Labor Statistics and the President’s Pay Agent for white-collar (General Schedule [GS]) workers, and by wage boards for blue-collar employees. There are separate pay sys- tems for blue-collar (wage board) workers, GS employees, the National Security

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Personnel System, the Foreign Service, the Veterans Health Administration, the Senior Executive Service, the Postal Service, administrative law judges, air traffic controllers, and senior-level scientific and professional positions. In general, posi- tions are compared based on the similarity of functions performed; knowledge, skills, and abilities (KSAs); supervisory responsibility; and related factors.

The three largest categories of employees for purposes of pay are the federal wage system (FWS), classified civil service, and collective bargaining system.

A. Federal Wage System Hourly blue-collar workers in federal civilian service are covered by the FWS. Specifically excluded are agencies exempt from the general classification and pay laws, including the TVA and the National Security Agency. Although the FWS retains final authority for pay determination, federal unions have substantial rights of participation. The FWS is administered by the Office of Personnel Management (OPM). The organizational structure consists of a National Wage Policy Committee of 11 members, equally divided between management of federal agencies and union representatives; the director of OPM serves as the odd member of the committee, receiving policy recommendations regarding the FWS. The OPM coordinates wages regionally through designating a “lead agency” within local wage areas. This lead agency, typically the largest federal employer in the area, administers local wage sur- veys and sets pay schedules for all agencies within its geographic area, working with the Bureau of Labor Statistics when feasible. Based on the survey results, wages may be adjusted several times during the fiscal year. FWS wage rates and increases are based on position classification. There are 15 grades, each with five steps. Employees move up a step and receive a 4% increase as they meet time and performance stan- dards. Three wage rate schedules apply: wage grade (nonsupervisory workers), wage leaders (“leader–employee”), and wage supervisor (supervisory employees).

Union participation is achieved in local wage areas through an agency wage committee consisting of two union members, two management members, and a chairperson appointed by the lead agency. The agency wage committee advises the lead agency on pay determination procedures. Further union participation occurs through local wage survey committees, which conduct pay scale surveys on private industrial job categories in more than 125 localities in the United States.

The right to participate in wage setting through the prevailing pay principle is an important one for federal unions that are precluded from formal bargaining over wages and benefits. Determination of the prevailing rate of pay for any particular occupation is a rather inexact undertaking that is greatly influenced by the research methodology, techniques used to gather and present wage data, characteristics of the firms selected for comparability purposes, and individuals collecting the data. Strong union participation can potentially serve as a powerful substitute for formal collective bargaining over wages. However, blue-collar wage increases have been severely restricted by Congress during the past three decades.

Financial Impacts of Unions and Collective Bargaining ◾ 185

B. Classified Civil Service About 1.5 million classified federal employees are covered under the GS wage system, approximately half of total federal civilian employment. These white-collar workers are placed in a series of pay grades (GS-1 to GS-15), each with a salary range and 10 salary steps. Under the Federal Pay Comparability Act of 1970, the Federal (or President’s) Pay Agent, consisting of the secretary of labor and the directors of the OPM and the Office of Management and Budget, made a GS pay increase recommendation to the president each year based on Bureau of Labor Statistics’ surveys of comparable private sector wages. This recommendation took effect unless the president put forward an alternative and justified it “because of national emergency or economic conditions affecting the general welfare.” Congress then had 30 days to overturn the presidential proposal by joint resolution; otherwise, it was implemented automatically.

However, not a single president accepted the pay agent’s recommendation, and Congress overrode the president’s pay alternative only twice—in 1984, changing the increase from Reagan’s 3.5% to 4%, and in 1990, from George H. W. Bush’s 3.5% to 4.1%—so that by 1990 the cumulative underpayment of GS workers had amounted to approximately 300% (President’s Pay Agent 1990). The pay disparity was most pronounced for federal employees living in large metropolitan areas with high costs of living. For example, it was 39% in San Francisco.

Recruitment and retention problems associated with this sizeable pay ineq- uity were extensively documented by the OPM, the Merit Systems Protection Board, and various federal agencies. Larger influential agencies began appealing to Congress for special pay systems for their employees, raising the distinct possibility of a return to a balkanized federal pay structure.

Belated congressional recognition of this inequitable situation resulted in the Federal Employees Pay Comparability Act (FEPCA) of 1990. Beginning in 1992, GS employees were to receive pay increases matching the average annual salary gains in the private sector in each major geographic area. Starting in 1994 and continuing for 9 years, extra pay increases were to be awarded to GS employees in high-cost-of-living metropolitan areas until their pay reached 95% of local wage levels. However, because federal wages everywhere continued to fall further behind wages in business, the President’s Pay Agent divided the nation into 32 locality pay areas. The Bureau of Labor Statistics surveys employers on 25 occupations in each geographic area. All of this activity has been of little avail because the pay agent’s recommendations have often been rejected. The federal pay disparity with the private sector remains substantial, according to the President’s Pay Agent, with the exception of the military, which received special pay hikes linked to the Iraq and Afghanistan wars. According to the Bureau of Labor Statistics, the average pay disparity was 22% in 2010 (Rein and Yoder 2010).

The pay comparability approach under the FEPCA is widely criticized on defi- nitional and methodological grounds (Buckley 2009). In general, high-ranking, highly educated executives fall far behind their private sector counterparts, whereas

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lower level federal workers actually do better (Rein and Yoder 2010; Congressional Budget Office 2012). In addition to annual pay increases, GS employees are eligible for ratings-based cash awards and quality step increases. Moreover, federal employee benefits substantially exceed the benefits available to most private sector workers, despite recent reductions in federal pension and health-care benefits. Taking into account the monetary value of federal benefits, the Congressional Budget Office (2012) estimates that federal employees enjoy a total compensation advantage of about 16%. Estimates by other researchers diverge widely (see Moore 2012).

C. Collective Bargaining System Several groups of federal workers set their wages through collective bargaining patterned on the private sector National Labor Relations Act model. The largest groups are the Bonneville Power Administration, the TVA, and the Postal Service.

Collective bargaining in the TVA developed shortly after Congress established the authority in 1933. Because of flexible enabling legislation, the TVA operates vir- tually autonomously in the area of labor relations, subject only to merit and efficiency requirements for employee hiring and promotion and a ban on political consider- ations in personnel actions. As a consequence of a progressive management attitude toward labor and the presence of strong craft unions in the public utility industry, the prevailing rate principle was applied very early in setting wages, and by 1940 a formal contract was signed between the TVA and a craft union. Today, wages and benefits are the subject of bargaining for both blue- and white-collar TVA workers.

Due to generous calculation of the prevailing wage, compensation levels at TVA exceed those generally prevailing in the region. However, economic downturns and a redefinition of agency mission have recently prompted hard bargaining by man- agement, resulting in union pay concessions and a significant reduction in force.

Collective bargaining arrived in the Postal Service with the passage of the Postal Reorganization Act of 1970, which abolished the 181-year-old Post Office Depart- ment and created the Postal Service as an independent entity within the executive branch. For the first time, postal unions were allowed to negotiate wages and benefits. The various postal unions always have been successful lobbyists, using strong orga- nizations and nationwide memberships to encourage Congress to award high postal employee pay and benefits. But the strongest evidence of success followed the postal strike of 1970. As a price for settling the strike, postal unions offered their support for the Postal Reorganization Act. They received substantial pay increases, full bargain- ing rights over future pay determinations, and a formal comparative wage policy.

Wage and benefit gains for Postal Service employees have been consistently higher under collective bargaining than under previous arrangements. As noted earlier, postal workers also appear to be paid substantially more than comparable private sector employees. But severe budget problems year after year have resulted in many postal workers taking early retirement. Total postal employment plummeted from 787,000 in 2000 to about 496,000 in 2012 (Reilly 2012).

Financial Impacts of Unions and Collective Bargaining ◾ 187

Air traffic controllers have flown a stormy sky. Several years after the morbid death of their union predecessor, the Professional Air Traffic Controllers Organization, air traffic controllers organized a new union called the National Air Traffic Controllers Association (NATCA). In August 1998, NATCA signed a contract with the Federal Aviation Administration (FAA) that won its 14,300 members $200 million in salary increases and a staffing reorganization that significantly reduced the ratio of supervi- sors to controllers (Walters 1999). Air traffic controllers received the right to bargain over pay in an amendment to the FAA’s 1996 appropriation bill that exempted the agency from Civil Service Reform Act restrictions on bargaining over wages and benefits.

Thus, union participation in federal wage setting varies from direct involvement for those engaging in wage and benefit bargaining to modest involvement for wage system employees to no direct role for GS employees. Indirect union influence is brought to bear through lobbying activities. Not surprisingly, pay for collective bargaining employees measures up to private sector wages. GS and wage system employees have fared less well. Federal employees and their unions have been looking hopefully toward the possibility of significant restructuring of the federal pay system, including greater agency discretion in setting pay and even a new performance-based pay system.

XI. Conclusion The evidence is sufficiently clear to conclude that public employee unions, espe- cially at the state and local levels, affect budgetary and compensation determination processes. They make budgeting and pay setting highly complex and politicized. Unions have driven up total personnel costs in some jurisdictions and pushed up wages and benefits virtually everywhere. However, economic and political con- straints help restrain union influence, increasingly so for the past two decades.

In many bargaining jurisdictions, the level of pay increases won in new con- tracts is somewhat anticlimactic. Silent understandings and cues about what the jurisdiction can afford to pay tend to give the outcome greater predictability. As a consequence, a substantial portion of negotiations today involves nonmonetary benefits and working conditions, which are topics explored in Chapter 7.

Case Study 6.1 The Merit Pay Dilemma

A newly ratified state collective bargaining contract provides for a 3% across-the-board raise for all state employees and a 2% merit increase. The means for distributing the merit raises were left to the discretion of agency heads. At the State Department of Corrections, agency managers met over a period of 3 weeks

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before deciding to allow unit heads to allocate the merit raise according to their own best judgments.

You are the chief warden at a medium-security prison just outside the state capital. The largest bargaining unit in your orga- nization consists of corrections officers. All officers will receive the 3% across-the-board pay hike. But how should you distrib- ute the merit increase? A number of alternatives occur to you.

Total payroll for your 60 corrections officers is $2.4 million (average salary is $40,000). The merit pool consists of $48,000. You could distribute the merit pay in percentages of base pay (perhaps in 0.5% increments up to 10% for the top performers), or you could allocate the merit awards in dollar amounts, such as $100 increments, ranging from a low of $100 to a high of perhaps $3000.

Meanwhile, the union president appears in your office to urge you to distribute the merit pay as 2% across the board with the rest of the annual pay increase. His assessment is that all the guards are fully competent and deserve merit pay. Moreover, this approach would be noncontroversial. He notes that the senior members of the bargaining unit are particularly supportive of his proposal.

The following day, three junior officers schedule an appointment in your office. They state that, in their opinion, the highest performers are the recently hired guards. They offer the observation that the senior guards are by far the highest paid, whereas the less senior officers lag far behind in salary. A true “merit” award based on performance appraisals would be more valid and in accordance with the taxpayers’ interests.

QUeSTIONS 1. What is your view of the state legislature’s merit award

program? How could it have been better structured? 2. What issues are raised by the merit pay system that you

must implement? 3. Develop a plan for distributing the merit pay funds in a

manner that you can defend with reasonable comfort.

189

Chapter 7

Union Impacts: Personnel Processes and Policies

I. Introduction The influence of public employee unions on wages, benefits, and budgets receives more than its fair share of media and scholarly attention. Impacts on personnel procedures and policies represent something of a hidden dimension of public sector unions. The average citizen has little interest in or understanding of public per- sonnel administration (or human resource management [HRM]), particularly the shadowy realm of civil service systems. Yet, the nexus between unions and human resource processes and policies is very important in shaping the nature of govern- ment work and the quantity, quality, and cost of services rendered to citizens.

Personnel matters are salient on the union–management agenda for three rea- sons: first, union–management relations have matured in most state and local settings. Financial relationships and understandings between the two bargaining parties tend to stabilize over time. One result is a reduction in the real-dollar, upper range of compensation settlements. Because unions, by their very nature, always want more, it is typical for them to gradually cast their bargaining nets farther and farther, expanding the scope of negotiations to include new areas. HRM rules and regulations are easily pulled into the union net.

Second, a seemingly permanent condition of government retrenchment has constrained the amount of resources that public employers can devote to the wages and benefits of employees. The driving philosophy behind the taxpayer rebellion of the 1970s and the recurrent antigovernment spending campaigns since then is that government spending is wasteful and should be cut back. Limitations have been

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imposed on state and local revenues and expenditures in most states. Discretionary funds have dramatically declined at all levels of government. One important result is that public employees rarely have an opportunity to enlarge their slice of the budgetary pie. When economic indicators turn downward in recessions, wage freezes, givebacks, layoffs, and related actions become commonplace. To maintain their membership in times of economic stress, and justify their existence, unions must be able to show posi- tive results. Thus, they increasingly tend to turn their attention to the noneconomic personnel policy and process areas traditionally left to public sector management.

Finally, the composition of the American workforce has been rapidly changing. If unions are to remain a vital force in government, they must address the needs of an increasingly large proportion of women, minorities, immigrants, temps, seasonal workers, and older workers. Full-time white males represent a declining proportion of the workforce. Extraordinary changes in personnel practices are under way, forc- ing employers and unions alike to consider training and development needs for new workers; day care, maternity leave, and elder care policies; and programs for accommodating older workers, among many other needs.

This chapter explores the impacts of unions and collective bargaining on HRM processes and policies. First, merit systems are discussed in relation to collective bargaining. Four specific policies that threaten to undermine merit systems are examined: union security arrangements, the seniority criterion, affirmative action, and New Public Management (NPM) practices. Effects of unions on specific personnel processes—including promotions, retention, training, grievances, dis- cipline, position classification, workload, and staffing as well as emerging policy areas—are addressed.

II. Merit Systems Merit systems are a product of the civil service reform movement that swept the United States during the late nineteenth and early twentieth centuries. The purpose of the reform movement was twofold: to ensure the political neutrality of civil servants by removing them from partisan political pressure and spoils politics, and to ensure that selection, promotion, and retention of public employees were carried out objectively in accordance with the principle of merit. The Pendleton Act of 1883 was intended to address both of these objectives at the national government level. A fundamental provision of the Pendleton Act was to create a bipartisan civil service commission charged with the duties of keeping political patronage out of public personnel admin- istration and overseeing a merit system designed to implement the merit principle.

It is important that distinctions be made among the merit principle, the merit system, and the civil service system. The merit principle seeks to make employee competence the major criterion in decisions affecting the movement of employees into, within, and out of public organizations. Merit and fitness for a job are to replace spoils, patronage, favoritism, and other subjective criteria in all personnel decisions.

Union Impacts: Personnel Processes and Policies ◾ 191

A merit system is a legally established set of rules and procedures created to imple- ment the merit principle in the recruitment, selection, promotion, retention, and com- pensation of employees. The merit system is an administrative apparatus directed by a nonpartisan or bipartisan board or commission or a central personnel office with the purpose of implementing the principle of merit in government personnel decisions. In the federal sector, the U.S. Office of Personnel Management and the Merit Systems Protection Board implement personnel processes in accordance with the merit prin- ciple. In state and local governments, the responsibility is vested with an independent civil service commission or a central personnel agency in the executive branch.

Although state and local governments have their own merit systems, the Social Security Act of 1940 and subsequent federal laws require that state and local employ- ees who are paid in full or in part by federal grant-in-aid funds to staff workers in wel- fare, employment security, health, vocational rehabilitation, homeland security, and other areas be hired under a merit system. Thus, the merit system is a standard feature of government personnel administration in the United States, so standard, in fact, that the terms “merit system” and “civil service system” are often used synonymously.

A civil service system is the personnel system for all nonmilitary employees of a government. The civil service system encompasses the merit system as well as all positions filled by patronage, policy making, and other appointments. A civil service system may or may not contain a merit system, but a merit system is always part of a civil service system.

The concept of the merit principle as the basis for government personnel deci- sions is nearly universally accepted. The problem lies in deciding what range of personnel functions is fundamental to maintaining the merit system and there- fore should be exempt from collective bargaining. According to the federal Intergovernmental Personnel Act of 1970, the following elements are essential:

1. Recruitment, selection, and advancement of employees on the basis of rela- tive ability, knowledge, and skills, including open consideration of qualified applicants for initial appointment

2. Equitable and adequate compensation 3. Training to ensure high-quality performance 4. Correction of inadequate performance or separation of those whose inad-

equate performance cannot be corrected 5. Fair treatment of all employees in all aspects of personnel administration

irrespective of political affiliation, race, color, national origin, sex, or religion 6. Protection of employees against partisan political coercion

Public employee unions take issue with many of these “essential” merit system components, especially pay and benefit determination, grievance procedures, train- ing, and position classification. They espouse the view that such matters should be subject to collective bargaining. Furthermore, unions have leveled attacks at the merit system concept itself as being defined and controlled by management. Merit

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systems are criticized because they are based on the unilateral decision-making process that unions have fought against from their earliest days. HRM directors, for example, are appointed by the chief executive. Although they may be “neutral” with respect to partisan politics, their actions are perceived to be promanagement.

Originally created to provide job security and protection against patronage, few civil service commissions remain today. The typical arrangement is for the head of a state or local personnel system to report directly to the chief executive rather than to a commission. The purpose of such a reporting relationship is to inte- grate the personnel function with the executive function, but there is nearly always some tendency for governors or mayors to politicize the system (Newland 1987). Understandably, unions are concerned about unilateralism, favoritism, and other distasteful features of this arrangement.

Merit systems have come under increasing scrutiny by nonunion critics as well. The credibility of the federal merit system has been seriously eroded because of allega- tions and subsequent investigations finding widespread political patronage in federal recruitment and promotion policies. Abuse of the merit principle occurred during the Nixon administration in the Department of Housing and Urban Development; Office of Economic Opportunity; and Department of Health, Education, and Welfare. Explicit evidence of blatant patronage procedures were found in the Machiavellian “Malek Manual,” written by a Nixon appointee, Fred Malek, to assist other political appointees in circumventing the merit principle in departmental per- sonnel actions (see Malek 1980). Similar problems characterized the federal service during the Reagan years, when the merit system was undermined by converting positions from classified to appointive status, written tests for some positions were abandoned in favor of direct appointment, and career bureaucrats were seemingly debased at every opportunity by their political bosses (see Stahl 1990). The admin- istration of George W. Bush was notorious for plugging unabashed (and sometimes incompetent) partisans into positions in the Departments of Defense, Justice, and Homeland Security and the Environmental Protection Agency and many other fed- eral agencies (Moynihan 2005; Brook and King 2007; Thompson 2007).

It is not only the federal merit system that has been condemned. State and local merit systems have also received equal criticism. Indeed, civil service and merit systems are under heavy and concerted attack globally (Kearney and Hays 1998). The most commonly cited deficiencies are the following (Ingraham 1996; Goldsmith 2010):

1. Excessive and constraining rules and regulations. Personnel systems con- tinue to be plagued by stultifying, centralized control systems that hinder management authority and flexibility.

2. Slow, unimaginative recruitment procedures that inhibit the hiring of qualified people.

3. Restrictive selection systems, such as the notorious “rule of three.” 4. Rigid classification systems that impede the efficient assignment and

rewarding of work.

Union Impacts: Personnel Processes and Policies ◾ 193

5. Multiple levels of employee legal protections that hinder labor–management cooperation and protect incompetent workers.

6. Isolation from citizens. Agency goals to serve clients have been displaced in some instances by internal rules, regulations, and processes.

An early (and scathing) article by Savas and Ginsburg (1973: 600) pointed out problems with the New York City merit system that are, unfortunately, still typical of certain other large cities:

In trying to prevent itself from doing the wrong things—nepotism, patron- age, prejudice, favoritism, corruption—the civil service system has been warped and distorted to the point where it can do hardly anything at all. In an attempt to protect against past abuses, the “merit system” has been perverted and transformed into a closed and meritless seniority system.

The merit system, then, is seemingly under attack from all directions. Unions want to undermine it by seizing more influence over HRM policies and procedures at the bargaining table. Many elected and appointed officials would like to abol- ish it in favor of a flexible, management-driven system. Georgia eliminated merit system coverage for all new employees in 1996; most now serve at will. Arizona enacted a similar law in 2012. Colorado and Tennessee also overhauled their state merit systems recently (Maynard 2012a).

Clearly, the merit system is a downtrodden institution. Yet support for the merit principle remains even among most of the merit system’s most adamant critics. If we throw out the merit system (so far, only Georgia and Arizona have accomplished this, though other states have been making merit-threatening changes), what will replace it? New patronage? Short-term employment contracts? Is not incremental reform preferable? The union voice in this ongoing debate plays a critical role in determining which elements are truly essential to the merit system and which are not.

A. Interface between Collective Bargaining and the Merit System

Several possible views on the interface between collective bargaining and merit sys- tems exist: the first view holds that the two are irreconcilable and doomed to never- ending conflict; the second view maintains that one or the other ultimately prevails because the two systems cannot be mutually accommodated; and the final perspec- tive is that the merit system and collective bargaining can exist together peacefully if certain modifications are made with respect to the merit system. Most scholars, practitioners, and key stakeholders subscribe to the third point of view. As the late American Federation of State, County, and Municipal Employees (AFSCME) leader Jerry Wurf (1974: 433) once observed, “To pose an ‘either–or’ relationship between merit and collective bargaining is to ignore reality. Both have a legitimate place in government labor–management relationships. Both are here to stay.”

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The merit principle requires an administrative structure for its successful imple- mentation; in other words, it requires a merit system. Abandonment of the merit system would result in alternatives that most HRM scholars and practitioners find unacceptable. As Spero and Capozzola (1973: 209) observed more than four decades ago, “The alternatives … are political patronage, large-scale corruption, and less merit, fitness, and personal initiative. The alternatives are systems which demean and degrade employees, leaving them bereft of security and at the mercy of shifting winds.”

Few desire a return to the “spoils and boodle” days of public employment. Instead, collective bargaining and the merit system can be made to coexist, even as they evolve. The adjustment process plays out in state legislative and court decisions addressing the difficult task of placing collective bargaining and the merit system in their respective and appropriate places. Mutual adjustment between the two systems is ongoing, with outcomes varying from place to place (Guiler and Shafritz 2004). Though the professed desire of some political conservatives is to abolish both collective bargaining and the merit system in favor of at-will employment as they have done in Georgia and Arizona, one or both of these systems continue to be the operating reality in the vast majority of public jurisdictions.

B. Accommodating Collective Bargaining and the Merit System

In the absence of collective bargaining, merit systems remain largely unchallenged and unchanged. Personnel decisions are rendered unilaterally. Employee appeals or grievances may be dealt with individually by management or a grievance board. In the presence of bargaining, however, some tenets of the merit system are no longer absolute. Bargaining and compromise become the order of the day as many person- nel issues are resolved at the negotiating table. Generally, the range of personnel matters affected by bargaining depends on the scope of negotiations as defined through labor agreements, the courts, and state legislation. Areas not subject to bargaining are governed by merit system rules and regulations. It is through scope of bargaining determinations that the conflict between collective bargaining and the merit system is engaged and resolved.

Most state collective bargaining laws limit negotiations to “wages, hours, and working conditions.” Working conditions may be interpreted broadly or narrowly, depending on the terms and conditions of employment covered by existing state or local legislation, personnel rules and regulations, and areas excluded from the scope of bargaining by management rights clauses. Most efforts to accommodate collective bargaining and the merit system have been aimed at excluding certain key personnel matters from the scope of negotiations, thereby keeping them within the domain of management.

As bargaining laws developed, some state legislation mandated blanket exclusions, whereas other laws stipulated specific exclusions of merit-related items from negotiations. New Hampshire, Vermont, and Pennsylvania, for example, had blanket

Union Impacts: Personnel Processes and Policies ◾ 195

exclusions restricting collective bargaining to matters not covered under merit system rules and regulations. California, Massachusetts, Rhode Island, and Washington specifically excluded certain items from bargaining, such as recruitment, selection, or, more broadly, management rights. Other states, such as New York, Michigan, Minnesota, and Nebraska, did not attempt to accommodate collective bargaining and the merit system through statute, leaving decisions, essentially, to the courts.

At the heart of the dispute are two related issues: (1) which subjects should not be submitted to collective bargaining and thereby should be reserved as manage- ment rights and (2) which system should prevail when merit system provisions conflict with collective bargaining contract language.

Title VII of the Civil Service Reform Act (CSR A) established a three-tiered sys- tem in the federal government. Core management rights, including agency decisions on the mission, organization, budget, and number of employees, are prohibited or nonnegotiable. So are certain operational matters, including contracting out, hiring, firing, and reductions in force. The second tier incorporates mandatory negotiating topics, which generally involve implementing agency decisions. Examples include decisions on how to ease impacts on laid-off employees. The third tier incorporates nonmandatory, or permissive, issues. These issues, such as the use of new technol- ogy in performing work, are negotiable at the option of management (Ban 1995: 131, 132). Conflicts over negotiability, which have been many because the boundar- ies between the three tiers are blurred, are resolved by the Federal Labor Relations Authority (FLR A) or the federal courts on a case-by-case basis. For example, unions successfully sued to block new “flexible” personnel rules promulgated by the Bush administration affecting 110,000 Department of Homeland Security employees and 650,000 employees in the Department of Defense (Thompson 2007: 111).

The trend in the states and localities has been to place more and more items on the bargaining table, except for those that are directly concerned with the quantity and quality of government services and those that involve policy questions related to the mission of the government employer. Most states exclude from the scope of bargain- ing recruitment, selection, promotions, and other “management rights.” The problem is that many such management rights are closely related to the “terms and conditions of employment” that are negotiable under collective bargaining statutes. For example, class size is both a teacher working condition and an element of education policy; simi- larly, the issue of one- versus two-officer assignments to police cruisers contains ele- ments of both working conditions and policy. Often, resolution resides with the courts, which typically apply a balancing test to determine what is negotiable. Would bargain- ing on the topic significantly abridge managerial prerogatives? Does the topic have a sig- nificant effect on the work of employees in the bargaining unit? Which effect is greater?

States differ as to how they respond when merit systems and collective bargain- ing provisions clash. Some states grant primacy to merit system provisions, but others (e.g., Connecticut, Massachusetts, Delaware, and Illinois) favor collective bargaining provisions in statute or contract. As an example, the Delaware statute (Labor–Management Services Administration 1972: 34) provides,

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Where there is a conflict between any agreement … in matters appro- priate to collective bargaining … and any charter, special act, ordi- nance, rules or regulations adopted by the municipal employer or its agents such as a personnel board or civil service commission, … the terms of such agreement shall prevail.

To reiterate, if statutory law does not clearly assign priority to merit system or bargaining provisions, the courts will make this determination on a case-by-case basis.

Gradually, public employee unions have caused a shift in personnel decision making from the realm of management rights to the rhetoric of the bargaining table. Even in the federal sector, where neither the CSR A nor any other statute can legally be overridden through a collective bargaining agreement, certain personnel functions have been influenced by negotiated settlements.

Collective bargaining and the merit system are not incompatible, but their rela- tionship has changed. Merit systems tend to be narrowest in coverage in the com- prehensive bargaining states, where they are reduced to their “essential” elements, depending on bargaining outcomes, legislation, court decisions, and political cul- ture and values. This is not necessarily detrimental to efficiency, effectiveness, and equity in public employment, all of which are stated goals of unions as well as management.

However, merit systems continue to suffer a broad-based attack from indi- viduals and organizations both inside and outside government for a variety of alleged (and actual) shortcomings. Collective bargaining has furnished fuel for merit system detractors by further complicating personnel rules and procedures and making “an already rule-bound field even more pervasively legalistic and liti- gious” (Newland 1984: 39). Government is characterized by less flexible personnel systems and procedures and less management authority than the private sector (Coursey and Rainey 1990), and collective bargaining tends to compound these tendencies. Bargaining has also raised issues—union security and the seniority criterion—that threaten to undermine the merit principle itself. In states and localities with long experience with comprehensive bargaining systems dual per- sonnel systems have developed, and efforts to integrate them are seldom witnessed. According to one experienced observer (Douglas 1992), this may be inevitable because of a fundamental clash of values: civil service systems are based on indi- vidualism, open competition, political neutrality, and other values that inherently conflict with the collective bargaining values of collectivism, equality, and uni- form treatment.

C. Unions and Threats to the Merit Principle There are at least four possible threats to consistent implementation of the merit prin- ciple in government: union security, seniority, affirmative action/diversity, and NPM.

Union Impacts: Personnel Processes and Policies ◾ 197

1. Union Security

As discussed in detail in Chapter 3, there are five possible variations of union security: closed shop, union shop, agency shop/fair share, maintenance of mem- bership, and dues checkoff. Union security provisions represent a threat to the merit principle. First, competition for jobs may be restricted if those who do not wish to join or otherwise support a union do not apply for available positions; those with less “merit” possibly gain employment. Second, under union shop, and agency/fair share, employees who refuse to join a union or financially contribute to it could be fired whether they are competent or not. Union security clauses, therefore, illustrate the tensions among the labor organization’s need for institu- tional security, an individual’s right of free association, and the merit system’s requirement that employment must be based on merit and not organizational membership.

Although there does appear to be a constitutional issue regarding the public employee’s right of nonassociation in the case of the closed, union, and agency shops, other less stringent union security provisions escape this problem. All things considered, it is doubtful that union security clauses present a serious threat to the merit principle. Most employees simply accept a requirement to join or contribute to a union as a condition of employment. However, growing political attacks on unions embrace the right-to-work doctrine, which effectively abolishes the closed, union, and agency shops. The predictable result is fewer dues-paying members of the bargaining unit, and a weakened union.

2. Seniority

Seniority involves granting preference in certain personnel actions based on an employee’s length of service to the organization. In the private sector, the seniority criterion has long been applied through contract clauses to promotions, transfers, layoffs, vacation time, and other personnel matters without any measurable reduc- tion in the efficiency and effectiveness of the workforce. In the public sector, the role of seniority in personnel decisions may be fixed in a collective bargaining con- tract or, more commonly, is implemented through statute or civil service rules. In both business and government, seniority offers an advantage in personnel decisions because it is objective and quantifiable. Length of service with an organization or in a particular job or department is a matter of record and an indication of experience and, plausibly, achievement. In jurisdictions where promotional examinations are not validated (demonstrably job related), seniority may even be a superior indica- tion of merit.

Seniority and merit do not inherently conflict in public employment. For example, application of the seniority criterion in determining vacation time, shift assignments, work locations, days off, and similar working conditions is widely accepted and presents little threat to the merit principle. In the case of promotions

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and layoffs, however, seniority and merit may be at odds. Public employee unions generally seek promotion of the senior qualified person. Unions regard seniority as a protection against favoritism in personnel decisions. Management, of course, believes that blindly applying this decision rule hampers flexibility and prefers to have the option of discounting seniority in selected promotion decisions.

When layoffs are based on last hired, first fired (as they normally are whether unions are key players or not), a perverse sort of self-seeking logic can arise in unionized settings in which more senior union members opt to exchange jobs of less senior members of the bargaining unit for their own security and well-being. Thus, the majority gives up nothing, whereas a small minority loses its livelihood. But in some settings, unions have chosen to protect jobs, foregoing pay raises. In negotiations with the governor during a severe budget shortfall in Connecticut, all but 1 of the 27 state bargaining units opted to defer pay increases to save jobs (only the state troopers chose wages, and they later reneged).

Ultimately, whether seniority detracts from merit considerations depends on how the criterion is applied. When seniority alone is the determining factor and other qualifications are ignored, merit suffers. For example, teacher unions have been criticized for negotiating seniority rules that leave principals little say in assigning teachers to classrooms. And when jobs are at stake, seniority rules can result in veteran teachers being reassigned to instruct in subjects in which they have little or no knowledge or expertise while more junior, fully qualified teachers are laid off.

For promotions, strict application of seniority precludes management consid- eration of relevant factors such as examinations and performance evaluations. The most senior individual simply receives the promotion. Usually, however, promo- tions are based on some combination of factors, with years of service being treated as only one (or the tie-breaking) consideration. When seniority is used in this man- ner, its influence is moderated to a point where it coincides with merit; length of service becomes the cutting point in promotion decisions in which more than one candidate meets the minimum job qualifications.

The use of seniority as a consideration in personnel decisions is long standing, and it predates the growth of public employee unionism. It is a decision rule that management frequently applies voluntarily. It is much easier for personnel decisions to be grounded at least in part on an indisputably objective criterion that enhances employee morale and encourages worker loyalty than to rely entirely on relatively more esoteric considerations such as unstructured oral examinations, nonvalidated written examinations, or flawed performance evaluations.

Seniority may weaken management authority, but this is not always a bad thing. The seniority criterion’s threat to the merit principle is overshadowed by more serious concerns, such as favoritism, nonvalidated examinations, and biased performance appraisals. Unions strongly adhere to the seniority criterion in per- sonnel decisions because of demonstrated problems associated with unchecked management discretion.

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3. Affirmative Action and Diversity

Merit, it has been argued, has two different components: special consideration in hiring, promotion, and retention policies for competence, and special consideration in personnel decisions for being deserving. It is the latter aspect that throws collec- tive bargaining and affirmative action into conflict.

Equal employment opportunity (EEO), as effectuated by the Equal Employ- ment Opportunity Act of 1964, prohibits discrimination in employment proce- dures and practices on the basis of race, color, sex, religion, age, and other factors. EEO is a nearly universally accepted principle in the United States, but achieving the EEO ideal is difficult, if not impossible, because of systematic discriminatory practices. Therefore, in an effort to eliminate barriers and alleviate imbalances in the workforce attributable to past discrimination, employers may take special “affir- mative” actions, such as efforts to recruit, hire, and promote members of under- represented and “protected” groups. The primary legal bases for affirmative action policies are Title VII of the 1964 Civil Rights Act, which prohibits private sector employment discrimination as a violation of the Fourteenth Amendment, and the Equal Employment Opportunity Act of 1972, which extends Title VII coverage to public employers.

Affirmative action and collective bargaining intersect in the use of the seniority criterion in personnel decisions. Problems arise when union-supported seniority rules inadvertently discriminate against women and other members of protected classes in promotions and layoffs because members of these groups may be the last hired. Affirmative action policies intended to overcome past or present discrimina- tory practices sometimes directly conflict with seniority clauses in collective bar- gaining contracts.

Public employee unions have a mixed record with respect to affirmative action and nondiscrimination. Organized labor has actively advocated legal rights and better working conditions for disadvantaged groups as part of its social and political agenda. EEO, affirmative action, and other diversity efforts are important items on this agenda, and they have been strongly promoted by some public employee unions, particularly AFSCME, Service Employees International Union, National Education Association (NEA), and American Federation of Teachers (AFT), all of which, of course, have sizable memberships of women and other protected classes.

On the other hand, craft-type unions in government have resisted EEO and affirmative action and management efforts to implement them (Riccucci 1990). Police and firefighter unions have been especially staunch opponents of these principles, and their membership rolls remain overwhelmingly white and male. Many white male police and firefighters, and their unions, have fought to main- tain discriminatory physical strength and agility tests and height requirements (the Americans with Disabilities Act [ADA] of 1990 has helped reduce this) and have ostracized and verbally abused women and minority employees (Riccucci 1988: 44–46; 1990: Ch. 5; Sass and Troyer 1999; Goode and Baldwin 2005). Such

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practices were addressed in a 2010 court settlement involving a group of African American firefighters called the Club Valients and the largely white International Association of Firefighters Local 22 in Philadelphia. The Valients alleged that Local 22’s city website posted racially harassing and discriminatory materials that created a hostile working environment (Shields 2010). They have also regularly challenged local government affirmative action plans. Of course, not all police and firefighter organizations discriminate against women and minorities, and there is growing evidence that police unions are actively supporting hiring greater proportions of female and minority recruits (Sass and Troyer 1999). Thus, occupational segre- gation in the protective services continues, but recent research indicates that the unions are not the primary culprits.

The empirical research presents mixed findings on unionization and minority and female employment. Kellough (1990) found that federal employee unions have not been an obstacle to African American, Latino, and female employment. Highly unionized federal agencies are likely to be more diverse in employee characteristics than those with weaker union presence, although Kellough suggests that this may be due to the fact that federal unions have simply organized more effectively in agencies that are already integrated.

In an extensive panel study of union members over time, Artz (2012) found that whereas union membership reduces the job satisfaction of women in the private sector, those in government service report higher levels of job satisfaction, even more so than men. Artz (2012) attributes this to a greater proportion of women in public sector unions and in union leadership than in private employment, finding that male-dominated unions tend to disregard the interests of women members in issues such as flextime and family leave. Another extensive study (May, Moorhouse, and Bossard 2010) determined that there is a higher percentage of women faculty at unionized universities and that they are tenured and promoted in greater propor- tions than at nonunionized higher education institutions.

The local government picture remains cloudy. Several studies found little or no relationship between municipal unionization and female and minority employ- ment (e.g., Davis 1984; Riccucci 1986). However, Mladenka (1991) discovered that municipal unions have a strong and negative impact on African American job suc- cess, but only in cities with large black populations and nonreformed (i.e., mayor– council, district elections, and partisan elections) systems of government, and that the unions had little or no effect on black employees in administrative, profes- sional, and protective service jobs. Mladenka (1991: 545) suggests that unions have less influence on hiring decisions made by professional city managers in reformed governments than they do in nonreformed governments, where “they operate to retard minority employment prospects severely” (see also Sass and Troyer 1999).

A variety of local conditions that are not related to unionization also influence minority and female employment. For instance, minorities generally fare better in cities with black or female mayors (Stein 1986; Behr 2000), high levels of diversity on city councils, and black personnel directors (Goode and Baldwin 2005).

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An issue that has received a great deal of attention in courts is the influence of seniority clauses on affirmative action during layoffs. In the private sector, the courts have found that seniority may be utilized as a decision rule for layoffs if (1) past hiring policies were not discriminatory, (2) individual workers who were laid off were not victims of prior employment discrimination, and (3) the criterion of seniority is applied in a neutral fashion with no intent to discriminate (Waters v. Wisconsin Steelworks [1974]; Watkins v. Steelworkers Local 2369 [1975]). However, when seniority systems inhibit the promotion of women and minorities because of past discriminatory practices in hiring and transfers, they may be declared illegal (Local 189, United Papermakers and Crown-Zellerback Corp. v. United States [1969]).

Several U.S. Supreme Court decisions have directly addressed the seniority/ affirmative action conflict in local governments. In Memphis Firefighters Local Union No. 1784 v. Stotts (1984), a federal district court had approved two affirma- tive action plans for improving the percentage of African American firefighters. A subsequent fiscal crisis forced the city to lay off 40 firefighters, most of whom were black, in compliance with a seniority clause in the collective bargaining con- tract. The black firefighters filed suit and won in the federal district and circuit courts. On review of an appeal by the firefighter union, however, the Supreme Court held that the lower courts should not have interfered with the seniority sys- tem to protect newly hired black employees. Thus, bona fide seniority systems take precedence over affirmative action when layoffs are required.

Importantly, the City of Memphis’s affirmative action plan was in the form of a consent decree in which no finding or admission of intentional discrimination was made and, of equal significance, the firefighter union was not a party to the decree (see Seaver 1984–85). Later Supreme Court decisions clarified Stotts and reduced its significance (Wygant v. Jackson Board of Education [1986]).

The lesson for local governments is that affected unions should be made for- mal parties to consent agreements concerning affirmative action or certain diversity enhancement procedures. Agreements can be incorporated into negotiated contracts. For example, minority and female employment gains may be protected through negotiated alternatives to layoffs, such as job sharing, voluntary layoffs, or buyouts.

The same lesson should be applied to measures taken to accommodate dis- abled employees under ADA. Under the duty of fair representation, unions must represent the interests of disabled members of the bargaining unit. Employers are advised to negotiate with the union on any job assignment, working hours, or other special dispensation for disabled employees. The U.S. Supreme Court deci- sion in U.S. Airways v. Barnett (2002) indicates that courts will prioritize seniority provisions in collective bargaining contracts over the ADA. For instance, a man- agement decision to accommodate a less senior maintenance worker with a dis- ability by a transfer to a desk job that a more senior employee is qualified for would violate contractual seniority rights. Rather than bypassing the union, which invites a dispute, the employer should consult with the union to work out an acceptable accommodation for all concerned.

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A conservative U.S. Supreme Court has shown little sympathy for affirmative action in higher education admissions, contracting decisions, and hiring and pro- motion policies. Today, affirmative action programs are being dismantled at all levels of government, except in instances where a past history of illegal discrimina- tion has been documented and the affirmative action program designed to redress past discrimination has been “narrowly tailored” (see Riccucci 1997; Goode and Baldwin 2005: 4). The current emphasis is for employers to develop broadly con- strued diversity programs that embrace myriad workplace demographic concerns, such as gender, color, language, disability, and religion. In any case, affirmative action and diversity programs do redistribute jobs to women and minorities, but with little or no loss of organizational efficiency (Holzer and Neumark 2000).

4. New Public Management

NPM, formerly referred to in the United States as Reinventing Government, was initially based on a widely read book of the same name by Osborne and Gaebler (1992). It is a far-reaching approach to improving the performance, productivity, and responsiveness of government. Its key themes are debureaucratization, decentraliza- tion, downsizing, privatization, and managerialism (adopting business ideology and practices in government). In essence, NPM represents an attack on bureaucracy and “big government.” Although NPM has chalked up many impressive achievements, as a broad strategy it remains riddled with inconsistencies and controversy (Ingraham 1997; Kearney and Hays 1998), from specious promises of empowering the very workers under assault to its simplistic theory of customer-driven government.

Unions, not unrealistically, tend to take NPM as a serious threat. At the federal level, Reinventing Government efforts were embodied in the National Performance Review (NPR) during the Clinton administration and spearheaded by Vice President Al Gore. The ambitious NPR initiatives included improvement of labor– management relations, which were widely recognized as being excessively adversarial and litigious. A presidential executive order (E.O. 12871) established the National Productivity Council (NPC) to coordinate agency-level labor– management partnerships for implementing a variety of NPR recommendations. E.O. 12871 also required agencies to negotiate with their unions on all subjects not expressly reserved to the president or Congress, thereby expanding the mandatory scope of bargain- ing and eliminating one of the three tiers of negotiability established by the CSR A.

Through the NPC, federal unions were significantly involved in developing labor–management partnerships. Sitting on the NPC were heads of the three largest federal unions (American Federation of Government Employees, National Treasury Employees Union [NTEU], and National Federation of Federal Employees). NPC recommendations included streamlining dispute resolution processes and provid- ing training in alternative dispute resolution techniques and encouraged collective bargaining for improving recruitment and selection, position classification, and performance management processes (U.S. National Partnership Council 1994).

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Despite serious efforts to construct an agreement on much-needed reform in federal HRM and labor relations practices, the signing of many agreements, and notable progress in the legislative and labor relations history in some agencies (e.g., Internal Revenue Service, Department of Labor, and Bureau of Engraving and Printing), the antiunion policies of the George W. Bush administration conspired to limit success (Doeringer et al. 1996; Moynihan 2005). The restrictions of Title VII of the CSR A on union security, wage and benefit bargaining, and other areas effectively constrain the possibilities for union and management bilateral decision making. Decades of sometimes bitter adversarial relations have separated the par- ties into hostile camps in some agencies. Uncertainty over which topics should be addressed by partnerships and which should more appropriately be determined through collective bargaining creates confusion among labor and management officials. As one union leader reportedly described the ensuing role conflict, “It’s hard to represent someone who’s being screwed in the morning, and then flip the switch and be buddies with management in the afternoon, when we are still angry” (quoted in Ban 1995: 134).

In agencies in which positive labor–management relations developed, the unions played a constructive role in government reform. In the IRS, for example, NTEU partnered with management to substantially reform an agency under extreme duress during congressional and public attacks in the late 1990s. However, in agencies unable to overcome their history of negative relationships, unions stifled reform attempts. For instance, unions in the Patent and Trademark Office were unable to agree with management on much of anything, even resisting plans to move into a new office building and efforts to progress toward a “paperless office” (Patent answers 1999: 81). It “takes two to partner,” and the Bush administra- tion’s rejection of the partnering process effectively derailed it for 8 years. President Barack Obama revived the partnership approach with a 2009 executive order creat- ing labor–management forums “to improve delivery of government services.” The executive order narrowed President Clinton’s requirement to negotiate over permis- sive items to “several pilot projects” in selected agencies. Assessments of the Obama executive order were not available at the time of this writing.

III. Specific Impacts of Unions on Personnel Functions and Policies

A. Management Rights

1. Management Rights (Scope of Bargaining)

Union and management disagreements on which personnel functions and poli- cies are essential to the merit principle, and should therefore be reserved for man- agement decision making only, are closely linked to scope of bargaining disputes.

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Management rights are defined outside the scope of bargaining and are prohibited from collective negotiations. Whereas unions seek to define it very broadly, man- agement tries to keep the scope of bargaining narrow.

a. Federal Employment

In the federal sector, the scope of bargaining is legally defined by Section 7106 of Title VII of the CSR A, which specifies management rights, and by management rights clauses incorporated into the contracts negotiated for the various federal agencies, departments, and other bodies (see Table 7.1).

Even though management rights and the scope of bargaining appear to be clearly specified, their practical application is somewhat nebulous, with results varying from agency to agency. The CSR A provides for negotiations over the procedures to be used by management in exercising its prerogatives. Federal unions do have a voice in how promotions, assignments, position classifications, transfers, layoffs, and other procedures are carried out. Most federal contracts also call for official union representation in establishing promotion, assignment, and other procedures. This is important because processes often determine outcomes. President Clinton’s E.O. 12871 opened the door to a more expansive scope of bargaining, but as repeatedly noted President George W. Bush rescinded it. Bush also launched attacks on bargaining rights and the scope of bargaining under the banner of “homeland security.” The result, particularly in the Department of Homeland Security, was an expansion of management authority and the consequent narrowing of the scope of bargaining (Brook and King 2007; Thompson 2007).

Federal unions are prohibited from bargaining over matters that are governed through federal statute, such as hours of work, sick leave, annual leave, and holi- days. However, because these and related matters require the implementation of procedures, unions often have an influential voice.

Federal employee unions have made some inroads in these personnel areas and into the field of management rights. In the legal absence of wage and benefit bar- gaining and union security arrangements, they must struggle to justify their exis- tence to current and potential members; personnel policies and procedures offer one promising track. However, the uniform, formal management rights as stipu- lated in the CSR A and union contracts have erected a barrier, albeit permeable, to expanding the scope of bargaining. As a consequence, federal management has generally retained its traditional rights more successfully than state and local man- agers who must operate within a union environment.

b. State and Local Governments

Although management rights clauses are common in state and local labor agree- ments, they tend to be less constrictive than the standard federal provisions. Most, however, are at least partly modeled on the federal management rights clause incor- porated in Section 7106 of the CSR A.

Union Impacts: Personnel Processes and Policies ◾ 205

Table 7.1 Federal Management Rights under Section 7106 of the CSRA

7106. Management rights

(a) Subject to subsection (b) of this section, nothing in this chapter shall affect the authority of any management official of any agency

(1) to determine the mission, budget, organization, number of employees, and internal security practices of the agency; and

(2) in accordance with applicable laws

(A) to hire, assign, direct, lay off, and retain employees in the agency, or to suspend, remove, reduce in grade or pay, or take other disciplinary action against such employees;

(B) to assign work, to make determinations with respect to contracting out, and to determine the personnel by which agency operations shall be conducted;

(i) among properly ranked and certified candidates for promotion; or

(ii) any other appropriate source;

(D) and to take whatever actions may be necessary to carry out the agency mission during emergencies.

(b) Nothing in this section shall preclude any agency and any labor organization from negotiating*

(1) at the election of the agency, on the numbers, types, and grades of employees or positions assigned to any organizational subdivision, work project, or tour of duty, or on the technology, methods, and means of performing work;

(2) procedures which management officials of the agency will observe in exercising any authority under this section; or

(3) appropriate arrangements for employees adversely affected by the exercise of any authority under this section by such management officials.

* These are “permissive” topics under E.O. 12871.

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Management rights clauses may be set out in state bargaining laws, local ordinances, and union contracts. Whatever the source, the effect is to place certain items outside the scope of bargaining. Unions ostensibly abide by legal restrictions on the subject matter of bargaining. As in the federal sector, how- ever, decision-making procedures used to implement management policies may be negotiated. Additionally, state and local unions often insist on having a voice regarding the effects of management decisions in proscribed areas. As noted by Stanley (1972: 22), “The boundary is uncertain, the distinction fuzzy, because management really directs the work with the consent of employees.” When man- agement rights are not formally reserved through statute, ordinance, or con- tractual language, the presumption is that all working conditions and terms of employment are negotiable.

Even when management rights clauses exist, weak state and local managements have been known to bargain away some of their reserved rights. Municipal unions in New York City significantly eroded management rights more than four decades ago. Union gains were due in part to a muddied fiscal and political situation and certain decisions of the Board of Collective Bargaining interpreting management prerogatives. Horton (1973: 75) stated, “By 1970, the major unions for all practical purposes bargained with the City government on whatever managerial issues they wanted and refused to bargain on issues they wanted left alone.” Like virginity, once sacrificed, the loss of a management right becomes a permanent condition.

In general, the strength of management is directly related to the strength of the management rights clause in a labor agreement and how successfully it is enforced. Municipal management today is insistent on placing management rights clauses in labor contracts. More than 90% of American cities have such a clause in at least one union contract. Most frequently listed is the right to determine missions, policies, budget, and general operations.

Notwithstanding formal management rights verbiage, unions continue to encroach. Their effect on management depends on many factors, including bargain- ing history, political and organizational culture, union–management relationships, and leadership style, but one thing is certain: managing in a union environment is more difficult and complicated than managing in a union-free setting.

B. Management Structure “Management structure” refers to the organization of managerial authority for per- sonnel issues. Personnel policy making has become more centralized in the public sector in response to union activity. This is a union impact long observed in private employment as well.

In a classic labor relations study, John F. Burton (1972) documented the cen- tralization of management authority in public employment that resulted from collective bargaining in 40 local government units. Before the emergence of col- lective bargaining, management structure was characterized by a “bewildering

Union Impacts: Personnel Processes and Policies ◾ 207

fragmentation of authority for personnel issues among numerous management offi- cials,” including the chief executive officer, civil service commissioners, personnel director, department head, budget director, and city attorney (Burton 1972: 127).

When collective bargaining first arises, the usual first response of local government management is to impose a bilateral system on the preexisting authority structure with little or no alteration. This is understandable because local governments use whatever labor relations expertise that exists to avoid dis- ruption of authority relationships. However, the situation soon becomes unstable because (1) staff officials have little collective bargaining expertise, (2) labor rela- tions are time consuming and demand full-time attention by officials, and (3) authority for labor relations remains fragmented in a jurisdiction with multiple centers of political power. The last problem is especially serious because it tends to promote end runs and whipsawing. After an initial experience with collec- tive bargaining under these conditions, most cities have responded with efforts to centralize management structure and thereby stabilize labor–management relations.

Collective bargaining has had similar impacts on management structure in higher education institutions. There has been a marked (and much maligned by faculty) concentration of power in college and university central administrations at the expense of deans and department heads. Faculty bargaining further enhances administrative power and authority. Faculty power coalesces in unions in most cases, with union committees displacing the power and influence of traditional faculty senates.

The tendency in unionized government has been for the executive branch to acquire authority at the expense of the legislative body and independent civil ser- vice commissions. Then, as labor relations further develop centralization of man- agement authority occurs within the executive branch, with bargaining authority being transferred from budget and human resource staff to full-time labor rela- tions specialists. In many jurisdictions, selected aspects of collective bargaining and labor relations are contracted out to private specialists such as labor lawyers. These developments are both logical and advantageous to management because the executive branch is the best place to devise negotiating strategies and coor- dinate management’s positions on issues. Labor relations specialists can master the vicissitudes of bargaining. Finally, there is an important advantage to having the executive branch negotiate the contracts that it ultimately will be required to administer.

From the union perspective, the centralization of management structure also may be considered a good thing. Unions, generally speaking, want to bargain with a party who can render binding decisions and deliver the goods. Fragmented management creates an unstable bargaining environment that can offer some short- run tactical advantages to a union, but in the long term, both parties benefit from positive mutual adjustment and the lessening of conflict within the context of a mature, defined collective bargaining relationship.

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C. Personnel Processess A wide spectrum of personnel processes are subject to negotiations. Many of them are included in Table 7.2.

1. Recruitment, Testing, and Selection

Recruitment, testing, and selection of employees are personnel functions that fall within the traditional purview of management. Generally speaking, they remain management prerogatives. Nonetheless, in some instances unions have penetrated these traditional areas of management rights.

Recruitment practices may be affected through union efforts to determine or at least influence job qualifications and position descriptions and any modifica- tions to them. Experience suggests that resistance to changes in job qualifications is common. Unions are eager to assist in recruiting new workers to join the union family; management’s role is to guard against any sort of illegal or unethical bias in the recruitment process.

Some public employee unions oppose examination policies because of the absence of demonstrated validity of the testing instruments. AFSCME has fre- quently gone on record against written tests because they may discriminate against poorly educated minorities and immigrants, suggesting that performance tests

Table 7.2 Nonmonetary Subjects Typically Included in Contracts

Union rights Discipline and discharge

Management rights Holidays and vacations

Union security Sick leave

Grievance procedures Child care, elder care

Hours of work, work schedules Leaves of absence

Alternative work arrangements (e.g., flextime and telecommuting)

Position classification

Health and safety Training and education

Seniority Past practices

Layoffs Subcontracting

Bumping and recall procedures Privatization

Labor–management committees New technology

Inclement weather procedures

Union Impacts: Personnel Processes and Policies ◾ 209

should be used instead. Unions are also on guard against psychological and person- ality testing as well as the possibility of genetic screening of job applicants and even current employees. Might those current and prospective workers found to have genetic predispositions to disease be discriminated against? What about protection of privacy? In the absence of federal or state law on genetic screening, unions are certain to insist on addressing such questions at the bargaining table and in con- tracts (Barclay and Markel 2007, 2008).

Employee selection also attracts union attention. Unions generally seek to limit management discretion in hiring. Conventionally, according to civil service rules, agency or department heads in a state or local government had to select a new employee from one of the top three scorers on an entrance examination—thus, the “rule of three.” By permitting some degree of employer discretion, the rule of three implicitly recognizes the vagaries and imperfections of testing procedures. The trend today is to extend the selection pool to 5, 10, 20, or even more applicants. In some jurisdictions, however, the rule of one prevails despite recognized testing inadequacies. Here, agency or department heads are not allowed to exercise any discretion; they must offer the position to the individual who scores the highest on the examinations.

Teacher unions probably influence selection processes more than unions in any other occupational category. Analysis of a national sample of 80 collective bargain- ing contracts found that 84% of teacher agreements included policies governing teacher selection to fill existing vacancies. Typically, these provisions establish a hiring pool consisting of “teachers who have been laid off recently; requested vol- untary transfer; been involuntarily transferred; returned from leave of absence; or served as substitutes” (Goldschmidt and Stuart 1986: 354). Vacancies are filled by prioritizing these conditions and, usually, taking into account the seniority of pool members as well.

Unions also have an interest in shortening employee probationary periods as an additional means of restricting management hiring discretion. A major fault of public sector management is its failure to remove unsatisfactory workers during probationary periods, when termination usually cannot be appealed or grieved. The union position is that management should have to render a quicker determination of employee suitability than in the usual 6 months, giving probationary employees an even greater benefit of the doubt.

2. Promotions

Union interest aside, promotions safely remain a matter outside the sphere of union influence in most settings, with the exception of seniority preferences. What do the unions want with respect to promotions? They want non-entry- level jobs to be filled through the promotion of employees in the bargaining unit, taking into account seniority. This objective is not necessarily out of touch

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with management’s basic preferences. Promotion from within is a decision rule for many government department heads, agency heads, and personnel directors because it is good for employee motivation and morale and minimizes recruit- ment and time costs. Seniority is often the primary criterion used in determin- ing promotion for employees whose qualifications are relatively equal. It should be mentioned, however, that exclusive promotion from within is not congruent with the merit principle because in this case highly qualified outsiders are not even considered for jobs. In fact, lateral entry that opens positions to persons outside the organization offers some distinct advantages. Public organizations, perhaps even more than private firms, need periodic infusions of new blood and fresh ideas. Moreover, individuals with private and nonprofit sector expe- rience may contribute useful perspectives on how to do things differently in government.

3. Training and Development

Despite the preaching and proselytizing of training and development specialists, the formal training of public workers for improvement on the job or preparation for a higher ranking position has never been a priority item in public sector HRM. The conventional perception is that training is desirable if extra funds can be found, but the training function should be the first to be cut during budget reductions. Thus, as a “stepchild” of public personnel administration, training has traditionally received minimal attention from management. Unions, too, were slow to recognize their potential role and responsibility in promoting the development of skills of their members.

However, unions today have gradually begun to value training programs for their membership. Some sponsor their own programs, such as assisting members to study for high school equivalency tests and promotional examinations. Career development for members of protected classes aids equal employment and diversity goals and can help crack the glass ceiling that blocks them from upper level posi- tions in many government organizations.

Unions have promoted three types of career development: helping workers in “dead-end” positions move into jobs with established career patterns (e.g., from data input clerk to office manager); creating new, permanent “bridge positions” and career ladders between existing jobs (e.g., various paraprofessional occupations); and upgrading workers’ skills to qualify them for expected future vacancies (Figart 1989). Unions also favor tuition reimbursement and paid leave for training and development-related activities.

Though training and development are perennially neglected in public employ- ment, training of government workers redounds to the benefit of the workers them- selves, their unions, management, and the general public. Workers develop skills that can help them win promotions, and unions, management, and the citizenry gain from more effective, productive, and satisfied government workers.

Union Impacts: Personnel Processes and Policies ◾ 211

4. Position Classification and Staffing

In most public jurisdictions in the United States, jobs are organized into classes or groups on the basis of the responsibilities, duties, skills, and qualifications assigned to them. Positions are analyzed and evaluated on the job characteristics and the work performed and then grouped into classes according to their similarities and differences. Class standards establish the boundaries for each group of positions. Unions are interested in classification plans because they serve as the framework for the organization’s compensation structure.

The product of position classification is an ordering of individual positions within job classes. For example, the HRM division within a state social services agency might contain the positions of personnel analyst I, II, and III; or a municipal finance office might be assigned a class for accountants, with the positions accoun- tant I, II, and III and senior accountant. Usually, position classification is a man- agement responsibility of the state central HRM agency and the local government personnel director, assisted as necessary by private consultants. In federal employ- ment, position classification is a duty of the Office of Personnel Management.

Public management has typically viewed classification as a management pre- rogative and hence not a proper subject for bargaining. The basic argument is that the classification of positions is an objective, scientific enterprise that serves as the cornerstone of the merit system. Positions are placed into classes in accordance with empirically determined job descriptions. However, the union perspective is that position classification is inherently subjective and arbitrary, especially when positions are classified across occupational functions. For example, should a data entry person be compared to a maintenance worker or a senior secretary to a new assistant personnel officer? Such decisions, the unions claim, involve value judg- ments. Therefore, they should be subject to collective negotiations.

In federal employment, according to Title VII of the CSR A of 1978, agencies may negotiate “… on the numbers, types, and grades of employees or positions assigned to any organizational subdivision, work project, or tour of duty….” In most federal contracts, unions participate in position classification. In some, for instance, unions exercise influence through joint committees on position classifica- tion standards.

Position classification has also been pulled within the scope of bargaining in many state and local jurisdictions. Unions accept the need for a system of position classification, but they want to have a voice in it because it affects compensation so directly. They want to participate in decisions to assign new jobs to higher pay grades and to create new positions for promotional opportunities. They also seek higher pay and shorter time limits for employees working “out of class.”

Reclassifying jobs to higher pay grades is a rather complex procedure involving a variety of personnel actors, including the department head, agency or department personnel staff, and the central personnel agency. Unions may directly negotiate for reclassification where it is permitted, or they may attempt to influence any or all of

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the personnel actors. The creation of new jobs is particularly sought for occupations in which employees have little opportunity for promotion after the first few years on the job. The police function serves as a good example. Police patrol officers can “top out” at maximum pay after about 5 years. Higher pay can be achieved only through cost-of-living adjustments, seniority pay, or promotion to a supervisory or investigative position (jobs for which a good patrol officer may not be suited). In some cases, unions have been instrumental in creating a new position, such as “master patrol officer,” to reward senior officers on the beat with higher pay for their experience.

The matter of properly compensating employees for out-of-title work in higher rated jobs is also a concern. Unions submit that when an employee performs the duties of a higher paying job because of a vacation, illness, temporary vacancy, or some other reason, that employee should be fully compensated at the appropri- ate rate of pay. Moreover, the unions say, after a designated period of out-of-class work the “temporary” employee should be promoted into the job. Disagreements between unions and management on out-of-class work may be settled through grievance or merit system procedures, a partnership approach, or appropriate lan- guage in the contract. For example, a contract may stipulate that an employee will be paid at a higher rate if he or she works 4 or more hours at a higher rated position. Properly rewarding employees for the nature of the work they perform seems an equitable proposition for which unions often win support.

The trend is toward replacing stringent position classification systems with a more flexible approach known variously as broadbanding, pay banding, or flex- ible banding. Existing position classes are collapsed into a broader range of posi- tion descriptions, permitting greater management flexibility in both reassigning and rewarding employees. Managers like the enhanced flexibility; unions enjoy any pay advantage but do not like the extension of management authority in assigning jobs.

In some federal partnerships, unions and management have negotiated the terms of new broadbanding systems. A collaborative approach has proved to be productive in some state and local settings as well. But in others, where preemptory actions have abolished or significantly altered the traditional merit system and posi- tion classification in favor of nearly absolute management autonomy, unions have been vehemently opposed to broadbanding. Staffing levels are of inherent interest to unions, who link staffing to the quality of services. A larger, more fully staffed bargaining unit also translates into more members of that bargaining unit (see Chapter 6 for the tradeoffs between compensation levels and jobs).

5. Workload and Scheduling

These closely intertwined issues refer to the amount of work required of indi- viduals or groups of employees, the decision as to how many workers are required to perform that work, and the manner and time in which the work is

Union Impacts: Personnel Processes and Policies ◾ 213

to be done. In federal employment, agencies may negotiate with unions over the numbers of employees or positions assigned to work projects as well as the means of performing work. They seldom bargain over total hours of employ- ment, which are fixed, but alternative work arrangements (e.g., telecommut- ing) are negotiable. In state and local governments, maximum working hours may be set by law or by contract. In some locations, employee organizations have won major workload and scheduling concessions from management in overtime provisions, shift assignments, overtime compensation, weekend and holiday differentials, meal and rest periods, cleanup time, and transfers to other jobs or different locations.

Unions have campaigned and bargained for a shorter workweek for more than a century. The 40-hour week remains the standard, but reductions to 37.5 and 35 hours have been won in some jurisdictions. Police and firefighter unions have won reductions in total working hours as well as shift hours. Teachers bargain over the length of the school year and the school day, the number and size of classes, and the contours of year-round schooling. Teacher union efforts to shorten the length of the workday or school year face significant legal and practical limits, however, from state laws mandating a standard school year and citizen and paren- tal opposition to altering the public school timetable.

In an interesting departure from the norm aimed at improving a public edu- cation system in crisis, the Rochester, New York, City School District and the Rochester Teachers’ Association negotiated a longer school year. In exchange for a more than 40% increase in salaries, teachers agreed to work an extra 5 days a year, take personal responsibility for a group of students, and make home visits (Doherty and Lipsky 1988: 56, 57). In 2011, Illinois Governor Pat Quinn signed legislation that extended the length of both the school year and the school day (Malone 2011).

Teachers have attained other gains in the general area of workload and sched- uling and have managed to open the scope of bargaining wider than any other occupational function in the United States. Teachers have demanded and won relief from nonteaching chores, such as milk distribution; playground supervision; cafeteria, bus, and hall supervision; book distribution; and copying materials for classroom use. Duty-free lunch periods for teachers have also been established, as have limitations on work beyond the regular school day. Teachers have gained extra compensation for after-school administrative meetings, parent-teacher conferences, and other extracurricular activities. They have also won provisions limiting invol- untary teacher transfers and requiring teacher assignments to be based on charac- teristics such as certification, seniority, and experience (Goldschmidt and Stuart 1986: 354).

Teachers have staked a claim in the field of education policy making by demanding to include class size in the scope of bargaining (Stone 2000: 53, 54). This appears to be an instance in which a workload factor links logically to the quality of education. More students mean more work for the teacher, less time for the teacher to spend with each student individually, and higher probability

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of disciplinary problems. Where class size falls within the scope of bargain- ing, student-teacher ratios tend to be smaller. When it is excluded from nego- tiations, teachers seek to win salary increases for large class sizes and workloads (Woodbury 1985).

Other unions have been concerned with workload and scheduling, too. Nurses face enormous pressures in acute care departments and facilities under the best of circumstances, but when they have to work 12- to 16-hour shifts or double shifts because of staff shortages, patients are at greater risk from nursing error. Along with managed care and the infusion of profit-making considerations, the national nurse staffing shortage has exerted a significant negative effect on the nursing profession. Unions rightfully capitalize (and organize) in such a setting, fighting for a more favorable nurse-per-patient ratio, shorter hours, and improved working conditions (Clark and Clark 2006).

Understaffing can create unacceptable and dangerous situations in other occu- pations as well. When the Federal Aviation Administration preemptively ended a negotiations impasse in 2006 by imposing a new contract with staffing cuts, new work rules, a 30% pay cut, and even a dress code, air traffic controllers retired in droves. According to their union president, the 6-day workweeks and staff short- ages deeply concerned controllers, who feared that fatigue could lead to them mak- ing a deadly mistake in air traffic routing (Sniffen 2007).

Police unions may interpret work assignments as a safety issue in situations involving one- or two-officer patrol cars. Some unions assert that two officers are necessary to maximize officer safety, but police management wants flexibility in assigning officers according to time of day and geographic area. Police unions have also struggled with management over the matter of using civilian employees for administrative, clerical, and dispatcher jobs, preferring to use sworn officers instead. Management typically prefers to keep more officers on the street by placing lower-paid civilians in support positions.

Unions have successfully engaged the issue of f lexible work schedules. A growing percentage of the total public and private labor force is involved in f lextime, job sharing, telecommuting, or permanent part-time work. Interest in such arrangements has developed with the changing demographics of the work- force, including semiretired employees, working mothers, and family-oriented fathers. Flextime can help employees cope with difficult commutes and rush- hour traffic by permitting them to come and go to work at various times between 6:00 a.m. and 8:00 p.m. Nearly three-quarters of federal employees take advantage of this type of program, as do a substantial number of state and local workers. Studies show that f lextime can have positive effects on morale, reduces absenteeism and tardiness, and enhances productivity (Kemp 1987: 79–81; Lee and DeVoe 2012). It appears to be a win–win issue for unions and management, as are “f lexiplace” and telecommuting, in which employees do their work at home or at regional work centers on personal computers while saving time on transportation.

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6. Grievances

Grievance procedures, which provide a formal avenue for employees to tell their side of the story in an objective setting about problems arising on the job, are sec- ond in union interest only to wages and benefits. As in the case of compensation, this is an element of HRM on which unions have had a significant effect. Virtually all bargaining jurisdictions have contracts with negotiated grievance procedures. Most provide for binding arbitration as a final step in cases in which grievances cannot be settled at the agency or department level. (Grievance procedures receive full treatment in Chapter 10.)

7. Employee Discipline

Closely related to grievance procedures is employee discipline. Disciplinary actions by management are frequently the triggering mechanism for grievance procedures. In general, unions have sought to protect employees from unfair disciplinary actions by formalizing the process and placing the burden of proof on management. They have also fought to negotiate procedures through collective bargaining instead of traditional civil service rules. Typically, unions represent the accused employee in any disciplinary proceeding.

It may well be that the most important union influence on disciplinary actions is tacit. Union influence is registered long before formal disciplinary actions are actually taken because supervisors are fully aware that hasty or unfair adverse actions will be successfully contested.

8. Dismissals and Layoffs

It is not a simple matter to dismiss a government employee, even under abnormal circumstances, once the initial probationary period has expired. Due process is a powerful value in public personnel administration, and courts and arbitrators have consistently held that nonprobationary public employees have property rights in their jobs. Public employers can rarely follow the employment-at-will doctrine and dismiss an employee for a good reason, a bad reason, or no reason at all (Muhl 2001). Courts have become important policy makers in personnel matters. With respect to employee dismissals, the tendency is for the courts to establish proce- dural safeguards so elaborate that, for all practical purposes, public employees have become tenured, with “ownership” of their jobs. In combination with merit system protections, vigorous union appeals, and sympathetic arbitrators, this has made most public employees nearly immune from being fired (see Hays 1995).

Generally, workers covered by bargaining contracts enjoy comprehensive protections against arbitrary dismissal. Employers must prove “just cause” for a sacking to stand, and unions effectively fight anything that smacks of wrongful dis- charge. Indeed, such protective actions are a major selling point to potential union

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members. Sometimes, however, unions may go too far in defense of their members. For example, a Hartford, Connecticut, firefighter was fired on three separate occa- sions from 1981 to 1991. A chronic alcoholic, he missed 1 out of every 4 workdays and was often sent home drunk. Incredibly, he frequently drove fire trucks. Once, when he had an accident, it was determined that his driver’s license had been sus- pended for 6 months on a drunk-driving charge. Yet the union staunchly defended the miscreant and got him reinstated each time. Finally, more than a decade after his first sacking the firefighter was permanently removed from his job (Hartford Courant 1992).

An interesting issue concerns employee dismissal for off-duty misconduct. The principle that has evolved in courts and in arbitration hearings is that discharge is justified when the misconduct has a demonstrated adverse impact on the employer. Examples include the firing of a state liquor store employee for fatally injuring “a 71-year-old woman who asked him to stop beating his wife,” a police officer who gave illegal drugs to a police department informer, and a high school teacher who was seen socially with one of her students (Hill and Dawson 1985). Once the alleged misconduct is proved, it must be demonstrated that the misconduct dam- aged the agency’s image or “product” through adverse publicity, through another employee’s refusal to work with the offender, or by making the offender unable to perform his or her job. Generally, those in sensitive jobs such as law enforcement, fire protection, and teaching are held to higher standards than other government workers.

In some jurisdictions, overtly pro-union grievance arbitrators have made it nearly impossible to fire a union member no matter how outrageous the offense. In Connecticut during the late 1990s, the State Board of Mediation and Arbitration “reinstated a cop fired for giving up an informant, a school warehouse supervi- sor caught embezzling thousands of dollars from his union, a parks worker who abused his boss,” and a prison guard who uttered racial slurs and vulgarities into the answering machine of an African American state senator (Condon 1998: B1).

Teacher tenure became a hot-button issue in the late 2000s. First adopted in 1909, tenure policies were eventually enacted by nearly all states and school districts. Their purpose is to protect teachers from being fired on discriminatory or arbitrary grounds, such as gender, religion, nationality, cronyism, or politi- cal beliefs. Tenure, which is accompanied by strong job protection, is typically awarded after 2 or 3 years on the job. As the public spotlight was turned on ineffec- tive teachers as a factor in poor student and school performance, tenure came under attack. To be sure, many teachers have been awarded tenure simply for showing up in the classroom for a sufficient length of time. Once awarded, tenure makes it extremely difficult for school administrators to dismiss poorly performing teach- ers. Until very recently, teacher unions staunchly defended tenure and fought any efforts to weaken it.

Beginning around 2010, governors, legislators, and school reformers took aim at tenure (Gabriel and Dillon 2011). Idaho and Florida ended teacher tenure

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outright in 2011 (voters overturned the Idaho law in 2012), and eight states have made demonstrated effective performance a requirement for receiving tenure or stipulated that poor performance will result in the retraction of tenure (Bonner 2012). In New York City, 97% of teachers eligible for tenure received it in 2007. But in 2012, tenure was awarded to only 55% of those eligible (Baker 2012). The school board fired the entire teaching staff and administration in Central Falls, Rhode Island, in 2010 (Zezima 2010). Confronted with a tsunami of criticism, the AFT and the NEA have grudgingly accepted certain limitations on tenure and recognized the need to make effective teacher performance a requisite for earning and keeping it. However, the teacher unions are adamant that teacher performance evaluation should involve much more than standardized test scores, including peer review of teaching.

9. Reductions in Force

Procedural protections for individual employees apply only marginally when agency- or government-wide reductions in force are implemented. Unions do exert influence on which workers are to be laid off and what the priority and procedures are for reemployment. Unions, of course, favor the criterion of seniority. “Bumping rights” is a common negotiation item that establishes the conditions under which a more senior qualified worker in one unit can displace a less senior worker in another unit during a reduction in force. The basic union position is that less-senior workers should be the first to be laid off and the last to be rehired. In general, this is not a point of contention with management, although seniority in retention and reem- ployment remains a common topic in formal contract negotiations.

Alternatives to layoffs are sometimes sought by unions, depending on member sentiment and management consent. Possibilities include work sharing (two full- time positions are collapsed into two half-time jobs), rotating layoffs, furloughs, and voluntary days off without pay. Traditionally, however, unions prefer seniority- based layoffs to alternative arrangements.

10. Other Human Resource Management Policies

Unions have been influential in designing and establishing other human resource– related policies. Several are considered here: technological change; productivity; privatization; worker health and safety issues, such as smoking, disability, and drug use; workers’ compensation; and miscellaneous terms and conditions of employment.

a. Technological Change

Private sector unions have long been interested in the consequences of tech- nological change for their membership, and, historically, they have opposed

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labor-saving innovations that reduce the number of union jobs. Union success in this area has led to the practice of “featherbedding,” in which idle employees are kept on a firm’s payroll indefinitely.

There are limits to the application of labor-saving technology in the public sec- tor because of the labor intensity of government services. Still, certain services are better candidates for technological innovations than others. Garbage collection is one such area, where changes have included trash compactors, standardized carts, automated collection systems, and one-person crews. Stanley (1972: 100) relates an amusing story involving early technological change in solid waste collection in Detroit: “Management proposed increasing the productivity of garbage collec- tion trips by using a rig known as a ‘motherloader’—a garbage truck towing a trailer. The employees took one look at it, changed its name, and started for home. Management soon dropped the idea because the equipment had technical, as well as labor-relations, drawbacks.” Similarly, “bandit trucks” with one-person crews and 9-foot automatic arms have been opposed by sanitation unions, which claim that the massive vehicles are unable to navigate narrow streets or work on both sides of the road at the same time, leading to less efficient trash collection compared to traditional trucks.

The employment and work scheduling effects of information technology have received union scrutiny and become a frequent subject for bargaining. Automation can replace humans with technology, resulting in reduced demand for various sup- port workers. Information technology also presents new opportunities for alterna- tive work schedules and workplaces, as noted earlier. All of this is of interest to unions.

Most public employee unions claim that they are not opposed to technological changes, given the following conditions:

1. The changes can be shown to be beneficial to the particular service. 2. Workers’ jobs are adequately protected. 3. Employees will share any monetary gains from productivity improvements. 4. Changes in the place, rules, and hours of work are negotiated or, at a mini-

mum, subject to consultation with the union. 5. The union receives advance notice of planned technological change.

The most important condition is that employees must be protected from job loss or, where this is not entirely possible, that severance pay, natural attrition, reas- signments, early retirement, or other arrangements are utilized.

b. Productivity

Maximizing outputs while minimizing inputs—productivity—is a significant con- cern of public managers (Kearney and Berman 1999). To improve levels of produc- tivity, however, one must first be able to measure it; this presents problems in the

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public sector, where labor-intensive services, not goods or manufactured items, are the product. Government services do have identifiable output (process) and out- come (results) indicators, but in practice they are difficult to collect and interpret.

Empirical research on private sector unions has generated mixed findings. Freeman and Medoff (1984: ch. 11) concluded that unions enhance productivity because in unionized settings management hires higher quality workers, purchases more capital-intensive technology, expands training opportunities, and benefits from lower employee turnover. Research also suggests that improvements in prod- uct quality and quantity are more likely to be achieved through programs jointly designed and administered by unions and management compared to settings with no union involvement (Kearney and Hays 1994). However, unions can thwart pro- ductivity improvement efforts, and their wage-setting activities may cause research and development funds to be displaced by payroll costs. Also, although unioniza- tion may be associated with low turnover, it is related to higher absenteeism as well. To summarize, little reliable evidence exists regarding the productivity effects of private sector unions.

In government, the influence of unions on the quality and quantity of services is also uncertain or variable. With respect to productivity in specific functions, unions have cooperated in adopting productivity improvement technologies in some municipal sanitation departments but not others (Lewin 1986). In a number of documented cases, work rules for police and firefighters have depressed produc- tivity. Detroit offers an example, where highly trained, uniformed police officers mop floors and maintain patrol vehicles. Another productivity-sapping Detroit work rule prohibits drivers from joining parks and recreation crews in their tasks (Maynard 2012b).

Sanitation unions have found themselves with a Hobson’s choice in cities where privatization is a looming threat. Private contractors tend to be freely available and more productive and less expensive than municipal sanitation departments in col- lecting household and industrial waste, largely due to smaller crews, lower wages, inferior benefits, newer equipment, less absenteeism, and superior incentive systems (Lewin 1986: 255; Hoover and Peoples 2003). If municipal unions fight technologi- cal change (such as new sanitation trucks with smaller crews), management may pursue privatization. Instead, if unions accept technological improvements work- force reductions eventually follow, diminishing the ranks of dues-paying members. Unions have adamantly—even violently—opposed technological change and priva- tization in some cities (e.g., Tampa, Florida; Salt Lake City, Utah; and Camden, New Jersey). In other cases, sanitation unions have addressed the issues through labor–management committees or productivity bargaining (Lewin 1986: 259, 260).

For decades, a debate has raged over the issue of teacher productivity in public schools. The debate is really part of a larger dialogue over the role of teachers in education reform and in improving the quality of schools. Conservative scholars and pundits have laid much of the blame for the perceived deteriorating quality of public education (K-12) on teacher unions, accusing them of driving up costs,

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protecting incompetent teachers, ignoring the education needs of children, and opposing meaningful reform efforts, such as educational choice. Teacher unions and progressives view teachers as the key element in any serious effort to reform the schools. Unions argue that they boost productivity by giving teachers a meaning- ful voice in school and classroom decisions, thereby bolstering teacher morale and reducing turnover rates (Carini 2008: 217).

Several empirical studies have been conducted on the effects of teacher unions on public school productivity. Eberts and Stone (1987) found that for elementary schools unionized school districts were 7% more productive for average students than nonunion districts when productivity was measured in terms of student scores on standardized tests. However, union districts were about 7% less productive for students either significantly above or significantly below average, possibly because teacher unions support standardized educational practices more than specialized instruction techniques of greater benefit to very advanced and very delayed stu- dents. Across all students, the union productivity advantage was a “modestly posi- tive” 3% (Eberts and Stone 1987: 359).

Kurth (1987) weighed in on the debate with an analysis of SAT scores. He determined that several factors were related to student test performance, including exposure to the written word, parental involvement, an urban environment, and education spending. Teachers’ unions were found to have a highly negative impact on student performance. Kurth concluded that unions significantly impair teacher productivity and student educational achievement.

Kurth’s findings were vigorously attacked by Nelson and Gould (1988), who argued that Kurth’s mathematical model was misspecified (“theoretically shallow, oddly constructed”) and his variables were poorly defined, leading to an erroneous conclusion. Reexamining the data, Nelson and Gould found that collective bargaining was associated with significantly higher SAT scores. This provoked Kurth into a vitriolic retort in which he called his critics’ comments “mislead- ing and full of distortions.” However, Kurth’s critics have received support from research by Lovenheim (2009), Carini (2008), Register and Grimes (1991), Argys and Rees (1995), Nelson and Rosen (1996), and Hoxby (1996).

Zigarelli (1994) also found that unions are positively related to student perfor- mance. His model attributes the relationship between unions and student achieve- ment to (1) teacher unions “shocking” school bureaucracies into more efficient practices that generate positive classroom outcomes and (2) union political activi- ties that boost education funding. Zwerling and Thomason (1994), examining the effects of teacher unions on high school dropout rates, found that unions signifi- cantly reduce the likelihood of boys dropping out but only slightly decrease the female dropout rate. A reasonable conclusion is that teacher unions do not depress student achievement and, in fact, have a modest positive effect on it (Stone 2000; Carini 2008).

In higher education, the most direct measure of faculty productivity is the publi- cation of professional journal articles. Meador and Walters (1994) examined research

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productivity in 889 PhD-granting departments. Their findings associated faculty unions with both a lower output of published articles and a lower peer assessment of departmental scholarly competence than departments with nonunion faculty. Research has also determined that faculty unions increase the retention rate of more senior faculty (Rees 1999). Because faculty unions tend to favor across-the-board salary increases over merit pay, perhaps highly productive junior faculty tend to leave, perceiving that their future earnings will be higher at nonunion institutions.

c. Privatization

The transfer of public goods and service provision responsibilities to the private sector has been a worldwide phenomenon since the rise of NPM in the 1980s. The movement has several impetuses, including ideological opposition to the size of the public sector, belief that the private sector can provide goods and services more efficiently (cheaply) than government, and the fiscal squeeze at all levels of govern- ment. In the United States, privatization has taken various forms: construction of a public facility by a private contractor (e.g., bridge or highway), services (e.g., information technology), government purchases of specialized services (e.g., legal assistance and engineering expertise) on a short-term basis, and contracting out public services to a private or nonprofit organization. (Sanitation, transportation, and vouchers for K-12 education are the most common.)

In most jurisdictions, privatization is considered a management right related to the efficient management of the workplace and therefore outside the scope of bargaining. And, in principle, unions do not object to constructing facilities, mak- ing specialized purchases, or contracting out professional services that their own members cannot perform, such as architecture, engineering, or creative services. It is when traditional government functions, such as sanitation or fire protection, are given over to the private sector that unions register vociferous opposition. Unions contend that contracting out results in the termination of public employee jobs and the creation of new lower-paying jobs in the private sector. Therefore, it is a personnel matter that should fall within the scope of bargaining. In state and local governments, labor relations boards and the courts, with few exceptions, have sup- ported the union position that the decision to contract out should be a mandatory subject of bargaining and that public employers are obligated to provide notice of the proposed work change to the unions and an opportunity to negotiate the issues.

In the federal sector, agency management clearly controls contracting-out deci- sions despite union opposition. Federal management is fortified by (1) the Office of Management and Budget’s circular A-76, a directive to federal agencies that requires work to be contracted out to a firm if it can conduct the work more eco- nomically; (2) Title VII of the CSR A, which grants management the authority to “make determinations with respect to contracting out”; and (3) actions during the George W. Bush administration that further narrowed the scope of bargaining on contracting activities.

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Unions in state and local governments seek to discourage employers from con- tracting out, promising strident opposition if this path is taken. Any available polit- ical strings will be pulled and litigation filed. As suggested earlier, such opposition is entirely rational because the record shows that union membership declines where contracting out occurs. Moreover, there can be mutual benefits when unions force a careful, objective pace to privatization that diminishes the possibility of policy mistakes. Increasingly, unions seek to develop competitive bids to retain their pub- lic service production responsibilities, thereby eliminating the economic rationale for privatizing. They have done so successfully in several cities, including Phoenix, Philadelphia, and Indianapolis. Nonetheless, privatization has registered substantial gains in functions such as sanitation; street construction; architectural and engi- neering services; legal counseling; vehicle towing; building repair, maintenance, and security; social services; and ambulance services. Chelsea, Massachusetts, even contracted out the entire public school system to Boston University for 10 years. Massachusetts has privatized mental health care, prison health care, highway maintenance, and operation of highway rest stops, among many other activities. Interestingly, in cities where management–union relations are highly adversarial, the likelihood of privatization is greater than in cities with cooperative relations (Chandler and Feuille 1991). Perhaps management is sorely tempted to try to rid itself of a perceived labor pest in such cities.

Contracting out does not eliminate unionization and the strike threat. On the contrary, private firms can be unionized, too, and often are, and their workers can legally strike. Furthermore, monetary savings may be illusory. Indiana’s 2009 can- cellation of a $1.34 billion contract with IBM to privatize the state’s welfare services offers an instructive example of failed privatization (Schneider and Ruthhart 2009). Quality and service levels sometimes decline, accountability may suffer, equity in service delivery may be sacrificed, and contracts may be awarded on the basis of political favoritism. Privatization has been particularly controversial in police and fire protection, prisons, and schools. Still, the outlook is for additional gains ahead, with highways, bridges, mass transit, and water supply showing the strongest potential.

d. Health and Wellness

Myriad health- and safety-related issues have found their way to the bargaining table, reflecting new knowledge and information, changing technology, unions’ traditional concern for the physical and psychological well-being of workers, and the fact that public employees are not protected by the Occupational Safety and Health Act (OSHA) of 1970 (most states have OSHA-type legislation, however).

Four particular health issues have received increasing scrutiny from management and unions: smoking in the workplace, HIV/AIDS, drug testing, and employee well- ness programs. Unions want to formally register the perspectives of their membership on these important issues and to defend aggrieved individuals in the bargaining unit.

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Smoking — The Centers for Disease Control and Prevention have estimated that cigarettes result in $193 billion in lost productivity and increased health- care expenditures. Cigarette smoking is believed to be responsible for more than 443,000 deaths per year from cancer, heart disease, pulmonary disease, and other ailments. Today, only about 19% of U.S. adults smoke versus more than 40% in 1965 (Centers for Disease Control and Prevention 2013).

Employers are concerned with smoking (and secondhand smoke) because it affects them financially through increased absenteeism, higher insurance and medi- cal care costs, and lost productivity. Moreover, most employers must enforce the expanding number of state and local laws that prohibit or restrict smoking in pub- lic places. Although the federal courts have not found a constitutional basis for a smoke-free workplace, some state courts have upheld a common-law right to a safe and healthy workplace, which includes protection from secondhand smoke. An employer that fails to provide a safe and healthy place of work may be held respon- sible in court for negligence.

In response, employers have adopted policies not to hire active smokers and to prohibit employees from smoking on the job altogether. Some have prohibited off- the-job smoking as well, although the legal grounds for such actions are question- able, probably violating the right to privacy and due process (Wilson 1989: 41, 42). An additional problem with employer actions against smokers is that it has discrim- inatory impacts—African Americans and Latinos are more likely to smoke than whites. Finally, employers in most states have a common-law duty to accommodate both smoking and nonsmoking employees, and 29 states prohibit employers from discriminating against smokers (Repa 2005; Employee Benefit News 2012).

Unions, of course, have a legal obligation to represent the interests of all members in the bargaining unit, regardless of smoking preference. Under collective bargaining laws and contracts, management may not unilaterally alter the terms and conditions of employment. Smoking restrictions and rules are terms and condi- tions of employment unless legislation or a management rights clause clearly places such work rules and conditions within the realm of management authority. Thus, management and unions must usually negotiate or otherwise agree on smoking policy. Even where state or local laws apply, the implementation of statutory restric- tions through workplace rules should be negotiated with the unions. The alterna- tive is for management to field any number of formal grievances and, possibly, litigation. Management’s right to impose rules concerning smoking may be con- tested, usually through union representation of a grievant who has been disciplined or dismissed for rule breaking. Unions insist on consistent, nonbiased enforcement of smoking policies and sanctions where they exist.

Disability — The Rehabilitation Act of 1973 and the ADA of 1990 protect persons with disabilities from discrimination in any HRM process. Disabled workers must be provided with “reasonable accommodation” by employers, subject to “business

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necessity” limitations. For example, workplaces must be made physically acces- sible to people in wheelchairs (reasonable accommodation) unless the workplace cannot be modified without extreme cost to the employer (business necessity). The ADA’s definition of “disability” is expansive, covering an estimated 47.5 million Americans; most of them are not in the workforce. Within the broad definitional umbrella of the ADA are orthopedic impairments, back problems, vision or hearing trouble, traumatic brain injury, alcoholism, drug abuse, mental illness, and HIV infection.

Employers, as well as unions charged with fair representation of all members of the bargaining unit, must walk a fine line between protecting the rights of the disabled worker and respecting the rights and preferences of their coworkers. For instance, a union must represent both an HIV-infected employee in terms of rea- sonable accommodation of his or her medical needs and treatments and the con- cerns of coworkers who (unreasonably) fear becoming infected with the virus. An employer should consult with the union before transferring a disabled worker or making accommodations that affect other employees.

Obesity presents a hefty problem for both employers and unions. Obesity is not listed as a bona fide disability under the ADA definition of “impairment of a major life activity.” Weight-based discrimination in the workplace stigmatizes the obese as undisciplined and lazy (Rudin and Pereles 2012). Failing authoritative federal or state actions, this is a problem best settled on a case-by-case basis.

Drug Testing — Alcohol abuse has always been a scourge of the American work- place; it is now joined by another serious addiction: illegal (and prescription) drugs. These “evil twins” cost the U.S. economy billions of dollars every year and account for a disproportionate percentage of discipline and dismissal cases. Substance abus- ers are less productive; more prone to turnover, tardiness, property damage, and dismissal; and more likely to get sick or be injured than other employees.

Unions seldom disagree with management rules prohibiting working under the influence of drugs or alcohol because the safety and productivity of all mem- bers are potentially at risk. However, unions do prefer to negotiate specific rules and procedures for addressing the problem. Unions will also aggressively defend employees accused of substance abuse. In the case of alcohol abuse, unions argue that discipline is unfair because alcoholism is a disease beyond one’s own con- trol. Most government employers accept this view and give alcoholic employees an opportunity for treatment and counseling through an employee assistance program (EAP) or on their own. If the worker is unable to conquer the addiction and his or her performance is judged unacceptable, discharge usually follows.

Although both alcoholics and drug addicts have some protection from adverse employment actions by the Rehabilitation Act and the ADA (they are considered to be disabled), drug abusers are more likely to be treated severely by management. Drug use is, after all, usually illegal, and a greater stigma is attached to it than to drinking. For example, off-duty drug use may directly result in discharge if a court

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conviction is made, whereas alcohol abuse rarely does, except indirectly through poor attendance and job performance. A worker guilty of using or selling drugs at the place of employment is also asking for discharge. Unions do not raise a signifi- cant barrier to such employer actions as long as members receive due process and any policy alterations are submitted to the unions for consideration. The matter of testing employees for drug use is more contentious.

Few restraints exist on drug testing in the private and nonprofit sectors or on testing prospective employees in any setting. In government, constitutional issues are germane for ongoing employees, including the Fourth Amendment’s right to privacy and freedom from unreasonable search and seizure, the equal protection clause of the Fourteenth Amendment, the Fifth Amendment’s protection from self-incrimination, and various state constitutional protections. A nonunion juris- diction may get away with unilaterally imposing a drug-testing policy on current employees, but where unions represent workers the policy is usually treated as a term or condition of employment, that is, a mandatory bargaining subject.

Under most circumstances, unions are adamantly opposed to drug testing, par- ticularly if it is randomly imposed without a clear purpose. Drug testing is an inva- sive procedure that requires analyses of urine, blood, hair, saliva, or nail samples. It is not time specific, so it often “reveals more about the employee’s off-duty lifestyle than about his ability to perform on the job” (Denenberg 1987: 305). Laboratory testing procedures are notoriously unreliable.

Courts tend to side with the unions, unless the government employer can dem- onstrate a legitimate interest in testing (e.g., public safety) and a fair program that adequately guards employee rights. In Skinner v. Railway Labor Executives’ Association (1989), the U.S. Supreme Court held that urine collection violates the reasonable right to privacy under certain conditions; in NTEU v. Van Raab (1989), the Supreme Court restricted the U.S. Customs Service’s drug-testing program for candidates for promotion to those in “sensitive positions” involved in drug interdiction. Legitimate “reasonable” interest in testing for drug use is easier to prove for employees directly involved in protecting public health and safety, such as police, firefighters, train and mass transit drivers, air traffic controllers, and any worker who carries a firearm.

Some of the most interesting activity concerning the legality of drug testing has occurred in the federal government. Random drug testing in the military was ordered by President Nixon in 1971, and it continues today. In 1986, President Reagan punctuated his wife Nancy’s “Just Say NO!” campaign by directing all executive agencies to randomly test all workers in sensitive positions. A fury of union litigation ensued, resulting in several court cases, rulings by the FLR A, and congressional involvement (Masters 1988). The federal unions claimed that man- agement must prove a link between a positive drug test and an individual’s work performance before disciplinary actions can be taken. The federal agencies differed on this issue, asserting that drug testing is a nonnegotiable management right under Section 7106 of the CSR A. Drug-testing programs continue to be challenged in some federal agencies today (and in a few states as well).

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When not fighting over drug testing in courts, arbitration venues, or across the bargaining table, unions and management can embark on cooperative ventures to address the drug abuse problem. Employee assistance plans provide aid and coun- seling to drug users that benefit both parties. So do drug prevention programs, sponsored or cosponsored by unions, which can marshal peer pressure against drug abuse and encourage users to seek help.

Wellness — High and rising employee health-care costs push employers to con- sider programs to help reduce them. Wellness programs encourage workers to lead healthy lifestyles by quitting smoking, eating better, exercising, and chang- ing other negative behaviors. In theory, the employer saves money on lower health insurance claims, reduced absenteeism, higher worker morale, and improved productivity.

Unions generally support wellness programs. Rhode Island’s “Rewards for Wellness” program has served a highly unionized labor force since 2008. Labor– management negotiations approved activities that enable employees to earn up to $500 a year in “coshare credit” toward their copays on health insurance by taking medical screening tests and health tutorials, ceasing tobacco use, and other such actions. Results indicate lower rates of hypertension, fewer health insurance claims, greater weight loss, and other positive outcomes (Rodriguez 2012). Issues that a union might take special interest in include the possibility of a wellness program violating disability law, privacy rights, and mandatory (vs. elective) participation.

e. Workers’ Compensation

Workers’ compensation is a federal–state program that pays benefits to workers injured on the job, regardless of fault. Compulsory in all but three states (New Jersey, South Carolina, and Texas), its annual costs are $71 billion. A study of workers’ compensation claims (Hirsch, McPherson, and Dumond 1997) found that union members were significantly more likely to receive such benefits than similar nonunion workers. What are the reasons? Possibly because unions provide their members with more assistance and information about the program and, through contract and grievance procedures, protect filers from management-imposed penal- ties for filing claims. Moreover, union workers are more likely to hold dangerous jobs such as police and fire protection or corrections.

f. Miscellaneous Terms and Conditions

If a variable in the environment of work can even imaginatively be labeled a “work- ing condition,” then the odds are that some union, somewhere, has challenged management over it. In many instances, union interest in working conditions has led to improvements, especially within the area of employee safety. Safety, of

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course, is an important concern to both employees and management. Injuries or deaths at the workplace are anathema to both parties. Their prevention is nor- mally recognized in labor agreements as the joint responsibility of management and labor. Unions, in particular, are vigilant concerning an employer’s duty to provide a healthy and safe working environment, including the provision of protective equip- ment and clothing and expeditiously addressing potential health and safety threats. In some instances, unions have formed coalitions with environmental groups to protect worker safety and health in workplaces with toxic releases (Mayer 2009).

For public school teachers, a safety-related issue is the need to protect teachers from violent students. Teachers feel that control over student disciplinary proce- dures is critical to their physical and emotional well-being. Discipline is an espe- cially salient issue in big city school systems containing many students who are “difficult to teach.” Generally, teachers want the right to expel from the classroom students who evidence intractable disciplinary problems and the right to be repre- sented on student disciplinary committees. Courts have affirmed that negotiations over student disciplinary matters are within the scope of bargaining unless specifi- cally excluded as a management right (Sutherlin Education Association v. Sutherlin School District No. 130 [1976]).

Other work conditions subject to bargaining include meal and rest periods, cleanup time, coffee breaks, locker rooms, clothing allowances, and mileage allow- ances. One early but exhaustive list of negotiated working conditions was attributed to the Social Service Employees Union in New York City (Stanley 1972: 110, 111):

The union’s contract contains unusually detailed provisions on working time and free time, including travel time to get paychecks; grace periods for handicapped employees at the beginning and end of shifts; grace periods for delays due to inadequate elevator service; dismissal at 3 p.m. if the temperature reaches 92 degrees F; dismissal at noon if the temper- ature falls below 50 degrees outside and 68 degrees inside, or if it falls below those levels after 12 noon, dismissal within an hour … the con- tract assures the employee of a place to hang his coat, and— obviously essential in view of the preceding requirements—a thermometer.

You name it—it has been the subject of negotiations somewhere. The Minnesota Supreme Court ruled, on appeal, that facial hair and fingernail length are not man- datory subjects of bargaining for sheriffs’ deputies. Ear studs? They are not banned in Boston, but officers are forbidden to wear them in Peotone, California, and Vernon, Connecticut. Tattoos and body piercings arise as issues in negotiations and disciplinary proceedings if their presence (and visibility) is believed to negatively affect the workplace or be offensive to government’s “customers.” In some jurisdic- tions, tattoos and piercings are covered under a negotiated, comprehensive dress code (McKelvey and Ronalds 2013).

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In Middletown, Connecticut, the town police union filed a grievance against the chief for suspending Chance, a police dog, for eating the dashboard of a police cruiser. Chance apparently became frustrated when his two human cruiser mates got involved in a scuffle with a suspect while the protective canine was locked in the car. In New York, AFSCME negotiated “captivity coverage” for state correctional officers in its contract. Under the coverage, Lloyd’s of London insures the officers. If they are held captive by inmates, officers are compensated 50% of their salary when the traumatic event is over. Death, dismemberment, or disfigurement results in 200% compensation.

As mentioned previously, teachers have had more success in broadening the scope of bargaining than any other occupational group, largely because there are significant elements of management and independent decision making in their daily duties. Among the working conditions negotiated in teacher contracts are the following:

◾ Class size provisions ◾ Number and functions of teacher aides ◾ School calendar ◾ Teacher representation on instructional policy committees ◾ Teacher evaluation procedures ◾ Special programs ◾ Curriculum ◾ Grading criteria ◾ Textbook selection ◾ Allocation of federal grant money ◾ Teaching methodologies ◾ Peer evaluation of teachers in lieu of principal’s ratings ◾ Peer coaching and counseling ◾ School safety ◾ Teacher residency requirements ◾ Provisions for day care centers for teachers’ children ◾ Teacher participation in school site selection

The cutting point in the scope of teacher negotiations seems to be how directly an issue affects the well-being of the individual teacher as opposed to its impact on the operation of the school system as a whole.

IV. Conclusion As the purse strings of state and local governments have been cinched tight by fiscal constraints, a stingy yet mandate-promiscuous federal government, and a hypercritical citizenry, unions have turned from an almost exclusive concentration on wages and dollar-driven benefits to nonmonetary elements of human resource

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administration. Wages remain a visible and important issue for unions, but pay gains are likely to be modest in the foreseeable future.

The clash between bargaining and merit systems is inherently a part of pub- lic sector labor relations, as unions seek to extend their sphere of influence and limit management authority. Unions want greater control of the workplace for their members, and they work hard, and often successfully, to get it. Management today, however, is a more forceful and competent adversary in protecting its rights and prerogatives than it once was. In some ways, public management is made more effective and fair by union involvement in workplace decisions. In other respects, the loss of flexibility in a union environment can impede management response and adaptation to social, political, and economic changes.

A precarious balance exists between bureaucracy and democracy in the United States. Unions represent institutionalized bureaucratic power, whereas elected gov- ernment officials and their appointees defend the principles and processes of rep- resentative government. As unions encroach on traditional areas of management rights, they sometimes penetrate the arena of public policy making. This is evident in public education, where teacher unions have fought and won a voice in deter- mining a variety of education policies.

It is difficult to state with any assurance or finality whether union policy involvement is good or bad. In public education, it has clearly meant less flex- ibility for school management and some rigidity in school operations. However, teacher participation in determining how the learning process is structured may produce higher morale and, in the long run, positively affect the quality of program implementation. Perhaps, as a Huntington, New York, teacher contract states, “The members of the teaching profession have a special expertise which entitles them to participate in determining policies and programs designed to improve educational standards.” Then again, this claim could be made by almost any occupational group in public employment, from corrections officers to sanitation engineers.

As a practical matter, there is a need for management–labor consultation over the role of public employees in policy determination. Final authority unquestion- ably should be retained by management and, ultimately, by elected officials, but the unions’ voice is legitimate and can prove invaluable. The wise manager, the democratic manager, should not refuse to discuss policies raised by unions that are of direct concern to them and their members.

Ultimately, unions get only what management (and arbitrators) gives to them. The protections of collective bargaining statutes, management rights clauses, ordi- nances, and merit systems shore up the defenses of management. So do political and economic factors in public employment that act as constraints on unions, not the least of which is public opinion. Public management is well served by using available resources and tools in establishing a firm, but not rigid, posture vis-à-vis the unions. Both parties in the relationship should strive to negotiate in an atmo- sphere of mutual respect and concern for public interest. However, as Chapter 8 points out, this is much easier said than done.

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Case Study 7.1 A Blooming Labor Dispute

Nine-year-old Katie Corletta, a student at Horton Elementary, San Diego, California, was distressed about the condition of a public park across the street from her school. So, she organized a group of fellow third-graders to pick up the trash and plant a flower garden. They did a very nice job much to the delight of teachers and parents, who were impressed by the community spirit of the children.

Local 1029 of AFSCME was much less pleased. The munici- pal union, which represents Parks and Recreation Department employees, filed a prohibitive practices complaint, stating that it should have been informed and consulted about the student project because its members maintain the park by picking up broken glass and other trash, mowing the lawn, and repairing playground equipment.

Parents and the Parent Teacher Organization were shocked and outraged, and the children were confused: “We didn’t think we were taking anything away from the union because they weren’t planting flowers,” Corletta said in a local newspa- per report. “All we were doing is helping pick up trash. We’re not mowing the lawn that the union people would do. We’re just doing things they don’t do.”

Kenneth Boulware, president of Local 1029, said that the union had a serious problem with the city’s lack of communica- tion. Union members, he asserted, work nearly every day in the park. “Personally, I don’t have a problem with third-graders,” he said. “My problem is if they abandon the project, I’d have to have our people maintain it as they have in the past. And union workers should perform union work.”

QUeSTIONS 1. Why did the union react as it did when it discovered that

the flower garden had been planted by the children? What were the possible justifications for the union action?

2. What contract language might apply to this situation? 3. If bargaining unit members had been laid off recently

because of budget cuts, would this be important? 4. What are the implications for union–citizen relationships? 5. How would you have handled the issue if you were the

union president?

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Case Study 7.2 A Chocolate High?

Jason, an employee of the State Department of Transportation with 18 years of experience, was passing by the coffee service area in the motor pool on a Wednesday when he spied a plate of brownies. Naturally, he ate one. Unfortunately, it was not an ordinary brownie. Even more unfortunately, he worked in a hazardous facility and was subject to random drug testing; the next day, his number was called.

Jason delivered his urine sample and thought no more of it until Thursday, when he was notified by his supervisor, Javier, that he had tested positive. When questioned about the results by his supervisor, Jason offered no explanation other than that he had been taking an over-the-counter cold medica- tion and a wellness herb. Javier referred Jason to the Employee Assistance Program (EAP) for counseling. The EAP had no available appointments the next day, and neither the EAP nor Jason followed up Monday.

The following week, Jason was called into the HRM office and discharged for failing the drug test and refusing to seek EAP assistance. Shocked, Jason immediately proceeded to the union steward and filed a grievance seeking reinstatement to his position. In his statement, Jason said that he had not expe- rienced any effects of marijuana and adamantly professed his innocence.

Shortly thereafter, Kenneth, one of Jason’s coworkers, came forward to admit that he had baked some marijuana-laced brownies and placed them in the coffee area but that he did not intend them for Jason.

The case moved to a hearing officer.

QUeSTIONS 1. If you were the hearing officer, what would you do after

receiving Jason’s grievance and Kenneth’s admission? 2. Was Jason negligent and culpable for use of illegal drugs? 3. Should such situations be incorporated into a collective

bargaining contract? Why or why not?

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Chapter 8

Strike!

I. Introduction As observed in Chapter 1, there is nothing new or entirely surprising about workers withholding their labor. Work stoppages were fairly common in American mines, factories, and transportation industries in the period preceding passage of the National Labor Relations Act (NLR A). Many of these strikes were met with vio- lence. Robert Shogan (2004) relates the story of the country’s largest mine strike in The Battle of Blair Mountain. In the fall of 1921, more than 10,000 armed members of the United Mine Workers of America’s “Red Bandana Army” marched through the mountains and valleys of West Virginia to fight for the freedom of their jailed brothers. Troops from West Virginia and the federal government, along with thugs from the Felt-Dobbs Detective Agency, attacked the miners with clubs and guns in a bloody battle. For the first—and so far only—time, government aircraft dropped bombs on U.S. citizens on domestic soil.

Public strikes have not been so violent, but they have been plentiful. David Ziskind (1940), in One Thousand Strikes of Government Employees, chronicled a number of public employee strikes that occurred very early in the history of the Republic, including an 1835 strike of civilian yard workers in the Navy Department and an 1880 walkout by Pennsylvania teachers. Early federal employee work stop- pages also occurred in the Government Printing Office (1863) and in federal arse- nals (1890s).

However, the first strong wave of government employee strikes did not take place until the early 1900s. The causes of these early work stoppages were as diverse as their participants: Connecticut legislators walked out in 1911, demanding the elimination of “paid agents” who were acting as lobbyists on the floor of the state senate; workers at the Watertown (New York) Arsenal struck during the same

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year over the introduction of Tayloristic time study techniques; moth workers, whose jobs entailed the extermination of biting moths, struck at least four times in Massachusetts between 1907 and 1917 for higher wages; and gravediggers in Milford, Massachusetts, hung up their shovels over the issue of Sunday work in 1913 (Ziskind 1940: 96). The most controversial strikes during the early 1900s involved firefighters and police. Firefighters, incensed over egregiously poor work- ing conditions (low pay, 24-hour duty with time home only for meals, and 1 day off out of every 8 days) struck in locations all over the country during the years 1903–1921. Police refused the call to duty in a number of large cities, including Cincinnati and Boston (see Case Study 8.1); they, too, demanded improved work- ing conditions, shorter hours, and wage increases.

Today, some of the place names and worker demands have changed, but public employee work stoppages continue to occur. This chapter examines the anatomy of public employee strikes in the United States. First, data on their frequency are presented. Next, arguments for and against the strike are discussed. The relevant legislation on work stoppages in both the public and private sectors is summa- rized, along with research findings on why public workers go out on strike. Strike tactics and strategies of employers and unions are examined next, including the role of the injunction and penalties for work stoppages. Finally, some specula- tion is offered on public employee job actions in the future. Throughout the discussion, case studies are used to help capture the flavor of the strike as the ultimate weapon in labor’s arsenal, beginning with the infamous 1919 Boston police strike.

Case Study 8.1 The Boston Police Strike of 1919

A period of rapid monetary inflation usually characterizes the economy of a nation winding down from a large war effort. This has been the case after all major wars involving the United States. Following World War I, prices of goods and services began climbing rapidly. However, police wages in Boston ranged from only $900 to $1400 per year, with an average annual salary of $1000. Out of his salary, each officer was required to pay about $200 per year for uniforms and equip- ment. Inflation hit these and other low-wage public workers very hard indeed.

Compounding the unhappiness of Boston police were exceptionally long working hours: day workers were on duty 73–78 hours per week; the night shift 83–91 hours; and “wagon men” were required to be on the job up to 98 hours per week. Each officer had to sleep in the station house one night per

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week, where conditions were filthy and decrepit. The beds were infested with cockroaches and bedbugs. Other relatively minor job irritants included the necessity to secure special per- mission to travel out of Boston city limits and the requirement to run personal errands for superiors. Police spokesmen had taken various grievances to the commissioner on several occa- sions, but no actions were forthcoming.

In 1919, “Boston’s finest” applied for and received a munic- ipal police charter from the American Federation of Labor (AFL). The Boston police commissioner declared that union membership was grounds for dismissal from the force, firing several officers as an example to others. In protest, almost the entire force (1140 out of 1540) walked off the job. The commis- sioner responded by firing all striking police officers.

Without adequate police personnel, law and order broke down. Rioting, looting, violence, and general mayhem spread throughout the city, causing the mayor to declare a state of “tumult and riot” and to call in the Massachusetts State Guard. Governor Calvin Coolidge readily complied with the mayor’s request, issuing his famous statement that “there is no right to strike against the public safety by anybody, any- where, any time.” Although Coolidge’s actual role in ending the strike was limited and the positive publicity he received undeserved (see Spero 1970: 252–281), the episode did help him considerably in his later quest for the presidency of the United States.

The Guard established and maintained law and order until new police officers could be recruited. The striking policemen were not rehired, yet they did win something of a pyrrhic vic- tory: new officers were granted virtually all of the demands made by the strikers, including an entrance salary of $1400, free uniforms, a pension system, and positive changes in work- ing conditions. The strike had the added benefit of encourag- ing similar improvements in the lot of policemen in numerous other cities around the region.

From the perspective of public sector unionization, how- ever, the strike had to be considered a resounding defeat. Fear resulting from the Boston violence, combined with the more generalized “red scare” of Communists, forced all 37 AFL-chartered police locals and more than 50 International Association of Fire Fighters–chartered firefighter locals to relin- quish their charters following the strike. Unionization among municipal protective services employees was set back a good 40 years.

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QUeSTIONS 1. Could a strike of this intensity, followed by widespread

violence, happen in a major U.S. city today? What circum- stances might provoke such an event?

2. What factors would have to be present for a contemporary strike to generate a similar amount of public attention and fear?

II. A Strike by Any Other Name The term “strike” is believed to be derived from the act of sailors hauling down or “striking” their sails in response to violent winds. Today, however, expressions characterizing a work stoppage are limited in number only by the fertile imagina- tions of their participants. Across the country, firefighters have called in sick with the “red rash,” police with the virulent “blue flu,” and teachers with “chalk-dust fever.” In San Diego, on “Human Error Day,” members of the county employees’ association cut off incoming telephone calls, misfiled and misrouted paperwork, and produced numerous typos and other mistakes to express their opposition to an unacceptable wage offer by San Diego County. In Knoxville, Tennessee, police officers threatened to engage in a “pray-in” by attending evangelist Billy Graham’s Crusade each night until the city council took action on a proposal for 48 hours’ pay for a 40-hour work week (Stanley 1972: 182). The president of the local Fraternal Order of Police observed, “I cannot advocate work stoppages, strikes, or sick call- ins, but I am a firm believer in prayer.” Thousands of state workers in Pennsylvania called in with severe cases of “budgetitus” to protest receiving no paychecks for 4 weeks due to the failure of the state legislature to enact a new budget. For 3 days, Boston City Hospital doctors staged a “heal-in,” refusing to release patients from the hospital until exhausting all possible health-care options. The physicians were seeking higher pay.

These and other activities, such as mass resignations, continuous “professional meetings,” “professional holidays,” work slowdowns, “work-to-the-rule,” picket- ing, and protest marches, all fall into the category of “job actions.” Not all job actions, however, are properly labeled “strikes” or “work stoppages.” Generally, the courts and other interested parties have interpreted “strike” in accordance with the Taft–Hartley Act (Section 501) definition, which is “any concerted stoppage of work by employees … and any concerted slow-down or other concerted interrup- tion of operations by employees.” Thus, a strike entails the interruption of normal job operations through a walkout, slowdown, sick-out, or any other tactic that dis- rupts work. Most of the job actions mentioned in the preceding discussion probably would be interpreted as work stoppages by the courts (which have been fairly strict in these determinations). Exceptions might include picketing and protest marches by off-duty workers that do not interfere with the job performance of on-duty

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employees. The NLR A grants all private sector employees the right to withhold their labor through a strike, whether or not they belong to a union. Most public employees do not enjoy a legal right to strike, although 13 states permit work stop- pages for specified groups of workers, subject to certain conditions.

The vast majority of public employee strikes are authorized either formally (through a strike vote) or informally by the employee organization. Those work stoppages that are not formally authorized are referred to as wildcat strikes. A strike that occurs simultaneously among different government services in the same juris- diction is called a general strike.

Employers can institute a strike of their own, known as a lockout. In a lockout, the employer refuses to permit employees to work, literally or symbolically locking the doors to keep them out. The objective is to apply pressure for a contract settle- ment to encourage employees to reject, or decertify, the union. Lockouts occasion- ally occur in the private sector and in professional sports (for instance, the 2012 National Hockey League lockout), but they are extremely rare in the public sector.

III. Public Sector Strike Activity Although comparisons with private sector strike activity vary by year, the evidence is clear that a smaller percentage of public workers go out on strike and that they strike for much shorter periods of time than do workers in the private sector. In 2011, for example, there were 18 major (i.e., 1000 employees or more) work stoppages in the private sector, versus only 1 in government (a Tacoma, Washington, teachers’ strike) (U.S. Bureau of Labor Statistics 2013c). Government strikes account for a very small proportion of all work stoppages in the United States. That strikes in public employment are briefer (averaging about 12 days compared to 21 days in the private sector) is explained by several factors, including the “essential” nature of some government services, the illegality of some public sector work stoppages, the lack of union “strike funds” to help support strikers (who are not paid during a strike), more frequent use of court injunctions to halt stoppages, greater publicity and political pressure for settlement, and the negative political consequences when quick settlements are not attained. In addition, private firms can build up product inventories to help ride out a strike; public employers rarely enjoy that option.

The peak year for public employee turmoil was 1979. Since then, indications point toward a steep drop in work stoppages. However, caution must be used in interpreting federal data. Strike data for 1960–1980 include all known work stop- pages. In 1981, the Bureau of Labor Statistics stopped collecting information on job actions involving fewer than 1000 workers. Most strikes in the public sector engage fewer than 1000 individuals. The other immediate cause of the decline in job actions was the virulent antiunion posture of the Reagan administration, which became painfully palpable during the Professional Air Traffic Controllers strike of 1981 (see Case Study 8.3).

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Strikes also declined dramatically in the private sector. During the 1970s, nearly 300 major work stoppages occurred per year, compared with fewer than 100 annually during the 1980s, 33 in the 1990s, and only 19 in the 2000s (U.S. Bureau of Labor Statistics 2013b). Here, likely causal factors include weak economic con- ditions and job displacement in union-intensive manufacturing industries; the willingness of employers to hire permanent replacements for striking workers; the attraction of moving operations to cheaper labor markets in the United States or overseas; and, again, the aggressive actions by the Reagan administration in firing the federal air traffic controllers.

Hiring nonunion replacement workers has been particularly effective in repress- ing strikes in business. Historically, even if such workers (“scabs,” to the union mem- bers) were hired temporarily, they were terminated when the strike ended and union members were reemployed. A 1989 U.S. Supreme Court ruling (TWA v. Independent Federation of Flight Attendants) upheld the Mackay Doctrine of 1935, which estab- lished the right of private sector employers to hire permanent replacements for strik- ers (National Labor Relations Board v. Mackay Radio and Telegraph [1938]).

Permanent replacements were rarely employed until the 1980s. By then, public opinion had slowly turned against the unions on this key issue and competitive pressures increased the inclination of firms to play hardball. A final impetus was President Reagan’s firing of striking air traffic controllers in 1981 and replacing them with new employees. By making the strike a double-edged sword that can either win the union concessions from a firm or result in dismissal of strikers and, essentially, the demise of the union, the Mackay Doctrine has seriously under- mined the power of the strike and even reformulated it into a management weapon (Victor 1992; Kosterlitz 1997). Further depleting the power of the strike has been companies’ increased willingness to impose lockouts to win union concessions when negotiations deadlock (Greenhouse 2012).

The majority of government strikes take place at the local government level, and most have involved teachers, who have accounted for about three out of every four work stoppages since 1982. Five states have recorded the majority of major work stoppages during the last three decades: California, Michigan, Illinois, Ohio, and Pennsylvania. The data on strike duration vary by issue, function, and region. Work stoppages in the South tend to be larger and more intense, perhaps because of the general absence of legal machinery to guide the parties in resolving disputes and the fierce employer resistance to unions. What may be the longest recorded strike by public workers took place in Maryland, a border state (neither north nor south), when Garrett County road workers walked out for 207 days in an effort to gain recognition of their union.

There is a tendency for local government work stoppages to spill over into two or more functions. Police often have been joined on the picket line by firefighters, and vice versa, whereas sanitation, streets and highways, parks, and sewage work- ers sometimes join ranks. Teachers, hospital employees, and social service workers typically walk out alone.

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Something approaching a general strike has occurred in several cities. In Toledo, Ohio, 3700 city workers went out on strike July 1, 1979, including police, firefight- ers, and sanitation workers. In nearby Youngstown, city employees walked off the job en masse during May 1980. During a July 1986 strike in Philadelphia, sanita- tion employees were joined by nearly 10,000 other strikers who shut down libraries, museums, and swimming pools. In April 1991, 5000 Montana state employees, representing almost every state agency, struck for several days, requiring National Guard troops to staff prisons and the Montana Center for the Aged. And in October 2001, about 28,000 Minnesota state employees left their workplaces for 2 weeks. Among the ranks of striking workers were correctional officers, janitors, computer specialists, highway maintenance workers, zoo employees, and workers in nursing and psychiatric facilities.

Public employee work stoppages have attenuated in general. Nonetheless, arguments for and against the strike continue to be debated among government officials, union leaders, academics, the media, and others. Section IV reviews the philosophical and practical points in the debate over the legitimacy of strikes by public servants.

IV. The Right to Strike in Public Employment The strike issue has been called “the most controversial, urgent, and misunderstood problem of labor relations in public employment” (Spero and Capozzola 1973: 239). The central query to be dealt with here is as follows: Is it equitable and real- istic to deny public employees the right to strike while guaranteeing the same right to private workers in vital sectors of the American economy?

A. The Sovereignty Argument Those who would deny the right to strike to all public employees have trotted out the now-stale argument of sovereignty. In his adamant refusal to concede the right of Boston police officers to strike against the city, Massachusetts Governor Calvin Coolidge charged the officers with “desertion of duty.” The mayor of Cincinnati called the 1918 strike by that city’s police “the most dastardly crime ever commit- ted in the City of Cincinnati” (Ziskind 1940: 3, 37). These men, along with other presidents, governors, mayors, and judges, were staunch believers in the notion that a sovereign government has the inherent and unique right to weigh the merits of disputes in which that government is a party, “in order to head off insurrection, rebellion, and eventual anarchy” (Capozzola 1979: 178). Most scholars date the origins of the sovereignty doctrine to Englishman Thomas Hobbes, who laid out the arguments for a sovereign state in a book, Leviathan. Assertions that “the King can do no wrong” were transposed into the American experience through the body of common law planted along with the spring crops by early English settlers.

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With respect to public employee strikes, the sovereignty doctrine asserts that because, constitutionally, sovereignty is vested in the people of a democratic nation- state, permitting government workers to strike surrenders, to a special interest, government authority to determine public policy. In theory, a strike constitutes a direct challenge to the people’s will; in practice, it creates a climate of disrespect for government and the law. In theory and in principle, these are legitimate concerns. However, events have made the practical applicability of the sovereignty argument suspect. The “sovereign” power of the state has long been waived, delegated to, and shared with interest groups, firms, and various other entities (see Lowi 1979). Public employee unions legitimately view the concept as a legal ruse to clothe gov- ernment with the absolute right to act not only unilaterally and paternalistically but also arbitrarily and capriciously in determining all facets of the employment rela- tionship. Perpetuation of the myth shields inept administrators, blinds the vision of competent ones, and enables irresponsible managers to escape their responsibility by retreating behind a curtain of sovereignty (Capozzola 1979: 179).

Finally, the sovereignty argument has been laid to rest in those states that have, through democratic processes, permitted strikes by public employees without polit- ical, economic, or social collapse. Sovereignty does not, in fact, preclude govern- ment from entering into collective bargaining arrangements or legally establishing the right of public employees to strike. That recognition of this fact means that the sovereignty argument rarely weighs in the public employee strike controversy today.

B. Distortion of the Political Process Early critics Harry H. Wellington and Ralph K. Winter (1971: 25) argued that public employee strikes threaten the survival of the “normal” political process by giving public sector unions political and policy advantages over other interest groups. This excessive power, they claim, augmented by union lobbying and voting activities, distorts the political process and diminishes democratic decision making.

Like sovereignty, this is an ill-defined and ambiguous argument. For exam- ple, what is the “normal” political process? Where is the evidence of “distortion”? Wellington and Winter’s overstatement of the problem is probably a product of the time in which they wrote The Unions and the Cities (the late 1960s), a period of strong emergent unionism in governments administered by unprepared and weak public managers.

C. Lack of Market Constraints In the private sector, high labor costs tend to be held down by competition and con- sumer product demand. Pay hikes must be accounted for by raising product prices or improving productivity. If labor costs rise excessively, consumers will purchase their goods and services from another producer, substitute for them, or do without. It is argued that in the public sector no such market constraints exist because public services

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are monopolies. There is little or no opportunity for comparison shopping by citizens. Thus, unions can make extravagant demands and win them by threatening to strike.

This line of argument has been rebutted on numerous occasions (Fowler 1974; Burton and Krider 1975; Capozzola 1979). More so today than perhaps ever before, market constraints do operate during public sector strikes. Employees sac- rifice wages while tax revenues continue to accrue to the government employer; the workers often come out net financial losers. Although no profit motive can be said to exist in the public sector, there are strong political pressures brought to bear on public sector unions to forego the strike or to settle quickly in the event one transpires. Public officials are also under great pressure not to raise taxes or fees, especially to fund employee compensation increases. Pushed too far, city councils and state legislatures may seek to subcontract government services to private and nonprofit providers, thereby laying off workers and creating competition in the market for public goods.

D. Essential Services According to opponents of the right to strike, public employees are engaged in pro- viding services essential to the community. A strike poses unacceptable threats to the public health, safety, and well-being and prompts public officials to cave in to citizen pressure to settle with the union. One critic compared a public employee strike to a siege, in which an “indispensable element of the public welfare … is made hostage by a numerically superior force and held, in effect, for ransom” (Saso 1970: 37).

However, it is clear that not all government services are essential to the public’s immediate health, safety, and well-being. Teacher strikes, for example, have lasted for months, disrupting the school year and the lives of pupils and parents. But there is no evidence that any long-term damage to the students or the parents has resulted or that student performance has been adversely affected (Thornicroft 1994; Zwerling 2007). Strikes by police, firefighters, and, in some instances, sanitation workers are much more serious and may indeed pose a threat to the well-being of citizens. It must be recognized, however, that state law enforcement personnel have successfully assisted nonstriking police officers in maintaining law and order, that volunteer fire departments effectively protect a much larger geographical area of the United States than municipal firefighters, and that most people are not inca- pable of delivering their own garbage and recyclables to landfills or central collec- tion stations. It should further be recognized that many government services are contracted out to private and nonprofit organizations, including private schools, sanitation companies, private security firms, human resource management (HRM) companies, and various health-care organizations. Such functions are not so essen- tial that they cannot be handled adequately in the private sector.

It is also important to understand that some services traditionally provided by pri- vate and nonprofit concerns are as crucial—if not more so—than many public services. This fact has been demonstrated by the serious impact of strikes by railroad workers,

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coal miners, utility employees, truckers, dock workers, and nursing home and hospital workers. The Taft–Hartley law recognizes the essential nature of these and other func- tions in the private sector by providing for presidential and congressional actions to help contain and settle a strike that poses a threat to the well-being of the nation.

Unfortunately, there is no bright line solution to determine which public and private sector services are “essential” and which are not. If there were, then logic would dictate that all strikes by workers in critical functions—regardless of sector of the economy—be prohibited. But it is very difficult to separate essential from nonessential services, especially when matters of strike location and duration are considered along with various extenuating circumstances (such as season of the year during sanitation strikes). There have been some efforts to categorize work stop- pages in accordance with their essentiality. For example, Burton and Krider (1975) suggested identifying government services as essential (police and fire protection), intermediate (sanitation, health care, transit, water, and sewer), and nonessential (education, streets, parks, recreation, welfare, and general administration). Strikes would be prohibited for essential services and permitted for intermediate services unless they presented a demonstrated threat to citizens’ health or safety. Workers in nonessential functions would be granted the right to strike. Some state laws permit- ting a limited right to strike have taken this approach (e.g., in Alaska).

To many public workers and their unions, the claim that public servants should be saddled with special responsibilities and constraints on their labor activities does not hold water. Since the social turmoil of the 1960s, government workers have insisted on having the same rights of citizenship as their private sector counterparts, includ- ing the right to walk off the job. As Spero and Capozzola (1973: 269–270) put it,

The legalistic public–private dichotomy has little relevance to the munic- ipal employee. He has the same dreams, desires, fears, frustrations, problems and hopes as his counterpart in private industry. Excessive theorizing falls on deaf ears, as the municipal worker pays the same taxes, buys the same food and shelter, and has no more immunity from disease than a private employee.

Should they not enjoy equal protection under the law, as long as a strike does not present a clear and immediate danger to the community?

Strike bans are not particularly effective and are sometimes ignored. Strikes will continue to occur whether or not they are legally forbidden. As a study commission noted in Pennsylvania in recommending the right to strike, “Twenty years of expe- rience [under a no-strike law] has taught us that such a policy is unreasonable and unenforceable, particularly when coupled with ineffective or nonexistent collective bargaining” (see Schneider 1988: 199).

Moreover, public management has gained experience contending with strikes, and when it receives greater public support than the union, it can win a strike. Striking public workers do not get paid, and public sector unions do not normally

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maintain strike funds. Yet government revenues continue to come in, improving the employer’s financial position (unless the strike does, indeed, ultimately accom- plish the financial objectives of the union, including retroactive payment of strikers’ wages). In addition, a public management skilled in media relations can channel almost unbearable public pressure on a striking union and help force concessions on its leaders and rank and file.

E. The Postal Strike of 1970 Strikes by federal employees have never been legal, but on March 18, 1970, move- ment of the U.S. mail slowed to a trickle as postal employees in New York City, then across the nation, walked off their jobs in wildcat strikes over low wage levels, dissatisfaction with their treatment by Congress, and the inability of their unions to “deliver.” It was the largest strike of federal employees in American history.

After a back-to-work order was ignored, government and union leaders reached an accord: strikers would go back to work in return for a formal discussion with adminis- tration officials over pay, postal reform, and other issues. However, the union rank and file refused to accept the agreement; the strike continued to spread across the country. By March 20, close to 200,000 postal workers failed to report to work and much of the nation was without mail service. The strike threatened to disrupt the economy as the flow of financial documents and other important materials was squeezed to a trickle (note that FedEx, UPS, and Internet transfers were not available in 1970).

President Richard Nixon declared a state of national emergency, ordered fed- eral troops into New York City to move the mail, and called out 15,000 Army reserves and 12,000 members of the National Guard. The president informed the striking postal workers that negotiations would not begin until they returned to work. Through unofficial channels, however, the postal employees were told that if they returned to their jobs Congress would directly address their grievances. By March 25, most of the striking workers were back on the job.

Postal employees soon settled for a retroactive pay increase. Congress approved the pay provisions with great haste and the president signed them into law. Shortly thereafter, with the strong support of the postal unions, the Postal Reorganization Act established the mail service as a government corporation, removing postal work- ers from labor relations coverage under Executive Order 11491, and granted full private sector collective bargaining privileges (except for the right to strike). Thus, through the strike, postal workers won preferential treatment, including the criti- cal right to negotiate pay and benefits. The financial benefits of the settlement were soon evident. Whereas other federal white-collar workers received a 47% salary increase from 1970 through 1977, the postal employees’ salaries were hiked by 94%.

Generous pay settlements, combined with private sector competition and oper- ating inefficiencies, have brought the U.S. Postal Service to the present condition of chronic, and alarmingly high, budget deficits, and to proposed termination of Saturday mail deliveries.

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V. Legislation Pertaining to Strikes In private employment, the rights of workers to strike and employers to lock them out are viewed as essential components of the free process of collective bargain- ing, as legally embodied in the NLR A. In public employment, the right to strike traditionally has been denied by various federal and state laws. Federal workers are forbidden to strike by Public Law 330 (1955) and the 1978 Civil Service Reform Act. Members of the Armed Forces are prohibited from striking by Department of Defense Directive 1354.1.

Following the Boston police strike of 1919, a series of antistrike ordinances were adopted by numerous cities, including Salt Lake City, Philadelphia, San Antonio, Chicago, and Detroit. The U.S. Congress passed a law outlawing strikes in the District of Columbia. A second wave of strike prohibitions came just after World War II, when nine states enacted laws banning strikes, with language similar to Taft–Hartley’s original prohibition against federal employee work stoppages. The constitutionality of these various strike prohibitions has been consistently upheld by the courts. In addition, most state courts (with five exceptions) have held that state employees have no right to engage in work stoppages in the absence of legislative authorization.

Some or all public employee strikes are outlawed in 37 states through stat- ute, court decision, or attorney general opinion. Furthermore, the vast majority of collective bargaining contracts contain no-strike clauses intended to prevent stop- pages during the life of the contract. (A typical clause reads, “The union and its employees expressly agree that there will be no strikes, slowdowns, picketing during working hours, work stoppages, mass absenteeism, mass feigned illness, or other forms of interference with the operations of the police department.”) Nonetheless, public employees have struck repeatedly. From 1958 to 1968, no state authorized a strike for any of its workers, but the number of public employee strikes increased 17-fold from the previous decade. Penalties were infrequently invoked against strik- ing union members or their organizations.

In recognition of the failure of strike prohibitions to prevent government work stoppages, nine states have now legislatively granted at least some of their employ- ees a limited right to strike. Vermont was the first: Act No. 198 of 1967 provided that local government work stoppages are prohibited only if the strike is found to endanger the public health, safety, or welfare. Pennsylvania followed with permis- sive legislation of its own in 1970; Hawaii, Alaska, Montana, Oregon, Minnesota, Wisconsin, Ohio, and Illinois complete the list. In addition, state supreme courts in California, Colorado, Idaho, and Louisiana have upheld the right of public employ- ees to strike. Table 8.1 summarizes the policies of those states that have legalized the strike through legislation or court decisions.

Most of these statutes specifically exclude designated “essential employees” from the strike right, particularly police, firefighters, correctional officers, and hos- pital workers. Most also require compliance with specific prestrike provisions, such

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Table 8.1 Permissive Strike States, 2013

State Employees

Covered Policy

Alaska All public employees

Right to strike for semiessential and nonessential workers. Police, firefighters, correctional workers, and hospital employees may not strike. Limited strike right for public utilities, sanitation, snow removal, and schools, after exhaustion of mediation. Other workers may strike upon majority vote.

California Some municipal employees

California Supreme Court held that strikes by nonessential employees were legal except in cases where the strike posed an “imminent threat” to public health and safety.

Colorado All public employees

Colorado Supreme Court held that public employee strikes are legal.

Hawaii All public employees

Strike permitted after exhaustion of impasse resolution procedures and 60 days after issue of fact-finding report. Ten-day notice by union is required. Strikes endangering public health and safety are illegal, as are strikes by firefighters and other essential employees.

Illinois All public employees

Mediation and 5 days’ notice required before strike. Prohibited if strike constitutes a clear and present danger to public health and safety. Firefighters, law enforcement, and security employees may not strike.

Louisiana All public employees

Louisiana Supreme Court held that all public employee strikes are legal.

Minnesota All public employees

Strikes prohibited except where employer refuses request for binding arbitration or refuses to submit to arbitration award. Teachers have right to strike following expiration of contract, 60 days of mediation, and 10 days’ notice. Nonteaching local employees and state employees may strike after expiration of contract, 45 days mediation, and 10 days’ notice. No strikes by essential employees.

(Continued)

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as mediation, fact-finding, and prior notice. All of them have triggers that prohibit strikes in cases involving a threat to the public health and safety.

In Louisiana, Colorado, Idaho, and Montana, state supreme courts applied the private sector right-to-strike principle to public employment. A judicial action with the greatest potential influence in other states occurred in 1985 in California, where the state supreme court ruled that in the absence of express statutory language forbidding the strike, local government employees could legally walk off the job (County Sanitation District 2 v. Los Angeles County Employees Association, Local 660 [1985]). The California Supreme Court has a reputation as a trendsetter among the

Table 8.1 (Continued) Permissive Strike States, 2013

State Employees

Covered Policy

Montana Public health nurses

Strikes permitted. Nurses must give 30 days’ notice; no other nurses’ strike may occur within 150 miles.

Ohio All public employees

Mediation, fact-finding, and 10 days’ notice required before strike. No strikes by public safety personnel.

Oregon All public employees

Strikes permitted after completion of mediation and fact-finding, elapse of 10-day strike notice, and 30-day cooling-off period. No strikes by police, firefighters, or hospital guards.

Pennsylvania All public employees except prison guards, court employees, police, and fire

Strike permitted after exhaustion of impasse resolution procedures, unless strike presents clear and present danger to public health, safety, or welfare.

Vermont Municipal employees

Strikes permitted 30 days after fact-finding report where parties have not agreed to arbitration and there is no danger to public health, safety, or welfare. Teacher strike may be prohibited by courts if it endangers a sound program of education. No strikes by state employees.

Source: The author, taken from various state websites.

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state high courts, and its opinions are widely disseminated. In this particular case, the court systematically examined, then dismissed, traditional arguments against public sector strikes. It concluded that the conventional common-law prohibition against strikes was outdated and without merit and that the right to strike was constitutionally protected as a necessary corollary of the right to join a union (Hogler 1986).

A spate of criticism of the court’s reasoning ensued, accompanied by concern that the decision preempted legislative authority and would prompt similar find- ings in other states not expressly prohibiting strikes. So far, however, no other courts have reached a California-type conclusion.

VI. Public Policy and the Incidence of Strikes The relationship between state policies on strikes and the incidence of public employee work stoppages presents an interesting and important question for empirical analysis. Unfortunately, research has been hampered by methodological problems and the lack of comprehensive, reliable, comparative data on public employee work stoppages. Since 1981, the federal government has collected and published strike data only on job actions involving 1000 or more workers. As noted in Section III, most government work stoppages involve much smaller numbers.

Further compounding the difficulty of assessing the results of permissive and restrictive strike laws are the effects of various political, economic, and labor force factors on strike incidence. However, published research does permit us to draw several conclusions.

First, a statutory prohibition against strikes may discourage them, but it clearly does not prevent them. This general finding holds both in states that mandate or permit collective bargaining and in those states that do not provide for bargaining. Studies do indicate that the nature of sanctions imposed on striking workers and their unions are related to strike activity. Specifically, consistently enforced penal- ties tend to reduce the incidence of work stoppages. Second, compulsory interest arbitration tends to reduce strike activity. Strikes are least likely to occur in states that provide for the finality of compulsory arbitration (Olson 1988; Partridge 1996; Hebdon and Stern 2003). (Alternatives to strikes are addressed in Chapter 9.). Third, the effects of permissive strike policies vary from state to state and by employee function. For example, teacher strikes have occurred more frequently in Pennsylvania than in any other state.

Other states legally permitting strikes have experienced no greater incidence of work stoppages than those that prohibit it. One examination of strikes 4 years before and 4 years after the adoption of permissive strike laws revealed in most states a brief jump in the number of work stoppages, then a decline to earlier levels (Sterret and Aboud 1982: 41–46). Vermont, the first state to enact

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a permissive law, did not experience its first strike until 8 years later. Studies of strikes in Ohio, Illinois, and Minnesota, following passage of collective bar- gaining statutes legali zing work stoppages for certain categories of employees, found a decrease in strike activity in all three states (GERR 1990; Ley and Wines 1993).

The most comprehensive examination of public sector strike bans and conse- quent strike activity concluded that job actions are more frequent in states with no-strike laws (Hebdon and Stern 2003). The conclusion is that strike bans are ineffective in reducing work stoppages. Clearly, most public employee unions do not look upon permissive strike policies as an open door to walk out. Teacher exceptionalism in Pennsylvania and several other states is more a result of state or school district policies that reschedule missed school days than of strike poli- cies. Jurisdictions mandating a fixed number of workdays during the school year typically reschedule days missed due to teacher strikes by extending the school year or canceling holidays, much as in the event of snow or hurricane days. Thus, the financial costs of striking are low for the teachers, who are paid later for the days they missed while on strike (Olson 1988).

VII. Why Public Employees Strike With the exception of periodic localized outbursts, public workers until about 1965 were generally perceived to be meek and humble servants of the people. “Public employees were so docile a group that they scarcely seemed part of the American labor movement. Public work was regarded as a short step above the dole, the refuge of lazy, dimwitted people willing to exchange a decent wage and the respect of their fellow men for security and an undemanding job. Public employee uprisings were few, and they met severe censure” (Williams 1977: 16).

Federal employees, in particular, “had been relatively passive for two decades, they were thought to have been professionalized into objective, politically neutral competence, cleansed of radicalism by three decades of loyalty oaths and secu- rity investigations, and made both happy and prosperous by very generous salary increases. The outbreak of protest in the federal service obviously jarred these con- ceptions” (Hershey 1973: xi). Why the sudden militancy of public workers in the 1960s? Why do they continue to engage in disruptive job actions today, albeit at a much slower pace?

Until the early 1980s, the Bureau of Labor Statistics recorded the major rea- son given for each work stoppage in industry and government. Most private sec- tor strikes were attributed to wage and benefit disputes. The figures were similar for the public sector, with economic disputes also fostering the most strikes. That economic issues have provoked a large percentage of strikes in industry and gov- ernment reflects the fact that wage and benefit issues usually top a union’s list of demands in a new bargaining relationship.

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Of course, the official reason given for a work stoppage reveals little about either the broader macro-level factors related to a strike or the more immediate process- related variables that contribute to a complete breakdown in negotiations.

A. Macro-Level Factors In the private sector, until fairly recently, there was a strong association between unions’ propensity to strike and prevailing business conditions (known as the business cycle). Work stoppages had a tendency to increase during periods of rising prices and falling unemployment and decrease during economic reces- sions. For example, postwar boom periods following World War II and the wars in Korea and Vietnam saw a substantial rise in the number of work stoppages (Ashenfelter and Johnson 1969). Economic expansion usually means plentiful job opportunities; a striker who is permanently dismissed should be able to find another position. Conversely, during periods of economic decline, unemployment levels rise and jobs are hard to locate. Workers are less likely to risk being fired for a job action. The relationship between strike activity and the business cycle has been similar in public employment (Partridge 1991). What has changed recently is the nature of job opportunities. Private sector manufacturing workers perma- nently replaced during a strike find it very difficult to locate a similarly paying job today, regardless of the business cycle, because of the enormous shift in employ- ment to information technology, services, and other sectors as manufacturing has declined.

In the private sector, strikes also are related to the nature of the industry and the work involved. Strikes are most common among homogeneous groups of work- ers who have little opportunity for economic advancement (e.g., coal miners and dock workers). Physical labor (unskilled or semiskilled), unpleasant or dangerous work surroundings, and seasonal casual jobs have been positively associated with strike behavior as well (see Burton and Krider 1975).

Similar patterns are evident in the public sector. The largest number of strikes has been by homogeneous unions of teachers, transportation workers, health-care workers, sanitation workers, and, in the early days, police and firefighters. Working conditions are highly variable in these occupational categories, but dangerous sit- uations are not uncommon in any of them (e.g., teachers in inner-city schools; sanitation workers loading, compacting, and unloading solid waste), and one can imagine few jobs more unpleasant than working all day in an intimate relationship with garbage.

B. Micro-Level Factors Three types of micro-level variables are related to strike activity: demographic and attitudinal factors, bargaining power and costs of disagreement, and faulty negotiations.

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1. Demographic and Attitudinal Factors

For job actions, gender seems to be insignificant; age is more important. Older employees, who have the most to lose and the least to gain from a strike, tend to be more conservative about a job action (Maki and Strand 1984), but younger workers are more willing to walk out. Education level may also be related to strike behavior; the higher the level of schooling, the lower the propensity to strike (Shutt 1982; Maki and Strand 1984). Research further suggests that job satisfac- tion, favorable attitudes toward the employer, worker autonomy in the workplace, and progressive HRM practices are negatively related to strike activity (Ng 1991; Godard 1992) and that those most strongly committed to the union are more likely to vote for a strike than less committed members (Wheeler 1985; Martin and Sinclair 2001). Finally, workers consider the potential costs and benefits of going on strike from an individual perspective, including their current level of pay and benefits versus the perceived costs of striking (financial as well as family related), and the availability of job alternatives should the strike fail (Martin and Sinclair 2001).

2. Bargaining Power and Disagreement Costs

The bargaining power of the respective parties influences strike behavior. Burton and Krider (1975) measure bargaining power as the union’s “ability to obtain wages greater than the employer would have voluntarily paid on the basis of market con- ditions.” They assert that strong private sector unions are less likely to strike than weak unions because they tend to accept less than what they could actually get through a full display of power (which would harm the competitive market posi- tion of the employer) and because the employer tends to give them “more” to avoid a costly and painful confrontation. Relative bargaining power for any union fluctu- ates with economic and employment conditions, union membership strength and commitment, the union’s ability to control the labor market, effectiveness and lead- ership skills of management and union negotiators, public opinion, and an almost limitless number of other factors that vary, in government, by service function and employer. Despite impressive attempts, no single, simple equation has been derived to represent all the vicissitudes of public sector bargaining, nor is it likely to be. Furthermore, the relationship of the strike to bargaining power is nebulous: “strikes may be a manifestation of weakness, as well as a demonstration of power” (Spero and Capozzola 1973: 250–251).

Notwithstanding the extreme complexity and turbidity of the bargaining power concept, some useful insights into a bargaining relationship and potential work stoppages can be derived. For instance, the union and management costs of disagreeing may be calculated in the context of the threat of a strike to help discern “true” attitudes and beliefs, or where the parties are “coming from.” In Theory of

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Wages and Employment, Allan M. Cartter (1959) was one of the earliest scholars to view strikes from this perspective, as represented by the following equation:

Cost of disagreeing with Y Costs of agreeing on Y ’s term

Bargaining attitude of X

For example, teachers’ costs of attempting to settle a bargaining dispute through a walkout are lower in jurisdictions that mandate a fixed number of days in the school year and thus require strikers to make up lost days on holidays or during the early sum- mer. Where strikes result in a reduction in school days, or where school districts fill in for striking teachers with substitutes, the costs of disagreement can be considerably higher because pay may be deducted. Similarly, as discussed Section VIII.E, the costs of striking are higher in jurisdictions that enforce severe sanctions as a matter of course and lower where strike penalties are rarely applied, often forgiven, or nonexistent.

3. Faulty Negotiations

Strikes may erupt from what Hicks (1932), many years ago, called “faulty nego- tiations.” This ensues when one or both parties err in assessing the other’s true bargaining position, willingness to engage in a strike, or understanding of what a “reasonable” settlement would look like.

“Faulty negotiations” may be as elusive an explanation for work stoppages as bargaining power, but there are many instances in which the bargaining process clearly collapses because of inept, or inexperienced, negotiators, personality con- flicts, unrealistic demands, communications breakdowns, or the lack of good faith bargaining. Faulty negotiations because of severe personality conflicts characterized the Bay Area Rapid Transit strike of 1997. While union and management represen- tatives deadlocked over minor issues and denounced one another in dueling press conferences, the strike of 2600 Service Employees International Union–affiliated workers inconvenienced some 275,000 mass transit riders for several days (Fagan, Cabanatuan, and DelVecchio 1997). In other situations, one party, perceiving a benefit, appears reluctant to negotiate in good faith. The 2004 3-day walkout by New York City day care workers serving poor families followed more than 4 years without a contract and 3½ years without a raise (Kaufman 2004). Trash collectors, garbage sorters, and truck drivers called a 48-hour strike in San Mateo County, California, in 2010 in support of 12 county landfill workers whose contract had expired 8 months earlier (Fimrite 2010). In each of these cases, one or both parties perceived some benefit in dragging out negotiations. Another example of faulty negotiations is documented in Case Study 8.2.

In a perfect world, negotiators for both sides would have complete informa- tion and full knowledge of all important variables, including the other party’s true

252 ◾ Labor Relations in the Public Sector

position. A Pareto-optimal solution would be devised at the bargaining table; both would “win.” Unfortunately, this perfect world is inhabited by divergent interests and perceptions of reality, schisms within the ranks of both management and labor, unequal bargaining power, the Hydra of public opinion, intense personality conflicts, diabolical political machinations, and uncountable related factors. Even an off hand comment on the gender of chief negotiators can matter (Montgomery and Benedict 1989). Case Study 8.2 describes the 2012 Chicago teacher strike, whose precipitators included faulty negotiations between new Mayor Rahm Emanuel and Chicago Teachers Union (CTU) President Karen Lewis.

Faulty negotiations may be minimized by experience and maturity. Over time, bargaining parties develop protocols to reveal indirectly where each truly stands on the issues (Reder and Neumann 1980). As the parties become familiar with one another, the likelihood of a strike occurring because of faulty negotiations is reduced. This view is supported by the higher incidence of strikes in new bargain- ing relationships and research findings that experienced negotiators make fewer mistakes in assessing their opponents’ actual position (Montgomery and Benedict 1989). The greater the bargaining experience, the less the likelihood of a strike. Carried to the extreme, secret agreements between union and management nego- tiators have been known to make bargaining a charade, with the most important outcomes predetermined.

Case Study 8.2 Faulty Negotiations in Chicago

Twenty-six thousand public school teachers in the nation’s third largest school system stayed out of the classrooms as the 2012 school year began, inconveniencing 350,000 students, their parents, and many others. As a mayoral candidate in 2011, Rahm Emanuel had criticized the teachers and the CTU on many occasions and proposed a state law limiting strike rights. Once in office, he rescinded a 4% raise that had been agreed to in a collective bargaining contract. New bargaining broke down over pay, teacher evaluation, priority for rehiring laid-off teachers for new openings, the length of the school day, and, in the eyes of the union membership, basic respect for teachers.

Calling the job action a “strike of choice,” Emanuel remon- strated, “Don’t take it out on the kids of the City of Chicago if you have a problem with me,” and “I will not stand by while the children of Chicago are played as pawns in an internal dis- pute with a union” (Davey 2012; Rossi, Guy, and Dudek 2012). Calling the strike “illegal,” the mayor filed a lawsuit seeking a

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return-to-work injunction to send teachers into the classroom. He traded insults in the media with CTU President Lewis (who was no shrinking violet herself) (Webber 2012).

After 7 days of vitriol and hard bargaining, a deal was reached that both sides proclaimed to be a win.

QUeSTIONS 1. When negotiations, such as those in Chicago, unravel and

accusations are tossed about like confetti, is one party or the other usually at fault? Is that the case here?

2. Based on the brief preceding description and your own Internet research, was faulty negotiations the “cause” of the strike or were fundamental differences the principal reasons?

3. Do you think the national debate over education reform and teacher unions played a role in provoking the strike? Why or why not? (Again, Internet research will yield fur- ther background on the strike.)

VIII. Strike Tactics A. The Union Work stoppages usually come after rejection of the employer’s last offer and a major- ity vote of the union membership to strike. Worker solidarity is important. The strike meeting itself is run enthusiastically, with great grandstanding, emotional avowals, and thunderous applause. The union leader’s goal is to win a unanimous vote for a walkout.

The union must move quickly to build up maximum pressure on the employer and elected officials. Timing the strike and its announcement to have the fullest impact is important to the union also. For example, maximum media coverage normally is available Monday through Thursday; a strike announcement Friday afternoon or over the weekend can go relatively unheralded. Similarly, little imme- diate impact is registered if transit workers walk off the job on a Saturday.

Transport Workers Union Local 234 went on strike in Philadelphia on Monday, November 3, 2009 at 3:00 a.m., just before the morning rush hour. The union had decided not to strike while the Phillies were playing World Series games at home over the weekend (Moran 2009). Pressure tactics are quickly applied: news conferences, mass meetings, media advertisements, e-mail blasts, lobbying, and picket lines all help apprise the public and elected officials of the union’s point of view. Picket lines have high visibility and, if other union members refuse to cross them, they create powerful new pressures on public officials and management. Strikes can even disperse

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geographically. Striking Houston janitors set up picket lines in Chicago, Washington, D.C., New York City, and other cities in late 2006 to bring national pressure on employers. Sympathizers may also honor picket lines, as the University of Minnesota learned during an American Federation of State, County, and Municipal Employees strike by 3500 clerical, technical, and health-care workers in September 2007. Offices had to be closed or services reduced all across campus for nearly 3 weeks. Elsewhere, picket lines have shut down classrooms, transit systems, and garbage collection.

Ill-timed strikes, however, may produce lingering hard feelings on the part of an inconvenienced or angry public. A 2001 Minnesota state employee strike came on the heels of the September 11 terrorist attacks on New York City and Washington, D.C. Residents of the Gopher State have still not forgiven the strikers. The strategic timing significance of a work stoppage is perhaps no better illustrated than in the 1979 walkout by New Orleans police. The Teamsters-affiliated union announced its strike on the Friday night before Mardi Gras weekend. In more than 120 years, the internationally famed festival had been canceled only seven times—five times during war and twice for epidemics. The walkout, officially over bargaining rights for management-level police officers, benefits, and working conditions, also entailed rivalries between two police unions and racial overtones (the mayor was black, the police force largely white). The strike threatened to wreak economic havoc on the City of New Orleans, which expected to realize $250 million from Mardi Gras that year. Before the strike was settled 15 days later, 18 parades were canceled or moved to the suburbs and thousands of tourists left the city early or avoided the festival altogether. The union gained a number of concessions from city officials but lost something perhaps of greater value—its public support. Before the strike ended, antiunion rhetoric became strident and widespread. Vitriol and “base, vile behavior” on both sides tainted labor–management relations for many years. In retrospect, the union’s timing strategy may have been ill advised (see Salerno 1981).

Union leaders do not usually call a strike without carefully considering the possi- ble ramifications and the odds of winning it. A strike committee composed of various stewards and unit representatives is typically formed to analyze the costs and benefits. If a work stoppage is indeed the decision, the strike committee operates out of a control center to direct picketing actions and media relations, handle members’ ques- tions, maintain solidarity, and coordinate with other unions (Gagala 1983: 230–241). Strike websites, chat rooms, and e-mail groups are set up to communicate rapidly with strike leaders and supporters. Photos and video clips are posted for media use.

Sometimes job actions other than a full work stoppage are employed. By “work- ing to the rule,” employees refuse to perform activities not in their job descriptions, turn down overtime work, and otherwise legally interfere with the operations of the employer. For example, Delaware correctional officers refused overtime in 2004 to protest low pay and a record high number of unfilled vacancies (Parra 2004). As another illustration, employees may protest what they consider to be unsafe condi- tions by assembling en masse in the supervisor’s office or filing reams of grievance paperwork. Where strikes are prohibited by law and alternatives such as arbitration

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are not available, absenteeism, negligence, reduced effort, rudeness in dealing with customers, and even sabotage may occur (Hebdon and Stern 1998).

Events proceed at a rapid pace during most public employee strikes. In private employment, management usually has accumulated inventories and otherwise pre- pared itself for a possible work stoppage. Public services are provided directly by people; tangible material products seldom exist. Nationally affiliated unions typi- cally maintain strike funds to help out-of-work members get by financially until paychecks begin to flow again, an option not generally available to striking public employees. But public sector services are not conducive to inventory accumulation. There is strong pressure to restore services as soon as possible. Thus, workers are motivated to seek a speedy settlement—an outcome also appreciated by the incon- venienced general citizenry.

When a quick resolution is not in the cards, a determined union elevates the level and scope of conflict. In his study of social movement unionism, Paul Johnston (1994) suggested that any collective action by public employees is likely to experience greater success if the union is able to (1) frame its demands in terms of the “public interest” and (2) form coalitions with program clients, other unions and groups of employees, elected officials, agency or departmental management, or other entities. A strike over pay inequities for female employees might be presented as a fight for the interests of all women; a teachers’ strike might be articulated as being for the “good of the children”; a walkout by health-care workers might be framed as being about “patient safety”; a strike by school bus drivers might be about “children’s safety”; and a strike by predomi- nantly African American or Latino workers might be portrayed as a “struggle for civil rights.”

B. Management In legalized strike jurisdictions, employers must ask themselves how far they will go before taking a strike, how long a strike they can withstand, and what the likely results of it will be. Early in the public sector experience, most employers would go the extra mile to avoid a strike, or, in the event one did occur, settle it as expedi- tiously as possible with only passing regard for the long-term results.

The tendency of public managers to cave in to avoid the turmoil and confusion of a strike has lessened. Management recognizes that certain factors favor them during work stoppages. As already noted, government tax revenues continue to be collected whereas employee wages stop. Without a substantial strike fund, public employees can be seriously inconvenienced both by their loss of wages and benefits and by the curtailment of government services upon which they and their families, like all other citizens, depend. Furthermore, striking public workers face citizen hostility that often tilts public opinion in favor of management. And there is always the disturbing possibility that striking government workers won’t be badly missed, thus calling into question the need for the services they have provided in the past or raising the specter of privatization.

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Even work stoppages in police and fire services, arguably the most “essential” of all local government functions, do not always have adverse impacts. Although the Boston police strike was accompanied by shocking episodes of crime and general breakdowns in law and order, such was not the outcome in other incidents, includ- ing police strikes in New York City, Albuquerque, and San Francisco. In these and many other jurisdictions, public managers utilized long-range planning to cope with strikes by providing for temporary substitute labor. For example, local police supervisors, county law enforcement personnel, and state highway patrol officers can augment nonstriking police personnel, and adjacent districts or volunteer fire departments can assist during firefighter strikes. Through contingency planning, essential services can be maintained during a work stoppage. Planning may have the added benefit of reducing the likelihood of a strike occurring in the first place.

C. Contingency Planning for the Strike Despite the fact that work stoppages in government are rare today, strike planning is a sound, and necessary, management practice if critical services are to be main- tained and a strong management bargaining position ensured. Although contin- gency planning is more common today than in the past, many employers continue to ignore the need for it.

Comparing municipal strike preparation to disaster and other emergency pre- paredness requirements is instructive (Levesque 1980). Certain groups of personnel should be identified: (1) a strike task force composed of the city manager, assistant city manager, city attorney, director of public works, chiefs of police and fire, and the HRM director and (2) strike operations personnel consisting of department heads and other management employees. The principal duties of the task force are to main- tain essential services by assessing problems on a day-to-day basis and creating alter- native approaches for dealing with them. Strike operations personnel oversee and perform critical services in their functional domains. In the event of a general strike, the task force can implement a strike plan to continue operating designated essential services and as many other services as possible while shutting down government func- tions not posing a threat to the public health and safety. A strike headquarters may be designated in advance, and, as in any emergency, reliable communication channels must be established to link the task force with the union leaders, strike operations personnel, the media, the legislative body, the mayor, and the general public.

The strike contingency plan should identify in detail which personnel can be utilized to maintain essential services. An inventory of supervisory skills and job expe- riences aids in assigning managers to essential line operations. Private contractors can be enlisted to provide services on a temporary basis. Intergovernmental cooperation through formal, mutual aid pacts also is advised to augment supervisory personnel or to replace them in the unlikely event that they, too, walk out. Importantly, the contingency plan should provide for the protection of nonstriking workers through arrangements such as carpools, escorts, patrolled parking lots, and telework.

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During the work stoppage, the public employer attempts to garner public sup- port for the management position to apply maximum pressure on wavering union members to return to work. A number of strategies may be used, most of them involving manipulation of the electronic and print media. For example, man- agement might consider publishing salaries of striking workers or showing how increased taxes and/or expenditures would result from bowing to union demands.

Pawtucket, Rhode Island, is a city that once held the dubious honor of experi- encing the most teacher strikes in the United States. Its superintendent, Robert J. Gerardi (1986), offered the following suggestions: Be aware of election-year pres- sures on elected officials for a quick settlement. Designate a single spokesperson to deal with the media, so that conflicting information will be minimal. Be prepared for teacher unions to use pressure tactics on the school board and administrators, such as daily picket lines and unfair labor practice charges. Also, “Stick to your guns … don’t give away the store. The union is counting on your fatigue.”

D. The Injunction An injunction is a request by the public employer (as plaintiff ) to a state or local court to halt a strike or other job action. First, however, a temporary (or ex parte) restraining order, intended to stop a job action until a final determination as to its legality can be made by the court, may be obtained with a prima facie showing of jeopardy to public health or safety, or of the intentional interruption of a legally mandated government function. In practice, the temporary restraining order is often used simply to serve notice on the public employee union of government concern and to set the stage for imposing sanctions, such as fines or dismissals. If the work stoppage continues, the court may hold a hearing and issue a preliminary injunction aimed at stopping the job action until a final decision can be reached on whether to issue a permanent injunction. Permanent injunctions are normally not required in public employment because of the short duration of most strikes.

Until passage of the Norris-LaGuardia Act in 1932, the courts tended to be very quick—even to the point of abuse—to issue injunctions against almost any type of job action, from strikes to picketing, thereby immediately placing unions in the unpalatable position of having either to order their members back to work or to keep them off the job in violation of the law. The Norris-LaGuardia Act forbids federal courts from issuing injunctions in labor disputes unless they threaten public health or safety or are accompanied by fraud or violence. But the act does not cover public employees, who can be enjoined from job actions by state or local courts.

Before 1968, most courts held that injunctions against illegal work stoppages did not require the public employer to demonstrate irreparable harm to the operations of government or to public health and safety; injunctions were rou- tinely granted upon request. In that year, however, in School District for the City of Holland et al. v. Holland Education Association (1968), the Michigan Supreme Court refused to issue an injunction against teachers who failed to report for work

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because the school districts did not demonstrate irreparable injury or breach of the peace. Taking a strict approach to issuing an injunction, the court stated, “We must concede that the mere failure of a public school system to begin its school year on the appointed day cannot be classified as a catastrophic event. We are also aware that there has been no public furor when schools are closed down for inclement weather, or on the day a presidential candidate comes to town, or when the basket- ball team wins the championship.”

The Holland case set an important precedent for other states by implying that the employer should approach the court with “clean hands” after having bargained in good faith; the mere injunctive request was not, in and of itself, enough to merit court action. Interestingly, Michigan law expressly forbids public employee strikes.

Today, then, the courts require the public employer to demonstrate that some harm results from a job action before it will enjoin that action. Use of the injunction simply to avoid inconvenience or escape confronting the causes of labor conflict head on has been an increasingly untenable behavior for government employers. Even when injunctions are won, enforcement of contempt of court penalties may be counterproductive, intensifying employer–employee conflict and making martyrs out of jailed leaders. If penalties are not enforced, the credibility of management is damaged. Either way, management may not emerge in a stronger position.

This is not to say that there is no legitimate role for the injunction. To the con- trary, serious threats to the health and safety of citizens resulting from a strike are appropriately met with an injunction. A work stoppage in violation of an ongoing contract may properly be enjoined. What is called for is flexibility, with employer and court decision making appropriate to the circumstances surrounding each case.

E. Strike Penalties If a strike is illegal or if a court injunction and back-to-work order are secured, yet strikers defy them, should public workers be punished? If so, how severely, and what penalties should be invoked?

Excessively harsh strike penalties imposed by the courts or by the employer may be counterproductive by encouraging strikers to extend their job action with the belief that they have nothing to lose. Alternatively, strikers may take a calculated risk that the employer will not actually follow through with strong sanctions, such as dismissal.

Illegal walkouts by schoolteachers present a particularly delicate situation because of the special relationship between teachers and their students. When 700 Monmouth, New Jersey, teachers walked out over an increase in their health insurance premiums in 2001, a state judge ordered them back to duty. The teach- ers defied the order, so the judge, beginning with names starting with the letter A, jailed the teachers (alphabetically) until the union called off the strike 9 days later. Arrests can result in serious and lasting damage to a public school system, including a loss of student respect for a “convicted criminal.”

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When, however, an illegal walkout extends for a prolonged period of time or causes great hardship, the public employer wants to apply new pressures for settlement, and management believes that sanctions must be leveled, a number of options are available. Union members and/or officials may be imprisoned, fined, fired, demoted, or suspended; the union may be decertified; or the dues checkoff may be suspended or revoked. Most states provide statutory strike penalties. In Georgia, striking state employees can receive 5 years’ probation and no pay increase for 3 years; Nevada law establishes a $50,000 fine per day against a striking union, with a $1000 daily fine plus imprisonment for the union officials. Michigan levies a fine of 1 day’s pay for each day’s strike on school employees and daily monetary penalties against the union as well. Striking teachers in Maryland may have their union decertified as exclusive representative in the school district.

New York’s Taylor Law sets out substantial penalties for striking workers, including loss of 2 days’ pay for each strike day and suspension of the dues check- off. Generally, the Taylor Law sanctions (as amended in 1968) have been regularly enforced and strike incidence has been minimized, indicating the value of flex- ibility and consistency in enforcing strike penalties. For instance, New York City transit workers went on strike in December 2005 over pensions, health insurance, and worker safety issues, despite being warned of “dire consequences” by Governor Pataki and Mayor Bloomberg. A state supreme court judge slapped them with one injunction and then a second. The noncomplying Transport Workers Union was held in contempt of court and fined $1 million a day; the union leader, Roger Toussaint, was jailed. When the workers finally returned to their subways, trains, and buses, the fine had run to $2.5 million and Toussaint had sat in jail for 4 days (Greenhouse and Chan 2006; Lueck 2006).

In sum, New York’s tough Taylor Law does force striking unions and their members back to the job. In many instances, however, severe punishments, such as dismissals, jail time, and heavy fines, are not carried out or penalties imposed on illegal strikers are forgiven after the strike is settled. Yet mild penalties might be ignored by the union. The middle ground of moderate sanctions consistently enforced may be the best course of action to reduce the probability of strikes, particularly where binding arbitration is available to resolve disputes (Currie and McConnell 1994; Partridge 1996).

Although striking employees are often threatened with dismissal and some- times fired outright, as in the case of the epic Professional Air Traffic Controllers Organization (PATCO) strike (see Case Study 8.3), management usually opposes such actions as a practical matter because they do not want to lose good employees for whom they have made an investment in time and training. Often, there is dis- sension within the ranks of management over such decisions, creating an interest- ing political rivalry between those who want to dismiss striking workers and those who do not. Elected officials may find themselves deeply divided in such disputes as well.

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Case Study 8.3 The PATCO Strike

PATCO was established in 1968 as a “professional society” of federal air traffic controllers. Relations with the control- lers’ “employer,” the Federal Aviation Administration (FAA), were stormy from the beginning. Within 2 years, PATCO had staged a sick-out and the FAA had responded by canceling the organization’s dues checkoff system. A report commissioned by the U.S. Department of Transportation (DOT) categorized PATCO–FAA labor–management relations as “the worst in the federal sector.”

On March 25, 1970, PATCO called its first nationwide job action—a sick-out that lasted 3 weeks—over FAA transfer of four PATCO members who were engaged in organizing efforts in Baton Rouge, Louisiana. It was a serious mistake, resulting in a union membership decline from more than 7500 to less than 3000 and near bankruptcy from a $100 million damage suit brought by the airlines. As part of the settlement, PATCO agreed to a permanent no-strike injunction. PATCO spent the next 3 years seeking reinstatement of hundreds of controllers who were fired and suspended from duty by the FAA. Meanwhile, the FAA unsuccessfully fought PATCO’s petition for certification as exclusive representative of the controllers. In 1973, the first contract negotiations were held. Throughout the remainder of the 1970s, PATCO and the FAA negotiated a series of 1-year contracts, almost always in an atmosphere of crisis and work slowdowns.

Accumulating bitterness from hostile contract negotiations and waves of grievances filed under the various written agree- ments came to a head as the last contract expired in March 1981 and negotiations over a new contract reached an impasse. The dispute involved PATCO’s demands concerning salaries, work hours, retirement programs, and other benefits that, to be granted, would require special treatment of the control- lers somewhat similar to that accorded postal workers. PATCO President Robert Poli polled his membership on whether to go out on strike. Seventy-five percent voted for a walkout, and when Poli submitted the FAA’s last best offer to the rank and file, they rejected the package by a 20-to-1 margin.

After 2 subsequent months of negotiation and federal medi- ation, the two sides were, in mediator Kenneth Moffett’s words, “still miles apart.” PATCO was asking for $575 million in new salaries and benefits, while the FAA said it would agree to $40

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million and no more. On August 3, 1981, 12,000 controllers refused to report to their control towers at airports throughout the United States.

If the controllers thought President Ronald Reagan, a for- mer head of the Screen Actors’ Guild (and whom PATCO had endorsed for president), would be sympathetic to their cause, they were sadly and fatally mistaken. Reagan labeled them “lawbreakers,” sought the imprisonment of strike leaders, and summarily dismissed from federal service all the strikers who refused to return to work within 48 hours. A federal judge sup- ported the president by imposing accelerating fines on the union that would total $1 million per day.

If PATCO leaders were counting on public sympathy for the controllers to help encourage the FAA and the Reagan admin- istration to compromise or back down, they were wrong again. The average citizen—even the typical union member—found it difficult to identify with the relatively well-paid controllers who were demanding a maximum salary of $59,000 (about $150,000 in 2013 dollars), almost unequaled retirement ben- efits, and a 32-hour workweek. Moreover, the strikers were clearly in violation of several federal laws and their oath of office. When Reagan and DOT Secretary Drew Lewis declared the strike over (because all strikers had been fired) and the DOT began hiring new controllers, there was little public outcry. There was, however, concern by air travelers that the nation’s air traffic control system would be unable to function safely, amid predictions by the airline industry of massive layoffs and flight cancellations.

Meanwhile, as new recruits began fast-track training to become air traffic controllers, some 2500 supervisors were joined in directing aircraft by about 800 military controllers, the 5000 civilian controllers who had stayed on the job or returned within the amnesty period, and hundreds of recently retired controllers. Despite PATCO predictions of terrible air disasters and a crippled industry, neither happened. Commercial flights continued, although at reduced levels, and accidents occurred at or below normal levels. The airlines lost a great deal of money, but they never wavered in supporting the president.

Three months later, PATCO was officially decertified as a bargaining representative by the Federal Labor Relations Authority. Subsequent court appeals by the union were fruit- less. The once proud and aggressive organization of profes- sional air traffic controllers had been destroyed by its own strategic mistakes and a hostile administration.

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In hindsight, the strategic errors of PATCO are obvious. First, the union badly misread public reaction to the strike and to its demands. Little sympathy was offered to the highly paid white-collar workers during a period of citizen resistance to government taxation and spending. Second, the union failed to publicize legitimate grievances, including congested airways, tremendous mental strain on overworked controllers, and the need for improvements in technology. Third, PATCO did not anticipate the strong Reagan administration reaction to the strike and the government’s determination to “stick to its guns.” Finally, PATCO did not make the time or effort to garner the support of other federal and private sector unions before the strike. Although controllers in Canada and Portugal did refuse to route U.S. flights over their air space for several days, the actions were short-lived and not very troublesome. Organized labor in the United States abandoned the striking control- lers and refused to respect their picket lines. Had domestic union support been stronger, the airline industry could have been brought to the brink of financial disaster, which would have tremendously increased settlement pressure on the administration.

Years later, in 1987, air traffic controllers voted in a new union: the National Air Traffic Controllers Association (NATCA), organized by John Thornton, one of the controllers sacked by Mr. Reagan. The new union adopted a no-strike pledge and disavowed illegal job actions, while renewing many of its ear- lier complaints concerning heavy workloads and an autocratic FAA. In 1989, NATCA successfully (and peacefully) negotiated its first contract. In 1993, President Clinton lifted the ban on rehiring the controllers fired by Reagan. Sadly, most were past retirement age or had moved on to other careers.

QUeSTIONS 1. Were “faulty negotiations” in play in the events leading up

to the PATCO strike? If so, how? 2. How did public opinion play a role? 3. If he had been able to exercise hindsight, how might Poli

have played his cards differently? 4. Why do you think President Reagan reacted so strongly

to the air traffic controller strike? How might subsequent presidents (e.g., George W. Bush and Barack Obama) have handled the events differently?

Strike! ◾ 263

IX. Conclusions and a Look Ahead Even in the event of initial management determination to dismiss striking work- ers, it frequently proves difficult to carry out the final action. Firing striking public employees can provoke more problems than officials want, and the real politics of public sector strike policy often diverge substantially from formal provisions in the statutes. Nonetheless, many employee discharges have been announced and permanently carried out. For the public employer, the paramount tasks are to avoid strikes when possible; always protect the public’s health, safety, and well- being; and promote solutions through good faith bargaining.

Work stoppages and related job actions by public workers have been recorded since the 1830s. The incidence and intensity of government work stoppages increased dramatically from 1965 to the late 1970s, especially at the local level. Since then, the number of strikes has declined significantly, both in government and in the private sector.

The vast majority of public employee work stoppages have occurred in the face of philosophical and legal prohibitions by governments. The sovereignty doctrine, although essentially irrelevant in those jurisdictions engaging in collective bar- gaining with their workers, remains pertinent where negotiations are prohibited. Nonetheless, government employee work stoppages have taken place in all states. Early on in the public sector experience, strikes did seem to bias the political pro- cess in favor of the unions, but work stoppages today tend to generate strong politi- cal and economic counterpressures on striking employees and their unions. Some government services are not perceived to be quite as “essential” as they once were.

As the “ultimate weapon in labor’s arsenal,” the public employee work stop- page appears to have lost much of its firepower. Employer recognition of the appar- ent inevitability of strikes has resulted in a more mature, calculated approach by management. Negotiating skills, training, experience, and planning have improved greatly during the past decade, especially at the local government level. As Tim Bornstein (1980) remarked, “Public management came of age in the 1970s. Public sector negotiators have learned well from the private sector that there are 10,000 ways to say ‘no’ to a union’s demands without bargaining in bad faith. And they have learned the ultimate lesson from private sector management: Never blink an eye at a union’s strike threats; talk softly and carry a big strike contingency plan.”

Several signs would seem to portend heightened public sector strike activity. Government employment has become less desirable because of cost-saving lay- offs and hiring freezes, limited wage gains, reductions in pension and health-care benefits, outsourcing and contracting out, and bureaucrat bashing by citizens and elected officials. Working conditions have deteriorated for many public workers: classroom teachers face unruly and violence-prone students; police officers endure life-threatening encounters with violent offenders; and social workers must attempt to intervene in the affairs of dysfunctional families. Attacks on the very existence of

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unions and collective bargaining are being launched by antiunion forces in several states. These and many other negative trends and problems are likely to continue.

In view of such factors, the precipitous decline in strike activity seems paradoxi- cal. Closer examination, however, uncovers some powerful deterrents to strikes. Foremost among them is the PATCO debacle, widely seen today as a seminal event in American labor history. That a highly skilled group of professionals in what is clearly an essential service could be relatively easily replaced, and their union abso- lutely crushed, made all organized labor enormously insecure. The PATCO strike marked a major change in political climate, with very negative implications for the unions.

Another factor discouraging government work stoppages is that they are simply not as effective as they once were. Management is more experienced at the bargain- ing game, and when a strike is called, it is much better prepared to cope effectively. Where strikes continue to be illegal, sanctions, when consistently enforced, can be very painful for the union and for individual members, who face the loss of their livelihood. Concern for job security may override a desire for wage and benefit increases. And, importantly, a public employee strike is a political event that is likely to be poorly received by a critical public.

Time and political and economic realities are working against the efficacy of strikes. Bargaining relationships have matured and stabilized. Many union leaders have reached a comfortable accommodation with management, and silent under- standings and glances have replaced thunderous emotional displays and angry stares.

Finally, and of great importance, alternatives to the strike, as intended, have proven successful in deterring them. Mediation, fact-finding, and especially bind- ing interest arbitration provide more peaceful venues for settling contract disputes. They are discussed in Chapter 9.

265

Chapter 9

Resolving Impasses: Alternatives to the Strike

I. Introduction Ultimately, collective bargaining involves people at the table and their constituent advisors, who, together, choose what the nature of the dialogue will be in negotia- tions and whether settlements will be achieved. Some parties want to walk away or to drag out the talks for reasons that are personal or political. They do not want a deal, or at least they do not want a deal quickly. In other cases, the desired outcome of bargaining—attaining a workable solution that maintains the relationship—gets displaced as the parties get entangled in the processes or become bogged down in personality conflicts. Process issues and party conduct can become so contentious that mediators or other third parties have to remind everyone that the goal is a contract settlement, not landing punches on the other side.

Experienced negotiators know that “all cases settle eventually.” But they do not settle in the same ways. No two contract negotiations are the same. Patterns cer- tainly exist, but even subtle differences can matter a great deal in determining bar- gaining outcomes. As public administrators have learned in many contexts, there is no one best way. Sometimes, despite the best efforts of the parties, a negotiated settlement is not obtained. In the private sector, this usually means a strike. In gov- ernment, it may produce a strike in some cases, but much more often an impasse is addressed through third-party dispute resolution mechanisms.

Despite the modest trend during recent years for public employers to accept the strike as a legitimate component of labor relations and collective bargaining, the majority of state and local governments continue to prohibit strikes. If strikes

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are prohibited, labor unions are at a distinct disadvantage in collective negotia- tions unless alternative impasse resolution procedures are available. In virtually all government jurisdictions in which collective bargaining takes place, some form of impasse device is provided to help balance the power of unions and management. The dispute resolution mechanisms developed in U.S. labor relations are increas- ingly being adapted to settle conflicts in other venues, from environmental disputes to divorces.

This chapter examines the three principal measures used in public sector impasse resolution: mediation, fact-finding, and arbitration (including final offer arbitration). We consider their various permutations, advantages and disadvan- tages, and relative effectiveness. The chapter concludes with a look at several new techniques that have been suggested or experimented with in various jurisdictions. The focus in this chapter is on disputes over interests that occur during contract negotiations. In Chapter 10, impasses over rights, or grievances, under the terms of an existing contract are addressed.

II. Private Sector Experience The right to strike for unions in the private sector is guaranteed by the National Labor Relations Act (NLR A). It is generally perceived to be a legitimate and fun- damental part of private sector labor relations. Third-party procedures for resolving private contract disputes short of the strike are used much less frequently than in public employment, but mediation, fact-finding, and arbitration all have a long his- tory in the private sector that predates their utilization in government.

The conventional procedure for private sector parties seeking to avoid a strike is to call in a mediator if no agreement has been attained within 30–60 days of contract expiration. Typically, a mediator is assigned by the Federal Mediation and Conciliation Service (FMCS), an independent federal agency established under 1947 amendments to the NLR A. The FMCS is also empowered under the NLR A to offer its services, even if not requested. If the mediator sent by this neutral peace- maker fails to steer the parties into an agreement through the powers of persuasion, fact-finding or arbitration may begin.

Fact-finding is a quasi-judicial process in which a neutral third party (individual or panel) examines the “facts” of the impasse, hears the arguments of the parties, and issues findings and recommendations. Fact-finding’s history dates back to 1902, when President Theodore Roosevelt appointed through an executive order the first fact-finding board (the Anthracite Coal Commission). Similar fact-finding enti- ties were established by executive orders of Presidents Woodrow Wilson, Franklin Roosevelt, and Harry Truman. In addition, ad hoc fact-finding boards have been used on many occasions in critical industries such as steel, autos, and railroads.

Binding arbitration by a neutral third party to settle unresolved disputes over the terms and conditions of a new contract, known as interest arbitration, has a

Resolving Impasses: Alternatives to the Strike ◾ 267

long history (it was first recorded in Connecticut copper mines in the eighteenth century). However, it is seldom used in industry. Generally, the strike is the final impasse resolution procedure in the private sector, although mediation and fact- finding are often given an opportunity to work first.

III. Impasse Resolution in Federal Employment Before Executive Order 10988 (E.O. 10988) of 1962, impasses between federal agen- cies and unions representing their employees were resolved on an agency- by-agency basis without the benefit of legal or statutory guidance. E.O. 10988 only partially filled the legal–structural void because it provided no binding interest arbitration procedures except for advisory arbitration in cases involving unit determination and representation disputes. The arbitrator’s sphere of decision making was highly con- strained. This lack of adequate impasse resolution procedures was a major source of criticism of the executive order and a prime reason for issuance of Executive Order 11491 by President Nixon, which authorized the FMCS to aid in resolving federal impasses upon the request of one or both parties. Depending on the situation, the FMCS could recommend mediation, fact-finding, or arbitration and assign trained personnel to help settle the dispute.

Under the Civil Service Reform Act of 1978 (CSR A), the FMCS continues to play a leading role in assisting federal agencies to resolve negotiation impasses. FMCS is a major provider of technical assistance in conflict resolution and labor relations across all sectors in the United States and abroad. Under Section 7119 of the CSR A, if FMCS assistance or other voluntary arrangements fail to settle a dispute, either party may request the intervention of the Federal Service Impasses Panel (FSIP) or mutually agree to a binding arbitration procedure, which must win FSIP approval.

The FSIP is composed of a chairperson and six members appointed by the president for overlapping 5-year terms. When asked to intervene in a federal labor dispute, the FSIP can make one of several possible determinations: (1) that it can- not exercise jurisdiction, (2) that negotiations should resume, (3) that negotiations should resume with mediation, (4) that fact-finding should be implemented, or (5) that other procedures, such as arbitration, should be used. The parties have the option of using FSIP mediators, fact finders, or arbitrators and, with FSIP permis- sion, an outside arbitrator. In cases where voluntary settlement proves elusive, the FSIP is authorized to hold hearings, take sworn testimony or depositions, issue sub- poenas, and take “whatever action is necessary” within its authority to resolve the impasse, including final offer arbitration. (Final offer arbitration differs from con- ventional arbitration in that the arbitrator must accept the “most reasonable” last offer of one party or the other, without modification or “splitting the difference.”) FSIP impasse decisions are enforced by the Federal Labor Relations Authority, which can impose unfair labor practice (ULP) penalties against a noncomplying

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party (Smith 2006). Issues heard by the FSIP concern disputes over facilities (e.g., parking and office space), hours of work, ground rules for negotiations, and various human resource management issues.

Disputes involving postal workers are covered under the 1970 Postal Reorgani- zation Act. If the parties fail to reach a contract agreement or mutually adopt a binding impasse resolution procedure, the FMCS is authorized to establish a fact- finding panel consisting of three persons (two selected by the parties, a third chosen by the two selectees). The panel must issue a report of its findings within 45 days; settlement recommendations are optional. If an agreement is not forthcoming within 90 days, the FMCS creates a three-member arbitration board through the same procedures. The board holds hearings, takes evidence, and makes a binding decision within 45 days. Costs of the fact-finding panel and arbitration board are shared equally by the two parties.

Postal Service negotiations went to arbitration for the first time in a 1984 dispute involving 500,000 employees, the most ever participating in an arbitration settle- ment in the United States. The parties were $13 billion apart in their final demands, with the major point of disagreement being how most appropriately to measure wage and job comparability. The arbitration panel found that postal workers were making more money than comparable private sector employees. They issued a salary decision of “moderate restraint,” adding about $4 billion to postal costs (Loewenberg 1985). In 2007, an arbitration panel was called upon to impose a settlement after bargain- ing with the National Rural Letter Carriers Association collapsed.

IV. State and Local Government Impasse Procedures State law governs collective bargaining for public sector employees. Since support for public sector collective bargaining rights changes with shifts in the political environment, state laws on collective bargaining are frequently amended following transformations in the political landscape of a particular state. Currently, at least 38 states have legislation providing for some sort of impasse resolution procedure for one or more categories of employees (see Table 9.1). Mediation is the most com- mon statutory dispute resolution procedure, followed by fact-finding and arbitra- tion. More specifically, at least 36 states provide for mediation, at least 28 states provide for fact-finding, and at least 27 states provide for arbitration in their stat- utes. One state, Colorado, provides for mediation in an executive order authoriz- ing partnership agreements with state employees. Some additional approaches to impasse resolution include advisory arbitration in Alaska, med-arb in Maine, and settlement by a citizens’ conciliation council in Ohio. Several states allow the par- ties to agree upon their own impasse resolution procedure. The wide variety of state approaches to resolving contract impasses provides a rich ground for experimenta- tion and research. Not surprisingly, a great deal has been written on the use, and the impacts, of impasse procedures.

Resolving Impasses: Alternatives to the Strike ◾ 269

Table 9.1 State Legislation on Dispute Resolution Procedures for State and Local Employees, 2012

State Mediation Fact-Finding Arbitration

(Conventional) Arbitration

(Final Offer)

Alabama

Alaska X X

Arizona

Arkansas

California X X X

Colorado

Connecticut X X

Delaware X X

Florida X X

Georgia X

Hawaii X X

Idaho X X

Illinois X X X X

Indiana X X

Iowa X X

Kansas X X

Kentucky X X

Louisiana

Maine X X X

Maryland X X X

Massachusetts X X X X

Michigan X X X X

Minnesota X X X

Mississippi

Missouri

Montana X X X X

(Continued)

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Table 9.1 (Continued) State Legislation on Dispute Resolution Procedures for State and Local Employees, 2012

State Mediation Fact-Finding Arbitration

(Conventional) Arbitration

(Final Offer)

Nebraska X X

Nevada X X X

New Hampshire

X X

New Jersey X X X

New Mexico X X

New York X X X

North Carolina

North Dakota X X

Ohio X X X X

Oklahoma X X

Oregon X X X

Pennsylvania X X X X

Rhode Island X X X

South Carolina

South Dakota X X

Tennessee

Texas X X

Utah X X

Vermont X X X X

Virginia

Washington X X X

West Virginia

Wisconsin X X X X

Wyoming X

Source: Data from state websites.

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Neutral third parties for state and local labor impasses may be obtained from a number of sources, including the state Public Employment Relations Board (PERB), state or local impasse agencies, the FMCS, or lists of private third par- ties provided by organizations such as the American Arbitration Association, the National Academy of Arbitrators, or the National Center for Dispute Settlement. Some states and localities employ part-time, ad hoc neutrals. The FMCS offers its services to help state and local jurisdictions develop their own dispute resolu- tion capabilities. Where such capabilities are not available, the FMCS will assist in resolving disputes when requested to do so by one or both parties. It will also provide technical assistance for training programs.

The FMCS has been particularly active in providing services to public school districts. For example, the FMCS has provided mediation services, training support, and a grant to create a labor–management council to a partnership of the Charlotte County School Board, Charlotte Florida Education Association, and Charlotte County Support Personnel Association. Similarly, the FMCS facilitated meetings between the American Federation of Teachers and the American Association of School Administrators. As a result of these meetings, the working groups reached agreement on a general framework for education reform (Cohen 2012).

A. Mediation An impasse in contract negotiations may be declared when a deadline has been reached, an important bargaining issue appears insurmountable, or the relationship between the parties has degenerated to name calling and accusations. In media- tion, an impartial third party helps the others to achieve a voluntary agreement on substantive issues in dispute. He or she also may try to help the parties maintain or improve the quality of their relationship. Mediation may be requested by either or both parties in a state or local dispute. In some states, such as North Dakota, both parties must make the request, whereas in other states, such as New York, the state PERB can intervene at its own initiative. As noted in Section IV, the mediator may be provided by the FMCS, state or local agencies, or private sources. The federal service is furnished only where no state or local mediation assistance is available. In 2010, the FMCS (2010) mediated roughly 1100 public sector disputes. Where state legislation governs the impasse resolution process, mediators may be selected by the parties from certified lists, or, as in Vermont, the state PERB may assign a neutral party on request. As a general rule, because the success of a mediator is premised upon the degree of confidence and trust in which he or she is held, mediators are sought out who are fully acceptable to both parties.

FMCS-provided mediators generally have achieved an excellent record and reputation. They are experienced, well-trained, full-time professionals (Dilts and Haber 1989; Mareschal 2002). State-assigned and ad hoc mediators vary in skill and experience. The quality of state-appointed neutrals is improving with contin- ued seasoning in public sector impasses. Meanwhile, the parties at impasse usually

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do well to avoid allowing local community figures or elected officials to serve as mediators. Although the intentions of local notables may be quite honorable, their lack of experience and expertise in resolving labor disputes can lead to unintended and undesirable outcomes.

Mediation is very informal, quite private, and highly individualistic. Records are not kept, so one is forced to rely mostly on anecdotes or personal experience to gain an understanding of what transpires. The process is intriguing. As Zack (1985: 180) observed,

It brings together two opposing parties, frequently antagonistic and hostile in their relationship; interposes a third party between them, often of their mutual selection; and creates thereby the expectation that the three forces will be able to achieve an agreement when the two par- ties could not … Even the participants in the process often are aston- ished that it actually works.

The mediator typically begins by calling a joint session to review the most recent proposals on unresolved bargaining issues along with an already agreed-upon list of items. At the mediator’s discretion, separate meetings may be held. Mediation ground rules must be decided, including no speaking out of turn, no personal attacks, and the need for confidentiality. Formal statements may then be obtained from each party regarding its positions on remaining questions. Next, after consid- ering the respective bargaining postures of the two parties, the mediator is likely to meet with each of them privately to gain their confidence and to explore negotiat- ing room on the issues. The mediator strives immediately to gain the confidence of the parties by listening closely to what they have to say and making sure to appear evenhanded in everything that is done. It is important that any contact with one party be reported to the other and that all relevant information be shared. Through the mediation process, all participants are continually made aware of their obliga- tion to reach a settlement. Communication channels must remain open. Indeed, a major function of mediation is to keep the parties at the bargaining table to avoid a lengthy period of stasis or stalemate.

Some mediators believe in doing an extensive analysis of the issues and parties in dispute and designing contingent and noncontingent strategies for dealing with the parties. Other mediators, recognizing that many complications and complexi- ties will work themselves out, focus on the people involved. They know that the parties are more familiar with the jurisdiction and its problems than the mediator can ever be and that they can resolve their difficulties if they can be helped to talk productively and persevere in moving toward settlement.

Two basic strategies are available to mediators. The nondirective, or broad strat- egy, is aimed at producing a climate conducive to settlement and assisting the par- ties to become more adept at the bargaining table. The mediator may press the parties to focus first on issues relatively easy to resolve, while suppressing negative

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or hostile outbursts. Even the nondirective mediator must also “orchestrate” (Kolb 1983) various administrative details (time and place of meetings), structure and order the issues that must be considered, ensure that negotiations move at an orderly pace, and keep the substance of the negotiations private. A major objective of the nondirective mediator is to help the parties to explore potential avenues for accommodation. Trial balloons may be launched by the mediator and pondered without risk to the parties. The mediator can assist the parties in properly present- ing offers and proposals at the bargaining table. Seemingly innocuous factors such as the language used or the way an offer is communicated can be a bar to settle- ment. Often, toning down the language while still preserving the substance of the proposal is effective. Attention by the mediator to such relatively minor problems may mean the difference between settlement and continued impasse.

“Directive strategies” are intended to help the parties generate options, dis- cern points of compromise, make them face the consequences of their respective situations, offer suggestions for settlement, and, in some cases, apply pressure for settlement. The directive mediator, in other words, attempts to take control of negotiations and bring things to closure. In extreme instances, the mediator may even provoke a crisis by, for example, publicly labeling a party as intransigent or obstructive or stalking out of a nonproductive caucus in apparent disgust.

The bifocal model of mediation is an alternative to the directive and nondirec- tive strategies. Mediators that adopt the bifocal model combine elements of the directive and nondirective strategies by pursuing an agreement on the immedi- ate issues in dispute while attempting to improve the overall relationship between the parties (Mareschal 2003). In employing the bifocal model, mediators can give more weight to either directive or nondirective strategies depending on the phase of the mediation process. A nondirective posture is good for facilitating an agree- ment when the parties are comfortable with one another and well intentioned. As negotiations move close to an agreement but remain snagged over one or more issues, the mediator may become more directive in his or her approach. A mismatch between the nature of the dispute and mediation tactics may push the parties into greater intransigence in their positions and doom the process to failure (Posthuma, Dworkin, and Swift 2002). Whatever tactics are brought into play, the success- ful mediator must maintain the trust of the parties, master the intricacies of the situation, and be persuasive in motivating union and management negotiators to steer toward a conclusion. Mediators must understand that mediation is a lengthy process and should be prepared to take small steps to achieve agreement between the parties (Mareschal 2003). Mediators must also understand that uncontrollable external factors (e.g., economic problems and political variables) may ultimately be more important than the mediator’s strategies in determining whether settlement is attained (Kolb and Rubin 1989).

To help the parties work together, the mediator typically calls for joint sessions. In these meetings, he or she employs various techniques. One is “idea charting,” which is a form of brainstorming. Here, the mediator goes around the room asking

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each individual to identify the issues that are most important to resolve. Each issue that is mentioned is written on a flip chart or computer projection screen. The par- ties discuss and clarify the issues and the underlying interests represented by the issues. Idea charting helps each party focus on the mediator and the written ideas, rather than on their peers and personal notebooks.

For example, suppose a management representative says, “We want to change the way care is provided to certain patients and relocate them to another building.” “Why?” someone asks. “Because these patients are dangerous and our visiting psy- chiatric support people would be better used if we could relocate the patients. We could also use better psychiatric aides, which would benefit our vocational pro- gram. And we need to keep costs down, and this might help.” The issue here is to move patients into a common facility for the reasons given. The union may agree that this is a legitimate interest of managers and be willing to talk about it. And management’s interest may prompt the union to identify its own related issues. The union could observe that “members fear new facilities, current wards are already understaffed, and the proposed changes might put persons in danger by consoli- dating potentially violent patients. Union members might have to work out of class or have their caseloads increased. Moreover, the building in question is a firetrap.” Throughout, the mediator tries to help the parties identify key interests and drop unimportant ones, develop criteria for addressing them, generate alternative pro- posals, and decide on the most pragmatic path to settlement.

At any time, a team may request a caucus to discuss what concessions or com- promises might be offered and under what conditions. Mediators usually attend the caucuses and provide assistance if needed. Mediators can also call a private caucus to remind an obstreperous party about the ground rules, such as no threats and accusations. Eventually, there may come a breakthrough where at least one sig- nificant issue is resolved. Once the dam breaks, the chances are improved for more accommodations. However, particularly sticky issues may simply be deal breakers. And the agreement can stand or fall on how the parties treat one another and react when the going gets tough.

The principal goal of mediation is to reach a “good settlement,” one that can win widespread acceptance among the constituencies of the parties and can be lived with. For the purposes of the mediator, the public interest or the fairness of the outcome is of secondary importance.

1. Traits of an Effective Mediator

Effective mediators need to have both substantive and process knowledge (Mare schal 2005a, 2005b). Examples of substantive knowledge include labor relations skills and experience. Process knowledge refers to facilitation and problem- solving skills. Specific traits ascribed to effective mediators read like the Scout code: experienced, skilled, unbiased, open, creative, inventive, patient, and persevering. This person should also be intelligent, tenacious, humorous, persuasive, empathetic, and full of

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stamina. Mediators should have the “patience of Job,” “the guile of Machiavelli,” and “the wisdom of Solomon” (Simkin 1971: 53). They should evince optimism tempered with realism. They should seek to build trust by being genuine and straightforward.

The relationship between the parties is essential to the successful outcome of the mediation process. A collaborative orientation of parties in a dispute facilitates agreement (Mareschal 2005b). Therefore, to be effective, mediators need to engage in relationship-building efforts, accepting the need for emotionalism and venting by the parties but preventing it from shattering the process. Everyone knows that there are games going on at the table, under the table, in the room, and out of the room, and that potential troublemakers hover everywhere. The mediator must try to keep fully abreast of goings on by joining meetings in the halls, parking lot, or local bar. It is often at such “side meetings” that breakthroughs occur. The mediator also needs diplomatic skills in dealing with the media. For instance, there is the classic television shot of a mediator coming out of negotiations to meet the press. “What is going on?” the reporter asks. The response, “They are talking.” “How would you characterize the talks?” The mediator observes, “They are frank and candid.”

Although these qualities “are not the stuff of which professional curricula are made” (Kressel 1977: 270), formal training in labor relations, labor law, conflict resolution techniques, and facilitation are important for the novice mediator. A task force of the FMCS (1996) identified several competencies that mediators for the agency should achieve, including expertise in collective bargaining and other labor management processes, facilitation, and problem-solving skills; knowledge of tools to improve organizational effectiveness; and conflict resolution skills. There remains a certain lack of standards concerning who is qualified to practice media- tion (Bellman 1998; Mareschal 1998). Certificate programs abound, but some of them fall well short of being rigorous. Even if a set of universal standards were agreed to and taught, mediation would remain an art, not a science. Effective medi- ators are adaptive, flexible, and resilient, using their best judgment under the cir- cumstances and making things up when necessary. The road to settlement always has many twists and turns.

2. Advantages and Disadvantages of Mediation as a Technique for Resolving Impasses

Mediation’s utility as a dispute settlement technique is evidenced by its frequent application to public sector impasses. A major advantage of mediation over other impasse procedures is its flexibility. It is an inexpensive informal process that per- mits the parties and the neutral great latitude in devising a settlement, in large part because no written record of the proceedings is required. Thus, alternative settlement packages can be explored through the mediator without placing for- mal proposals on the table. The informal nature of mediation also helps break down communication barriers that may have developed as negotiations atrophied.

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Mediation can help “educate” inexperienced negotiators on the vicissitudes of the bargaining process and on the specific viewpoints and positions of the opposing parties. Another advantage is that agreements attained through mediation are reached by the parties voluntarily. Because they are not imposed, terms of the set- tlement are more likely to be fully accepted by the parties and their constituencies. Finally, mediation moderates labor conflicts by opening points of disagreement to different meanings, interpretations, and possibilities (Kolb and Rubin 1989: 4).

Despite the considerable advantages of mediation as a dispute resolution pro- cedure, there are unfavorable aspects as well. Two major criticisms may be offered. First and foremost, there is no element of finality to mediation. The mediator can- not force a settlement. There is no final report, only a voluntary settlement or a declaration of failure and prompt consideration of other impasse resolution alterna- tives. Second, good mediators are hard to come by. The special talents and person- ality traits exhibited by successful mediators are problematic to teach and difficult to emulate.

On balance, mediation is an effective means of resolving an impasse early and relatively amicably. When it succeeds, the impasse is broken, an agreement that both parties can live with is attained, and the future relationship between labor and management is protected.

Mediation is more successful under some conditions than others. The tech- nique appears to be most effective when the mediator is experienced, highly skilled, and tenacious and the parties are less sophisticated and experienced (Kochan and Jick 1978; Karim and Pegnetter 1983). Here, the strategies and personal qualities of the directive neutral have maximum impact (Downie 1992). Experience and tenacity are particularly important traits of the effective mediator. As one com- mented, “Mediation doesn’t start until both of the parties have told the mediator there’s no more room for compromise” (Briggs and Koys 1989: 519). In situations in which the two parties have lengthy experience with collective bargaining, the mediator’s role may be a less directive one, with attention focused on possible terms of agreement.

Mediation is most effective when (1) overcommitment to a position stifles nego- tiations, (2) the dispute is of limited difficulty or intensity, and open communica- tions and information sharing prevail, and (3) the parties are motivated to attain a settlement. The probability of reaching a settlement increases when mediation is followed by compulsory binding arbitration rather than by fact-finding (Kochan 1979: 179; Payne et al. 2000).

Mediation appears to be least fruitful (1) in large jurisdictions, (2) when the parties have a poor relationship, have gone to impasse frequently, and engage in disruptive communication behaviors and dirty tricks, (3) where the basic dispute involves ability of the employer to pay, and (4) where the parties face strong political and/or constituent pressures that encourage them to use the full range of impasse resolution procedures (Kochan et al. 1979; Payne et al. 2000; Mareschal 2005b).

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B. Fact-Finding As is the case with mediation, fact-finding normally may be initiated by either party, although in some states it can be invoked by the PERB. An individual fact finder or a panel (usually composed of three members) is appointed from the same sources used for mediators. Often, the same names appear because many mediators also act as fact finders. In legal contexts providing for both mediation and fact- finding, the latter is usually used only after mediation fails to resolve the dispute. In comparison to mediation, fact-finding is a formal proceeding consisting of a quasi-judicial hearing by the neutral of both parties’ positions and evidence, a writ- ten record of the facts and events, and, in most cases, written recommendations for settlement. The recommendations are not binding. Nevertheless, a new Indiana law from 2011 that outlines the alternative dispute resolution process for resolving col- lective bargaining impasses between teachers’ unions and school employers departs from the traditional nonbinding outcome for fact-finding. Unlike the old law that provided for advisory fact-finding decisions, under the new law, the purpose of fact- finding is to provide a final solution to the dispute (Carrell and Bales 2013).

It has been widely noted in the literature of public sector impasse procedures that “fact-finding” is a misnomer. As Simkin (1979: 337) pointed out, “The words fact-finding conjure up notions of preciseness, of objectivity, of virtue. They even have a godlike quality. Who can disagree with facts?” Yet, as McKelvey (1969: 528– 529) explained, “Although the ‘name of the game’ is fact-finding, … the sport itself has little to do with fact-finding in the literal sense of determining objective facts through the judicial processes of trial and proof to provide evidentiary answers….” In other words, rarely is there a single set of “facts” underlying any collective bar- gaining impasse. On the contrary, there are at least two different “objective” inter- pretations of the circumstances surrounding all components of any dispute. The principal task of the fact finder is to determine which set or mix of “facts” is most convincing in any given labor relations context.

It should come as no surprise to the student of public administration and poli- tics that two sets of actors portray varying interpretations of reality. If the facts of a situation were apparent to all, the neutral’s job would be much simpler. However, public sector employment issues tend to be complex, and “the plethora of facts produced may well overwhelm the fact finders” (Spero and Capozzola 1973: 283). Moreover, each party naturally seeks to put a favorable spin on the facts.

1. The Fact-Finding Process

The formal role of the fact finder is to enter an interest dispute, hear both sides of the story, collect relevant data, and issue recommendations for a settlement. The process is more formal than mediation because it takes place in a quasi-judicial, adversarial atmosphere. This does not mean that the two processes are clearly sepa- rable. Mediators, too, deal with “facts,” and fact finders frequently mediate between

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the two parties, particularly when fact-finding is the last impasse procedure offered before a strike or unilateral imposition of terms by management.

The mediative role of fact-finding is evident in a study of the first 7 years of fact- finding in Michigan, where it was found that 20% of the disputes going to fact- finding were settled before a final report and recommendations were issued, even though fact finders in that state are not given formal authority to mediate disputes (Stieber and Wolkinson 1977). The impasse procedure in New Jersey involves a combination of mediation and fact-finding. First, a mediator works with the parties to reach voluntary agreement. If this stage of impasse resolution fails, the Public Employment Relations Commission (PERC) Director of Conciliation may invoke fact-finding. The fact finder collects information and recommends a settlement. If the parties refuse to accept the fact finder’s recommendation, the Director of Conciliation may take whatever steps are necessary to negotiate a voluntary settle- ment, including appointing a super conciliator. At this point, if the parties fail to reach agreement, the employer can impose their “last best offer” (LBO). However, public school employees are exempted from the LBO provision.

Usually, for fact-finding to be successful, recommendations must be acceptable to both parties. Thus, the fact finder often probes the range of the parties’ expecta- tions through off-the-record meetings and reveals each side’s expectations to the other. Sometimes, voluntary agreement results. This practical reality is formally recognized in Ohio, where the collective bargaining law officially encourages fact- finding panels to mediate at any time.

The hearings generally take 1 or 2 days. Transcripts of the proceedings are required in some jurisdictions. After a period of time in which the fact finders examine and analyze the data and testimony presented to them, they normally issue recommendations on all unresolved issues. At this point, the formal duties of the fact finder are complete. Informally, the fact finder may act as a mediator by trying to convince the parties to accept the recommendations and settle.

The role of the fact finder varies with the circumstances of the individual dispute. In some cases, fact-finding is undertaken in a climate of cooperation, as when the par- ties unite to promote a common goal, such as legislative enactment of a statute that would benefit them both. Here, the legislative body may be the adversary as the parties look to the fact finder as an important ally in pressing their case. In other situations, fact-finding may be used by one or both parties to give credibility to an agreement they would have reached anyway, so that the chances of rank-and-file and/or legislative ratification are heightened. Also, fact-finding, if followed by public recommendations, can bring public opinion into play to encourage compromise by an obstreperous party.

In arriving at their conclusions, fact finders often concentrate their investiga- tions on data allowing a comparison of the local circumstances with other, simi- lar jurisdictions. Fact finders are concerned that their recommendations are fair. Thus, wages, benefits, and working conditions in other agencies or jurisdictions are important considerations. Hence, the fact finder can focus on variables such as ability to pay, cost of living, and the nature of the local labor market. In some states,

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like Florida, fact-finding criteria are delineated in statute. Generally, fact finders strongly desire to convince the parties to accept their recommendations as the best option available for settling the dispute.

The issue of recommendations—whether they should be offered and, if so, to what audience—has been the subject of some controversy. Fact-finding without recommendations differs little from mediation, and, as one expert has argued (Simkin 1979: 340), it “is likely to be an exercise in futility.” With respect to fact-finding with recommendations, however, the question arises as to whom they should be issued: to the parties alone or to the parties and the general public? The recommendations, of course, may be rejected by one or both parties. The potential advantage of public notice of recommendations, as indicated earlier in this section, is that it can mobilize public pressure for a settlement, especially in the case of an extreme position by one of the parties. Cynics, however, point out the very low level of public interest in most labor disputes and, indeed, politics in general and note the overall lack of citizen under- standing of the collective bargaining process. If the local media are also uninformed, indifferent, or otherwise incapable of explaining the complexities of the labor dispute to their reading and viewing audiences, then making public recommendations may seem to be an empty gesture. Furthermore, once recommendations are disclosed, the negotiation process may shut down and the parties become more polarized than ever.

2. Advantages and Disadvantages of Fact-Finding

Several benefits are claimed for fact-finding as an impasse resolution procedure. It provides an opportunity for the parties to cool off and analyze their positions after temper and patience wear thin. It is a time-consuming process that permits them to collect both their thoughts and data supporting their respective interests. The fact finder’s report can lower the expectations of one or both parties (Karper 1994), thereby decreasing the level of uncertainty and the outward ranges for contract settle- ment (Dickinson and Hunnicutt 2005). It can also serve as a new basis for continued negotiations toward a voluntary settlement, or it can represent a helpful scapegoat to justify a painful settlement (Marmo 1995). Furthermore, fact-finding does permit the public to enter the bargaining arena by revealing unresolved issues and how the parties stand on them (Elkouri and Elkouri 2003). In the case of extreme posturing, the taxpaying public has an opportunity to chastise the more immoderate party.

The major criticism of fact-finding is that, like mediation, it lacks finality. And even if the parties agree on the basic facts, their interpretations of them may vary wildly. Fact-finding is also faulted in many settings for a relatively low rate of suc- cess in settling impasses and for drawing out impasses unnecessarily instead of proceeding directly to arbitration or a strike.

Other problems with fact-finding have been recognized, some of them of sufficient magnitude to support arguments for elimination of the technique, especially where uti- lized as an intermediate step between mediation and arbitration. The mere availability of fact-finding may lead to excessive use by some parties and thus “chill” the bargaining

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process. Public opinion appears to exert little influence on the parties’ positions. It is fur- ther argued that the parties tend to revert to more extreme positions after fact- finding fails and that fact-finding seldom reduces the number of issues going to arbitration (even though arbitration awards may deviate little from recommendations of the fact finder; in New York, Kochan and his colleagues (1979) determined that they were identical in 70% of the cases examined). However, the single most salient criticism of the effective- ness of this method of resolving interest disputes is its lack of finality; either the union or management may reject the fact finder’s recommendations. The 2011 Indiana law addresses the lack of finality concern by establishing that the purpose of fact-finding is to provide a final solution to a dispute when the parties fail to resolve the dispute by themselves and mediation is unsuccessful (Carrell and Bales 2013). Although the new law uses the term “fact-finding,” the process that it describes is similar to arbitration.

It is difficult to render an accurate assessment of fact-finding’s effectiveness. Some fact finders act primarily as mediators; others more like a judge and jury. Fact-finding procedures vary from state to state. Generally, only the most difficult disputes—those that cannot be settled with mediation—go to fact-finding, which of course depresses the success rate.

Although several collective bargaining states have dropped fact-finding, a majority continue to use it as a technique for resolving labor impasses. The pro- cess appears to work rather well in Ohio. In 2006 and 2007, for example, the State Employee Relations Board appointed fact finders in 824 disputes. The par- ties voluntarily settled before the hearing in about 60% of the cases, and others were settled before the fact finder’s report was issued. The parties accepted the fact finder’s recommendations in almost half of the disputes (Ohio’s State Employment Relations Board 2007).

Florida’s experience with fact-finding under a special magistrate is more ambivalent. A survey of fact-finding participants in 28 cases found that only about 50% of labor and management respondents felt fact-finding was effective in creat- ing movement toward settlement, exposing the truth, or clarifying issues (Jennings et al. 1988). However, a substantial majority of participants said they would use the process again for a variety of face-saving and political benefits. Another study (Magnusen and Renovitch 1989) was also moderately supportive of the special magistrate procedure, observing that although very few findings are accepted in their entirety, many of the special magistrate’s specific recommendations do end up in the labor contract. Florida represents a unique case: if the special magistrate hearing fails to produce an agreement, the dispute is settled directly by the appro- priate legislative body (e.g., city council, state legislature, or school board).

C. Arbitration Arbitration, in any of its various permutations, is the most controversial impasse resolution procedure short of the strike. Like fact-finding, arbitration involves a formal quasi-judicial setting in which each party presents evidence supporting its

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position to a single neutral or a multimember board. The major difference is that the arbitrator’s report, in most cases, is final and binding on the parties. Thus, arbitration is intended to serve as a direct alternative to the strike and to unilateral employer decision making. Ideally, it results in a fair settlement for the parties while protecting the public interest. (In this chapter, our focus is on interest arbitration, which is concerned with formulating a new contract. In Chapter 10, grievance arbitration is discussed; its purpose is to determine the rights and claims of the respective parties under an existing contract.)

Although the practice of arbitration has ancient historical roots, arbitration in public employment is of fairly recent vintage, having been first established in federal employment with binding arbitration provisions for postal workers under the Postal Reorganization Act of 1970. State governments began enacting public sector arbitration provisions in 1965, starting with Wyoming and Maine.

The arbitrator’s decision under some impasse situations is advisory; the parties do not have to accept it as final. For example, in the event of an impasse in col- lective bargaining negations between a municipal school district, a regional edu- cational attendance area, or a state boarding school and its employees, the law in Alaska requires the parties to submit their dispute to advisory arbitration before engaging in a strike. This strategy, however, is rare in the public sector and gener- ally out of favor because it is a distinction without a difference from fact-finding with recommendations. In the great majority of jurisdictions, arbitration (usually following mediation, fact-finding, or both) is binding and final.

Arbitration may be voluntary or compulsory. In the former, the parties jointly agree to settle an impasse through arbitration (often before an impasse even occurs). In the latter, binding arbitration is mandated by statute or by an administrative agency, usually after mediation and/or fact-finding have been exhausted. Generally speaking, both management and labor prefer voluntary arbitration, although police and firefighter organizations have been supportive of the compulsory form.

Finally, arbitration may be conventional or final offer. Conventional arbitration is the traditional approach in which the decision-making authority of the neutral is unfettered. He or she may accept one party’s last offer or, as is often the case, “split the difference” between the final positions. Final offer requires the arbitrator to select the LBO of one of the parties as the final terms for settlement; no compro- mising is permitted. Final offer arbitration may be by package, in which the neutral must select the LBO of one party or the other in its entirety, or by issue, where the items under impasse are decided on separately by the arbitrator.

Several states provide for compulsory tripartite arbitration, with each party designating a neutral and the third neutral chosen by the parties’ designees or by an administrative agency. Most states, however, make single or tripartite arbitration optional to the parties. In many cases, they select a single arbitrator because it is less expensive and time consuming.

The first arbitration statutes were enacted for public safety personnel on the grounds that strikes by police and firefighters could not be tolerated, so some

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alternative to the strike should be offered. Many states continue to restrict arbitration to public safety services; others have extended the technique to nonprotective service personnel in state and local governments.

1. The Arbitration Process

Arbitration involves the following steps: selection of one or more arbitrators, formal hearings with the presentation of evidence (but arbitrators are not bound by the formal rules of evidence that prevail in the courtroom), and a final written decision by the arbitrator.

a. Arbitrator Selection

When a single arbitrator is to rule in a given case, he may be selected by the par- ties or appointed by a state agency, state court, or independent arbitration agency. (Note that the masculine gender is used here. Arbitration remains a white male– dominated field, although women and minorities are gradually making progress in gaining spots on the rosters.) Careful screening of candidates is necessary to ensure that the selected neutral (1) will evidence no bias toward either party, (2) is cog- nizant of procedural due process requirements, (3) is experienced, (4) is timely in making decisions, (5) will write clear, unambiguous awards, and (6) will be knowl- edgeable of any special circumstances surrounding the impasse or its governmental context (Ver Ploeg 1988).

If a tripartite arbitration structure is used, a different situation prevails. Arbitrators selected by the individual parties to take two of the three panel seats typically act as unabashed advocates for their appointing party (Kochan et al. 1979). Therefore, bargaining carries over into tripartite arbitration, with the inde- pendent neutral attempting to develop an award acceptable to the other two arbi- trators. Evidence of this process is presented by Kochan et al. (1979), who found that about 60% of the arbitration awards they examined in New York were unani- mous rulings, indicating a compromise settlement was fashioned by the indepen- dent neutral.

Labor and management negotiators usually do their homework before arbi- trator selection takes place. Names and arbitration history are checked out with colleagues in other jurisdictions. Prior decisions may be read and tallies done on employer–union win/loss records under various arbitrators. Union and industry research departments may be asked for information, Internet searches are run, and law firms may be retained to assess credentials. Some private firms “keep score” and sell their opinions on prospective arbitrators to interested parties. The “overriding goal is (to) select an arbitrator who will maximize [the party’s] chance of winning” (Nelson 1986: 703–704).

Interestingly, the disputants do not normally consider fact finders to be acceptable as arbitrators, although arbitrators are usually accepted as fact finders

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(Dilts 1984; Elsea, Dilts, and Haber 1990). Perhaps this is attributable to the superior training and experience of most arbitrators. Also, some “rights” or grievance arbitrators refuse to work as interest arbitrators. The reasons vary: the pressure cooker and fishbowl environment of interest arbitration; the greater risk to an arbitrator’s professional reputation (and monetary income) from a highly visible, interest impasse decision; or a dislike of final offer arbitration (Helburn and Rodgers 1985; Vest, O’Brien, and Vest 1990).

b. Decision-Making Criteria

Most arbitration statutes specify certain criteria that the arbitrators must consider in rendering their decisions. The criteria in some states are rather broad, such as requiring that “equity” and the “public interest” be considered. Other states are more specific. In Massachusetts, for example, the panel must consider ability to pay; hazards of employment; physical, educational, and mental qualifications; job training and skills involved; comparable wages, hours, and working conditions; cost of living; long- and short-term debt; average property tax burden; and other specific factors. Similarly, New Jersey statute specifies that arbitrators take into account wages, salaries, hours, conditions of employment, history of negotiations, and pattern of salary and benefit changes.

The use of comparative data such as salary and benefit information from similar categories of workers in neighboring jurisdictions or in the private sector plays a very important role in some arbitrators’ decision making (Turpin 1998). Inflation and cost-of-living factors are also salient, along with the employer’s ability to pay (Bazerman 1985; Bazerman and Farber 1985; Feuille and Schwochau 1988). In New Jersey, arbitrators are instructed to consider comparability factors such as geography, characteristics of the population, and tax revenues and expenditures.

Typically, however, arbitrators focus narrowly on the immediate bargaining context and “anchor” their judgments to the terms of the previous contract to maintain stability in the relationships between the parties. Often, this means split- ting the difference between final positions, in the case of conventional arbitration, or selecting the most “moderate” last offer when final offer arbitration is used. One specific result is that existing salary structures and relationships are maintained with incremental, percentage-based adjustments (Dell’Omo 1989), yet another illustration of the power of incremental decision making. The predictability of arbi- tration outcomes led Bloom (1988: 123) to suggest that this process “could prob- ably be accomplished more inexpensively by averaging the parties’ final offers and adding on some noise using a computer’s random number generator.”

But arbitrators vary greatly in the weight they place on various decision cri- teria (Dell’Omo 1990). Ability to pay offers a good case in point. It is up to the employer to marshal the strongest possible arguments for inability to pay what the union is asking, using revenue and expenditure projections, accounting data, debt levels, and other relevant information, such as a credible listing of potential service

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and program cutbacks or cancellations. The employer’s case may be persuasive to some arbitrators. Others, however, translate inability to pay into unwillingness to pay. If the city or state must hike taxes or fees to comply with the arbitrator’s com- pensation decision, then so be it (Dell’Omo 1989: 11). In all fairness, arbitrator vacillation and uncertainty in applying the ability-to-pay principle is encouraged by ambiguity and the lack of statutory specificity as to which factors should be con- sidered and how they should be weighted. For example, does inability to pay mean that statutory or constitutional spending limitations would have to be breached? That no additional funds could possibly be transferred into salaries? That services could not be maintained at current levels without hiking taxes or fees to meet union demands?

Generally speaking, arbitrators, like fact finders, must be concerned with the fairness of their award and its acceptability to each party. The importance of accept- ability is illustrated by the continuation of negotiations and, in some cases, media- tion during the arbitration process (see Section IV.E.1). For example, Gerhart and Drotning (1980) showed that in Michigan, the majority of arbitration cases are settled before the arbitrator issues an award. The neutrals frequently “caucus with the parties privately and give them clues, sometimes subtle and sometimes not so subtle, concerning what the arbitrators are likely to consider the ‘more reasonable’ position.” The arbitrator’s concern for fairness means that in states where arbitra- tion is preceded by fact-finding, the process often amounts to a “show cause” hear- ing as to why the fact finder’s recommendations should not be imposed by the arbitrator (Holden 1976).

What happens when a final binding award is rendered and one or both par- ties refuse to accept it? Several states provide appellate rights through the courts to ensure due process and a reasonable award. As a general principle, arbitration appeals are strongly discouraged so that they do not become a normal part of impasse resolution; they can be costly, time consuming, and anathema to free col- lective bargaining (Kochan et al. 1979: 133). Yet, an appellate path must be pro- vided to correct instances of injustice or illegality.

Typically, arbitration decisions may be appealed if obtained by fraud, legal error, or collusion. In Michigan, for example, orders of the arbitration panel are review- able by the court for reasons that the arbitration panel was without or exceeded its jurisdiction; the order was unsupported by competent, material, and substantial evidence; or the order was procured by fraud, collusion, or other unlawful means. In Ohio, all final offer settlement awards are subject to review by the court in any of the following cases: the award was procured by corruption, fraud, or undue means; arbitrators demonstrated evident partiality or corruption; arbitrators exceeded their powers; and arbitrators were guilty of misconduct. Other states provide for appeals through an administrative body or the legislature. For example, in New Jersey, the parties may file an appeal to the arbitrators’ decision with PERC.

An unusual statute that served as a compelling example of the need for finality in arbitration was the 1971 Oklahoma Firefighters’ and Policemen’s Arbitration

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Act, which provided that rulings by an arbitration panel were binding on the union (if the municipality also accepted the decision), but that the city was not bound to abide by the arbitrators’ award. When, in 1975, the Oklahoma City Police Department and Oklahoma City went to arbitration over the size of a wage increase, the city refused to accept the decision of the panel, which had supported the union’s position. The police instituted a work slowdown, to no effect, and then marched into the city manager’s office en masse to turn in their badges. The strike ended 3 days later when the city made a compromise wage offer (Greer 1978). The law was amended in 2005 to require final offer arbitration. But in another awkward Oklahoma two-step, if a city’s offer is not selected by the arbitration board, the city may submit both final offers to the voters in a special election.

Clearly, for arbitration to serve successfully as an alternative to the strike, the arbitrators’ decisions must be final and binding on both parties and each must fully accept the process as a legitimate means for resolving interest disputes. For arbitra- tion to function in a meaningful fashion, only the legislative body or, in extraor- dinary circumstances, the courts or the voters should be able to alter arbitrators’ awards. Although arbitration issues are frequently brought into the judicial process, the courts have almost universally adopted the assumption of arbitrability prevalent in the private sector, which recognizes the superiority of the arbitrator’s expertise over that of the judge (Jascourt 1979: 159–165).

2. Advantages and Disadvantages of Arbitration

The major advantage of arbitration as compared to mediation and fact-finding is that it supplies a balanced measure of finality to impasses. In mediation and fact- finding, the employer enjoys more discretion and bargaining power than the union, as long as the strike is illegal or infeasible. With arbitration, the interests of the par- ties are balanced while an end to the impasse is finalized, avoiding a strike and its accompanying service disruptions. Research indicates that arbitration has, indeed, been more successful in preventing strikes than statutory strike prohibitions alone (Ichniowski 1982; Gunderson, Hebdon, and Hyatt 1996; Lipsky and Katz 2006), although it has not completely eliminated them. Of course, as long as there are public employers and workers, the strike threat can never be totally exterminated no matter what strategy is used. Nonetheless, the tendency of arbitration to settle most public sector impasses short of the strike contributes to rational budget mak- ing, the continuous provision of public services, and, in a broader sense, social and political stability.

But to say that the use of arbitration in public sector labor disputes is controver- sial is to understate the case greatly. The major complaints against arbitration are that (1) it constitutes an illegal delegation of authority to persons not held respon- sible through democratic processes, (2) it tends to distort settlements and redis- tribute resources in favor of the unions, and (3) it destroys or chills free collective bargaining. Each criticism is discussed in Sections IV.2.a–d.

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a. Illegal Delegation of Authority

It has been asserted that arbitration constitutes an illegal delegation of authority to persons who, although not responsive or accountable to the electorate, are charged with making decisions on the expenditure of public monies and other important issues related to the provision of public services. Thus, it is claimed that arbitration is inimical to the operation of representative government and democracy because the accountability of elected executive and legislative officials is sacrificed to an arbitra- tion decision on public issues. Clearly, there is no direct link between an arbitrator and the electorate. He or she is at least four levels removed from the electorate if appointed by an administrative agency, such as a state PERB. When an arbitra- tor is provided by a nongovernmental entity, such as the American Arbitration Association, there is scarcely even an indirect link to the citizenry. Such fractures in governmental accountability through the delegation of decision-making authority to private sector entities have been the subject of extensive debate in the literature of political science for many years (see Lowi 1979).

Most recently, Malin (2013), after examining the frequency by which pub- lic sector unions in Illinois and Ohio engage in strikes and arbitration under right-to-strike and interest arbitration regimes, respectively, concluded that arbitra- tion allows union leaders and public officials to avoid accountability for difficult decisions that could be otherwise reached through collective bargaining. The data shows that in Illinois and Ohio, the number of strikes among unions operating under a right-to-strike regime considerably declined during the recent economic downturn. In contrast, in Illinois, upon exhaustion of stimulus funds, resort to arbitration increased among unions operating under an interest arbitration regime. It appears that under the right-to-strike regime, parties attempt to avoid strikes, which are unlikely to garner popular support during economic recessions, and take responsibility for difficult decisions by engaging in collective bargaining. Under the interest arbitration regime, parties seem to transfer the responsibility for dif- ficult decisions to arbitrators. These findings led Malin (2013) to conclude that during hard economic times, parties bargaining under a right-to-strike regime are more accountable to constituents compared to parties bargaining under an interest arbitration regime.

Nevertheless, in the specific case of public sector arbitration and the delega- tion of authority, the state courts are the final arbiters on questions of law and arbitrability. Early judicial decisions were nearly unanimous in declaring arbitration illegal. Arbitration was rejected as early as 1873 by the Illinois Supreme Court and thereafter by attorneys general and courts in Maryland, Ohio, Indiana, Florida, and Minnesota (Spero and Capozzola 1973: 289–290). Along with the allegation of ille- gal delegation of legislative authority, the principal grounds for court challenge have been that the arbitration statute does not sufficiently limit an arbitrator’s discretion, that it unconstitutionally delegates taxation authority, and that the selection of arbi- trators violates the principle of “one person, one vote” (Grodin 1979: 242).

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Arbitration has been ruled unconstitutional or illegal by courts in five states: South Dakota, Colorado, Utah, Nebraska, and Maryland. The constitutional issue of illegal delegation of authority was the basis for rejection of arbitration in Colorado and Utah. In South Dakota and Maryland, arbitration was prohibited because of the presence of “ripper clauses” in the state constitution that forbid legis- lative delegation of the municipal fiscal and service provision functions to a private entity (Grodin 1979: 242–243). Depending on the grounds used by courts to find public sector interest arbitration provisions unconstitutional, a state legislature can amend the state statutes to address the concerns of the court. For example, if the court finds that interest arbitration provisions constitute an unlawful delegation of power because the statute failed to include standards to guide arbitrators, the legis- lature may choose to amend the statute to include such standards.

Rulings that find interest arbitration unconstitutional or illegal, however, are in the minority; at least 16 state courts have upheld statutes providing for compul- sory arbitration. One of the most frequently cited rulings is the Michigan case of Dearborn Firefighters Local 412 v. City of Dearborn (1975), in which a divided state supreme court held that a compulsory arbitration statute did not divest home-rule cities of constitutionally granted powers nor, despite the presence of a ripper clause, did it cause an illegal delegation of power to private persons or a surrender of the power of the city to impose taxes. As a general rule, the state courts have upheld compulsory arbitration when they have “found that there is a public interest in preventing strikes, that illegal delegation does not occur when there are statutory provisions of explicit standards and guidelines for arbitrators and procedural safe- guards in the form of court review, and that the power to tax has not been trans- ferred in that an arbitration act is regulatory, and does not in itself impose a burden or charge” (Schneider 1988: 206).

Among the actions that legislative bodies can take to make arbitration more amenable in a democracy are to specify in the arbitration statute restrictions on the scope of the arbitrator’s authority, limitations on the statute’s coverage, and strict decision-making criteria (Feuille 1979: 72). Interest arbitration is compulsory in disputes involving police and firefighters in New Jersey. Yet, the state caps the amount by which arbitrators may increase base salary items at 2% per year. In addi- tion, arbitrators can be compelled to set forth the basis of their findings publicly. And, in the final analysis, the legislature retains the power to override arbitration decisions or to terminate arbitration or any other delegation of legislative power (Carofano v. City of Bridgeport [1985]). Still, the legal issues surrounding arbitration can be murky. The Ohio Supreme Court struck down the binding arbitration pro- vision in 1988, only to reconsider and uphold it a year later. Although most courts have upheld statutes providing for compulsory arbitration and states have devel- oped legal innovations to restrict the scope of the arbitrator’s authority, the transfer of power to set labor costs in the public sector to a third-party arbitrator remains controversial as a matter of political theory and a decision difficult to explain to the general public (Bellman 2013).

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b. Arbitration Favors Unions

Ideally, arbitrators should balance the interests of both parties in arriving at the terms of a settlement. Although this certainly is what the arbitrator intends, he or she must contend with competing contradictory values in reaching a decision, particularly the tradeoffs involved with assuring comparable wages, benefits, and working conditions and, on the other hand, protecting the taxpayer from excessive government personnel costs. If such a balance can be attained, then, over time, neither party should benefit from arbitration more than the other.

However, public sector managers widely believe that the interest arbitration deck is stacked against them and in favor of the unions. During state legislative debates in the 1970s and 1980s on proposed arbitration laws, the fervor of union support for the process as a substitute for strikes was exceeded only by that of public managers’ opposition. Management resentment and dissatisfaction with arbitration and, in truth, all other third-party procedures except, perhaps, mediation linger. When an unfavorable arbitration award is rendered, employers complain loudly that the decision gives short shrift to the impacts of the decision on taxpayers and the financial health of the jurisdiction.

Has compulsory interest arbitration been a windfall for unions, as management and many public officials believe? The empirical evidence indicates that it has not. Although some studies have found that wage rates are slightly higher in jurisdic- tions permitting arbitration, the effects are not statistically significant. However, it does appear that the “availability” of arbitration has a significant positive impact on salaries and benefits. This relationship has been associated with police, firefighter, and teacher arbitration (Feuille and Delaney 1986; Zigarelli 1996). Why?

For one thing, the unions have an equal opportunity to submit supporting data to a true neutral whom they have helped select. And from a practical standpoint, the arbitrator must be very careful to render a “fair” compensation decision if he or she wants to work in the same capacity again in another jurisdiction. Word gets around quickly when an arbitration settlement is perceived to be inequitable. Management is aware of these tendencies and consequently may be more likely to settle a contract on terms more favorable to the union than if arbitration were not the next step. The union, of course, will not hesitate to opt for arbitration when management takes a hard position viewed by the union to be against the interests of its membership. Hence, using arbitration is less important to gains in union pay and benefits than having the legal authority and potential to use it.

A related impact of arbitration is on the distribution of salaries. Generally, arbi- tration tends to exert a leveling effect by enhancing the economic status of bar- gaining units that have lagged in pay gains for their members (Feuille, Delaney, and Hendricks 1985a). The availability, and at least occasional use, of compulsory arbitration helps units at the low end of the pay scale catch up with similar units through arbitrators’ emphasis on the comparability criterion (Bazerman 1985; Feuille and Schwochau 1988).

Resolving Impasses: Alternatives to the Strike ◾ 289

It must be noted that arbitration procedures established through state legislation can be amended to tilt the scales in the direction of management. For example, Pennsylvania has restricted terms of settlements and interest arbitration decisions by imposing fiscal considerations, subject to legislative review. Connecticut’s arbi- tration laws for state agencies and municipalities assumed a high profile during the early 1990s, as employers lodged complaints that arbitration rulings were financially crippling them. The state senate responded by rejecting more than 12 contracts that had been decided by arbitrators. The legislature also amended the municipal arbi- tration law to permit local governments to appeal arbitrator decisions to a second arbitration panel, which may revoke the decision of the first panel (Keating 1994).

c. Arbitration Chills Collective Bargaining

The argument that arbitration destroys free collective bargaining is grounded in certain related assumptions. First, it is claimed that the presence of a credible strike threat forces the parties into a compromise. Where arbitration substitutes for the strike, there is less incentive for timely settlement; the bargaining process is chilled. Second, it is said that availability of arbitration leads to its use as a crutch, par- ticularly by the weaker party in a bargaining relationship. Since arbitrators try to accommodate both sides in a dispute, weak labor organizations may achieve a bet- ter outcome through arbitration than through collective bargaining (Craver 2013). Even when arbitrators are required to choose from the final offers of the parties, the worst outcome for weak labor organizations is having to accept the final offer of the employer. The worst outcome is likely to be similar to the collective bargaining outcome. Arbitration, therefore, provides weak parties in a bargaining relationship with an opportunity to achieve a better outcome than they could hope to obtain through collective bargaining. Hence, arbitration may exercise a “narcotic effect” by making the parties addicted to its use rather than settling disputes.

The chilling-effect argument goes as follows: if one party thinks that it will get a better deal from the arbitrator than from a negotiated agreement, that party thus has an incentive to go to arbitration. Evidence of the chilling effect is found in sev- eral studies. In the early Pennsylvania bargaining experience, some 30% of police and firefighter disputes went to arbitration, whereas in Wisconsin, the incidence of usage was about 15% (Rehmus 1975). Other indications of the chilling effect are found in Minnesota from 1973 to 1980. In negotiations involving essential services, which are denied the right to strike, 30% of those going to mediation ended in arbitration versus only 9% for nonessential services (which are permitted to strike) (Champlin and Bognanno 1985).

The narcotic effect has also been verified by researchers (Bolton and Katok 1998). For example, Kochan et al. (1979) and Lipsky and Drotning (1977) reported evidence of a narcotic effect in New York. Further evidence of the parties becoming habituated to third-party impasse procedures was found for municipal workers in Pennsylvania (Loewenberg and Klinetop 1992) and Ohio (Graham and Perry 1993).

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Apparently, the “new toy” of arbitration is tried out by the parties to see what tran- spires and, as sometimes happens in the case of hard drugs, the users eventually become addicted.

Stronger indications of the narcotic effect were reported by Kochan and Baderschneider (1978, 1981) for police and firefighters in New York State between 1968 and 1976. During this period, 85% of the firefighter bargaining units and more than 90% of the police units went to impasse at least once, with the total percentage of units going to impasse increasing steadily from 41% in the early part of the period to 65% by the latter part. Moreover, 80% of those units reaching impasse in the first and second rounds of contract negotiations during this period also went to impasse in the third (Kochan and Baderschneider 1981: 438).

However, different methods of analysis and quantitative techniques have yielded disparate results, indicating that positive narcotic effects characterize the early expe- rience with impasse procedures, followed by stabilization and even negative effects (“rejection”) as the parties become dissatisfied with third-party intervention (Butler and Ehrenberg 1981; Chelius and Extejt 1985; Lewin 1985). In a recent study on the effects of mandatory interest arbitration on police and firefighters in New York, Kochan et al. (2010) found little support for the earlier reports of a narcotic effect exercised by arbitration on collective bargaining. In comparing the experience with interest arbitration by police and firefighters in New York over time, they observed that strikes have been avoided in the 30 years of mandatory interest arbitration and the initial reliance on arbitration considerably declined.

Even if, as seems likely, arbitration exerts a modest chilling effect on negotiations, it stretches the point to argue that this constitutes the demise of free collective bar- gaining. A large majority of settlements continue to be negotiated without arbitra- tion. Even when arbitration is invoked, it frequently serves as a forum for continuing negotiations. And, as is discussed in Section IV.D, final offer arbitration reduces the chilling and narcotic effects, helping collective bargaining remain a viable process.

d. Other Criticisms

Interest arbitration has several other drawbacks. First, interest arbitration is conser- vative in nature (Kochan et al. 2010, Malin 2013). Arbitrators are generally reluc- tant to take innovative approaches in their practice and usually impose decisions that accommodate both parties in the dispute. Therefore, arbitration may help the parties overcome an impasse in the collective bargaining process but result in an outcome that may not be superior to what parties could achieve by continuing the negotiations.

Second, interest arbitration tends to suppress and redirect conflict between parties rather than resolve conflict (Malin 2013: 156). The arbitrator may in fact impose a solution to the conflict that could leave both parties unsatisfied (Carrell and Bales 2013: 15). Hence, arbitration decisions may aggravate conflict and con- tribute toward an unfavorable environment for future negotiations.

Resolving Impasses: Alternatives to the Strike ◾ 291

Third, Bellman (2013: 41) argues that the enactment of mandatory arbitration provisions has the effect of redistributing power within the union structure, provid- ing statewide labor organization with an elevated status. Several factors contribute to the redistribution of power among unions. Large labor organizations have greater capacity to influence the content of legal provisions on arbitration. Moreover, under arbitration regimes, to achieve improvements in the workplace, unions have to refo- cus their efforts from organizing and fostering solidarity among employees to data management and analysis functions. Since unions have to rely on experts for data management and presentation skills, the larger professionalized labor organizations hold an advantage over small organizations. The reliance on experts, nevertheless, conflicts “with orthodox concepts of strength based on local concerted efforts and shared risk taking that have characterized American unionism” (Bellman 2013: 41).

D. Final Offer Arbitration Final offer arbitration, like conventional arbitration, does not escape the criticism of delegating authority to private individuals who are not responsible to the electorate. Nevertheless, final offer arbitration represents an improvement over conventional arbitration because it limits the options of the arbitrator to the final offers of the parties and removes from the hands of an unelected third party the ability to draft an entirely new public sector contract (Carrell and Bales 2013: 31). Final offer arbi- tration is also intended to allay concern that arbitration exerts chilling and narcotic effects on free collective bargaining. Presently in use in 18 states and several local governments in some form for one or more employee groups (but most often for police and firefighters), final offer arbitration was first tried by Eugene, Oregon, in 1971. Wisconsin and Michigan adopted it as an impasse strategy in 1972. The final offer may be decided by package, as in Nevada, or by issue, as in Ohio.

Under final offer arbitration by package, the arbitrator, after examining the proposed terms for each issue in dispute, is required to choose the offer that appears most reasonable overall. Since both parties may provide unreasonable offers, this approach to arbitration may result in the imposition of unreasonable terms on one party to a dispute. Issue-by-issue arbitration helps preclude a Hobson’s choice involving two unreasonable final offer packages by allowing the arbitrator to reject the unreasonable terms from each proposal and combine in a final contract, issue by issue, the most reasonable terms. Regardless of specific form, final offer requires the arbitrator or panel to choose the final proposal of either management or the union. (In some “tri-offer” jurisdictions, the fact finder’s conclusions may be sub- stituted for the parties’ last offers.) Major objectives of final offer are to increase the risks of not settling and to encourage a narrowing of the differences between the parties. Conventional arbitration has been faulted for chilling the bargaining rela- tionship by tacitly encouraging the parties to assume extreme positions in the hope that the neutral will “split the difference.” Under final offer, the most reasonable position normally prevails—no compromise by the arbitrator is permitted.

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States that provide package final offer operate under the assumption that the parties will have an incentive to settle out of a fear that even one issue position perceived to be extreme by the arbitrator will result in rejection of the entire last offer and “sudden death.” Under final offer arbitration, the fear of having an entire proposal rejected by the arbitrator may exacerbate the inhibition of innovation characteristic to conventional arbitration (Malin 2013: 156). Under final offer by issue, the arbitrator has greater flexibility in settling the impasse and the parties have more flexibility in designing their offers.

The two strategies do appear to have divergent effects. Although the evidence is somewhat mixed, there are indications that final offer by package creates a greater level of uncertainty than final offer by issue, thereby providing greater encourage- ment for the parties to settle (Farber 1980). Using an experimental design under laboratory conditions, Subbarao (1978) found that package selection maximizes pressure on the parties and “generates genuine bargaining,” but issue selection “sub- verts free negotiations” and “may have the same ‘narcotic effect’ as that of conven- tional arbitration.”

The evidence with regard to the narcotic effect is not entirely clear in compar- ing final offer arbitration of either the package or issue variety with conventional arbitration. After examining a number of empirical studies, Feuille (1975: 302) con- cluded that “Final-offer arbitration procedures appear to do a somewhat better job of producing negotiated agreements than do conventional arbitration procedures,” although in some instances this may be attributable to differences in bargaining climate and bargaining histories in the respective conventional and final offer states rather than to differences in impasse law and procedures (Kochan et al. 1979). Meaningful comparison is further confused because the actual practice of final offer arbitration often diverges from what is stipulated in legislation. For instance, during the final offer hearing, “final” offers may be changed between the hearing’s open- ing and closing by one or both parties; a whole series of “final” offers sometimes are proffered. Such practices are often encouraged by arbitrators who, in effect, are act- ing as mediators to promote voluntary settlement. In some jurisdictions, this process is institutionalized in the form of “med-arb,” which is discussed in Section IV.E.1.

In addition to using final offer by issue, some states, such as Michigan, dis- tinguish between economic and nonmonetary issues, with final offer on the for- mer and conventional arbitration on the latter. Vermont and Ohio permit final offers to be selected from either the last offers of the parties or the fact finder’s recommendations.

Several exotic arbitration processes have developed in the private sector that may find use in government. In “high–low arbitration” (aka “bracketed arbitra- tion”), the parties agree in advance to the high and low parameters for the award. If the arbitrator, who is kept in the dark on these parameters or brackets, makes an award in between the high and low figures, that award stands. If the award is lower than the low bracket, the agreed-upon low figure is paid, and vice versa for a high award.

Resolving Impasses: Alternatives to the Strike ◾ 293

“Night baseball arbitration” features an exchange of offers by the parties. The arbitrator, operating behind a veil of ignorance concerning the offers, enters the proceedings and makes an award and the parties must accept the last offer closest to the arbitrator’s decision. In a variant of the process, final offers are sealed and compared to a nonbinding arbitration decision. The arbitrator then selects the final offer that is closest to his opinion.

Another variation on the issue-by-issue arbitration proposed in the literature, if implemented in practice, would require arbitrators to subtract the entire differ- ence (or one-half or one-quarter of the difference) between the final issue-by-issue offers from the more reasonable offers (Craver 2013). The model aims to address the potential chilling effect of interest arbitration. Assuming that weak labor organiza- tions are likely to obtain excessive gains through arbitration, the model penalizes labor unions in the arbitration process. Theoretically, the model would negate the assumed advantage of labor organizations in arbitration and encourage parties to a dispute to make rational final offers (Craver 2013).

E. Other Impasse Resolution Procedures

1. Med-Arb

Med-arb combines the mediation and arbitration functions in a single third party. If mediation fails to produce a settlement, the same neutral has the authority to render a binding decision through arbitration. This technique, “mediation with a club,” is intended to provide a strong incentive for voluntary settlement by the par- ties during the mediation stage by keeping the demands of the parties reasonable. If extreme positions are taken by a party, the med-arbitrator is likely to rule against that party during arbitration. As an alternative to the strike or conventional arbitra- tion, med-arb has the added advantage of the arbitrator’s intimate familiarity with the issues gained during the mediation stage. The arbitration award, if it becomes necessary, is likely to be firmly grounded in the facts and circumstances surround- ing the dispute and thus acceptable to the parties.

Med-arb has not been widely adopted throughout the United States, which perhaps is explained by the fact that neutrals well trained and experienced in both mediation and arbitration are hard to find. However, the U.S. Postal Service utilized med-arb successfully in resolving an impasse involving 600,000 postal employees in 1978. The procedure was suggested by the FMCS and accepted by both parties in a dispute involving layoffs and the size of future wage increases. The issues finally were resolved through an arbitration award issued by the med-arbitrator.

At the state level, Wisconsin has used the technique in the past for municipal and school district employees. Ohio and New Jersey have bargaining laws that authorize mediation during arbitration. Another example of med-arb is the case of judicial employees in Maine. Judicial employees and their employers may agree

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in advance to a med-arb procedure in the event of a dispute. The med-arbitrator’s role is to encourage a voluntary agreement between parties and settle the dispute through arbitration if the parties fail to reach an agreement after a reasonable period of mediation. The med-arbitrator’s recommendations and findings related to controversies over salaries, pensions, and insurance are advisory. Decisions on all other issues are final and binding on the parties.

Results indicate that med-arb has experienced some success in settling impasses before arbitration and in discouraging strikes (Lester 1984). If a dispute does move to arbitration, the mediator should have good information on the nature of the dis- pute and might be able to quickly broker a voluntary agreement. A problem is that the specter of arbitration—and the fear of disclosures—may hinder discussions with the mediator.

2. Arb-Med

Arb-med may be thought of as the reverse of med-arb. The neutral first makes a final arbitration decision on the dispute but does not communicate it to the parties. Mediation then commences with the goal of a voluntary settlement. If one is not produced, then the arbitration decision is announced. The greatest strength of this approach is that it motivates disputants to settle by themselves (Ross and Conlon 2000). Research indicates that arb-med enjoys a higher success rate than straight mediation, chiefly due to lower expectations that encourage cooperation (Ross and Conlon 2000). Moreover, arb-med tends to move along more expeditiously than med-arb (Conlon, Moon, and Ng 2002).

3. Labor—Management Committees

A labor–management committee is a group of management and labor appointees within an agency or workplace who have agreed to work cooperatively to discuss and resolve workplace issues of concern. The committee may be authorized by law or col- lective bargaining contract. The committee may address any matter of mutual concern, but it cannot overturn or contradict any term or provision in the existing contract.

Massachusetts was the first state to experiment with labor–management com- mittees as an impasse resolution strategy in 1978. A breakdown in good faith bar- gaining in municipal government had occurred, primarily over the issue of how to settle impasses. Former Secretary of Labor John Dunlop, a professor at Harvard University who had experience with establishing labor–management commit- tees in industry, suggested that Massachusetts create its own committee for the resolution of labor disputes (Midwest Center for Public Sector Labor Relations 1979). Shortly thereafter, the Massachusetts Labor–Management Committee for Municipal Police and Fire was incorporated into legislation.

The Massachusetts Joint Committee has statutory authority to invoke juris- diction over any police or firefighter negotiations either before or during impasse.

Resolving Impasses: Alternatives to the Strike ◾ 295

(If intervention by the committee does not take place, then disputes are settled through final offer arbitration.) The committee enters disputes upon the request of one or both parties. Its job is to confer with the parties and encourage volun- tary settlement. If these mediative efforts fail, the committee may invoke binding arbitration in any form it desires. Reports of the Massachusetts experience indicate that it has been a success, with only a small proportion of cases going to arbitration (Mass.gov 2008).

Alaska, Indiana, Pennsylvania, New York, New Jersey, Oregon, and other collective bargaining states have also reported success with labor–management committees, particularly in improving occupational health and safety conditions. Further discussion of labor–management committees is found in Chapter 11.

4. Letting the Taxpayers Decide

Strong strains of direct democracy have played on the political heartstrings of many Americans since the earliest European coastal settlements developed independently along the Atlantic. The concept of direct democracy has even been applied to dis- pute settlement in public employment. When in doubt, some argue, it is best to let the people decide through a vote.

One of the first to interject this line of thought into labor–management con- flicts was Sam Zagoria (1973), who suggested granting either party the right to take a contested issue to the public through placing the fact finder’s recommendations on a ballot and making the terms of the voters’ choice retroactive. Until the people made their decision, issues mutually resolved between the parties could be imple- mented immediately (Zagoria 1973) or the parties could remain under the terms of the old contract (Foegen 1974). Thus, a strike would be skirted and those who ultimately have to foot the bill for labor settlements, tax-paying citizens, would render a final judgment. Further advantage would accrue, at least in theory, from democratically involving the public in determining what is in its own “interest.”

Public referenda have been used to settle limited collective bargaining issues since at least 1947 in Texas, when police and firefighter organizations tried to win increased wages, shorter working hours, pay parity, and changes in civil service laws (Helburn and Matthews 1980). Antiunion charter referenda have been held in a number of California cities. For example, a 1985 San Francisco referendum rescinded comparable-worth-based pay increases that had been won in collective bargaining. Oklahoma police and firefighters must take an impasse to randomly selected city council members, who select from the parties’ final offers. If one or both parties still refuse to accept the outcome, the dispute goes to the whole council.

Several cities in Colorado are among the few jurisdictions that legislatively pro- vide for impasse resolution through public referendum. An ordinance in Lakewood, for example, requires that interest disputes proceeding without settlement through mediation and fact-finding be submitted to the voters if the fact finder’s recom- mendations are rejected by either party. It is the rejecting party’s position that is

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placed in the ballot. In Denver, the positions of both parties may be considered by the voting public if each rejects the fact finder’s recommendations. The costs of the election (which are substantial) are paid by the rejecting party or shared by both if neither accepts the recommendations.

On the face of it, resolving bargaining impasses through referendum may sound like an excellent idea. The uncertainty, or outright fear, of public involvement at the ballot box should provide a strong incentive for voluntary settlement. It imposes political accountability on a process often criticized for lacking it. Paying for the referendum represents a measure of economic hardship to the parties, who must also lay out money for campaign expenses (see Hogler and Thompson 1985).

There are some important disadvantages, however. First of all, as any person with survey research experience will attest, it is very difficult to reduce complex issues to simple terms. The problem is patently evident when a referendum is held on any issue. Second, the process assumes that voters will educate themselves on the relevant issues and make an intelligent choice—a risky assumption at best. Third, excessive delays ensue while the election machinery is programmed, ballots prepared, polling places organized, and so on, complicating the budgetary process (although one might point out also the long duration of many other impasse reso- lution procedures, particularly arbitration). Fourth, excessive politicization of col- lective bargaining issues can lead to rigid, uncompromising postures by the major parties and harmful outcomes. Fifth, voters are highly unlikely to approve any wage or fringe benefit increase that can lead to higher taxes. This potentially biases the process against the union position. It is little wonder that public employee unions have fought hard to keep off the ballot proposed referenda that could adversely affect them.

Settlement by a citizens’ conciliation council is another alternative impasse resolution procedure that allows for citizen participation. This alternative is avail- able to public employers and exclusive representatives in Ohio. According to the law in Ohio, citizens’ conciliation councils are composed of three residents within the jurisdiction of the public employer. The employer and the exclusive representa- tive each select one council member. Within 5 days after their appointment, the two selected council members should designate the third member of the council. If the two selected council members fail to agree on a third member, the State Employment Relations Board appoints the third member. The settlements issued by citizens’ conciliation councils are final. Although in many aspects similar to arbitration, this procedure mitigates the illegal delegation of authority concern by allowing residents to decide the outcomes of labor impasses.

5. Unfair Labor Practice

Another impasse resolution alternative is the ULP. The ULP process can be used to resolve issues such as scope of bargaining and complaints concerning the failure to bargain in good faith. States commonly define the refusal to bargain collectively

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by either the public employer or exclusive representative of employees as a ULP. Depending on the state, the PERB, state boards of labor relations (SBLR), state employment relations boards, or equivalent entities are empowered to prevent and remedy ULPs. For example, in New York State, the PERB rules on ULPs unless it can assist the parties to agree voluntarily. In a usual investigation of a ULP, the entity empowered to rule on the prohibited practice holds hearings and examines evidence to determine if a party is engaging or has been engaged in a ULP. Upon examining all evidence, the entity empowered to investigate ULPs states its find- ing of fact and issues an order to either dismiss the complaint or require the party that engages in a ULP to cease and desist from the prohibited practice. Some states expressly prohibit or allow the entity investigating ULPs to order arbitration if the public employer or employee representative refuses to bargain collectively in good faith. In Connecticut, the SBLR can order arbitration and direct the party that refused to bargain in good faith to pay the full cost of arbitration. In Delaware, the Police Officers’ and Firefighters’ Employment Relations Act allows the PERB to take a reasonable affirmative action to remedy ULPs by the public employer or exclusive representative of police and firefighters. However, the Act expressly prohibits the PERB from issuing any order providing for binding interest arbitra- tion on issues arising in collective bargaining between the parties involved. Most of the ULP cases never reach a formal hearing, being resolved successfully beforehand (Riccucci and Ban 1989).

V. Search for Flexibility The choice of alternative dispute resolution procedures has important implica- tions for employment systems (Budd and Colvin 2008). To develop approaches to impasse resolution that are appropriate for a particular set of circumstances, states need to evaluate the advantages and disadvantages of each procedure. An effective comparison of the different dispute resolution procedures requires the use of consis- tent criteria for evaluation. Research has used speed and satisfaction as the primary criteria for evaluation (Budd and Colvin 2008). Nevertheless, these criteria fail to capture some important aspects of the employment relationship that go beyond the efficiency dimension. Budd and Colvin (2008) argue for a more comprehensive framework for evaluation that concurrently considers the dimensions of efficiency, equity, and voice. Within this framework, the efficiency dimension measures how well the dispute resolution system conserves scare resources, the equity dimension measures how well the dispute resolution system meets the standard of fairness and impartiality in decision making, and the voice dimension measures the abil- ity of individuals to meaningfully participate in the dispute resolution process. In addition to serving as a tool for evaluation, this framework can be used to design dispute resolution procedures that maximize one or more of the efficiency, equity, and voice dimensions (Budd and Colvin 2008).

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Each interest dispute is different. Given any particular set of circumstances, one or a variety of settlement approaches may be appropriate. As with most everything else, there is no “one best way.” When public policy deems the strike unaccept- able as a means of settling labor disputes, alternatives to the strike are necessary. Generally, the states have developed approaches that permit more than one impasse resolution procedure. The norm is mediation and/or fact-finding followed by com- pulsory binding arbitration, either conventional or final offer. The exact dispute resolution package varies for different occupational groups, with arbitration often available only to public safety personnel.

One of the most flexible approaches to impasse resolution is found in the Ohio statute. At any time before 45 days before the expiration date of the col- lective braining agreement, the statute allows the parties to submit the issues in dispute to any mutually agreed-upon dispute resolution procedure. According to the statute, mutually agreed-upon procedures may include conventional arbitra- tion; final offer arbitration by package or by issue; arbitration that would include among the choices for the arbitrator the recommendations of the fact finder, if such recommendations exist; settlement by a citizens’ conciliation council; or any other procedure mutually agreed to by the parties. If the parties do not agree to a dis- pute resolution procedure, the statutory provisions apply. The statutory procedures include mediation and fact-finding for all public sector employees. Mediation may continue during fact-finding. If the parties fail to reach an agreement within 7 days after the publication of recommendations provided by the fact-finding panel, most public employees have the right to strike. The Ohio statute provides for a final offer settlement procedure for police, firefighters, and other employees that are prohib- ited from engaging in strikes.

Another flexible approach to impasse resolution is found in the Iowa statute. Even before collective bargaining begins, the two parties themselves are required to reach agreement on which dispute resolution procedure will be used in the event of an impasse (a strategy borrowed from the Canadian labor relations experience). If the parties are unable to arrive at a procedural agreement, then statutory impasse procedures will be invoked. The statutory procedures include the appointment by the PERB, upon the request of either party, of an impartial and disinterested per- son to act as a mediator. If the dispute persists 10 days after the appointment of a mediator, the PERB has the power, upon request of either party, to arrange for final offer arbitration.

Clearly, the state and local governments are serving well in their traditional roles as political laboratories. In developing procedures to resolve interest disputes, the states and localities provide strong evidence of the need to adapt procedures to circumstances. In this sense, public sector impasse resolution strategies illustrate the ends (an acceptable bargaining settlement) justifying the means (mediation/ fact-finding/arbitration, etc.).

No one is more aware of the ends justifying the means than the neutrals them- selves. It is not unusual for neutrals to exceed their statutory authority in the quest

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for a voluntary settlement. As noted in Section IV.D, arbitrators frequently serve a mediative function even in the absence of a med-arb or arb-med provision. In fact, mediation may continue throughout fact-finding and arbitration, culminating in a voluntary settlement just before the arbitrator’s award. Gradually, distinctions among the various dispute resolution processes have become blurred, as mediation often goes on during, and occasionally even after, fact-finding and arbitration.

This supports arguments for combining mediation and fact-finding in a single neutral and suggests some potential benefits from conducting fact-finding before mediation. If the parties know that fact-finding can be followed by mediation through the same person, they should be less apt to hold back information from the neutral; voluntary settlement is encouraged once most of the relevant data have been placed on the table.

Moreover, a tripartite arbitration or fact-finding panel composed of a neutral and representatives from each party should be recognized for what it is in reality— mediation at a higher level. In sum, those who argue against permitting mediation during other impasse resolution processes are missing the point: the ultimate goal is a final acceptable settlement that avoids the strike. The means to resolution of the dispute are not as important as the voluntary settlement itself. The more dispute resolution procedures, in general, and interest arbitration, in particular, divert from rigid adjudication-like processes and are developed as integral parts of the collec- tive bargaining process, the more likely parties will be to resolve their dispute by agreement (Malin 2013). Therefore, flexibility, not ill-founded rigidity, is the key.

VI. Uncertainty: Benefit or Bane? The conventional wisdom in impasse resolution holds that there is a direct relation- ship between uncertainty and the likelihood of voluntary settlement. Thus, impasse procedures should create an ocean of insecurity and misgivings so that the parties will be forced to swim to an island of compromise. Arbitration supposedly fulfills this intent because the parties can never be certain which side will be disadvantaged by the neutral’s decision. As noted, however, there is a marked tendency for arbi- trators to split the difference between the opposing offers, thus establishing some boundaries within which it normally can be assumed the award will fall. Final offer arbitration, its supporters claim, creates much greater levels of uncertainty through the mandate of an all-or-nothing choice; better for the risk-averse party to compro- mise than face losing everything.

However, some doubt can be cast upon the conventional assumption regarding uncertainty and propensity to settle (Gerhart and Drotning 1980). Certainly, there are some significant costs to both unions and management when an impasse drags on. Union members may sacrifice wages and benefits and the union itself must pay certain monetary costs, including attorney fees and at least part of the fees and expenses for neutrals. Management absorbs costs of attorneys and neutrals also,

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along with certain political debits as the result of citizen unhappiness if services are disrupted. However, it should not be forgotten that in the event of a work stoppage, management may benefit financially from foregoing wage and benefit payments and politically from “hanging tough” with the union.

Gerhart and Drotning (1980) claimed that when each party feels reasonably certain in its predictions of the costs and benefits of impasse for itself and for the other party, a settlement is highly likely. Uncertainty over the relative costs and benefits of impasse encourages the parties to delay settlement. This hypothesis received support from Farber (1980), whose model of the final offer arbitration process indicates that final offers tend to diverge greatly when uncertainty is high. Knowledge, or at least apparent knowledge, of the respective costs and benefits helps bring the parties to a compromise.

This perspective is intuitive if one considers the nature of the collective bargain- ing process itself. For example, if both parties are cognizant of the other’s bottom line on a disputed issue, then the basis for compromise is readily apparent. To carry the example a step further, a city may truly have an inability to pay a wage increase greater than 6%, that is, the bottom line. The union’s bottom line may be a 4% wage increase. Grounds for settlement are readily apparent to both parties if knowl- edge exists of the respective “unyielding” positions. Of course, the real world of labor relations is not so simple, and knowledge of true bargaining positions is not so easy to gain.

VII. Conclusion: The Benefits of Impasse Procedures As indicated in Chapter 8, 13 states now permit strikes through statute, state supreme court decision, or de facto procedures for one or more groups of employees. This would not be so if third-party procedures were always successful in practice and presented no problems for accountability and representative democracy. A number of troublesome aspects that accompany the use of various impasse procedures have been discussed, including the lack of finality, the chilling and narcotic effects, the delegation of public decision-making authority to parties not accountable to the electorate, and claims by public managers that arbitration awards tend to favor the union’s point of view. In addition, third-party procedures can be time consuming and expensive (although a requirement that the parties share expenses or that the losing party pay all costs of the neutral helps overcome this objection).

It is usually in the interests of the parties to settle as soon as possible, so that union members can begin receiving any new pay and benefits and the government employer can finalize the budget and prepare for new compensation arrangements. Time delays as a result of impasse procedures can be enervating. The period from impasse declaration to award may be several months or even a year. In New York, “In many cases, an agreement that the arbitrators were still deciding had (itself ) expired, and it was time to renegotiate another contract” (Kochan et al. 1979: 154).

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Third-party procedures (particularly arbitration) have clearly been abused in some jurisdictions by the unions. Unions that are small in membership, lacking in political resources, or laboring under other limitations vis-à-vis management may look upon impasse procedures as a means of gaining something not available at the bargaining table. Based on her research in New York City, McCormick (1979) con- cluded that interest arbitration did not function as a strike substitute for small, less powerful, “nonessential” unions. Rather, arbitration was invoked more than 90% of the time by bargaining units that were too weak to mount a meaningful strike. McCormick attributes three different roles to arbitration: (1) providing a forum for less powerful groups to plead for parity arrangements with stronger unions; (2) facil- itating intraorganizational bargaining within the union and management ranks, so that a lack of consensus on bargaining positions can be overcome by an arbitrator’s ruling (in other words, to promote face-saving for top officials in both parties); and (3) helping union leaders “to go all the way” for their membership, thereby asserting a leadership role and strengthening their positions within the organization.

One would assume that the chilling and narcotic effects of third-party proce- dures would lessen in jurisdictions that have bargained collectively for many years and developed negotiating expertise. Arbitration is a “learning experience” for the parties, who adjust their expectations about arbitrators’ beliefs in each subsequent contract that goes to arbitration (Olson and Rau 1997). A narrowing gap between the parties’ expectations (the settlement zone) should be conducive to a negotiated agreement. Future research should be able to tell us if this is indeed the case.

It must be noted that in the majority of bargaining relationships, third-party procedures work satisfactorily. Mediation continues to be highly valued as a flexible and informal method of resolving disputes, and fact-finding has proved useful in many jurisdictions. As a dispute resolution device that includes a distinct measure of finality, arbitration in its various forms has been shown to be a reliable alternative to the strike.

In further defense of the various third-party procedures, it must be recognized (as McCormick [1979] found) that they fulfill important functions not directly related to avoiding the strike. Impasse resolution procedures act as safety valves to help contain labor–management conflict and solve labor-related problems (Lester 1986; Babcock and Olson 1992). For instance, impasse procedures help one or both parties save face when settlements are painful. When a voluntary compromise is unlikely to win acceptance by rank-and-file union members or management, reli- ance on a third party to dictate the necessary settlement tends to deflect criticism and blame from the negotiating team to the neutral. Thus, union and manage- ment leaders can retain their positions of authority by using the neutral as a buffer or scapegoat, and constructive labor–management relations are maintained. These “arbitrated” agreements have been commonplace in many jurisdictions, including New York City, Michigan, New Jersey, and Wisconsin (Lester 1986).

Dispute resolution procedures also act to reduce conflict and build consen- sus between the two parties on labor relations issues that have been subjects of

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contention. Actually, the most useful long-term function of impasse procedures, particularly arbitration, “may be the manner in which it quietly absorbs and accom- modates conflicting interest group claims over scarce public resources” (Feuille 1979: 75). In this sense, dispute resolution procedures contribute to social and political stability by providing an alternative to overt conflict and the strike.

Are third-party procedures ethically superior to the strike in public employ- ment? In responding to this question, we must defer to John F. Burton, Jr. (1978), who concluded that “the relevant standard is the jurisdiction’s law. Public sector strikes that are legal are ethical, and vice versa.” Public employee unions are inter- est groups that have a strong voice in state and local government legislative bodies. Their preferences, as likely as not, are for third-party dispute resolution procedures. Although public employers have demonstrated an increasing propensity to take a strike, they, too, usually prefer settlement through less conflictual means and, like unions, make their desires known to legislators.

Case Study 9.1 Tough Times in Garden Junction

New federal mandates, a failed sewer system, the loss of a major employer, and a national economic recession have slammed the finances of Garden Junction. The city council and City Manager Donald Lilly cannot be blamed for worrying about the financial viability of the small (pop. 50,000) town. Few opportunities for growing municipal revenues appear to exist. Hence, the council and Manager Lilly have been engaged in serious discussions about tough long-term changes.

The municipal work force numbers 175 employees. Collec- tive bargaining contracts govern pay, benefits, and working conditions. All six major contracts are presently in negotiations. There has already been a flood of retirements, with the recent retirees joining the ranks of nearly 1200 earlier pensioners. The retirement plan is defined benefit, with participants enjoying generous payouts that are pegged to cost-of-living increases.

Pension expenses are consuming a growing portion of the operating budget, as the system has been funded from the annual budget. Switching to a defined contribution plan in which the city would dedicate a percentage of employee sal- ary to a fund presents an attractive option. Present contribu- tions would fund future payouts, with participants determining the distribution of their pension investments and the level of their monthly pension check dependent on individual invest- ment choices.

Resolving Impasses: Alternatives to the Strike ◾ 303

Labor relations in Garden Junction have been fairly construc- tive, but the shift in retirement plan funding is likely to provoke strident union opposition. Union president Vinny Calabria has already voiced the union’s position, and suffice it to say that it is not positive. Calabria asserts that the city pension system is based on past understandings, and benefits cannot be reduced without union agreement. However, a consultants’ study has recommended that the city establish a mandatory defined contribution plan for all present and newly hired employees. Significant savings are anticipated once the plan is imple- mented. The consultant’s proposal is brought before council and, following the views of the consultant and the city manager, it is approved. The issue moves to the bargaining table.

Union and management negotiators work out agreements on pay and some minor changes in conditions of work. The pension issue ties them up in a serious impasse. Under state law, the issue moves to conventional, binding arbitration under a single neutral appointed by the state PERB. Each party pres- ents its arguments: the union for continuation of the defined benefit plan, but with a small (2% of salary) copayment into the pension fund from the salary of current employees; man- agement for adoption of a defined contribution plan, with the city transferring 6% of employee salary matched by 4% of city funds into individual retirement accounts.

You are sent by the PERB to Garden Junction to settle the impasse:

1. How would you begin to carry out your assignment? 2. What information would you examine in determining

the viability of the benefit change and the nature of your decision?

3. Are there reasonable alternatives to a mandatory defined contribution plan for all employees?

4. Explain and defend your decision.

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Chapter 10

Living with the Contract

I. Introduction After the chairs are pushed back from the table, the written agreement signed, hands shaken all around, and photo opportunities provided for the media, the two parties to the agreement must begin the difficult task of applying and inter- preting the broad terms of the contract on a day-to-day basis. Although contract negotiations steal the limelight of labor relations, the true test of the soundness and maturity of the relationship between union and management comes with imple- mentation of the agreement. It is through living with the contract that collective bargaining exerts its greatest effects on the behavior and attitudes of individual public workers (Kochan 1980: 384).

A collective bargaining agreement may be effectively administered by each party or it may be poorly administered. The union, like an unruly child, may test management by attempting to tilt interpretation of the contract to its advantage by picketing, walkouts, or job slowdowns. An immature management may ignore the terms of the agreement and attempt to implement terms and conditions of employ- ment unilaterally. Just as in a marriage, conflicts and disputes are inherent in any labor–management relationship. The key to a healthy and stable employment rela- tionship is to manage conflict and controversy over implementation of the contract in a constructive manner, with due consideration of the rights and responsibilities of each party. Both parties must strive to resolve their differences amicably in the short term to maintain a positive long-term relationship.

In this chapter, after a brief examination of collective bargaining agreements and their administration in the public sector, our attention focuses on the primary means for living peacefully with the contract—a responsive and effective grievance procedure culminating in binding grievance arbitration.

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II. Collective Bargaining Agreement The negotiated contract serves as the legal foundation, or “law of the workplace,” replacing the unilateral determination of employment decisions by management with a shared decision-making process between equals.

The collective bargaining agreement is traditionally referred to as a “contract” much in the sense of a commercial contract, and, like the commercial contract, the collective bargaining agreement is enforceable in the courts. But a labor agreement is more than a business contract in that it attempts to construct a democratic system for governance of the workplace. Also, when a commercial contract expires, the rights and duties of the parties are terminated. Labor agreements have a life beyond contract expiration, particularly with regard to employer obligations to contribute to health insurance and pension plans and to honor procedures established during the term of the contract.

The basis in the private sector for legal recourse involving contracts is found in Section 301(a) of the Labor–Management Relations Act, which provides that union or management violations of contract terms may be challenged by a lawsuit in federal district court. In the public sector, litigation to enforce contracts is usu- ally taken before a state court or the Federal Labor Relations Authority (FLR A). Other potential remedies are available in both industry and government, including unfair labor practice (ULP) charges before the National Labor Relations Board or the state labor board or agency. As a general rule, however, contractual disputes are settled within the parameters of the agreement itself, without resort to external appeal.

A. Contents of the Agreement The typical collective bargaining contract runs anywhere from 10 to 100 pages. The document may be very basic and limited in scope or, especially where bargaining relationships are longstanding, exceedingly detailed and complex. All labor rela- tions contracts, however, are intended to provide rules for governing the parties’ relationships on a day-to-day basis and to delineate the duties, rights, and responsi- bilities of the respective parties.

Generally speaking, contract provisions may be classified as (1) fixed, (2) con- tingent, or (3) dispute resolution procedures. Fixed provisions usually remain unchanged over the life of the agreement. Contingent provisions govern union or management actions in a changing labor relations environment. Dispute resolu- tion procedures outline the process for resolving conflicts arising from contract interpretation and application (Table 10.1 provides examples for each category of contract provisions).

Contract provisions may be also classified into (1) employee rights and obliga- tions, (2) union rights and obligations, (3) management rights and obligations, and (4) grievance and arbitration procedure (Budd 2010). Typical provisions related to

Living with the Contract ◾ 307

Table 10.1 Types of Contract Provisions

Types of Provisions Description Examples

Fixed Fixed provisions usually remain unchanged over the life of the agreement

• Contract duration

• Boundaries of the bargaining unit

• Management rights

• Wages

• Hours of work

• Benefits

• Holidays, vacation, and sick leave

• Union recognition and rights

• Union security

• Antidiscrimination clauses

• Residency requirements

• Union political activities

• Official time

• Reopening clause

Contingent Contingent provisions are intended to govern union or management actions in a changing labor relations environment

• Discharges

• Layoffs

• Reductions in force/recall of laid-off workers

• Promotions

• Work scheduling

• Work assignments

• Transfers

• Discipline

• Outsourcing

Dispute resolution procedures

Dispute resolution procedures are designed to resolve conflicts arising from contract interpretation and application, particularly of the contingent provisions

• Grievance procedure (steps)

• Mediation

• Arbitration/ expedited arbitration

• Powers of the arbitrator

• Selection of arbitrators

• Expenses of arbitration

• No-strike clause

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employee rights specify salary schedules for different types of employees, overtime compensation requirements, leave entitlements, and job benefits. Under collective bargaining agreements, public employees may be entitled to annual leave, sick leave, personal leave, child care leave, other types of leave, and a range of holidays. Common benefits include life, health, dental, vision, and disability insurance as well as pension benefits. Primary employee obligations involve carrying out assigned duties and following work rules.

Most collective bargaining agreements in the public sector contain seniority provisions. Seniority refers to an employee’s length of service to the organization. In accordance with length of service, employees gain preference in work events such as layoffs, transfers, and promotions. Layoff provisions usually require the reduction in the number of employees in reverse order of seniority. Provisions related to voluntary transfers and promotions may require employers to give pref- erence to employees in the order of greatest seniority when filling vacancies and making transfer decisions. Employers may be required to consider seniority as the sole criteria for making layoff, transfer, and promotion decisions or may have to evaluate, in addition to seniority, other factors such as employee skills, knowledge, and abilities. Seniority, nevertheless, may be designated as the determining decision factor when employees considered for layoff, transfer, or promotion are substan- tially equal on all other factors.

Under collective bargaining agreements, unions may recognize the authority of the employer to take disciplinary action against employees. Nevertheless, unions may also negotiate limits to such authority, requiring that disciplinary action be timely, reasonable, and taken for just cause. Disciplinary action is usually consid- ered reasonable if it is appropriate to the seriousness of the incident. Progressive disciplinary action may be required. Contracts may further specify the time within which the employer may take disciplinary action and enumerate reasons that con- stitute just cause. Examples of just cause include failure to carry out assigned duties; violation of work rules, policies, and regulations; unsatisfactory service; and inap- propriate conduct, among others.

Collective bargaining agreements typically specify several union rights and obli- gations. Most contracts contain a union recognition clause in which the employer recognizes a particular union as the exclusive representative of the employees in a bargaining unit. In addition to union recognition, more specific union protection provisions may be negotiated into the contract. Employers may be expressly prohib- ited from supporting, financially or otherwise, any other labor organization with the purpose of undermining the union recognized as the exclusive representative of employees. Furthermore, employers may be expressly prohibited from eroding or reducing the bargaining unit by assigning tasks that are commonly performed by union members to nonunion employees.

Several union rights included in collective bargaining agreements are designed to facilitate union activity and continuity. For example, unions may have the right to have union dues deducted by the employer directly from employee paychecks

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where such practice does not conflict with state law. Unions may also have the right to maintain bulletin boards on the premises of the employer, have the opportunity to give a presentation to new employees during orientation, provide new employees with information packets, and have office space assigned to them at locations that are easily accessible to employees. Union leaders may have the right to take time off from work for union business purposes. Examples of union obligations include the duty of fair representation and refraining from engaging in strikes.

Union and employee rights correspond to employer obligations. Therefore, col- lective bargaining agreements may require employers to refrain from aiding other unions, provide the union with an office space, deduct union dues from employee paychecks, furnish union information packets to new employees, allow unions to represent workers in the process of disciplinary investigation, provide a healthy and safe work environment, and discipline workers only for just cause, among others. To maintain control over traditional management functions, employers usually negotiate into collective bargaining agreements management rights clauses. Management rights may include the right to determine the mission, budget, and organizational structure of the agency; select, promote, and discipline employees for just cause; adopt work rules that regulate performance and conduct of employ- ees; manage affairs efficiently; and other rights ensuring that management may exercise without limits its regular and customary functions.

Dispute resolution procedures are designed to resolve conflicts arising from contract interpretation and application, particularly of the contingent provisions. The vast majority of labor agreements contain a no-strike provision for the life of the contract and a multistep grievance procedure culminating in binding arbitra- tion of contract disputes. As noted, another common procedure for resolving dis- putes is to file a ULP complaint with the appropriate state or federal organization.

In living with the contract, dispute resolution provisions are particularly impor- tant. Every clause in the contract may be subject to differing interpretations. Like other written instruments, the labor contract simply describes the terms agreed upon by the parties. Like any screed, it may suffer from the vagaries of the written word. The pressure and time constraints of negotiations, along with the fatigue they often precipitate, are not conducive to precise writing. During negotiations, vari- ous tones and intonations, facial expressions, body language, and contexts enrich and expand upon formal language. What may appear to be perfectly clear to the negotiating teams may later seem to be riddled with ambiguities to those who have only the written words before them. Furthermore, interpretation of contract provi- sions can be complicated by deliberately ambiguous language that helps to avoid a negotiations impasse. Poor drafting and “legalese” compound ambiguities.

To minimize contract ambiguity, the drafters of the agreement should (1) use short, declarative sentences; (2) avoid excessive legalisms; (3) be precise with terms such as “agency,” “union,” and “employee”; (4) carefully outline procedures in a step-by-step format; (5) use examples to clarify abstract clauses; and (6) have a draft of the agreement proofread by individuals who were not present at the bargaining

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table. The drafters should also strive to avoid polysyllabic words and nebulous terms such as “reasonable,” “equitable,” and “normally.”

Scott and Suchan (1987) assessed the readability of a sample of public sector collective bargaining contracts using three readability formulas, including the Fog Index. They found that virtually all of the contracts were very difficult to read and understand, requiring at a minimum the reading comprehension skills of a college graduate. Obviously, many stewards, frontline supervisors, and union rank and file may be expected to have difficulty applying the provisions of such contracts. Scott and Suchan (1987) recommend that technical writers be used to draft contracts in plain, lucid language. Nonetheless, as long as humans are fallible, vagueness and contradictions will be found in their written agreements.

B. Disseminating the Agreement Just as management is the initiator of most personnel-related actions, management also has the primary responsibility for implementing the collective bargaining con- tract. As the action agent, management initiates policy under the agreement and the union reacts, through either compliance or challenge. It is commonly observed that “management administers the contract and the union enforces it.” But man- agement may also be accused of errors of omission or inaction (Meyer 2002).

Assuming legislative ratification of a negotiated collective bargaining agreement, management’s first task is to disseminate the contract throughout the organization and to educate the respective constituencies on specific provisions and grievance pro- cedures. The contract may be reproduced in its entirety and, as is often the case with lengthy or complex documents, its important provisions summarized and explained. A fundamental principle of contract administration is that all managers and mem- bers of the bargaining unit should receive a copy of the contract as soon as possible. Supervisors should be allocated a sufficient number of copies to distribute to each of their subordinates, including those who are not members of the union (they are par- ties to the contract nonetheless). Usually, the public employer assumes responsibility for the costs of printing and distributing the agreement and collateral materials.

The key individuals in contract dissemination are management supervisors and union stewards. If these persons become intimately familiar with the contract terms early in the life of the agreement, there should be fewer misunderstandings and, as a consequence, fewer unnecessary grievances. In fact, it is not a bad idea for supervisors to begin familiarizing themselves with a new contract while it is still being negotiated. Such early involvement enhances understanding of contract provisions as they are finalized, enables supervisors to serve as valuable channels of communication between employees and management during negotiations, and provides an early assessment of the potential impact of various union and manage- ment proposals. Once a new contract is signed, supervisors should quickly be given a written analysis of each provision, and special training sessions should be held to explain the management perspective on each clause and its intent.

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The union should also train its stewards in the provisions of the new contract. The bargaining agreement is “the most tangible product the union has to sell,” and it can be used to elevate member commitment to the union (Clark and Gallagher 1988: 16). New members may be familiarized with contract provisions during both union- and management-sponsored orientation programs. Benefits could accrue to both labor and management from joint training and orientation sessions, but such programs are relatively uncommon.

C. Administering the Agreement Management organization for administering the contract varies with the size of the employer. In smaller school districts or municipalities, communication usually flows freely within the ranks of management, and authoritative interpretation of contract clauses is readily forthcoming. In governmental units of greater size, mul- tiple levels of supervision can hinder prompt and effective contract administration. Informal communication channels that function very well in smaller jurisdictions tend to be supplanted by formal integrative structures, such as a central labor rela- tions office, which coordinates labor relations policies between agencies or depart- ments. Interorganizational politics frequently makes the job of the central office difficult at best. For example, a district director of a state social service agency who is well connected with the agency head or influential political figures may decide to run personnel operations in her own way, ignoring the contract.

For successful administration of the bargaining agreement, two important objectives must be met. First, the contract must be implemented in a uniform and consistent manner by both parties. Management should almost compulsively enforce all contract provisions to avoid undermining the agreement. The supervisor who, in an effort to be a “nice guy,” violates the contract by, for example, permit- ting employees to leave work a couple of hours before quitting time to get an early start on vacation or holiday leave, is inadvertently sacrificing a management right and setting the table for future grievances. The same is true of the supervisor who overlooks an employee violation of agency rules to “give him(her) a break.” In sum, administrators must be very cautious in making ad hoc exceptions and modifica- tions to contractual procedures. The union steward, for his or her part, should police the agreement vigorously and represent all members of the bargaining unit, whether union member or not, in an impartial manner. Although stringent adher- ence to the formal contract by the parties may seem to be impersonal, inflexible, and overly rigid at times, labor relations experts insist that a commitment to make no exception to the rules is much preferred to inconsistent contract administration and the inevitable perceptions of unfairness that result.

Stringent adherence to the formal contract by the parties, nevertheless, does not hinder flexibility in contract administration. During negotiations, the parties often integrate into the agreement intentionally flexible provisions. Flexibility in con- tract language allows the parties to defer conflict during negotiations and navigate

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the dynamic labor relations environment during contract implementation. Taking advantage of flexibility in contract provisions, while maintaining uniformity in contract implementation, requires the cooperation of union and management. Inadequate cooperation of union and management, however, results in contracts that are often more flexible as written than as practiced (Price 2009).

The second essential objective for successful contract administration is to main- tain open communication channels between union and management representa- tives. The adversarial approach that typically characterizes the contract negotiations process should be replaced by a more cooperative relationship once the agreement is signed. It has been estimated that managers spend up to 50% of their time resolv- ing conflicts.

Conflict between the parties is certain to continue during contract implementa- tion. But conflict is not necessarily an undesirable thing. Constructive confronta- tion can be carried out in a healthy and positive atmosphere through negotiated grievance procedures. Careful monitoring of the labor–management relationship through, for example, grievance analysis can provide appropriate feedback for iden- tifying problems at an early stage. Effective grievance procedures are a necessary prerequisite of successful contract administration and, indeed, an important exten- sion of the collective bargaining process. Grievances effectively addressed today help prevent new grievances tomorrow. Availability of grievance procedures has advantages for unions, employees, and management. The union benefits both tan- gibly and intangibly from representing members of the bargaining unit. Union support allows employees to voice their positions more freely, avoid potential reper- cussions, and ensure an equitable dispute resolution process (Nurse and Devonish 2007; Daugherty 2011). Management gains from improved workforce morale and early problem identification. Conflict within the contract permits members of the organization to confront important issues constructively and cooperatively while advancing the organization’s mission (Rahim 1992).

III. Grievance Procedures A grievance is an employee or union complaint (or, albeit infrequently, a manage- ment complaint) arising out of dissatisfaction with some aspect of the contract or the work environment. The primary purpose of a grievance is to overturn a man- agement action. Usually, the grievance involves an alleged violation of a clause in the negotiated contract. The nature of a grievance is limited only by circumstance. The most common grievance subjects are disciplinary actions, such as reprimands, suspensions, or discharges; absenteeism; health and safety issues; vacation assign- ments; job assignments; promotions; discrimination; overtime; layoffs; and reduc- tions in force.

Employee grievances over the terms, conditions, or continuation of employ- ment may be resolved in several ways in the public sector, including unilateral

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determination by management, civil service procedures, ULPs, and contractual grievance procedures. The primary objective of a grievance procedure is to provide a means for a worker to register a formal complaint about working conditions, arbitrary management actions, or other matters and receive a fair hearing. In the absence of unions and contractual grievance procedures, employees usually must either represent themselves or privately secure the services of an attorney. It is not uncommon in nonunion jurisdictions for official grievance processes to seriously disadvantage the employee and favor management. Where unions are present, negotiated grievance procedures and union representation level the playing field or even tilt it in favor of the employee.

Although nearly all negotiated agreements contain grievance procedures (the estimate is 95%), their scope varies. Some contracts stipulate grievance proce- dures but never directly address the issue of what constitutes a grievance. Most contracts, however, either define grievances very broadly as any disagreement or dispute between management and the employee or union, or define them narrowly by specifying the types of grievances that may be raised under the terms of the agreement. Some contracts specifically exclude certain matters from the negotiated grievance procedure, such as designated management rights (e.g., selection, promo- tion, and performance appraisal).

Even for noncontract-related grievances, however, some means of resolution should be provided because if a grievance is raised, a problem exists whether or not it is grievable under the contract. By addressing noncontract grievances through, for example, alternative dispute resolution (ADR) procedures, management gains an opportunity to resolve potential problems in an early stage of development, before the acorn of a problem grows into a hulking oak.

Negotiated grievance procedures have supplanted traditional civil service appeals systems in virtually all jurisdictions in which unions engage in collective bargaining. There are important distinctions between the two legal settings. Civil service grievance procedures are established in statute or by the employer, whereas negotiated procedures are established bilaterally through union and management negotiations and embodied in the contract. A grieving worker under a civil ser- vice system is essentially appealing a management decision to higher authority; a negotiated grievance procedure represents a continuation of the collective bar- gaining process through which the parties’ rights and responsibilities are clarified continually. Final decision-making authority in a civil service system typically resides in a commission of elected or appointed officials who must attempt to balance dual, and sometimes conflicting, responsibilities as both the executive personnel arm of management and the protector of classified employees and the merit system; negotiated grievance procedures normally provide for final decision making by a “disinterested” third-party arbitrator. Finally, the scope of civil ser- vice grievance procedures is typically restricted by state law, municipal ordinance, or commission rules and regulations; negotiated procedures are usually much less limited in scope.

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The functions of negotiated grievance procedures go beyond merely furnishing a basic forum for employee complaints. Grievance procedures help avoid strikes and other labor actions in two important ways. First, in the absence of grievance procedures, unions would be more likely to resort to labor actions rather than liti- gation to resolve disputes over contract application (Malin 2010). Second, nego- tiating grievance and arbitration provisions into the contract allows the parties to defer potential disputes over specific issues to case-by-case negotiation (Malin 2010). In the absence of a process to defer conflict, the parties would be more likely to reach an impasse in collective bargaining, which may increase the likeli- hood of unions to resort to labor actions. Grievance procedures also help resolve differences in interpreting the written agreement, protect the rights of the union, identify new issues for negotiations, and, in general, promote labor– management harmony in living together with the contract. Other important functions of the negotiated grievance procedure include detecting underlying problems in the agreement and in the basic functions of human resource management. In all the foregoing respects, the grievance procedure represents an extension of the bar- gaining process.

Although negotiated and civil service grievance procedures differ conceptually, in practice they sometimes overlap, providing multiple points of access to the griev- ant. For example, an adverse action such as dismissal may be appealed to a civil service commission or taken to arbitration through the negotiated contract in some jurisdictions. Additional appellate venues exist if the dismissal results in charges of sexual, racial, or other forms of discrimination.

Federal sector grievance procedures represent the best (or worst) example of multiple dispute resolution venues. A single dispute between a union-represented grievant and an agency “may be litigated before four separate agencies and with as many as ten different procedures” (Feder 1989: 269). At any given time, a grievance may be pending before the FLR A (contract dispute), Merit Systems Protection Board (MSPB) (disciplinary action), the Office of Special Counsel (whistleblower reprimand), and the Equal Employment Opportunity Commission (EEOC) (dis- crimination complaint). Within the FLR A alone, there are several ADR paths. Not surprisingly, confusion and lengthy delays plague the process. “Mixed cases” involving allegations of discrimination and one or more related matters often take 4 years or longer for settlement, especially if findings of the various grievance- deciding bodies diverge. Clearly, such costly, convoluted, and bewildering proce- dures negatively affect the quality of federal labor–management relations. This has led to suggestions to replace this multiplicity of grievance-hearing bodies with a single federal dispute resolution board (Feder 1989).

Similar levels of redundancy and complexity are also found in some states. Others (e.g., New Jersey, Maine, and New York) have attempted to end the confu- sion by amending their collective bargaining laws so that the negotiated contrac- tual procedure takes precedence over all other channels of appeal. Florida requires the grievant to choose either the negotiated procedure or a civil service procedure.

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A. Causes of Grievances As noted in Section II.A, grievances spring from diverse sources in the workplace. The three major causes of grievances are misunderstandings, intentional violations, and symptomatic grievances.

“Misunderstandings,” which probably represent the most frequent source of grievances in most employment relationships, can result from deliberate or uninten- tional ambiguities in a negotiated contract, misinterpretation or misunderstanding of contract language by one or both parties, or ignorance or ineptitude in contract administration on the part of the union steward or the supervisor. For example, a manager who demonstrates incompetence in applying the terms of the contract is likely to find his or her decisions increasingly challenged by a leery steward. As a result, the number of grievances will rise.

“Intentional violations” typically involve management’s circumvention of a contract provision because of “special circumstances” that have developed. For example, management may change the hours of work to meet client demands or reduce working hours because of a budget shortfall. To foreclose a waiver of future contract rights, the union grieves.

“Symptomatic grievances” are indicative of some underlying problem in the workplace that is causing employee frustration. For example, an underqualified or overqualified worker may file a petty grievance out of personal frustration; stewards may raise grievances to harass management just before or during contract negotia- tions; or a “hard ass” supervisor may arbitrarily crack down on coffee breaks and casual conversation. Conflictual relations during contract negotiations often carry over into the administration of the agreement, and any particularly contentious issues remaining unresolved in the contract are apt to generate grievances.

Environmental factors that induce complaints may be included within the category of symptomatic grievances. These factors, which characterize the broad organizational context of union–management relationships, are found in the work environment, task organization and technology, and socioeconomic conditions. In an early study of the U.S. steel industry, Peach and Livernash (1974) found that griev- ance rates were higher in work units with low-skilled employees, repetitious work, jobs requiring constant attention, and other unfavorable working conditions. In a study testing the applicability to two large state agencies in Iowa, Muchinsky and Maasarani (1980) had findings similar to those of Peach and Livernash. In Iowa, the work environments at the Department of Social Services (DSS) and the Department of Transportation (DOT) were closely related to the frequency and subject matter of grievances. For instance, state hospital and prison employees in DSS filed a great many grievances over matters of discipline, health, safety, and transfers, which the authors suspected were related to the stress-ridden nature of their work. At DOT, the majority of grievances were concerned with hours of work, wages, and benefits.

Grievances have also been associated with characteristics of the individual worker. Grievants tend to be younger, have more formal education, exhibit greater

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absenteeism, earn lower wages, be more active in their union than nongrievants, and have a weak commitment to the job (especially students or part-time workers) and to their supervisors. Some studies have found that minorities are more likely to file grievances than whites (Labig and Greer 1988).

An organization characterized by a comparatively high number of grievances is not necessarily an “unhealthy organization,” although grievances are costly in terms of their demands on management time, energy, and resources. The emergence of many grievances may simply reflect the lack of an effective union screening process to shut off frivolous complaints or combative union stewards (Bemmels 1994). A rel- atively small number of grievances may signal trouble in terms of a lack of employee faith in the grievance procedure or their union, or, as is sometimes the case, the availability of a more frequently used alternative such as a civil service system appel- late route. Alternate grievance procedures, in conjunction with a narrower scope of bargaining, have been cited as major reasons for the lower incidence of grievances in government as compared to industry (Stewart and Davy 1992: 323).

The number of grievances in an organization may also depend on the approach that management takes to contract interpretation. Management may take the lib- eral approach to contract interpretation and test how much the union is willing to overlook before taking action, or choose to interpret the contract restrictively and avoid conflict with the union (Price 2009). A restrictive approach to contract inter- pretation by management may lead to a smaller number of grievances compared to a liberal approach.

Organizations in which managers experience limited discretionary power may also have a lower than expected incidence of grievances. Daugherty (2011: 81) explains that “over involvement of union oversight can lead to negative outcomes of grievance settlements and unnecessary suppression of management control.” More specifically, an outcome of a grievance settlement that is unfavorable to man- agement may have negative consequences, on a professional level, for managers involved in the dispute. Managers that understand the potential negative implica- tions of unfavorable grievance settlements may choose to avoid intervening in failed agreements and practice passive management.

There is probably some “ideal” range of grievances per employee in a healthy organization, but no mathematical equation or metric has been derived that accu- rately reflects the total ambience of the workplace. It is important, however, that grievance channels be kept open and functional to serve as a safety valve, clear up ambiguous contract language, and otherwise ensure an adequate flow of employee feedback.

B. The Grievance Process Although there is a great deal of variance in written, negotiated grievance proce- dures among public employers, almost every plan consists of step-by-step tech- niques for grievance resolution, with nearly all culminating in binding arbitration.

Living with the Contract ◾ 317

Two overriding concerns for any grievance procedure, whatever the specific steps, are that they (1) encourage the rapid and fair settlement of complaints and (2) pro- mote resolution of the grievance at the lowest possible level. The number of steps in the procedure usually corresponds with clear lines of management authority.

Most grievance plans include three basic steps, followed by arbitration (see Figure 10.1). First, the complaint is raised and responded to at the supervisory level. During this initial phase, a strong effort should be made to settle the griev- ance informally. Often the grievance is handled orally, which permits more flex- ibility than can exist once the complaint is reduced to a written form. The duty of the supervisor during this phase is to get the full story from the grieving employee, consult with the union steward if necessary, investigate the complaint through col- lecting data and/or interviewing other workers to determine if there are adequate

Alleged contract violation

StewardEmployee

Grievance resolved

Grievance withdrawn

Comprehensive settlement or Grievance withdrawn

Steward

Department head

Immediate supervisor Step one (informal, oral)

Step two (formal, written)

Step three

Binding arbitration

30 days

5 days

10 days

20 days

30 days

Arbitration

Union committee

Mgr., labor relations

Chief steward or agent

Figure 10.1 Grievance process. (Adapted from McPherson, D.S., Resolving Grievances: A Practical Approach, Reston Publishing, Reston, VA, 1983.)

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factual grounds for the complaint, and render a decision one way or the other. The supervisor should record the basis of his or her decision and document any corrobo- rating information in anticipation of an employee appeal.

The usual second step in the grievance procedure involves union intervention and marks the commencement of a “formal” grievance. If the union grievance committee determines that further action should be taken on appeal, the com- plaint is summarized in writing, signed by the grievant, and forwarded to the next management level (see Figure 10.1). At this point, both parties are well served by carefully collecting and retaining complete and accurate records of the case. The responsibility of management at this juncture is to review the complaint in view of relevant contract language and other significant information and try to find a means for resolving the dispute. Fairness and promptness should be of major concern to both union and management to demonstrate to all interested parties, especially the rank and file, that the grievance system works as intended.

If the complaint remains unresolved, higher levels of management become involved. In municipalities, the department head may make the final prearbitra- tion determination or, especially in middle-sized and smaller localities, the mayor or city manager may function as penultimate arbiter of the grievance. In school districts, the local school board or superintendent often makes the final manage- ment decision before third-party intervention. Policy in state governments varies, with state grievance committees, agency and department heads, or labor relations divisions making final prearbitration judgment. Even when grievances are settled during the early procedural stages, top management often plays an important role by consulting informally with supervisors.

The final venue in more than 90% of negotiated public sector grievance pro- cedures is binding grievance arbitration by a neutral third party. In contracts not calling for third-party intervention, management makes the final determination unilaterally or some other alternative such as grievance mediation is employed.

To encourage prompt processing of unresolved grievances through the system, most contracts specify time limits. Normally, a grievance must be initiated within a certain period of time or it will not be permitted to go forward through the appel- late route. Such time constraints benefit labor by precluding management delaying tactics and they help alleviate employee frustration over untreated complaints. They also help management avoid work disruptions and retroactive pay awards. Both parties gain from the timely use of evidence concerning the grievance. Although the exact time limits vary among contracts, a common requirement is that manage- ment representatives at each step render a decision and forward it to the grievant within 5 or 10 working days of receiving the complaint. The employee, if still dis- satisfied, has the same period of time to take the case to the next level of appeal.

The time required for grievance resolution is “largely a function of the complex- ity of the issue and its importance to [the] basic interests” of the parties involved (McPherson 1983: 31). If the parties mutually seek to resolve the dispute quickly

Living with the Contract ◾ 319

and satisfactorily, that is likely what will happen. If one or both parties choose to “stand on principle” or fight it out to the end, binding arbitration is the result.

Occasionally, management’s interests may be served by foot dragging. For exam- ple, where management intentionally violates a work rule in the legitimate interests of efficiency or serving the public, there is little incentive to handle the resulting grievance in a timely fashion. This is because the conventional rule is for employees to “follow the order then grieve” to avoid insubordination charges. Thus, manage- ment can get away with a contract violation or unfair labor practice while the griev- ance is pending, although time limits place a ceiling on such delaying tactics.

C. Representation of the Grievant

1. The Steward

An employee registering a grievance under the contract is entitled to representation by the union steward and, in a growing number of instances, a union or personal attorney. The employee also has the right in most public jurisdictions to have union representation during disciplinary hearings, investigations of alleged employee mis- conduct, and arbitration proceedings. The steward plays a key part in representing the employee and, in general, ensuring that management implements the provi- sions of the contract evenhandedly.

The steward fills an elected or appointed position within the union for a term that runs 1 year or more. The steward typically is obliged to deal with employee problems during working hours. Management recognizes the importance of the steward function by releasing the steward for union work with pay at the regularly assigned rate. In 2011, bargaining unit employees at the federal level spent about 3.4 million hours performing representation duties on official time for an estimated cost of $155 million (U.S. Office of Personnel Management 2013). Representation duties included participation in term negotiations, mid-term negotiations, dispute resolution, and general labor–management activities. Out of the total number of hours spent on all types of representation duties, bargaining unit employees spent about 0.5 million hours to process grievances (U.S. Office of Personnel Management 2013).

In addition to receiving pay for union work at the regularly assigned rate, stewards generally are granted “superseniority” to protect them from layoffs or other management actions that could adversely affect the performance of their duties. Another major function of the steward is to enlist new union members. A bargaining unit may have several stewards consistent with different levels of man- agement authority. If so, a chief steward exercises some authority over the various shop stewards.

The steward’s role can be quite complicated when supervisors belong to the bargaining unit. A steward can find himself representing his own supervisor before higher management, or a steward who also happens to be a supervisor may have

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to represent a subordinate. Even more confounding, the steward’s supervisor may have taken the action that gave rise to the grievance. Thus, the steward can repre- sent a grievant who has a grievance against the steward’s immediate supervisor, who is also in the bargaining unit and presumably has the right to union representation. Such role confusion stands as compelling testimony for the need to exclude super- visors from rank-and-file bargaining units.

Grievance handling can be a sensitive area for the steward and the union, and it is clearly of fundamental importance to both the union and the overall qual- ity of labor–management relations. The steward is in a key role to influence the behavior and attitudes of bargaining unit members. Effective stewards can nurture strong commitment to the union and maximize dues-paying membership (Clark and Gallagher 1988; Clark 1989a). The quality of labor–management relations is enhanced by stewards who can work effectively with supervisors while fully dis- charging their representation duties. Stewards rarely receive extra monetary com- pensation for their efforts to carry out union–management relations within a high-pressure, stressful environment. In many ways, it is a labor of the heart.

2. Union Duty of Fair Representation

The union’s duty of fair representation results from its designation as exclusive bar- gaining agent for all employees in the bargaining unit. In exchange for this designa- tion, the union agrees to represent fairly, honestly, and in good faith all employees even if they are not members of the union. The union’s legal duty to represent all members of the bargaining unit is provided for in the contract or in state labor legislation. The standards for determining fair representation were developed in the federal courts for the private sector and applied to public employment, with little consideration given to public/private sector differences. Several key court cases delineate the duty of fair representation.

The most frequently cited case is Vaca v. Sipes (1967), in which the Supreme Court held that the only instance in which a union violates its duty of fair repre- sentation in deciding not to arbitrate a grievance is when it acts in an arbitrary or discriminatory fashion or in bad faith. The burden of proof, therefore, would rest with the grievant. However, a later decision, Hines v. Anchor Motor Freight (1976), held that the “perfunctory” processing of a grievance may also violate the duty of fair representation, particularly where the union does not investigate the potential merits of a grievance before dropping it. Because unions have limited funds for grievance processing, they cannot take every complaint all the way to arbitration. Under most public sector contracts and statutes, the union—not the grievant— decides which cases it will take to arbitration, eschewing those that have question- able merit or reflect narrow interests or settling before arbitration.

Although “mere negligence” in grievance handling does not necessarily breach the duty of fair representation, the union does have the legal responsibility to exer- cise a minimum level of care in meeting time limits and pursuing the evidence

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submitted by the grievant. The best route for the union is usually to file the griev- ance, then conduct as thorough an investigation as feasible, dropping the grievance only if it clearly has no merit. Otherwise, the union may be subjected to an unfair labor practice charge or a civil suit for breach of contract. Therefore, the duty of fair representation may induce unions to initiate more grievance procedures to avoid potential liability (Bingham et al. 2010).

The union that neglects the duty of fair representation may be courting finan- cial catastrophe. In Bowen v. U.S. Postal Service (1983), the U.S. Supreme Court ruled that a union failing to properly represent an employee fired illegally from the job is liable for a portion of the employee’s lost wages. Charles V. Bowen, a member of the American Postal Workers Union (APWU), was dismissed by the U.S. Postal Service (USPS) because of an alleged altercation with a fellow worker. He requested the union to initiate arbitration proceedings, but the APWU refused. Bowen sued the USPS for illegally firing him and sued the union for failing to discharge its duty of fair representation under Section 301(a) of the Labor–Management Relations Act of 1947. A 5:4 majority held that Bowen was entitled to recover financial dam- ages from both the employer and the union, apportioned according to degree of fault. The Court reasoned that the union’s liability begins at the time when final resolution of the dispute would have been obtained through the grievance proce- dure, had the union fully represented the employee. Thus, the employer’s liability is limited, but the union could be held responsible for back wages for years, as a case slowly makes its way through the courts. One outcome could be union bankruptcy. Another result of Bowen is that unions, to the consternation of management, now tend to err on the side of caution by carrying even meritless grievances all the way to arbitration, with some inevitable congestion and delay in the grievance process.

Bowen sounded a warning bell for unions at all levels of government, but it applied specifically only to postal workers covered by the Labor–Management Relations Act. A 1989 U.S. Supreme Court decision held that other federal employ- ees cannot sue their union for breach of the duty of fair representation because an administrative remedy (the FLR A) is provided for by the Civil Service Reform Act (CSR A) of 1978 (Karahalios v. NFFE [1989]). At the state and local levels, state courts and public employee relations boards make determinations concerning the duty of fair representation.

IV. Grievance Arbitration Any grievance procedure is intended to provide strong incentives for the parties to settle quickly. Both generally want to avoid the trouble and expense of a prolonged grievance and to maintain a healthy, cooperative labor relations environment. Inevitably, however, some grievances are not easily resolved. For these troublesome cases, grievance arbitration (also known as rights arbitration) is used as the final step in meeting the complaint. As other dispute resolution procedures, grievance arbitration has the role of preventing strikes and other labor actions. In addition,

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grievance arbitration has developed a role as a substitute for litigation of public law claims (Malin 2010).

In grievance arbitration, an outside neutral is brought in by the parties to review the facts and hear the evidence and testimony favoring each position. The union attempts to show that the contract, language, precedent, or past practice covers the facts of the grievance and that the action taken by management was inappropriate in light of these considerations. Management presents similar evidence to justify the implemented measures. The role of the arbitrator, then, is to render a final binding judgment based on presentations of the evidence and the language of the contract.

Grievance arbitration was first used in the United States in 1871 in the coal industry. It gained widespread acceptance throughout the private sector during World War II as a technique strongly advocated by the War Labor Board to avoid the time and monetary costs of taking contract disputes to the courts. Grievance arbitration was granted formal legal status in Section 203(d) of the Taft–Hartley Act and received further protection through a series of Supreme Court cases known as the “Steelworkers trilogy” (see discussion in Section IV.B), which set down the doctrine that arbitration awards are not subject to review in the courts unless due process has been denied or the arbitrator has exceeded his or her authority. Today, grievance arbitration has achieved almost universal acceptance in union- ized settings in the private sector and is used in many government settings as well. Arbitration of grievances is required in the federal sector as a final step in the nego- tiated grievance procedure.

Although widely used, grievance arbitration, like interest arbitration, has been condemned by critics as an illegal delegation of government authority to an out- side party who is not responsible to the citizenry or to elected officials. There are alternative public sector forums for the binding settlement of grievances, including civil service commissions, state or local government grievance committees, state labor agencies, federal or state equal employment opportunity commissions, and the courts. Although the practical effects of such arguments have been few, the courts generally have held that public sector grievance arbitration is not legal unless specifically pro- vided for in appropriate enabling legislation (Bowers 1976: 35).Where enabling legis- lation exists and the parties consent to the binding arbitration of grievances, as long as the arbitrator does not exceed his or her legal authority in making the decision, the courts have generally held that grievance arbitration is legal and desirable.

A. Arbitrability Before a grievance can be taken to binding arbitration and the merits of the case considered, the dispute must be found to be arbitrable. In other words, the dis- putants must have agreed to place the case before the arbitrator and the arbitra- tor must have the requisite authority to rule. Claims of nonarbitrability are most often made by management, whose previous decision or action is upheld when arbitration is denied. Claims of nonarbitrability may be raised on procedural or

Living with the Contract ◾ 323

substantive grounds. A determination of procedural arbitrability depends on the extent to which there has been compliance with the requirements set forth in the contract for filing and processing grievances. Substantive arbitrability refers to whether the agreement and the law include or specifically exclude the issue(s) in question from arbitration (Bowers 1976: 65).

Examples of procedural arguments against arbitrability include failure to sign the grievance or submit it in a timely manner, failure to cite the provision of the contract purportedly violated, or other such irregularities. The claim that a dispute should not be arbitrated because the contract has expired has not been supported by the courts as long as it can be demonstrated that the grievance definitely occurred during the life of the contract. Even when grievances are filed after contract expi- ration, grievance arbitration is usually extended as part of the continuing duty to bargain (Decker 1994: 160–162).

Substantive grounds for challenging arbitrability include the scope of the defi- nition of “grievance” in the contract, management rights, and conflicts with state or administrative rules. For example, management may claim that an employee’s copayment of a physician’s bills is to be settled by the employer and the insurance company, not by an arbitrator. Most questions of arbitrability are decided by the arbitrator, although the courts sometimes must make the determination (Decker 1994: 151). Often, an arbitrator will take arbitrability arguments under advisement and hear the merits of the case the same day so that if he decides the case is arbi- trable he can then render a judgment. This increases the risk for both parties and may encourage them to settle voluntarily.

B. Court Review of Arbitrators' Decisions The presumption of the federal courts in private sector cases has been that issues taken to arbitration should be settled by the arbitrator—not by the courts—based on the terms of the contract. Judges should not substitute their opinions for those of the arbitrator unless the arbitrator is guilty of fraud, misconduct, or gross unfair- ness, or the award violates established public policy. This basic principle was estab- lished in the Steelworkers trilogy, three Supreme Court cases in 1960 involving the United Steelworkers of America. The Court’s decisions established arbitration as final and binding and essentially exempt from court review (see Edwards, Clark, and Graver 1979: 73–77; Coleman and Vasquez 1997).

However, deference to the Steelworkers trilogy was relaxed somewhat in Alexander v. Gardner-Denver (1975), in which the U.S. Supreme Court ruled that, contrary to the trilogy, an “arbitrator’s decision is not final and binding” if a viola- tion of Title VII of the Civil Rights Act of 1964 has occurred. Thus, a grievant can pursue a Title VII case through grievance arbitration under the contract or independently in the courts. In other words, statutory rights may outweigh con- tractual rights. This principle was applied in Barrentine v. Arkansas Best Freight Systems (1981), in which the Supreme Court ruled that a grievant’s claim arising

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from statutory rights (the Fair Labor Standards Act, in this case) may be subject to judicial review, even if submitted to arbitration earlier.

Some state courts (e.g., Wisconsin and Minnesota) have adopted the trilogy standards wholesale, deciding that arbitrators, not judges, should resolve labor dis- putes. Other state courts, however, have ignored or given short shrift to the trilogy principles. Some courts have substituted a scope of bargaining test to determine the breadth of the arbitrator’s authority, juxtaposing the legal scope of bargaining and the subject of the grievance to decide whether the grievance should have been submitted to arbitration. In other states, courts have overturned arbitrators’ rulings because they violated public policy as embodied in statutes, previous court decisions, or common practice (Nicolau 1997: 261; Bodah 1999). Other grounds for setting aside an arbitra- tor’s decision are fraud or misconduct by the arbitrator. Errors of fact, law, or interpre- tation by the arbitrator are not sufficient to invalidate an award (Decker 1994: 152).

Thus, public sector grievance arbitration may lack a strong presumption of finality depending on the government jurisdiction. The use of grievance arbitra- tion could be significantly altered through court actions involving federal and state regulations, such as equal employment opportunity (EEO), disability, and occupa- tional health and safety standards, if the courts determine that certain individual rights go beyond contract stipulations (Levine 1985). In public employment, the problem is accentuated by various federal, state, and local laws that precede col- lective bargaining and provide employees with rights and remedies beyond those established in the bargaining contract.

Perhaps nowhere is this problem better illustrated than in equal employment opportunity issues, where multiple forums exist. As noted in Section III, a discrimi- nation complaint may be taken to grievance arbitration, the FLR A, the EEOC or a state or local counterpart, the federal district court, a state court, or other venues. A grievance arbitration decision is not necessarily final and binding in dis- crimination cases, which may be carried from forum to forum with de novo con- sideration in a continuing search for a finding that satisfies the grievant. A U.S. Supreme Court case, nevertheless, resolved some of the controversy surrounding binding arbitration provisions for statutory discrimination claims. In 14 Penn Plaza LLC v. Pyett (2009), the Court concluded that “a collective bargaining agreement that clearly and unmistakably requires union members to arbitrate ADEA [Age Discrimination in Employment Act] claims is enforceable as a matter of federal law.” The decision in 14 Penn Plaza LLC v. Pyett effectively allows unions and employers to waive, in favor of arbitration, the right of employees to a judicial forum for statutory discrimination claims (Twomey 2010).

C. Selection of the Arbitrator Like interest arbitration, grievance arbitration may be conducted by a single neutral or by a tribunal. Three- or five-member arbitration panels usually are composed of each party’s appointees and one or more mutually agreed-upon third-party neutrals.

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Tribunals offer the opportunity for a full accounting of relevant information and arguments by the parties. The advocate-members can clarify their parties’ positions, identify possible problems with a proposed award, and even negotiate a settlement. The single arbitrator is less expensive and more expeditious in issuing a decision— an important advantage that helps account for its substantially greater use (see Veglahn 1987).

Grievance arbitrators, like interest arbitrators, are usually selected from rosters provided by the American Arbitration Association (AAA), the National Academy of Arbitrators, the Federal Mediation and Conciliation Service (FMCS), the rel- evant state agency, or a local bar association. The organizations furnish manage- ment and the union with biographical information on prospective arbitrators. AAA biographical sketches include such pertinent background information as experi- ence, qualifications, and fees. FMCS’s Arbitration Information Tracking system provides a computerized biographical data retrieval system, updated after each case decided by an arbitrator, and rotates FMCS arbitrator designees for panel referrals to encourage balanced use of qualified neutrals. These services are provided free by FMCS. Generally, whereas both the union and management are very interested in the arbitrator’s track record, years of experience, and demographic traits, such data are of limited utility in predicting an arbitrator’s decision (Kauffman, Vanlwaarden, and Floyd 1994). Ordinarily, if the parties are unable to agree on a selection, they will strike names from the FMCS or AAA list until only one remains. Lists typi- cally contain five to seven names.

All arbitrators, regardless of the list on which their name is found, must be paid for their time. Compensation usually varies from $1000 to $3000 per day, depend- ing on the reputation, experience, and demand for individual arbitrators and the nature of the case. Additional costs of arbitration include the filing fee; arbitrator’s meals, lodging, and travel; and payment for researching and writing the opinion.

Arbitrators vary in their academic training, but most hold graduate or pro- fessional degrees and are associated with universities in some manner. Many are based in law schools. The heavy involvement of law school faculty and attorneys has been vigorously criticized by those who claim that lawyer-arbitrators tend to be too technical in procedure, overly aggressive with witnesses and the opposing coun- sel, overly reliant on precedent, and excessively concerned with winning instead of problem solving. Pro-legalists, who favor lawyers’ skills in analyzing and interpret- ing facts and information and presenting them in an orderly fashion in the court- room, defend them. Still, it is generally recognized that one does not require legal training to perform well as an arbitrator.

Excellent qualifications and pedigrees notwithstanding, new rights arbitrators have a difficult time gaining acceptance. The number of cases going to arbitra- tion has increased steadily, much faster than the number of arbitrators deemed widely acceptable by labor and management representatives. The qualified but inex- perienced arbitrator faces a catch-22 situation familiar to many university gradu- ates: one needs experience to be hired, but one cannot obtain experience without

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a job. Arbitrator selection consistently favors a relatively small pool of experienced neutrals. These arbitrators have large caseloads and, as a consequence, are slower in deciding awards.

D. Problems in Grievance Arbitration Two major grievance arbitration problems already have been alluded to: monetary costs and lengthy delays. Given a reasonably healthy labor–management relation- ship, perhaps the price of arbitration is not completely undesirable; it may inspire the parties to settle at an early stage in the process. Further economic incentive to settle a grievance before arbitration can be achieved through “loser-pays arbitra- tion,” in which the party with the weakest case must pay the arbitrator’s fees and expenses in their entirety.

When the union and its members, out of frustration or for other reasons, con- stantly file grievances, petty or otherwise, the work environment is poisoned and the union can quickly deplete its financial reserves. Sometimes, good faith and common sense are more important to the long-term relationship between the union and man- agement than is resolute attention to contract details. For example, municipal unions in Hartford, Connecticut, spawned widespread criticism by filing grievances over work done by volunteers. When students from local colleges painted some rooms in a public school, the janitors’ union forced the city to pay the janitors hundreds of dollars on the grounds that the union should have done the painting. Similarly, the American Federation of State, County, and Municipal Employees (AFSCME) local filed a grievance over volunteers painting and repairing park benches. Also, after the city hired a private contractor to clean up elephant dung tracked into the civic center by workers during a circus (city equipment could not remove the smell), the union filed a grievance. Of course, the shoe can fit the other foot as well: a recalcitrant management may constantly violate the contract, forcing the frustrated union to go broke from the expense of appeals or to go on strike in violation of the agreement.

Excessive time delay is the most maligned aspect of grievance arbitration. It may take months from the day a grievance is filed before it reaches arbitration, and then a year or more before a final judgment is rendered by the arbitrators. Such delays, some- times exceeding a total of 2 or 3 years, can lower employee morale and destroy faith in the collective bargaining agreement. As Coulson (1980: 496) explained, “Union members expect arbitration to be a swift and rational avenue of justice. Members become frustrated, alienated, and bitter when they are faced with unexplained delays, when legal mumbo jumbo keeps them from telling their story, and when the resolu- tion of their case becomes lost behind the opaque innuendoes of the lawyers.”

The grievance arbitration process, like any legal or quasi-legal proceeding, is fraught with opportunity for delay and procrastination. Quoting Coulson (1980: 496) again, there are “tedious multiple steps in the grievance procedure; delays; unnecessary formality; briefs and transcripts; … long-winded arguments by lawyers about arbitrability; attempts to keep out evidence; and adjournment, delays, and

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postponements, for reasons that often relate more to the convenience of attorneys or union officials than to the merits of the case.”

The “tedious multiple steps” Coulson refers to are similar to those in a civil or criminal court case, including the following:

1. Preparation for the arbitration hearing (assembling facts and records, obtain- ing depositions, scheduling witnesses and testimony, and other preliminary matters)

2. Setting the hearing date and format 3. Opening statements to the arbitrator 4. Presentation of the case by the initiating party (documentary evidence, wit-

ness testimony, cross-examination, etc.; transcripts may be made) 5. Presentation of the case by the responding party 6. Closing arguments 7. Preparation of the posthearing briefs (written arguments) and transmittal to

the arbitrator 8. Making the award (may consist of a single statement of findings or a sum-

mary of the hearing and the arbitrator’s reasoning in making the award)

Monetary costs and delays in grievance arbitration are considered to be more serious problems by unions than by management. Management has deeper pock- ets to pay arbitration costs, and, as observed in Section III.B, delays often result in management getting its way at least until the arbitration award is rendered. Management’s principal concern, according to a survey of users of FMCS arbitra- tion services, is the poor quality of arbitrators’ decisions (Berkeley 1989).

Another problem with grievance arbitration has to do with what happens to the grievant and his or her supervisor once voluntary or arbitrated settlement occurs. A disturbing analysis of outcomes of grievance activity in four unionized organiza- tions over 2- and 3-year periods indicates that grievants and their supervisors suffer retribution from their employers. Lewin and Peterson (1999) examined grievance activity and postsettlement outcomes in a steel manufacturing firm, a retail depart- ment store, a nonprofit hospital, and a local public school district. Results indicated that grievants’ performance ratings, work attendance rates, and promotion rates declined whereas turnover rates increased in comparison to nongrievants. Similarly, supervisors of grievance filers received lower performance ratings and promotion rates and “were significantly more likely to be terminated from their jobs than supervisors of non-filers” (Lewin and Peterson 1999: 572).

These chilling findings were not attributable to grievance filers and their supervi- sors being less competent performers than nongrievants and their supervisors because no significant differences were detectable in job performance evaluations between the two groups in years before and during the filing and settling of grievances. The conclusion, then, is that personnel involved in grievances tend to be punished, much like whistle-blowers experience retribution after they expose their employer’s

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wrongdoing. The unfortunate implication for employees who feel unfairly treated on the job is that they should suffer silently or face retribution (Boroff and Lewin 1997). The message to supervisors is to overlook minor offenses by subordinates.

E. Standards for Arbitrator Decision Making The degree of arbitrator emphasis on legal principles and procedures is a reflection of the approach taken to grievance arbitration. Those assuming a strict construc- tionist posture believe the contract should be the primary instrument governing the relationship between the parties and the decision of the arbitrator. Such an approach is likely to require procedural rules as extensive as those used in the court- room and to mandate written transcripts, court reporters, and posthearing briefs. “Problem-solving” arbitrators, on the other hand, view the contract as a document providing general guidelines for the parties and the arbitrator, with the arbitrator’s function being primarily mediative in promoting mutual accommodation between the parties. Problem-solving neutrals tend to take a more expansive and innovative approach than strict constructionists with their narrow judicial perspective.

Of course, any arbitrator’s principal interpretive duty is to make an award in accordance with the express terms and conditions of the contract and the key testi- mony, evidence, and other elements of the case at hand. The legal doctrine of stare decisis used to establish case precedent in the courtroom does not usually apply to grievance arbitration. Rather, each decision is arrived at de novo, with the existing agreement serving as the primary benchmark for the arbitration award. Among the specific case-related factors arbitrators take into account in arriving at a decision are management’s conduct and consistency in applying the language of the contract; the grievant’s work history, job performance, and seniority; procedural errors by either party; and various mitigating circumstances (Bohlander 1994; Haber and Karim 1995; Simpson and Martocchio 1997).

In attempting to interpret the contract, arbitrators sometimes find that the lan- guage is unclear or ambiguous. For example, a contract may state that leave time around Christmas should be applied for “as soon as possible.” As a commentator observed long ago, “Given the obvious pressures of labor–management relations and the steady deterioration of English prose usage, it is no wonder that collective bar- gaining agreements are generally clumsy, inarticulate, and replete with provisions that are mutually contradictory” (Rubenstein 1966: 704–705). In such cases, certain “rules of contract construction” are adopted by arbitrators, including the following:

1. The common or popular meaning of language takes precedence over a special meaning.

2. Technical words are ascribed technical meaning unless local usage clearly indicates a different intention by the parties.

3. Conflicts between general provisions and specific provisions are settled in favor of the latter.

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4. The express inclusion of certain items or guarantees in the contract means that those not listed were intentionally excluded.

5. The intent of the parties when the language was written is considered. Witnesses, notes, rough drafts, and other sources may be examined to help determine what the parties intended by certain words.

When the language of the agreement is exceedingly ambiguous or incomplete with regard to the grievance, the arbitrator must step beyond the contract to deter- mine the parties’ intent. Several standards may be used to discern the intent of the parties when they signed the agreement.

1. Past Practice

Past practice is the standard most frequently used to clear up hazy language or to guide the arbitrator when the contract is silent. A widely accepted definition of past practice is “a reasonably uniform response to a recurring situation over a substantial period of time which has been recognized by the parties implicitly or explicitly as the proper response” (Miller 1979: 203). As “the objective manifestation of the meanings the par- ties assumed at the time the agreement was signed” (Ferris 1975: 226), past practices carry great weight in contract interpretation. For example, if municipal trash collectors have been provided with cleanup time at the end of their shift for several years and the director of sanitation suddenly revokes this practice even though job conditions have not changed, an arbitrator (barring contract language to the contrary) would have strong reason for siding with the grieving sanitation workers.

2. Prior Bargaining Record

The second standard used by arbitrators to clarify contract language is the prior bargaining record of the parties, particularly when new language is confusing. Here, the neutral may examine minutes or other records of bargaining sessions, contract supplements, or, on occasion, oral testimony. A common practice is for the arbitrator to find against the party who drafted new contract language when an ambiguity forces the loss of a benefit by the other party, the logic being that the drafting party had the opportunity to avoid any potential doubt of the intended meaning of the language. Only when the drafting party can show that the other party had not been confused or misled as to the intent of the language is the draft- ing party freed of this responsibility.

3. Previous Arbitration Awards

As noted in Section IV.E, stare decisis does not have formal application in griev- ance arbitration. Each case is treated as unique. Nonetheless, prior decisions can and do exert an impact on subsequent rulings when circumstances are similar.

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Many awards are published and read by other arbitrators. Although not legally binding, such decisions are likely at least to have an indirect instructive influence on some neutrals.

A study by Dilts and Moore (2009) confirms that labor arbitrators have devel- oped a “common law” of disciplinary arbitration. This may imply that arbitrators look for guidance in the existing body of arbitration decisions. After analyzing 256 discharge and disciplinary arbitration cases, Dilts and Moore (2009) found that arbitrators consistently apply several criteria, first outlined by Arbitrator Carroll Daugherty in a 1965 decision, to decide such cases. These criteria include, among others, whether the employer conducted its investigation in a fair and objective manner; whether the employer has applied rules, orders, and penalties without dis- crimination to all employees; whether the employer gave notice of prohibited con- duct to the employee; and whether the penalty was proportional to the seriousness of the offense (Dilts and Moore 2009).

4. Other Considerations

After listening to the arguments and examining the evidence and elements of the grievance case, the arbitrator must determine which party should prevail. The parties need to construct their arguments carefully to obtain a favorable award. Research shows that arbitrators consider factors in combination rather than in iso- lation when reaching arbitration decisions (Gely and Chandler 2008). For example, arguments focused on the events leading to the disciplinary action are more suc- cessful for unions when used in combination with arguments related to the work history of the grievant (Gely and Chandler 2008). Therefore, the parties may need to provide a combination of arguments to be successful.

In most grievance arbitration hearings, the burden of proof rests with the party that brings the action. Management has the burden of proof in disciplinary and discharge cases, whereas the union normally shoulders the burden in contract inter- pretation issues. Studies have shown that the party bearing the burden of proof loses more often than it wins, no doubt because “it is more difficult to prove a claim than to refute it” (Dilts and Leonard 1989: 340). Interestingly, an early study showed that public sector grievants tend to fare better than private sector grievants in winning cases (Mesch 1995). Research that is more recent finds that the origin of disciplinary cases, public or private sector, is not significantly related to case outcomes (Dilts and Moore 2009).

In addition to legal factors, nonlegal factors may have an effect on arbitration outcomes. Like decision makers in all settings, arbitrators often unconsciously filter case information through their sets of personal values. If they permit their personal values to influence their decisions, arbitrators can be guilty of bias. For example, alcohol abusers are often treated more sympathetically in substance abuse discharge cases than are abusers of illegal drugs. The alcoholic tends to be viewed as a person suffering from an illness, but the illegal drug user is held personally responsible for

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misbehavior. Yet, most contracts do not distinguish between the use of alcohol or other “intoxicants” on the job (Thornicroft 1989).

Does the grievant’s gender matter? The evidence is inconclusive. Early studies found that women were more likely than men to win their grievances (Bemmels 1988). The implication was that arbitrators, who are predominantly male, tend to give women preferential treatment (as do judges in criminal cases). More recent research finds either no gender-associated differences in arbitration outcomes (Steen, Perrewe, and Hochwater 1994; Dilts and Moore 2009) or, at least in one study, that women lose more cases than men do (Mesch 1995). If male arbitrators once acted paternalistically toward female grievants, perhaps they are now sensitized to avoid gender bias. In general, the arbitrator’s gender, experience, training, and occupation are not important determinants of case outcomes (Zirkel and Breslin 1995).

V. Grievance Procedures in Federal Employment No uniform system for handling federal employee grievances was established until President Kennedy issued Executive Order 10988 in 1962, directing all federal agencies to develop grievance and appellate procedures, including, if desired, advisory arbitration as a final step. Final decision-making authority on grievance systems continued to reside with agency heads, as they were free to reject the advi- sory opinion of an arbitrator. Meanwhile, grievants could process their complaints through regular, preexisting agency procedures if they so desired. This bifurcated system was roundly criticized by both unions and management, and the absence of a final and binding step short of unilateral management action was a source of particular discontent for the unions.

The inadequacies of the federal grievance procedures were addressed in President Richard Nixon’s Executive Order 11491 (E.O. 11491) of 1969, which permitted nego- tiated procedures, including binding arbitration, to serve as the exclusive method for resolving grievances over the life of the contract. A subsequent amendment to E.O. 11491 (E.O. 11616) mandated negotiated grievance procedures in all federal labor–management contracts. Under these executive orders, federal agencies and their unions established step-by-step procedures similar to those in the private sector and state and local governments, with many of them culminating in binding arbitration.

Federal grievance procedures today are provided for in Title VII of the CSR A of 1978, which incorporated many of the executive order provisions. Under the CSR A, federal employees and their unions are guaranteed the right to present and process grievances under either the negotiated system or regular agency statutory procedures, but not both, for cases involving demotions, dismissals, and other adverse actions.

The negotiated grievance procedure is the only channel available to employees in the bargaining unit for matters covered solely by the contract. Complaints involv- ing discrimination, occupational health and safety, and other matters addressed in

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federal laws may be processed through the contractual procedure without prejudice to subsequent review of the case by the EEOC, the MSPB, or the federal courts. A federal arbitration award may be appealed by either party to the FLR A on grounds that the terms of the award conflict with existing statutes or agency regulations, the arbitrator exceeded his or her authority, the award was not taken from the written contract, the arbitrator was biased or refused to hear pertinent information, or the award was based on incomplete information (Edwards et al. 1979). The award must be appealed within 30 days or it becomes final. All federal labor agreements today must provide for some form of final binding arbitration. A majority stipulate that a single arbitrator is to be chosen from lists provided by the AAA or FMCS and that arbitration costs be shared by the parties.

Although the grounds for contesting arbitration awards are fairly narrow, and appeals pertaining to adverse actions by management may be taken directly to the federal courts, a relatively high percentage of federal awards are appealed to the FLR A (Frazier 1986), causing case backlogs. The FLR A usually upholds the arbitrator’s decision.

Generally, the federal grievance process has not received great acclaim. Frivolous and frequent complaints clog up a system that becomes plagued by high costs and cumbersome, lengthy procedures; options for informal resolution of problems at an early stage are scarce (Roberts 1994; Sulzner 1997).

VI. New Directions in Grievance Handling Criticisms leveled at conventional grievance procedures have led to a search for reforms and alternatives that would be faster, simpler, and less expensive. One reform, known as expedited arbitration, essentially speeds up existing arbitration processes. Other new directions in handling grievances are characterized by the term “alternative dispute resolution.”

A. Expedited Arbitration Expedited grievance arbitration (also known as “instant arbitration”) is designed to reduce the time and monetary costs of resolving grievances. It was first used in the private sector in a 1971 contract between 10 steel producers and the United Steelworkers of America to reduce a large backlog of unsettled grievance cases. In public employment, expedited arbitration was initiated in a 1973 contract between postal workers and the USPS.

Expedited arbitration systems vary from place to place, but most are character- ized by the following:

1. Cases are screened to identify routine, nonprecedent-setting grievances; such cases are then sent on to expedited arbitration.

2. An informal atmosphere is maintained, with no transcripts or written briefs.

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3. The arbitrator must issue the award within a very short period of time (often following a brief recess or 24 hours).

4. The award is written in one page or less. 5. The arbitrator may hear more than one case in a single day. 6. Costs are low and are shared by the parties.

Expedited arbitration differs from conventional grievance arbitration in its informal, nonjudicial atmosphere and the more timely nature of the proceedings. Expedited arbitration is not intended to replace regular arbitration, but rather to be used in conjunction with it for quickly resolving less important or minor grievances.

A large accumulation of minor disciplinary cases persuaded the USPS and four major unions to implement expedited arbitration on an experimental basis in 1973. Within 2 years, the backlog had been reduced substantially (Frost 1978: 468). Today, expedited arbitration in the USPS begins with a national screening committee that assigns grievances to expedited or regular arbitration. Cases to be expedited are listed with the FMCS or AAA for assignment by those organizations to individual arbitrators. Decisions may be issued either orally or in a one-page written form required within 48 hours of the completion of the hearing. Awards may not be used as precedent for subsequent cases.

Although expedited arbitration in the USPS has recorded time and cost savings, some difficulties have arisen. Initially, there was a high rate of resignations by arbi- trators who felt overburdened by the pressure of hearing up to three cases per day, although the dropout rate decreased considerably as arbitrators became more accus- tomed to the procedure. In addition, like other grievance procedures, expedited arbi- tration suffers from a shortage of trained personnel. However, the USPS instituted a training program in conjunction with the AAA that has helped alleviate this problem.

Although critics have charged that expedited arbitration discourages joint prob- lem solving between the parties, and that the lack of precedent and written decisions discourages uniformity in arbitration awards, the process offers important advantages. When routine, relatively uncomplicated complaints are processed, there should be lit- tle or no loss of decision quality. Grievances concerning job reinstatement or back pay are especially suited for expedited arbitration because the rapid decision diminishes the financial liability of the employer while ensuring that a wronged employee receives what is coming forthwith. Expedited arbitration does cut costs and reduce delays in settling grievances. A popular adage holds that “justice delayed is justice denied.” As long as its limitations and proper applications are understood, expedited arbitration can help public employees receive a fair and timely hearing of their grievances.

B. Alternative Dispute Resolution Labor–management conflict tends to escalate. Conflict may grow directly, such as through increasingly vitriolic confrontations, or indirectly, through ignoring the con- flict until the problem inflates into significant proportions. As noted in Section IV.D,

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the conventional grievance processes, court actions, and regulatory procedures are likely to be time consuming, expensive, and frustrating. In these adversarial pro- cesses, for every winner there is a loser. The basic premise of ADR is that labor and management representatives can constructively confront issues and mutually explore their fair resolution. Conflict is viewed not as warfare, but as an opportunity to develop positive outcomes that reasonably satisfy both parties (Faerman 1996).

ADR includes a variety of processes and mechanisms that involve joint decision making in which the parties, with the assistance of a facilitator or mediator, work through their problems until they find a settlement with which they can live. Hence, grievances are resolved before they move to arbitration. The relationship between the parties does not suffer from adversarial engagement; ideally, it even improves.

C. Grievance Mediation Grievance mediation involves intervention by a neutral mediator into a potential or actual impasse over the application or interpretation of contract terms. The goal of grievance mediation, like mediation of interest disputes, is for the neutral to help the parties resolve their differences voluntarily. The mediators act much as they would in an interest dispute, meeting individually and jointly with the parties to try to devise a mutually acceptable settlement. Grievance mediators may use their knowledge of the facts to convince the party with the weaker position to settle instead of going to arbitration (Caraway 1989: 496). Like mediators of interest disputes, grievance mediators may use directive, nondirective, or a combination of both strategies to facilitate a settlement between the parties.

Grievance mediation offers cost savings because it avoids arbitrator fees, attor- neys’ fees, travel, and related legal costs. Cost advantages also accrue because griev- ance mediation is a much faster process than arbitration. Goldberg (2004) found, for example, in a private-sector context that grievance mediation took on average 43.5 days to complete compared to 473 days for arbitration. The mediator operates in a relatively informal and highly flexible atmosphere free from the procedural constraints placed on an arbitrator. The mediator’s proposed solution, for instance, normally does not have to be reduced to writing, and case preparation is much less thorough. Monetary savings are particularly significant for federal sector grievance mediation, where the FMCS will furnish a mediator to the parties without charge, and in state and local jurisdictions that avail themselves of FMCS services or free mediation aid from the state labor relations agency. Even when mediators must be paid, savings over arbitration may easily run into thousands of dollars.

An additional advantage of grievance mediation is that it sets no precedents for future contract interpretation. If, for example, a grievance arises over an issue that has not fully ripened, such as discrimination against a domestic partner, it may be more advisable to mediate a settlement than arbitrate it because the binding feature of arbitration may cause future problems. Thus, grievance mediation allows a new issue or problem to develop more fully before a precedent-setting ruling addresses it.

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Users of grievance mediation (both grievants and management) report greater satisfaction with the final resolution of the dispute than do those who go to arbitra- tion. The process is much less adversarial and combative than arbitration. It relies on joint problem solving by the parties, who may explore a variety of options with- out risking anything even if arbitration must ultimately be employed. The mediator helps the parties sort out the key issues from the less important ones and to discover where their true interests reside. Then, the mediator helps develop a solution that satisfies the interests of both parties (Kriesky 1994: 243). Favorable results have been reported from California (Caraway 1989), Massachusetts (Bonner 1992), Michigan (Gregory and Rooney 1980), Ohio (Nelson and Uddin 1995: 208), Washington (Skratek 1987), the USPS, and several federal agencies.

The USPS has been a leader in grievance mediation, implementing a number of pilot projects during the 1990s. For example, under the REDRESS program (Resolve Employment Disputes Reach Equitable Solutions Swiftly), members of bargaining units are offered an alternative to the conventional EEO complaint process (USPS 2013). Within 2 weeks of receiving a request, the USPS schedules mediation. The Justice Center of Atlanta selects and sends an experienced neu- tral to the USPS facility. The employee may choose to be represented by a private attorney, a union representative, or a coworker. The mediator applies interest-based techniques to help resolve the dispute. If mediation fails, the employee may return to the conventional EEO process.

A 72.3% case closure rate was recorded for the REDRESS program (Bingham et al. 2009). Rather than achieving a maximum number of settlements, the pri- mary aim of the REDRESS program is to have a positive, transformative effect on the relationship between management and employees. Therefore, the case clo- sure rate, in addition to cases in which the parties settled their disputes through mediation, includes cases in which the parties reached an agreement within 30 days thereafter and cases in which the complaining party dropped, withdrew, or failed to pursue the case further (Bingham et al. 2009). REDRESS users reported satisfaction with mediators, outcomes, speed of outcomes, as well as with their ability “to control the process, present one’s views and participate in the process, and receive respect and fair treatment from the mediator” (Bingham 1997: 29; Bingham et al. 2009). A study that compared the REDRESS mediation model to the EEO complaint process and grievance arbitration found that employees were more satisfied with the mediation process than with the other two dispute resolu- tion procedures (Bingham et al. 2010).

Reports on grievance mediation experiences in state and local governments also indicate substantial savings in time and money, remarkably high rates of settle- ment, and overall satisfaction with the process on the part of both unions and management (Kriesky 1994: 244–245).

Are the much-touted benefits of grievance mediation as great as reported? Feuille (1992) has raised questions about the accuracy of reported time and monetary savings. He suggested that a large proportion of the grievances sent to mediation

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would not have been arbitrated anyway because of being dropped or settled before arbitration. Moreover, he has proposed that the existence of mediation might keep grievances “alive” longer and thereby increase total costs. Thus, the purported ben- efits of grievance mediation could be illusory (Feuille 1992: 137–139).

There are other disadvantages to grievance mediation. There is the predict- able shortage of trained neutrals. Arbitrators appear to be unsuitable for grievance mediation chores because of a basic professional conflict of interest: if grievances can be settled at a low cost through mediation, fewer cases will pass on to arbitra- tion and as a consequence the income of arbitrators will atrophy. Also, the lack of a written record and formal procedures makes grievance mediation inappropriate for seminal, precedent-setting cases or complex EEO-type cases that can be litigated beyond the contractual procedures.

Other ADR methods include the ombudsman and peer review. The ombuds- man is a neutral third party designated by an organization to assist a grievant in resolving a conflict. The ombudsman may provide counseling, help develop factual information, and attempt to reconcile the disputing parties through his or her pow- ers of persuasion. Usually, the ombudsman is hired by the organization to work full time at resolving conflicts.

In peer review, a panel of employees (or employees and managers) listens to the parties’ arguments and reviews evidence to decide an issue in dispute. The decision of panel members, who receive training in handling sensitive issues, may or may not be binding on the parties (U.S. General Accounting Office 1997).

VII. Conclusion Labor and management alike share important responsibilities to ensure that they and their constituencies live with the contract in a reasonably efficacious fashion. In a healthy cooperative relationship, they eschew “brinkmanship,” constantly pushing grievance procedures to the final step in an effort to make the other side blink. Both parties strive to ensure that their representatives in labor–management relations, especially supervisors and union stewards, are well trained in grievance handling and intimately familiar with the terms and conditions of the agreement. Both explicitly seek to keep communication channels open and clear and resolve grievances at the lowest level possible. Finally, both strive to keep time and mon- etary costs low.

Each party has its own special responsibilities in effectively administering the agreement and handling grievances. For its part, management should monitor the behavior of supervisors in administering the contract to ensure negotiated griev- ance procedures are functioning properly and grievants receive a fair hearing. Management also should be willing to admit when it is wrong.

Union representatives should carefully screen employee complaints and drop those that are petty, and at the same time take great care to ensure that valid

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grievances receive a fair hearing. The union must also take caution to represent each member of the bargaining unit with the same energy and dedication, whether a member of the union or not. Conflict on the terms and conditions of the contract is both inevitable and healthy. The goal is to manage that conflict productively and avoid damaging the long-term relationship between the parties.

Case Study 10.1 Chain of Custody

On March 1, the city of Garden Way hired Thelma Woodall, age 23, as an administrative assistant in the office of the mayor. Thelma was the top candidate among those interviewed for the job, and she appeared to be a bright, energetic, and personable employee.

Garden Way had recently begun a mandatory drug-testing program in which all essential and confidential employees are randomly screened for illegal drug use. Thelma was tested on May 3, and her urine sample was positive for marijuana. At first, Thelma denied using marijuana, but finally she admitted taking two puffs on a reefer at a party on February 10. She said it was the only occasion she had ever used any prohibited substance.

Thelma was discharged both for the positive drug test results and for initially lying about her drug use. She appealed through the grievance procedure and was represented by her local AFSCME unit. In arbitration, management introduced as evidence the two reasons for Thelma’s discharge along with the fact that she was still a probationary employee. The union introduced evidence that a significant chain-of-custody prob- lem existed with the urine sample and asserted that the sample could not be traced conclusively to Thelma. Additionally, the union stated that Thelma’s drug use occurred before she was hired, that it took place off the job, and that her performance on the job to date had been excellent.

QUeSTIONS 1. If you were the arbitrator hearing this case, explain what

your ruling would be and the reasons you would give for your decision.

2. Explain what additional evidence, facts, or testimony you would seek.

3. Is it fair and reasonable to discharge Thelma, given the circumstances of the case?

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Case Study 10.2 The Arbitration Case of Keyshaun King

Keyshaun King, a motor pool mechanic, had been a good employee for more than 7 years. But he was fed up with Billy Barnhill, another mechanic. Barnhill was a bumbler, always drop- ping tools, nicking hoses, and banging bumpers. However, he tended to do okay when closely supervised. He had occasionally made comments to King and other African American workers that could be interpreted as racist, but they tried to overlook his insensitivity in the interest of positive workplace relations.

King had tried his best to be tolerant, but on August 2, when Barnhill’s wrench slipped from an alternator and smacked into King’s cheek, leaving a 2-inch gash and a certain bruise, King’s patience evaporated. In pain, King grabbed the wrench from Barnhill and pushed him away. Two other employees heard King yell in pain and saw him grab the wrench and shove Barnhill.

Barnhill took exception to King’s reaction, muttered “You people are all alike!” and marched into the shift supervisor’s office to report the incident, asserting that King had attacked, assaulted, and threatened him. The supervisor, Jimmy Jackson, dismissed Barnhill and called King into his office. “What hap- pened, Keyshaun?” he asked. King admitted seizing the wrench with one hand and bracing against Barnhill’s shoulder with the other. He also related what he heard Barnhill say. Jackson sent both employees home for the day.

Jackson was aware that Barnhill was borderline incompe- tent, but he had had no cause to take disciplinary action against him until now. He liked Barnhill’s loyalty and dependability along with his willingness to pitch in and work overtime when needed, but this incident troubled him. Was there just cause to fire one or both of them? Or would a lesser disciplinary action be more appropriate?

Jackson went to the employee manual, where he read the following passage:

Just cause shall serve as the basis for disciplinary action and includes, but is not limited to: dishon- esty, inefficiency, unprofessional conduct, falsifica- tion of records, fighting, racial or sexual taunting, violation of city policy, destruction of property, or possession or being under the influence of alcohol or narcotics.

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He would have to take the issue to higher management authority, the chief motor pool supervisor.

The chief supervisor, Hank Hawkings, was known as a hard ass. He had recently dealt with another physical altercation on a different shift, for which he fired both combatants without a hearing. This case did not appear to be terribly distinct; so, in the interest of consistency, Hawkings called each worker into his office the next morning when they reported to work and sacked them both.

King and Barnhill both appealed the action. You are the grievance arbitrator.

QUeSTIONS 1. Which arguments should be given greatest weight: those

based on the employee manual, those based on the col- lective bargaining agreement, or mitigating factors given by the grievant and his witnesses? Explain.

2. How might “unprofessional conduct,” “taunting,” and “fighting” be defined? Explain.

3. How would you rule in this case? Explain the reasons for your decision.

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Chapter 11

Public Employee Unions in the Future

I. Introduction Like a prizefighter on the ropes trying to survive and recover, unions in the United States are in danger of a technical knockout. Private sector labor organizations have been buffeted by many forces during the past half century and, as noted in Chapter 1, they seem to be headed down for the count. Public employee unions have been rocked by blows as well but will survive to finish the fight. Following a brief discussion of the steady decline of private sector unions, this concluding chapter examines the growing challenges and seemingly shrinking opportunities for unions in government.

II. Decline of Private Sector Unions For some 60 years, labor union membership in the private sector workplace has been falling. At the apex of union density, one-third of the nation’s nonagricultural workers were members of unions. The proportion had fallen to about 12% by 1990 and dropped to a meager 6.6% in 2012. Despite occasional excitement and expres- sions of hope in the labor community, the promises of more vigorous national leadership, and the optimistic writings of some labor scholars, the labor movement is in a much weakened position today.

As we observed in Chapter 1, the fading fortunes of private sector unions have brought forth an abundance of discussion, debate, and scholarly research.

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Membership decline is attributed to far-reaching economic changes in the United States and abroad that have both shifted jobs from high-wage, union-friendly locations to low-wage, union-hostile places in the United States and abroad and also altered the composition of the labor force and the very nature of work itself. Union leaders and sympathizers lay the blame on an unfavorable national legal environ- ment that constrains organizing and encourages bias against unions, the antiunion posture of corporate media (Martin 2003), and aggressive management opposition and “union busting” (Greenhouse 2008). Critics suggest that old-style, self-serving union leaders have failed to steer their organizations successfully in the new eco- nomic climate, have faltered badly at organizing new members, and, through cor- rupt actions, have been their own worst enemies when it comes to cultivating public support for organized labor (Coombs and Cebula 2011).

If one thinks of organizations as living organisms struggling for growth and survival, one understands that they must grow or simply maintain their resources and strategically adapt to the inevitable and unceasing changes and turbulence in their environment (Kearney 2003). Those that do adapt successfully will grow and prosper. Those that fail to do so will follow the dinosaurs into eventual extinction. But powerful forces aligned against effective adaptation tend to produce organi- zations that are “prisoners of inertia” (Raskin 1986: 4). There are internal con- straints against upsetting prevailing economic and political relationships. There are exchange relationships that benefit organizational leaders and internal groups, but which can contribute to the displacement of primary organizational goals. And there are external forces that push an organization toward inertia and staleness, such as public policy barriers, economic limitations, and constraints of legitimacy (Hannan and Freeman 1977).

All of these and more have combined to hamper private sector unions. Structural shifts in the nature, location, and technology of employment have an impact on a union’s ability to recruit new members and maintain membership strength. Today, a growing proportion of jobs are not linked to the traditional workplace, but rather to information technology and the “virtual office.” Many jobs are temporary or part time. The world today, in the memorable phrase of Tom Friedman (2007), is “flat.” Anything can be made anywhere and sold everywhere, and information flows freely through the Web. In the United States, changes in social and political values have elevated individualism and the pursuit of wealth over the values of social equity and collective action that nurtured unionization. Public policy under the National Labor Relations Act (NLR A) is something less than conducive to unionization and collective bargaining (Forbath 1991; Dunlop Commission 1994; Greenhouse 2008). Under Bush administration appointees (2000–2008), the NLR A was con- sistently hostile toward unions and collective bargaining. For example, its rul- ings extending collective bargaining exemptions by expanding the definition of “supervisor” cost a large number of union members their bargaining rights. Even a Democratic Congress and president proved unable to muster action to level the playing field for unions during the immediate post-Bush years. Unions hung their

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hopes on the proposed Employee Free Choice Act, which would have established the right of employees to win union representation through majority sign-up rather than by secret ballot elections. (Unions assert that elections permit employers to routinely bully workers with threats of losing pay, benefits, or even their jobs.) But the Employee Free Choice Act has failed to pass Congress on at least five occasions, and there is little expectation that it will be adopted in the near future.

The revitalization of the AFL–CIO under the leadership of John Sweeney (1995–2000) raised hopes of boosting the fortunes of unions, but those hopes were soon dashed against the rocks of an intense internal crisis in the AFL–CIO that resulted in several large unions bolting from the federation. As noted in Chapter 1, these rebel organizations, including Service Employees International Union (SEIU), UNITE-HERE, and the Teamsters, established their own umbrella orga- nization called Change to Win. The new organization, later joined by the United Farmworkers of America, differs fundamentally with the AFL–CIO over how to strengthen the labor movement. In addition to bestowing friendly candidates with campaign donations, Change to Win believes that a priority should be to strengthen and grow union membership through aggressive organizing. The key targets have been low-wage service workers in child care and health care.

Organizing successes have been recorded in health-care and other service sectors and among freelance workers. The fast-growing Freelancers Union counts 200,000 members, but members pay no dues and have no collective bargaining rights under the NLR A (they are “independent contractors”) (Greenhouse 2013). The influence of private sector unions in the national political arena remains potent. Still, the political strength of Republicans and some conservative Democrats in Congress has mitigated the possibility of significant union breakthroughs in public policy.

Some of the responsibility for the failure of private sector unions to adapt to their changing environment must be laid at the feet of unimaginative, reac- tive, and, in some situations, self-interested and corrupt union leadership. Labor, “neck deep in its own failures and betrayals, corruptions, and bad faith” (Fraser 1998), has poisoned its own well, as illustrated by the frequent involvement of the International Brotherhood of Teamsters, the International Longshoremen’s Union, and others in sordid scandals and entanglements with organized crime. But in the final analysis, the toxic combination of corporate resistance and unfavorable labor policy has choked private sector unions in a death grip.

Unions have broken free of even more severe constraints in the past than those they confront today, such as the repression of unionization under the criminal conspiracy doctrine in the early 1800s and the violent suppression of strikers by company-hired goon squads during the 1870s. Hope springs eternal for many labor supporters. If private sector unions could truly pull themselves out of the doldrums and shake off the bureaucratic and other rigidities that constrict them and demon- strate their continuing relevance to the new labor force, membership and resource growth would follow (Shostak 1991; Getman 2010). More broadly, labor must rede- fine its mission as one that moves beyond “more” and toward equating the goals and

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purposes of the union with those of a broader, more mobile, and “sector-shifting” aggregation of prospective members. Organized labor must, in short, offer coherent narratives and incentives to the nonunion workplace to bring its members into the ranks of organized labor. Meanwhile, it would not hurt to organize the union vote to elect more prolabor congressional candidates (Zullo 2008).

In the opinion of the authors of this book, the downward spiral of private sec- tor unions is unlikely to be reversed in any sort of meaningful way. The forces aligned against them are numerous and powerful. Moreover, the economic crisis of the Great Recession unleashed a coordinated attack on unions in all sectors that was reflected in sharply falling public opinion of unions, according to independent surveys (Pew Center for the People and the Press 2010). Favorability ratings have declined across most partisan and demographic categories but particularly among Republicans and political independents. The social construction of labor unions as unnecessary, corrupt, self-serving, and parasitic appears to have penetrated the national discourse (see Lichtenstein 2012).

III. Challenges for Public Employee Unions Like their counterparts in the world of business, unions in government also con- front challenges. Although they have not yet experienced the downward spiral suffered by private sector organizations, public employee unions reached a mem- bership plateau during the early 1980s. For the past two decades, they have been weathering an uncomfortably high level of public and legislative attacks manifested through calls for outsourcing and privatization of public services, citizen resistance to paying taxes and fees, negative public opinion about government and its workers, and legislative rollbacks of longstanding collective bargaining rights. For purposes of discussion, the principal challenges confronting public employee unions may be categorized as fiscal, structural, public policy, and strategic.

A. Continuing Fiscal Squeeze Following decades of steadily rising revenues, spending, and employment, govern- ments at all levels have experienced lengthy periods of retrenchment. Even dur- ing periods of strong national economic prosperity, government growth has been moderate. The federal budget was finally balanced in 1998–1999, only to soar to record deficits in 2012. The Great Recession provoked powerful pressures for tax cuts, exposed the financial weakness of Social Security and Medicare, and elevated the persistent policy problems of Medicaid funding, illegal drugs, public education, environmental protection, and criminal justice, among other priorities. Federal, state, and local budget cuts resulted in hundreds of thousands of public employee layoffs. The flow of federal dollars passed through to the states and localities was turned down in volume. Proposals to raise new state and local revenues to relieve

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these budget and policy problems have been extremely difficult within the context of taxation and expenditure limitations, fervent antitax sentiment, and high rates of unemployment that persisted until late 2012. And most troubling of all is that these fiscal problems are not just temporary. State and local governments in particular will encounter structurally induced budget weakness for years to come unless tax and spending reforms dramatically rearrange their fiscal houses. Democratic and Republican legislators and chief executives alike understand this situation and are forced to deal with it in ways unfavorable to unions and their membership.

The implications for public employee unions are not positive. Compensation increases have been absent or modest in most jurisdictions. State and local employ- ment has dropped sharply even in growing jurisdictions, depressing union member- ship figures. Contracting out government services to private and nonprofit providers has displaced public employees’ jobs across the country. As unwilling pawns in political conflicts between elected officials, top administrators, and angry taxpay- ers, public workers have learned the hard way that the job security that once char- acterized public employment is little more than a fond memory today and that long-promised pension and health-care benefits were a mirage in places such as California, Colorado, Massachusetts, and Ohio. Downsizing, decentralization, and privatization demands brought forward under the New Public Management (NPM) banner have damaged morale in many settings and placed public employees in diffi- cult and uncertain situations (e.g., Kearney and Hays 1998; Katz 2012). Many state and local employees (particularly teachers) are finding few reasons to stay on the job and have been opting for retirement at alarming levels (Bauer 2011; Davey 2011; Maynard 2011b). The implications are negative for government and citizens alike, as agencies lose critical employees and their reservoirs of institutional memory.

For the unions, these trends have important implications. First, membership rolls have declined in many jurisdictions, with a corresponding weakening in union financial resources and bargaining power. Second, fiscal constraints mean that unions are able to do less for the members of their bargaining units in terms of wages and benefits, no matter how fiercely they engage in the political arena and at the bargaining table. Ironically, public employees may perceive the need for collec- tive representation most strongly during times of government fiscal stress, but they may also see unions as less able to deliver the goods for them.

B. Structural Challenges Like the business sector, the public sector is experiencing new global economic, political, and social forces. Among the most critical of these forces for public employees and their unions are technological change, the attractions of a market economy that has produced a resource shift from government to the private sector, and the new demographics of the workforce.

Public employee unions enjoyed some of their greatest early success in organizing blue-collar and office workers who discharged job tasks that essentially replicated

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those in the private sector. Gradually, however, technological innovations have made it increasingly feasible to replace such employees with machines or software. The character of much government work (e.g., police and fire protection, classroom teaching, and social service casework) makes technological substitution for labor problematic. But new technology and software has supplanted some public employ- ees, in areas such as printing and production, HR and financial, data entry, and sanitation collection. Some governments have outsourced data entry, call centers, and other mundane activities to India and other countries. There are many other examples of technologically driven attrition, and additional ones will emerge. For unions to maintain their levels of membership and financial resources, members displaced by technology must in turn be replaced by signing up new members or establishing new bargaining units for previously nonrepresented workers.

A second structural threat to unions is a shift in ownership, management, financing, or control of public services from government to the private economy. A multiplicity of forces, including tax resistance, negative public opinion toward government, public worship of the private marketplace, and the NPM movement, are conspiring to transfer government functions and activities to the private and non- profit sectors. These powerful forces, augmented by the common perspective that, at least in theory, nearly all of the work of government could be accomplished by private and nonprofit service providers, represent a serious threat to public employee unions.

The negative effects of privatization and outsourcing on public employee unions are obvious. Privatization depresses public employment and union membership. Many of the jobs being outsourced are those of direct service providers such as counselors, caseworkers, laborers, and corrections officers. Other common exam- ples of contracting out are water services and sanitation. As a result, the relative proportion of predominantly nonunion professional and administrative positions is growing. Privatization’s effects are registered with every public job lost to a private or nonprofit provider. For example, several states have turned over various com- ponents of welfare program administration to private contractors, placing at risk an estimated quarter of a million government social service jobs. In the embattled public education community, thousands of teaching jobs have been lost to private schools as voucher plans are adopted. Despite such general affection for privatiza- tion, there is little evidence of genuine cost savings. For instance, a recent meta- analysis of 38 studies on water provision and solid waste collection services “does not reveal a systematic relationship between cost savings and private production” (Bel, Fageda, and Warner 2010).

The third structural problem is a human capital challenge. It is common knowl- edge that the U.S. labor force is becoming increasingly female, older, Latino, African American, Asian, and foreign-born, and these trends are projected to extend into the foreseeable future. Some of these new workers require special accommodations by employers and unions. The culture of work is undergoing dramatic change, with important implications for interpersonal, interorganizational, and supervisor– subordinate relations.

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Unions are struggling to clearly define their role in attracting and representing this socially diverse workforce. Their organizational health and well-being depend greatly on how effectively they respond to employment issues associated with demographic and sociocultural changes in the labor force. To remain viable organizations, unions must convince the new workforce that they can effectively represent the interests and concerns and job-related needs of these workers.

As demonstrated by largely unsuccessful efforts to organize Southern work- ers and recruit new members from the expanding information technology sector, the unions’ record is mixed. In general, out of necessity, public sector unions have chalked up a much better record of incorporating women and minorities into union affairs and leadership positions than private sector unions. The American Federation of State, County, and Municipal Employees (AFSCME), the National Education Association (NEA), the American Federation of Teachers (AFT), and SEIU report substantial numbers of women in their ranks, including top leadership positions. AFSCME has aggressively pursued discrimination complaints and filed lawsuits to force employers to adopt comparable worth policies. Public employee unions have also promoted and bargained for more flexible and family-friendly benefits.

Research indicates that nonunion workers in government tend to exhibit an affinity for collective representation, and most would join a union if they could. Pro-union sentiment is most pronounced among African American and Latino workers; women’s desire for unionization is about the same as that of men. It would seem, then, that in those unorganized public jurisdictions in which the legal envi- ronment permits union recognition and collective bargaining, women and minori- ties are waiting for unions to provide them with tangible and compelling reasons to join. Among the possible avenues for unions to demonstrate their relevance to these workers is through negotiated benefits such as health-care and wellness pro- grams, family-friendly benefits, specialized training and education opportunities, purchase discounts, property and vehicle insurance, and even favorable rates on union-sponsored credit cards.

As if these other structural challenges were not daunting enough, the baby- boom retirement bulge presents another. With an increasing proportion of today’s baby boomers eligible for retirement with each passing year, unions are staring in the teeth of a significant loss of staunch union advocates and leaders. The need to turn their unwavering attention to young labor force entrants is patently obvious.

C. Public Policy Challenges Whether one subscribes to the theory that comprehensive bargaining laws gener- ate high levels of union membership or to the competing theory that high levels of unionization impel such laws, there is a strong positive relationship between the two variables. Public employees in comprehensive bargaining states are in a highly favorable policy environment, as reflected by strong membership figures. As is true of distributive and redistributive policies everywhere, what is once granted

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is difficult to take away. Until very recently, public managers and most elected officials had little incentive to take on public employee unions in jurisdictions in which bargaining rights are strong and widely applied. Managers did not want to sacrifice valuable time and human resources to a losing assault on unions. For their part, politicians must take into account public employee votes and union campaign contributions.

Nonetheless, the Great Recession ushered in a sea change in public sector labor relations. For the first time in history, public officials aggressively sought to revoke state bargaining laws, with Wisconsin, Ohio, Indiana, Michigan, Idaho, and Tennessee as cases in point. Attacks on union security provisions through right-to-work legislation, and legislative restrictions on the political use of union dues, occurred in several states. As has been noted, such actions, driven by both economic and political considerations, have severely damaged union strength in affected jurisdictions.

When it came to expanding bargaining rights, unions’ high hopes in 2010 were dashed against the harsh reality of state actions and federal inaction. Prospects for federal legislation to compel collective bargaining for certain categories of state and local employees were snuffed out by congressional Republicans, and the likelihood of new, facilitative state laws on collective bargaining is exceedingly low.

Without membership expansion, unions in government risk the same stagna- tion followed by the absolute membership losses that have afflicted and deeply injured their counterparts in the corporate world. Public sector unions are poised on the same slippery slope of decline that private sector unions have tumbled down. Although the greater danger comes from existential assaults on unions through revoking collective bargaining, privatization looms large. Whether under the guise of NPM, reengineering, right sizing, or whatever the next management fad is called, privatization has the countenance of a long-lived phenomenon that could signifi- cantly deplete union membership and resources and keep public sector unions in a reactive and defensive posture. The body count for federal, state, and local unions could rise substantially because of persistent pressures to contain labor costs and reduce the size of government.

D. Strategic Challenges The strategic choices to be made by public employee unions are equally daunt- ing. Like their private sector counterparts, they are caught in a web of global and domestic forces that threaten to deplete their political and economic resources and reduce membership levels. The redistribution of service-provision activities and jobs to the private and nonprofit sectors represents a prodigious challenge for public sec- tor unions, as does the weak support for public service on the part of citizens and elected officials. However, in comparison to private sector unions, those represent- ing government employees generally function in a less hostile political environ- ment. And, in general, their strategic choices and actions have been more astute and

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their national leadership more adept at coping with emerging challenges and issues than has been the case with unions in the private sector.

Their political proclivities mean that public employee unions are pulled toward the Democratic Party. However, especially at the local level, union leaders have learned how to work all sides of the table. Symbiotic relationships between unions and elected and appointed officials of all political persuasions are common. The mutuality of interests ranges from fighting for better health care to seeking jurisdiction-wide improvements in pay and benefits for all public servants. The opportunity for multilateral bargaining with elected officials provides public employee unions with multiple paths to political influence during contract negotiations.

Despite these positive relationships, low public esteem for government, public employees, and unions has pushed management into a more aggressive posture with respect to organized employees. Although a majority of Americans oppose weaken- ing public employee collective bargaining rights by a two-to-one margin (Cooper and Thee-Brenan 2011), public support for unions in government is divided and declining (Newport and Saad 2011). Those who self-identify as Republicans are particularly negative about public sector unions. Teacher unions receive more than their fair share of blame for the perceived shortcomings of public education. Unions adamantly oppose threatening education reform proposals, such as abolishing teacher tenure or establishing voucher plans. In most cases, the unions have been successful in these endeavors and have, as a consequence, come to be perceived as a major obstacle to change (Hartney and Flavin 2011; Mishak 2012).

One of the first notable elected officials to take on the teacher unions was Michigan Governor John Engler, who demonstrated in the early 1990s that instead of being an act of unthinking political suicide, attacking teacher unions as defenders of the increasingly unacceptable education status quo could actually be politically advantageous (Mahtesian 1995: 36). Teacher unions were soon under assault by elected officials in other states. Yet, from a practical perspective, decer- tification of an existing union or dissolution of a bargaining unit is difficult in the absence of antiteacher bargaining laws, such as those recently adopted in Indiana, Tennessee, and Wisconsin. Attacks on teacher unions through films such as Won't Back Down and Waiting for Superman, accompanied by orchestrated criticism cam- paigns sponsored by conservative groups, have pushed the NEA and AFT into a corner (Greenblatt 2012). Even traditional Democratic allies of teacher unions have wavered, criticizing union intransigence over education reform proposals.

Within a difficult and ever-changing economic and political environment, pub- lic sector unions have demonstrated a degree of adaptability. They have achieved consistently better results from their organizing activities than private sector unions. Since the beginning of the modern era of public sector collective bargaining, nearly all unions in government have, perhaps as much out of necessity as by choice, made special efforts to organize women and minorities and to elevate them into leadership positions. (Exceptions are police and firefighter organizations, which,

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until recently, resisted members who were not white males.) Successful unions have sought out dissatisfied workers of all demographic characteristics in any setting. SEIU and AFSCME, in particular, have demonstrated that they have learned this key principle about leveraging public employee work dissatisfaction into member- ship gains. Pay inequity is an example of an issue causing dissatisfaction among female workers that unions have successfully exploited. Another is poor treatment of immigrant workers. Low pay, minimal benefits, and poor working conditions for custodial, nursing home, and health-care workers have presented organizing opportunities as well.

On the whole, national public employee union leadership has been superior to and much more statesmanlike than that of private sector organizations. Union leaders have helped their respective organizations strategically adapt and respond to enormous changes in their environments, finding ways to float with the social, economic, and political currents rather than trying to swim upstream. Such adap- tive behavior will continue to be critical to public employee unions as they marshal their resources to confront the challenges facing them today.

Astute national leadership is critically important to the future success of unions in the public sector, but so, too, is the quality of leadership in the thousands of locals throughout the federal, state, and local governments. However, in more instances than the unions would care to admit, some locals have acted selfishly, irresponsibly, and stupidly in assiduously protecting their perceived rights and contract provi- sions. Featherbedding, working to the rule, insisting that volunteers be forbidden to perform needed union-related work, calling ill-advised work stoppages, and aggres- sively defending felonious or incompetent members are some examples. Strategic errors and public relations miscues at the lowest levels can rebound into issues of national media visibility, confirming the beliefs of those who dislike unions and causing a negative bias in the opinions of previously neutral observers. It is impos- sible to know with any degree of empirical precision just how adept local leadership is, but it is known that a large proportion of local union presidents are part-time representatives who have risen through the ranks with little or no specialized train- ing or preparation other than on-the-job experience (Sulzner 1997: 168–169). The potential benefits of training and education for these individuals should be obvious to national organizations.

IV. Opportunities The profound structural, political, technological, economic, and related changes that are affecting public employee unions pose various known and unknown dangers, but they also present opportunities. To survive, let alone prosper, public employee organizations must adapt to these critical changes in their environment through innovative strategies and actions designed to roll back the tide of anti- unionism fervor and recapture public and political support.

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Although there is very little if anything that unions can do about the fiscal squeeze that throttles units of government and constrains public employee pay and benefits, they can help management search for productivity and efficiency improvements that enhance organizational performance. Recognizing—if not fully accepting—that employee financial gains are seldom going to exceed the annual rise in the cost-of-living index, and that exceedingly generous health-care and retire- ment benefits are likely to be contained, if not rolled back, unions can focus their attention at the bargaining table on working conditions, various human resource policies, and (to deflect interest in privatization) productivity enhancements. Many potential bargaining issues do not have significant financial impacts. Examples include flexible working hours, telecommuting, and flexible benefits packages.

The structural changes confronting unions present certain opportunities. NPM poses a number of challenges to unions, but it is simply not going to succeed in organized jurisdictions without union cooperation. Management recognizes that employee organizations must be closely involved in reengineering, job redesign, privatization, and other initiatives if they are to get off the ground, let alone suc- ceed. To defuse the typical knee-jerk union opposition to contracting out work, for example, public officials can provide unions with opportunities to demonstrate how they can help cut costs and enhance efficiencies through participation and collabo- ration in work design (Gerhart 1994: 125–129). Unions in Cleveland, Indianapolis, Phoenix, and other cities have insisted on submitting their own bids to win back contracted work, and in many instances, they have been successful. Research indi- cates that when unions respond constructively to privatization discussions and proposals, mutually acceptable solutions short of privatization can often be found (Jalette and Hebdon 2012). When public officials are determined to fully shift a service to a private or nonprofit provider, unions can turn their effort to ensuring that no current union members will lose their jobs. They can also commit resources to organize those nongovernment workers who are performing the contract work.

The rapidly expanding ranks of public employee telecommuters and contract workers offer an interesting but still relatively untested opportunity to unions. Telecommunications and information technology software have moved the “vir- tual office” from concept to reality. A growing number of jobs can be performed almost anywhere and do not require fixed office space and standard work hours. Federal and state government employees are increasingly telecommuting part time or full time from home or suburban satellite work centers. Some “road warriors” operate from a portable office as they travel from location to location.

Telecommuting is recognized as being good for the environment (fewer cars on the road), good for employees’ stress levels (no long morning and afternoon com- mutes), and good for the organizational budget (reduced need for physical office space). But is telecommuting good for unions? The virtual office removes employees from much daily interaction with their coworkers and effectively makes them free agents, working on their own with minimal daily supervision. The tendency is toward worker autonomy, not collective action through an employee organization.

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Telecommuting lends itself to contract workers rather than to permanent employees, as work is transformed from a communal enterprise to an autonomous individual activity. On the other hand, even stay-at-home employees may perceive a need for representation on such issues as the type of equipment needed and who should pro- vide and service it, ergonomic and health-and-safety considerations, and the need for an organization to look out for employees’ interests when they are not on the job (physically) every day.

Despite the decline in public employee union membership during 2011–2013, several potentially rich organizing opportunities remain. One of them is rather conventional in that it involves low-wage workers in tough working environments, the traditional mother lode for union organizing in private employment. Sometimes neglected in the scholarly and media attention paid to globalization, information technology, government reinvention, outsourcing, and other factors is the lot of the low-paid but very important public and nonprofit workers who clean office build- ings, empty bedpans, and attend to young children and senior adults who cannot help themselves.

Paul Johnston (1994) has described the organizing possibilities presented by “social movement unionism,” in which the interests of custodial workers, nurses, and others converge with social causes involving women, minority, and immigrant workers in low-wage public jobs. According to Johnston, when unions frame their demands for these workers in such a manner as to make them congruent with public policy in the public interest, they have the potential for success. Examples include framing improved pay and benefits and favorable work rule changes in the con- text of union demands for racial, social, gender, and economic justice (Milkman, Bloom, and Narro 2010).

An early success was the Justice for Janitors movement, which tied together demands for improving the compensation and working conditions of custodial workers with a call for an end to economic and social bias against predominantly black and Latino workers. SEIU 1199 in Florida represents low-wage workers in nursing homes and other facilities. Florida 1199 has partnered with local chapters of the National Association for the Advancement of Colored People, Haitian organizations, immigrant rights organizations, and others to create progressive alliances in advocating for workers’ rights (Nissen 2003: 141–143; Devinatz 2008). In Baltimore, AFSCME partnered with religious groups and other organizations in support of a “living wage” for impoverished workers (Devinatz 2008: 208). An important target today is the burgeoning health-care industry, which lies at the nexus of the public, nonprofit, and private sectors in hospitals, clinics, nursing homes, and related entities. When SEIU and other health-care unions link increased pay and benefits for health-care employees with broader public interest issues such as the quality and availability of health care, they stand to benefit in any number of ways. As a general principle, then, “Unions need to demonstrate that they do not exist solely to enhance the private interests of their members” (Sulzner 1997: 166).

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The Change to Win unions have focused significant attention on the nonprofit sector, especially hospitals, home health-care organizations, nonprofits that trans- port patients, and charitable organizations. This often poses a conflict of interest. Unions and nonprofits are often aligned on issues of economic justice, such as immigration, the living wage, and health care, but today, unions are organizing these nonprofits’ employees. Nonprofit boards and managers typically have pro- union sympathies, but when their own workers organize, managers may be con- flicted in their feelings. In large nonprofits, however, it is natural for there to be a growing division between management and workers that spawns a perceived need for a greater employee voice. Employees may become dissatisfied with a nonprofit’s bottom-line fixation, particularly when there is a perception that clients, such as patients, are put at risk (Clark and Clark 2006). As observed in Chapter 3, new structural arrangements may be needed to organize some nonprofit workers such as those who work in the client’s home, with the operative question being, “Who is the employer?” (Delp and Quan 2002; Mareschal 2006).

The unions have political opportunities and try hard to exploit them. They have ramped up their electoral activities in efforts to influence the views of candidates and the outcomes of elections. Union members are more likely to vote than nonmembers, and they are most likely to vote for candidates endorsed by unions. During the last several general elections, unions have shown increased sophistication in mobilizing their members and their families. As the 2008 and 2012 elections approached, with significant implications for the presidency, Congress, and redistricting of congres- sional and state election districts, national labor organizations committed substan- tial human and financial resources to campaign-related activities.

Clearly, unions need to do a better job of promoting a more positive public perception. AFSCME, NEA, AFT, SEIU, and other public employee unions peri- odically run local, regional, and national publicity campaigns to influence opinion on specific issues (e.g., environmental protection and public education) as well as to engender warmer feelings toward the organization and its membership. This is a long-range strategy that is worth greater attention from the unions, which, as noted Chapter 5, have recently suffered from a loss of public support.

More immediately effective are prompt, adept union responses to local or state situations that threaten to smudge the union’s reputation in the eyes of the public. Often, when a union, one of its representatives, or members of the bargaining unit have done wrong in a legal or ethical sense, or taken positions in blatant opposition to expressed public opinion, it is best simply to admit the error and get on with more productive activities. For instance, national leaders of the AFT and NEA publicly admitted that blocking education innovations and adamantly protecting failed teachers is wrong. Following the self-critical analytical tradition of the late president Al Shanker, the AFT has reexamined many of its former positions and sought to take a leadership role in critical areas such as reducing violence in the schools and helping develop national education standards.

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V. Labor–Management Cooperation and Participative Decision Making

The movement from an adversarial to an interest-based approach to collective bargaining was discussed at length in Chapter 5. This and other forms of labor– management cooperation represent a potentially significant transformation in how decisions are made and conflicts are resolved in a union setting.

Various mechanisms exist for labor–management cooperation, including “quality improvement” approaches, labor–management committees (LMCs), and employee involvement programs. Each involves regularly scheduled meetings of labor and management representatives to discuss, analyze, and resolve problems either arising under the interpretation and application of the contract or appearing in the work- place but outside the purview of the contract. Ideally, the core feature of each of them is participative decision making (PDM), defined as a formal operative vehicle for exercising employee voices in organizational decision making in which employee views and decisions are given serious consideration by management representatives (Kearney and Hays 1994). The model envisions bottom-up authority structures and meaningful employee participation in organizational decisions. PDM programs are widespread in the private sector. In collective bargaining environments, it means labor–management cooperation outside the strictures of formal bargaining.

A. Advantages of Cooperation Extensive literature on private sector PDM indicates positive impacts on individual worker productivity, job satisfaction, personal growth and development, and willingness to change (Kearney and Hays 1994). PDM’s benefits to the individual employee are believed to contribute directly and indirectly to desired organizational outcomes. For example, when participation increases worker satisfaction with and commitment to the job, it may also produce less turnover, fewer absences and sick days, lower accident rates (Schwochau et al. 1997: 381), stronger commitment to the organization (Verma and McKersie 1987), and improvements in communica- tion patterns (Ospina and Yaroni 2003). PDM’s organizational benefits include improving employees’ ability to perform technical tasks (Mohrman and Lawler 1988: 47), to respond effectively to a rapidly changing work environment, and to accommodate changes in the nature of work. There may also be fewer grievances, unfair labor practices, and other conflictual activities. Research findings are less conclusive concerning the effects of PDM on organizational efficiency and pro- ductivity (Wagner 1994), but there is evidence that organizational performance is enhanced through the early identification of incipient work problems (Levine 1995). From a broader perspective, participation has civic and social value as well. It “can stimulate the development of civil society because it encourages individuals to develop and practice habits that are critical to self-sufficiency, self-rule, and … indi- vidual responsibility” (Delaney 1996: 46). In other words, PDM helps encourage

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responsible self-government and adds value to employees, the workplace, and the employing organization (see Nissen 2003: 134–138).

Despite the many advantages associated with PDM, its application to private employment is restricted by language of the NLR A. Before legalization of full col- lective bargaining rights for private sector unions by the NLR A of 1935, it was not uncommon for employers to resist unions through “representation plans” that established committees of workers and managers that were supposed to meet on workplace concerns. But these plans were forced on workers by management, which strictly reserved its power to make all important decisions. Unions viewed such plans as subterfuges for corporate opposition to unions and collective bargain- ing (Kelly 1998). A related tactic was the “company union,” created and essentially directed by the employer under the pretense of being a legitimate labor organization.

To preclude such evasions by businesses, the NLR A (labor friendly in those pre-Taft–Hartley Act days) provided that it is an unfair labor practice for an employer to “dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it …” [NLR A, Section 8(a)(2)]. Federal case law and National Labor Relations Board hearings determined that LMCs and similar mechanisms are illegal under the NLR A if they are created and dominated by the employer. To be legal, employee participation programs in the private sector must be established and operated with a substan- tial degree of employee independence from management. The implication is that the only legal PDM program is either one with strong employee decision-making authority or one created and implemented with union participation (Delaney 1996). Not surprisingly, unionized workers in the private sector are much more likely to be involved in PDM programs than are nonunion employees (Baton and Voos 1992).

In the public sector, little systematic empirical research has been published on the PDM experience. Yet, government could be the playing field where the future of PDM action will transpire. However, a strong adversarial spirit still prevails in most unionized jurisdictions. Moreover, NLR A language, principles, and procedures are embedded in many state bargaining statutes.

Experimental participative approaches such as the LMC date back to the early 1920s in government, and they have gradually garnered support at all levels of government. LMCs have been used to develop day care and employee assistance programs in New York State, with outcomes of lower health-care costs and higher employee morale and attendance rates. In Massachusetts, LMCs were established throughout state government to address health and safety, career ladders, child care, performance appraisal, and other issues. In Ohio, LMCs have dealt with staff- ing patterns, employee security, and dress codes.

In federal employment, “partnering” initiatives between unions and manage- ment to solve workplace problems were required of all federal agencies by President Clinton’s Executive Order 12871. By 1996, it was reported that almost 90% of federal agencies were actively partnering (Lane 1996: 41). Many of these partner- ships reported significant improvements in various federal organizational maladies,

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including communications and collaborative decision making (Albright 2004; Masters, Albright, and Eplion 2005). The changes registered were not earth shat- tering, but most participants reported improvements in overall labor–management relationships (Tobias 2004; Masters, Albright, and Eplion 2005). When, upon assuming office and with the stroke of a pen, President Bush revoked President Clinton’s executive order and soon thereafter peppered agency leadership with anti- union appointees, the partnerships rapidly deteriorated (Masters, Albright, and Eplion 2005). President Obama reestablished labor–management partnerships with a 2010 executive order, but “their record of accomplishment [was] thin” (Losey 2011). Pilot projects in 12 federal agencies to test permitting unions to bargain over “permissive subjects” have also registered only modest gains, although some agen- cies reported faster issue resolution, more open dialogue, and more collaborative problem solving (National Council on Federal Labor-Management Relations 2012).

Public and nonprofit managers are generally receptive to the principle of labor– management cooperation. Labor relations in some jurisdictions may be replete with ugly adversarial encounters, but, in general, relationships between the parties are much more pacific than those in the private sector. The fierce battles that character- ized many public jurisdictions during the early years of unionization and bargaining gradually moderated in most cases, as union and management roles and expectations stabilized and matured. With the almost shocking exception of President Reagan’s mass sacking of 12,000 striking air traffic controllers in 1981, very few government workers have lost their jobs during the past four decades because of union organizing or work stoppages. And, of course, public managers and those who work for them share important characteristics and interests. Most of them consider themselves to be public service professionals who work for the public interest in critical fields such as health care, education, and law enforcement. They do not pursue profits or the short-term interests of owners or shareholders. Program success and gains in productivity can produce compensation gains for all public employees and special recognition for managers. Labor and management also share key enemies: namely, bureaucrat bashers, budget pinchers, hostile politicians, and negative public opinion. This assortment of characteristics and interests shared by public managers and work- ers makes cooperation and PDM more feasible than in most private sector settings.

B. Conditions Necessary for Successful Labor–Management Cooperation

To succeed, PDM, LMCs, and other cooperative approaches and techniques cannot simply be imposed by a reform-minded elected official or agency head. Certain facilitative conditions are necessary to create a receptive environment. The most critical facilitative conditions are a foundation of trust and mutual respect among managers and workers, a strong level of commitment by all key parties to make the program work over the long haul, win–win expectations, and an appropriate technique for bringing PDM to fruition.

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Constructing a foundation of trust and mutual respect requires overcoming sus- picions of union leaders that PDM is a new way to manipulate employees and their unions and that it is likely to weaken collective bargaining, grievance systems, and employee commitment to the union. Suspicions and doubt may also infect the ranks of mid-level managers, who feel threatened by a potential loss of authority, or even their jobs, when PDM programs are implemented (Lawler and Mohrman 1985).

In negative adversarial settings, trust and respect must be constructed from the ground up. This is a tough task, and failures have been recorded. The U.S. Postal Service’s history of confrontational labor relations within a context of an auto- cratic management style, rigid work rules, and difficult working conditions created a setting predisposed against meaningful PDM (U.S. General Accounting Office 1994). Labor–management partnerships in Miami, Florida, struggled in the face of high levels of workplace conflict, low employee morale, and a chaotic labor relations climate that included serious internal divisions in the ranks of both labor and city management (Bryson et al. 1999).

However, other jurisdictions have reported success in converting hostile rela- tionships into a productive cooperative situation. For example, the San Francisco Bay Area Union Sanitation District, long burdened by adversarial relations and low levels of trust and morale, engaged in a far-reaching change strategy that opened direct communication lines between management and union representatives, pro- moted less contentious contract negotiations, and attained impressive improve- ments in operations.

The second precondition for successful PDM is a strong level of commitment by top officials, managers, and employees. Significant levels of time, attention, and resources must be invested in the program if it is to work over the long haul. The heaviest burden rests with mid-level managers and union leaders, but virtually all employees must shoulder some responsibility by committing themselves to work cooperatively with former adversaries. Top officials must exercise leadership and make available sufficient financial and personnel resources for training, oversight, and related activities. Sincere sustained commitment from top-level officials is espe- cially important. This is difficult to secure when newly elected officials or their appointees fail to continue the collaborative policies adopted by their predecessors, or when financial problems lead to workforce cutbacks or reorganizations.

The third condition for successful PDM is that the parties must be commit- ted to discovering interest-based, win–win solutions to organizational problems and conflicts. Examples of successful win–win expectations and outcomes may be found at all levels of government. Under the National Performance Council, federal agencies developed partnerships premised on interest-based processes that effectively addressed contract and workplace disputes and myriad other problems. Federal partnerships dealt with equal employment opportunity concerns, grievance prevention and resolution, unfair labor practices, incentive pay systems, and a gain- sharing program (Ferris and Cooper 1994). Numerous examples of interest-based programs have been reported in state and local jurisdictions, including school

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districts (Rubenstein and McCarthy 2012); Wisconsin state government; Ramsey County, Missouri (Brainerd 1998); and Portland, Maine (Peightal et al. 1998). Successful collaborative programs have been operational in school districts as well. For example, site-based management, in which administrators and teachers jointly determine rules, procedures, and policy for a school through PDM, has been adopted in school systems (Rubin and Rubin 1997).

Finally, PDM requires an appropriate technique for effective implementation. Many different but related tools are available to structure participative interactions, from health-and-safety committees and quality of work life programs to quality cir- cles (small groups of workers that meet regularly to develop suggestions for improving work procedures, product or service quality, or other concerns) and total quality man- agement (TQM, a participative strategy that concentrates on continuously improv- ing products and services, preventing errors, and satisfying customers). Through such techniques, employees are involved and empowered to engage as partners in decision making. When present, unions are formally involved in TQM (Verma and Cutcher- Gershenfeld 1996: 223–227). By 2000, TQM, like quality circles, had morphed into new techniques, such as gainsharing, which distributes to bargaining unit members a portion of dollars saved from making work rule changes, process improvements, and other efficiencies. Gainsharing is typically negotiated as part of the collective bar- gaining contract. The most widely adopted participation strategy today is the LMC, discussed in Section V.A. Operating to resolve issues outside the formal contract, LMCs are found at all levels of government. LMCs apply win–win principles and push decision making to as low a level of the organization as possible.

In sum, numerous techniques are available for structuring and implement- ing meaningful employee participation in making organizational decisions. The specific technique is not nearly as critical to program success as are the needs for mutual trust and respect, strong commitment, and win–win expectations.

C. Future of Labor–Management Cooperation Significant obstacles litter the path to labor–management cooperation. The NLR A’s outdated premise of adversarialism as the answer to all labor–management conflicts remains firmly embedded in the legal framework and mentality of most unionized public jurisdictions. The lengthy and emotional history of early organizing cam- paigns and bargaining encounters is tough to overcome. Mutual distrust and sus- picion prevail among union and management representatives in many, if not most, bargaining settings. Management’s innate discomfort with unions is amplified by a nagging fear of losing authority and control over employees in the bargaining unit. Union leaders, many of whom made their reputations by aggressively fighting management, are fearful that consultative and participative management proposals are Trojan horses that will unleash demands to eliminate jobs, dilute union power, impose givebacks and concessions, and ultimately displace the union as the col- lective voice of workers. Finally, the sustained commitment of resources needed

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for successful PDM is always problematic in a political system characterized by frequent turnover of elected and appointed officials and personal, partisan, and special interest groups’ political agendas.

A comfortable and functional relationship between collective bargaining and PDM is the key to expansion. Collective bargaining continues to serve a compel- ling purpose by jointly setting wages, benefits, and terms and conditions of employ- ment. Union representation in grievance procedures remains important as well. But PDM opens a new window of joint problem-solving possibilities. Which problems and issues should be addressed through conventional or interest-based collective bargaining and grievance procedures, and which should fall within the purview of new participative arrangements? Clearly, a rational and logical means of separating issues into their proper spheres should be developed (Reeves 1997). Role conflicts are endemic, as management and union representatives must make the transition back and forth from adversarial to cooperative interactions. Perhaps unions should designate “partnership stewards” for PDM activities and “grievance stewards” for more traditional encounters with management.

As an alternative form of representation, PDM is not a quick cure for all that ails labor–management relations. But clearly, changes in work practices are rap- idly eroding the boundaries between supervisors and subordinates, reducing the number of supervisory levels, and promoting more group-oriented work. Whether embodied in statute or common practice, the conventional distinction between supervisors and workers is blurring in practice, with significant implications for unions and collective bargaining. In addition, the war against collective bargain- ing may leave labor–management collaboration one path to continuing a dialogue on joint problem-solving in cases in which bargaining is revoked. In this context, PDM approaches appear to be an appropriate path for unions moving forward.

VI. Public Employee Unions in the 2010s: Conclusion Despite persistent hopes for rejuvenation, unions in the private sector of the United States have been resolutely marching toward oblivion for half a century. Only about 6.5% of private sector workers belong to unions today. This appears to be a global phenomenon; unions are in decline in virtually all economically advanced nations. Numerous factors have contributed to union decline, the most important of which are probably the shift from manufacturing to service and knowledge-based econo- mies and the globalization of labor and production. The extent of union decline is much greater in the United States. Organized labor still claims 20%–30% of the European Union, Canadian, and U.K. workforces, and unions remain more pow- erful political and economic forces in these countries.

In the U.S. public sector, union membership leveled off in the late 1970s and has since recorded a slight decline. In 2012, union membership sat at 35.9%, the lowest since 2007 (U.S. Bureau of Labor Statistics 2013a). More dramatic

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membership drops in government will come if legal protections are repealed in additional states. Clearly, public employee unions face their own challenges, including privatization, government financial stress, citizen hostility, negative actions by state legislatures, and the NPM movement. A resurgence of public employee unionism is not entirely out of the question; the political climate could change in its favor. Additional states could enact comprehensive bargaining laws; new governors could issue executive orders. A liberal Congress could adopt national legislation requiring collective bargaining in all states and localities and expand the scope of bargaining in federal labor relations, which would induce membership gains. The burgeoning health-care sector and other components of the service sector, which straddle public, private, and nonprofit employment, present a potentially rich source of new members.

All things considered, however, the political and economic tea leaves do not portend a rosy scenario for public employee unions in the 2010s. The winds of change in public sector management and labor relations have been gusting strongly against public sector unions. An astounding 2-year reversal of fortunes occurred from the days of sunny optimism about passage of the Public Safety Employer- Employee Cooperation Act (to compel state and local governments to bargain with public safety workers) to nights of darkness from an unprecedented attack on unions at all levels. The Great Recession brought tough financial times for states and localities while also offering up a reason for rolling back collective bargaining rights and public employee benefits. The watershed event was Wisconsin’s repeal of bargaining rights, ironically in the first state to legislate such rights. Working hand in glove with corporate organizations and conservative advocacy groups, Republicans also rescinded bargaining rights in Michigan, Indiana, Ohio, and other states. Those actions constituted body blows to public employee unions and their supporters.

The unions need to engage in continuous soul searching and reinvention if they are to move beyond mere rhetoric on key issues and maintain relevance for the increasingly diverse public and nonprofit workforce. Somehow they must reverse the antiunion, public-workers-as-the-problem narrative to recap- ture favorable perceptions on the part of public officials and the general pub- lic. Traditional adversarial bargaining will hold its place at most bargaining tables and in most grievance proceedings, but there is growing acceptance that zero-sum relationships are becoming antiquated and dysfunctional for both unions and management. To do well what they do best—collectively express the voices of those whom they represent (Freeman and Medoff 1984)—unions must improve their ability to identify workers’ needs. If the best way to meet those needs is through cooperation with management through PDM or related approaches, then unions owe it to their present and future members to take that path. Management, for its part, should respect the right of unions to participate in a serious and meaningful way in all matters affecting or potentially affecting members of the bargaining unit.

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VII. Down but Not Out: The Case for Continuing the Good Fight

As noted in Section III, the current challenges facing public sector unions are daunting and the opportunities for a comeback are slim. Despite the rhetoric, col- lective bargaining in the public sector has never been solely about protecting public employees’ self-interest. In fact, most people join the public sector with a sense of mission and a desire to serve the community. Continued erosion in collective bar- gaining rights and the subsequent decline of public sector unions is cause for con- cern on a number of fronts. First, it will impact the cost of government, the types of workers attracted to employment in the public sector, and the quality of public services. Second, it has broader implications for income distribution, social equity, civil society, democracy, and basic human rights.

Historically, in periods of economic downturn unions and public-sector employment have helped to mitigate income inequality. This was true even during the late 1990s, an era of growth in neoliberal policies toward government (Volscho and Fullerton 2005). Yet, the current political and economic environment threat- ens to undermine the direct and spillover benefits that unions and public employ- ment have on income distribution.

Another positive contribution of public sector employment and unions is that they promote social equity. The negative consequences of stripping away public sector bargaining rights and other austerity measures fall more heavily on women and minor- ities. The majority of female union members work in the public sector. Consequently, women will disproportionately bear the effects of the declining union density and ero- sions of collective bargaining rights in the public sector. In fact, many of the restric- tions in bargaining rights have targeted female-dominated occupations, such as home care workers, teachers, nurses, and child care workers (Abramovitz 2012, Boris and Klein 2012, National Women’s Law Center 2011, 2012). Moreover, since women and African Americans are overrepresented in the public sector, budget cuts affect them more severely (Cooper, Gable, and Austin 2012). Given that public sector employ- ment has served as a ladder for upward mobility for women and African Americans (Collins 2012), austerity measures will leave both groups with a more difficult path toward wage equity and make them especially vulnerable to economic hardships.

The implications for civil society and American democracy provide further reason for alarm. Unions play an internal role of representing the voice of their members at the workplace. The voice function of unions is more pronounced in the public sector than in the private sector (Gunderson 2005). Many public sector employees entered public service out of a sense of commitment to their clientele and civic responsibility. These characteristics foster loyalty and increase public sector workers’ use of voice. Public sector workers tend to be well educated. For example, 70% of the federal workforce is composed of knowledge workers (Tobias 2004). Thus, they are likely to want to have greater involvement in shaping the terms and conditions of their employment.

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In addition, unions have a long history of civic education and political partici- pation (Sinyai 2006). Beyond the workplace, unions represent the voice of their members and supporters in policy-making processes. In the public sector, union members are drawn more heavily from the professional ranks. Their professional status enhances their credibility when they advocate for issues that serve the public interest (Gunderson 2005). Restrictions on union activity diminish the capacity of unions to perform their internal and external roles, weakening the voice of work- ers at the workplace and limiting their opportunities for collective action in the community.

Collective bargaining in the public sector is rooted in constitutional guarantees of free speech, freedom of assembly, and due process. But beyond constitutional rights, collective bargaining may be viewed through the lens of basic human rights. Both the United Nations and the International Labor Organization have identified working conditions and collective bargaining as basic human rights. Focusing on human rights and advancing public goods may help public sector unions recapture the moral high ground.

Moving forward, labor will have to develop new approaches to advance its agenda. The lessons from recent events in Wisconsin provide important insights that can help shape new union strategies. The Wisconsin protests brought multiple stakeholders together. Yet, the movement lacked internal coordination and appro- priate channels for workers and community members to work together (Sernatinger 2012). To survive, unions will have to continue building broad alliances with other institutions and with the communities within which they are embedded. Unions will also need to place greater emphasis on coordination efforts. Retrenchment of public social services negatively affects both communities and public sector work- ers. Thus, it offers incentives and opportunities for unions to build and sustain labor–community coalitions (Krinsky and Reese 2006).

Since membership size largely determines the power of labor organizations, unions will have to increase worker mobilization and engagement in union activ- ities. Overall, unions will need to strengthen their relationships internally with their existing and potential members and externally with institutional partners and communities. Despite the all-time low in union approval, in 2009, more people approved than disapproved of labor unions (Gallup 2012). In polls specifically assessing the support for public sector unions, the general public mostly favored the unions (Freeman and Han 2012). The opportunity to demonstrate the multiple positive roles that unions play in society still exists.

Rising inequality, the growth of precarious employment, and declining liv- ing standards for the middle class all provide incentives for collective action. Similarly, Generation Y and other new entrants into the labor market face dismal job prospects. The jobs that are available typically pay low wages, offer little or no opportunity for advancement, do not provide fringe benefits such as health care and pensions, and lack security. The higher educational attainment and access to

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technology of the “Millennials” makes it more likely that they will be dissatisfied with their labor market prospects. As a result, they may be more likely to advocate for change (Kalleberg 2011).

Expanding the union discourse to include human rights, social equity, and democracy may help attract new coalition members and improve the public per- ception of unions. Unions will have to make the argument that a democratic society needs unions, both because workers should have the right to associate to promote their shared interests and because a democratic society requires that its members have a voice. Worker and community participation are essential to advancing the common good in ways that are truly sustainable (McCartin 2012). The broadening of the union discourse to focus on democracy, equity, human rights, and the quality of public services may help replace the current politics of resentment, which portrays public sector employees as enemies of the community, with the politics of solidarity, in which unions can bring public sector employees and community members together to work toward common goals. For these rea- sons, it is in the public’s interest for public sector employees and unions to go the distance in this fight.

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