Employment Law U7

C H A P T E R 18

The Rights of Union Members

Unions, as bargaining agents representing bargaining units of employees, have significant power and control over individual employees. Those employees are precluded from dealing with the employer on matters of wages and working conditions; the employees must go through the union in dealing with the employer. Because employees are dependent on the union, they must be protected from the arbitrary or unreasonable exercise of union power. This chapter explores the legal controls of unions to protect the rights of union members.

18-1 Protection of the Rights of Union Members

The legal controls on unions are the result of actions by the courts, the National Labor Relations Board (NLRB), and Congress. The courts and the NLRB have imposed a duty of fair representation on the part of the union—an obligation to represent fairly all members of the bargaining unit. Congress has legislated a union members’ “bill of rights” to guarantee that union internal procedures are fair and has prohibited certain practices by unions that interfere with employees’ rights under the National Labor Relations Act (NLRA). In 1947, the Taft-Hartley Act added a list of union unfair labor practices to the NLRA, which included the following: • • • • • Section 7 was amended to give employees the right to refrain from engaging in con- certed activity, as well as the right to engage in such activity. Section 8(b)(1)(A) prohibits union activity that interferes with, restrains, or coerces employees in the exercise of their Section 7 rights. Section 8(b)(2) prohibits unions from causing an employer to discriminate against employees in terms and conditions of employment because they are not union members. Section 8(b)(5) protects employees from unreasonable union dues and initiation fees. The Landrum-Griffin Act of 1959 added the union member’s bill of rights to the NLRA. Those provisions will be discussed in detail later in this chapter. 18-1a The Union’s Duty of Fair Representation The duty of fair representation is a judicially created obligation on the part of the union to represent fairly all employees in the bargaining unit. The duty was developed by the courts because of the union’s role as exclusive bargaining agent for the bargaining unit. The initial cases dealing with the duty of fair representation arose under the Railway Labor Act; subse- quent cases applied the duty to unions under the NLRA as well. In the following case, the Supreme Court developed the concept of the duty of fair representation.

CASE 18.1 Steele v. louiSville & NaShville R.R. 323 U.S. 192 (1944

Stone, C. J. The question is whether the Railway Labor Act ... imposes on a labor organization, acting by authority of the statute as the exclusive bargaining representative of a craft or class of railway employees, the duty to represent all the employees in the craft without discrimination because of their race, and, if so, whether the courts have jurisdiction to protect the minority of the craft or class from the violation of such obligation. ... Petitioner, a Negro, is a locomotive fireman in the employ of respondent railroad, suing on his own behalf and that of his fellow employees who, like petitioner, are Negro firemen employed by the Railroad. Respondent Brotherhood, a labor organization, is as provided under Section 2, Fourth of the Railway Labor Act, the exclusive bargaining representative of the craft of firemen employed by the Railroad and is recognized as such by it and the members of the craft. The majority of the firemen employed by the Railroad are white and are members of the Brotherhood, but a substantial minority are Negroes who, by the consti- tution and ritual of the Brotherhood, are excluded from its membership. As the membership of the Brotherhood constitutes a majority of all firemen employed on respon- dent Railroad and as under Section 2, Fourth, the members, because they are the majority, have chosen the Brotherhood to represent the craft, petitioner and other Negro firemen on the road have been required to accept the Brotherhood as their representative for the purposes of the Act. On March 28, 1940, the Brotherhood, purporting to act as representative of the entire craft of firemen, without informing the Negro firemen or giving them opportunity to be heard, served a notice on respondent Railroad and on twenty other railroads operating principally in the south- eastern part of the United States. The notice announced the Brotherhood’s desire to amend the existing collective bargaining agreement in such a manner as ultimately to exclude all Negro firemen from the service. By established practice on the several railroads so notified only white firemen can be promoted to serve as engineers, and the notice proposed that only “promotable,” i.e., white, men should be employed as firemen or assigned to new runs or jobs or permanent vacancies in established runs or jobs. On February 18, 1941, the railroads and the Brotherhood, as representative of the craft, entered into a new agreement which provided that not more than 50 percent of the firemen in each class of service in each seniority district of a carrier should be Negroes; that until such percentage should be reached all new runs and all vacancies should be filled by white men; and that the agree- ment did not sanction the employment of Negroes in any seniority district in which they were not working.... ... [W]e think that Congress, in enacting the Railway Labor Act and authorizing a labor union, chosen by a majority of a craft, to represent the craft, did not intend to confer plenary power upon the union to sacrifice, for the benefit of its members, rights of the minority of the craft, without imposing on it any duty to protect the minority. Since petitioner and the other Negro members of the craft are not members of the Brotherhood or eligible for member- ship, the authority to act for them is derived not from their action or consent but wholly from the command of the Act.... Section 2, Second, requiring carriers to bargain with the representative so chosen, operates to exclude any other from representing a craft. The minority members of a craft are thus deprived by the statute of the right, which they would otherwise possess, to choose a representative of their own, and its members cannot bargain individually on behalf of themselves as to matters which are properly the subject of collective bargaining.... The fair interpretation of the statutory language is that the organization chosen to represent a craft is to represent all its members, the majority as well as the minority, and it is to act for and not against those whom it represents. It is a principle of general application that the exercise of a granted power to act in behalf of others involves the assumption toward them of a duty to exercise the power in their interest and behalf, and that such a grant of power will not be deemed to dispense with all duty toward those for whom it is exercised unless so expressed. We think that the Railway Labor Act imposes upon the statutory representative of a craft at least as exacting a duty to protect equally the interests of the members of the craft as the Constitution imposes upon a legislature to give equal protection to the interests of those for whom it legislates. Congress has seen fit to clothe the bargaining representative with powers comparable to those possessed by a legislative body both to create and restrict the rights of those whom it represents, but it also imposed on the representative a corresponding duty. We hold that the language of the Act to which we have referred, read in the light of the purposes of the Act, expresses the aim of Congress to impose on the bargaining representative of a craft or class of employees the duty to exercise fairly the power conferred upon it in behalf of all those for whom it acts, without hostile discrimination against them. This does not mean that the statutory representa- tive of a craft is barred from making contracts which may have unfavorable effects on some of the members of the craft represented. Variations in terms of the contract based on differences relevant to the authorized purposes of the contract in conditions to which they are to be applied, such as differences in seniority, the type of work performed, the competence and skill with which it is performed, are within the scope of the bargaining representation of a craft, all of whose members are not identical in their interest or merit. Without attempting to mark the allowable limits of differ- ences in the terms of contracts based on differences of condi- tions to which they apply, it is enough for present purposes to say that the statutory power to represent a craft and to make contracts as to wages, hours and working conditions does not include the authority to make among members of the craft discriminations not based on such relevant differ- ences. Here the discriminations based on race alone are obviously irrelevant and invidious. Congress plainly did not undertake to authorize the bargaining representative to make such discriminations. . . . The representative which thus discriminates may be enjoined from so doing, and its members may be enjoined from taking the benefit of such discriminatory action. No more is the Railroad bound by or entitled to take the benefit of a contract which the bargaining representative is prohibited by the statute from making. In both cases the right asserted, which is derived from the duty imposed by the statute on the bargaining representative, is a federal right implied from the statute and the policy which it has adopted. . . . So long as a labor union assumes to act as the statutory representative of a craft, it cannot rightly refuse to perform the duty, which is inseparable from the power of represen- tation conferred upon it, to represent the entire member- ship of the craft. While the statute does not deny to such a bargaining labor organization the right to determine eligi- bility to its membership, it does require the union, in collec- tive bargaining and in making contracts with the carrier, to represent non-union or minority union members of the craft without hostile discrimination, fairly, impartially, and in good faith. Wherever necessary to that end, the union is required to consider requests of non-union members of the craft and expressions of their views with respect to collective bargaining with the employer and to give to them notice of and opportunity for hearing upon its proposed action. . . . We conclude that the duty which the statute imposes on a union representative of a craft to represent the interests of all its members stands on no different footing and that the statute contemplates resort to the usual judicial remedies of injunction and award of damages when appropriate for breach of that duty. The judgment is accordingly reversed and remanded. . . . So ordered. Case Questions 1. Is Steele a member of the union? Why? 2. To what conduct by the union and the railroad did Steele object? 3. To which employees does the union owe a duty of fair representation? What is the source of the union’s duty of fair representation?.

The Steele case held that the duty of fair representation arose out of the union’s exclu- sive bargaining agent status under Section 2, Ninth, of the Railway Labor Act. In Syres v. Oil Workers Local 23,1 the Supreme Court held that the duty of fair representation also extended to unions granted bargaining agent status under Section 9(a) of the NLRA. Unions, in representing employees, must make decisions that affect different employees in different ways. For example, in negotiating a contract, the union must decide whether to seek increased wages or improved benefits—trade-offs must be made in fashioning contract proposals. Older employees may be more concerned with pensions, whereas younger employees may be more concerned with increased wages. Should the courts monitor the union’s negotiation proposals to ensure that all workers are fairly represented? In Ford Motor Co. v. Huffman,2 the Supreme Court held that unions should be given broad discretion by the courts in negotiation practices; the courts should ensure only that the union operates “in good faith and honesty of purpose in the exercise of its discretion.”

ethical DILEMMA

Union MeMbership benefits and Costs You are the human resource manager of the Springfield plant of Immense Multina- tional Business; the plant production employees are represented by a union, and the collective agreement has a union shop clause requiring employees in the bargaining unit to join the union and to maintain their membership in good standing. You have just hired a new production employee, Waylon Smithers, who asks you if he is required to join the union. He also asks you what benefits he may receive by becoming a union member and what the negative aspects of union membership are. How should you respond to him? Prepare a short memo outlining your response to his questions, supporting your comments with appropriate references.

The courts also give unions some leeway in exercising their contractual duties. In Steelworkers v. Rawson,3 the Supreme Court held that the allegations that the union had been negligent in its duty under the collective agreement to conduct safety inspections did not amount to a breach of the duty of fair representation because mere negligence, even in the performance of a contractual duty, does not amount to a breach of the duty of fair representation. Where a union’s work assignments were not irrational, the union did not breach duty of fair representation even though the work assignments had the effect of favoring skilled workers over unskilled workers.4 However, a union’s negligent failure to follow hiring hall rules may be a breach of the duty of fair representation, according to Jacoby v. NLRB.5 Although the courts allow unions broad latitude in negotiations, they may be more concerned with union decisions involving individual employee grievances. In Vaca v. Sipes,6 the Supreme Court held that an individual does not have an absolute right to have a griev- ance taken to arbitration, but the union must make decisions about the merits of a griev- ance in good faith and in a nonarbitrary manner.

In Vaca, the union refused to arbitrate the employee’s grievance. If the union decides to arbitrate the grievance but mishandles the employee’s claim, does it violate the duty of fair representation? What if the union gives the grievance only perfunctory handling? The following case addresses these questions.

CASE 18.2 hiNeS v. aNchoR MotoR FReight, iNc. 424 U.S. 554 (1976)

Facts: Two truck drivers employed by Anchor Motor Freight, Inc., were discharged for allegedly submitting expense claims in excess of the actual costs of their motel rooms. The relevant collective agreement provided that discharge required just cause. At a grievance meeting between the union and the employer, the employer presented the following: discharge was not for good cause, the employer was in viola- tion of the collective agreement. They also alleged that the union violated its duty of fair representation by arbitrarily failing to make an effort to investigate the employer’s charges of dishonesty. The union relied upon the decision of the arbitration panel, and the employer claimed that the employees had been properly discharged for just cause. The employer also claimed that the employees, diligently and in good faith represented by the union, had unsuccess- fully resorted to the grievance and arbitration machinery provided by the contract, and that the adverse decision of the arbitration panel was binding upon the union and employees under the collective agreement. During pretrial discovery proceedings, the motel clerk revealed that he had falsified the records and had pocketed the difference between the sums shown on the receipts and the registration cards. The trial court granted summary judgment for the employer and the union on the ground that the decision of the arbitration panel was final and binding on the employees and that they had failed to show that the union had acted arbi- trarily or in bad faith. The court stated that the union’s conduct of the investigation and arbitration may have demonstrated bad judgment on the part of the union, but it was insufficient to prove a breach of the duty of fair representation. The employees then appealed to the U.S. Court of Appeals, which reversed the decision of the trial court and held that the employees had presented sufficient evidence to support a finding of bad faith or arbitrary conduct on the part of the union. An appeal was taken to the U.S. Supreme Court. Issue: Can the union be sued for breach of the duty of fair representation when the employer’s discharge of the employees was held by the arbitration panel not to be in violation of the collective agreement? Decision: The Supreme Court noted that, in order to prevail against either the employer or the union, the employees must show not only that their discharge was in violation of the collective agreement requirement of just • • • the motel receipts submitted by the employees that showed charges in excess of the rates shown on the mo- tel’s registration cards; a notarized statement of the motel clerk asserting the accuracy of the registration cards; and an affidavit of the motel owner affirming that the reg- istration cards were accurate and that inflated receipts had been supplied to the employees. The union claimed petitioners were innocent and opposed the discharges. The grievance over the discharge was then submitted to arbitration under the collective agreement. The two employees suggested that the union investigate the motel, but the union responded that “there was nothing to worry about” and that they need not hire their own attorney. At the arbitration hearing, Anchor presented its case. Then both the union and employees were afforded an oppor- tunity to present their case. The employees denied the claim of dishonesty, but neither they nor the union presented any other evidence contradicting the documents presented by the company. The arbitration panel upheld the discharges. The employees then retained an attorney and sought rehearing based on a statement by the motel owner that the discrepancy between the receipts and the registration cards could have been attributable to the motel clerk’s recording on the cards less than what was actually paid and pock- eting the difference between the amount receipted and the amount recorded. The arbitration panel unanimously denied rehearing “because there was no new evidence presented which would justify reopening this case.” It was later discovered that the motel clerk was in fact the culprit. The discharged employees filed suit against both the union and the employer. They alleged that because their cause but must also carry the burden of demonstrating a breach of the duty of fair representation by the union. Such a showing requires more than just demonstrating mere errors in judgment. The employees are not entitled to relitigate their discharge merely because they offer newly discovered evidence that the charges against them were false and that in fact they were fired without cause. The grievance processes cannot be expected to be error-free. The finality provision of the collective agreement regarding arbitration has sufficient force to surmount occasional instances of mistake. However, an arbitration decision may be reopened where the employees’ representation by the union has been dishonest, in bad faith, or discriminatory. Here, in order to prevail, the employees must show that the arbitration deci- sion was in error because it was undermined by the union’s breach of the duty of fair representation. If they can make such a showing, then they are entitled to remedies against both the employer for violating the collective agreement and the union for breach of the duty of fair representation. The employer is not immunized from liability for discharge without just cause by reason of the union’s breach of the duty of fair representation. The Supreme Court reversed the court of appeals’ deci- sion affirming the dismissal of the suit against the employer.

Union Dues and the Duty of Fair Representation A union owes a duty of fair representation to all employees in the bargaining unit it repre- sents, whether or not the employees are members of the union. As you recall from Chapter 14, Section 8(a)(3) allows the employer and union to agree on a union security clause (unless there is a state right-to-work law that prohibits mandatory union membership or union dues). Union security clauses generally involve either a union shop clause, which requires employees to become union members within thirty days of their employment, or an agency shop clause, which requires employees to pay union dues and fees. Negotiating a union security clause that incorporates the language of Section 8(a)(3) of the NLRA is not a violation of the union’s duty of fair representation, as held in Marquez v. Screen Actors Guild.7 An employer who unilaterally ceases to deduct union dues from employees under a union security clause violates Sections 8(a)(1) and 8(a)(5), according to NLRB v. Oklahoma Fixture Co.8 Where the collective agreement contains a union shop agreement, a proviso to Section 8(a)(3) states that an employer may not discharge an employee for failing to join the union if union membership is denied for a reason other than failure to pay union dues or fees. In NLRB v. General Motors Corp.,9 the Supreme Court held that the effect of that proviso is to reduce an employee’s obligation under a union shop clause to “a financial core”—that is, simply to pay union dues and fees. According to the Supreme Court’s decision in Communications Workers of America v. Beck,10 unions may not use the dues or fees of employees who are not union members to pay for union activities not related to collective bargaining. Such employees are enti- tled to a reduction in dues and fees by the percentage of union expenditures that go for non–collective bargaining expenses. Employees who are not union members may not be charged for the portion of union dues spent on organizing activities outside the appro- priate bargaining unit, according to United Food and Commercial Workers Union, Local 1036 v. NLRB.11 However, in Lehnert v. Ferris Faculty Ass’n,12 the Supreme Court held that employees who are not union members but are subject to an agency fee provision under a collective agreement can be charged a pro rata share of the costs of union activities related to bargaining, litigation, preparation for a strike, and other union activities that may not directly benefit members of bargaining unit; they are not required to pay the costs of lobbying activity by the union. In Chicago Teachers Union, Local No. 1 v. Hudson,13 the Supreme Court held that the union is required to provide objecting members with infor- mation relating to the union expenditures on collective bargaining and political activities and must include an adequate explanation of the basis of dues and fees. The objecting members must also be provided with a reasonable opportunity to challenge, before an impartial decision maker, the amount of the dues or fees; the union must hold in escrow the disputed amounts pending the resolution of the challenges. Unions may require that disputes over the amount of agency fees charged to nonmembers be arbitrated. However, the objecting nonmembers, unless they have specifically agreed to arbitrate their dispute, are not required to exhaust the arbitration process before filing suit in federal court, as held in Air Line Pilots Association v. Miller.14 A state law that requires public sector unions to get affirmative authorization of the use of agency shop fees for political purposes does not violate the unions’ First Amendment rights, according to the Supreme Court decision in Davenport v. Washington Education Association.15 Where a union increases the fee, or imposes a new fee for the union’s political activities, it must inform nonmembers in the bargaining unit of the increase or new fee, and allow the nonmembers to choose whether to pay it.16 In Ysursa v. Pocatello Education Ass’n,17 the Supreme Court upheld the consti- tutionality of an Idaho state law that prohibited public sector employees from authorizing voluntary payroll deductions for union political activities. Shortly after taking office in 2001, President George W. Bush signed Executive Order 13201,18 which applied to all firms doing business with the federal government. The order required those firms to post notices in the workplace informing employees subject to a union security agreement that they have the right to refuse to pay the portion of their union dues that is expended for activities unrelated to collective bargaining, contract administration, or grievance adjustment. However, on January 30, 2009, President Barack Obama issued Executive Order 13496,19 which revoked Executive Order 13201. The new executive order requires employers to post a notice, the content of which will be established by the Secretary of Labor, informing employees of their rights under the National Labor Relations Act.

CASE 18.3 iNteRNatioNal BRotheRhood oF teaMSteRS, local 776, aFl-cio (caRoliNa FReight caRRieRS coRpoRatioN) 324 NLRB 1154 (NLRB 1997)

Michael O. Miller, ALJ ... Since before 1994, the Employer had recognized Respondent [union] (and the Teamsters National Freight Industry Negotiating Committee) as the exclusive collective- bargaining representative of its employees in a unit appropriate for collective-bargaining purposes. The collective-bargaining agreement includes a “Union Shop” clause which.”... [a]ll present employees who are not members of the Local union and all employees who are hired hereafter [to] become and remain members in good standing of the Local Union as a condition of employment on and after the thirty-first (31st) day following the beginning of their employment....” It further provides that an employee “who has failed to acquire, or thereafter maintain, membership in the Union ... shall be terminated seventy-two (72) hours after his Employer has received written notice from ... the Local Union.” ... Carolina hired Timothy Blosser on May 2, 1994, as a casual dock laborer. As a casual, he had no set or guaranteed hours; his schedule was determined each week.... The following case illustrates how the NLRB applies the Beck decision. On May 27, the Union sent Blosser a registered letter outlining what it asserted were his union membership and financial obligations. That letter stated: Our Constitution states that after thirty (30) calendar days, you are required to join the Local Union.... Your initi- ation fee is $200.00 plus the first month’s dues which is two times your hourly rate, plus one dollar ($1.00) assessment for the death benefit.... According to our records, your first day of employ- ment at Carolina Freight was May 2, 1994. Therefore, per the terms of our agreement with Carolina Freight and as outlined above, you are hereby notified that you must come into the Local Union office and join and/or become a member in good standing in the Local Union on, but not before June 2, 1994. Upon failure to comply on this date, we shall contact your employer to inform him that you are not eligible to work. If you have any questions regarding Teamsters Local Union No. 776 or are no longer employed by the above- mentioned company, please feel free to call. The letter omitted any reference to employee rights to opt out of full membership or pay less than the full amount of dues. On June 1, Blosser responded to the Union’s demand ... he described, as a violation of the duty of fair representation, a union’s maintenance and application of a union-security clause requiring membership in good standing without advising the unit employees that their obligation was limited to the payment of uniform initiation fees and dues. ... Blosser asserted that nonmembers “do not have to pay a fee equal to union dues,” that they “can only be required to pay a fee that equals their share of what the union can prove is its costs of collective bargaining, contract administration, and grievance adjustment with their employer.” ... The Union replied on June 3, notifying Blosser that “the fees established by our auditor is [sic] 87% of the two times the hourly rate, and $1.00 for the death benefit, plus the $200.00 initiation fee.” Accordingly, the dues, he was told, would be $26.10 per month. He had, he was told, seven days to comply before the employer would be informed not to assign him work. The correspondence continued. Blosser replied, insisting that, “before the union demands fees, an independent accountant’s verification of the union’s cost of collec- tive bargaining, NOT the union’s interpretation” must be provided. Because no such verification had been provided, Blosser asserted that no payment could be demanded and that he would await receipt of that verification. He also asserted that the initiation fee should similarly be reduced by the appropriate percentage, 87 percent according to the Union’s calculation. Finally, he requested a copy of the collective bargaining agreement. On June 20, the Union sent Blosser the “latest auditor’s verification of the core fees,” those for 1993, noting that the computations of the core fees using the 1994 financial information was [sic] in process. The computation showed the Union’s expenses and the portion of those expenses, if any, which were chargeable under Beck. It concluded that the expenses chargeable to protesting members amounted to 86.7 percent of the total expenses. Blosser was also told that copies of the National Master Freight Agreement and the supplement applicable to Carolina are “given to all members when they become members of the Union.” A hope was expressed that his dues and initiation fee would be received within 72 hours. On June 24, the Union sent Blosser a computer-gener- ated letter reiterating his obligation to pay the initiation fee and dues. The sums demanded were the full dues and initia- tion fee; there was no reference to any adjustments.... It also reiterated his obligation to “become a member in good standing” with no reference to his right to choose financial core membership and it threatened to notify his employer that he was ineligible to work if he did not comply within 72 hours. Blosser wrote back on June 27, asserting that he was entitled to the independent auditor’s complete audit or his complete review, as well as his opinion letter, for the Local’s expenses as well as those of the Union’s District and National levels, where some of the dues money goes. He also threat- ened to file an additional unfair labor practice charge if he did not get a copy of the collective-bargaining agreement, to which he claimed entitlement as a member of the unit. On June 29, the Union gave him a copy of the contract. The other information he sought, the Union stated, was “being investigated as to the legality;” he was promised a subsequent response. Blosser never became a member of the [union]; neither did he pay it any fees or dues. He volun- tarily left Carolina’s employ on June 29. ... The union-security clause in Respondent’s collective- bargaining agreement requires all employees “to become and remain members in good standing.” On May 27, and on June 24, the Union demanded that Blosser “join and/or become a member in good standing in the Local Union.” At no time was he told that he had a right to be and remain a nonmember. By failing to so inform him, Respondent breached the duty of fair representation owed to him as a member of the bargaining unit and thereby violated Section 8(b)(1)(A).... As set forth [by the NLRB] in California Saw & Knife Works (1995), a union, when it seeks to enforce a union- security clause, is required to inform the employees [who choose not to join the union] of their rights under Beck. Thus, they must tell the employees that they are not required to pay the full dues and fees, give those employees information upon which to intelligently decide whether to object, and apprise them of the union’s internal procedures for filing objections. Respondent did none of those when it made repeated demands upon Blosser that he join the Union and pay dues. It thus failed in its duty of fair repre- sentation, in violation of Section 8 (b)(1)(A). In its various demands that he pay the dues and the initiation fee and join the Union, Respondent gave Blosser only three to seven days in which to decide and act, on pain of the loss of his job if he failed to comply. At the times it did so, Respondent had not yet provided him with the Beck notifications to which he was entitled. General Counsel argues that by failing to give Blosser a reasonable time within which to satisfy his dues obligation, Respondent further breached its duty of fair representation. ... the complaint further alleges this conduct more generally as unlawful restraint and coercion. I agree. By threatening to cause his termination if he did not join the Union in an unreasonably short time and without the infor- mation necessary for him to reasonably decide whether to assume objector status, Respondent has restrained and coerced him in violation of Section 8(b)(1)(A). Respondent’s repeated demands upon Blosser continued to seek payment of the full $200 initiation fee, even after it acknowledged that some portion of the dues were [sic] not chargeable to objectors as representational expenses.... The complaint expressly raised the issue of the Union’s attempt to collect the full initiation fee from Blosser. Respondent offered no evidence that funds derived from initiation fees were expended differently than those derived from peri- odic dues and presented no argument on brief that initia- tion fees should be exempt from the Beck apportionment. Accordingly, I find that by seeking to require Blosser, a nonmember objector, to pay the full initiation fee, Respondent breached its duty of fair representation and thereby violated Section 8(b)(1)(A). In its computation of “core fees,” the Union included, as chargeable to objecting employees, its organizing expenses. The complaint alleges that by the inclusion of such expenses the Union has breached its duty of fair repre- sentation.... It is axiomatic that the organizing of other bargaining units, at least within the same industry and/or geographical area, strengthens a union’s hand in bargaining with the employer of objecting employees. Successful orga- nization of the employees of an employer’s competitors precludes that employer from arguing, at the bargaining table, that the lesser wages and benefits paid by his union- free competition prevents him from granting wage and benefit increases sought by the union which represents his employees. It also tends to increase the support which his employees will receive should they find it necessary to engage in economic action, such as a strike. Organizing of other employees thus inures “to the benefit of the members of the local union by virtue of their membership in the parent organization.” Moreover, in order to avoid the “free rider” problem . . . it is essential that a union be permitted to charge objecting nonmembers for its expenses in organizing other units. The bargaining unit in which the objector finds him or herself has already been organized. The expense of that organiza- tional effort was borne by the union (and its members in previously organized units) sometime in the past; it can no longer be charged to current employees. Only by permit- ting a union to pass along the cost of its current organizing efforts to the members of its already organized units can it equitably recoup those expenses.It may be that some organizing expenses are too remote, in terms of industry or geography, to pose more than a theoretical benefit to the objector’s bargaining unit. However ... I find that organizing expenses are not “neces- sarily nonchargeable ... as a matter of law” and recommend dismissal of this allegation. ... Having found that the Respondent has engaged in certain unfair labor practices, I find that it must be ordered to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act.... [On review by the NLRB, the Board affirmed the judge’s rulings, findings, and conclusions and adopted the recom- mended order.] Case Questions 1. What information does the NLRB require a union to provide to employees who choose not to become members? What information did the union provide to Blosser? 2. Why is the union allowed to include organizing expenses in the expenses chargeable to nonmembers? What is the free rider problem? 3. How was the union’s conduct coercive? What unfair labor practices did the union commit? Explain.Liability for Breach of the Duty of Fair Representation Most cases involving the duty of fair representation arise from action by the employer; after the employee has been disciplined or discharged, the union’s alleged breach of the duty compounds the problem. How should the damages awarded in such a case be divided between the employer and the union? Which party should bear primary liability? In Vaca v. Sipes,21 the Supreme Court held that an employer cannot escape liability for breach of the collective agreement just because the union has breached its duty of fair representation. Where the employee has established a breach of the collective agreement by the employer and a breach of the duty of fair representation by the union, the employer and the union must share liability. In Bowen v. U.S. Postal Service,22 the Supreme Court held that the employer is liable for back pay for the discharge of an employee in breach of the collec- tive agreement, whereas the union breaching the duty of fair representation by refusing to grieve the discharge is responsible for any increase in damages suffered by the employee as a result of the breach of the duty of fair representation. In Chauffeurs, Teamsters and Helpers, Local No. 391 v. Terry,23 the Supreme Court held that to recover damages against both the employer and the union, the employee must prove both that the employer’s actions violated the collective agreement and that the union’s handling of the grievance breached the duty of fair representation. The NLRB has held that when an employee has established that the union improperly refused to process a grievance or handled it in a perfunctory manner, the Board is prepared to resolve doubts about the merits of the grievance in favor of the employee, according to Rubber Workers Local 250 (Mack-Wayne Enclosures).24

ThE WORKING LAw

Notice of Employee Rights under Federal Labor Laws Required by Executive Order 13496 EMPLOYEE RIGHTS UNDER THE NATIONAL LABOR RELATIONS ACT

The NLRA guarantees the right of employees to organize and bargain collectively with their employers, and to engage in other protected concerted activity. Employees covered by the NLRA* are protected from certain types of employer and union misconduct. This Notice gives you general information about your rights, and about the obligations of employers and unions under the NLRA. Contact the National Labor Relations Board, the Federal agency that investigates and resolves complaints under the NLRA, using the contact information supplied below, if you have any questions about specific rights that may apply in your particular workplace. Under the NLRA, you have the right to: • Organize a union to negotiate with your employer concerning your wages, hours, and other terms and conditions of employment. • Form, join or assist a union. • Bargain collectively through representatives of employees’ own choosing for a contract with your employer setting your wages, benefits, hours, and other working conditions. • Discuss your terms and conditions of employment or union organizing with your co-workers or a union. • Take action with one or more co-workers to improve your working conditions by, among other means, raising work-related complaints directly with your employer or with a government agency, and seeking help from a union. • Strike and picket, depending on the purpose or means of the strike or the picketing. • Choose not to do any of these activities, including joining or remaining a member of a union. Under the NLRA, it is illegal for your employer to: • Prohibit you from soliciting for a union during non-work time, such as before or after work or during break times; or from distributing union literature during non-work time, in non-work areas, such as parking lots or break rooms. • Question you about your union support or activities in a manner that discourages you from engaging in that activity. • Fire, demote, or transfer you, or reduce your hours or change your shift, or otherwise take adverse action against you, or threaten to take any of these actions, because you join or support a union, or because you engage in concerted activity for mutual aid and protection, or because you choose not to engage in any such activity. • Threaten to close your workplace if workers choose a union to represent them. • Promise or grant promotions, pay raises, or other benefits to discourage or encourage union support. • Prohibit you from wearing union hats, buttons, t-shirts, and pins in the workplace except under special circumstances. • Spy on or videotape peaceful union activities and gatherings or pretend to do so. Under the NLRA, it is illegal for a union or for the union that represents you in bargaining with your employer to: • Threaten you that you will lose your job unless you support the union. • Refuse to process a grievance because you have criticized union officials or because you are not a member of the union. • Use or maintain discriminatory standards or procedures in making job referrals from a hiring hall. • Cause or attempt to cause an employer to discriminate against you because of your union-related activity. • Take other adverse action against you based on whether you have joined or support the union. If you and your coworkers select a union to act as your collective bargaining representative, your employer and the union are required to bargain in good faith in a genuine effort to reach a written, binding agreement setting your terms and conditions of employment. The union is required to fairly represent you in bargaining and enforcing the agreement. Illegal conduct will not be permitted. If you believe your rights or the rights of others have been violated, you should contact the NLRB promptly to protect your rights, generally within six months of the unlawful activity. You may inquire about possible violations without your employer or anyone else being informed of the inquiry. Charges may be filed by any person and need not be filed by the employee directly affected by the violation. The NLRB may order an employer to rehire a worker fired in violation of the law and to pay lost wages and benefits, and may order an employer or union to cease violating the law. Employees should seek assistance from the nearest regional NLRB office, which can be found on the Agency’s website: www.nlrb.gov. Click on the NLRB’s page titled “About Us,” which contains a link, “Locating Our Offices.” You can also contact the NLRB by calling toll-free: 1-866-667-NLRB (6572) or (TTY) 1-866-315-NLRB (6572) for hearing impaired. *The National Labor Relations Act covers most private-sector employers. Excluded from coverage under the NLRA are public-sector employees, agricultural and domestic workers, independent contractors, workers employed by a parent or spouse, employees of air and rail carriers covered by the Railway Labor Act, and supervisors (although supervisors that have been discriminated against for refusing to violate the NLRA may be covered).

Enforcing the Duty of Fair Representation In Miranda Fuel Co.,25 the NLRB held that a breach of the duty of fair representation by a union was a violation of Section 8(b)(1)(A) of the NLRA. The Board reasoned that “Section 7 ... gives employees the right to be free from unfair or irrelevant or invidious treatment by their exclusive bargaining agent in matters affecting their employment.” Although the Court of Appeals for the Second Circuit refused to enforce the Board’s order in Miranda,26 other courts of appeals have affirmed NLRB findings of Section 8(b)(1)(A) violations in subsequent duty of fair representation cases. The NLRB continues to hold that breach of the duty of fair representation by a union is an unfair labor practice. The NLRB does not have exclusive jurisdiction over claims of the breach of the duty of fair representation; federal courts also may exercise jurisdiction over such claims according to the Supreme Court in Breininger v. Sheet Metal Workers Local 6.27 The cases developing the duty of fair representation that we have seen so far have involved lawsuits filed against both the union and the employer. Such suits are filed under Section 301 of the NLRA, may be filed either in state or federal courts, and are subject to federal labor law, not state contract law. In Steelworkers v. Rawson,28 the Supreme Court held that a wrongful death suit brought under state law against a union by the heirs of miners killed in an underground fire was preempted by Section 301. According to the Supreme Court in Chauffeurs, Teamsters and Helpers, Local No. 391 v. Terry, an employee who seeks back pay as a remedy for a union’s violation of the duty of fair representation is entitled to a jury trial. In DelCostello v. Teamsters,29 the Supreme Court held that the time limit for bringing a suit under Section 301 alleging a breach of the duty of fair representation is six months. In cases where the employee is required to exhaust internal procedures, the six-month time limit does not begin to run until those procedures have been exhausted, according to Frandsen v. BRAC.30 A suit against a union for failing to enforce an arbitration award is an action for breach of the duty of fair representation and is subject to the six-month limitations period, as held by Carrion v. Enterprise Association, Metal Trades Branch Local Union 638.31 Exhausting Internal Remedies We have seen that the duty of fair representation may be enforced by either a Section 301 suit or a Section 8(b)(1)(A) unfair labor practice proceeding. Before either action can be initiated, however, the employee alleging breach of the duty of fair representation must attempt to exhaust internal remedies that may be available. Because most complaints of breaches of the duty of fair representation result from employer actions, such as discharge or discipline, which are then compounded by the union’s breach of its duty, the affected employee may have the right to file a grievance under the collective bargaining agreement to challenge the employer’s actions. When contractual remedies—the grievance procedure and arbitration—are available to the employee, he or she must first attempt to use those procedures. This means that the employee must file a grievance and attempt to have it processed through to arbitration before filing a Section 301 suit or a Section 8(b)(1)(A) complaint. The requirement of exhausting contractual remedies flows from the policy of fostering voluntary settlement of disputes. This policy is behind the court’s deferral to arbitration (recall the Steelworkers Trilogy from Chapter 17) and the NLRB deferral to arbitration (recall the discussion of that policy in Chapter 17). The requirement of exhausting contractual remedies is not absolute. In Glover v. St. Louis–San Francisco Railway,32 the Supreme Court held that employees need not exhaust contract remedies when the union and employer are cooperating in the violation of employee rights. In such cases, attempts to get the union to file a grievance or to process it through to arbitration would be an exercise in futility. Aside from contractual remedies, an employee may have available internal union procedures to deal with complaints against the union. Some union constitutions provide for review of complaints of alleged mistreatment of union members by union leaders. For example, if local union officials refuse to submit the employee’s grievance to arbitration, the employee may appeal that decision to the membership of the local. An appeal to the inter- national union leadership may also be available. Should an employee be required to exhaust such internal union remedies before filing a suit or unfair practice complaint alleging breach of the duty of fair representation? In Clayton v. United Auto Workers,33 the Supreme Court held that an employee is not required to exhaust internal union remedies when the internal union appeals procedure cannot result in reactivation of the employee’s grievance or award the complete relief sought by the employee. In such cases, the employee may file a Section 301 suit or a Section 8(b)(1)(A) complaint without exhausting the internal union remedies. If such remedies could provide the relief sought by the employee, they must be pursued before filing under Section 301 or Section 8(b)(1)(A). If the alleged breach of the duty of fair representation involves claims of discrimination based on race, sex, religion, or national origin, the affected employees may also have legal remedies under Title VII of the Civil Rights Act of 1964. Just as in Alexander v. Gardner-Denver (see Chapter 8), the remedies under Title VII are separate from any remedies under Section 301 or Section 8(b)(1)(A). The affected employees may then file a complaint with the Equal Employment Opportunity Commission under Title VII as well as filing under Section 301 and/or Section 8(b)(1)(A). Remedies available under an action for breach of the duty of fair representation depend on whether the employee pursues the claim under Section 301 or Section 8(b)(1)(A). Under Section 301, an action against both the employer and the union can be brought. An employee may recover monetary damages (but not punitive damages) and legal fees and may get an injunction (such as ordering the union to arbitrate the grievance or ordering the employer to reinstate the employee). Under Section 8(b)(1)(A), the NLRB can order the union to • • • pay compensation for lost wages, benefits, and legal fees; arbitrate the grievance; and “cease and desist” from further violations. If the employee’s complaint involves action by both the employer and the union, Section 301 would be preferable; if only the union is involved, either Section 301 or Section 8(b)(1)(A) is appropriate

18-2 Rights of Union Members

In addition to being protected by the duty of fair representation, union members have certain rights against the union guaranteed by statute. The union members’ bill of rights under the Labor Management Reporting and Disclosure Act and Section 8(b)(1) establishes those rights. 18-2a Union Discipline of Members Section 8(b)(1)(A) prohibits union actions that restrain, coerce, or interfere with employee rights under Section 7. Section 8(b)(1)(A), however, does provide that “This paragraph shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein.” In NLRB v. Allis-Chalmers Mfg. Co.,34 the Supreme Court held that a union could impose fines against members who crossed a picket line and worked during an authorized strike. In NLRB v. Boeing Co.,35 the Supreme Court held that a union may file suit in a state court to enforce fines imposed against members. However, if union members legally resign from the union before crossing the picket line and return to work during a strike, the union cannot impose fines against them, as held by the Supreme Court in NLRB v. Textile Workers Granite State Joint Board.36 Where the process used by a union to determine the amount of fines levied against members does not allow the fines to be apportioned between the members’ conduct before and after they resigned from the union, the NLRB will rescind the entire amount of the fines, according to Sheet Metal Workers Ass’n.37 In response to the Textile Workers Granite State Joint Board decision, a number of unions adopted rules that limited the right of members to resign from the union during a strike. Such rules violate Section 8(b)(1)(A) according to the Supreme Court decision in Pattern Makers’ League of North America v. NLRB.38 Where workers in a right-to-work state resign from the union but continue to work in the bargaining unit, and later decide to rejoin the union, a union rule requiring them to pay a “reinitiation” fee equal to the amount of union dues that they would have paid had they remained in the union did not violate Section 8(b)(1)(A), as held in Lee v. NLRB.39 18-2b Union Members’ Bill of Rights The Labor Management Reporting and Disclosure Act (LMRDA) seeks to ensure that union members are guaranteed certain rights when subjected to internal union proceedings. Section 101 of the LMRDA is commonly called the union members’ bill of rights. Union Disciplinary Procedures Procedural safeguards against improper disciplinary action are provided by Section 101(a)(5), which states: No member of any labor organization may be fined, suspended, expelled, or otherwise disciplined except for nonpayment of dues by such organization or by any officer thereof unless such member has been (A) served with written specific charges; (B) given a reasonable time to prepare his defense; (C) afforded a full and fair hearing. Section 102 of the LMRDA allows any person whose rights under the act have been violated to bring a civil suit in the federal courts for such relief as may be appropriate. In Wooddell v. International Brotherhood of Electrical Workers, Local 71,40 the Supreme Court held that a union member suing under the LMRDA, alleging discrimination against him by the union in job referrals through the union hiring hall, was entitled to a jury trial. When a union member alleges that his or her rights have been violated by union disci- plinary action, what standards should the court apply to determine if the union procedure was reasonable? This question was addressed by the following Boilermakers v. Hardeman case. To have a valid claim under Section 101(a)(5) and Section 102, the union member must been subjected to discipline by the union. In Breininger v. Sheet Metal Workers Local 6,41 the Supreme Court held that Breininger’s suit over the union’s failure to refer him under a hiring hall agreement because he supported a political rival of the union business manager did not state a claim under the LMRDA. The Court held that the failure to refer him was not “discipline” within the meaning of the act. Where a union pursuing disciplinary action against a member did not allow the member to record the disciplinary hearing and allowed a biased decision maker to sit as a member of the hearing board, the union was held to have violated the LMRDA due process requirements, according to Knight v. Longshoremen, ILA.42

CASE 18.4 BoileRMakeRS v. haRdeMaN 401 U.S. 233 (1971

Facts: George Hardeman was a boilermaker and a member of Local Lodge 112 of the International Brotherhood of Boilermakers. He went to the union hiring hall to see Herman Wise, business manager of the local, who was the official responsible for referring workers for jobs. An employer who was a friend of Hardeman had promised to ask for him by name for a job. He sought an assurance from Wise that he would be referred for the job, but Wise refused to make a definite commitment. Hardeman threatened violence if no work was forthcoming in the next few days. Hardeman returned to the hiring hall the next day and waited for a referral, but there was none. He returned to the hiring hall the next day, and when Wise came out of his office, Hardeman handed him a copy of a telegram asking for Hardeman by name. As Wise was reading the telegram, Hardeman began punching him in the face. The union brought disciplinary charges against Hardeman. He was tried on charges of creating dissension and working against the interest and harmony of the local, and of threat- ening and using force to restrain an officer of the lodge from properly discharging the duties of his office. The trial committee found him guilty of the charges, and the local sustained the finding and voted his expulsion for an indefinite period. Hardeman then sought an internal union appeal of this action, but the verdict and the penalty were upheld. Five years later, Hardeman filed suit against the union, alleging that it violated Section 101(a)(5) by denying him a full and fair hearing in the union disciplinary proceedings. After a jury trial, Hardeman was awarded damages of $152,150. On appeal, the U.S. Court of Appeals for the Fifth Circuit affirmed the trial decision. The union then appealed to the U.S. Supreme Court. Issue: What standards should the courts use to review whether union disciplinary procedures are reasonable under Section 101(a)? Decision: The union claimed that the NLRB had exclusive jurisdiction over the subject matter of this lawsuit because it involves an allegation of discrimination against Hardeman in job referrals, which is arguably an unfair labor practice under Sections 8(b)(1)(A) and 8(b)(2) of the NLRA and that the federal courts must defer to the exclusive competence of the NLRB. The Court rejected that claim, holding that Hardeman’s suit alleged that his expulsion was unlawful under Section 101(a)(5), and he sought compensation for the consequences of the claimed wrongful expulsion. The issue presented by Hardeman’s suit was whether the union disciplinary proceedings had denied him a full and fair hearing within the meaning of Section 101(a)(5)(c). Congress explicitly referred claims under Section 101(a)(5) not to the NLRB, but to the federal district courts, as stated in Section 102. The internal union procedures resulted in Hardeman being convicted on both charges, and he was expelled from the union. When the trial court was considering Hardeman’s suit against the union, the trial judge held that whether Hardeman was rightfully or wrongfully expelled was a question of law for the judge to determine. The judge assumed that the transcript of the union disciplinary hearing contained evidence adequate to support conviction of using threats or force against an officer of the union, but held that there was no evidence in the transcript to support the charge of creating dissension and working against the interest and harmony of the local. Because the union tribunal had returned only a general verdict, and since one of the charges was thought to be supported by no evidence whatsoever, the trial judge held that Hardeman had been deprived of the full and fair hearing guaranteed by Section 101(a)(5), and the court of appeals affirmed. The Supreme Court disagreed, holding that neither the language nor the legislative history of Section 101(a)(5) could justify the substitution of judicial authority for the union’s authority to interpret its regula- tions when determining whether the scope of offenses warrant discipline of union members. The Court stated that Section 101(a)(5) was not intended to authorize courts to determine the scope of offenses for which a union may discipline its members, and it is not appropriate for a court to construe the union’s written disciplinary rules in order to determine whether particular conduct may be punished at all. Here, Hardeman was given a detailed statement of the facts relating to the fight which formed the basis for the disci- plinary action against him, which complied with the notice requirement of Section 101(a)(5). Section 101(a)(5)(c) guarantees union members a “full and fair” disciplinary hearing, and the parties and the lower federal courts are in full agreement that this guarantee requires the charging party to provide some evidence at the disciplinary hearing to support the charges made. The courts have repeat- edly held that conviction on charges unsupported by any evidence is a denial of due process, and Section 101(a)(5)(c) imports a similar requirement into union disciplinary proceedings. In this case, there is no question that the charges were adequately supported by “some evidence.” The Supreme Court reversed the court of appeals’ deci- sion affirming the trial court verdict.

Free Speech and Association Whereas Section 101(a)(5) guarantees union members’ procedural rights in union disci- plinary proceedings, the other provisions of Section 101(a) provide for other basic rights in participating in union activities. These rights take precedence over any provisions of union constitutions or bylaws that are inconsistent with Section 101 rights. Section 101(b) states that any such inconsistent provisions shall have no effect. Section 101(a)(2) provides for the rights of freedom of speech and assembly for union members. Every union member has the right to meet and assemble with other members and to express any views or opinions, subject to the union’s reasonable rules for the conduct of meetings. As long as any item of business is properly before a union meeting, a union member may express his or her views on that item of business. The latitude given to union members to express their opinions at union meetings is very broad. Any restrictions on such expression must be reasonable and required for the orderly conducting of union meet- ings. Violations of these rights give rise to civil liability. In Hall v. Cole,43 a union member was expelled from the union after introducing a series of resolutions alleging undemocratic actions and questionable policies by union officials. The union claimed such resolutions violated a rule against “deliberate and malicious vilification with regard to the execution or duties of any office.” The member filed suit under Section 102, alleging violations of his rights guaranteed by Section 101(a)(2). The Supreme Court upheld the trial decision ordering that the member be reinstated in the union and awarding him $5,500 in legal fees. In Sheet Metal Workers International Association v. Lynn,44 an elected business agent of the union filed suit under Section 102 over his removal from office because of statements he made at a union meeting opposing a dues increase sought by the union trustee. The Supreme Court held that his removal from office constituted a violation of the free speech provisions of Section 101(a)(2). In United Steelworkers of America v. Sadlowski,45 the Supreme Court held that a union rule prohibiting contributions from nonmembers in campaigns for union offices did not violate a union member’s right of free speech and assembly under Section 101(a)(2), even though it had the effect of making a challenge to incumbent union officers much more difficult. The courts have recognized some other limits on union members’ rights of free speech and assembly. A union member cannot preach “dual unionism”—that is, advocate member- ship in another union during his union’s meeting. Furthermore, the remarks of a union member are subject to libel and slander laws. The right of free assembly does not protect a group of members who engage in a wildcat strike that violates the union’s no-strike agree- ment with the employer. Right to Participate in Union Affairs The right of union members to participate in all membership business, such as meetings, discussions, referendums, and elections, is guaranteed by Section 101(a)(1) of the LMRDA. This right to participate is subject to the reasonable rules and regulations of the union’s constitution and bylaws. Any provisions that are inconsistent with these rights are of no effect by reason of Section 101(b). The provisions of the LMRDA allow a union to require that members exhaust internal union remedies before pursuing external action for violation of the rights granted by the LMRDA. Section 101(a)(4) does provide, however, that the internal union proceedings cannot last longer than four months. If the proceedings take longer than four months, the member is not required to pursue them before instituting external proceedings.Election Procedures Title IV of the LMRDA requires that union elections be conducted according to certain democratic procedures. Section 401 sets the following requirements: • National and international labor organizations must elect their officers at least every five years • Every local union must hold elections at least every three years • Elections shall be by secret ballot or at a convention of delegates chosen by secret ballot • There must be advance notice of the election, freedom of choice among candidates, and publication and one year’s preservation of the election results • Dues and assessments cannot be used to support anyone’s candidacy • Every candidate has the right to inspect lists of members’ names and addresses • Each candidate has the right to have observers at polling places and at the counting of the ballots In the case of International Organization for Masters, Mates & Pilots v. Brown,46 the Supreme Court held that labor unions must cooperate with all reasonable requests from candidates for union office to distribute campaign literature despite union rules restricting such requests. In that case, the Court decided that a union refusal to provide a membership list to a candidate because of a union rule prohibiting preconvention mailings was in violation of the LMRDA. The election provisions of the LMRDA also prohibit unduly restrictive eligibility requirements that enable incumbents to become entrenched in office. Such eligibility requirements are the subject of the following case.

CASE 18.5 heRMaN v. local 1011, uNited SteelwoRkeRS oF aMeRica 207 F.3d 924 (7th Cir. 2000), cert. denied, 531 U.S. 1010 (2000)

Posner, Chief Judge Section 401(e) of the Labor–Management Reporting and Disclosure Act [LMRDA] makes all union members in good standing eligible to run for office in the union’s elections subject to “reasonable qualifications uniformly imposed.” The constitution of the steel-workers inter- national union conditions eligibility for local office on the member’s having attended at least eight of the local’s monthly meetings (or been excused from attendance at them, in which event he must have attended one-third of the meetings from which he was not excused) within the two years preceding the election. Noting that the rule disqualifies 92 percent of the almost 3,000 members of Local 1011 of the steelworkers union, the district judge, at the behest of the Secretary of Labor ... declared the rule void. The Act’s aim was to make the governance of labor unions democratic. The democratic presumption is that any adult member of the polity, which in this case is a union local, is eligible to run for office.... As an original matter we would think it, not absurd, but still highly questionable, to impose a meeting-attendance requirement on aspirants for union office, at least in the absence of any information, which has not been vouchsafed us, regarding the character of these meetings. All we know is that they are monthly and that the union’s constitution requires that all expenditure and other decisions of the union’s hierarchy be approved at these meetings; yet despite the formal power that the attendants exercise, only a tiny percentage of the union’s membership bothers to attend— on average no more than 3 percent (fewer than 90 persons). We are not told whether an agenda or any other material is distributed to the membership in advance of the meeting to enable members to decide whether to attend and to enable them to participate intelligently if they do attend. We do not know how long the meetings last or what information is disseminated at them orally or in writing to enable the attenders to cast meaningful, informed votes. For all we know the only attenders are a tiny coterie of insiders not eager to share their knowledge with the rest of the union’s members.... All we know for sure about this case, so far as bears on the reasonableness of the meeting-attendance requirement, is that the requirement disqualifies the vast majority of the union’s members, that it requires members who have not been attending meetings in the past to decide at least eight months before an election that they may want to run for union office (for remember that the meetings are monthly and that a candidate must have attended at least eight within the past two years unless he falls within one of the excuse categories), and that the union itself does not take the requirement very seriously, for it allows members who have attended no meetings to run for office, provided that they fall into one of the excuse categories. The catego- ries are reasonable in themselves—service with the armed forces, illness, being at work during the scheduled time of the meeting, and so forth—and they expand the pool of eligibles from 95 union members to 242, of whom 53 attended not a single meeting. But if the meeting- attendance requirement were regarded as a vital condi- tion of effective officership, equivalent in importance to the LMRDA’s requirement that the candidate be a union member in good standing, the fact that a member was without fault in failing to satisfy it would not excuse the failure.... So many of the union’s members are excused from the meeting-attendance requirement that there could be an election for officers of Local 1011 at which none of the candidates satisfied the requirement. The requirement is paternalistic. Union members should be capable of deciding for themselves whether a candidate for union office who had not attended eight, or five, or for that matter any meetings within the past two years should by virtue of his poor attendance forfeit the electorate’s consideration. The union’s rule is antidem- ocratic in deeming the electors incompetent to decide an issue that is in no wise technical or esoteric—what weight to give to a candidate’s failure to have attended a given number of union meetings in the recent past. . . . And since most union members interested in seeking an office in the union are likely to attend meetings just to become known ... the rule is superfluous. ... Under conditions of pervasive apathy, a requirement of attending even a single meeting might disqualify the vast bulk of the membership. That is true here. Only 14 percent of the members attended even one meeting within the last two years. Yet the Department of Labor does not argue that therefore even a one-meeting requirement would be unreasonable. ... We think the proper approach, and one that is consistent with the case law ... is to deem a condition of eligibility that disqualifies the vast bulk of the union’s membership from standing for union office presump- tively unreasonable. The union must then present convincing reasons, not merely conjectures, why the condition is either not burdensome or though burden- some is supported by compelling need. This approach distinguishes ... between impact and burden. A require- ment that to be eligible to be a candidate a member of the union have attended one meeting of the union in his lifetime would not be burdensome even though it might disqualify a large fraction of the union membership simply because very few members took any interest in the governance of the union. That defense is unavailable here, however. Requiring attendance at eight meetings in two years imposes a burden because it compels the prospec- tive candidate not only to sacrifice what may be scarce free time to sit through eight meetings, but also, if he is disinclined to attend meetings for any reason other than to be able to run for union office, to make up his mind whether to run many months before the election. The burden is great enough in this case to place the onus of justification on the union. The only justification offered is that the requirement of attending eight meetings in two years encourages union members who might want to run for office, perhaps especially opponents of the incumbents, to attend union meetings (since otherwise they may not be eligible to run), thus bolstering attendance at the meetings and fostering participatory democracy. The slight turnout at the meetings suggests that this goal, though worthy, cannot be achieved by the means adopted; the means are not adapted to the end, suggesting that the real end may be different. So far as appears, the union has given no consid- eration to alternative inducements to attend meetings that would not involve disqualifying from office more than nine- tenths of its members.... Under the rule challenged in this case, a union member who wanted to be sure of qualifying for eligibility to run for office might have to start attending meetings as much as a year in advance of the election, because he might miss one or more meetings for reasons that the union does not recognize as excusing (such as vaca- tion or family leave) and because the union might cancel one or more meetings. And yet a year before the election an issue that might move a union member to incur the time and expense of running for office might not even be on the horizon.... The district court was right to invalidate the meeting- attendance requirement as unreasonable, and the judgment is therefore. AFFIRMED. Case Questions 1. What does the election rule require of members who want to run for union office? Why would the union impose such a requirement? 2. Why has the Secretary of Labor (Herman) challenged the election-eligibility rule? 3. What does the court mean by distinguishing “between impact and burden” of the challenged rule? How does the court’s approach apply to the rule at issue in this case?

18-2c Other Restrictions on Unions Duties of Union Officers The provisions of the LMRDA and the Taft-Hartley amendments to the NLRA imposed a number of duties on union officers to eliminate financial corruption and racketeering and to safeguard union funds. All officials handling union money must be bonded, and persons convicted of certain criminal offenses are barred from holding union office for five years. Unions are also subjected to annual reporting requirements by the LMRDA. The union reports, filed with the Secretary of Labor, must contain the following information: • the name and the title of each officer; • the fees and dues required of members; • provisions for membership qualification and issuing work permits; • the process for electing and removing officers; • disciplinary standards for members; • details of any union benefit plans; and • authorization rules for bargaining demands, strikes, and contract ratification. Any changes in the union constitution, bylaws, or rules must be reported. In addition, detailed financial information must be reported annually; these financial reports must contain information on the following: • assets and liabilities at the beginning and end of the fiscal year; • union receipts and their sources; • salaries paid by the union in excess of $10,000 total; • any loans by the union in excess of $250; and • any other union disbursements. All reports and information filed with the Secretary of Labor must also be made avail- able to union members. Union officials must report any security or financial interest in, or any benefit received from, any employer whose employees are represented by the union and anything of value received from any business dealing connected with the union. The LMRDA imposes on union officers a duty to refrain from dealing with the union as an adverse party in any manner connected with their duties and to refrain from holding or acquiring any personal or pecuniary interest that conflicts with the interests of the union, according to Chathas v. Local 134 I.B.E.W.47 Employers are required to make annual reports of any expenditures or transactions with union representatives and payments to employees or consultants for the purpose of influencing organizational or bargaining activities. Welfare and Pension Plans Section 302 of the Taft-Hartley Act, along with the Employee Retirement Income Security Act (ERISA), controls the operation and administration of employee welfare and pension plans. Persons administering such funds must handle them to protect the interests of all employees. Union officials serving as trustees or administrators of such funds may receive only one full- time salary. They must also be careful to keep their roles as trustee and union official separated. Section 304 of the Taft-Hartley Act, along with the federal election laws, control union political contributions and expenditures. Union dues or assessments may not be used to fund political expenditures. However, the union may establish a separate political fund if it is financed by voluntary contributions from union members. Members must be kept informed of the use of such funds and must not be subject to any reprisals in connec- tion with the collection of contributions. State laws may affect public sector unions; a law requiring public sector unions to get affirmative authorization of the use of agency shop fees for political purposes was valid and did not violate the unions’ First Amendment rights, as held by Davenport v. Washington Education Association.48

C H A P T E R 19

Public Sector Labor Relations

19-1 The rights of public sector employees to organize and bargain collectively are relatively recent legal developments. The National Labor Relations Act (NLRA) excludes employees of the federal, state, and local governments from its coverage. Only in the last several decades have Congress, the executive branch, and the states adopted legal provisions allowing public employees some rights to organize and bargain collectively. Furthermore, during the first dozen years of the 21st century, public employee unions have come under attack in several states. In these states, Republican governors and GOP-dominated legislatures have sought to withdraw collective bargaining rights and to rescind benefits from their unionized employees. They have sometimes succeeded in doing so. This chapter examines the legal provisions that enable public employees to engage in labor relations activities and the recent trend toward repealing and amending many of those laws. Labor relations legislation affecting the federal sector is exam- ined in some detail, and the recent developments in state legislation are also surveyed. Government as Employer Although many labor relations issues in the public sector are similar to those in the private sector, there are also significant differences. Actions taken by government employers with regard to their employees may raise issues regarding the constitutional rights of those employees. Both the U.S. Constitution and the various state constitutions regulate and limit government action affecting citizens. Because public sector workers are simultane- ously both citizens and employees, employers must respect their constitutional rights. The public sector employer may therefore be limited in its attempts to discipline or regulate its employees by constitutional requirements, such as “due process of law.” The private sector employer faces no similar constitutional problems. Another area in which public sector labor relations differ from the private sector involves the idea of sovereignty. The government, as government, is sovereign; it cannot vacate or delegate its sovereignty. The government may be obligated by law to perform certain func- tions and provide certain services, and government officials are given authority to take such actions and make such decisions as are necessary to perform those functions. Collective bargaining involves sharing decision-making power between the employer and the union; the employer and the union jointly determine working conditions, rates of pay, benefits, and so on. For the public sector employer, collective bargaining may involve delegating to the union the authority relating to the employer’s statutory obligations. Bargaining may also affect the financial condition of the employer, requiring tax increases or cutbacks in the level of public services provided by the government employer. Because of this concern over sharing or delegating government sovereignty with the union, public sector labor relations statutes may narrowly define terms and conditions of employment and limit the matters that are subject to collective bargaining to avoid the government employer abdicating its legal authority. In the federal government, for example, most employees have their wages set by statute. Collective bargaining in the federal service is precluded from dealing with any matter that is “provided for by Federal statute.” Some state public sector labor relations stat- utes do not provide for collective bargaining at all but rather for consultation or “meeting and conferring” on working conditions. A third area in which public sector employment differs from the private sector is the right to strike. The right to strike is protected by Section 7 of the NLRA for private sector workers. Public sector workers, in general, do not have the right to strike. The activities of the government employer are usually vital to the public interest. Disruptions of these activi- ties because of labor disputes could imperil the welfare of the public. For that reason, the right to strike by public sector workers may be prohibited (as in the federal government and most states) or be limited to certain employees whose refusal to work would not endanger the public safety or welfare (as in several states). The following case involves a challenge to the prohibitions of strikes by federal employees. The union representing postal clerks argues that such a prohibition violates their members’ constitutional rights to strike.

CASE 19.1 Postal Clerks v. Blount 325 F. Supp. 879 (U.S.D.C., D.C. 1971), aff’d, 404 U.S. 802 (1971

Per Curiam This action was brought by the United Federation of Postal Clerks (hereafter sometimes referred to as “Clerks”), an unincorporated public employee labor organization which consists primarily of employees of the Post Office Department, and which is the exclusive bargaining represen- tative of approximately 305,000 members of the clerk craft employed by defendant. Defendant Blount is the Postmaster General of the United States. The Clerks seek declaratory and injunctive relief invalidating portions of 5 U.S.C. Section 7311, 18 U.S.C. Section 1918, an affidavit required by 5 U.S.C. Section 3333 to implement the above statutes, and Executive Order 11491. The Government, in response, filed a motion to dismiss or in the alternative for summary judgment, and plaintiff filed its opposition thereto and cross motion for summary judgment.... 5 U.S.C. Section 7311(3) prohibits an individual from accepting or holding a position in the federal government or in the District of Columbia if he (3) participates in a strike ... against the Government of the United States or the government of the District of Columbia.... Paragraph C of the appointment affidavit required by 5 U.S.C. Section 3333, which all federal employees are required to execute under oath, states: I am not participating in any strike against the Government of the United States or any agency thereof, and I will not so participate while an employee of the Government of the United States or any agency thereof. 18 U.S.C. Section 1918, in making a violation of 5 U.S.C. Section 7311 a crime, provides: Whoever violates the provision of Section 7311 of Title 5 that an individual may not accept or hold a position in the Government of the United States or the government of the District of Columbia if he … (3) participates in a strike, or asserts the right to strike, against the Government of the United States or the District of Columbia ... shall be fined not more than $1,000 or imprisoned not more than one year and a day, or both. Section 2(e)(2) of Executive Order 11491 exempts from the definition of a labor organization any group which: asserts the right to strike against the Government of the United States or any agency thereof, or to assist or participate in such strike, or imposes a duty or obligation to conduct, assist or participate in such a strike. Section 19(b)(4) of the same Executive Order makes it an unfair labor practice for a labor organization to: call or engage in a strike, work stoppage, or slowdown; picket any agency in a labor–management dispute; or condone any such activity by failing to take affirmative action to prevent or stop it; ... Plaintiff contends that the right to strike is a fundamental right protected by the Constitution, and that the absolute prohibition of such activity by 5 U.S.C. Section 7311(3), and the other provisions set out above thus constitutes an infringement of the employees’ First Amendment rights of association and free speech and operates to deny them equal protection of the law. Plaintiff also argues that the language to “strike” and “participate in a strike” is vague and over- broad and therefore violative of both the First Amendment and the Due Process Clause of the Fifth Amendment. For the purposes of this opinion, we will direct our attention to the attack on the constitutionality of 5 U.S.C. Section 7311(3), the key provision being challenged.... At common law no employee, whether public or private, had a constitutional right to strike in concert with his fellow workers. Indeed, such collective action on the part of employees was often held to be a conspiracy. When the right of private employees to strike finally received full protection, it was by statute, Section 7 of the National Labor Relations Act, which “took this conspiracy weapon away from the employer in employment relations which affect interstate commerce” and guaranteed to employees in the private sector the right to engage in concerted activities for the purpose of collective bargaining. It seems clear that public employees stand on no stronger footing in this regard than private employees and that in the absence of a statute, they too do not possess the right to strike. The Supreme Court has spoken approvingly of such a restriction, and at least one federal district court has invoked the provisions of a predecessor statute, 5 U.S.C. Section 118p-r, to enjoin a strike by government employees. Likewise, scores of state cases have held that state employees do not have a right to engage in concerted work stoppages in the absence of legis- lative authorization. It is fair to conclude that, irrespective of the reasons given, there is unanimity of opinion on the part of courts and legislatures that government employees do not have the right to strike. Congress has consistently treated public employees as being in a different category than private employees. The National Labor Relations Act and the Labor-Management Relations Act of 1947 (Taft- Hartley) both defined “employer” as not including any governmental or political subdivisions, and thereby indi- rectly withheld the protections of Section 7 from govern- mental employees. Congress originally enacted the no-strike provision separately from other restrictions on employee activity by attaching riders to appropriations bills, which prohibited strikes by government employees.... Given the fact that there is no constitutional right to strike, it is not irrational or arbitrary for the Government to condition employment on a promise not to withhold labor collectively, and to prohibit strikes by those in public employment, whether because of the prerogatives of the sovereign, some sense of higher obligation associated with public service, to assure the continuing functioning of the Government without interruption, to protect public health and safety, or for other reasons. Although plaintiff argues that the provisions in question are unconstitutionally broad in covering all Government employees regardless of the type or importance of the work they do, we hold that it makes no difference whether the jobs performed by certain public employees are regarded as “essential” or “nonessential,” or whether similar jobs are performed by workers in private industry who do have the right to strike protected by statute. Nor is it relevant that some positions in private industry are arguably more affected with a public interest than are some positions in the Government service.... Furthermore, it should be pointed out that the fact that public employees may not strike does not interfere with their rights, which are fundamental and constitutionally protected. The right to organize collectively and to select representatives for the purposes of engaging in collective bargaining is such a fundamental right. But, as the Supreme Court noted in Local 232 v. Wisconsin Employment Relations Board, “The right to strike, because of its more serious impact upon the public interest, is more vulnerable to regulation than the right to organize and select representatives for lawful purposes of collective bargaining which this Court has characterized as a ‘fundamental right’ and which, as the Court has pointed out, was recognized as such in its decisions long before it was given protection by the National Labor Relations Act.” Executive Order 11491 recognizes the right of federal employees to join labor organizations for the purpose of dealing with grievances, but that Order clearly and expressly defines strikes, work stoppages and slowdowns as unfair labor practices. As discussed above, that Order is the culmination of a longstanding policy. There certainly is no compelling reason to imply the existence of the right to strike from the right to associate and bargain collectively. In the private sphere, the strike is used to equalize bargaining power, but this has universally been held not to be appropriate when its object and purpose can only be to influence the essen- tially political decisions of Government in the allocation of its resources. Congress has an obligation to ensure that the machinery of the Federal Government continues to function at all times without interference. Prohibition of strikes by its employees is a reasonable implementation of that obligation. Accordingly, we hold that the provisions of the statute, the appointment affidavit and the Executive Order, as construed above, do not violate any constitutional rights of those employees who are members of plaintiff’s union. The Government’s motion to dismiss the complaint is granted. Order to be presented. Case Questions 1. Do public sector employees have a constitutional right to strike? Is the right to strike protected at common law? 2. Does the right of employees to organize and join unions for purposes of collective bargaining include the right to strike? 3. Are the legislative prohibitions against strikes by federal employees constitutional? What is the rationale behind such prohibitions?

19-2 Federal Government Labor Relations 19-2a Historical Background It is not clear exactly when federal employees began negotiating over the terms of their employment, but informal bargaining began as long ago as 1883. In that year, the Pendleton Act, known as the Civil Service Act, was passed. It granted Congress the sole authority to set wages, hours, and other terms and conditions of federal employment. This act led to informal bargaining and congressional lobbying by federal employees seeking higher wages and better working conditions. In 1906, President Theodore Roosevelt halted the informal bargaining by issuing an executive order forbidding federal employees or their associations from soliciting increases in pay, either before Congress and its committees or before the heads of the executive agen- cies. Employees violating the order faced dismissal. In the years following the executive order, Congress passed several laws that gave limited organization rights to some federal workers. The Lloyd–La Follette Act of 1912 gave postal workers the right to join unions. In 1920, the federal government negotiated the terms of a contract with the union representing construction workers building the government-sponsored Alaskan Railroad. It was not until 1962, however, with the issuing of Executive Order 10988 by President Kennedy, that large numbers of federal employees were given the right to organize. The executive order recognized the right of federal workers to unionize and to present their views on terms and conditions of employment to the agencies for which they worked. Executive Order 10988 was supplemented by Executive Order 11491, which was issued in 1969 by President Nixon. That order placed the entire program of employee– management relations under the supervision and control of the Federal Labor Relations Council. The Federal Service Labor–Management Relations Act of 1978 (FSLMRA), which was enacted as part of the Civil Service Reform Act of 1978, was the first comprehensive enactment covering labor relations in the federal government. The FSLMRA took effect in January 1979. 19-2b The Federal Service Labor–Management Relations Act The FSLMRA, which was modeled after the NLRA, established a permanent structure for labor relations in the federal public sector. It created the Federal Labor Relations Authority (FLRA) to administer the act, and it granted federal employees the right to orga- nize and bargain collectively. It also prohibited strikes and other defined unfair practices. Coverage The FSLMRA covers federal employees who are either employed by a federal agency or who have ceased to work for the agency because of an unfair labor practice. Most federal agen- cies are covered, but some are specifically exempted. The following agencies are excluded from FSLMRA coverage: • the FBI • the CIA • the National Security Agency • the General Accounting Office • the Tennessee Valley Authority • the FLRA itself, and • the Federal Service Impasses Panel Furthermore, any agency that the president determines is investigative in nature or has a primary function of intelligence and would thus not be amenable to FSLMRA coverage because of national security may be excluded. The FSLMRA also excludes certain employees from coverage, including: • noncitizens working outside the United States for federal agencies; • supervisory and managerial employees; in pay, either before Congress and its committees or before the heads of the executive agen- cies. Employees violating the order faced dismissal. In the years following the executive order, Congress passed several laws that gave limited organization rights to some federal workers. The Lloyd–La Follette Act of 1912 gave postal workers the right to join unions. In 1920, the federal government negotiated the terms of a contract with the union representing construction workers building the government-sponsored Alaskan Railroad. It was not until 1962, however, with the issuing of Executive Order 10988 by President Kennedy, that large numbers of federal employees were given the right to organize. The executive order recognized the right of federal workers to unionize and to present their views on terms and conditions of employment to the agencies for which they worked. Executive Order 10988 was supplemented by Executive Order 11491, which was issued in 1969 by President Nixon. That order placed the entire program of employee– management relations under the supervision and control of the Federal Labor Relations Council. The Federal Service Labor–Management Relations Act of 1978 (FSLMRA), which was enacted as part of the Civil Service Reform Act of 1978, was the first comprehensive enactment covering labor relations in the federal government. The FSLMRA took effect in January 1979. 19-2b The Federal Service Labor–Management Relations Act The FSLMRA, which was modeled after the NLRA, established a permanent structure for labor relations in the federal public sector. It created the Federal Labor Relations Authority (FLRA) to administer the act, and it granted federal employees the right to orga- nize and bargain collectively. It also prohibited strikes and other defined unfair practices. Coverage The FSLMRA covers federal employees who are either employed by a federal agency or who have ceased to work for the agency because of an unfair labor practice. Most federal agen- cies are covered, but some are specifically exempted. The following agencies are excluded from FSLMRA coverage: • the FBI • the CIA • the National Security Agency • the General Accounting Office • the Tennessee Valley Authority • the FLRA itself, and • the Federal Service Impasses Panel Furthermore, any agency that the president determines is investigative in nature or has a primary function of intelligence and would thus not be amenable to FSLMRA coverage because of national security may be excluded. The FSLMRA also excludes certain employees from coverage, including: • noncitizens working outside the United States for federal agencies; • supervisory and managerial employees; is authorized to negotiate the terms and conditions of employment of the employees in the unit. The union must fairly represent all employees in the unit without discrimination or regard to union membership. The FLRA is authorized to settle questions relating to issues of representation, such as the determination of the appropriate unit and the holding of representation elections. Appropriate Representation Units The FLRA is empowered to determine the appropri- ateness of a representation unit of federal employees. The FLRA ensures the employees the fullest possible freedom in exercising their rights under the FSLMRA in determining the unit, and it ensures a clear and identifiable community of interest among the employees in the unit to promote effective dealing with the agency involved. The FLRA may determine the appropriate- ness of a unit on an agency, plant, installation, functional, or other basis. Units may not include: • Any management or supervisory employees • Confidential employees • Employees engaged in personnel work except those in a purely clerical capacity • Employees doing investigative work that directly affects national security • Employees administering the FSLMRA • Employees primarily engaged in investigation or audit functions relating to the work of individuals whose duties affect the internal security of an agency Any employees engaged in administering any provision of law relating to labor– management relations may not be represented by a labor organization that is affiliated with an organization representing other individuals under the act. An appropriate unit may include professional and nonprofessional employees only if the professional employees, by majority vote, approve their inclusion. RepresentationElections TheproceduresforrepresentationelectionsundertheFSLMRA closely resemble those for elections under the NLRA. The act allows for the holding of consent elections to determine the exclusive representative of a bargaining unit. It also provides that the FLRA may investigate the question of representation, including holding an election, if a petition is filed by any person alleging that 30 percent of the employees in a unit wish to be represented by a union for the purpose of collective bargaining. In addition, when a petition alleging that 30 percent of the members of a bargaining unit no longer wish to be represented by their exclusive representative union, the FLRA will investigate the representation question. If the FLRA finds reasonable cause to believe that a representation question exists, it will provide, upon reasonable notice, an opportunity for a hearing. If, on the basis of the hearing, the FLRA finds that a question of representation does exist, it will conduct a repre- sentation election by secret ballot. An election will not be held if the unit has held a valid election within the preceding 12 months. When an election is scheduled, a union may intervene and be placed on the ballot if it can show that it is already the unit’s exclusive representative or that it has the support of at least 10 percent of the employees in the unit. The election is by secret ballot, with the employees choosing between the union(s) and no representation. If no choice receives a majority of votes cast, a runoff election is held between the two choices receiving the highest number of votes. The results of the election are certified; if a union receives a majority of votes cast, it becomes the exclusive representative of the employees in the unit. A union that has obtained exclusive representation status is entitled to be present at any formal discussions between the agency and unit employees concerning grievances, personnel policies and practices, or other conditions of employment. The exclusive representative must also be given the opportunity to be present at any examination of an employee in the unit in connection with an agency investigation that the employee reasonably believes may result in disciplinary action, provided that he or she has requested such representation. (This right is the equivalent of the Weingarten rights established by the NLRB for organized employees in the private sector. See Chapter 14.) Consultation Rights If the employees of an agency have not designated any union as their exclusive representative on an agency-wide basis, a union that represents a substantial number of agency employees may be granted consultation rights. Consultation rights entitle the union to be informed of any substantive change in employment conditions proposed by the agency. The union is to be permitted reasonable time to present its views and recommendations regarding the proposed changes. The agency must consider the union recommendations before taking final action, and it must provide the union with written reasons for taking the final action. Collective Bargaining The FSLMRA requires that agencies and exclusive representatives of agency employees meet and negotiate in good faith. Good faith is defined as approaching the negotiations with a sincere resolve to reach a collective bargaining agreement, meeting at reasonable times and convenient places as frequently as may be necessary, and being represented at negotiations by duly autho- rized representatives prepared to discuss and negotiate on any condition of employment. In National Federation of Federal Employees, Local 1309 v. Dept. of the Interior,1 the Supreme Court held that the FLRA had the power to determine whether federal employers were required to engage in “midterm” bargaining—bargaining during the term of a collective agreement over subjects that were not included in the agreement. The FLRA, on remand from the Supreme Court, decided that the FSLMRA required employers to engage in midterm bargaining and the refusal to do so was an unfair labor practice under the FSLMRA.2 Conditions of Employment The act defines “conditions of employment” as including personnel policies, practices, and matters—whether established by rule, regulation, or otherwise—that affect working conditions. However, the act excludes the following from being defined as conditions of employment: • • • Policies relating to prohibited political activity Matters relating to the classification of any position Policies or matters that are provided for by federal statute Wages Wages for most federal employees are not subject to collective bargaining because they are determined by statute. Federal blue-collar employees are paid under the coordinated Federal Wage System, which provides for pay comparable to pay for similar jobs in the private sector. Federal white-collar employees are paid under the General Schedule (GS), and increases and changes in GS pay scales are made by presidential order. However, in Fort Stewart Schools v. Federal Labor Relations Authority,3 the Supreme Court considered the question of whether schools owned and operated by the U.S. Army were required to negotiate with the union representing school employees over mileage reimbursement, paid leave, and a salary increase. The school declined to negotiate, claiming that the proposals were not subject to bargaining under the FSLMRA. The school claimed that “conditions of employment” under the FSLMRA included any matter insisted upon as a prerequisite to accepting employment but did not include wages. The Supreme Court upheld an order of the FLRA that the school was required to bargain over wages and fringe benefits. Whereas the wages of most federal employees are set by law under the GS of the Civil Service Act, the school employees’ wages are exempted from the GS. Wages for the school employees, therefore, were within the conditions of employment over which the school was required to bargain. Section 7106 of the FSLMRA, which provides that “nothing in this chapter shall affect the authority of any management official of any agency to determine the ... budget ... of the agency....” did not exempt wages and fringe benefits from the duty to bargain. Agency management seeking to avail themselves of that provision to avoid bargaining over a proposal must demonstrate that the proposal would result in significant and unavoidable increases in costs. Management Rights The FSLMRA contains a very strong management-rights clause, which also restricts the scope of collective bargaining. According to that clause, collective bargaining is not to affect the authority of any management official or any agency to determine the mission, budget, organization, number of employees, or internal security practices of the agency. In addition, management’s right to hire, assign, direct, lay off, retain or suspend, reduce in grade or pay, or take disciplinary action against any employee is not subject to negotiation. Decisions to assign work, contract out work, or select candidates to fill positions are not subject to negotiation. The act also precludes bargaining over any actions necessary to carry out the mission of the agency during emergencies. The duty to bargain extends to matters that are the subject of any rule or regulation as long as the particular rule or regulation is not government-wide. However, if the agency determines there is a compelling need for such a regulation, it can refuse to bargain over that regulation. The exclusive representative must be given an opportunity to show that no compelling need exists for the regulation. Disputes over the existence of a compelling need are to be resolved by the FLRA.

CASE 19.2 u.s. DePartment of the navy v. feDeral laBor relations authority 665 F.3d 1339 (D.C. Cir. 2012)

Facts: In the mid-1990s, the Naval Undersea Warfare providing employees with bottled water. It did so after an Center Division in Newport, Rhode Island, began EPA report indicated that water fountains in some Navy buildings in Newport contained components manufac- tured with lead. Beginning in 2005, however, the Navy replaced the problematic water fountains, tested the tap water, and determined it safe to drink. The Navy then stopped providing bottled water; it did not negotiate with employee unions before removing the bottled water. The Navy reasoned that an agency has no duty or authority to bargain over or grant benefits that are prohibited by federal appropriations law. And the Navy concluded that providing bottled water when safe and drinkable tap water was available would violate the legal prohibition against use of appropriated funds for employees’ personal expenses. The unions representing civilian employees at the Newport facilities objected to the removal of the bottled water and filed grievances with the Navy. When negotia- tions did not yield a compromise, the unions sought binding arbitration. An arbitrator sided with the unions and ordered the Navy to continue providing bottled water on the ground that bottled water had become a condition of employment. The Federal Labor Relations Authority affirmed the arbitra- tor’s decision, holding that the Navy had a duty to bargain with the unions before removing the bottled water. Issue: Did the Navy have an obligation to bargain with the unions about the elimination of bottled water, and if not, should the arbitrator’s award be vacated? Decision: The Circuit Court of Appeals for the District of Columbia held that federal appropriations law barred the Navy from providing bottled water to its civilian employees when perfectly safe tap water was available. The appellate panel explained that the Appropriations Clause of the U.S. Constitution is “a bulwark” of the separation of powers, because in its absence the executive branch would have unbounded power to spend the taxpayers’ dollars. The Clause forbids the federal bureaucracy from spending public funds even accidentally, where statutory authority is lacking. Federal collective bargaining rights do not trump this hard- and fast-rule. A federal agency cannot bargain and contract with a labor union to spend money where Congress hasn’t given its approval. The FLRA is entitled to a high level of deference when it interprets the FSLMRA. But the FLRA gets no deference when it ventures to interpret other federal laws. The “necessary expense doctrine” comes into play when it’s unclear whether a specific expenditure is legally authorized or not. In this case, continued providing by the Navy of the bottled water clearly was no longer a necessary expense. The Navy, therefore, would have violated the law had it continued to provide the bottled water or if it had negotiated with the unions to that result. Consequently, it had no such duty to bargain before it changed this condition of employment, and the FLRA was out of bounds when it sought to enforce the arbitrator’s award to the contrary.

The agency’s duty to bargain includes the obligation to furnish, upon request by the exclusive representative, data and information normally maintained by the agency. Such data must be reasonably available and necessary for full and proper discussion of subjects within the scope of bargaining. Data related to the guidance, training, advice, or counsel of management or supervisors relating to collective bargaining are excluded from the obliga- tion to provide information. The duty to bargain in good faith also includes the duty to execute a written document embodying the terms of agreement, if either party so requests. Impasse Settlement The FSLMRA created the Federal Service Impasse Panel, which is authorized to take any actions necessary to resolve an impasse in negotiations. The Federal Mediation and Conciliation Service, created by the Taft–Hartley Act, also assists in the resolution of impasses by providing mediation services for the parties. If the mediation efforts fail to lead to an agreement, either party may request that the Federal Service Impasse Panel consider the dispute. The panel may either recommend procedures for resolving the impasse or assist the parties in any other way it deems appropriate. The formal impasse resolution procedures may include hearings, fact-finding, recommendations for settlement, or directed settlement. The parties may also seek binding arbitration of the impasse with the approval of the panel.

Grievance Arbitration The FSLMRA provides that all collective agreements under it must contain a grievance procedure. The grievance procedure must provide for binding arbitration as the final step in resolving grievances. If arbitration is invoked, either party may appeal the arbitrator’s decision to the FLRA for review within 30 days of the granting of the award. Upon review, the FLRA may overturn the arbitrator’s award only if it is contrary to a law, rule, or regulation or is inconsistent with the standards for review of private sector awards by the federal courts (see Chapter 17). If no appeal is taken from the arbitrator’s award within 30 days of the award, the arbitrator’s award is final and binding. When a grievance involves matters that are subject to a statutory review procedure, the employee may choose to pursue the complaint through the statutory procedure or through the negotiated grievance procedure. Examples would be grievances alleging discrimination in violation of Title VII of the Civil Rights Act of 1964, where the griever can elect to pursue the complaint through the grievance process or through the procedure under Title VII. Performance ratings, demotions, and suspensions or removals that are subject to civil service review procedures may be pursued either through the civil service procedures or the grievance procedure. Unfair Labor Practices The FSLMRA prohibits unfair labor practices by agencies and unions. The unfair labor practices defined in the act are similar to those defined by Sections 8(a) and 8(b) of the NLRA. Agency Unfair Practices Unfair labor practices by agencies under the FSLMRA include: • Interfering with or restraining the exercise of employees’ rights under the act • Encouraging or discouraging union membership by discrimination in conditions of employment • Sponsoring or controlling a union • Disciplining or discriminating against an employee for filing a complaint under the act • Refusing to negotiate in good faith • Refusing to cooperate in impasse procedures It is also an unfair labor practice for an agency to enforce any rule or regulation that conflicts with a preexisting collective bargaining agreement. Union Unfair Labor Practices Union unfair labor practices under the FSLMRA include: • Interfering with or restraining the exercise of employees’ rights under the act • Coercing or fining a member for the purpose of impeding job performance • Discriminating against an employee on the basis of race, color, creed, national origin, gender, age, civil service status, political affiliation, marital status, or disability • Refusing to negotiate in good faith • Refusing to cooperate in impasse procedures It is also an unfair labor practice for a union to call or condone a strike, work slow- down, or stoppage or to picket the agency if the picketing interferes with the agency’s oper- ations. Informational picketing that does not interfere with agency operations is allowed. Unfair Labor Practice Procedures When a complaint alleging unfair labor practices is filed with the FLRA, the General Counsel’s Office of the FLRA investigates the complaint and attempts to reach a voluntary settlement. If no settlement is reached and the investigation uncovers evidence that the act has been violated, a complaint is issued. The complaint contains a notice of the charge and sets a date for a hearing before the FLRA. The party against whom the complaint is filed has the opportunity to file an answer to the complaint and to appear at the hearing to contest the charges. If the FLRA finds, by a preponderance of evidence, that a violation has occurred, it will issue written findings and an appropriate remedial order. FLRA decisions are subject to judicial review by the federal courts of appeals. Unfair Labor Practice Remedies The FLRA has broad authority for fashioning remedial orders for unfair labor practices. Remedial orders may include cease-and-desist orders, reinstatement with back pay, rene- gotiation of the agreement between the parties with retroactive effect, or any other actions deemed necessary to carry out the purposes of the act. When a union has been found by the FLRA to have intentionally engaged in a strike or work stoppage in violation of the act, the FLRA may revoke the exclusive representation status of the union or take any other disciplinary action deemed appropriate. Employees engaging in illegal strikes are subject to dismissal. The FLRA may also seek injunctions, restraining orders, or contempt citations in the federal courts against striking unions. The following case involves the review of an FLRA order revoking the exclusive repre- sentation status of the air traffic controllers’ union because of its involvement in an illegal strike.

CASE 19.3 Professional air traffiC Controllers org. v. flra 685 F.2d 547 (D.C. Cir. 1982)

Facts: The Professional Air Traffic Controllers Organization (PATCO) was the exclusive bargaining representative for air traffic controllers employed by the Federal Aviation Administration (FAA) since the early 1970s. PATCO and the FAA began negotiations for a new contract in early 1981, and a tentative agreement was reached in June. That proposed agreement was overwhelmingly rejected in a vote by the PATCO membership. Following the rejection, the parties resumed negotiations in late July, and PATCO announced a strike deadline of August 3, 1981. When the negotiations failed to reach an agreement, PATCO went on strike against the FAA on August 3, 1981. Of the 9,304 air traffic controllers scheduled to work on August 3, only 2,308 reported for work, resulting in a significantly reduc- tion in the number of private and commercial flights in the U.S. President Reagan warned the strikers that if they did not return to work by August 5, they would be terminated. Approximately 11,000 air traffic controllers were fired. In addition, the FAA filed an unfair labor practice charge against PATCO with the Federal Labor Relations Authority (FLRA). An FLRA regional director issued a complaint on the unfair labor practice charge, alleging that the strike was prohibited by federal law and seeking revocation of PATCO’s certification under the Civil Service Reform Act. The FLRA held that PATCO had called or participated in an illegal strike, and revoked PATCO’s certification as exclusive bargaining representative of the air traffic control- lers. PATCO then sought judicial review of the FLRA deci- sion before the U.S. Court of Appeals for the D.C. Circuit. Issue: Did PATCO engage in an illegal strike, and should PATCO’s certification have been revoked? Decision: Federal employees have long been forbidden from striking against their employer, the federal govern- ment. Section 7311(2) of Title 5 of the U.S. Code prohibits a person who “participates in a strike ... against the Government of the United States” from accepting or holding a position in the federal government. Violating that prohibi- tion is a criminal offense. Newly hired federal employees are required to execute an affidavit attesting that they have not struck and will not strike against the government. In addition, since the beginning of formal collective bargaining between federal employee unions and the federal government, unions have been required under Executive Order No. 10988 to disavow using the strike as an economic weapon. Since 1969, striking has been expressly designated a union unfair labor practice.4 The Civil Service Reform Act, passed in 1978, added a new provision that authorized the FLRA to “revoke the exclusive recognition status” of a recognized union or “take any other appropriate disciplinary action” against any labor organization when that union has called, participated in, or condoned a strike, work stoppage, or slowdown against a federal agency in a labor–management dispute. Here, the FLRA held that PATCO had called or partici- pated in a strike in violation of federal law, and revoked PATCO’s status as exclusive bargaining representative for the air traffic controllers. The court of appeals held that the FLRA was fully justified in taking official notice of proceed- ings in the District Court for the District of Columbia that found PATCO and its president, Robert Poli, in contempt of court for violating the restraining order against the strike. Before the FLRA, PATCO offered no evidence to indicate that it even attempted to end the strike. The court of appeals therefore affirmed the FLRA finding that the strike was an unfair labor practice. The court then considered whether the FLRA prop- erly exercised its discretion under the act to revoke the exclusive recognition status of PATCO. The FLRA has substantial discretion under Section 7120(f) to decide whether or not to revoke the certification of a union found guilty by the FLRA of striking or condoning a strike against the government. On judicial review of the FLRA’s exercise of its remedial discretion, the court has a limited role. The court will uphold the remedial orders of the FLRA “unless it can be shown that the order is a patent attempt to achieve ends other than those which can fairly be said to effectuate the policies of the Act.” Here, the court of appeals had little trouble deciding that the FLRA did not abuse its discretion. The FLRA could take official notice that PATCO has repeatedly violated legal prohibitions against striking and other job actions in the past. PATCO openly defied the restraining orders and injunctions directed at the strike of August 3, 1981. PATCO made no attempt to end the strike. Even after the striking controllers had been terminated and the FLRA had ordered revocation of its exclusive recognition status, PATCO failed to satisfy the FLRA request that it end the strike and promise to abide by the no-strike provisions of the Civil Service Reform Act. PATCO was a repeat offender that has willfully ignored statutory proscriptions and judicial injunctions. The court affirmed the FLRA order finding PATCO had violated the legal prohibi- tions against strikes by federal employees, and revoking PATCO’s certification as exclusive bargaining representa- tive of the federal air traffic controllers.

19-2c Judicial Review of FLRA Decisions As the U.S. Navy and PATCO cases illustrate, final orders, other than bargaining unit deter- minations (as well as most, but not all, arbitration awards), are subject to review in the federal courts of appeals. The party seeking review has 10 days from the issuance of the FLRA decision to file a petition for review with the court of appeals for the appropriate circuit. Unless specifically authorized by the appeals court, the filing of a petition for review does not operate to stay the FLRA order. Upon review, the court may affirm, enforce, modify, or set aside the FLRA order. Findings of fact by the FLRA are deemed conclusive if they are supported by substan- tial evidence. The order of the court of appeals is subject to discretionary review by the Supreme Court

19-2d The Hatch Act The Hatch Act5 was enacted in 1939. Its long title is “An Act to Prevent Pernicious Political Activities.” As that mouthful suggests, it prohibits certain political activity by federal employees. Federal employees are prevented from taking an active part in the management of political campaigns and from running for office in a partisan political campaign. The act also restricts federal employees from engaging in political activity while on the job. The purposes of the restrictions on the political activities of federal employees are to: • • • avoid the appearance of political bias in government actions; prevent the coercion of federal employees to engage in political action or to support political positions; and avoid politicizing the federal civil service. In 1940 the act’s reach was extended to include employees of state and local govern- ments, whose positions are funded primarily by federal appropriations. In 1947 and again in 1974 the act survived challenges, based upon First Amendment free-speech arguments, in the U.S. Supreme Court. More recently, the act’s restrictions on political activity by federal employees were held to be constitutional in Burrus v. Vegliante.6 That case also held that the American Postal Workers Union’s use of bulletin boards in nonpublic areas of post offices to display political materials violated the Hatch Act prohibitions against political activities on the job. Most states have legislation similar to the Hatch Act to restrict political activities by state government employees.

19-2e Union Security Provisions A union that is granted exclusive representation rights under the FSLMRA must accept as a member any unit employee who seeks membership. A union may not require union membership as a condition of employment. This means that the collective agreement may not contain a closed shop or union shop provision. For the government employer to require that employees join a union in order to retain their jobs would violate the employees’ constitutional rights of association protected by the First Amendment (or Fourteenth Amendment if the employer is a state or local government agency). Agency shop provisions, which require that an employee pay union dues or fees but do not require union membership, do not raise the same constitutional problems. However, if the employee’s dues money is spent by the union on matters other than those relating to collective bargaining or representation issues, the employee is, in effect, forced to contribute to causes and for purposes that he or she may oppose. Does this “forced contribution” violate the employee’s constitutional rights? In Abood v. Detroit Board of Education,7 the Supreme Court held that union expendi- tures for expression of political views, in support of political candidates, or for advancement of ideological causes not related to its duties as bargaining agent can be financed only from dues or assessments paid by employees who do not object to advancing such ideas and who are not coerced into doing so. To do otherwise violates the First Amendment rights of the employees who object to such expenditures. The Court held that employees who object to political expenditures by the union are entitled to a refund of that portion of their dues payments that represents the proportion that union political expenditures bear to the total union expenditures. A state law requiring public sector unions to get affir- mative authorization of the use of agency shop fees for political purposes was valid and did not violate the unions’ First Amendment rights, according to Davenport v. Washington Education Association.8 In Ysursa v. Pocatello Education Association,9 the Supreme Court held that a state law prohibiting the use of payroll deductions of public employees for political purposes was not in violation of the First Amendment. In Chicago Teachers Union, Local No. 1 v. Hudson,10 the Supreme Court addressed the procedures that the union must make available for employees who object to union expen- ditures of their dues or fees. The Court held that the union is required to provide objecting members with information relating to the union expenditures on collective bargaining and political activities and must include an adequate explanation of the basis of dues and fees. The members must also be provided a reasonably prompt opportunity to challenge—before an impartial decision maker—the amount of the dues or fees, and the union must hold in escrow the amounts in dispute pending the resolution of the challenges by the members. The Abood and Chicago Teachers Union cases hold that individuals who object to a union’s political activities are not required to pay that portion of union dues and fees that fund such nonbargaining activities. What standards should a court use to determine which union expenditures are related to its collective bargaining activities? The Supreme Court considered this question in the case of Lehnert v. Ferris Faculty Association.11 The Court set out three criteria for determining which activities can be funded by dues and fees of objecting individuals: • The activity must be germane to collective bargaining • It must be justified by the government’s interest in promoting labor peace and avoiding “free riders” who benefit from union activities without paying for union services • It must not significantly add to the burdening of free speech inherent in allowing a union shop or agency shop provision Using these criteria, the Lehnert Court held that the teachers’ union could not charge objecting individuals for lobbying, electoral activities, or political activities beyond the limited context of contract implementation or negotiation. In addition, the union could not charge for expenses incurred in conducting an illegal work stoppage or for litigation expenses unless the litigation concerned the individual’s own bargaining unit. The union could charge objecting individuals for: • national union programs and publications designed to disseminate information germane to collective bargaining; • information services concerning professional development, job opportunities, and miscellaneous matters that benefited all teachers, even though they may not directly concern members of the individual’s bargaining unit; • participation by local delegates at state or national union meetings at which representa- tion policies and bargaining strategies are developed; and • expenses related to preparation for a strike. The Court also held that the union could not charge the objecting individuals for public relations efforts designed to enhance the reputation of the teaching profession gener- ally because such efforts were not directly connected to the union’s collective bargaining function. It should be noted that private sector employees have the same right to object to political expenditures by their unions; in Communications Workers of America v. Beck12 (see Chapter 18), the Supreme Court stated that We conclude that Section 8(a)(3) ... authorizes the exaction [from nonmembers or objecting employees] of only those fees and dues necessary to “performing the duties of an exclusive representative of the employees in dealing with the employer on labor–management issues.” The FSLMRA provides that union dues may be deducted from an employee’s pay only if authorized by the employee. The employer may not charge a service fee for deductions to either the employee or the union. Employee authorizations for dues deduction may not be revoked for a period of one year from their making. It is worth noting that in a still more recent decision, the Supreme Court held that political action committees (PACs) have a constitutional right to spend as much money as they wish to promote political candidates of their choosing. In light of the restrictions placed upon public-employee unions in the preceding decisions, this latter case has been sharply criticized by organized labor and the political left as unfairly tilting the political playing field in favor of wealthy individuals and corporations.13 19-2f Federal Labor Relations and National Security The terrorist attacks of September 11, 2001, brought about a profound government emphasis on protecting national security. President George W. Bush, responding to pres- sure from Congress, created the Department of Homeland Security (DHS) and gave it responsibility for a broad range of agencies and functions within the federal government, including Customs and Border Protection, Citizen and Immigration Services, the U.S. Coast Guard, and the Transportation Security Administration. As part of the administra- tive reorganization involved with the creation of DHS, the Bush administration sought to increase management flexibility and control over employees and working conditions. The Homeland Security Act of 2002 authorized the Secretary of Homeland Security and the director of the Office of Personnel Management to adopt regulations to create a human resource management system. The act also stated that any regulations adopted had to “ensure that employees may organize, bargain collectively and participate through labor organizations of their choosing in decisions which affect them....” Pursuant to the authority granted under the Homeland Security Act, DHS adopted the Department of Homeland Security Human Resources Management System, a human resource manage- ment system that restricted bargaining over personnel actions and limited the role of the FLRA in handling labor relations matters. The unions representing the affected DHS employees challenged the human resource management system as violating the legislative requirement to protect collective bargaining rights and illegally restricting the statutory authority of the FLRA and the Merit System Protection Board (MSPB), which administers the federal civil service system and regulations. The U.S. Court of Appeals for the District of Columbia agreed.14 The Department of Defense (DoD) also sought more flexibility and control in its human resource management system for its civilian employees. The National Defense Authorization Act for fiscal year 2004 authorized the DoD to establish a National Security Personnel System (NSPS) to restructure labor relations between management and employees. The act also provided that the NSPS would supersede all collective bargaining agreements for the bargaining units in the DoD until 2009. Several unions representing the DoD civilian employees challenged the resulting NSPS as going beyond the legislative authority granted to DoD. In early 2010, the NSPS announced that the DoD was on track to transition the majority of its 220,000 civilian employees out of the NSPS by September 2010, more than a year ahead of the deadline. The 2010 National Defense Authorization Act called for the termination of NSPS by January 2012, bringing an end to a controversial personnel system that has been operational for less than four years. In the spring of 2010, the majority of employees began to transition back to the decades-old General Schedule system but with an assurance in regard to pay. The law required the DoD to take all actions necessary for the orderly termination of NSPS and the transition of all employees and positions from NSPS to legacy personnel systems or, if applicable, to the personnel systems that would have applied if NSPS had never been established. The law mandated that no employee would suffer loss in pay during the transition process, which was completed by January 1, 2012. The law also required DoD to establish a new performance management system and consider development of additional staffing flexibilities and a workforce incentive fund.

ThE WORKING LAw

Airport Screeners Seek Bargaining Rights The legislation that established the Transportation Security Administration (TSA), the federal agency in the Department of Homeland Security that employs some 45,000 officers who work as airport screeners, states that the Administrator of the TSA has the authority to decide whether or not to allow its employees to engage in collective bar- gaining. The Bush administration took the position that collective bargaining rights for TSA employees would weaken travel security protection by adding an additional layer of procedures to TSA operations and would limit the agency’s ability to respond quickly in emergencies because it would be required to negotiate changes in security procedures with unions representing its employees. Proponents for collective bargaining rights argue that collective bargaining can ensure that the agency is run more effectively and that cur- rent TSA employees complain of hostile work environments, favoritism, and fear of retali- ation by managers for reports of violations of regulations. They also point out that staffing levels at some airports are very low, so that employees are required to work through break times, work extra shifts, and work on scheduled days off. A survey of the “Best Places to Work” in the federal government for 2009 ranked the TSA near the bottom of federal agencies, although the ratings for employee job satisfaction for the TSA had increased by nearly 23 percent. In February 2011 TSA administrator John S. Pitole issued a “Determination” in which he stated, “The failed Christmas Day terrorist attack just over a year ago and the recent air cargo plot reminded us all of the challenges we face in protecting our nation against a creative and determined enemy. The Transportation Security Administration’s mission to protect transportation security systems is critical to our national interests. While we continue to step up to the challenges of this mission, I am engaged in a full examination of how we can continue to evolve towards an agile, high performance organization that is better able to protect the traveling public from constantly changing threats.” He added, “As part of my top-to-bottom review of TSA, and in line with a commitment I made during the Senate confirmation process, I have conducted a full assessment of the impact union representation and collective bargaining might have on TSA’s counter- terrorism mission. I have also considered the recent decision under the Federal Service Labor–Management Relations Statute (5 U.S.C. Chapter 71) issued by the Federal Labor Relations Authority (FLRA or Authority)—an independent government agency that oversees federal labor relations—directing an election about exclusive representation for purposes other than collective bargaining (65 FLRA No. 53 (2010)).” He then outlined a framework for labor relation within his agency. This framework is unique to TSA in that it allows for bargaining at the national level only. It prohibits local-level bargaining at individual airports—except on the nonsecurity employment issues identified in the Determination, such as shift bids, transfers, and awards. Administrator Pistole’s Determination prohibits bargaining on any topics that might affect security, such as: • Security policies, procedures, or the deployment of security personnel or equipment • Pay, pensions, and any form of compensation • Proficiency testing • Job qualifications • Discipline standards The following two decisions of the U.S. Court of Appeals for the District of Columbia involve the legal challenges to the DHS and the Department of Defense human resources management systems by the unions representing their employees.

CASE 19.4 national treasury emPloyees union v. miChael Chertoff, seCretary, uniteD states DePartment of homelanD seCurity 452 F.3d 839 (D.C. Cir. 2006)

Edwards, Senior Circuit Judge When Congress enacted the Homeland Security Act of 2002 (“HSA” or the “Act”) and established the Department of Homeland Security (“DHS” or the “Department”), it provided that “the Secretary of Homeland Security may, in regulations prescribed jointly with the Director of the Office of Personnel Management, establish, and from time to time adjust, a human resources management system.” [5 U.S.C. § 9701 (Supp. II 2002)] Congress made it clear, however, that any such system “shall—(1) be flexible; (2) be contemporary; (3) not waive, modify, or otherwise affect [certain existing statutory provisions relating to ... merit hiring, equal pay, whistle blowing, and prohibited personnel practices], [and] (4) ensure that employees may organize, bargain collectively, and participate through labor orga- nizations of their own choosing in decisions which affect them, subject to any exclusion from coverage or limitation on negotiability established by law.” The Act also mandated that DHS employees receive “fair treatment in any appeals that they bring in decisions relating to their employment.” Section 9701 does not mention “Chapter 71,” which codi- fies the Federal Services Labor–Management Statute and delineates the framework for collective bargaining for most federal sector employees. In February 2005, the Department and Office of Personnel Management (“OPM”) issued regulations establishing a human resources management system ... [the] Department of Homeland Security Human Resources Management System (“Final Rule” or “HR system”). The Final Rule ... defines the scope and process of collective bargaining for affected DHS employees, channels certain disputes through the Federal Labor Relations Authority (“FLRA” or the “Authority”), creates an in-house Homeland Security Labor Relations Board (“HSLRB”), and assigns an appellate role to the Merit Systems Protection Board (“MSPB”) in cases involving penal- ties imposed on DHS employees. Unions representing many DHS employees filed a complaint in [District of Columbia] District Court ... challeng[ing] aspects of the Final Rule. ... the District Court found that the regulations would not ensure collec- tive bargaining, would fundamentally and impermissibly alter FLRA jurisdiction, and would create an appeal process at MSPB that is not fair. Based on these rulings, the District Court enjoined DHS from implementing [certain sections] ... of the regulations. However, the District Court rejected the Unions’ claims that the regulations impermissibly restricted the scope of bargaining and that DHS lacked authority to give MSPB an intermediate appellate function in cases involving mandatory removal offenses. ... The case is now before this court on appeal by the Government and cross-appeal by the Unions. We affirm in part and reverse in part. We hold that the regulations fail in two important respects to “ensure that employees may ... bargain collec- tively,” as the HSA requires. First, we agree with the District Court that the Department’s attempt to reserve to itself the right to unilaterally abrogate lawfully negoti- ated and executed agreements is plainly unlawful. If the Department could unilaterally abrogate lawful contracts, this would nullify the Act’s specific guarantee of collec- tive bargaining rights, because the agency cannot “ensure” collective bargaining without affording employees the right to negotiate binding agreements. Second, we hold that the Final Rule violates the Act insofar as it limits the scope of bargaining to employee- specific personnel matters. The regulations effectively eliminate all meaningful bargaining over fundamental working conditions (including even negotiations over procedural protections), thereby committing the bulk of decisions concerning conditions of employment to the Department’s exclusive discretion. In no sense can such a limited scope of bargaining be viewed as consistent with the Act’s mandate that DHS “ensure” collective- bargaining rights for its employees. The Government argues that the HSA does not require the Department to adhere to the terms of Chapter 71 and points out that the Act states that the HR system must be “flexible,” and from this concludes that a drastically limited scope of bargaining is fully justified. This contention is specious. Although the HSA does not compel the Government to adopt the terms of Chapter 71 as such, Congress did not say that Chapter 71 is irrelevant to an under- standing of how DHS is to comply with its obligations and Chapter 71 gives guidance to its meaning. It is also noteworthy that the HSA requires that the HR system be “contemporary” as well as flexible. We know of no contemporary system of collective bargaining that limits the scope of bargaining to employee-specific personnel matters, as does the HR system, and the Government cites to none. We therefore reverse the District Court on this point. We affirm the District Court’s judgment that the Department exceeded its authority in attempting to conscript FLRA into the HR system. The Authority is an indepen- dent administrative agency, operating pursuant to its own organic statute and long-established procedures. Although the Department was free to avoid FLRA altogether, it chose instead to impose upon the Authority a completely novel appellate function, defining FLRA’s jurisdiction and dictating standards of review to be applied by the Authority. In essence, the Final Rule attempts to co-opt FLRA’s adminis- trative machinery, prescribing new practices in an exercise of putative authority that only Congress possesses. Nothing in the HSA allows DHS to disturb the operations of FLRA.... The allowance of unilateral contract abrogation and the limited scope of bargaining under DHS’s Final Rule plainly violate the statutory command in the HSA that the Department “ensure” collective bargaining for its employees. We therefore vacate any provisions of the Final Rule that betray this command. DHS’s attempt to co-opt FLRA’s administrative machinery constitutes an exercise of power far outside the Department’s statutory authority. We therefore affirm the District Court’s decision to vacate the provisions of the Final Rule that encroach on the Authority. The judgments of the District Court are affirmed in part and reversed in part, and the case is hereby remanded for further proceedings consistent with this opinion. So ordered.

CASE 19.5 ameriCan feDeration of government emPloyees, afl-Cio v. roBert m. gates, seCretary of Defense 486 F.3d 1316 (D.C. Cir. 2007)

Kavanaugh, Circuit Judge This case arises out of a contentious dispute over the collec- tive-bargaining rights of hundreds of thousands of civilian employees of the Department of Defense. Our limited judicial task is to determine whether the Department of Defense has acted consistently with its statutory authority in promulgating certain regulations. The primary legal question we must decide is whether the National Defense Authorization Act for Fiscal Year 2004 authorizes DoD to curtail collective-bargaining rights that DoD’s civilian employees otherwise possess under the Civil Service Reform Act of 1978. We hold that the National Defense Authorization Act grants DoD temporary authority to curtail collective bargaining for DoD’s civilian employees. By its terms, the Act authorizes DoD to curtail collective bargaining through November 2009. But after November 2009, with certain specified exceptions, DoD again must ensure collective bargaining consistent with the Civil Service Reform Act of 1978. We reverse the District Court’s judg- ment, and we uphold the DoD regulations at issue in this appeal.... To put together the pieces of the statutory puzzle in this case, one must first appreciate the difference between Chapter 71 and Chapter 99 of Title 5 of the U.S. Code. Chapter 71 of Title 5 codifies the Civil Service Reform Act of 1978 and establishes the right of federal civilian employees, including civilian employees at the Department of Defense, “to engage in collective-bargaining with respect to conditions of employment through representatives chosen by employees.” The Act generally requires agency management to “meet and negotiate” in good faith with recognized unions over conditions of employment “for the purposes of arriving at a collective-bargaining agreement.” The Act exempts various matters from collective bargaining, such as hiring, firing, suspending, paying, and reducing the pay of employees. Therefore, the Civil Service Reform Act ensures collective bargaining for federal employees, albeit more limited than the collective bargaining rights for private employees. Chapter 99 of Title 5 codifies a section of the National Defense Authorization Act for Fiscal Year 2004 and sets out a new labor relations framework for Department of Defense employees. Chapter 99 differs from the Chapter 71 model in several respects. In particular, Section 9902(a) of Chapter 99 establishes procedures for DoD, in coordination with the Office of Personnel Management, to “establish, and from time to time adjust, a human resources management system for some or all of the organizational or functional units of the Department of Defense.” The “human resources management system” is called the “National Security Personnel System.” Within the National Security Personnel System, the Act authorizes DoD to establish a “labor rela- tions system” to structure bargaining between management and employees.... After Congress enacted the National Defense Authorization Act in November 2003, DoD began devel- oping the National Security Personnel System. On February 14, 2005, DoD published a proposed system in the Federal Register. After various DoD employee representa- tives submitted comments, DoD held several meetings with employee representatives in the spring of 2005. On November 1, 2005, DoD promulgated final regulations setting up the National Security Personnel System.... The regulations curtail the scope of Chapter 71 collec- tive bargaining in several ways relevant to this appeal: • The regulations permit certain DoD officials to issue “implementing issuances” to abrogate any provision of an existing collective bargaining agreement or effectively take any topic off the table for future bargaining purposes. DoD may also promulgate “issuances” that take topics off the table. (Issuances and implementing issuances are doc- uments issued to carry out DoD policies; implementing issuances relate to the National Security Personnel System, while issuances relate to any DoD policy.) Under the reg- ulations, both issuances and implementing issuances can have prospective effect, but only implementing issuances can abrogate existing collective bargaining agreements. • The regulations broaden the scope of “management rights”—that is, actions that management can take with- out collective bargaining—beyond the management rights already provided in Chapter 71. In particular, the regulations permit DoD “to take whatever other actions may be necessary to carry out the Department’s mission.” • The regulations curtail bargaining over (i) the proce- dures DoD must follow when exercising management rights and (ii) the “appropriate arrangements” that DoD must make for employees affected by exercises of management rights. • The regulations limit collective-bargaining rights over pay and benefits for employees of certain DoD units known as “non-appropriated fund instrumentalities.” These em- ployees’ compensation is not set by statute and is there- fore traditionally subject to collective bargaining.... [S]ubsection (m) of Section 9902 grants DoD expansive authority to curtail collective bargaining through November 2009.... After November 2009, however, the authority in subsection (m) runs out, and collective bargaining under Chapter 71 again will structure the Department’s labor relations ... In effect, therefore, the Act sets up a tempo- rary, experimental period through November 2009 during which DoD has broad leeway to restructure its labor relations system. But after November 2009, assuming that Congress has not amended the statute in the meantime, the Chapter 71 collective-bargaining requirements ... again will apply and govern labor relations for DoD’s civilian workers (subject to targeted exceptions). ... In sum, we hold that the plain language of the National Defense Authorization Act authorizes DoD to curtail collective bargaining for DoD’s civilian employees through November 2009. For purposes of our analysis, we find the relevant statutory terms plain.... Because we conclude that the National Defense Authorization Act authorizes DoD to curtail collective bargaining, we reverse the contrary judgment of the District Court.... We reverse the judgment of the District Court and uphold the DoD regulations at issue in this appeal. So ordered. Case Questions 1. As noted, the court of appeals held that the DHS regulations were invalid but upheld the Department of Defense regulations. Because the intent and the effects of the regulations in both cases were similar, how can you explain the different results in the two decisions? 2. In the DHS decision, what reasons did the court give for holding that the regulations failed to ensure the rights of the employees to bargain collectively? 3. In the Department of Defense case, how did the NSPS limit the scope of collective bargaining for the civilian employees? Were the restrictions on collective bargaining legal? Explain. Note that the National Defense Authorization Act for Fiscal Year 200815 amended Section 9902 to eliminate subsection (m) and to require that the DoD bargain collectively within the National Security Personnel System (NSPS). The amended legislation also ensures that no collective bargaining agreement is superseded under the NSPS.

19-3 State Public Sector Labor Relations Legislation

In 1954, Wisconsin adopted a public employee labor relations law covering state, county, and municipal employees. Since that first legal provision for state public sector labor relations, approximately 40 states have adopted provisions relating to public sector labor relations. The various state laws differ widely in their treatment of issues such as employee coverage, impasse resolution procedures, and restrictions on the scope of bargaining. Because of the diversity of statutes, it is not possible to discuss them in detail; thus, the remaining portion of this chapter discusses certain general features of state public sector labor relations statutes. In recent years, as a response to the negative economic impact the recession has had on state finances, state legislatures and governors have made public sector unions the target of legislation restricting collective bargaining rights and automatic payroll deduction of union dues. In Wisconsin the governor and legislature essentially repealed its pioneering laws. This chapter outlines the current movement to reverse the trend started by Wisconsin some six decades ago. 19-3a Coverage of State Laws As noted, approximately 40 states have provisions for some labor relations activity by state or local employees. Most of these states have adopted statutes that provide for organizing rights and for collective bargaining by public employees. Some states that have no statutes dealing with public sector labor relations allow voluntary collective bargaining by public employees based on court decisions. Other states, while not restricting the rights of public employees to join unions, prohibit collective bargaining by public employees based on stat- utory prohibitions or court decisions. In states that have public sector labor relations statutes, the pattern of coverage of those statutes varies. Some statutes cover all state and local employees. Others may cover only local or only state employees. Some states have several statutes, with separate laws covering teachers, police, and firefighters. Some states also allow for the enactment of municipal labor relations legislation. New York City, for example, has established an Office of Collective Bargaining by passage of a city ordinance. The courts have generally held that there is no constitutionally protected right to bargain collectively. For that reason, the courts have upheld restrictions or prohibitions on the right to bargain. The right to join unions or to organize, however, has been held to be protected by the constitutional freedom of association under the First and Fourteenth Amendments. Because the right to organize is constitutionally protected, restrictions on that right of public employees have consistently been struck down by the courts. But while public employees in general may have the right to organize, many states exclude supervisors and managerial or confidential employees from unionizing. Other states may allow those employees to organize but provide for bargaining units separate from other employees. The courts have generally upheld exclusions of managerial, supervisory, and confidential employees from organizing and bargaining. 19-3b Representation Issues Most of the state statutes authorizing public sector labor relations provide for exclusive bargaining representatives of the employees. The statutes generally create a Public Employee Relations Board (PERB) to administer the act and to determine representation issues and unfair labor practice complaints. Bargaining Units Determining appropriate bargaining units is generally the function of the PERB agency created by the particular statute. Some statutes provide for bargaining by all categories of public employees, whereas other statutes may specifically define appropriate units, such as teachers within a particular school district. When the PERB is entrusted with determining the appropriate unit, it generally considers community interest factors such as the nature of work, similarity of working conditions, efficiency of administration, and the desires of the employees. Some statutes require determination based on efficiency of administration. Police and law enforcement officers and firefighters are generally in separate district-wide units (or statewide units for state law enforcement officers). Faculty at public universities may be organized in statewide units or may bargain on an institution unit basis. In general, PERB agencies seek to avoid a proliferation of small units. Representation Elections The procedures for holding representation elections for units of public employees gener- ally resemble those under the FSLMRA and the NLRA. The union seeking representa- tion rights petitions the PERB requesting an election. The union must demonstrate some minimum level of employee support within the unit. If the parties fail to reach agreement on the bargaining unit definition, the eligibility of employees to vote, and the date and other details of the election, the PERB settles such issues after holding hearings on them. The elections are by secret ballot, and the results are certified by the PERB. Either party may file objections to the election with the PERB; the PERB then reviews the chal- lenges and possibly orders a new election when the challenges are upheld. Bargaining As noted, a majority of states have provisions requiring, or at least permitting, some form of collective bargaining. Some statutes may use the term “meet and confer” rather than collective bargaining, but in actual operation, the process is not substantially different from collective bargaining. The scope of bargaining subjects may be restricted to protect the statutory authority of, or to ensure the provision of essential functions by, the public employer. The public employer may also be legally prohibited from agreeing with the union on particular subjects. For example, state law may require a minimum number of evaluations of employees annu- ally, and the employer may not agree to fewer evaluations. Public sector labor relations statutes generally have broad management-rights clauses. As a result, the subjects of “wages, hours and other terms and conditions” of employment may be defined more narrowly than is the case in the private sector under the NLRA. The state PERBs generally classify subjects for bargaining as mandatory, permissive, and illegal subjects. Mandatory topics involve the narrowly defined matters relating to wages, hours, and other terms and conditions of employment. Permissive subjects generally are those related to government policy, the employer’s function, or matters of management rights. Illegal subjects may include matters to which the employer is precluded by law from agreeing. Some states may prohibit bargaining over certain items that may be classified as permissive in other states. In Central State University v. A.A.U.P., Central State Chapter,16 the U.S. Supreme Court upheld the constitutionality of an Ohio law that required state public universities to set instructional workloads for professors and exempted those workloads from collective bargaining. In 2011 the newly elected Republican governor of Wisconsin proposed the so-called Budget Repair Law, and the state legislature enacted it. This law sharply curtailed public employees’ collective bargaining rights, while increasing their individual contributions into their healthcare and pension plans. Upon the signing of the bill by Governor Scott Walker on March 10, 2011, a county district attorney mounted a legal challenge, which wound up before the state’s Supreme Court.

CASE 19.6 maDison teaChers, inC. v. Walker 358 wis.2d 1 (wisconsin Sup. Ct. 2014)

Facts: In March 2011, the Wisconsin Legislature passed Act 10, a budget repair bill proposed by Governor Scott Walker. The Act significantly altered Wisconsin’s public employee labor laws; it prohibits general employees from collectively bargaining on issues other than base wages, prohibits municipal employers from deducting labor orga- nization dues from paychecks of general employees, imposes annual recertification requirements, and prohibits fair share agreements requiring non-represented general employees to make contributions to labor organizations. In August 2011,Madison Teachers, Inc. and Public Employees Local 61 sued Governor Walker, challenging several provisions of Act 10. The plaintiffs alleged that four aspects of Act 10—the collective bargaining limitations, the prohibition on payroll deductions of labor organization dues, the prohibition of fair share agreements, and the annual recertification require- ments—violate the constitutional associational and equal protection rights of the employees they represent. The Dane County Circuit Court invalidated several provisions of Act 10, including the provisions relating to collective bargaining limitations, union recertifications, and the prohibitions on fair share agreements and payroll deductions of labor orga- nization dues. The court of appeals certified the case to the Supreme Court of Wisconsin. Issue: On appeal, the unions raised the following issues: (1) whether Act 10 impermissibly infringes on the asso- ciational rights of general employees; (2) whether Act 10 impermissibly infringes on the equal protection rights of represented general employees when compared to non- represented general employees. The unions’ central argu- ment is that the following provisions of Act 10 violate the associational rights of general employees and their certified representatives that are guaranteed under Article I, Sections 3 and 4 of the Wisconsin Constitution: 1. The provision prohibiting collective bargaining between municipal employers and the certified representatives for municipal general employee bargaining units on all subjects except base wages. 2. The provisions limiting negotiated base wage increases to the increase in the Consumer Price Index, unless a higher increase is approved by a municipal voter referendum. 3. The provisions prohibiting fair share agreements that previously required all represented general employees to pay a proportionate share of the costs of collective bargaining and contract administration. 4. The provision prohibiting municipal employers from deducting labor organization dues from the paychecks of general employees. 5. The provision requiring annual recertification elections of the representatives of all bargaining units, requiring 51% of the votes of the bargaining unit members (regardless of the number of members who vote), and requiring the commission to assess costs of such elections. Decision: Before the enactment of Act 10, general employees were permitted under MERA to collectively bargain over a broad array of subjects, including wages, working conditions, work hours, and grievance proce- dures. Act 10 limits collective bargaining between munic- ipal employers and the certified representatives of general employees to the single topic of “total base wages and excludes any other compensation....” Moreover, Act 10 prohibits collective bargaining for base wage increases that exceed an increase in the Consumer Price Index unless approved in a municipal voter referendum. The plain- tiffs argue this limitation penalizes general employees who choose to be represented by a certified representative because Act 10 imposes no limitations whatsoever on the terms that non-represented general employees may nego- tiate with their municipal employers. Consequently, the plaintiffs contend, Act 10 unconstitutionally burdens the associational rights of general employees because they must surrender their association with a certified representative in order to negotiate anything beyond base wages. General employees have no constitutional right to nego- tiate with their municipal employer on the lone issue of base wages, let alone on any other subject. As the United States Supreme Court made clear: [While t]he public employee surely can associate and speak freely and petition openly, and he is protected by the First Amendment from retaliation for doing so.... [,] the First Amendment does not impose any affirmative obligation on the government to listen, to respond or, in this context, to recognize the association and bargain with it. Smith v. Ark. State Highway Emps., Local 1315, 441 U.S. 463, 465, 99 S.Ct. 1826, 60 L.Ed.2d 360 (1979) (citations omitted). The plaintiffs have insisted at every stage of litigation in this case that they are not arguing a constitutional right exists to collectively bargain. It is evident, however, that they really are, for without such a constitutional right, their challenge fails. Put differently, general employees are not being forced under Act 10 to choose between a tangible benefit and their constitutional right to associate. Instead, Act 10 provides a benefit to represented general employees by granting a statutory right to force their employer to negotiate over base wages, while non-represented general employees, who decline to collectively bargain, have no constitutional or statutory right whatsoever to force their employer to collec- tively bargain on any subject. For this reason, the plaintiffs’ argument must be rejected. The plaintiffs’ associational rights are in no way implicated by Act 10’s modifications to Wisconsin’s collective bargaining framework. At issue in this case is the State’s implementation of an exclusive representation system for permitting public employers and public employees to negotiate certain employment terms in good faith. It is a prerogative of a state to establish work- place policy in a non-public process in consultation with only select groups—here, an organization selected by the affected workforce itself—and not others. Not at issue in this case is the plaintiffs’ constitutional right to associate to engage in protected First Amendment activities. The plaintiffs remain free to advance any position, on any topic, either individually or in concert, through any channels that are open to the public. Represented munic- ipal employees, non-represented municipal employees, and certified representatives lose no right or ability to associate to engage in constitutionally protected speech because their ability to do so outside the framework of statu- tory collective bargaining is not impaired. Act 10 merely provides general employees with a statutory mechanism to force their employer to collectively bargain; outside of this narrow context, to which the plaintiffs freely concede public employees have no constitutional right, every avenue for petitioning the government remains available. General employees may feel inclined to collectively bargain under Act 10 in order to compel their employer to negotiate on the issue of base wages, but this creates no unconstitutional inhibition on associational freedom. The defendants are not barring the plaintiffs from joining any advocacy groups, limiting their ability to do so, or other- wise curtailing their ability to join other “like-minded indi- viduals to associate for the purpose of expressing commonly held views....” The limitations on permissible collective bargaining subjects imposed by Act 10 do not force general employees to choose between their constitutional right to associate and the benefit of collective bargaining. Therefore, the court held that Wis. Stat. §§ 111.70(4)(mb), 66.0506, and 118.245 do not violate Plaintiffs’ right to freedom of association. Fair share agreements are negotiated arrangements between municipal employers and certified representatives that require all general employees, including non-repre- sented general employees, to pay the proportional share of the cost of collective bargaining and contract adminis- tration. Act 10 prohibits these agreements. See Wis. Stat. § 111.70(1)(f), (2). The plaintiffs argue this creates a financial burden on certified representatives and repre- sented general employees to bear the full cost of collective bargaining for the benefit of the entire bargaining unit, while allowing non-represented general employees in the bargaining unit to enjoy the benefits of representation as “free riders.” For the certified representative and its members to choose the statutory “privilege” of collective bargaining, the plaintiffs argue they must accept the financial penalty as a condition of their associational choices to serve as the certi- fied representative and be represented general employees. The plaintiffs contend these burdens will dissuade labor organizations from becoming certified representatives and general employees from becoming represented general employees, and are therefore unconstitutional. The court rejected the unions’ argument. First, labor organizations “have no constitutional entitlement to the fees of nonmember-employees.” Davenport v. Wash. Educ. Ass’n, 551 U.S. 177, 127 S.Ct. 2372 (2007). Further, as the United States Supreme Court recently reaffirmed in Harris v. Quinn, fair share agreements “unquestionably impose a heavy burden on the First Amendment interests” of munic- ipal employees who do not wish to participate in the collec- tive bargaining process. Harris v. Quinn, 573 U.S. ––––, 134 S.Ct. 2618 (2014). Even setting aside the question of whether fair share agreements are constitutionally permissible, it is evident that the prohibition of fair share agreements does not infringe on the associational rights of general employees or certified representatives in any respect. The First Amendment does not compel the government to subsi- dize speech. By logical extension, the First Amendment does not compel the government to compel its employees to subsidize speech. The court concluded that Wis. Stat. § 111.70(1)(f) and the third sentence of § 111.70(2), examined in isolation, do not violate the plaintiffs’ right to freedom of association. Prior to Act 10, general employees could petition WERC to hold an election to designate a labor organiza- tion as the general employees’ certified representative. The voting requirement for certification was a simple majority of employees in the collective bargaining unit. Once a labor organization was certified, it would remain the general employees’ certified representative until thirty percent of the employees requested a decertification election. Act 10, however, requires the certified representative of a collective bargaining unit to undergo an annual certification election in which the representative must obtain the vote of an abso- lute majority of the general employees in the bargaining unit to retain status as the employees’ certified representa- tive. Wis. Stat. § 111.70(4)(d)3.b. Further, Act 10 requires that the certified representative pay the cost of admin- istering the related certification elections. Certification requirements for certified representatives have existed in Wisconsin’s labor laws since 1959. The certification requirements imposed by Act 10 are certainly more strin- gent than under the prior laws, but it is impossible for these increased “organizational penalties” to violate the plain- tiffs’ associational rights, when there are no associational rights at stake. The certification requirements apply solely to collective bargaining, which is wholly distinct from an individual’s constitutional right to associate. Therefore, the court held that Wis. Stat. § 111.70(4)(d)3.b., examined in isolation, does not infringe on the plaintiffs’ constitutional right to associate. Prior to Act 10, municipal employers could deduct labor organization dues from the paychecks of general employees at the employee’s request. Act 10 prohibits this practice. Wis. Stat. § 111.70(3g). The plaintiffs argue this prohibition hampers certified representatives and general employees both organizationally and financially, creating an unconstitutional burden on their associational rights. The prohibition on an employer’s authorization to deduct labor organization dues from the paychecks of general employees does not infringe on an employee’s constitu- tional right to associate. Further, this prohibition does not penalize employees because no constitutional right exists for the deduction of dues from a paycheck to support membership in a voluntary organization. Accordingly, Wis. Stat. § 111.70(3g), examined in isolation, does not infringe on the plaintiffs’ constitutional right to associate. Even when viewed together, the contested provisions of Act 10 are not unconstitutional. Each provision of Act 10 that the plaintiffs contend infringes upon the associational rights of certified representatives and general employees does not, in fact, do so, because in each instance, there is no constitutional associational right implicated. Viewing the provisions as a whole does not change our analysis. Each of the plaintiffs’ arguments fails for largely the same reason: collective bargaining requires the municipal employer and the certified representative to meet and confer in good faith. Wis. Stat. § 111.70(1)(a). The Wisconsin Constitution does not. Indeed, it is uncontested that it would be consti- tutional for the State of Wisconsin to eliminate collective bargaining entirely. Thus, the plaintiffs’ contention that several provisions of Act 10, which delineate the rights, obligations, and procedures of collective bargaining, infringe upon general employees’ constitutional right to freedom of association is unfounded. No matter the limi- tations or “burdens” a legislative enactment places on the collective bargaining process, collective bargaining remains a creation of legislative grace and not constitutional obliga- tion. The restrictions attached to the statutory scheme of collective bargaining are irrelevant in regards to freedom of association because no condition is being placed on the decision to participate. If a general employee participates in collective bargaining under Act 10’s statutory framework, that general employee has not relinquished a constitutional right. They have only acquired a benefit to which they were never constitutionally entitled. The First Amendment cannot be used as a vehicle to expand the parameters of a benefit that it does not itself protect. The court held that the plaintiffs’ associational rights argument was without merit, and rejected the plaintiffs’ argu- ment that several provisions of Act 10, which delineate the rights, obligations, and procedures of collective bargaining, somehow infringe upon general employees’ constitu- tional right to freedom of association. The court concluded that Wis. Stat. §§ 111.70(4)(mb), 66.0506, 118.245, 111.70(1)(f), 111.70(3g), 111.70(4)(d) 3 and the third sentence of § 111.70(2) do not violate the plaintiffs’ associa- tional rights, and upheld the validity of Act 10 in its entirety. The decision and order of the circuit court was reversed.

19-3c Bargaining and Open-Meeting Laws Some states have adopted open-meeting, or “sunshine,” laws that require meetings of public bodies be open to the public. Such laws could present a problem for collective bargaining by public employers because they may allow members of the general public to take part in the bargaining process. In some states, such as Ohio, collective bargaining is exempted from the open-meeting law. In other states, however, the right of the public to participate in the bargaining is legally protected. Impasse Resolution Procedure Because most state laws restrict or prohibit strikes by public employees, they must provide some alternative means for resolving bargaining impasses. Most statutes provide for a process that includes fact-finding, mediation, and ultimately, interest arbitration. Mediation is generally the first step in the impasse resolution process. The mediator may be appointed by the PERB at the request of either party. The mediator attempts to offer suggestions and to reduce the number of issues in dispute. If the mediation is unsuccessful, fact-finding is the second step. Each party presents its case to the fact-finder, who will issue a report defining the issues in dispute and establishing the reasonableness of each side’s position. The fact-finder’s report may be released to the public in an attempt to bring the pressure of public opinion upon the parties to force a settlement. If no resolution is reached after mediation and fact-finding, the statutes generally provide for interest arbitration (see Chapter 18). The arbitration may be either voluntary or compulsory, and it may be binding or nonbinding. Compulsory, binding arbitration is generally found in statutes dealing with employees who provide essential services, such as firefighters and police. Nonbinding arbitration awards may be disregarded by the public employer if it so chooses. Binding arbitration awards bind both parties to the arbitrator’s settlement of the dispute. In several states, the arbitration of bargaining disputes has been challenged as being an illegal delegation of the public employer’s legal authority to the arbitrator. Most state courts have upheld the legality of arbitration; examples are Maine, Michigan, Minnesota, New York, Oklahoma, Pennsylvania, and Washington. In some states, however, courts have held compul- sory arbitration to be illegal. Such was the case in Colorado, South Dakota, Texas, and Utah. Some statutes allow for judicial review of arbitration awards, generally on grounds of whether the award is unreasonable, arbitrary, or capricious. Strikes by State Workers Most state public sector labor relations statutes prohibit strikes by public employees. Statutes in other states, such as Hawaii, Michigan, Pennsylvania, and Vermont, allow strikes by employees whose jobs do not immediately affect the public health, safety, and welfare. Still other states’ statutes allow for strikes in situations in which the public employer refuses to negotiate or to abide by an arbitration award. Penalties for illegal strikes vary from state to state. New York’s Taylor Law, which prohibits all strikes by public employees, provides for fines and the loss of dues check-off provisions for unions involved in illegal strikes. Employees who participate in illegal strikes in New York may face probation, loss of job, and loss of pay. The court may issue injunc- tions or restraining orders against illegal strikes. Disciplining public sector employees, even those who have taken part in illegal strikes, may pose constitutional problems for the public sector employer. The employer must ensure that any disciplinary procedure ensures the employees “due process,” including adequate notice of and an opportunity to participate in a hearing on the proposed penalty. State and municipal employees in the following states are accorded a limited right to strike: • Alaska • Hawaii • Idaho • Illinois • Minnesota • Montana • Oregon • Pennsylvania • Vermont

ethical DILEMMA

ProPerty taxes versus PubliC-eMPloyee benefits

In 2011, New Jersey residents stagger under the highest property taxes in the nation. Meanwhile, teachers and other public employees regularly retire at 80 percent of their most recent base salaries, plus full medical benefits. The U.S. debt clock shows state revenue at less than $80 billion, while it estimates spending at $108 billion. Debt, it claims, equals nearly $94 billion, or about 18.5 percent of state GDP. New Jersey Governor Chris Christie released his 2012 budget in February 2011. A press release from the governor’s press secretary stated: Advancing his vision for a New Normal in state budgeting, Governor Chris Christie ... presented a $29.4 billion budget for Fiscal Year 2012 that cuts real spending for a second consecutive year. The Governor’s Budget proposal includes $200 million in focused tax cuts, provides additional property tax relief, increases school aid and funds a reformed state pension system, while preserving or increasing funding to protect our state’s most vulnerable citizens. The Fiscal Year 2012 Budget marks a departure from the Trenton tradition of budgeting to meet deficit projections that embrace wish-list spending by legislators and assume continuous funding increases that irresponsibly ignore actual revenue sources and the fiscal health of the state. Specifically with respect to public employees, the release stated: Governor Christie will continue to insist that the shared sacrifice be spread among state employees as well, including in payment of a fair share of medical costs. By increasing co-payments and premiums to levels still below what federal employees pay, the state will save $323 million that will be used to pay for other critically important programs—and prevent increases in some of the highest sales, income and property taxes in the nation. What do you think is the appropriate balance between homeowners’ and busi- ness property taxes and the pension and health care benefits given by the Garden State to its public employees, such as police, firefighters and teachers? What are the possible repercussions, if any, of reducing these benefits going forward? (Might the very property owners who seek tax relief, suffer indirectly?) Are there other ways in which Governor Christie and the state legislature might afford property owners some tax relief, while not shifting the burden onto the backs of public employees?

19-4 Part 3 Labor Relations Law Public Employees and First Amendment Free Speech Rights

The employment practices of public employers may also be matters of public concern— citizens and taxpayers may want to express their views on matters such as benefits for domestic partners, family leave, pension benefits, and even workforces. Public employees have a dual role—they are employees who are affected by such practices or policies, and they are also citizens (and taxpayers). Do the public employees, as citizens, have the right to speak out on matters relating to their employer’s practices? Can a public employer prohibit its employees from speaking out on such issues? Does the First Amendment freedom of speech protect those employees from disciplinary action by the employer? The following two cases involve the question of whether or not a school board can allow a teacher to comment at a public meeting on matters currently being negotiated with the teachers’ union, and whether an employee of a district attorney who reports concerns about improper actions by other employees to his supervisor is protected by the First Amendment.

CASE 19.7 City of maDison Joint sChool DistriCt no. 8 v. WisConsin emPloyment relations Commission 429 U.S. 167 (1976)

Burger, C. J. The question presented on this appeal from the Supreme Court of Wisconsin is whether a State may constitutionally require that an elected board of education prohibit teachers, other than union representatives, to speak at open meetings at which public participation is permitted, if such speech is addressed to the subject of pending collective-bargaining negotiations. The Madison Board of Education and Madison Teachers, Inc. (MTI), a labor union, were parties to a collec- tive-bargaining agreement during the calendar year of 1971. In January 1971 negotiations commenced for renewal of the agreement and MTI submitted a number of proposals. One among them called for the inclusion of a so-called “fair share” clause, which would require all teachers, whether members of MTI or not, to pay union dues to defray the costs of collective bargaining. Wisconsin law expressly permits inclu- sion of “fair share” provisions in municipal employee collec- tive-bargaining agreements. Another proposal presented by the union was a provision for binding arbitration of teacher dismissals. Both of these provisions were resisted by the school board. The negotiations deadlocked in November 1971 with a number of issues still unresolved, among them “fair share” and arbitration. During the same month, two teachers, Holmquist and Reed, who were members of the bargaining unit, but not members of the union, mailed a letter to all teachers in the district expressing opposition to the “fair share” proposal. Two hundred teachers replied, most commenting favorably on Holmquist and Reed’s position. Thereupon a petition was drafted calling for a one-year delay in the implemen- tation of “fair share” while the proposal was more closely analyzed by an impartial committee. The petition was circulated to teachers in the district on December 6, 1971. Holmquist and Reed intended to present the results of their petition effort to the school board and the MTI at the school board’s public meeting that same evening. Because of the stalemate in the negotiations, MTI arranged to have pickets present at the school board meeting. In addition, 300 to 400 teachers attended in support of the union’s position. During a portion of the meeting devoted to expression of opinion by the public, the president of MTI took the floor and spoke on the subject of the ongoing negotiations. He concluded his remarks by presenting to the board a petition signed by 1,300–1,400 teachers calling for the expeditious resolution of the negotiations. Holmquist was next given the floor, after John Matthews, the business representative of MTI, unsuccessfully attempted to dissuade him from speaking. Matthews had also spoken to a member of the school board before the meeting and requested that the board refuse to permit Holmquist to speak. Holmquist stated that he represented “an informal committee of 72 teachers in 49 schools” and that he desired to inform the board of education, as he had already informed the union, of the results of an informational survey concerning the “fair share” clause. He then read the petition that had been circu- lated to the teachers in the district that morning and stated that in the 31 schools from which reports had been received, 53 percent of the teachers had already signed the petition. Holmquist stated that neither side had adequately addressed the issue of “fair share” and that teachers were confused about the meaning of the proposal. He concluded by saying: “Due to this confusion, we wish to take no stand on the proposal itself, but ask only that all alternatives be presented clearly to all teachers and more importantly to the general public to whom we are all responsible. We ask simply for communication, not confrontation.” The sole response from the school board was a question by the presi- dent inquiring whether Holmquist intended to present the board with the petition. Holmquist answered that he would. Holmquist’s presentation had lasted approximately 21⁄2 minutes. Later that evening, the board met in executive session and voted a proposal acceding to all of the union’s demands with the exception of “fair share.” During a negotiating session the following morning, MTI accepted the proposal and a contract was signed on December 14, 1971. In January 1972, MTI filed a complaint with the Wisconsin Employment Relations Commission (WERC) claiming that the board had committed a prohibited labor practice by permitting Holmquist to speak at the December 6 meeting. MTI claimed that in so doing the board had engaged in negotiations with a member of the bargaining unit other than the exclusive collective-bargaining represen- tative, in violation of Wis. Stat. Sections 111.70(3)(a)(1), (4) (1973). Following a hearing the Commission concluded that the board was guilty of the prohibited labor practice and ordered that it “immediately cease and desist from permit- ting employees, other than representatives of Madison Teachers Inc., to appear and speak at meetings of the Board of Education, on matters subject to collective bargaining between it and Madison Teachers, Inc.” The Commission’s action was affirmed by the Circuit Court of Dane County. The Supreme Court of Wisconsin affirmed. The court recognized that both the Federal and State Constitutions protect freedom of speech and the right to petition the government, but noted that these rights may be abridged in the face of “a clear and present danger that [the speech] will bring about the substantive evils that [the legislature] has a right to prevent.” The court held that abridgment of the speech in this case was justified in order “to avoid the dangers attendant upon relative chaos in labor management relations.” The Wisconsin court perceived “clear and present danger” based upon its conclusion that Holmquist’s speech before the school board constituted “negotiation” with the board. Permitting such “negotiation,” the court reasoned, would undermine the bargaining exclusivity guaranteed the majority union under Wis. Stat. Section 111.70(3)(a)(4) (1973). From that premise it concluded that teachers’ First Amendment rights could be limited. Assuming, arguendo, that such a “danger” might in some circumstances justify some limitation of First Amendment rights, we are unable to read this record as presenting such danger as would justify curtailing speech. The Wisconsin Supreme Court’s conclusion that Holmquist’s terse statement during the public meeting constituted negotiation with the board was based upon its adoption of the lower court’s determination that, “[e]ven though Holmquist’s statement superficially appears to be merely a ‘position statement,’ the court deems from the total circumstances that it constituted ‘negotiating.’” This cryptic conclusion seems to ignore the ancient wisdom that calling a thing by a name does not make it so. Holmquist did not seek to bargain or offer to enter into any bargain with the board, nor does it appear that he was authorized by any other teachers to enter into any agreement on their behalf. Although his views were not consistent with those of MTI, communicating such views to the employer could not change the fact that MTI alone was authorized to negotiate and to enter into a contract with the board. Moreover the school board meeting at which Holmquist was permitted to speak was open to the public. He addressed the school board not merely as one of its employees but also as a concerned citizen, seeking to express his views on an important decision of his government. We have held that teachers may not be “compelled to relinquish the First Amendment rights they would otherwise enjoy as citizens to comment on matters of public interest in connection with the operation of the public schools in which they work.” ... Where the State has opened a forum for direct citizen involvement, it is difficult to find justification for excluding teachers who make up the overwhelming proportion of school employees and who are most vitally concerned with the proceedings. It is conceded that any citizen could have presented precisely the same points and provided the board with the same information as did Holmquist. Regardless of the extent to which true contract nego- tiations between a public body and its employees may be regulated—an issue we need not consider at this time—the participation in public discussion of public business cannot be confined to one category of interested individuals. To permit one side of a debatable public question to have a monopoly in expressing its views to the government is the antithesis of constitutional guarantees. Whatever its duties as an employer, when the board sits in public meetings to conduct public business and hear the views of citizens, it may not be required to discriminate between speakers on the basis of their employment, or the content of their speech.... The WERC’s order is not limited to a determination that a prohibited labor practice had taken place in the past; it also restrains future conduct. By prohibiting the school board from “permitting employees ... to appear and speak at meetings of the Board of Education” the order consti- tutes an indirect, but effective, prohibition on persons such as Holmquist from communicating with their government. The order would have a substantial impact upon virtually all communication between teachers and the school board. The order prohibits speech by teachers “on matters subject to collective bargaining.” As the dissenting opinion below noted, however, there is virtually no subject concerning the operation of the school system that could not also be characterized as a potential subject of collective bargaining. Teachers not only constitute the overwhelming bulk of employees of the school system, but they are the very core of that system; restraining teachers’ expressions to the board on matters involving the operation of the schools would seriously impair the board’s ability to govern the district.... The judgment of the Wisconsin Supreme Court is reversed, and the case is remanded to that court for further proceedings not inconsistent with this opinion. Reversed and remanded. Case Questions 1. Why did the Wisconsin Supreme Court characterize Holmquist’s statement as constituting negotiation? Did the U.S. Supreme Court agree with that character- ization? Why? 2. Was Holmquist addressing the school board in his capacity as an employee, as a concerned citizen, or as both? Why is it relevant here? Explain your answer. 3. When can the First Amendment rights of the freedom of speech and the right to petition the government be limited? Were those circumstances applicable to the facts in this case? Explain.

CASE 19.8 garCetti v. CeBallos 547 U.S. 410 (2006)

Facts: Richard Ceballos was a deputy district attorney for the Los Angeles County District Attorney’s Office. In February 2000, a defense attorney contacted Ceballos about a pending criminal case and told him that there were inaccuracies in an affidavit used to obtain a critical search warrant. The attorney informed Ceballos that he had filed a motion to challenge the warrant, and asked Ceballos to review the case. Ceballos determined the affi- davit contained serious misrepresentations. He informed his supervisors and prepared a memo explaining his concerns and recommending dismissal of the case. A meeting was held to discuss Ceballos’ concerns about the affidavit. The meeting allegedly became heated, and Ceballos was criticized for his handling of the case. The supervisor decided to proceed with the prosecution, and at a hearing on the motion to challenge the warrant, Ceballos was called by the defense and testified about his observations about the affidavit. The trial court rejected the challenge to the warrant. Ceballos claimed that in the aftermath of these events he was subjected to a series of retaliatory employment actions, including reassignment to a trial deputy position, transfer to another courthouse, and denial of a promotion. Ceballos initiated an employment grievance, but the grievance was denied. Ceballos then filed suit, claiming that his employer had violated the First and Fourteenth Amendments by retaliating against him based on his memo. The trial court granted the employer’s motion for summary judgment, but on appeal, the U.S. Court of Appeals for the Ninth Circuit reversed the trial court, holding that Ceballos allegations of wrongdoing in his memorandum constituted protected speech under the First Amendment. The employer appealed to the U.S. Supreme Court. Issue: Does the First Amendment protect a government employee from discipline based on speech made pursuant to the employee’s official duties? Decision: The court of appeals held that Ceballos’ memo was “inherently a matter of public concern” but did not consider whether the speech was made in Ceballos’s capacity as a citizen or as part of his profes- sional duties. The Supreme Court, however, stated that there were two questions to ask to determine whether constitutional protection is accorded to speech by a public employee. The first question is whether the employee spoke as a citizen on a matter of public concern. If the employee is not speaking as a citizen but rather in the course of offi- cial duties, the employee’s speech is not protected by the First Amendment. If the employee is speaking as a citizen, then the possibility of a First Amendment claim arises. In that case, the court considers the second ques- tion, whether the government employer had an adequate justification for treating the employee differently from any other member of the general public. Government has broader discretion to restrict speech when it is acting in its role as employer, but any restrictions it can impose must be directed at speech that has some potential to affect the employer’s operations. When public employees speak out, they may express views that contravene governmental poli- cies or impair the proper performance of governmental functions. At the same time, the First Amendment limits the ability of a public employer to impose restrictions on employees in their capacities as private citizens. So long as employees are speaking as citizens about matters of public concern, the employer can only impose speech restrictions that are necessary for their employers to operate efficiently and effectively. However, when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not protect their communica- tions from employer discipline. In this case, Ceballos believed the affidavit used to obtain a search warrant contained serious misrepresenta- tions, and he conveyed his opinion and recommenda- tion in a memo to his supervisor. His expressions were made pursuant to his duties as a calendar deputy, not as a citizen, and his conduct was not protected by the First Amendment. The Supreme Court reversed the decision of the court of appeals.

References

Cihon, P. J., & Castagnera, J. O. (2017). Employment and labor law (9th ed.). Boston, MA: Cengage Learning.