Case study

Public Sector Bargaining Legislation

and Strikes: A Case Study By CHARLES R. GREER

Assistant Professor of Management, College of Business Admin- istration, Oklahoma State University.

TH E RAPID GROWTH OF PUBLIC SECTOR UNIONS hascreated problems for state and local governments. States have reacted to this trend for unionization in a variety of ways. Some states have passed relatively comprehensive labor legislation while others have no such legislation.^ A question which has been the subject of recent research efforts concerns the relationship between public sec- tor labor relations legislation and the incidence of strikes. The purpose of this article is to contribute to the body of knowledge by analyzing the relationship between Oklahoma's public employee labor relations legislation and a serious failure in employer and employee relations. This failure was the Oklahoma City police strike in 1975. Before analyzing Oklahoma's public sector labor legislation and the strike experience, a review of the literature regarding legislation and public sector strikes is in order.

Some students of industrial relations have maintained that states may prevent some strikes and work interruptions by the adoption of collective bargaining and impasse resolution procedures. Bakke has argued for giving public sector employees the right to bargain collec- tively while requiring both unions and employers to bargain in good faith. This procedure prevents employees from pursuing strikes and other such tactics as their only alternative for obtaining desired results.^

A similar conclusion is reached by Seidman. "While there are differences of opinion over the most desirable type of legislation, and while no legislation will solve all problems, in the.absence of legisla- tion the parties must depend on ad hoc procedures, with their rights and duties in doubt, the scope of bargaining uncertain, and no agency to determine bargaining units or conduct elections . . . Union-manage- ment relationships are likely to be most satisfactory where the law establishes exclusive bargaining rights for the majority union rather than a system of proportional representation and where the employing agency has

' Rehmus, Charles M. "Labor Relations in the Public Sector in the United States," International Labor Reviezv, Vol. 109 (March 1974), pp. 199-216.

" Bakke, E. Wight. "Reflections on the Future of Bargaining in the Public Sector," Monthly Labor Reviezv, Vol. 93 (July 1970), pp. 21-25.

© 1978 by Chartcs R. Crccr

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a duty to bargain rather than merely to meet and confer."^

Tbe adoption of public sector col- lective bargaining legislation would be expected to reduce the number of strikes due to recognitional disputes. Such reductions, however, might be offset by increases in strikes which could be expected to occur in a system of collective bargaining.* Which effect is dominant has been the subject of re- cent empirical research. These empiri- cal investigations, however, provide evidence for the dominance of both effects.

Perry conducted a cross-sectional study utilizing strike data from 1973. The number of years since passage of a state's first public sector legislation was found positively correlated to strike frequency and strike duration for teach- ers. No similar relationship was found, bowever, for local employees (other than teachers, police and firefighters) and state employees. The comprehen- siveness of public sector collective bar- gaining legislation was also found positively correlated to strike frequency and duration and an index of man-days idle for teachers. Similar correlations were found only between the compre- hensiveness of such legislation and strike duration for other local em- ployees. No such correlations were found for state employees.*

In a comprehensive empirical study of strikes in local government, during the years from 1968 to 1971, Burton and Krider found that, ". . . the statu- tory prohibition on strikes has little

apparent impact on the incidence of strikes, nor does the enactment of a law either prohibiting or encouraging collective bargaining by public em- ployees appear to affect materially the number of local government strikes . . . Those states that encourage collective bargaining because they believe this is a meritorious way to determine work- ing conditions for public employees do not incur a rasb of strikes as a result."6

In another empirical study, Kocban found states' environmental character- istics (economic, social, political and industrial relations subenvironment) to be related to their public policies (such as public employee labor rela- tions legislation). Therefore, studies of the effects of such policies (such as public sector strikes) should con- trol for environmental characteristics.'̂ Kochan's findings seem to imply the following: It would make little sense to compare the incidence of public sector strikes in two states having different public sector labor relations legislation without controlling for the fact that those states may vary widely in environmental characteristics.

It can be concluded from this review of the literature that the relationship between legislation and public sector strikes is complex. It cannot be as- sumed, as have some politicians, that passage of such legislation must result in more public sector strikes. In order to obtain additional information con- cerning the legislation and strike re- lationship, a case study approach is employed in this analysis. The case

' Seidman, Joel. "State Legislation on Collective Bargaining by Public Employees," Labor Laiv Journal. Vol. 22 (January 1971), p. 21.

* Burton, John F., Jr. and Krider, Charles E. "The Incidence of Strikes in Public Em- ployment," in Hamermesh, Daniel S., ed. Labor in the Public and Nonprofit Sectors, Princeton, New Jersey: Princeton Univer- sity Press, 1975, pp. 135-177.

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^' Perry, James L. "Public Policy and Pub- lic Employee Strikes," Industrial Relations, Vol. 16 (October 1977), pp. 273-282.

° Burton and Krider, op. eit., p. 171. ' Kochan, Thomas A. "iCorrelates of State

Public Employee Bargaining Laws," In- dustrial Relations, Vol. 12 (October 1973), pp. 322-337.

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study approach has the advantage of allowing consideration of some of the environmental characteristics which may affect the relationship. Before examin- ing the police strike experience in Ok- lahoma City, it is necessary to review Oklahoma's public employee labor re- lations legislation.

The Legislative Environment

On March 11, 1971, the Oklahoma Firefighters' and Policemen's Arbitra- tion Act became effective.* In its ini- tial version,® the law provided fire- fighters and policemen the right to bargain collectively. Municipal authori- ties were required to meet and confer in good faith. There was provision for interest arbitration. If agreement On a contract could not be reached within 30 days after the commencement of negotiations, unresolved issues were to be submitted to arbitration if either party requested. The arbitration pro- vision specified that the arbitration panel's ruling would be binding on the union if the municipal authorities adopted the decision but that the municipal authorities would not be bound by the ruling.

Unions were denied the right to strike. Penalties were provided for municipal authorities found in violation of the good faith bargaining requirements.

In 1972, the law was amended^" to include coverage of other municipal employees. In addition, a Public Em- ployees Relations Board was created to administer the Act. The Board was granted authority to "adopt, promul- gate, amend or rescind such rules and regulations as it deems necessary and

administratively feasible to carry out the Provisions . . ."̂ ^ of the Act.

Unfair labor practices applicable to the municipal authorities were: 8. a. (1) interfering with, restraining, in- timidating or coercing employees ex- ercising their rights; (2) domination of or interference with the union ; (3) interference with the selection of em- ployee bargaining agents; (4) dis- criminatory treatment of employees giving testimony under the Act or electing to be represented by a bar- gaining agent; (5) refusal to bargain in good faith ; and (6) locking out em- ployees.

Unfair labor practices applicable to unions were: 8. b. (1) interfering with, restraining, intimidating or coercing employees exercising their rights; (2) interfering with the selection of the employer's collective bargaining rep- resentatives ; and (3) refusal to bar- gain in good faith.

Since passage and amendment of the Act, it has been subjected to several court decisions that have narrowed its scope.i^ The bargaining agent for the Midwest City police charged the city with an unfair labor practice, failure to bargain in good faith over salaries. ̂ ^ The Midwest City v. Cravens^* case, which was eventually decided by the Oklahoma Supreme Court, marked the demise of the Act as a com.prehensive law governing public sector labor re- lations. The court ruled that the Ok- lahoma Public Employees Relations Board had no authority to adjudicate the unfair labor practice charge be- cause of an unconstitutional delegation of legislative authority to the board. Eurthermore, the court ruled that since

' SR 115. A summary of the act appears in the Oklahoma Law R-eview, Vol. 27 (Sum- mer 1974), pp. 528-533.

"11 O. S. 1971. "• 11 O. S. Supp. 1972. " O . S. Supp. 1972, §548.4-1 subpara-

graph ( D ) .

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^' Barnett, James iR., Assistant Attorney General, State of Oklahoma, letter dated June 27, 1977.

^' Ibid. '^^ Midwest City v. Cravens, Okl., 532 P.

2d 829 (1975).

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the 1972 amendment had not met re- quirements of re-enactment and pub- lication at length, the 1972 amendment did not confer collective bargaining rights to municipal employees other than police and firefighters.

The aftermath of the Midwest City V. Cravens decision is that "the au- thority and duties of the Oklahoma Public Employees Relations Board have been reduced to overseeing the selection and election of bargaining agents for firemen and policemen."^-'' The date of the Midwest City decision was February 14, 1975. Within nine months, Oklahoma City experienced a police strike.

The Oklahoma City Police Strike Although public sector unionization

is not as prevalent in Oklahoma^" as in some other states, the state has not been immune from public sector strikes. The Oklahoma City police- men were involved in a strike which began on October 23, 1975.'^ A re- view of events leading up to the strike and its eventual resolution provides insight into the relationship of these events to Oklahoma's legisla- tion governing public sector labor relations.

The strike represented the culmina- tion of events related to arbitration of police wage demands. The police-

men's bargaining' agent (the Frater- nal Order of Police (FOP), Lodge 123) had bargained for a 10 percent wage increase retroactive to August 1, 1975.1* Earlier in the year, the police had engaged in a trafific ticket slowdown in order to persuade the city to request arbitration of the mat- ter.^" The city eventually requested arbitration, although it was not ob- ligated to accept the arbitration panel's ruling.^" The tripartite arbitration panel recommended that the police be given a 10 percent wage increase retroactive to August 1, 1975; how- ever, the city refused to accept the panel's ruling. Accounts of the city council's response to the panel's rul- ing indicated a feeling that police raises could not be instituted without giving comparable raises to other mu- nicipal employees and because of the city's inability to pay.-^

Prior to the work stoppage, the city had made an offer of a wage in- crease of 7 to 7.3 percent.2^ The policemen charged that the city was morally obligated to accept the panel's recommendation since the city had requested arbitration.^^ A day before the work stoppage the police had initiated a work slowdown.^* The work slowdown involved failures to investigate traffic accidents or answer non-emergency calls.̂ •''

" Barnett, cited at note 12, p. 8. " Oklahoma is somewhat unique wiith re-

spect to unionization in fhe private sector in that it is one of the few states in the region that does not have a right-to-vi'ork law.

" Dryden, Dave and Tevington, Andrew. "City Police Go on Strike," The Daily Okla- homan. October 24, 1975, pp. 1-2.

" Dryiden, Dave. "Raises Could Mean Cut in City Jobs, Officials Say," The Daily Okla- homan. October 11, 1975, pp. 1-2.

" Ibid. ^̂ Tevington, Andrew. "City Officers Air

Threats in Pay Rift," The Daily Oklahoman. October 12, 1975, pp. 1-2.

"̂ Dryden, Dave, cited at note 18.

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"° McCarthy, Tom. "Police Pay Bid Faces Rejection," The Daily Oklahoman. October 20. 1975, pp. 1-2 and Dryden, Dave "Dock- ing Strikers' Pay Probably Won't Show." The Daily Oklahoman. October 28, 1975, p. 12.

-' Dryden, Dave. "Council Pair Urge Fir- ings in Walkout," The Daily Oklahoman. Oc- tober 14, 1975, pp. 1-2.

-' Tevington, Andrew. "Police Start Slow- down to Protest Wage Vote," The Daily Oklahoman. October 22, 1975, pp. 1-2.

-° Donovan. Kevin and McCarthy, Tom. "Police Chiefs Deny Men Ignore Nonemer- gency Calls." The Daily Oklahoman. Octo- ber 22, 1975, pp. 1-2.

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When the work slowdown failed to cause the city to accede to the FOP's demands, the police began a work stoppage. In a show of force, the policemen filed in to turn in their badges in the city manager's office. The FOP lodge president said the policemen were "suspending them- selves" rather than striking, while the FOP's attorney termed the action "mass resignations.''^" In a dramatic event, an officer recovering from a gunshot wound was carried in on a stretcher to turn in his badge.^' Ac- cording to accounts of the work stop- page, 582 of the police department's 598 officers participated in the walk- Out.28

Police duties during the strike were performed by Oklahoma state high- way patrolmen and sheriff's depart- ment deputies. The troopers and sheriff's deputies had been on stand- fjy status and assumed the duties of the police immediately following the walk out.̂ ® Oklahoma City faced no apparent onslaught of criminal ac- tivity as a result of the police strike. During the first night of the strike a lower than normal number of calls for police assistance were received.^"

Nevertheless, the transition of po- lice replacements into the regular officers' duties was not without prob- lems. According to one source, the main problem of the emergency re- placements was their lack of fa- miliarity with Oklahoma City streets.*^ Although a serious situation, accounts

of some of the problems faced by replacements provide insight as well as some humor. One reporter's ac- count of some incidents follows:

" 'Now, on what authority do I make this arrest ?' a trooper asked.

"The sergeant gave his name and the trooper wrote it on the palm of his hand for quick reference . . .32

"While troopers were receiving in- structions in the field from Oklahoma City police supervisors, they were also being guided by drunks at the city jail.

" 'Now be sure and put me on five (cell floor),' an inebriate cautioned an arresting trooper.

" 'I usually get beat up if they put me on three,' he explained."*•''

These quotations, although humor- ous, indicate that the replacements constituted a police force which was probably not prepared to deal with any real crisis. Oklahoma City was spared the misfortunes of other cities where police strikes have occurred, such as Boston in 1919 and Montreal in 1969. As Burton and Krider con- clude from the experiences of such strikes, "In the case of strikes by essential employees, such as police- men, the deterioration of public order occurs almost immediately."^''

Three days after the strike began. it ended when the FOP accepted the city's offer of a 9 percent across the board wage increase. The increase aoplied to all positions except entry

"'Dryden, Dave and Tevington, Andrew; cited at note 17, and Dryden, Dave. "Talks Bring No Changes in Situation" The Daily Oklahoman. October 2S, 1975, pp. 1-2.

•'Dryden, Dave and Tevington, Andrew; cited at note 17.

"' McCarthy, Tom and Donovan, Kevin. "Emergency 'Forces Find Task Routine," The Dailv Oklahoman. October 24, 1975, pp 1-2.

"" Dryden, Dave and Tevington, Andrew; cited at note 17.

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""McCarthy. Tom and Donovan, Kevin; cited at note 28.

" Ibid. "' Donovan, Kevin. "Duties Trying for

Busy Troopers," The Daily Oklahoman. Oc- tober 26, 1975. p. 1.

"^ Ibid., p. 2. "* Burton, John F., Jr. and Krider. Charles

E. "The Role and Consequences of Strikes by Public Employees," The Yale Laze Journal, Vol. 79 '(January 1970), p. 434.

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levels, and was retroactive to August 1, 1975. Educational incentive pay was reduced; the officers involved in the strike would not be paid for the three days during the walk-out, and would be penalized another two days' pay for "improper action."^"

Upon conclusion of the strike, sev- eral statements were made regarding the experience. The city manager con- cluded that the city should not have gone to arbitration.*" The Daily Okla- homan concluded that, "Arbitration has no valid place in public employee bargaining . . ."̂ ^ One councilman pre- dicted tyranny through the following causal chain: "To succumb to these illegal acts (the strike) is to con- tribute to the eventual destruction of our society. Disrespect for the law leads to anarchy, and anarchy always leads to tyranny. . ."̂ ^ Another coun- cilman predicted the death of his conscience before he would vote for giving the union benefits gained by a work stoppage.^" It almost goes without saying that these are extreme statements, but ones that may convey a notion of the emotion of those deal- ing with the union and a major news- paper in the state.

Emotion and inexperience on the part of negotiators probably con- tributed to occurrence of the strike, but the failure of the law is apparent. The power of the Public Employee Relations Board to administer the law had been eliminated. The law had no provision for final resolution of impasses. The arbitration provision served only to intensify the dispute by allowing the city to refuse to abide by the panel's ruling. Unfavor- able views of the present arbitration

procedure seem warranted, but not for arbitration in which the award is binding on both parties. In this case, legislation contributed to a strike but more comprehensive legislation with a compulsory arbitration provision could have eliminated the cause for the strike.

Conclusion

Arbitration is not the cure for all labor problems. The Oklahoma City experience is perhaps better explained by an alternative view of the value of arbitration. This view would be that arbitration serves a valuable pur- pose in public sector bargaining, par- ticularly compulsory arbitration as an alternative to public sector strikes in essential services. According to this explanation, the Oklahoma City police work slowdown could have been prevented if arbitration of the dispute had been eflfectively man- dated. Furthermore, the strike could probably have been prevented if the arbitration panel's ruling had been binding on all parties. Instead, the city's refusal to accept the panel's ruling caused the police to feel they had been treated unfairly.

Whether collective bargaining leg- islation leads to more strikes is a yet unresolved question. One study in- dicates some tendency among certain employee groups to strike more fre- quently after passage of such legisla- tion. A comprehensive study indicates that such legislation is not associated with a higher incidence of strikes. A third study indicates that environ- mental characteristics are important determinates of how such legislation is related to strike incidence.

"McCarthy, Tom. "Strike Ends; Police on Job," The Daily Oklahoman. October 27, 1975, pp. 1-2.

"• Ibid, "' Editorial. The Daily Oklahoman October

30, 1975, p. 8.

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""Dryden, Dave. 'ICily Officials Hint at Vote on Sales Tax," The Daily Oklahoman October 29, 1975, p. 15.

"° Ibid.

April, 1978 • Labor Law Journal

The present analysis provides evi- eliminated the cause of the strike, dence that inadequate legislation and Without such legislation, given the administration of such legislation may somewhat mild penalties assessed of have contributed to a serious strike police officers participating in the in an essential service. Conversely, strike, a recurrence of a similar work legislation providing for final resolu- stoppage may be more than a remote tion of impasses would probably have possibility. [The End]

SUPREME COURT DETERMINES DEGREE REQUIREMENT LAWFUL

Employers who require that job applicants have college degrees to be hired for certain, positions are not in violation of fair employment rules. The U. S. Supreme Court has left standing a determination that the use of a college degree job requirement is lawful although such standards could exclude 94 per cent of the black adult population {Townsend v. Nassau County Medical School, CA-2, 14 EPD jj 7673).

AGE BIAS IN FEDERAL PROGRAMS

Eederally assisted programs, including vocational rehabilitation, often discriminate against older citizens, a study by the U. S. Civil Rights Commission concluded. The Commission reported to Congress that federal and state agencies apparently give preference to younger people in training programs, believing that will result in a better return on the government's investment.

Among other recommendations, the Commission supports enact- ment of H. ,R. 5383. That bill, which has already been passed by the House, would end compulsory retirement and extend protection under the Age Discrimination Act to workers up to 70 years old. The current law only protects workers aged 40 to 65.

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