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Chapter 15 Collective Bargaining

Amajor objective of personnel management is to foster agency productivity. Ageneral reasoning underlying the personnel management functions discussed thus far purports that if an organization anticipates its needs for personnel in a timely and accurate way, structures its tasks in accordance with technological and organiza- tional needs, identifies and hires competent people, conducts and uses evaluations of employee performance, trains and develops employees, and compensates workers in ways that are perceived as fair and rewarding performance, then the organization’s workforce will be productive and the organization will accomplish its goals. All of this is logical and at least partially supported by empirical evidence. There is, however, one major caveat: Conflict between employees and supervisors detracts from the productivity increases that could be attained through these efforts.

This chapter explains a major approach toward dealing with organizational conflict. That approach is to bargain a contract that resolves some issues such as wages and work rules and provides a process for resolving the many ongoing, inevitable disputes between management and workers.

LEARNING OBJECTIVES OF THIS CHAPTER

• Understand the factors that led to the emergence of collective bargaining in government and nonprofit organizations

• Know the structural framework for recognizing employee unions and for negotiating contracts with these unions

• Know how contracts are implemented and administered • Understand how unionization affects other personnel management policies

and processes

ORGANIZATIONAL CONFLICT AND COLLECTIVE BARGAINING

Conflict is inevitable and ubiquitous in organizations. That is the conclusion of sociologists of organizations.1 Ralf Dahrendorf, whose theories here are seminal,2

noted that authority is a basic variable in social conflict and a basic feature of organi- zations. Divisions emerge between workers and bosses, with the former—sometimes

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informally—banding together for self-protection from supervisory activities and protest against managerial demands. A manifestation of this conflict is lower produc- tivity. Workers do not work as hard or as enthusiastically as they could; shortcuts are devised; minor rule infractions are the norm. For those who have worked in an orga- nization, as a supervisor or as one being supervised, all of this will readily sound familiar.

There are a variety of approaches that have been used to mitigate or eliminate conflict in organizations. Supervisors are sent to training courses to learn how to deal effectively with their employees. Employees are organized into teams and invited to work with, not against, managers. The physical environment where employees work is made pleasant with plants, music, and pastel-colored walls. These are all improve- ments that, at least for a short period of time, are appreciated. However, they do not get at the central issue in the conflict between managers and workers—a difference in power.

One way that employees try to offset the power and authority of management is through anonymous group conflict.3 Without leadership or structure, employees implicitly agree on the rate at which they will work and the rules they will fully obey. There are no explicit discussions or agreements. Informal understandings govern. Employees appear physically at the office on time (not early) and then spend an hour organizing the work on their desks, reading the newspaper, and sipping coffee. Memos and reports are adequate, but they do not include all available information and details. The lack of creative suggestions in the reports may be more a sign of protest or indifference than of incompetence. The pace of work is a bit more furious when supervisors are in the office than when they are not present. It is conflict that managers find difficult to deal with because of its informal, anonymous nature. There is no leader to punish or persuade, no structure through which to communicate. Workers, on the other hand, find this kind of conflict frustrating because, although it makes a point, it does not resolve anything.

One way in which managers deal with conflict is to use the techniques of partici- patory management. Management by objectives and Total Quality Management (TQM) are types of participatory management.4 These approaches have limitations because they are management controlled and management oriented and quickly—if not from the start—lose credibility with workers.5 Indeed, the intent of these tech- niques sometimes is to avoid employee unionization, where employees have a more equal, powerful footing.

Collective bargaining is another way of handling organizational conflict. Collective bargaining does not deny conflict, and it does not end conflict. It does, however, resolve and manage conflict. Issues of disagreement are brought to the bargaining table and, at least for the duration of the contract, settled. In the day-to-day relationships between supervisors and employees, a process exists whereby employees can, through their union leaders, raise an objection and get a response. The response is not guaranteed to be to the employee’s liking. Collective bargaining does not work just to the employee’s advantage. In fact, the major public employee union for state and local employees (other than teachers), the American Federation of State, County and Municipal Employees, was started at the initiative of senior managers in Wisconsin state govern- ment as a way of managing conflict between employees and their supervisors.

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THE EMERGENCE OF PUBLIC SECTOR BARGAINING

As in the private sector, the first to unionize in government were laborers and mechanics. Blue-collar workers in naval shipyards and federal arsenals organized themselves in the 1830s. Postal workers unionized in the 1880s. Little other activity occurred prior to the twentieth century.

Then there was the infamous police strike in Boston in 1919. Police in Boston were working an average of 87 hours per week. Police stations were incredibly unsanitary and infested with rats. The salary range was $1,100 to $1,600 per year—at the poverty level. Salary increases were rare, and when they occurred, they were below the rise in the cost of living. It is no wonder that police organized and, when they were unable to bargain a settlement, they went on strike.

When they struck, however, thieves and hoodlums had a field day. Calvin Coolidge, then governor of Massachusetts, reacted harshly. The State Guard was called to restore order, Governor Coolidge assumed control over the police department, striking officers were dismissed, order was restored, and Coolidge received acclaim that carried him into the vice presidency and presidency of the United States. The effect on collective bargaining among government employees was chilling.6

Except for the unionization of the Tennessee Valley Authority employees in the 1930s—a special case in many ways—there was practically no activity for almost 50 years. During the 1960s and 1970s, however, there was a spurt of union growth in the public sector. Between 1953 and 1975, as union membership in the private sector declined from one-fourth to one-fifth the total number of employ- ees, union membership in the public sector grew from less than one-tenth to over one-third.

Despite the extent of collective bargaining in the public sector, there is no stan- dardization of processes or rights as there is for the private sector. Private employers and employees, including those in nonprofit organizations, are covered under the National Labor Relations Act (NLRA), which defines unfair labor practices, scope of bargaining, procedures for resolving an impasse, and the like. The National Labor Relations Board, which is a quasi-judicial body that implements and enforces the NLRA, does not have jurisdiction over government employment.

State and Local Governments

Activity leading to the current status of collective bargaining began in Wisconsin. In 1932, Arnold Zander, head of the Wisconsin State Employees Association, founded the American Federation of State, County, and Municipal Employ- ees (AFSCME). The American Federation of Labor in 1936 chartered AFSCME, and by the 1940s the union had over 700 local organizations active throughout the country.7 Public employees did not, however, have an explicit, legal right to union- ize and the aftermath of the Boston police strike did not encourage illegal action. In 1959, however, at the instigation of personnel managers in local governments and AFSCME officials, the Wisconsin state legislature passed a bill requiring local governments to bargain with their employees if the employees organized.

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Wisconsin also pioneered when, in 1967, state employees were granted the right to bargain. Initially, state employees could bargain on only a few issues. Effective in 1971, however, the subjects that could be brought to the negotiating table were extended to include compensation, transfers, and virtually anything other than agency missions, position classifications, and the selection process.

Other states soon followed. By 1982, 37 states provided the right of public employees to bargain the conditions of their employment. Most did this through statutes. Some, like Illinois, did so through an executive order. Michigan and Califor- nia, which have constitutional clauses prohibiting collective bargaining by public employees, agree to meet and confer with their employees. Technically, meet-and- confer agreements are not binding, but advisory only. Nonetheless, these states regard their bargaining seriously and their agreements are treated as binding. Kansas and Missouri also have a meet-and-confer process, but this is treated as a step short of serious and binding collective bargaining.

The Federal Government

The federal government is not a leader in the field of public employee bargaining. The federal government has been a latecomer and from 2002 to 2007 took steps to withdraw collective bargaining rights from some of its employees. Perhaps more important, it has allowed bargaining on a very narrow range of issues. The first serious move to let federal employees organize and negotiate was when President John F. Kennedy, fulfilling a campaign promise, issued Executive Order 10988 in 1962. That order stated that employees could bargain collectively over the establishment of a grievance procedure and over a few personnel policy issues but not anything dealing with compensation. Prior to this order, each federal agency set its own policies on employee unionization. The Department of the Interior, the Government Printing Office, the Post Office, and the Alaska Railroad were the only agencies where signifi- cant bargaining was occurring. President Kennedy maintained a departmental focus to the structure and processes of unionization in the federal government.

President Richard Nixon, acting on a report provided to him by President Lyndon B. Johnson as he left the White House, improved the processes by simplifying the steps for a union to get recognition as a bargaining agent and by providing for binding arbitration when the parties reach an impasse. President Jimmy Carter included the essence of the Kennedy and Nixon Executive Orders in his Civil Service Reform Act of 1978, thus making collective bargaining statu- tory. The Federal Labor Relations Authority (FLRA) was established to certify unions as bargaining agents and to provide mediation and arbitration services. President George W. Bush argued that national security concerns trumped rights to unionize and severely limited collective bargaining in several agencies, most notably the Department of Homeland Security and Department of Defense.8

Despite the statutory base of collective bargaining since 1978, the federal government still participates in collective bargaining in a very limited way. Bargain- ing cannot include compensation issues, layoff policies, and a number of other criti- cal matters. Congress, unlike legislative bodies in other jurisdictions, does not play a role in the collective bargaining process. The patterns of experiences that inform this chapter come primarily from state and local governments.

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Factors Prompting Public Employee Unionization

A review of the factors that contributed to the emergence and growth of collective bargaining in government is useful for understanding both the nature of collective bargaining and the reasons for the lack of growth since 1980.9

Patronage A major, initial purpose of public employee organizations was to promote the estab- lishment of merit systems and the prevention of politically based firings. As Leo Kramer, writing a history of AFSCME, expressed it:

The AFSCME leadership saw itself as part of a great movement to reform government. By constitution, by resolution, and in its major commitments of staff and finances, a pri- mary objective of the union has been “the extension of the merit system to all nonpolicy- determining positions of all governmental jurisdictions.”10

There were some exceptions to this general pattern. Where there were strong and effective political machines, like Chicago and Rochester, New York, public employee unions became allies and appendages of the dominant political party. If they were to have any influence in these settings, there was really little other choice.11

Since the 1960s, public employee unions have been less enchanted with the traditional civil service system. Nonetheless, AFSCME and others maintain a commitment to the basic principles of merit hiring and firing. Their political role is now broader than protecting merit. It is to get elected those candidates who are most sympathetic to the needs of government workers.

Working Conditions As pointed out in the reference to the Boston police strike of 1919, working condi- tions were of concern to employees there. Similarly, in 1907, the New York Health Department condemned 30 of the 85 police stations in New York City as uninhabit- able. Police in New York at that time worked between 73 and 98 hours a week. Firefighters worked eight days straight with only three hours of break every day. After the eighth day, the firefighters could go home to their families for one day.12

More contemporary examples of unsafe and harsh working conditions are typically found in correctional institutions and mental-health institutions, and for game wardens and highway maintenance crews.

Compensation Unions are often regarded as synonymous with demands for higher wages. Although public employees certainly join unions in the hope that salaries in government will increase, it should be kept in mind that not all governments allow bargaining on compensation. The federal government is a case in point. Only 20 states in 2000 bargained on compensation. School districts and large municipalities, on the other hand, usually do set salaries through collective bargaining.

Management Individual employees who feel mistreated by their supervisor or who feel isolated and helpless in expressing their needs are attracted to unions because they offer a

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mechanism for handling conflict between managers and employees. Unions provide a collective voice for articulating demands. The day-to-day irritants and conflicts are part of the general conflict discussed at the beginning of this chapter. Specific irritants and incidents of conflict provide agenda items for negotiators, and they are a major reason why every collective bargaining agreement includes a grievance procedure.

UNIONS AND NONPROFIT ORGANIZATIONS

Unions see nonprofit organizations as an opportunity for growth. In part this is because of the growth in the number of nonprofits and the number of people who work for these organizations. In part there is the perception that people attracted to nonprofits share the concerns for justice and workers’ rights that have been identified with the labor movement.13 The Service Employees International Union and AFSCME have been particularly active in organizing employees of nonprofit organi- zations. As one might expect, some of this activity has led to tension and struggles, including strikes by museum employees and those in symphony orchestras.14

As mentioned, federal legislation includes collective bargaining under the juris- diction of the National Labor Relations Board. The Board has in turn decided that it will act when nonprofit organizations meet certain gross revenue thresholds. For example, health care organizations that have annual revenues of at least $100,000, social service organizations with at least $250,000 and symphony orchestras with at least $1 million satisfy the NLRB standards for being subject to its oversight.

COLLECTIVE-BARGAINING STRUCTURES

Collective-bargaining laws are not self-implementing. There are two fundamental structures—in addition to the structures and processes established by the unions and management for their own operation—that provide for the negotiation and adminis- tration of contracts. One is the division of the workforce into bargaining units and the other is an agency with quasi-judicial authority to oversee the collective bargaining process and to settle disputes on that process.

Bargaining Units

Few organizations are small and/or homogeneous enough to be covered under a sin- gle contract. School districts usually separate teachers from support staff for collec- tive bargaining. Some school systems make distinctions between elementary, high school, and special education teachers and between academic, clerical, and building support staff. Healthcare nonprofits include support staff and the usual array of health professionals and paraprofessionals. Municipal governments, even when small in size, do not combine, for example, police and park employees in the same bargaining unit.

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There are several concerns that affect the establishment of bargaining units. There is concern that employees in the same unit be doing work similar enough so that they might reasonably be covered under the same contract. Contracts include provisions about work rules, overtime pay, working conditions, and the like. To include employees whose circumstances vary widely complicates both the negotia- tion and administration of contracts.

Another concern is size. A large bargaining unit can, simply because of its numbers, have more power than either management or unions feel is desirable. A large unit can dominate the process. It can hold management hostage, and it can effectively determine the terms of settlement for the other unions. Dominance over the content of the settlement is particularly likely in compensation issues. If a large bargaining unit agrees to an increase in compensation of 5 percent, that union is not likely to allow management to settle on 6 percent raises with another union. Legally, of course, the large union can do little. But it takes little imagination to envision the probable kinds of protests and pressures. In effect, 5 percent becomes the ceiling.

Finally, employers are concerned that there not be too many bargaining units. With a large number of bargaining units, management could be negotiating constantly. Sometimes the only feasible way of negotiating where there are large numbers is for unions to form coalitions and bargain a number of contracts simultaneously. Manage- ment’s concern with the number of bargaining units goes beyond the time that might be consumed in reaching settlements. There could be a whipsaw effect, where unions try to outdo one another in winning concessions. In the process, management would find itself under enormous pressure continually to escalate the benefits offered.

The two common ways of defining bargaining units are by occupational group- ings and administrative departments. The latter, used in the federal government and in states including Minnesota and Washington, have the virtue of establishing work rules and other provisions according to the agency’s mission. The disadvantage to this approach is that it is difficult to maintain equity within occupational groups, such as clericals, accountants, and attorneys, that cross departmental lines. Using adminis- trative divisions to define bargaining units also leads to a large number of units. Minnesota, for example, has 138 bargaining units and Washington has 117.

The states of Massachusetts, Hawaii, and Wisconsin provide examples where bar- gaining units are defined according to occupations. A common pattern is to have sepa- rate bargaining units for clerical employees, building trades and crafts, blue-collar workers, technicians, security, and public safety officers. In addition, there are profes- sional categories, such as legal, fiscal services, social services, education, and engineering.

Organizations differ about what relationship first-line supervisors should have to collective bargaining. Some jurisdictions (Maryland, Oregon, and Connecticut) do not allow supervisors to unionize at all. Municipalities frequently place first-line supervisors in the same unit as the employees they supervise. This is also the pattern in Maine, New Hampshire, and New Jersey. Still others (Hawaii, Minnesota, Massa- chusetts, and New York) allow supervisors to bargain, but insist that they be in units separate from the workers they supervise and that they be represented by a different union from the one representing their subordinates. Pennsylvania negotiates with supervisors on a meet-and-confer basis. There is no consensus on what pattern works best or even on the criteria to be used for defining best.

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Managers are not allowed to unionize, although it is not uncommon for man- agers to form an association and perhaps even hire staff and an attorney to represent their views to nonprofit boards, legislative bodies, and chief elected officials. The definition of who is a manager is sometimes arbitrary, defined by a position title or a salary level.

Another group of employees not allowed to unionize is confidential employees. These are employees at all levels who are closely involved in collective bargaining for management. Personal secretaries to agency heads and clerical employees who work for management involved in collective bargaining are included. Many personnel officers and certain attorneys are also regarded as confidential.

Administrative Agency

Even with very specific language in a statute providing for collective bargaining in government, there will be confusion and conflict over how to proceed. A common source of confusion, for example, is what bargaining unit, if any, is most appropriate for a particular position. Unions suspect managers of expanding the use of confiden- tial positions beyond what was intended just to keep unions from growing. Unions also fight with one another. A union representing clerical workers may argue that particular payroll officers are in fact doing so much filing and other clerical tasks that they should be in the clerical bargaining unit rather than the fiscal administration bargaining unit. These are not disputes that can be resolved at the bargaining table. They must be on the agenda of some separate, quasi-judicial body.

The federal National Labor Relations Board resolves these disputes for nonprofit organizations, as well as private businesses. In the federal government, the relevant agency is the FLRA. This authority consists of three members appointed by the president and confirmed by the Senate for staggered five-year terms. They can only be removed for cause. Most states and local governments use the National Labor Relations Board model and have established an independent agency to handle these issues. Some states, including Nebraska, Pennsylvania, and Florida, use their civil service commission or their department of labor for administering their collec- tive bargaining laws. Florida, Hawaii, and Iowa are examples of jurisdictions that have a separate, independent body just for public employee collective bargaining. Wisconsin’s Employment Relations Commission has jurisdiction over private- and public-sector labor relations, but the NLRB preempts so many of the private-sector cases that most of the work is actually public sector.

Certification The agencies administering collective bargaining laws are responsible for the certification of a union as the recognized bargaining agent for a group of employ- ees. This involves monitoring the petition of a union to represent a group of employ- ees and supervising the elections to determine whether there is the required support from the employees. Each jurisdiction has its own criteria for certifying a union as a bargaining agent for a particular group of employees. Usually, at least 30 percent of the employees in a bargaining unit must sign a petition saying that they want to participate in collective bargaining. Once this petition is filed and

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judged to be valid, elections are held. A majority of those voting in a bargaining unit must favor being represented by a particular union in order for that union to be cer- tified as the bargaining agent for all employees. There can be a change in the bar- gaining agent by decertifying one union through a negative vote or through a charge that the union has violated some provision of the law. Then another election can be held. A failure of any union to secure majority support in most cases means simply that no one will be certified and there will be no collective bargaining.

Negotiable Issues As the parties prepare for and begin the negotiating process, questions often emerge about whether a particular issue can be regarded as a subject for bargaining. The scope of bargaining is defined and discussed below. A major part of the workload of any agency administering collective bargaining laws is to resolve disputes about what must be bargained, what may be bargained, and what cannot be bargained.

Good-Faith Bargaining A less frequent but very important function of labor relations commissions and boards during the bargaining process is to act on complaints that one of the parties is not bargaining in good faith. A fundamental precept of the collective bargaining process mandates that both sides come to the table prepared to give and take to reach a settlement (i.e., to engage in good-faith bargaining). A union that wants to go on strike in order to demonstrate that it is a determined and militant organization is vulnerable to a bad-faith bargaining charge. Similarly, if management comes to the table with a single offer and does not budge at all from it, then they are vulnerable.

Impasse When the parties to the negotiating table are at an impasse, a third and neutral party is usually necessary to get the two adversaries to reach a settlement. Impasse resolu- tion is discussed in more detail later. Whatever the options and procedures are in a particular jurisdiction for resolving impasses, an agency for administering them is necessary. In some states, such as Wisconsin, this agency is the same one that certi- fies bargaining agents and resolves disputes over bargainable issues and unfair labor practices. In other states, such as Connecticut, there are separate agencies. The State Board of Labor Relations is in charge of certifying bargaining agents, determining whether issues are bargainable, and judging unfair labor practice charges. The State Board of Arbitration and Mediation participates in the resolution of impasses.

SCOPE OF BARGAINING

The scope of bargaining refers to those subjects that can be brought to the negotiating table. Usually a distinction is made between mandatory subjects of bargaining—those subjects that must be negotiated if either side raises them; permissive—those subjects that may, if the parties agree, be negotiated; and prohibited—those subjects that may not be brought to the bargaining table. Prohibited subjects of bargaining typically have to be resolved through a legislative process or even a constitutional amendment.

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Although most states specify in statute which subjects are in the mandatory, per- missive, and prohibited categories, some have very general statutory language and categorize subjects virtually on a case-by-case basis. In either circumstance, there is a need for some way to resolve disputes over whether or not the parties must, may, or may not bargain on a particular issue. A common example is when employee work- load is bargainable, but agency mission and policy are not. The size of classes can be viewed as workload by the teachers who have to instruct the students and grade their work. It can also be viewed by a school board or school administration as policy, based on their reading of research about what size provides the most effective learn- ing experience for the students. The policy might also be a judgment about the best possible mix between effective pedagogy and efficient allocation of resources. Simi- lar relationships exist between workload and policy in social work, policing, and the operation of correctional and mental health institutions. The parties may be able to agree on how to categorize these cases. They may even negotiate on what subjects to include in bargaining. If, however, they cannot agree, then they have to bring the case before the commission or agency that administers the collective bargaining law.

Narrow Scope of Bargaining

When specifying the scope of issues that may or may not be brought to the bargain- ing table, some jurisdictions have chosen to restrict negotiations to just a few items. In the federal government, for example, there can be bargaining only on the follow- ing subjects:

• Work scheduling • Work clothes • Working safety • Policies for promotion, training, and discipline • Grievance procedures • Union security

Typically, if there is any bargaining at all, it will be on working conditions (which include items like rest periods and parking facilities), grievance procedures, and union security (which includes whether union officials can use working time, office bulletin boards, and the like to conduct union business). There is, as illustrated in Table 15.1, a scale that is generally followed when moving from a narrow to a broad scope of bargaining.

Part of narrowing the scope of bargaining is the identification of prohibited subjects of negotiation. The list in the federal government includes compensation, layoffs, the selection process, and agency missions. In almost all instances in the public sector, two subjects may not be brought to the negotiating table:

• The criteria and process for selecting new employees • Agency missions

The former protects the merit system. Nonprofit organizations do not share the concern of protecting civil service, of course. There is no common pattern among nonprofits defining the scope of bargaining.

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The intent of prohibiting negotiation on the missions of government agencies is to preserve the essence of the democratic system. Elected representatives, not government employees, are supposed to determine what government does. Even in the best situations, this principle is not always easy to uphold, but it would clearly be in jeopardy if unions and managers, not representatives of the electorate, established policies and priorities.

Whether or not there are statutory prohibitions that specify which subjects are not negotiable, a standard clause in collective bargaining agreements is one that articulates management rights. An example of such a clause is as follows:

The Union recognizes the prerogatives of the Employer to operate and manage its affairs in all respects in accordance with its responsibility and powers or authority which the Employer has not officially abridged, delegated, or modified by this Agreement, and such powers or authority are retained by the Employer. These management rights include, but are not limited to the following: The rights to plan, direct, and control the operation of the workforce, determine the size and composition of the workforce, to hire, to lay off, to discipline or discharge for just cause, to establish and enforce reasonable rules of conduct, to introduce new or improved methods of operation, to contract out work, to determine and uniformly enforce minimum standards of performance, all of which shall be in compliance with and subject to the provisions of this Agreement.

Note that later in the agreement these rights may be subject to particular processes or criteria, unless statutory language prohibits even that. When layoffs occur, for example, they may have to be done in order of least seniority. When a jurisdiction decides they must contract with a firm or with employees not a part of the jurisdiction, there may have to be consultation with the union. Nonetheless, the jurisdiction can decide that there will be layoffs and work will be contracted out.

When the scope of bargaining is narrow, there is not necessarily low intensity of conflict or little interest in the bargaining process. Tempers flare and impasses occur

TABLE 15.1 SCOPE OF BARGAINING FOR SELECTED STATES

Bargainable Issues Delaware Florida Minnesota Pennsylvania New York

Working conditions X X X X X Grievance procedure X X X X X Union activities and X X X X X facilities at work place Layoffs X X X X X Transfers X X X X Promotions X X X Wages X X X X Vacations, days off X X X X Insurance X X X Assignment of classifications X X to salary ranges Retirement X X Productivity X X

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when there are few items to discuss, just as when there are many. Some, in fact, argue that a narrow scope can lead to more intense conflict. General discontent and frustration can be focused on a few seemingly insignificant but bargainable issues.15

A narrow scope of bargaining can lead to inefficiency. Limiting bargainable issues can have the illusion of preserving traditional administrative and legislative processes for various aspects of public personnel management. In reality, however, the unions might be able to seek benefits in a fragmented way. They bargain some issues; they lobby for others in the legislative arena or with boards, commissions, and elected chief executives.

Broad Scope of Bargaining

When the scope of bargaining is expanded beyond the minimum issues, the range of what can be included is limited only by what is specifically prohibited. Including compensation represents a major threshold. Moreover, compensation issues illus- trate dramatically the inefficiencies and dangers of limiting the scope of bargaining and fragmenting the decision-making process. Where, for example, compensation bargaining includes only salaries and time off, unions can go to legislatures or boards for retirement and insurance benefits and then secure a rather generous total com- pensation package.16

Bargaining Retirement

One compensation issue that is frequently not bargainable is retirement. It is feared that the parties will take advantage of the delayed costs of retirement programs and trade items requiring immediate expenditure of funds for generous retirement bene- fits that the jurisdiction may eventually regret. On the other hand, pensions are, as pointed out in the previous chapter, a major part of compensation, and it may be far better to treat retirement as part of the total compensation package than to separate it.

Bargaining Classification

Position classification represents another compensation-related item that is sometimes deleted from the list of bargainable issues. Position classifications are involved in both the selection process and in compensation. Some jurisdictions do not bargain anything related to classifications in an effort to retain the integrity of the merit system. Others prohibit bargaining over the assignment of duties and responsibilities to a position and over the establishment of qualification standards and examination processes for the position, but they do allow bargaining on the assignment of the position to a classifica- tion and the allocation of the classification to a salary range. Bargaining the allocation of classifications to salary ranges risks ranking jobs on some basis other than job evalua- tion points. This threatens adherence to pay equity principles.

Bargaining Agency Shop

Another issue of bargaining that raises some controversy is the establishment of an agency shop. An agency shop or fair-share agreement is where all employees that a

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union represents must pay union dues, even if they are not formally union members. The argument for agency shops holds that employees in a particular bargaining unit are covered under the negotiated settlement and benefit from its clauses, regardless of whether they are members of the union. These employees should not be free riders. They should contribute to union expenses just like anyone else who benefits from union activities. The opposing argument is based on the individuals’ right to associate or not associate with whomever they wish. In Abood v. Detroit Board of Education (1977), the U.S. Supreme Court dealt in part with this issue. The major concern of this case was an objection an employee raised who was not a union member but who, in an agency shop, was contributing to political activities with which he disagreed. The Court ruled there was nothing illegal or unconstitutional about an agency shop, per se, but that unions engaging in political activities had to identify those expenses and charge nonmembers only for their share of the expenses of negotiating and administering a contract.

Productivity Bargaining

In the mid-1970s, employers and unions began what is known as productivity bargaining. These agreements included a quid pro quo provision in which if a partic- ular change was made and a savings in expenditures realized, then the workers would receive an extra benefit or bonus. Management usually takes the lead in productivity bargaining. They have information from organizational or TQM analyses or human resource planning that identify areas where savings might be achieved. Typically, the full development of the ideas and the monitoring of the efforts are done by joint labor-management committees or in quality management teams.17

Privatization

Public employee unions have objected to the expansion of contracting out. In part, unions object to the loss or potential loss of public employee jobs. In part, unions take issue with the assumption that the private sector could do the work of govern- ment better and cheaper than government.18

Unions have sought, not always successfully, to participate in decisions about outsourcing—or at least to be notified when government intends to contract out for services. Some unions have been able to include in their contracts authority to veto any contracts with adverse implications for current employees. Another clause that unions seek ensures continued employment for current workers if a government agency becomes a corporation or is managed by a private firm. More commonly, however, privatization is a management right beyond the reach of union negotiators.

BARGAINING PROCESS

It is difficult to convey the drama and the subtleties of the negotiation process. A major purpose of the exercise included in this chapter is to provide some idea of what happens when union and management try to agree on a contract. The exercise is a

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role play in which the collective bargaining process is simulated. The purpose of the discussion here is to outline some general principles that apply to the structure and dynamics of the bargaining process.

The Negotiators

The selection of union negotiators is frequently specified in the union’s charter or bylaws. Typically, the union will send a team of representatives who have been elected from among the membership. Some unions structure their elections in order to achieve a certain balance of occupations, agencies, regions, and the like. Unions usually have a full-time staffperson who either is the chief negotiator or an advisor to the chief negotiator that the union selects. That staffperson often has a support staff of researchers and lawyers. Large unions have a year-round staff. Smaller unions may secure help from their national organization or a professional labor negotiator who is hired specifically to bargain a given contract. The chief negotiator, whether profes- sional staff or union official, directs the team and is the only spokesperson for the union during negotiations.

Management follows a less consistent pattern. Some organizations have a department or part of a department that has as its sole responsibility the negotiation and administration of labor contracts. Some organizations have added this responsi- bility to the work of personnel departments. Smaller governmental units and nonprofit agencies expect their executives to negotiate or, in many instances, they hire a professional negotiator, a hired gun, to secure a contract. In almost all cases, management, like union, uses a team, not just a single person or office. The manage- ment team, however, is appointed, not elected. The usual representation includes a personnel manager, an attorney, a budget analyst, and managers from the affected agency or agencies.

A useful concept in understanding the dynamics of collective bargaining is “organizational boundary role.”19 A negotiator, whether union or management, oper- ates at the juncture of the organization they represent and the negotiating table. This is represented in Figure 15.1. Being a negotiator involves a role conflict. On the one hand, negotiators define success as reaching agreement. On the other hand, negotia- tors must define success as getting what their side wants.

The resolution of the role conflict will depend in part on the negotiator’s internal pressures and expectations, in part on the messages received from the organization being represented, and in part on the behavior of the other negotiator or negotiators. If, for example, a school board hires a professional negotiator from a nearby commu- nity to bargain with a union, and if the board is not clear about what it wants in a contract—either because of vagueness or internal strife—then the negotiator is likely to emphasize getting an agreement over getting a particular set of clauses. In this situation, there is distance between negotiators and the organization they represent. Negotiators are probably going to use past contracts that they negotiated as guidance for the content of the contract.

Distance from management is exaggerated here because of the so-called hired gun in the situation that has been hypothesized. A labor relations director or person- nel manager may also emphasize getting a contract instead of getting a particular

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contract, but their familiarity with and their commitment to their organization can temper that tendency. On the other hand, a set of firm demands imposed on a nego- tiator is likely to have an impact on the way in which the role conflict is resolved and the content of the final settlement. Figure 15.2 summarizes the major possible configurations.

Conflict can occur within both unions and management. Factions develop in unions that vie for leadership. Units in an organization compete with one another for

Public organization

Management negotiator

Labor negotiator

Labor union

FIGURE 15.1 Boundary Role Structure. Source: Adapted from James L. Perry and Harold L. Angle, “The Politics of Organizational Boundary Roles in Public Sector Collective Bargaining.” Paper presented at Midwest Political Science Association Meeting, Chicago, IL, April 20–22, 1978. By permission of the authors.

High

Labor emphasizes goals;

management emphasizes agreement

Management emphasizes goals; labor emphasizes

agreement

Emphasize goals of clients and

reaching agreement

Emphasizes short- range personal

goals of negotiators;

contracts have standard content

Low

Distance of labor negotiator from union

D is

ta n ce

o f m

a n a g e m

e n t

n e g o tia

to r

fr o m

m a n a g e m

e n t

FIGURE 15.2 Boundary Role Distance and Bargaining Outcomes Source: Adapted from James L. Perry and Harold L. Angle, “The Politics of Organizational Boundary Roles in Public Sector Collective Bargaining.” Paper presented at Midwest Political Science Association Meeting, Chicago, IL, April 20–22, 1978. By permission of the authors.

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budgetary and personnel resources, for jurisdiction, and for general attention. Negotiators, in contrast, may be adversaries but they are in the same profession. The career paths of both union and management negotiators frequently bring an individ- ual from one side of the table to the other. Thus, the concepts of organizational boundary roles and distance between organization and negotiator provide relevant guides in understanding negotiations and predicting outcomes.

Strategies and Tactics

Generally, negotiations begin with the union making the initial presentation of what it is seeking in the contract. Invariably, despite the inevitable protestations to the contrary, the initial demands by the union are more than they hope to get. The task of management, in part, is to determine or guess which items on the union’s list are there for trading purposes and which are there as requirements for securing agree- ment to a contract.

With few exceptions, when collective bargaining began, the pattern of manage- ment participation was simply to determine which of the union demands it could grant. There was no meaningful effort to provide counter demands by management. Now it is common that negotiators for government employers arrive at the initial negotiating session with a list of demands by management. Unions, then, have the same task of trying to determine which of the demands are basic and dead serious and which are there to be abandoned as concessions.

In some state and local governments, some or all of the bargaining sessions are open to the public. When the initial session is public, the tendency is to posture even more dramatically than usual. Sometimes preposterous statements are made as the chief negotiators present their cases. Management will be characterized as a group of fat cats who are violating the public trust and expecting employees of good will and faith to work for next to nothing. Unions will be painted as selfish and lazy, with no regard for the burdens that taxpayers shoulder and with concern only for benefits and not for service. Veterans to negotiations are either bored or entertained by these histrionics. They certainly do not take them seriously.

Games and dramatics continue throughout the process. Negotiators mix table pounding and stubbornness with compliments and gestures to be accommodating. Bargaining teams strategize about when to walk out of the room in a huff: it may be early on; it may be just as an agreement is in reach as an effort to extract one more concession. Union leaders will negotiate around the clock just before meeting with their members in order to use bags under their eyes, disheveled hair, and raspy voices to make an impression of how hard they are working. Managers will publicly wring their hands and fret about the lack of available funds and the inevitable degen- eration of services if the union gets anything close to what it is asking. A union may take a vote to authorize its leaders to call a strike—not because the union necessarily wants to go on strike or thinks that negotiations warrant it, but rather to strengthen the position of union negotiators.

As an agreement is being reached, management must be concerned with costs. Both sides come armed with computers and calculators. As proposals are made, the direct and indirect costs are estimated. Examples of direct costs are wages, insurance

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premiums, retirement contributions, vacations, new tools, uniform allowances, improved facilities, educational reimbursements, and use of official time for union activities. Indirect costs include the administration of the grievance procedure, collection of union dues and fair-share payments, provision of facilities for union activities and notices, and extra steps in the process of contracting out for services.

Although it is management’s responsibility to project the costs of various features of an agreement, unions also participate in this process.20 In part, this is an aspect of the adversarial nature of collective bargaining—one rarely accepts at face value what the other side says. In part, too, the union may find it useful to provide costing infor- mation as a way of getting some of the benefits it is seeking. As Neil W. Chamberlain and Donald E. Cullen point out,

It is part of each party’s job of persuasion to convince the other that the costs of agreeing are actually lower and those of disagreeing actually higher than the other may have estimated, thereby moving the other’s “final” position. There have been numerous instances in which a union has become convinced, in the course of negotiations, that management could not give what the union genuinely expected to make its “last-ditch” demand and in which managements have been persuaded of the reasonableness of sums which they considered grossly unreasonable on first entering into negotiations.21

When, after sometimes months of negotiation and posturing and conflict, the negotiators make a bleary-eyed joint appearance to announce agreement and embrace one another in joy, they seem either like very forgiving souls or individuals with short memories. The joy may be genuine. It may be because the negotiations are over, rather than that each party is thrilled with the contents of the agreement. It may, as well, be a transition to the ratification stage—that point at which those who have been in organizational boundary roles assure their respective clients their inter- ests have been well served, or served as well as possible under the circumstances.

Ratification

Unions follow a fairly standard and common procedure for accepting or rejecting the agreement reached at the negotiating table. That procedure is to submit the agree- ment to union members for a vote. Most unions require approval by a simple majority of those voting. There is no opportunity to amend the agreement in this process. The choice is simply to accept or reject.

Ratification by government employers involves legislative bodies—state legisla- tures, city councils, school boards, county boards, and the like. Management ratifica- tion in nonprofit organizations usually involves board approval. In some government jurisdictions, such as Hawaii, the only issue for ratification is the cost of the settlement. In most other jurisdictions, ratification includes substantive matters (like work rules) as well as cost items. Contracts supersede statutes, ordinances, and rules that may conflict with them, and thus ratification is akin to establishing personnel policies.

Legislative bodies in some jurisdictions, particularly large ones, delegate ratifica- tion authority to a committee. Others treat ratification just like any other legislative action. There is, however, one important caveat: the proposed agreement cannot be amended. Like the union, management must either accept or reject the negotiated

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contract. If amendments are needed, they must be agreed on jointly by union and management.

This raises an issue of fundamental importance. The discussion up to this point has made the assumption that one can simply transfer the bilateral negotiating model from the private sector to the public. This has been the assumption on which public- sector bargaining has been based. Yet, there are more than two parties that play a role in the public sector. There is the union, the executive management, and the legislature. As long as legislative bodies are willing to rubber stamp what union and management negotiators agree to, the two-party collective bargaining model works. As soon as legislative bodies assert their right to play a more meaningful role, then the two-party model does not apply.

Legislators have been dissuaded from playing an active role in collective bargaining in part because legislative bodies tend to be too deliberative and some- what unwieldy for participating in negotiations with another body. In a few instances, legislatures have refused to approve a proposed settlement. The states of Pennsylva- nia, Wisconsin, Minnesota, and Oregon have all experienced this. And in all instances, both management and union representatives were outraged. They acted as if the legislature had overstepped its proper role. These disapprovals did disrupt the normal scenario of collective bargaining, but the legislatures did not, of course, act inappropriately. How can legislative bodies best be accommodated in the collec- tive bargaining process? This question remains unresolved.

IMPASSE RESOLUTION

What happens when the parties cannot agree on the terms of a contract? The choices are to continue working without a contract and trying to reach a settlement, to strike against the employer (if it is a union), or to lock out employees (if it is management). In governments, the option of striking has been a source of great debate. The option of a lockout has not seriously been considered.

The union argument for striking is fairly straightforward. The power that unions have in the adversarial model of collective bargaining is the ability to withhold labor from an employer. If labor cannot be withheld, then unions are toothless tigers.

The arguments against strikes by public employees are more complex and mul- tifaceted. A philosophical position holds that government is the sovereign being of the people, and no one has the right to thwart or debilitate that sovereign being. Public employees are supposed to be committed to serving the public, and this commitment is supposed to supersede any individual interest that government employees might have.

A practically oriented position against public-sector strikes notes the peculiar nature of government as an employer. It is a monopoly supplier in many of the services it provides, and citizens must rely on government for essential services, like police and fire protection and refuse collection. It would seem to follow from this observation that strikes by public employees cannot be tolerated if society is to continue functioning. This was at least part of the rationale behind the reaction to the Boston police strike of 1919.

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With a few exceptions, strikes in the public sector are illegal. Despite this and despite the arguments prohibiting strikes by government employees, strikes still occur. When frustrated over the inability to reach an agreement, public-sector employees follow the example of their private-sector counterparts. Public employee unions have gone on strike and paid whatever penalties in fines and jail terms were imposed. More commonly, unions insist that part of the settlement in the aftermath of an illegal strike includes no penalties. There were few strikes, just as there was not much unionization, prior to the mid–1960s. Most of the strikes, just like most of the unionization, have been by teachers. Public employee strikes reached a peak in 1979, when there were 593; teachers and municipal employees staged 536 of these. Throughout the 1980s and 1990s, the number of strikes declined to about 300 per year. In part, unions responded to a general antigovernment sentiment and a low level of public tolerance for public employee militancy.

There are ways of responding to an impasse other than going off the job. Strik- ing usually is, in fact, the last step, taken when other measures have failed. The first step is mediation. A neutral, third party is brought in to chair the negotiating ses- sions and to work informally with each party, trying to identify where common ground and bases for an agreement exist. Mediators also serve an important symbolic function, providing evidence to workers and managers that their negotiators are fighting hard for them.22 Mediators provide a face-saving way for antagonists to come to an agreement.23

Another approach to resolving an impasse in negotiations is referred to as fact finding. Actually, this is a misnomer. A fact finder does not engage in an effort to find or discover facts. A fact finder listens to the positions of both sides, much like a mediator, and then formally and publicly makes a recommendation for a settlement. The effectiveness of a fact finder depends on the reasonableness of the recom- mended settlement and on the public pressure that is placed on both sides to accept the recommendation. The most common and important criterion that fact finders use are comparability with similar workers employed in other organizations and changes in the cost of living.

Arbitration is another option for the resolution of impasses. Under this alterna- tive, an arbitrator or panel of arbitrators reviews the positions of the two sides and then provides a contract that both parties are committed to accept. Interest arbitration is when this process establishes a contract. Grievance arbitration refers to the use of this process for the enforcement of an existing contract.

Seventeen states use binding arbitration for employees providing essential ser- vices, such as police and fire protection. These jurisdictions do not want any strikes, legal or illegal, in essential service areas, so they want to be sure they have some way of resolving an impasse in negotiations. An arbitrator’s decision is, no matter how unpalatable in parts, generally preferable to a work stoppage, at least to one of the parties. The result has been very few strikes.

There are two types of binding arbitration. One allows arbitrators to pick and choose from the proposals or demands of the two parties and to do some creative work on their own constructing a contract.24 The other requires both sides to provide their last best offer and then mandates the arbitrator to choose one of those offers.

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The arbitrator may not make any amendments to either of those offers. State statutes instruct arbitrators on the general criteria (e.g., ability of the jurisdiction to pay and comparable wages in a community or region) to use in selecting an offer.

The last-best-offer variety retains for the negotiating parties the most meaningful role possible in the decision-making process, thus meeting a concern of some that an arbitrator should not set public policy. The last-best-offer alternative also provides a strong incentive to both parties to be reasonable. If one party has even one outlandish provision, that party risks having the arbitrator reject its entire set of proposals.

State supreme courts in Colorado, California, South Dakota, and Utah have ruled that binding arbitration is unconstitutional. Ten other states have state supreme court decisions upholding the constitutionality of binding arbitration. After Colorado received the ruling of its court, it passed a law that uses a popular referendum to settle impasses. Voters, rather than arbitrators, choose between the contract proposal that the union and management both offer.

IMPLEMENTING CONTRACT PROVISIONS

Cleverness can nullify a loss at the bargaining table. Clumsiness can nullify a gain at the bargaining table. Collective bargaining agreements establish personnel manage- ment policies for the employees and supervisors covered under the contract. As with any other set of policies, actual effects will depend on implementation. Supervisors and employees can ignore or twist contract provisions in ways to sabotage the intent of policy makers. Implementation can also be fraught with inefficiencies and unin- tentional errors, thereby frustrating efforts to achieve stated goals.25

The drama of the process of negotiating a collective bargaining agreement attracts attention. Although less visible, contract administration is not uninteresting and it obviously is not unimportant.

Communication

For a contract to be effective, employees and managers must know what it provides. News conferences announcing agreement at the conclusion of negotiations are not sufficient for getting the word out. Nor is it effective to print enough copies of the con- tract for everyone to have a personal copy. News conferences are held and contracts are distributed, but those organizations that administer their contracts with the least amount of conflict and confusion go beyond these steps. One step is to translate the contract into ordinary English. Legal prose is necessary, but it has its place. Its place does not include informing employees and managers about the rules and policies they must follow.

Steward and Supervisor Training

Although general communications are necessary, the most important and effective communication is that directed at the union steward and the first-line supervisor. Those are the officials who have direct contact with employees. Stewards work with

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the employees; supervisors do, as well, and in addition they are the first representa- tion of management that employees meet.

Some jurisdictions use teams drawn from those involved in negotiating the contract to train first-line supervisors and union stewards. Joint training efforts have the side benefit that both sides involved can learn how the other is interpreting the contract and have an opportunity to discuss and perhaps resolve differences over how the contract should be administered.26 In a general review of studies of training for contract administration, Milton Derber found widespread agreement on the importance of this training.27

There may, of course, be circumstances when joint union-management training is not desired. As pointed out earlier, coming to an agreement at the bargaining table does not mean an end to conflict. In part, the contract provides a framework and arena for the ongoing adversarial relationship; in part, the contract can be part of an overall strategy for either or both of the parties. A union that wants to get a strict transfer by seniority rule may, as an apparent trade-off, agree to a transfer provision that seems to give management discretion but is complex and vulnerable to griev- ances. The consideration of transfers might include requirements for posting notices, reviewing qualifications, considering different categories of employees in different sequences, and the like. The language might be vague and ambiguous in places. Then, the union might want to instruct its officers to watch carefully each time there is a transfer and grieve every potential violation of the contract. By overloading the grievance system with complaints about transfers, the union would be setting the stage for the next round of negotiations, in which it would point out the attractions of a simple transfer-by-seniority principle.

Contract Clarification

Just as a settlement does not necessarily mean the end of conflict, neither does it mean the end of negotiations. During the period of the contract, there is constant communi- cation and negotiation between management and the union. There may have been language that neither side meant to be vague or confusing and that needs to be clari- fied in a memorandum or some other document. There almost inevitably are specific instances that are not anticipated at the bargaining table and need to be resolved.

In order to dispose of these situations in a consistent and effective manner, union and management need not only to work with one another but also to coordi- nate internally. Structures that already exist for organizational communication and activity are usually adequate for labor-contract administration as well.

The parties involved cannot, of course, always resolve disputes. A fundamental feature of every contract is a grievance process. This process is essential for contract administration.

Labor-Management Cooperation Since the early 1990s, union and management leaders in almost 50 jurisdictions have formed formal teams to try to resolve problems in the middle of a contract period.28

While there is some hope that this might generate a cooperative spirit that might replace adversarial relations in contract negotiation, the major objective is to address

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specific issues and to resolve these outside the formal negotiating process. The term for this approach is Labor-Management Cooperation.

The procedures and techniques in Labor-Management Cooperation are similar to those in TQM, but done within the context of union and management relations. Typically, union and management provide an equal number of team members and there are co-leaders, one from each side. Facilitators convene the teams and get them to focus on a specific issue, like high turnover, frequent tardiness, cumbersome or unsafe work procedures, and unsatisfied customers. Team members then examine relevant data and information, consider options and, hopefully, form a consensus on a resolution. Depending on the resolution, there may be a need for budget approval, a change in contract language, or action by an elected official.

While problems have been solved through this process, the basic relationship between labor and management continues.29 Specific issue resolution has not altered the fundamentally adversarial nature of union and management relations.

GRIEVANCE AND ARBITRATION

Whether out of intent or ignorance, provisions of the contract are likely to be violated. When these violations are brought to the attention of the offender and are not addressed satisfactorily through informal means, then a more formal procedure must be used.

The grievance process that is a part of collective bargaining is similar to the appeal process used in disciplinary cases under civil service systems, as described in Chapter 13. The steps in the grievance provisions of the contract appended to the exercise in this chapter are very much like the steps in an appeal process. To review, Step 1 is an oral discussion of the matter between the employee and/or the union steward and the first-line supervisor. Step 2 is a written appeal of the supervisor’s decision to the department head. Step 3 is an appeal to a central committee or offi- cial in charge of personnel and/or labor relations. If, finally, the issue is not resolved satisfactorily by the top personnel official, then Step 4, binding arbitration, is taken.

In addition to the grievance process provided by the contract, unionized employ- ees may pursue appeals through civil service processes (if they are civil service employees, of course) and through employment discrimination processes.30 Accord- ing to the usual arrangement, if a subject, such as transfer or sexual harassment, is included both in the contract and in civil service and/or equal opportunity rules, then the grievance procedure in the contract is used. If the subject is not included in the contract, then union, like nonrepresented employees, use the civil service or equal opportunity appeal process. Cases that involve a mixture of issues can be disposed of in more than one of the processes. These arrangements do not have the beauty of simplicity, but they do provide for conflict resolution.

Scope of Process

Grievance procedures frequently cover a broad range of issues. Disciplinary cases constitute the largest single category, but they are only 20 percent of the total

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number of cases handled each year.31 Other cases range from grievances over work assignments to the availability of parking spaces.

Two competing theories seek to define the scope of grievable issues. One, which the U.S. Supreme Court articulated in United Steelworkers v. Warrior and Gulf Nav- igation Co. (1960), states that an issue is grievable unless it is specifically excluded. This was a private-sector case and most clearly applies to nonprofit organizations. Although the courts have not made any definitive ruling, most public jurisdictions and public sector arbitrators adhere to another perspective, known as the residual rights theory. According to this view, the employer retains as a management right any subject that is not a part of the collective bargaining agreement, and only issues explicitly covered in a contract are grievable.32

Selection of an Arbitrator

Contracts usually provide for a specific process. A very common pattern is to get a list of five or seven names from a source like the American Arbitration Association, a state equivalent to the National Labor Relations Board, or the Federal Mediation and Conciliation Service. Then, union and management take turns striking one name from the list until one name remains: That is the name of the arbitrator.

Some arbitrators are avoided because they submit bills for extravagant expenses. Some are selected or avoided because they get identified with a particular position. Government managers in one region had great fun and considerable success because they did not, as unions had expected, strike the name of an arbitrator who had long been involved in a local socialist party. This individual’s socialist philosophy made him an advocate of tax-supported, free medical services for everyone and, thus, an oppo- nent of health insurance as a benefit for employees. Any grievance that included an issue of health insurance was one that unions, much to their surprise, lost. Once union officials noticed the pattern, they used their own pens to strike his name when it appeared on selection lists.

Arbitration Decision

As in civil service appeals, when a grievance goes to arbitration, the deliberations occur in a courtroom fashion. Witnesses present testimony under oath and are subject to cross-examination. Written documents can be formally entered into the record as exhibits. A written record is kept of the proceedings, often by using a court reporter. Evidentiary rules are relaxed, but what is presented must be relevant and supported.

A major criterion used by arbitrators in deciding cases is the intent of the negotia- tors. Where this is not clear from the contract itself, arbitrators allow evidence that indicates the intent. Sometimes, of course, negotiators have not addressed a particular issue or could not agree on unambiguous language. If possible, arbitrators base their decision on past practices of the agency or the jurisdiction. When this cannot be done, the decision will reflect the arbitrator’s own judgment about what is common practice or what is fair. Courts typically uphold arbitration decisions as long as arbitrators act within the bounds of their authority and in accordance with proper procedures.

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THE IMPACTS OF COLLECTIVE BARGAINING

Are unions good or bad? That is a question that can evoke intense feelings. Good and bad are in the eyes of the beholder and, in any case, it is necessary to be more specific. Rather than trying to make a summary judgment, it is more useful to evalu- ate the impact of unionization in terms of good for what and good for whom.

Compensation

A natural expectation of employees and a natural fear of budget officers is that union- ization leads to higher levels of compensation. The evidence on the relationship between collective bargaining and compensation, however, is mixed and inconclusive. It certainly does not confirm either the worst fears of budget officers or the highest hopes of workers.

One review of relevant studies concluded that unionization, in the public and pri- vate sectors, can generally be credited with achieving a 5 to 15 percent increase in compensation for represented employees.33 But, having stated this conclusion, the researchers shared their worries about the defensibility of that conclusion. Most stud- ies focus on a particular occupation, like firefighters,34 or a particular community, like Los Angeles.35 Moreover, not all studies indicate a positive relationship between unions and wage increases. One study actually found that unions led to salary declines.36

The U.S. General Accounting Office, in a report issued in 1983, concluded that those federal employees who have been able to bargain wages have done relatively well. In the period 1975 to 1980, postal employees fared the best. They received a 53.7 percent increase in their pay. Other federal workers who bargained compensa- tion received a 46.2 percent increase, whereas those unable to bargain salary were given a 34.4 percent increase.37 All employees received less than the 57.4 percent increase in the Consumer Price Index over the period covered in the study. The same pattern continued throughout the 1990s, although the gap between the Con- sumer Price Index increases and federal salary increases was even greater.

David Stanley’s examination of municipalities in the late 1960s and early 1970s led to inconclusive results.38 Daniel J. B. Mitchell’s analysis of aggregate data col- lected by the Bureau of Labor Statistics and the U.S. Bureau of Economic Analysis was also inconclusive.39 As Mitchell pointed out, there are a variety of forces that determine compensation. Factors like the general condition of the economy and an employee’s place in the hierarchy of the organization are far more important than whether or not there is collective bargaining over compensation. The general policy of most employers is to keep their wages comparable to what similar workers are get- ting elsewhere. This takes some of the sting out of union activities and complicates research to determine the effects of unions on compensation. Unions may have an impact in specific situations, but there is not a general pattern that can be detected.

Supervision and Management

Collective bargaining is, as pointed out, an approach to conflict within organizations. With collective bargaining, employees do not have to confront management as single

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individuals. They have a grievance process, and they have the right to union repre- sentation and assistance.

Managerial decision making is more complex because of collective bargaining. Supervisors have to be conscious of contract provisions, and they have to be sensitive to the possibility that if they violate a clause in the contract, they may have a griev- ance filed against them. Whereas supervisors had been able to make decisions on their own or in consultation with other supervisors or managers, they now have to consult, formally and informally, with union officials.

The changes collective bargaining have prompted in supervision and manage- ment need not be cast in a negative or compliance perspective. Better management should lead to better organizational performance and higher employee morale. In their study of public transit systems, James Perry and Harold Angle found empirical support for these linkages.40

Merit System

Public employee unions are not hiring halls, and they have not been interested in playing this role. Statutorily prohibiting negotiations on the selection process assures the right of government to employ individuals of its choice, regardless of union poli- cies and preferences. The value of preserving this right for government employers helps maintain the merit system tradition.

Whereas the selection process for initial hiring has been kept separate from the collective bargaining process, some jurisdictions have agreed to provisions for transfers and/or promotions that make the area of connection between the merit system and unionization a subject of concern. A major concern is the preservation of a balance between the right of an employee to expect to transfer to a more desirable working environment and a manager’s need to be certain that an office has a congenial and competent staff. Similarly, both the right of an employee to expect promotional oppor- tunities and the need of a government employer to seek new talents and perspectives are at issue. It is obviously difficult to establish or maintain a balance between compet- ing objectives when transfers and promotions occur almost entirely by seniority.

There are some approaches that meet the needs of both employer and employee more satisfactorily than selection by seniority. One is to limit the number of transfers that can occur with any single vacancy, say, no more than two or three. The transfers allow employee mobility, whereas the limit on transfers permits managers to select on the basis of their needs. Another approach, which provides more discretion to appointing authorities, only requires notification of vacancies to current employees so that they might apply for them, through transfer, promotion, or competition. Because employees usually know more about their organization than outsiders, employees often have a competitive advantage. Ensuring employees of the chance to compete, however, does not ensure their selection.

Political Activity

Employee unions are political actors: They lobby; they endorse candidates; they pro- vide financial support and volunteer labor for causes and candidates whom they

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favor. Employee unions are regarded as an important power in most communities. In local elections, candidates prize the endorsement and support of employee unions. Firefighters and teachers, in particular, have acquired reputations as effec- tive campaign workers and valuable allies. As pointed out in Chapter 3, public employees are more likely than other members of the citizenry to vote and partici- pate in politics. Government workers tend to have a high level of knowledge about politics, and they have a personal interest in the outcome of elections. That personal interest is no longer a matter of whether or not they will have a government job, but rather about the status of their programs and the identity of their bosses.

Some fear a scenario in which public employees control all phases of our politi- cal system. There are, however, too many political actors in the U.S. political system for public employee unions to be a dominant force that could not be dislodged by other groups unwilling to pay the costs of public employee victories. The taxpayer revolts of the 1980s and antigovernment sentiment of the 1990s illustrate the limited influence of public employee unions, not their dominance.

Diversity

Unions have been some of the most avid and effective opponents of efforts to achieve equal employment opportunities for minorities and women. In the public sector, this has been especially true among police officers and firefighters. Unions have fought the alteration of requirements that screened out women and minorities.

There are traditional principles upheld by unions that are major obstacles to the achievement of diversity in the workforce. These principles are based not necessarily on opposition to diversification, but on distrust of the capacity of supervisors and managers to exercise discretion fairly. Seniority is the most visible and notable of these principles.

On the other hand, affirmative action advocates can utilize union organizations to accomplish their goals. Especially when bargaining units are organized in ways that allow women and minorities to mobilize, unions can become integral parts of the struggle against discrimination. Unions have, for example, played a major role in get- ting pay equity policies adopted.

This point applies particularly to women because they have been clustered in jobs that are stereotyped and “reserved” for them. Bargaining units organized according to occupation, in other words, provide the potential for women to resolve affirmative action conflicts through collective bargaining. If clericals, nurses, or aides in female institutions are all in the same bargaining unit, they can insist that their contracts include provisions for educational and training opportunities that advance them into traditionally male jobs, rather than just train them to do their current job better. They can include provisions covering sexual harassment.

Productivity

Unions are frequently identified with protecting their workers from change and maintaining the status quo. There are many examples of unions resisting change and acting as obstacles to improved productivity. There have been, on the other hand,

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examples since the mid–1970s of agreements between union and management to improve productivity. An element of suspicion and distrust is to be expected, and unions will undoubtedly continue to regard one of their mandates to be the avoid- ance of layoffs and loss of jobs. Nevertheless, there are enough experiences to indicate that this position of unions does not mean that management must give up on productivity improvement. Moreover, the management rights clauses of contracts and statutes provide government employers with the responsibility for and the latitude to pursue productivity concerns.

At the outset of the discussion of collective bargaining, the point was made that conflict between supervisors and employees was responsible for a lack of productiv- ity among workers. One way of protesting supervision and distasteful work rules was to engage in minor rule violation, cut corners, and work at a minimal rate. With the resolution of conflict provided by collective bargaining and the aven ues for protest- ing in ways other than lower productivity, it is expected that workers will work more intensely and effectively. Collective bargaining would, no doubt, continue regardless of whether this expectation was met.

SUMMARY

Employee unions and collective bargaining have emerged as integral parts of person- nel management systems. Wages, working conditions, work rules, and other dimen- sions of personnel management are set at a bargaining table, not just in the chambers of a legislative body or a nonprofit board. The administration of the contract is as much a part of managerial and supervisory duties and responsibilities as the implementation of civil service laws and other employment policies.

The process is adversarial, but it is in response to existing conflict. That conflict exists at the bargaining table during negotiation and in offices as the contract is being implemented. Likewise, conflict resolution occurs at the bargaining table and at the workplace.

The impacts of collective bargaining are mixed and uncertain, but it is fair to say that the worst fears have not been confirmed and the highest hopes have not been realized. The essence of the merit system has remained intact. Diversification of the workforce has been both hampered and assisted. Wages have and have not been increased as a result of unionization. The debates and resistance that met the intro- duction of collective bargaining are still evident in some quarters, but, on the whole, collective bargaining has been accepted as a feature of personnel management in government agencies and nonprofit organizations. Some have even welcomed it.

DISCUSSION QUESTIONS

1. Are relations between unions and management inherently adversarial or are there ways in which the two can join in a cooperative partnership?

2. What are the advantages and disadvantages of managers relying on a firm or individual con- tractor, rather than an agency employee, to negotiate with employee unions? Under what circumstances, if any, would you favor the hired gun approach?

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3. If you were an agency manager, how would you prepare for contract negotiations? How would you be certain the management negotiating team knew of and pursued your concerns?

4. Should public employees be allowed to go on strike?

Collective Bargaining Exercise This exercise is a role play designed to give participants an understanding of the col- lective bargaining process in the public sector. Basic information is provided for the context in which the bargaining occurs and for specific roles. As in an actual situa- tion, the personalities, creativity, and imagination of individual participants provide the rest of the necessary ingredients.

THE SETTING

This simulation takes place in Mediumville, a city of about 210,000 people. The com- munity is fairly diversified. It is the location of an undergraduate college, has three industries, and is the home of a major insurance company. The local economy is a microcosm of the national economy. Last year’s rate of inflation was 2 percent, this year’s is 3 percent, and most predictions for next year are for 3 percent again. There are more than the usual uncertainties about city revenues. Both the state and federal governments are considering cuts in aid to cities that could reduce city revenues by one-third. Property taxes in the community are somewhat below the average for the state, but taxpayers are nonetheless concerned about drastic increases.

The community’s political composition is also diversified. There is an active group concerned with women’s issues. There is a substantial Chicano community of about 10 percent of the population. A coalition of conservative religious groups has been campaigning against abortion, pornography, and the refusal of the school system to have Christmas programs.

The city bargains with six different unions. Three of the unions are in the middle of two-year contracts. Those contracts include wage increases of 5 percent each year. Three other unions are currently bargaining. One is a blue-collar union, which is demanding a 9 percent salary increase. The average salary of blue-collar workers is $29,000 per year. Another union, representing bus drivers, is asking for a 10 percent increase per year for each of the next two years. The average salary for bus drivers is $34,000.

The third union—the focus of this role play exercise—represents clerical employ- ees. The average salary of clericals is $24,000. The pay ranges currently in effect for the blue-collar, clerical, and bus driver unions are presented later, with salary range 1 allocated to clericals, 2 to blue collar workers, and 3 to bus drivers. There are 350 blue- collar workers, 175 bus drivers, and 1,000 clerical employees. In each instance, the distribution of employees is one-tenth of the work force in each of the first two steps of the salary range, one-fifth in Step 3, two-fifths in Step 4, and one-fifth in Step 5.

While negotiations are being conducted, the city council is deliberating about a proposed ordinance to prohibit abortions in any medical facility within the city’s

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CHAPTER 15 COLLECTIVE BARGAINING 333

limits. Medical facilities are defined as hospitals, clinics, and doctors’ offices. The penalty would be a fine and the revocation of permission to provide any further health services. Abortions are defined to include all abortions, regardless of circumstances.

An abridgement of the existing contract for the clericals is appended to this exer- cise. Standard clauses not likely to be involved in negotiations have been omitted.

Elections for union leaders are scheduled for next year. Elections for the city council and mayor are scheduled as the last step in this exercise.

PROCEDURE

The instructor will assign roles and set deadlines. The sequence of activities is as follows:

1. Simultaneously, the city council will begin deliberating on the antiabortion proposal, and the management and labor negotiating teams will prepare for bar- gaining by drawing up their positions and discussing strategies. The scope of bar- gaining is like that presented for the state of New York in Table 15.2. The city council will continue to deliberate on the antiabortion proposal throughout the rest of the exercise, or until they resolve it. They will have to ratify the final settlement and should make whatever arrangements for getting that on their agenda that seem appropriate.

The proponent of the antiabortion measure is the Anti-Abortion Club (AAC). It is opposed by the Women’s Interest Group (WIG), which includes pro-choice as one cause in a general effort to improve the lot of women in society. These groups and general citizens should seek access to the city council and/or the collective bar- gaining process to express their views as best they can throughout the exercise.

2. Negotiations begin first with the union’s presentation and then a response and/or presentation by management. After these initial presentations, discussions and bargaining on each item should take place. Recesses for caucusing may occur whenever desired.

As agreement is reached on each item, the chief negotiator on each side should initialize the wording.

3. If there is an impasse, there is a mediator available and that mediator can, on request, act as an arbitrator. If there is an impasse and the parties agree on binding

TABLE 15.2 PAY RANGES (DOLLARS)

Salary

Steps

Range 1 2 3 4 5

1 19,360 21,180 23,000 24,820 26,640 2 20,980 23,115 25,250 29,385 32,520 3 23,170 26,480 29,700 33,010 36,320

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arbitration, state law requires that the arbitrator select from the last best offers pre- sented by each side.

If binding arbitration is not invoked, the agreement must be ratified by a majority vote by union members and a majority of the city council. A failure to rat- ify sends negotiators back to the bargaining table.

4. All members of the city council and the mayor must immediately run for reelection. They, for purposes of this exercise, will not have opponents. Members of the class will vote yes or no for each official. The votes cast for the abortion proposal and the contract shall be public information. The mayor should be iden- tified with the majority in the abortion case and with the settlement in collective bargaining.

DESCRIPTION OF ROLES

Participants should read only the role assigned to them. These descriptions emphasize the formal character of the role and provide some guidelines about the values and personality assigned to the role. Although these guidelines should be adhered to in order to let the entire exercise run as it is designed, individuals should not feel constrained. As mentioned, creativity and innovation are impor- tant, too.

The instructor will assign individuals who are not assigned a role to be members of AAC, WIG, or the general public.

Mayor. This is your second four-year term as mayor. You enjoy considerable sup- port throughout the community, due in part to your attractive personal style and in part to your ability to meet the most essential needs of various groups in the com- munity. Your plans are to serve another four-year term and then to run for a seat in the U.S. Congress. As a politician, you wish the abortion issue would go away but recognize that it will not and that it provokes intense feelings. You personally think that the pro-choice arguments are the most persuasive. Regarding collective bar- gaining, you are concerned about the uncertainty of funding for next year and fear political repercussions of any sizable tax increase.

President of the City Council. You are a highly respected lawyer in the commu- nity and have been elected to the city council and to the presidency of that body because of your reputation as a moderate and as someone who is good at settling disagreements among different groups. You personally do not oppose abortions but respect the views of those who do consider abortions as equivalent to murder. The city budget officer is a neighbor and close friend and has sensitized you to the ele- ment of uncertainty in the city’s finances. This has made you nervous about the pos- sibility of generous wage settlements with the unions.

City Council Member (A). You are the proponent of the antiabortion proposal. You are a member of a fundamentalist Christian church, and you are generally con- servative politically. One of your closest friends has a daughter who, without her parents’ knowledge, had an abortion at one of the city’s hospitals. This has trauma- tized your friend and, in part, this experience has prompted your proposal.

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City Council Member (B). You are a worker in one of the city’s major industries. You are very active in your own union and generally supportive of collective bargaining and the status of workers. Abortion is not high on your list of concerns, although you recognize that others feel very intensely about it.

City Council Member (C). You are the owner of a small business in the central part of the city. You are fiscally conservative, but you have not formed any strong opinion on the abortion issue. You take a great deal of pride in the community, and you are concerned about avoiding conflict and division.

City Council Member (D). You are a Chicano and a liberal generally, although as a Catholic you oppose abortions on moral grounds. You are not particularly sympa- thetic to cries by the majority of taxpayers that they are paying too much. You do, however, recognize them as a political force.

City Personnel Manager. You have been appointed to the negotiating team because of your expertise in personnel management and in order to maintain as much consis- tency and compatibility as possible between the unionized employees and the non- represented. The nonrepresented are about 35 percent of all city employees. You have been in the personnel management profession for almost 20 years, in both the public and private sectors. You support the principle of collective bargaining in government, but you prefer a structure where labor relations and traditional civil service are under the same director. This position makes you a rival to the labor relations director. You serve at the pleasure of the mayor.

City Labor Relations Director and Chief Negotiator. You have been involved in public sector negotiations ever since receiving your master’s degree in public administration 12 years ago. You serve at the pleasure of the mayor and thus far you have maintained good relations with both the mayor and the city council. Your per- sonal aspirations are to move to a larger jurisdiction within the next few years. You enjoy your work, and you have established the kind of record that in all probability will generate more challenging opportunities.

City Budget Officer. You are on the negotiating team because of your expertise on the city’s finances. Your concerns are, of course, to keep the costs of any settlement as low as possible. You have been through negotiations before, and you have become very sensitive to the effects that a settlement with one union can have on negotiations with other unions. You are also aware of and frustrated by the uncertainties that you face regarding how much money the city will have during the next couple of years. Uncertainty has always been a factor, but the deliberations at the federal and state level about cuts in aid have made the level of uncertainty higher than ever. You serve at the pleasure of the mayor.

City Director of the Department of Administration. The mayor has appointed you to the negotiating team because your department is the largest employer of clericals and because, as the mayor’s former campaign manager, you enjoy a close relationship with the mayor. Given your interest in administration and politics, you are expected

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to bring a good balancing perspective to the negotiations. Your agency has not been regarded as a good working environment for clericals, and you expect some of the hostility common to negotiations to be directed at you. The major problem, as far as you can tell, has been poor supervision, causing conflict, hostility, and a higher than usual turnover rate.

City Director of the Department of Transportation. The mayor has appointed you to the negotiating team because your department is one of the largest and because the mayor would like to have some continuity in the bargaining with the various unions. Bus drivers are also negotiating a contract this year. You are a professional civil servant. You have served as director of the department of transportation for five years, and you would like to retain this position until your retirement four years from now. You serve at the pleasure of the mayor.

Union Executive Director and Chief Negotiator. You are a full-time staff person for the AFSCME local involved in this negotiation. You also serve the bus drivers and two of the unions not involved in negotiations at this time. You have been the executive director here since the beginning of unionization, eight years ago. You would like to move to a larger city or to a position working with state employees, and have set your- self a two-year deadline for doing this.

Union President. You are a secretary in the department of human services and rank-and-file members have elected you to your position. As president, you are a member of the negotiating team. You were elected to the presidency when clericals first unionized eight years ago and have been in office ever since then. You plan to run for reelection next year, and you have heard that the secretary-treasurer is think- ing of challenging you. You are somewhat puzzled by this, because the wages and benefits of clericals have improved noticeably since unionization.

Union Vice President. You are a secretary in the parks department and rank-and- file members have elected you to your position. As vice president, you are a member of the negotiating team. You initially resisted the move to unionize clerical workers but became convinced that this was inevitable and that it might indeed improve working conditions and wages. You were elected to your position primarily because of the respect you command from other clericals who had the same initial misgivings as you did. You will be retiring in one year.

Union Secretary-Treasurer. You are a secretary in the assessor’s office and rank- and-file members have elected you to your position. As secretary-treasurer, you are a member of the negotiating team. You are seriously considering running for the presi- dency. A prime motive is your concern that the current president is not militant enough in pressing for the needs not only of clericals but of women.

Union Member of Bargaining Team (A). You are a secretary in the department of administration and you have been elected by rank-and-file members to be on the negotiating team. You have been elected primarily because of your identification

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with the comparable worth cause. You have been a member of the union ever since it began organizing in the city, and you are convinced that the most effective way of achieving comparable worth is through the collective bargaining process.

Union Member of Bargaining Team (B). You are a receptionist and typist in the parks department, and you have been elected by rank-and-file members to be on the negotiating team. Your best friend, who worked in the department of administration, just quit her job because she could no longer stand the sexual harassment to which she had been subjected. She has the mixture of anger and guilt feelings that are com- mon in such situations. You are angry.

Union Member of Bargaining Team (C). You are a secretary in the department of transportation, and you have been elected by rank-and-file members to be on the negotiating team. You are a member of the Chicano community. Your concerns include securing a reasonable wage increase and getting educational and training opportunities for all union members but especially minorities.

President of Anti-Abortion Club. You are the head and chief spokesperson of a con- servative, religiously based group that opposes abortion on moral grounds. Because of the conviction that life begins at conception, you regard abortion as murder and are therefore intense about your cause. Your group includes men and women and, although generally conservative, is basically concerned about the issue of abortion.

President of Women’s Interest Group. You are the head and chief spokesperson of a liberal women’s group. Your concerns include choice regarding reproduction, equal pay for comparable worth, sexual harassment, and the entry of women into jobs tra- ditionally held by men. You have been elected as head primarily because you are articulate and firm without being abrasive.

Mediator-Arbitrator. You are a professional mediator-arbitrator, currently working for a state agency that provides mediators and arbitrators to local governments. You hope to move eventually to the National Labor Relations Board or to become a pro- fessional negotiator for either unions or employers. Your job here is first to be cer- tain that the parties are bargaining in good faith. Then you should try and determine where the parties are in basic agreement and what the “bottom line” is of each party. As mediator you should suggest proposals and compromises where appropriate. Stress the desirability of the two parties reaching their own accord, without going to arbitration. Remember not to get identified with either side and thereby lose your effectiveness. As arbitrator, you must, without making any changes, select the entire set of proposals submitted by one of the two parties.

AGREEMENT BETWEEN CITY OF MEDIUMVILLE AND CLERICAL UNION, AFSCME, AFL-CIO

This agreement made and entered into pursuant to the provisions of Section 111.11 Pennsylvania Statutes by and between the City of Mediumville, hereinafter referred

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to as the employer, and the clerical union as representatives of clerical employees employed by the City of Mediumville, hereinafter referred to as the union or employee, Witnesseth:

[Management rights and union recognition and security clauses not included]

GRIEVANCE AND ARBITRATION PROCEDURE

Grievances shall be processed in the following manner: (Time limits set forth shall be exclusive of Saturdays, Sundays, and holidays.)

Step 1. The employee and/or the steward shall take the grievance up orally with the employee’s first line of supervision outside of the bargaining unit within ten days of their knowledge of the occurrence of the event. The supervisor shall attempt to make a mutually satisfactory adjustment, and, in any event, shall be required to give an answer within ten days.

Step 2. The grievance shall be considered settled in Step 1 unless within ten days after the supervisor’s answer is due the grievance is reduced to writing and pre- sented to the department head. The department head shall respond to the griev- ance in writing within ten days.

Step 3. The grievance shall be considered settled in Step 2 unless within ten days from the date of the department head’s written answer or last date due the griev- ance is presented in writing to the personnel committee. The personnel committee shall respond in writing to the union steward, grievance committee, or union repre- sentative (with a copy to the president of the union) within ten days.

Step 4. If a union or employee grievance is not settled at the third step, either party may take the matter to arbitration.

ARBITRATION

(a) The arbitrator shall, if possible, be mutually agreed upon by the parties. If agree- ment on the arbitrator is not reached within ten days after the date of the notice requesting arbitration or if the parties do not agree upon a method of selecting an arbitrator within ten days, then the Pennsylvania Employment Relations Board shall be requested to submit a panel of five arbitrators. The parties shall alternately strike names until one remains and the party requesting arbitration shall be the first to strike a name. Each party shall pay one-half of the cost of the arbitrator.

(b) The arbitrator shall have the authority to determine issues concerning the interpretation and application of all articles or sections of this agreement. He or she shall have no authority to change any part; however, he or she may make recommendations for changes when in his or her opinion such changes would add clarity which might avoid future disagreement.

(c) The written decision of the arbitrator, in conformity with his or her jurisdiction, shall be final and binding upon both parties but shall not constitute a binding precedent in connection with future negotiations.

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Discipline, Suspension, Discharge. Employees shall not be disciplined, sus- pended, or discharged without good cause. A suspension shall not exceed 30 days. Written notice of the suspension, discipline, or discharge and the reason or reasons for the action shall be sent to the employee with a copy to the Union within 24 hours.

Interdepartmental Transfers. Those employees wishing to transfer to another department within their same job classification shall file an application for such trans- fer with the personnel manager designating which department(s) they wish to transfer to. Such transfer applicants shall be given first consideration by the appointing author- ity for their possible transfer to the position being filled by order of their seniority.

Layoffs. The employer shall have the right to reduce the number of jobs in any classification and/or department because of shortage of funds, lack of work, or because of a change in organization or duties. Employees whose jobs have become eliminated shall have the right to bump any junior employee in their classification and/or in their pay range or classifications in pay ranges below—provided they are qualified and can demonstrate their ability to do the junior employee’s job. Such junior employees who have lost their positions as a result of a bump, shall have the right to exercise their seniority in the same manner as if their job had been eliminated.

Recall from Layoff. Employees shall be recalled from layoff in accordance with their seniority to jobs for which they are qualified. The employer shall not employ any new employees or temporary or part-time employees in positions for which there exist a qualified employee on the layoff list.

Compensation. Employees shall be paid in accordance with the following scale (based on an annual salary for a full-time employee):

Step 1: $19,360 Step 2: $21,180 Step 3: $23,000 Step 4: $24,820 Step 5: $26,640

Employees shall be hired at no less than the first or minimum step and shall be advanced to the second step effective upon the completion of 1,040 hours (six months, full-time) of work. Employees shall thereafter be advanced one step for each additional 2 ,080 hours of work, until they reach the maximum, unless at least 30 days prior to the scheduled time for an increase the department head notifies the employee in writing that the increment increase is being denied. The written denial shall give the reasons thereof and shall be grievable.

Paid Holidays.

The following are determined to be holidays:

January 1 Memorial Day (last Monday in May)

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July 4 Labor Day (first Monday in September) Thanksgiving Day (fourth Thursday of November) December 24 December 25 December 31

Whenever any of said holidays shall fall on Saturday or Sunday, the succeeding Mon- day shall be the holiday.

Vacation. All employees covered by this agreement shall earn annual paid vaca- tion according to the following schedule:

1st year through 7th year: 80 hours of vacation 8th year through 14th year: 120 hours of vacation 15th year through 22nd year: 160 hours of vacation 23rd year and thereafter: 200 hours of vacation

Sick Leave with Pay. All full-time employees covered by this agreement shall be granted sick leave with pay at the rate of four hours of sick leave for each 160 hours worked. The accumulation of sick leave days shall not exceed 96 hours per year, and sick leave may not be carried over from one year to the next.

Educational Programs. It shall be the policy of the parties to this agreement to develop training and educational programs. Such programs shall be designed to improve the skills of employees relative to the jobs they currently perform. Any such training or educational programs as are developed shall be at the mutual consent of the parties.

GLOSSARY Agency shop Arrangement where all employees that are covered by a union contract must

pay union dues, even if they do not belong to the union American Federation of State, County and Municipal Employees (AFSCME) The

largest public employee union in the country representing employees other than teachers Arbitration Process in which a third, neutral party provides a binding settlement of a dispute

(See grievance arbitration and interest arbitration.) Bargaining unit The category of employees within an organization that are grouped

together for collective bargaining purposes Certification The process of determining that employees want to be represented by a partic-

ular union Confidential employees Individuals who may not be included in a collective bargaining

agreement or a union because their responsibilities involve working with managers in contract negotiation

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Fact finding An approach to resolve an impasse that relies on a proposed settlement offered by a third, neutral party. The proposal is advisory

Good-faith bargaining A requirement that applies to both union and management that par- ties genuinely engage in the give-and-take of negotiations

Grievance arbitration Arbitration used to settle a disagreement about how to apply or administer a contract

Impasse A stage in which there appears to be no grounds for movement in negotiation toward an agreement

Interest arbitration Arbitration used to settle an impasse in negotiating a contract Mediation Effort to resolve an impasse that uses a neutral third party to work informally to

help the parties reach agreement. The mediator plays an advisory role Ratification The adoption by union members and by management of the contract negotiated

by their representatives Residual rights theory Principle that anything not explicitly included in a contract is a

management right. This is the prevailing approach in the public sector Scope of bargaining The issues that must or that may be negotiated between union and

management. Issues are categorized as mandatory, permissive and prohibited subjects of bargaining

SOURCES

Bureau of National Affairs. (1992). Basic patterns in union Contracts. Washington, DC: Bureau of National Affairs. Survey of existing contracts with analysis of frequent patterns.

Follett, M. P. (1949) Freedom and co-ordination. London: Management Publications Trust. Classic statement of the perspective that conflict between management and workers is inherent and can be managed, but not eliminated.

Kearney, R. C. (1992). Labor relations in the public sector. New York: Marcel Dekker. A general review and discussion of unions and bargaining in the public sector.

Reeves, T. Zane (2006) The demise of public employee unionism? in Norma M. Riccucci, ed., Public personnel management: Current concerns, future challenges (4th ed.). New York: Longman A brief, but lucid review of the history of public employee unions.

Russel, F. (1975). A city in terror, 1919: The Boston police strike. New York: Viking. Account of the police strike that affected public sector collective bargaining for almost the next half-century.

NOTES 1. Peter M. Blau and W. R. Scott, Formal Organizations (San Francisco: Chandler, 1962);

Reinhard Bendix, Work and Authority in Industry (New York: Harper and Row, 1963). 2. Ralf Dahrendorf, Class and Conflict in Industrial Society (Stanford: Stanford University

Press, 1959). 3. Mary Parker Follett, Freedom and Co-ordination (London: Management Publications

Trust, 1949). For an example from outside the United States, see David K. Leonard, Reaching the Peasant Farmer (Chicago: University of Chicago Press, 1977), 64–80.

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4. Peter F. Drucker, The Practice of Management (New York: Harper & Row, 1954); George L. Morrisey, Management by Objectives and Results in the Public Sector (Reading, MA: Addison-Wesley, 1976); J. C. Abegglen, The Japanese Factory: Aspects of Its Social Orga- nization (Glencoe, IL: Free Press, 1958); Steven Cohen and Ronald Brand, Total Quality Management in Government (San Francisco: Jossey-Bass, 1993).

5. J. Armshaw, D. G. Carnevale, and B. Waltuck, “Cooperating for Quality: Union- Management Partnership in the U.S. Department of Labor,” Review of Public Person- nel Administration 13, no. 2 (Spring 1993): 25–47; Richard C. Kearney and Stephen W. Hays, “Labor-Management Relations and Participative Decision Making: Toward a New Paradigm,” Public Administration Review 54 (January/February 1994): 44–52.

6. Francis Russel, A City in Terror, 1919: The Boston Police Strike (New York: Viking, 1975).

7. Ronald C. Kent, AFSCME: A Brief Labor History (Madison, WI: AFSCME, 2003). 8. T. Zane Reeves, “The Demise of Public Employee Unionism?” in Norma M. Riccucci, ed.,

Public Personnel Management: Current Concerns, Future Challenges, 4th ed. (New York: Longman, 2006).

9. Joseph B. Mosca and Steven Pressman, “Unions in the 21st Century,” Public Personnel Management 24, no. 2 (Summer 1995): 159–166.

10. Leo Kramer, Labor’s Paradox (New York: Wiley, 1962), 27. 11. Michael T. Leibig and Wendy L. Kahn, Public Employee Organizing and the Law

(Washington, DC: Bureau of National Affairs, 1987); Paul E. Gerhart, “The Emergence of Collective Bargaining in Local Government,” Public Personnel Management 9, no. 4 (Fall 1980): 287–295.

12. Hugh O’Neill, “The Growth of Municipal Employee Unions,” in Robert H. Connery and William Farr, eds., Unionization of Municipal Employees (New York: Academy of Political Science, 1970), 3–4; Jim Seroka, “The Determinant of Public Employee Union Growth,” Review of Public Personnel Administration 5, no. 2 (Spring 1985): 5–20.

13. Joan Pynes, “Human Resource Management in Nonprofit Organizations,” in Riccucci, ed., Public Personnel Management.

14. Jennifer C. Berkshire, “Nonprofit Groups Turn to Unions to Organize Workers and Col- laborate on Common Causes,” The Chronicle of Philanthropy (2002) www.philanthropy. com/jobs/2002

15. R. G. Brown and T. L. Rhodes, “Public Employee Bargaining Under Prohibitive Legisla- tion: Some Unanticipated Consequences,” Journal of Collective Negotiations 20, no. 1 (1991): 23–30; Bernard Ingster, “Themes and Issues—An Afterword,” in Walter J. Ger- shenfeld, J. Joseph Lowenberg, and Bernard Ingster, Scope of Public-Sector Bargaining (Lexington, MA: Lexington Books, 1977), 207.

16. William H. Holley and Kenneth M. Jennings, The Labor Relations Process (Chicago: Dryden, 1994); Bureau of National Affairs, Basic Patterns in Union Contracts (Washing- ton, DC: Bureau of National Affairs, 1992).

17. W. N. Cooke, “Product Quality Improvement Through Employee Participation: The Effects of Unionization and Joint Union-Management Administration,” Industrial and Labor Relations Review 46 (October 1992): 119–134; Dianne R. Layden, “Productivity and Productivity Bargaining: The Environmental Context,” Public Personnel Management 9, no. 4 (Fall 1980): 244–256.

18. Donald F. Kettl, Sharing Power: Public Governance and Private Markets (Washington, DC: Brookings Institution, 1993).

19. R. L. Kahn, D. M. Wolfe, R. P. Quinn, J. D. Snoek, and R. A. Rosenthal, Organizational Stress: Studies in Role Conflict and Ambiguity (New York: Wiley, 1964); D. Katz and R. L. Kahn, The Social Psychology of Organizations (New York: Wiley, 1966).

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CHAPTER 15 COLLECTIVE BARGAINING 343

20. David E. Northup, “Management’s Cost in Public-Sector Collective Bargaining,” Public Personnel Management 5, no. 5 (September/October 1976): 328–334.

21. Neil W. Chamberlain and Donald E. Cullen, The Labor Sector (New York: McGraw Hill, 1971), 233. See also Richard C. Kearney, Labor Relations in the Public Sector (New York: Marcel Dekker, 1992).

22. Patrice Mareschal, “Providing High Quality Mediation: Insights from the Federal Media- tion and Conciliation Service,” Review of Public Personnel Administration, 18, no. 4 (Fall 1998): 55–67.

23. Susan R. Quinn, Debbie Bell, John Wells, “Interest-Based Negotiation: A Case Study,” Public Personnel Management 26, no. 4 (Winter 1997): 529–534.

24. Gregory G. Dell’Omo, “Capturing Arbitrator Decision Policies Under a Public Sector Interest Arbitration Statute,” Review of Public Personnel Administration 10, no. 2 (Spring 1990): 19–38.

25. Eugene Bardach, The Implementation Game: What Happens After a Bill Becomes Law (Cambridge, MA: MIT Press, 1977); Jeffrey L. Pressman and Aaron B. Wildavsky, Imple- mentation (Berkeley: University of California Press, 1973); Donald S. Van Meter and Carl E. Van Horn, “The Policy Implementation Process: A Conceptual Framework,” Adminis- tration and Society 6 (February 1975); George C. Edwards, III, Implementing Public Policy (Washington, DC: Congressional Quarterly, 1980).

26. Donald P. Crane, “Patterns of Labor-Management Cooperation,” Employer Responsibili- ties and Rights Journal 5, no. 4 (1992): 1–11; and D. Carnevale, “Federal Service 2000: Staff Training and Labor-Management Cooperation,” International Journal of Public Administration 16, no. 6 (1993): 865–887.

27. Milton Derber, “Management Organization for Collective Bargaining in the Public Sector,” in Benjamin Aaron, Joseph R. Grodin, and James L. Stern, eds., Public-Sector Bargaining (Washington, DC: Bureau of National Affairs, 1979), 109–112. See also, John F. Burton, Jr. “Local Government Bargaining and Management Structure,” in David Lewin et al., eds., Public Sector Labor Relations: Analysis and Readings (Sun Lakes, AZ: Thomas Horton and Daughters, 1981).

28. Report of the U.S. Secretary of Labor’s Task Force on Excellence in State and Local Government Through Labor Management Cooperation (May, 1996). U.S. Government Printing Office, Washington, D.C.

29. Jon Brok, ed. “Labor-Management Cooperation—Special Issue,” Public Personnel Management 27, no. 1 (Spring 1998): 1–102.

30. George W. Bohlander, “Public Sector Independent Grievance Systems: Methods and Procedures,” Public Personnel Management 18, no. 3 (Fall 1989): 339–354.

31. Debra J. Mesch. “Grievance Arbitration in the Public Sector,” Review of Public Personnel Administration 15, no. 4 (Fall 1995): 22–36.

32. Harry Graham, “Arbitration Results in the Public Sector,” Public Personnel Management 11, no. 2 (Summer 1982): 112. See also Mario F. Bognanno and Charles J. Coleman, Labor Arbitration in America: The Profession and Practice (New York: Praeger, 1992); Paul F. Gerhart and Donald P. Crane, “Wrongful Dismissal: Arbitration and the Law,” Arbitration Journal 48, no. 2 (1993): 56–68.

33. David T. Methe and James L. Perry, “The Impacts of Public-Sector Bargaining on Local Government Operations: A Review of Research.” Paper presented at Annual Meeting of American Society for Public Administration, Baltimore, April 1–5, 1979.

34. R. G. Ehrenberg, “Municipal Government Structures, Unionization, and the Wages of Firefighters,” Industrial and Labor Relations Review 27, no. 1 (October 1973): 36–48.

35. W. Fogel and D. Lewin, “Wage Determination in the Public Sector,” Industrial and Labor Relations Review 27, no. 3 (April 1974): 391–404.

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36. D. Lewin and J. H. Keith, “Managerial Responses to Perceived Labor Shortages,” Crimi- nology 14, no. 1 (May 1976): 65–93.

37. General Accounting Office, Comparison of Collectively Bargained and Administratively Set Pay Rates for Federal Employees, Document No. FPCD 82–49 (Washington, DC: Government Printing Office, 1983).

38. David T. Stanley, Managing Local Government Under Union Pressure (Washington, DC: Brookings Institution, 1972).

39. Daniel J. B. Mitchell, “The Impact of Collective Bargaining on Compensation in the Public Sector,” in Benjamin Aaron, et al., Public Sector Bargaining, 118–149.

40. James L. Perry and Harold L. Angle, “Collective Bargaining and Organizational Perfor- mance,” Policy Science (1983): 1–25.

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