CHAPTER 3: PUBLIC SECTOR LABOR RELATIONS: HISTORY AND LAW

LABOR NEWS: THOUSANDS PROTEST UNIVERSTY OF CALIFORNIA BUDGET CUTS

CHAPTER 3: OUTLINE
I. Memphis Sanitation Strike 1968
A. Publicity of this public sector union action caused orani!in to skyrocket
". #iure $%1 i&es a chronoloy of strike e&ents
'. Martin (uther )in *r.+s ,I+&e been to the mountaintop- speech .as to the city of
Memphis the niht before his assassination/
II. 0efinin the Public Sector
A. 1he public sector consists of a myriad of le&els and 2urisdictions of o&ernmental units
pro&idin basic o&ernment ser&ices.
". 1he three le&els of o&ernment are federal/ state/ and local.
'. 1he 3nited States has a federal system of o&ernment .ith a national o&ernment and
subnational entities officially called states.
0. (ocal o&ernments include cities/ counties/ to.ns/ and &illaes/ and such entities as local
school boards and public utilities.
4. All three le&els of o&ernment ha&e t.o roles as it relates to collecti&e barainin5
1. In the pri&ate sector as creator and protector of collecti&e barainin rihts
6. In the public sector as employer
#. 1he #ederal 7o&ernment is di&ided into three main branches5
1. 1he leislati&e
6. 1he 2udicial
$. 1he e8ecuti&e
9. 1hese branches ha&e the same basic shape and perform the same basic roles
defined for them .hen the 'onstitution .as .ritten in 1:8:.
;. A system of checks and balances pre&ents po.er from bein concentrated in any
one of the three branches.
7. A State 7o&ernment is the o&ernin body of 1 of the ;< states. State o&ernments and
the federal o&ernment are leally dual sovereigns.
1. 1he so&erein nature of o&ernment e8plains .hy collecti&e barainin in the
public sector differs from the pri&ate sector.
6. State o&ernments share po.er .ith the federal o&ernment and under the 3.S.
'onstitution/ all o&ernmental po.ers not ranted to the federal o&ernment are
reser&ed for the states.
$. All states ha&e a .ritten constitution and a three%branch o&ernment modeled on
the 3.S. federal o&ernment.
9. 1he e8ecuti&e branch of e&ery state is headed by an elected o&ernor/ and the
leislati&e branch is typically a bicameral leislature made up of a senate and a
house of representati&es =e8cept >ebraska .hich has a unicameral body?.
;. Most states are subdi&ided into counties/ .hich are considered subsets of state
o&ernment and share in the state+s so&ereinty.
6. States rely primarily on sales and@or property ta8es/ but also on rants from the
federal o&ernment for administerin prorams such as retirement/
unemployment compensation/ and other social insurance systems/ and fees such
as tolls/ lottery ticket sales/ and income from collee tuition.
A. (ocal 7o&ernments5 A municipal corporation is the leal term for a local o&ernment.
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1. A municipal corporation is a political creation of a state that is composed of the
citi!ens of a desinated eoraphic area and .hich performs certain state
functions on a local le&el.
6. In many local o&ernment structures/ the leislati&e body also ser&es as an
e8ecuti&e body/ directin the day to day operation of its acti&ities.
$. Some local o&ernment separates the e8ecuti&e and leislati&e duties .ith a
mayor or a ,chief e8ecuti&e- .ho manaes the o&ernment.
9. 1he o&ernin members of the local o&ernment are elected by &oters .ho li&e
.ithin the &otin boundaries of the municipality.
;. 1he local body has the po.er to pass ordinances/ or local la.s.
III. Aistory of Public Sector (abor Belations
A. Pendleton Act5 Such .as not al.ays the case. In the early 18<<s/ citi!ens .ere
scandali!ed by the use of party patronae in federal/ state/ and local o&ernments.
1. 1his spoils syste caused a turno&er of o&ernment .orkers on the basis of their
political affiliation/ not on their ability or dedication.
6. In 188$/ 'onress passed the Pe!"leto! A#t$ .hich pro&ided for a bipartisan
three%member 'i&il Ser&ice 'ommission to dra. up and administer competiti&e
e8aminations to determine the fitness of appointees to federal office.
". 4arly Public Sector 3nions
1. 1.o early federal employee orani!ations/ the >e. Cork (etter 'arriers =186$?
and the >ational Association of (etter 'arriers =189<?/ enaed in intense
lobbyin for impro&ed salaries/ better .orkin conditions/ and reater security
for letter carriers and their families.
6. In 189;/ the Postmaster 7eneral prohibited postal employees from &isitin
Dashinton to influence leislation.
$. President 1heodore Boose&elt follo.ed in 19<6 .ith his infamous ,a order/-
forbiddin postal and federal employees/ either indi&idually or throuh
associations/ to solicit members of 'onress for .ae increases or for other
leislation.
9. In reaction/ 'onress enacted the (loyd%(a#ollette Act of 1916 .ith the intention
of conferrin 2ob protection rihts on federal employees and a restriction on the
authority of the e8ecuti&e branch of o&ernment to dischare a federal employee
for talkin to 'onress.
'. 1he Push for Public%Sector 'ollecti&e "arainin
1. 0urin the 19$<s and 199<s/ pri&ate%sector unioni!ation flourished under the
protection of the >ational (abor Belations Act.
6. 3nioni!ation re. later and more slo.ly than the public sector for a number of
reasons.
a. 3nions held less attraction for many public employees because they
already en2oyed some of the protections souht by pri&ate employeesE
2ob protection throuh the ci&il ser&ice system/ benefits such as sick and
annual lea&e days =189$? and an eiht%hour day =1888?.
b. 1he nature of o&ernment employment .as predominately .hite collar/
.hereas unioni!ation in the 19$<s and 199<s .as by and lare a blue
collar acti&ity.
c. 1he so&erein issue/ discussed in more detail belo./ and a leal
en&ironment that .as hihly unfa&orable to public employee collecti&e
barainin/ kept employees at all le&els of o&ernment from bein able
to approach o&ernment employers and enae in collecti&e barainin.
0. Aatch Act =199$ Amendment?5 In 199$/ President "ill 'linton sined a bill amendin the
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Aatch Act and remo&in restrictions on federal .orkers+ partisan political acti&ity that
had been in place for more than ;< years.
IF. Public Sector (abor (a.s
A. 1he So&ereinty 0octrine
1. In the public sector/ o&ernments/ backed by 2udicial decisions/ .ere able to
resist collecti&e barainin for many years by relyin on the so%e&ei'!ty
"o#t&i!e(
6. So&ereinty is defined as ,the supreme/ absolute/ and uncontrollable po.er by
.hich an independent state is o&erned.-
$. 1he so&ereinty doctrine reGuires that the o&ernment e8ercise its po.er
unfettered by any force other than the peopleEall the people.
". #ederal 4mployees
1. President *ohn #. )ennedy sined E)e#*ti%e O&"e& +E(O(, -./00$ .hich
reconi!ed the rihts of federal employees to 2oin or to refrain from 2oinin labor
orani!ations/ ranted reconition to those labor orani!ations/ and detailed
barainin sub2ects.
6. Dhat is important about )ennedy+s oriinal order of 1966 is the lihtnin effect
it had on orani!in dri&es amon federal/ state/ and municipal employees.
$. Post1l Reo&'1!i21tio! A#t o3 -/4.: Another initiati&e of the >i8on
Administration .as the passae of the Postal Beorani!ation Act of 19:< that
made the 3.S. Postal Ser&ice =3SPS? an independent aency of the e8ecuti&e
branch.
9. T5e Ci%il Se&%i#e Re3o& A#t o3 -/40$ Title VII$ also kno.n as the #ederal
(abor Belations Act/ and Beorani!ation Plan >o. 6 of 19:8/ o&ern federal
employee labor relations.
a. 1he act is modeled after the >ational (abor Belations ActH it i&es
federal employees the riht to 2oin or not 2oin unions and to enae in
collecti&e baraininH and it places central authority in a three%member
panel/ the #ederal (abor Belations Authority/ .ho are appointed by the
president of the 3nited States.
6( N1tio!1l Se#*&ity Pe&so!!el Syste
a. In 6<<6/ President 7eore D. "ush/ in the .ake of the September 11/
6<<1/ terrorist attacks/ created the 0epartment of Aomeland Security
=0AS?.
b. 1he ne. department consolidated under one aency se&eral federal
aencies .ith a central mission to protect America from terrorists.
c. 1he 0AS and the 0epartment of 0efense =0I0? .ere i&en their o.n
personnel system/ .hich included some ci&il ser&ice la. pro&isions/
e8cept the president .as i&en the authority to ,e8clude federal aencies/
subdi&isions and units from rele&ant labor subsections.-
d. 1he >ational Security Personnel System =>SPS? .as to o&ersee about
:6</<<< federal o&ernment ci&ilian employees.
'. 1he >ational 0efense Authori!ation Act for #iscal Cear 6<1< repealed the statutory
authority for the >SPS and directed the Secretary of 0efense to pro&ide for the
con&ersion of all >SPS employees and positions back to their oriinal status by *anuary
1/ 6<16.
0. State and local o&ernment la.s
1. #ederal (abor Belations Act doesn+t co&er state and local employees.
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6. State leislature usually co&ers .aes/ hours/ terms of employment and .orkin
conditions/ unfair labor practices/ and riht to strike.
a. 96 states passed la.s co&erin some aspect of union reconition
b. fall into three cateories5
i. comprehensi&e la.s rants all public employees collecti&e barainin
rihts
ii. tareted la.s rant rihts to roups such as teachers/ firefihters/ police
iii. restricti&e la. either prohibit collecti&e barainin or are silent and has
been interpreted as not a&ailable
$. National League of Cities v. Usery/ confirms state has so&ereinty o&er o.n
employees.
9. 6<<: 3.S. Supreme 'ourt decision a&e states ne. authority to reulate public
sector unions.
F. Public Sector 3nions
A. Public Sector unions today fall rouhly into three cateories5 associations or fraternities/
public sectoronly unions/ and mi8ed unions.
". 1he >ational 4ducation Association =>4A? is the larest professional orani!ation in the
.orld .ith more than $.6 million members and affiliates in e&ery state as .ell as in more
than 19/<<< communities.
'. Mi8ed union5 A union that represents both public and pri&ate sector employees.
FI. 'ontrastin Public and Pri&ate Sector (abor Belations
A. #ederal and state statutes co&erin public sector collecti&e barainin may be modeled
after the >(BA/ there are still la.s or practices that differ reatly from the act and from
one another.
". "arainin differences in the public sector5
1. M*ltil1te&1l 71&'1i!i!' 7enerally refers to neotiations in the public sector
.here the authority to commit to a collecti&e barainin areement may be
shared by the e8ecuti&e and leislati&e branches/ and thus three parties are
in&ol&ed in neotiations
6. Ipen neotiations
a? S*!s5i!e l18s may reGuire that collecti&e barainin sessions be open to
the public/ often th.artin the parties+ ability to compromise.
b? Media co&erae may be harmful to neotiation but it is necessary
because ultimate decision rests .ith the public.
c? 'ase $%1Esome sessions may be held in closed session ho.e&er the
final areement to be neotiated is sub2ect to an open session.
'. Super&isors in barainin units
1. 3nder the >(BA and the #ederal (abor Belations Act concernin federal
employees/ ,super&isors- are not i&en collecti&e barainin rihts.
6. In the pri&ate sector and/ presumably in the federal o&ernment/ a super&isor is
seen as a &ital part of manaement so collecti&e barainin .ith super&isors
makes no sense.
0. Si!e of public sector barainin units
1. 1he si!e of a public employee barainin unit can i&e a strateic ad&antae to
either manaement or labor.
6. 1he public employer may encourae a larer unit/ hopin the di&erse interests
and backrounds of a larer unit .ill pre&ent the union from ainin ma2ority
status.
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$. (arer units pre&ent or reduce the possibility that multi%union neotiation .ill be
used aainst the employer.
4. 1he Biht to Strike
1. 3sually denied in public sector
6. Aruments for allo.in public employees to strike
a. Probably do it any.ay/ focus on strike/ not problems.
b. >eeded to eGuali!e barainin po.er.
c. 1est union+s strenth.
d. >onessential employees should ha&e same rihts as pri&ate
sector.
$. Aruments aainst allo.in public employees to strike
a. 4ssential ser&ices can+t be held hostae to neotiations.
b. 4lected officials .ould not ha&e enouh control.
c. >o competition for ser&ices means elected officials .ould
be at the mercy of strikers.
9. Some state and local o&ernments allo. .orkers to strikeE1able $%9.
;. 1he Professional Air 1raffic 'ontrollers =PA1'I?
a. Air traffic controllers follo.ed PA1'I+s call for a strike and those .ho
did not follo. President Beaan+s order to return to .ork .ere fired.
b. 1.enty%t.o illeal strikes in public sector proceeded PA1'I strike.
#. Besol&in Impasse in the Public Sector
1. "ecause most public employees are not &ested .ith the riht to strike/ reachin
an impasse in the public sector follo.s a slihtly different path.
7. Alternati&e 0ispute Besolution Ser&ices
1. (eislation that allo.s public%sector collecti&e barainin but prohibits strikes
often details the procedures a&ailable to resol&e an impasse.
6. 9e"i1tio! pro&isions are pro&ided in most states .ith collecti&e barainin in
the public sector.
$. F1#t:3i!"i!' 1!" 1"%iso&y 1&7it&1tio! can be far more successful in the public
sector than in the pri&ate because of political pressures.
9. I!te&est 1&7it&1tio! usually allo.s an arbitration panel to make a 3i!1l 1!"
7i!"i!' "e#isio! on a neotiation dispute.
A. 4nforcement of 'ollecti&e "arainin Bihts
1. 1he #ederal (abor Belations Authority =#(BA? and many state created labor
authorities perform the same role in public%sector labor relations as the >(B"
pro&ides in the pri&ate sector.
FII. 'urrent Pri&ate Sector 'hallenes
A. Pri&ati!ation5 Befers to a process in .hich o&ernmental employees are replaced .ith
pri&ate sector .orkers throuh a contract .ith an outside employer for the purpose of
reducin o&erall costs.
1. Ad&ocates of pri&ati!in o&ernment ser&ices contend that contractin out public
ser&ices does the follo.in5
a. Produces better manaement of prorams by brinin sophisticated cost%
cuttin techniGues
b. #rees public administrators from manain day%to%day operations/ allo.s
o&ernment to focus on its ,core acti&ities-
c. Pro&ides speciali!ed skills other.ise too costly for o&ernment to recruit
and hire
d. Beduces capital outlays for facilities and eGuipment/ .hich enables
o&ernment to be more fle8ible in re&isin prorams
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e. Moti&ates pri&ate%sector manaers to perform .ell because they are
moti&ated by opportunities for financial ain
f. Pri&ate firms can pro&ide oods and ser&ices ,better/ faster/ and cheaper-
than o&ernment.
. Spur economic ro.th by openin ne. areas of acti&ity to entrepreneurs
h. 0ispels criticisms .ith o&ernment+s performance as a pro&ider of
ser&ices
i. Addresses concerns o&er ,.aste/ fraud/ and abuse-
2. "udet deficits reGuire o&ernment to de&elop ne. sources of re&enue
and to reduce costs
6. Ipponents of pri&ati!ation cite the follo.in do.nsides to contractin out public
ser&ices5
a. Sa&ins are often illusory because the costs for o&ernment to bid/
administer/ and monitor the results of outside contracts are not
considered.
b. 0ependin on outside contractors for facilities and eGuipment makes
o&ernment &ulnerable to cost increases because it is unable to step in
and pro&ide the ser&ice.
c. Pri&ate contractors e8pect to earn a profit and must also make enouh to
pay ta8es.
d. (ayin off public employees costs the o&ernment unemployment
compensation/ a loss of ta8 re&enues/ and lo. employee morale.
e. 'ontractin out lo.ers the Guality of ser&ices pro&ided because the
pri&ate contractor+s oal is to ma8imi!e profits/ .hich often leads to
o&erburdenin its employees.
f. 'ontractin out means losin in%house e8pertise reGuired to carry out
o&ernmental acti&ities and makes o&ersiht of contractors more
difficult/ aain/ resultin in lo.er Guality of ser&ices.
. It+s a union%bustin stratey intended to .eaken unions by decreasin the
number of unioni!ed o&ernment employees.
h. Ad&ersely affects .omen and minorities.
i. Shift of functions to the pri&ate sector may transfer o&ernin discretion
into the hands of pri&ate parties.
2. 'ontractin out can promote conflict of interest relationships bet.een
o&ernment employees and the pri&ate sector.
k. 'ompetiti&e markets can fail/ especially if there are too fe. firms to
compete for o&ernment contracts. #or e8ample/ .hen a company
operatin charter schools in 'alifornia became defunct in Auust 6<<9/
the parents of 1</<<< children had but a fe. .eeks to locate ne. schools
for their children.
l. I&erseein outside .ork creates manaement challenes for o&ernment
administrators.
". School Fouchers
1. "oth the >ational 4ducation Association =>4A? and the American #ederation of
1eachers =A#1? ha&e cited ,school &oucher- prorams as a ma2or concern for the
public employee.
6. 'ritics of public schools ha&e ad&ocated tuition &oucher prorams/ .hich
pro&ide families .ith public funds that could be used for pri&ate school tuition/
includin reliious%based school tuition.
$. Ad&ocates of school &ouchers contend that i&in families a choice .ill force
public schools to impro&e to stay competiti&e.
44
'. 1a8payer Be&olt
1. Dhen the 7reat Becession of 6<<8 caused a drop in ta8 re&enues/ cash%strapped
state and local o&ernments .ere forced to find .ays to cut costs .hile
continuin to pro&ide the ser&ices ta8payers had come to e8pect.
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CHAPTER 3: CASE DISCUSSION
CASE 3:- NEGOTIATING UNDER SUNSHINE LAWS
1. 0o you think that a Sunshine (a. like #lorida+s/ in .hich all barainin sessions are open/
helps or hinders the neotiations process in the public sectorJ
Aelps5 Public sector employees usually do not ha&e the riht to strike. 1heir unions must be
able to enerate support for their barainin position from the public since it is the public
.ho pays their salaries. "y ha&in the neotiations in public/ the information on their
demands and the response from manaement to those demands is not filtered throuh one
side or the other/ but is i&en to the public directly by the press.
(ike.ise/ since it is often practically or politically impossible for public employers to easily
replace public employees .ho are often health and safety employees/ the employers need to
ha&e the public+s backin durin difficult neotiations. 1he public employers do not .ant to
be 2uded as ha&in i&en a.ay the store if the final '"A is critici!ed as bein too enerous.
If the public is a.are of the .ay the talks proressed/ they miht be more acceptin of the
outcome.
Ainders5 *ust because public employers and employees are those in&ol&ed in a collecti&e
barainin session doesn+t make the dynamics of the neotiations any different. As noted in
the chapter/ there is usually an initial period in the neotiations .hen demands are made/
.hich both parties kno. .ill not be accepted. Aa&in those demands aired in the public
before the normal i&e and take of the neotiations places the parties in a false liht/ and may
pre&ent them from bein able to mo&e off of those e8treme positions.
6. 0o you think the reporter in this case shares some responsibility for the ,&iolation- of the
state sunshine la. since he had an opportunity to obser&e the ,off the record- neotiations in
the hall.ay and failed to do soJ
Ces5 It .as ob&ious that the city+s neotiator asked that the mediation be recessed because he
.anted to talk to the union neotiator about a possible settlement. 1he reporter could ha&e
attended the ,off the record- meetin if he had 2ust follo.ed them out of the meetin room
into the open hall.
>o5 1he burden under a sunshine la. is and should be on the public aency to follo. it to the
letter. 1he city did not i&e proper notice of the neotiations that it intended to undertake. 1he
city+s neotiator could ha&e announced that he .as oin to conduct neotiations in the
hall.ay .hen he asked for the recess.
C1se 3(; UNILATERAL ACTION < LAST BEST OFFER
1. 48plain .hy you aree or disaree .ith the court+s rulin.
Aree5 1he only issue here is .hether the parties .ere at an ,impasse- or not. If mediation/
fact%findin/ and arbitration are impasse resolution techniGues/ as the employer contended/
then they are not employed until there is an impasse.
46
0isaree5 Dhile the parties .ere at an impasse at the time the arbitrators issued their ad&isory
opinion/ the school board reinitiated neotiations by offerin a different proposal and the
union responded. At that point neotiations had reopened and the school board should ha&e
repeated the process of mediation/ arbitration before imposin its last best offer.
6. 1he impasse pro&ision calls for mediation/ fact%findin/ and nonbindin arbitration. 48plain
.hy you aree or disaree .ith the union+s position that these techniGues do not resol&e but
only prolon an impasse.
Aree5 In the public sector/ mediation/ fact%findin/ and ad&isory arbitration often rely upon
public opinion s.ayin the employer%o&ernment to chane its neotiation stance. Dhen that
pressure fails to do so/ the process is merely time consumin .ithout any positi&e results.
0isaree5 3nder mediation/ fact%findin and ad&isory arbitration/ an unbiased third party
e8amines the collecti&e barainin impasse and issues findins and recommendations. 1he
findins may mo&e the process by simply eliminatin the distrust one party has for the other
party+s facts or fiures. Beasonable recommendations may also pressure a party to accept an
offer that other.ise .ould not ha&e been considered.
47
CHAPTER 3: END CASE DISCUSSION
CASE STUDY 3(-: COLLECTING UNION PAC 9ONEY
0ecision5
1he Guestion is .hether the State+s ban is &alid at the local le&el. Political subdi&isions of StatesE
counties/ cities/ or .hate&erEne&er .ere and ne&er ha&e been considered as so&erein entities. 1hey are
instead subordinate o&ernmental instrumentalities created by the State to assist in the carryin out of
state o&ernmental functions. State political subdi&isions are merely departments of the State and the
State may .ithhold/ rant or .ithdra. po.ers and pri&ilees as it sees fit. Aere the Idaho (eislature has
elected to .ithhold from all public employers the po.er to pro&ide payroll deductions for political
acti&ities. 1he ban on political payroll deductions furthers Idaho+s interest in separatin the operation of
o&ernment from partisan politics. 1hat interest e8tends to all public employers at .hate&er le&el of
o&ernment.
"oth the 0istrict 'ourt and the 'ourt of Appeals found it sinificant that there is no subsidy by Idaho for
the payroll deduction systems of local o&ernments. 7i&en the relationship bet.een the State and its
political subdi&isions/ ho.e&er/ it is immaterial ho. the State allocates fundin or manaement
responsibilities bet.een the different le&els of o&ernment. 1he Guestion is .hether the State must
affirmati&ely assist political speech by allo.in public employers to administer payroll deductions for
political acti&ities. #or the reasons set forth in this opinion/ the ans.er is no.
Kuestions for 0iscussion
1. 1he deduction of union dues and support for the political action acti&ities of the union .as a
neotiated pro&ision of local o&ernment+s contract .ith its unions. 0o you think that the State
should be allo.ed to dictate to local o&ernments ho. they should neotiate .ith their
employeesJ 48plain.
1he 3nion arued that it .as clear the State+s oal .as to restrict the ,speech- of the union
members because the ,leitimate reason- the State arued for not collectin at the State le&el .as
financial hardship. "ecause there .as no financial hardship for the State in the collection of union
political money by the local o&ernment/ there .as no leitimate reason for the la..
Students should pro&ide their opinion .hether the State should be allo.ed to dictate to local
o&ernments ho. they should neotiate .ith their employees.
6. Dhy .ould ta8payers ha&e a problem if they kne. that the state or local o&ernments .ere
collectin political action committee money for the unionsJ
In 6<<$/ the Idaho (eislature amended the Biht to Dork Act by addin a prohibition on payroll
deductions for political purposes.
$. Dhat .ould be the basis for the Supreme 'ourt to rule in the State+s fa&orJ In the 3nion+s fa&orJ
In one hand/ the union arued that the State .as seekin to stifle the ,speech- of the unions
concernin politics and that this &iolated their #irst Amendment rihts. In the other/ the State+s
Attorney 7eneral defended the la. by pointin out that the State .as not limitin the rihts of the
union to say or do anythin they .anted politically/ but the State ouht not to ,subsidi!e- the
,speech- of the unions. "ecause it cost the State to set up and maintain the payroll deduction
proram/ if it honored the union+s reGuest the State .ould be i&in financial support to the
union.
48
CASE STUDY 3(;: RESOLVING I9PASSE BY BINDING ARBITRATION
0ecision5
Aa&in carefully considered the e&idence and aruments presented by the parties in this case/ .e shall
resol&e their impasse by orderin the adoption of the 3nion+s proposal but restrict its application only to
current barainin unit employees. Dhile .e are sympathetic to the 4mployer+s e8pressed interest in
settin an e8ample of ood health for the nation/ in our &ie. it has not demonstrated a need to chane the
status Guo. In this reard/ there is no e&idence in the record to substantiate the claim that the policy that
currently applies to unit employees/ .hich is consistent .ith the reGuirements of 48ecuti&e Irder 1$<;8/
poses health risks to other >IA employees/ contractors or &isitors. #or this reason/ .e are persuaded that
the only accommodation to the 4mployer+s interests that is 2ustified under the current circumstances is to
apply >IA+s tobacco free policy to barainin unit employees hired after the date of this decision. 1he
parties shall adopt the 3nion+s proposal but it shall apply only to current barainin unit employees. All
barainin unit employees hired after Ictober ;/ 6<1</ shall be sub2ect to the tobacco free policy >IA
implemented on Ictober 1/ 6<<8.
Kuestions for 0iscussion5
1. Dhich party has the most risk in turnin this Guestion o&er to a third party to resol&eJ DhyJ
1he >IA because it is e8ercisin its rihts as a manaer to make decisions as to the .orkplace
that are not prohibited by the collecti&e barainin areement. Any decision aainst it by a third
party is a reduction of manaement rihts.
1. Ao. could the #SIP decide this issue and i&e somethin to both sidesJ
1he #SIP could allo. for smoke%less tobacco use a.ay from the buildins and in pri&ate cars. Ir
it could impose the rules on ne. employees only.
6. 0o you think it is a &alid concern of the 4mployer that areein to the 3nion proposal .ould
reflect badly upon it since the public looks to it for uidance on health mattersJ
48plain.
Ces/ areein to the 3nion proposal .ould reflect badly upon it because it is the o&ernment
aency .hich has championed smoke%free en&ironments and citi!ens do not like it .hen
o&ernment forces pri&ate business to do certain thins but is not reGuired to do the same.
49
CHAPTER 3: REVIEW =UESTIONS
1. Ao. are public employees pro&ided the riht of collecti&e baraininJ
#ederal o&ernment public sector labor relations are o&erned by the pro&isions of 1itle FII of
the 'i&il Ser&ice Beform Act of 19:8 and Beorani!ation Plan >o. 6 of 19:8.
0o state and local o&ernment employees ha&e the same rihts as federal employeesJ
4mployees of state or local o&ernments must look to state and local la.s for their collecti&e
barainin rihts. More than t.o%thirds of the states ha&e enacted leislation rantin public
sector collecti&e barainin rihts to some roups of public employees. 1eachers/ police/ and
firefihters are those most commonly ranted such rihts. (ocal/ county/ and municipal
o&ernments may also ha&e adopted collecti&e barainin la.s or/ by practice/ reconi!e and
barain .ith employee orani!ations.
6. Dhy did the federal o&ernment resist collecti&e baraininJ
In a democracy/ the source of that supreme po.er is the people .ho ha&e &ested their o&ernment
.ith rihts and responsibilities as caretakers of that po.er. 1he so&ereinty doctrine reGuires that
the o&ernment e8ercise its po.er unfettered by any force other than the peopleEall of the
people. 'ollecti&e barainin .as seen as a threat to that so&ereinty doctrine if o&ernment .ere
to share decision%makin authority .ith employees. Ib&iously/ decisions made at the collecti&e
barainin table .ould affect the .ay o&ernment pro&ides ser&ices and the amount that those
ser&ices .ould cost the ta8payer.
$. Ao. do public employees+ rihts and interests differ from those of pri&ate sector employeesJ
In eneral/ public employees differ from employees in the pri&ate sector because of .ho they are
and .hat they do. Public employees pro&ide education/ police/ fire/ and sanitation ser&ices/ plus
the maintenance of public impro&ements. 1he natures of the ser&ices pro&ided are such that
pri&ate industry is unable or un.illin to offer themH thus/ a o&ernment monopoly is created.
Many supporters of public sector unions suest there are no meaninful differences bet.een
public and pri&ate sector unions .hen it comes to collecti&e barainin. Ao.e&er/ there are in
fact se&eral fundamental differences/ many of .hich ha&e been pointed out since the inception of
public sector collecti&e barainin. Prior to the rise of public sector unions in the 196<s and
19:<s/ a number of courts across the nation routinely obser&ed the dissimilarities bet.een public%
and pri&ate%sector collecti&e barainin. #or e8ample/ #lorida+s Supreme 'ourt obser&ed in
United Teachers of Dade v. Dade County School Board, ;<< So.6d ;<8 =1986? that ,it .ould be
impractical to reGuire that collecti&e barainin procedures L be identical in the public and the
pri&ate sectors. Myriad distinctions/ not 2ust those of procedures/ e8ist bet.een public and pri&ate
collecti&e barainin/ and ha&e been noted by the hihest courts of se&eral sister states.- 1he
conclusion/ solemnly held until social and political factors led to the rise of public sector unions/
.as that to rant those unions the po.erful tool of the strike and collecti&e barainin .as
profoundly anti%democratic.
More specific e8amples of different rihts and interests include5
a. Automatic dues deduction is the most common union security pro&ision allo.ed for
public employees. 1his is a popular pro&ision in public employee contracts because it assists the
union financially/ but does not reGuire compulsory unioni!ation .hich can run afoul of employee
50
rihts under ci&il ser&ice or merit systems .here an employee can only be dischared for 2ust
cause =i.e./ a 2ob%related reason?.
b. In most cases/ the neotiation of .aes and frine benefits is a pri&ate sector union+s
principal function. Public employee unions/ ho.e&er/ often find this sub2ect out of their reach.
3nder the federal statute o&ernin employee rihts/ ; 3S'A M:1<6/ the riht to collecti&ely
barain is limited to issues concernin ,conditions of employment-H .aes and frine benefits are
e8cluded from the act. #or most state and municipal employees/ a union contract neotiation
takes place durin or after the respecti&e leislati&e body has determined an annual or biennial
budet. 3nions may be limited to a neotiation on ho. the a&ailable dollars are to be distributed
bet.een classes of employees/ or as base .aes/ frine benefits/ bonuses/ and incenti&e pay.
c. 1he nature of the 2ob performed in the public sector often determines the amount of
fle8ibility a&ailable in the neotiation of hours. Police/ fire/ and other emerency ser&ices must
operate around the clock.
d. 1he nature of public employment means that .orkin conditions directly affect the
pro&ision of ser&ice to the public. 1herefore/ the number of police in a patrol car or firefihters on
a fire alarm run is an issue that may be decided at a neotiatin table.
e. 3nder the federal statute/ a rie&ance procedure must be included in federal contracts.
1hat procedure includes bindin arbitration if necessary. State and local o&ernment contracts/
.hile containin rie&ance procedures/ freGuently stop at ad&isory arbitration.
9. Ao. do ,school &oucher prorams- threaten public%sector employeesJ
A school &oucher/ also called an education &oucher/ is a certificate issued by the o&ernment/
.hich parents can apply to.ard tuition at a pri&ate school =or/ by e8tension/ to reimburse home
schoolin e8penses?/ rather than at the state school to .hich their child is assined. An alternati&e
to the education &oucher is the education ta8 credit/ .hich allo.s indi&iduals to use their o.n
money to pay for the education of their children or to donate money to.ard the education of other
children. 3nder non&oucher education systems/ citi!ens .ho currently pay for pri&ate schoolin
are still ta8ed for public schools/ therefore they fund both public and pri&ate schools
simultaneously. Fia offsettin the cost of pri&ate school tuition/ &ouchers and ta8 credits are
intended to allo. students and families to choose the school that best fits their needs. 'ontro&ersy
surrounds .hether allo.in families the option of both public and pri&ate schools undermines the
public education system throuh threatenin its fundin and enrollment.
;. Ao. miht a public sector union use multilateral barainin to its ad&antaeJ
Multilateral barainin allo.s unions to neotiate .ith the e8ecuti&e until reachin an impasse
and then to appeal to the leislati&e branch for relief. If there is some political differences
bet.een the e8ecuti&e and leislati&e branches/ the union can take ad&antae of that situation to
pressure one side or the other for better terms and conditions.
6. Should some public sector employees be i&en the riht to strikeJ If so/ .hich onesJ If not/ .hat
rihts miht they be i&en to help balance the barainin processJ
#or many pri&ate sector unions/ the riht to strike is protected by federal la.. 1he conditions
under .hich a strike can take place may &ary. #or instance/ unions operatin under the Bail.ay
51
(abor Act/ like those at airlines/ must o throuh a .aitin period once a contract e8pires before
they are allo.ed to .alk off the 2ob.
Public sector unions may or may not ha&e the riht to strike. It depends on .hat unions
ha&e neotiated .ith state o&ernments/ and the state la.s that apply to those unions. #or
e8ample/ teachers/ police officers/ and firefihters in a number of states do not ha&e the riht to
strike. 4&en .hen public sector unions ha&e the riht to strike/ employers can threaten to fire
them if they do not return to .ork. President Beaan fired 11/<<< air traffic controllers in 1981
after they inored his order to o back on the 2ob.
:. 0o you belie&e bindin arbitration should be used to settle a public sector collecti&e barainin
impasseJ Dhy or .hy notJ
>o. It is the responsibility of elected officials to direct the .ork and control the .orkplace of
public employees. 1urnin the decision makin o&er to one or more arbitrators .ho ha&e no
responsibility to the public could result in areements the public .ill not support.
Ces. If neotiations in the public sector come to an impasse/ there is no other .ay to resol&e the
issue because employees cannot strike and employers are sub2ect to political pressure. "y
allo.in a third party to step into the process/ hopefully the parties can find common round and
compromise kno.in that if they do not/ they could lose e&erythin
8. Dhen if e&er should a o&ernment pri&ati!e a ser&iceJ
7o&ernment should not pri&ati!e traditional public ser&ices/ but should pri&ati!e the type of
ser&ices offered in the pri&ate sector for less money. Ser&ices that are labor intensi&e such as
teachers/ firefihters or police should not be pri&ati!ed as these are traditional o&ernmental
ser&ices. "ut many o&ernments ha&e been able to contract out economic de&elopment prorams
and community beautification prorams.
9. Ao. does the ,monopoly position- of o&ernment affect the collecti&e barainin processJ
Public employers and public employees are some.hat hampered by the nature of o&ernment+s
.ork and their roles in that .ork durin neotiations. 4mployers/ bein elected officials/ .ant to
control the process of neotiations to reach areement .ithout neati&ely affectin ser&ices or ta8
re&enue. 4mployees cannot strike so they can be held capti&e at current pay and conditions .hile
the neotiations limp alon.
1<. Dill the ta8payer re&olt that bean durin the 7reat Becession of 6<<8 affect labor relations in
the public sector in future yearsJ If so/ ho.J If not/ .hy notJ
1he ta8payer re&olt focused attention upon the orani!in of public sector employees and ho.
.aes and benefits of those employees are paid by ta8 dollars. (eislatures in many states
reacted by tryin to erode collecti&e barainin rihts for public employees. (abor .as stron
enouh in some states to stop the chanes/ but not in others. It is al.ays easier to repeal or not
pass a la. than to enact a la.. So to the e8tend la.s .ere chaned/ the impact on the ability of
public employees to collecti&ely barain .ill be felt for years. Ao.e&er/ in states .here the
unions .ere able to arner support/ public sector unioni!ation should flourish.
A""itio!1l Re%ie8 =*estio!s:
1. Ao. many Americans are members of labor unionsJ
52
About 16 percent of Americans belon to unionsH of that roup/ about 8 percent are members of
pri&ate sector unions. About $$ percent of public sector employees are union members.
6. Ao. lon ha&e public sector unions been aroundJ
Disconsin a&e some public sector employees the riht to collecti&e barainin in 19;9. In 1966/
President *ohn #. )ennedy a&e most federal o&ernment employees the same riht.
$. Dho has the riht to strikeJ
#or many pri&ate sector unions/ the riht to strike is protected by federal la.. 1he conditions
under .hich a strike can take place may &ary. #or instance/ unions operatin under the Bail.ay
(abor Act/ like those at airlines/ must o throuh a .aitin period once a contract e8pires before
they are allo.ed to .alk off the 2ob.
Public sector unions may or may not ha&e the riht to strike. It depends on .hat unions
ha&e neotiated .ith state o&ernments/ and the state la.s that apply to those unions. #or
e8ample/ teachers/ police officers/ and firefihters in a number of states do not ha&e the riht to
strike. 4&en .hen public sector unions ha&e the riht to strike/ employers can threaten to fire
them if they do not return to .ork. President Beaan fired 11/<<< air traffic controllers in 1981
after they inored his order to o back on the 2ob.
9. Dhich topics are sub2ect to collecti&e baraininJ
Pri&ate sector unions+ contracts are neotiated bet.een the union and employers. 4ssentially/
there are no limits on the topics that can be discussed/ unless the union and the employers aree
to e8clude them. #or e8ample/ the 3.A.D. has areed in the past to place a moratorium on
national strikes.
Public sector unions may be limited to specific areas. #or e8ample/ they may not be able
to neotiate on pensions or health care benefits/ if those are uniform for all state employees.
;. 'ould an employer force a pri&ate sector union to i&e up collecti&e barainin rihtsJ
Ince a union is certified by the >(B" in the .ork place/ an employer cannot arbitrarily take
such rihts a.ay. Dorkers .ould need to decertify the union as their barainin representati&e.
1he >(B" .ould super&ise a decertification election.
53
54
YOU BE THE ARBITRATOR>
BEREAVE9ENT LEAVE
1. As arbitrator/ .hat .ould be your a.ard and opinion in this arbitrationJ
1he lanuae of the '"A as to berea&ement day is not/ in the arbitrator+s opinion/ clear and
unambiuous because ,contiuous- is not defined and the definition of contiuous includes
,near.- 'ertainly/ 1uesday .ould be considered ,near- the death. 1here .as no past practice or
barainin history of the parties to rely upon for uidance. 1herefore/ the arbitrator interpreted
the lanuae of the section himself. In his opinion/ the rie&ant+s reGuest of berea&ement lea&e to
bein on Sunday itself .as not in compliance .ith the '"A because in bet.een the date of death/
he .orked a shift and after he learned of the death/ he .orked a shift. Ao.e&er/ since the
employer appro&ed Sunday as the ,start- of the rie&ant+s berea&ement lea&e/ it could not then
disallo. the ne8t t.o days/ because they .ere unaruably contiuous to Sunday.
6. 48plain .hy the rele&ant pro&isions of the '"A as applied to the facts of this case dictate the
a.ard.
1he lanuae ,employee ranted three days of funeral lea&e consecuti&e and contiuous to the
death . . .- .ould be the rele&ant pro&ision that .ould dictate the a.ard. Dithout more specific
uidance the effect of this lanuae .ould be/ as the arbitrator ruled/ that the employee .as
entitled to three consecuti&e days of lea&e/ once the employer ranted the lea&e.
$. Dhat actions miht the employer and@or the union ha&e taken to a&oid this conflictJ
0urin neotiations/ the employer and the union should clarify ,contiuous- since that seemed to
be the source of the confusion.
55
CHAPTER 3: E?TRA CASES
T5e Ci%il Se&%i#e Re3o& A#t
#acts5
1his case in&ol&es interpretation of the 'i&il Ser&ice Beform Act of 19:8/ specifically the Manaement
Bihts section. 1he section includes the riht of manaement to determine the mission/ budet/
orani!ation/ number of employees/ and internal security practices of an aencyH to hire/ assin/ direct/
lay off/ and retain employees/ or suspend/ remo&e/ reduce in rade or pay/ or take other disciplinary action
aainst such employeesH to assin .ork/ make determinations in fillin positions .ith properly ranked
and certified candidates for promotion or .ith candidates from any other appropriate source.
1he union had proposed numerous contract pro&isions concernin procedures for manaement to
follo. in e8ertin its preroati&es under the act. 1he aency ob2ected to neotiatin on those items/
claimin that they infrined on manaement+s rihts. 1he union claimed that the items .ere merely
procedural and therefore mandatory sub2ects for neotiations.
0ecision5
1he court found some items to be merely procedural and neotiable and some to be substanti&e and not
neotiable. 1he first proposal included a pro&ision in the contract reGuirin that disciplinary actions
resultin in suspensions or remo&als .ould not take place prior to the e8haustion of the rie&ance
procedure and that the employee .ould continue on the payroll durin such procedure. 1he court held
that the item .as neotiable/ althouh the aency claimed such a pro&ision .ould delay to the point of
neatin manaement+s riht to fire an employee. 1he court said that the Act does not protect the aency
from delay. 1he Act protects it only from not bein able to carry out the manaement function.
1he second proposal pro&ided that/ unless the aency used competiti&e procedures in processin
promotions/ an areed%upon seniority system .ould be used. Aain/ the court held this neotiable because
the proposal included reconition of manaement+s riht to use competiti&e procedures. Inly if this riht
.ere not e8ercised .ould a seniority system for promotions be in&oked.
1he third proposal concerned payin employees the hiher salary .hen temporarily assined to
an encumbered but temporarily &acant position at a hiher rade. Althouh the aency claimed this
infrined upon its riht to determine the number/ type/ and rade of employees or positions/ the court held
that these items .ere neotiable. 1he court said that such a pro&ision did not reGuire creatin ne.
positions but simply payin employees for assinments to e8istin &acant positions.
1he fourth proposal .ould ha&e reGuired manaement to make certain employee assinments
based on seniority. 1he court held that this proposal .as not neotiable because it infrined upon
manaement+s riht to make personnel assinments. 1he assinments .ould ha&e been based on
substanti&e criterionElenth of employmentEand not based on any procedure such as the testin and
Gualifyin of eliible employees.
1
Kuestions for 0iscussion
1. Das the court correct in decidin that a delay in manaement+s riht to fire an employee does not
pre&ent manaement from actually e8ercisin that rihtJ 0oes the lenth of the delay make any
differenceJ
1
Adapted from Department of Defense v. Federal Labor Relations Authority, 1979-81, P.B.C. para 37,298.
56
Ces. )eepin the employee on the payroll may be an incon&enience but if the rie&ance is
unsuccessful/ the employee .ill then be terminated. If the rie&ance is successful/ the aency .ill
ha&e the employee back any.ay. 1he lenth of delay should make no difference.
6. 1he union proposal concernin the use of a seniority system in promotions if competiti&e
procedures .ere not in&oked by the aency could ha&e been interpreted as bein a substanti&e
and not a procedural pro&ision. Dhy do you think the court held that it .as proceduralJ
As the seniority system .as only to be used if the aency chose not to use competiti&e
procedures/ it .as really up to the aency to decide. 1herefore/ the concession the union asked for
.as that the manaement be forced to choose a systemEprocedural not substanti&e.
$. If the union proposal concernin employee assinments based on seniority had pro&ided that first
testin and Guantifyin employee Gualifications be made so that a pool of Gualified employees
.as a&ailable for assinment and thereafter seniority .ould ha&e been the determinin factor/ do
you think the court .ould ha&e felt that it .as a neotiable itemJ
>o. 1his .ould ha&e made the seniority system the decidin factor. Kualifyin employees is a
part of any seniority system e&en if the Gualifyin tests &ary.
Dis#ipli!1&y A#tio!
#acts5
1he employee/ a union shop ste.ard/ .as on her reularly scheduled day off at home. She .as called by
her super&isor and told to talk to three union members and instruct them to attend a .ork function called a
,Kuality Interaction 'ommittee- meetin. 1he Kuest for Kuality proram .as a hih priority .ith the
employer for impro&in patient care at the facility and .as part of a corporate proram. 1he union had
ob2ected to the implementation of the Kuest for Kuality proram and had taken a position that employees
could attend the proram if their 2obs .ere threatened/ but they should do so under protest and then file a
rie&ance after.ard.
In the day in Guestion/ the union shop ste.ard/ in a three%.ay con&ersation .ith the three
employees/ told them that she .ould not order them to attend the Kuest for Kuality meetin/ althouh she
had been asked by her super&isor to instruct them to o to the meetin. 1he super&isor .ho had called the
union shop ste.ard had herself refused to order the employees to attend the meetin but relied on the
union shop ste.ard to issue the order to the employees. Dhen the union shop ste.ard failed to order the
employees to attend the meetin/ the employer suspended the union shop ste.ard for t.o .eeks. 1he
ste.ard rie&ed the t.o%.eek suspension.
1he union position .as that the company had no authority to discipline the union shop ste.ard on
her day off for failure to i&e .hat it termed a manaement direction to perform the specific 2ob function
of attendin a mandatory corporate meetin. 1he union pointed out that it .as unfair that the employer
refused to order the employees directly to attend the meetin but then e8pected the union shop ste.ard to
do so. 1he union arued that/ althouh it is not unusual to call upon a union shop ste.ard for assistance in
problem sol&in/ the company has no riht to demand that he or she replace super&isors or manaement
in i&in orders and then discipline the union official for refusin to do so.
1he company position .as that the opposition of the union to the Kuest for Kuality meetins put
the employees in a position of bein unable to attend the meetins .ithout direction from the union shop
ste.ard/ that the union shop ste.ard .as i&en a 2ob assinment of directin the employees to attend the
meetin/ and that failure to follo. that 2ob assinment .as insubordination and 2ust cause for her
suspension.
>onetheless/ the union contended that the arbitrator must e8amine the nature of the order .hen
decidin .hether the insubordination .as rounds for discipline. As to the nature of the order in this case/
57
the employer had to demonstrate that the order .as directly related to the 2ob classification and .ork
assinment of the employee disciplined. 1he refusal to obey such an order must be sho.n to pose a real
challene to super&isory authority. 1he employee did not dispute the fact that she failed to follo. the
orders i&en to her by her super&isor but pointed out that she .as not on duty at the time and that the task
bein i&en to her .as not because of her 2ob .ith the company but because of her status as a union shop
ste.ard.
0ecision5
1he arbitrator pointed out that the contract bet.een the employer and employee in this case had the
standard ,2ust cause- pro&ision reGuirin the employer to demonstrate reasonable rounds for its
disciplinary action. 1he employer alleed in this case that the employee disobeyed the direct orders of her
super&isor and/ therefore/ the employee should be disciplined for insubordination. 1he arbitrator found
that the employee/ in refusin to issue the order that the super&isor asked her to issue/ .as not challenin
the super&isor+s authority to direct the .orkforce in the accomplishment of its corporate mission. In fact/
it .as the super&isor+s duty to instruct the employees or order the employees to attend the meetin/ not
the union shop ste.ard+s. 1he employee .as not held responsible for refusin to e8ercise a super&isory
function that .as not .ithin her 2ob classification. 1he arbitrator reconi!ed the lon%standin dispute
bet.een the union and the company on the implementation of the ,Kuest for Kuality- proram. 1he
arbitrator/ in notin that/ pointed out that it .as his opinion that the employee .as discriminated aainst
due solely to her status as a union shop ste.ard and that/ e&en if the direct order had been .ork related/
the e&idence of antiunion animus .ould ha&e been enouh to ha&e defeated the employer+s 2ust cause
alleation. 1he company tried to place the indi&idual shop ste.ard in the middle of a larer dispute
bet.een the company and the union.
Kuestions for 0iscussion
1. As the arbitrator/ do you think the employer had 2ust cause to discipline the employeeJ
Ces5 Insubordination is insubordination. 1he employee could ha&e directed the employees as
reGuested and then rie&ed the assinment .ith the same result.
>o5 1he task .as not a leitimate 2ob reGuest and the employee had a riht to refuse. Indeed the
employee .as not e&en at .ork but .as on her o.n time.
6. If the union+s opposition to the ,Kuest for Kuality- proram encouraed the employees not to
participate/ .hy shouldn+t the union be held responsible for directin the employees to attendJ
If the union could be forced to compel the employees/ then the company .ould be directin the
union+s relationship .ith its members/ .hich .ould be prohibited under the Act.
In this case/ the issue .as one union ste.ard/ not the union. If the company .anted the union+s
support for the ,Kuest for Kuality- proram/ they should ha&e to neotiate for it.
$. 0id the employee+s action really 2ustify the penalty imposed by the companyJ
>o5 A t.o%.eek suspension .as too se&ere e&en if the employee .as insubordinate. 1here .as
no pattern of such beha&ior and certainly because the employee .as off the 2ob and the reGuest
.as in fact not one of her duties/ a less se&ere penalty .ould ha&e been adeGuate.
58
Ces5 If found insubordinate/ the penalty .as not too se&ere. 1he employer .ould ha&e been
2ustified because it is clear that the need for the union shop ste.ard to be an e8ample to other
employees.
Ne'oti1ti!' i! Ope! Sessio!s
#acts
1he members of the 'ity of Sprinfield Public 3tilities "oard .ere neotiatin .ith se&eral labor unions.
0urin the course of those neotiations/ the "oard held numerous meetins .ith its principal neotiator
to discuss issues remainin in dispute. 1hese meetins .ere not announced to the eneral public/ and it
.as &oted they o into closed session. A ne.spaper reporter filed suit charin that the "oard could not
meet in closed session to discuss the contract neotiations because of the state+s Ipen Meetins Act.
De#isio!:
1he court found that/ althouh the state+s Ipen Meetins Act .as applicable to the utility board and it
held no specific e8emption for collecti&e barainin sessions/ such sessions .ere not sub2ect to the act.
1he court based this decision on an interpretation of the rihts allo.in public employees to barain
collecti&ely under another state la.. It .as the court+s opinion that the public employees+ riht to
meaninful collecti&e barainin .ould be destroyed if full publicity .as accorded at each step of the
neotiations. Ao.e&er/ the final areement neotiated by the parties .ould be sub2ect to an open session.
6
Kuestions for 0iscussion
1. 1he Ipen Meetins Act in this case e8cluded meetins related to hirin/ firin/ or promotion of
the personnel of a public o&ernmental body. Should such a section be interpreted to include
collecti&e barainin sessionsJ
>o5 1his pro&ision is to protect the pri&acy of an indi&idual employee/ not the barainin rihts
of all employees.
Ces5 1he court could ha&e used this section to 2ustify closin the meetin. Althouh the section is
for indi&idual employees/ the collecti&e barainin process affects the basic rihts of employees
and deser&es the same pri&acy.
6. If 'ollecti&e "arainin >eotiations in the public sector are carried on behind closed doors/ at
.hat point can the public e8ert any influence o&er the neotiationsJ Moreo&er/ should it be
allo.ed toJ
Public opinion can only be in&oked at the point of impasse .hen the threat of a 2ob action can
cause a public reaction. 1he public+s input is/ of course/ felt by its choice of elected officials
althouh such are seldom elected or defeated on one issue.
Ces5 1he public should be allo.ed to ha&e some influence because it pays the bills and is
dependent upon the ser&ice of the o&ernmental aency. 4lection time is too remo&ed from the
neotiatin table to be a referendum on labor relations. 1herefore/ the public must be allo.ed its
say at the time of neotiations.
2
Adapted from City of Springfeld, Missouri v. John C. Crow, Judge, 197980, P.B.C. para. 36,815.
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>o5 1he public cannot ha&e the information a&ailable to make determinations on the proress of
collecti&e barainin. Its reaction to the process .ould be too eneral/ and based on past
pre2udices/ not the facts that are bein presented at the table.
T5e Ri'5t to St&i@e
#acts5
In the e&e of (abor 0ay .eekend/ the union called a strike of its members/ pre&entin public employees
.ho normally ran ferry ser&ices to a tourist island from pro&idin such ser&ices o&er the holiday
.eekend. 1he strike .as called to protest the chane in the .ordin of a contract under neotiation after
the union belie&ed areement had been reached on the lanuae. 1he strike .as held to be in breach of an
e8istin collecti&e barainin areement and .as &oluntarily ended after the .eekend. Members of the
public .ho resided or o.ned businesses on the island and .ere left .ithout a ferry system filed suit
aainst the union/ claimin incon&enience and economic harm as a result of the strike. 1he plaintiffs
claimed damaes from the union in e8cess of N1 million.
1he plaintiffs based their case on the union+s action as bein a tortious interference .ith their
business relationships. 1he plaintiffs also held that they .ere third%party beneficiaries of the public
employee contract and that the union had breached its duty to them.
1he union protested that the plaintiffs .ere seekin to create a ne. la. to hold public employee
unions strictly accountable to the public if anyone .as in2ured by their strikes.
0ecision5
1he court held that the plaintiffs/ as members of the public/ .ere not third%party beneficiaries of the
collecti&e barainin areement bet.een the union and the public employer. 1o create third%party
beneficiary rihts/ the contract bet.een the first and second party must con&ey such rihts to the third
party. In this instance/ the purpose of the collecti&e barainin areement bet.een the union and the
employer .as to impro&e the relationship bet.een the employer and its employees. As to the plaintiffs+
contention that the strike .as a tortious interference in business relationships/ the court found no such
intent. 1he court held that/ althouh the strike does affect members of the public/ the purpose is to use
economic force to ain barainin le&erae durin contract neotiations. 1he court also declined to create
a tort doctrine to permit public collection of damaes from strikes. It felt that decisions affectin
resolution of public employee labor relations issues should be left to the leislature. Althouh a tort
doctrine .ould not hold up in court in this instance/ citi!ens could still reGuire that employees either
resume their .ork or be held in contempt of court.
$
Kuestions for 0iscussion
1. "ecause of the public employer and the .ork performed by the public employee/ a dispute in this
area often places the public in the position of a third party .ho suffers in2ury from the actions of
the other t.o parties. Dhy did the court not find the public a third%party beneficiary to this
contract e&en .ithout an e8pressed intent to i&e such third%party rihtsJ
3
Adapted from Burke and Thomas, Inc. v. International Organization of Masters, Mates, and Pilots, 197980, P.B.C.
para. 36,785.
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1he court stated the purpose of the contract .as to impro&e the relationship bet.een employers
and employees. If e&ery public employee contract conferred third%party rihts upon the public/
the ability of the employees to ha&e meaninful 2ob actions .ould be limited.
6. 1he timin of the strike on a (abor 0ay .eekend .as ob&iously not .ithout reconition by the
union as to its effect on tourism in this particular case. 'ould the court not ha&e found that the
timin sho.ed intent on the part of the union to interfere .ith the business relationship of the
public ad&ersely affected by the strikeJ
Ces/ it could ha&eEbut on the other hand/ choosin a busy .eekend dramati!ed the need for the
public ser&ice in&ol&ed. Aain/ this techniGue is important to the economic le&erae necessary for
the public employee union.
$. Dould findin a ne. tort action by the public aainst a union .hen in2uries result from illeal
strikes be a better deterrent to such public employee strikes than statutory prohibitions that are
only enforceable throuh contempt of court proceedinsJ
Ib&iously that .ould be a better deterrent/ but the o&erall result of discourain public employee
unioni!ation .ould reatly curtail those employees+ rihts.
Ne8 Wo&@3o&#e Iss*es
#acts5
Ifficer 'lark #ischer .as ordered by his police sereant to remo&e an earrin =ear stud? from his left ear
.hile on duty. 1he police chief upheld the sereant+s order. Ifficer #ischer complied .ith the order but
rie&ed the issue. Ifficer #ischer alleed there .as no .ritten prohibition to the .earin of earrins by
police officers in either the contract or the rules by .hich the force operates. Ae pointed out/ in fact/ that
the chief himself .ore an earrin in his off%duty hours.
Anticipatin a ,safety- arument/ #ischer pointed out that officers .ear clips/ lasses/ pins/
nametas/ and any number of items that present the same kind of risks or more se&ere risks. 1he officer
also arued that .earin an earrin on duty a&e him an ad&antae in his 2ob .hen dealin .ith
disenfranchised youth naturally hostile to a traditional police officer.
1he 'ity/ in defendin the ,no earrin- rule/ arued that it .as a safety issue because in a
strule/ the earrin could pierce the officer+s skull/ and the city belie&ed an earrin .ould enerate more
neati&e than positi&e reactions from most of the people the officer encountered.
0ecision5
1he arbitrator likened police to the military and in doin so pointed out that a ,uniform appearance .as
concomitant .ith a professional police force.- "ecause an earrin .as not e8plicitly included in the
description of an officer+s uniform/ it .as e8cluded. 1herefore/ Ifficer #ischer+s rie&ance .as denied.
Kuestions for 0iscussion
1. ,Stereotypin- based upon physical characteristics or appearance is the basis for pre2udice. Dhy
do you think the arbitrator in this instance decided aainst the officer+s riht to .ear an earrinJ
1he reason i&en/ a need for uniform appearance of police is the real reason. Indi&idual
e8pression on the 2ob is not a 2ob riht. 1he arbitrator could ha&e decided based on his or her o.n
pre2udice aainst men .earin earrins.
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6. Is there a need for police to ha&e a different imae from the paramilitary imae uniform pro2ectsJ
Ces. Many police departments are chanin their approach to la. enforcement to one of
,cooperation- .ith neihborhood residents. Paramilitary bearin may not be helpful in
neihborhoods that ha&e had poor relationships .ith police.
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CHAPTER 3: E?ERCISE
Students can contact their local or state officials and find out .hat the rules are for public sector
employees collecti&e barainin in their city or state. 'ontact labor orani!ations .hich represent public
employees and ask them for their opinion on the follo.in5
1. 0urin hard economic times .hen ta8 re&enues are droppin for local and state o&ernments/
.hat sacrifices are your members likely to take to help the local or state o&ernmentJ
2. Ao. do you feel about furlouhs rather than layin%off employeesJ
$. Ao. do you ain the public+s support for your membersJ
9. Dhat suestions do you ha&e for your local or state o&ernment to cut costs else.here and not
to cut labor costsJ
;. As a ta8payer/ do you think your ta8 dollars are spent .isely by a o&ernment in .hich you do
not represent employeesJ Dhy or .hy notJ
63