Labor Relations in the Public Sector, Third Edition (Public Administration and Public Policy)

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Labor Relations in the Public Sector

PUBLIC ADMINISTRATIONAND PUBLIC POLICY A ComprehensivePublication Program Executive Editor JACKRABIN Professorof Public Administration andPublic Policy Schoolof PublicAffairs TheCapital College The PennsylvaniaState University--Harrisburg Middletown,Pennsylvania

as a Developing Disci[91ine(in twoparts), Robert 1. PublicAdministration Golembiewski 2. Comparative NationalPolicieson HealthCare,Milton I. Roemer, M.D. Injustice: TheProblem of Illegally Obtained Evidence,Steven 3. Exclusionary R. Schlesinger in Government:Politics and Process, Jay M. 4. Personnel Management Shafritz, WalterL. Balk, Albert C. Hyde,andDavidH. Rosenbloom Development in PublicAdministration (in twoparts), edited 5. Organization RobertT. Golembiewski and WilliamB. Eddy 6. Public Administration:A Comparative Perspective,Second Edition, Revised and Expanded, Ferrel Heady 7. Approaches to PlannedChange (in two parts), RobertT. Golembiewski 8. Program Evaluationat HEW (in three parts), editedby James G. Abert 9. TheStates and the Metropolis, Patricia S. Florestanoand Vincent L. Marando 10. PersonnelManagement in Govemment: Politics and Process,SecondEdition, RevisedandExpanded, Jay M. Shafritz, Albert C. Hyde,andDavidH. Rosenbloom 11. Changing Bureaucracies:Understanding the OrganizationBeforeSelecting the Approach, WilliamA. Medina on Public Budgetingand Financial Management, edited by Jack 12. Handbook Rabinand Thomas D. Lynch 13. Encyclopedia of Policy Studies,editedby StuartS. Nagel 14. PublicAdministrationandLaw:Bench v. Bureau in the UnitedStates, David H. Rosenbloom 15. Handbook on Public PersonnelAdministrationandLaborRelations, edited by JackRabin,Thomas Vocino,W.BartleyHildreth, andGeraldJ. Miller 16. Public Budgeting andFinance:Behavioral,Theoretical,andTechnicalPerspectives,ThirdEdition, editedby RobertT. Golembiewski andJackRabin DebraW. StewartandG. 17. OrganizationalBehaviorand Public Management, DavidGarson 18. ThePolitics of Terrorism:Second Edition, Revised andExpanded, editedby MichaelStohl

Handbook of OrganizationManagement, edited by WilliamB. Eddy OrganizationTheoryandManagement, edited by Thomas D. Lynch LaborRelationsin the PublicSector,RichardC. Kearney Politics and Administration: Woodrow Wilsonand AmericanPublic Administration, edited by JackRabinandJames S. Bowman andManaging Policy: Formulation, Analysis,Evaluation,editedby G. 23. Making RonaldGilbert 24. Public Administration:A Comparative Perspective,Third Edition, Revised, Ferrel Heady 25. DecisionMaking in the PublicSector,editedby LloydG. Nigro 26. Managing Administration,edited by JackRabin,SamuelHumes, andBrian S. Morgan 27. Public PersonnelUpdate,edited by MichaelCohenand RobertT. Golembiewski 28. State andLocal Govemment Administration,edited by Jack Rabinand Don Dodd 29. PublicAdministration:A BibliographicGuideto the Literature, Howard E. McCurdy 30. Personnel Management in Government: Politics andProcess,Third Edition, Revisedand Expanded,Jay M. Shafritz, Albert C. Hyde,and David H. Rosenbloom of InformationResourceManagement, edited by Jack Rabinand 31. Handbook EdwardM. Jackowski Democracies: A Comparative Study, 32. Public Administration in Developed edited by DonaldC. Rowat 33. ThePolitics of Terrorism:Third Edition, RevisedandExpanded, edited by MichaelStohl 34. Handbook on Human Services Administration, edited by Jack Rabinand MarciaB. Steinhauer of Public Administration, edited by Jack Rabin, W. Bartley 35. Handbook Hildreth,andGerald J. Miller 36. Ethics for Bureaucrats:An Essayon Lawand Values, SecondEdition, Revisedand Expanded, JohnA. Rohr 37. TheGuideto the Foundations of PublicAdministration, DanielW.Martin 38. Handbook of Strategic Management, edited by JackRabin,GeraldJ. Miller, andW.BartleyHildreth 39. TerrorismandEmergency Management: Policy andAdministration,William L. Waugh, Jr. 40. OrganizationalBehaviorandPublic Management." Second Edition, Revised andExpanded, MichaelL. Vasu,DebraW.Stewart,and G. DavidGarson of Comparative andDevelopment Public Administration,edited by 41. Handbook Ali Farazmand 42. Public Administration:A Comparative Perspective,FourthEdition, Ferrel Heady 43. Government FinancialManagement Theory,GeraldJ. Miller Management in Govemment: Pofitics andProcess,FourthEdition, 44. Personnel Revisedand Expanded,Jay M. Shafritz, NormaM. Riccucci, David H. Rosenbloom, andAlbert C. Hyde 45. PublicProductivityHandbook, edited by MarcHolzer 46. Handbook of PublicBudgeting,edited by JackRabin 47. Labor Relations in the Public SectocSecondEdition, Revisedand Expanded,RichardC. Kearney 19. 20. 21. 22.

48. Handbook of Organizational Consultation,editedby RobertT. Golembiewski of Court Administration and Management, edited by StevenW. 49. Handbook HaysandCole BleaseGraham, Jr. of ComparativePublic Budgetingand Financial Management, 50. Handbook edited by Thomas D. LynchandLawrence L. Martin of OrganizationalBehavior,editedby RobertT. Golembiewski 51. Handbook 52. Handbook of AdministrativeEthics, editedby TerryL. Cooper of Policy Studies: SecondEdition, Revisedand Expanded, 53. Encyclopedia editedby StuartS. Nagel 54. Handbook of Regulation and Administrative Law, edited by David H. Rosenbloom and RichardD. Schwartz of Bureaucracy, edited by Ali Farazmand 55. Handbook 56. Handbook of Public SectorLaborRelations, edited by Jack Rabin,Thomas Vocino,W.BartleyHildreth,andGeraldJ. Miller RobertT. Golembiewski 57. Practical Public Management, 58. Handbook of Public Personnel Administration,edited by JackRabin,Thomas Vocino,W.BartleyHildreth,andGeraldJ. Miller Perspective,Fifth Edition, Ferrel 59. Public Administration:A Comparative Heady 60. Handbook of DebtManagement, edited by GeraldJ. Miller 61. Public Administrationand Law:SecondEdition, DavidH. Rosenbioom and Rosemary O’Leary 62. Handbook of LocalGovemment Administration,edited by JohnJ. Gargan of AdministrativeCommunication, edited by James L. Garnettand 63. Handbook AlexanderKouzmin 64. Public Budgetingand Finance: Fourth Edition, Revisedand Expanded, edited by RobertT. Golembiewski andJackRabin of Public Administration:Second Edition, edited by JackRabin, 65. Handbook W.BartleyHildreth,andGeraldJ. Miller 66. Handbookof Organization Theoryand Management: The Philosophical Approach,edited by Thomas D. LynchandToddJ. Dicker 67. Handbook of Public Finance,edited by Fred Thompson and MarkT. Green Third Edition, Revisedand 68. OrganizationalBehaviorandPublicManagement: Expanded, MichaelL. Vasu,DebraW.Stewart, andG. DavidGarson 69. Handbook of Economic Development, edited by KuotsaiTomLiou of HealthAdministrationandPolicy, edited by AnneOsborne Kil70. Handbook patrick andJamesA. Johnson 71. Handbook of Research Methods in PublicAdministration,edited by GeraldJ. Miller andMarciaL. Whicker onTaxation,edited by W.Bartley Hildreth andJames A. Richard72. Handbook son 73. Handbook of Comparative Public Administrationin the Asia-Pacific Basin, edited by Hoi-kwokWong and HonS. Chan 74. Handbook of Global EnvironmentalPolicy andAdministration, edited by DennisL. SodenandBrentS. Steel of State Govemment Administration,edited by JohnJ. Gargan 75. Handbook 76. Handbook of GlobalLegalPolicy, editedby Stuart S. Nagel of Public InformationSystems, edited by G. DavidGarson 77. Handbook 78. Handbook of GlobalEconomic Policy, editedby Stuart S. Nagel SecondEdition, Revisedand Ex79. Handbookof Strategic Management: panded, editedby JackRabin,GeraldJ. Miller, andW.BartleyHildreth 80. Handbook of GlobalInternationalPolicy, editedby Stuart S. Nagel

of Organizational Consultation: SecondEdition, Revisedand 81. Handbook Expanded, edited by RobertT. Golembiewski 82. Handbook of GlobalPolitical Policy, editedby StuartS. Nagel 83. Handbook of GlobalTechnology Policy, editedby Stuart S. Nagel of Criminal Justice Administration, edited by Toni DuPont84. Handbook Morales,MichaelK. Hooper,andJudyH. Schmidt 85. LaborRelationsin the Public Sector’. Third Edition, edited by RichardC. Kearney Additional Volumesin Preparation Handbook of GlobalSocial Policy, edited by Stuart S. NagelandAmyRobb Handbook of Organizational BehaviocSecondEdition, Revisedand Expanded,edited by RobertT. Golembiewski Handbook of AdministrativeEthics: SecondEdition, RevisedandExpanded, editedby TerryL. Cooper Handbook of Public Quality Management, edited by RonaldJ. Stupakand PeterM.Leitner Handbook of Crisis andEmergency Management, edited by Ali Farazmand Handbook of Public Management Practice and Reform,edited by Kuotsai TomLiou Handbook of Comparative and Development Public Administration: Second Edition, RevisedandExpanded, edited by All Farazmand PrinciplesandPractices of PubficAdministration [on-linetext], editedby Jack Rabin,RobertMunzenrider, andSherrieBartell Public Administration:A Comparative Perspective,Sixth Edition, Revised and Expanded, Ferrel Heady PersonnelManagement in Govemment: Politics andProcess,Fifth Edition, Jay M. Shafritz, Norma M. Riccucci, David H. Rosenbloom, KatherineC. Naff, andAlbert C. Hyde

ANNALS OF PUBLIC ADMINISTRATION 1. Public Administration:History and Theoryin Contemporary Perspective, edited by Joseph A. Uveges, Jr. 2. Public AdministrationEducation in Transition, edited by Thomas Vocinoand RichardHeimovics 3. CentenaryIssuesof the PendletonAct of 1883,edited by DavidHoRosenbloom with the assistanceof MarkA. Emmert Relationsin the 1980s,edited by RichardH. Leach 4. Intergovemmental 5. CriminalJustice Administration:Linking PracticeandResearch, edited by WilliamA. Jones,Jr.

Labor Relations in the Public Sector ThirdEdition

Richard C. Kearney East CarolinaUniversity Greenville,NorthCarolina with David G. Carnevale University

of Oklahoma

Norman, Oklahoma

MARCEL

MARCEL DEKKER, INC.

NEW YO~,K¯ BASEL

ISBN: 0-8247-0420.7 This bookis printed on acid-free paper. Headquarters Marcel Dekker, Inc. 270 Madison Avenue, NewYork, NY10016 tel: 212-696-9000;fax: 212-685-4540 Eastern HemisphereDistribution Marcel Dekker AG Hutgasse 4, Postfach 812, CH-4001Basel, Switzerland tel: 41-61-261-8482;fax: 41-61-261-8896 World Wide Web http://www.dekker.com The publisher offers discounts on this bookwhenordered in bulk quantities. For more information, write to Special Sales/Professional Marketingat the headquarters address above. Copyright © 2001 by Marcel Dekker, Inc. All Rights Reserved. Neither this booknor any part maybe reproducedor transmitted in any form or by any means, electronic or mechanical, including photocopying,microfilming, and recording, or by any information storage and retrieval system, without permission in writing from the publisher. Currentprinting (last digit): 1098765432 PRINTED IN THE UNITED STATES OF AMERICA

Preface

Unionsseemto be perpetually at a crossroads. Thosein the private sector have suffered membershipdeclines for more than 45 years and, even under the dynamic leadership of AFL-CIO President John Sweeney,they will be hard-pressed to reverse the powerfultide against unions in the private sector. In government, union membershiphas been stagnant since the 1980s. Althoughthere have been somepositive incrementalchangesin the state legal environmentfor collective bargaining, no new comprehensivebargaining laws have been enacted since 1992. Meanwhile,fundamentalrestructuring of private and public organizations and the processes they use to conduct their business have been occurring at an ever-increasing rate. Globalization of labor and markets has profoundly challengedunions in the businesssector. For their counterpartsin government, continuing citizen resistance to government taxing and spending, joined with the movementto reinvent government,have posednewchallenges that provide both threats and opportunities. In any event, managingin a union environmentis a reality for approximately40%of public managers,and unions remainkey political actors in the federal government and in a large proportionof state andlocal jurisdictions. The third edition of LaborRelations in the Public Sector has been completely updatedin termsof the scholarly and professionalliterature and relevant events. Collective bargainingand labor relations are addressedat all levels of government,with comparisonsto the private and nonprofit sectors. The Reinventing GovernmentMovement has been incorporated into several chapters. Interest-based ("win-win")negotiation is a prominentthemein discussions of the bargainingprocessand contract administration. Thethird edition features several iii

iv

Preface

newcase studies that are intended to provide students with experiential learning exercises. There have been two changesin the organization of the book. The initial chapter on the history and developmentof unions has beenseparated into twonew chapters: "History and Background"and "The UnionsToday." The chapter in the previous edition on the bargainingprocess has also been divided into two: "Fundamentalsof the Bargaining Process" and "The Process and Politics of Public Sector Collective Bargaining."Thesemodificationsfacilitate inclusion of newmaterials and improvethe flow and organization of the book. The third edition is designed to be moreclassroom-friendly than earlier versions. As before, the bookis intended for use in graduate and undergraduate courses in labor relations, collective bargaining, humanresource management, and problemsin public administration. Contributing to the bookfor the first time is DavidG. Camevaleof the University of Oklahoma.Dr. Carnevalehas extensive experience in labor relations and collective bargaining. His involvementhas significantly strengthened the third edition by lendingthe insights of a practitioner. I appreciate the comments and suggestions of professors and students who have used earlier editions of the book. Thanksalso go to Arevik Saribekyan and RodneyRose, MPA students at East Carolina University, whohelped gather informationand materials for the third edition. A special thanks to KathyMorgan, whoprepared the index. As always, I amindebted to Kathyand Joel for their love and support. Richard C. Kearney

Contents

Preface 1. History and Background

iii 1

2.

The Unions Today

23

3.

The Legal Environmentof Public Sector Labor Relations

45

4.

Fundamentalsof the Bargaining Process

81

5. The Process and Politics of Public Sector Collective Bargaining

113

6. Financial Impacts of Unionsand Collective Bargaining

139

7.

177

UnionImpacts: Personnel Processes and Policies

8. Strike! 9.

ResolvingImpasses: Alternatives to the Strike

221 259

10. Living with the Contract

293

11. Public EmployeeUnionsin the Future

325

References

347

Index

379

Labor Relations in the Public Sector

1 History and Background

I.

INTRODUCTION

As the industrial revolution dawnedin Englandin the mid-eighteenthcentury, the employer’sauthority was absolute, and completelyfree from laws or government regulations. Employersunilaterally determinedwagesand the terms and conditions of employment for their workers. As a practical matter, all but the most skilled workershad to take jobs as they came, with little or no opportunity to influence compensationlevels or the nature of the work. Early efforts to form trade unions were violently suppressedby laws forbiddingorganizationas a criminal conspiracyin restraint of trade. It was a long hard struggle for employeesin Englandand Europeto gain the fights to organize and bargain collectively--and it took nearly 200 years in the UnitedStates. Todaythese fights are held in nearly all nations. Labor,in this sense, is triumphant. But unions in the United States today face new sets of problemsand challenges, the outcomesof which could well determinetheir very existence in the next few decades. Theintent of this initial chapter is to discuss the history and development of unionizationand collective bargainingin the private sector and in government. The roots of governmentunions are traced through an historical examinationof the Americantrade union movement.The developmentof public sector unionization is examined,including key factors that contributed to the growthof unions in government. A.

Early American Unionism

Labororganizations have existed in the UnitedStates since the earliest days of the Republic. The environmentwithin which they have been created and grown, however,has not alwaysbeen friendly or even tolerant. The earliest domestic roots of Americanunionism maybe traced to the self-help organizations formedby workersin the crafts and skilled trades prior to the RevolutionaryWar.These organizations were, in a sense, transplants of

2

Chapter1

the Europeanguilds. Probablythe first guild to developin the UnitedStates was the cordwainers (shoemakers) in 1648 in Boston (Commons 1980). This guild eventually evolved into what somehistorians believe to be the first American trade union--The Society of Master Cordwainers. The guilds were not true "unions" in that there was no separation of labor betweenworker and owner. Nonetheless, workers were united in a common cause of self-protection. The early Americanlabor organizations were based on handicraft technologies like shoe making,stone cutting, carpentry, hat finishing, and printing. Their membershipwas composedof skilled laborers organized along the lines of individual crafts. Today,such organizationsare knownas craft unions. It is not surprising that organizedlabor beganwith highly skilled, strategically situated workers,as they were the first to enjoy what is referred to today as bargaining power. Public policy towardearly labor organizations maybe characterized as one of suppression.Theyhad no legal basis for existence and wereconsidered"criminal conspiracies in restraint of trade" undercommon law. This criminal conspiracy doctrine emergedfrom a court case involving the cordwainers, in which a judge ruled it illegal for Philadelphiashoemakers to act collectively in efforts to raise their wages.Several of the early craft unions wereprosecutedfor criminal conspiracy until the doctrine was ended by the Massachusettscourt decision of Commonwealth v. Hunt(1842), which held that such organized union activities were lawful. Somelocal labor organizationsentered the political arena during the 1820s and 1830s through affiliating with "workingmen’sparties." They pressed Congressand state legislatures for job-related concessionssuch as the 10-hour day, and also for broader reformssuch as free universal education, an end to the military draft, abolition of debtor’s prisons, and expansionof suffrage. Many of these organizations, whichwere strongest in large cities such as NewYork and Philadelphia, even took a short-lived step towards national organization in 1834 by forming the National Trades Unionto coordinate activities of the locals. It wasduring this sametime period (1820s to 1830s)that labor organizations beganto penetrate public employment, as public workersin skilled occupations sought the 10-hour day wonin somecities by their private counterparts. Mostof this activity wasconcentratedin federal naval shipyardsin Philadelphia, Boston, and NewYork. Later, whenagitation for the 8-hour work day began, the first employerto grant it wasthe federal government, at the Charleston,South Carolina, NavyYardin 1842. Accordingto Spero (1948:87), the drive for the 8-hour day "led to the crystallization of the principle of the state as a model employermaintainingthe highest possible workingstandards in its services as an examplefor others to follow."

History and Background

3

Duringthis early period of growthand development,unions’ organizational health was highly dependenton national economicconditions; unions suffered during hard times and revived during moreprosperoustimes. For example,there was a tremendousincrease in union membershipduring the Civil Warand immediately afterwardas a consequence of industrial growthrelated to the war effort. The Depression of 1873, however, was accompaniedby a startling decline in national union membershipfrom 300,000 to 50,600 within five years. By 1885, improved economicconditions pushed membershipgrowth back to the 300,000 mark. The direct relationship betweeneconomictailspins and union membership declines did not endureduring the 20th Century.Unionssuffered during the prosperous 1920s, and madetheir most spectacular gains during the Great Depression era of the 1930s. Nonetheless,economicconditions continue to influence union fortunes today. For instance, whenunemployment is low and consumerdemandfor products is high, employers tend to accommodateemployeedemands, even the demand for unions. Concurrently,risk-taking union advocatesfind it relatively easy to locate newjobs if they are fired. Thus,unionismis likely to flourish duringfavorable economicconditions. The opposite argumentapplies for periods of high unemploymentand a weakeconomy(Reder 1988:92-93). In both situations, course, manyother factors also influence uniongrowth.In the past three decades, private sector unions have struggled with membershiplosses during good economic times and bad. Eventhoughlabor organizations could no longer be legally prosecuted for criminal conspiracy in restraint of trade after the 1842Commonwealth v. Hunt decision, this did not by any meanssignal a newera of tolerance and encouragement of unionism. Bitter union-management battles erupted during the 1870s. Employer"union-busting" tactics such as lockouts, espionage, blacklisting of unionorganizers, summary firings of "agitators," and, in order to break strikes, club-swinging "goon squads," forced someunions to go undergroundand operate as secret societies. Oneof these societies--the MollyMaguires,formedby anthracite coal miners--metemployerviolence with violence of its ownin perpetrating acts of arson and murderin the Pennsylvaniacoal mines. Manyopposing union philosophies competedfor the allegiance of the Americanworking class during the late 1800s and early 1900s. Somegroups sought victories throughthe political process while others advocatedcollective bargaining. Mostorganizations wantedto operate and pursue their goals within the boundariesof the capitalist system,but others spokeout in favor of the emerging European philosophies of socialism and communism. Perhaps the strongest of the leftist groupswas the Industrial Workersof the World(IWW),whichrejected capitalism outright and strove to organize the workingclass, take control of the State, and overturn the capitalist system.

4

Chapter1

Foundedin 1905by radical socialists and syndicalists, whosepenchantfor a good fight took precedenceover "planning, negotiating, and politiking [sic]" (Stegner 1990:13), the "Wobblies"enjoyed their greatest strength amongmining, lumbering, and agricultural workersin the westernstates of Idaho, Colorado,and Utah. (The nicknamereportedly was taken from a Chinese cook’s pronunciation of IWW as "I wobble wobble"). The Wobblies committednumerousacts of industrial sabotageand weresuccessful in leading several large strikes in the United States and other countries during the First WorldWar.Manymartyrs were producedalong the way,including the legendaryJoe Hill, who,just before his execution in 1915, cried to his fellow Wobblies,"Don’t waste time mourning,organize!" But severe repression by the federal government--including the incarceration and lynching of union leaders such as Joe Hill--and the lack of broad appeal of IWW philosophies to the Americanworking class, led to the demiseof the organization shortly after the War(see Galenson1980for conventional treatment). The Wobblies’utopian vision of "one big union"for the workers of the worldremainsan historical curiosity to all excepta handfulof diehards whoin the late 1980ssought to revive the IWW through the international peace movement(for current information on this unique organization, see the IWW website at: www.IWW.org). Other labor organizations on the ideological far left have enjoyed some support in the United States, including the FarmEquipmentWorkers, Tobacco and Allied Workers,United Office and Professional Workers,and the Fisherman’s Union. Twocommunistunions even managedto survive the McCarthy-era repression of the 1950s: the International Longshoremen’s and Warehousemen’s Unionand the United Electrical, Radio, and MachineWorkers. But a number of factors have conspired to mitigate socialist- and communist-orientedlabor organizationsin the UnitedStates. Therigid class structures of Europehavenever developedin the UnitedStates to set the boundariesfor class conflict, largely because of the rapid economicgrowthof the country, a relatively high standard of living for the workingpeople, fairly steady economicgrowthwith the opportunity for individual advancement, and the diverse ethnic and religious characteristics of Americanimmigrants.Froma political perspective, organized labor has been hemmed in by the absence of a labor-based political party and by actions of federal and state courts that haveconstricted the boundariesof unionpolitical and organizing activities (Galenson1980:73-79;Forbath 1991). The real battles within the labor movement in the United States have not been fought over questions of political ideology, but over the issues of which types of workersshould be organized and by whom.The ethos of business unionism, as originally professed by SamuelGompers,has dominatedthe American labor movement throughout this century. Economicobjectives and improvements in workingconditions have served as the primary objectives of trade unionism,

History andBackground

5

not social and political change. Theories of the labor movement in the United States reflect the early ascendancyof business unionism,asserting that American workershave joined unions for job security (Tannenbaum 1921), out of a concern for the scarcity of job opportunities (Perlman1928), as a meansfor democratizing the workplace(Webband Webb1897), as a result of expansionof the job market from increased industrialization (Commons and Associates 1936), from a crystallization of groupinterests arising fromworkers’ social and economicsituations (Hoxie1928), and in responseto various monetaryand fringe benefits incentives (Olson 1965). The Marxist philosophy that unions form the locus of a working class consciousnessand serve as the basis for restricting competitionover jobs has never been widely accepted in the United States. As already noted, the earliest organizing efforts were amongthe craft unions. Heavyindustrialization, whichbegan during the mid-1800s,provided a new and rapidly growing industrial labor force of nonskilled and semiskilled workers whowere not trade or craft oriented. Organizationof this newpool of workers wouldhave to be along shop lines, based on the place of work rather than on the type of work.The Knights of Labormadethe first significant effort to capture this segmentof the workforce. Formedin 1869 as a craft union for customtailors in Philadelphia, the Knightsgraduallybeganto include other crafts underits organizationalumbrella. By 1878it had evolvedinto the first national labor unionin the UnitedStates. The followingyear the Knightsdroppedits status as a secret society, and under the leadership of an affable Irishman namedTerence V. Powderly,beganto seek both craft and industrial affiliates throughoutthe country. Bythe time of its successful 1886 strike against financier Jay Gouldand the WabashRailroad, the Knights claimed a membershipof 700,000. The Knights’ membershipwas somewhat unstable and divisive, however,and a subsequentseries of ill-conceived strikes led to one defeat after another for the union. By the turn of the century the Knightsof Laborwasnearly extinct. Further organization of unskilled workers awaited the developmentof the Congressof Industrial Organizationsin the 1930s. The remaining craft union pieces of the complexKnights of Labororganizational mosaic were quickly gathered up by the AmericanFederation of Labor (AFL), which was originally formedin 1881 in Pittsburgh as a federation for skilled craft workers.The 25 national craft unionaffiliates elected SamuelGompers, headof the Cigar MakersUnion,as their first president. The ultimate pragmatist, Gomperssoon made the AFLa major actor in the Americaneconomic system. Gomperswas, in essence, a free marketeer whorejected philosophical, political, and social issues in favor of an almostlaissez-faire labor environment. Underhis leadership the AFLgrew steadily, surviving both the depression of 1893to 1896and a violent strike that broke the back of one of the AFLlocals

6

Chapter1

at the Carnegie Steel Companyin Homestead, Pennsylvania. The AFLalso proved strong enoughto withstand the scientific management movement of Frederick W.Taylor, court injunctions against strikes and other union actions, and years of stifling "yellow-dogcontracts" (a contract in whicha workerpromised not to join a union while under the hire of an employer). There were, however, somedark times, particularly following WorldWarI and during the early years of the Great Depression. The AFL’sresurgence after the Great Depression was, in the words of Sloane and Witney (1981:75-76), "in spite of itself," as the union "almost snatched defeat from the jaws of victory." A leadership gap was part of the problem (Gompershad died), but more to blame was the union’s continuing reactionary posture against massproduction workers whomthe Knights of Labor had first tried to organize. The AFL’sunrelenting refusal to allow nonskilled, noncraft workersinto the organization eventually prompteda secessionist movementsteered by John L. Lewisof the United MineWorkers,after his efforts to gain affiliation for industrial workersfailed at the 1935AFLconventionin Atlantic City. Lewis did not exit that convention meekly. Accordingto Sloane and Witney(1981:77), "Lewis, never one to camouflagehis emotions for the sake of goodfellowshipwith his AFLcolleagues, left Atlantic City only after landing a severe uppercut to the jaw of Carpenter Unionpresident WilliamL. Hutcheson..." Lewis then formedhis ownindustrial union, the Committeefor Industrial Organization,later called the Congressof Industrial Organizations(CIO). There followedanother, later attempt to affiliate underthe AFLbanner, but it culminatedin the expulsionof CIOleaders and the morethan 30 national unions that had joined forces with the CIO. The independentCIOwas highly successful in organizing industrial workers, such as those in the automobileand steel industries, so muchso that the AFL finally recognizedthe error of its waysand itself begancompetingfor unskilled workers. Not to be outdone, the CIOturned its ownefforts to the organization of craft workers.In 1955,after years of interunion conflict and competition,the AFLmergedpermanentlywith the CIO, becoming"the united house of labor." Thelabor battles had beenfought not over political ideologyor competing grand visions of Americansociety, but over organizing workersand the mundane bread-and-butter issues that today remain paramount:wages, fringe benefits, workingconditions, and job security. To GeorgeMeany,as well as to the other mainstream labor leaders, ideology was "baloney" (Sloane and Witney1981: 94). Unionsbecameactive in the political arena during the 1960sand remainso today, pressing a broad national agendafor social betterment with varying degrees of success (see Boyle1998). However,no coherent ideology is apparent. Ironically, the year following the AFL-CIO merger markedthe beginning of a long and continuousdecline in union organization in private employment.


7

In 1956, the first year in whichthe total numberof U.S. white-collar employees exceededthe numberof blue-collar workers,one-third of the nation’ s nonagricultural workers were unionized. By 1999, only one in seven were members--just 13.9 percent of the total workforce, and only 9.5 percent of private sector workers. The absolute numberof private sector union members continuedto rise until 1970,but has since declinedto 9.5 million (U.S. Bureauof LaborStatistics 2000). Table 1.1 showsmembership figures for the largest private sector unions today. Table 1.2 displays public and private sector union membership by state. B.

Factors Contributing to Private-Sector UnionDecline

The fading fortunes of unions in the private sector have spawneda great amount of discussion and debate. Three majorfactors havecontributed to uniondecline, althoughtheir relative importanceis subject to dispute (e.g., Freemanand Medoff 1984; Goldfield 1987; Kochanet at. 1986). 1. Structural Elements Theseare associated with broad social and economicchanges that have affected the compositionof the workforce, the general nature of employment,the shift of jobs from the heavily organized Northeast and Midwestto the predominantly nonunionSouth and Southwest,and the demographiccharacteristics of the work force. Morespecifically, the labor force has becomeincreasingly female, minority, and part-time, with correspondinglydifferent needs than the mostly white maleworkersof the past. It is also increasingly white collar, as employment has

TABLE 1.1

Membership in LargestPrivate SectorUnions

Union

Membership (Year)

International Brotherhood of Teamsters ServiceEmployees International Union United Foodand CommercialWorkers United Auto Workers InternationalBrotherhood of Electrical Workers InternationalAssociation of Machinists LaborersInternationalUnion UNITE UnitedSteel Workers

1,500,000(2000) 375,0001(1999) 1,400,000(2000) 770,000(1999) 679,000(1995) 475,000(2000) 425,000(1998) 276,000(1998) 700,000(1999)

Source: Self-reported figuresfromeachorganization’s Internetwebsite. 1Does notincludepublicandnonprofitsectormembership.

Chapter1

8 TABLE 1.2 UnionMembership for 1997

ALL WAGEANDSALARYWORKERS, PUBLICAND PRIVATE State All States Alabama Alaska Arizona Arkansas California Colorado Connecticut Delaware Florida Georgia Hawaii Idaho Illinois Indiana Iowa Kansas Kentucky Louisiana Maine Maryland Massachusetts Michigan Minnesota Mississippi Missouri Montana Nebraska Nevada NewHampshire NewJersey NewMexico NewYork NorthCarolina North Dakota Ohio Oklahoma Oregon Pennsylvania

Union members 1997 16,109,900 184,500 50,100 131,700 59,400 2,066,700 174,200 247,800 39,200 403,000 238,100 126,700 43,400 970,800 398,600 172,400 86,900 193,100 118,700 72,000 348,700 423,100 969,000 436,100 57,500 359,300 47,300 68,800 147,100 55,600 802,100 55,600 1,949,400 126,200 23,900 931,300 109,500 242,200 866,000

Percent members 1997 14.1 10.2 20.0 7.0 5.9 16.0 9.6 16.9 11.7 6.8 7.1 26.3 8.5 18.5 14.6 13.2 7.8 12.2 7.0 13.5 14.9 15.1 23.1 19.9 5.4 14.6 13.8 9.3 19.1 10.2 22.0 8.4 26.3 3.8 8.6 18.9 8.4 17.6 17.1

History andBackground TABLE1.2 Continued ALL WAGEANDSALARYWORKERS, PUBLIC ANDPRIVATE State RhodeIsland SouthCarolina South Dakota Tennessee Texas Utah Vermont Virginia Washington WestVirginia Wisconsin Wyoming

Union members 1997 80,900 61,300 21,000 192,900 538,600 74,000 21,800 192,600 508,200 105,600 468,000 18,700

Percent members 1997 18.7 3.7 6.9 8.6 6.4 8.3 8.5 6.5 20.5 15.6 18.8 9.3

Source: Compiled fromthe CurrentPopulation Survey 1998.

shifted frommanufacturing,mining,construction, and transportation to services such as bankingand finance, insurance, and information-basedtechnology. Historically, white-collar workershavebeendifficult to organizebecauseof the prestige and professionalismassociated with their jobs, special interests and needs that have not been attended to by the unions, and the generally poor imageof organized labor amongthis group (Sloane and Whitney1981:10-13). In a sense, unions have also been victims of their ownsuccess. Union-ratchetedsalaries and wagesplaced firms in Pennsylvania, Illinois, Michigan,and NewYork at a competitive disadvantage, encouraging manyof them to moveto low-wagenonunionstates such as Texas, Tennessee,and North Carolina, and, increasingly, to developingcountries. Thestructural explanation seemscompellingon the surface, but empirical investigations havedeterminedthat its contributionto uniondecline is moderate. Furthermore, similar structural changes have been occurring in Canada, the United Kingdom,Germany,and other industrialized nations where unionization remainsrelatively healthy and is evengrowing. 2.

Unfavorable Legal and Policy Environment

It is assertedthat the declineof unionscan be attributed at least partly to restrictions on labor organizing and other activities by the Taft-Hartley, LandrumGriffin, and other legislation. For example,Taft-Hartley prohibits the require-

10

Chapter1

ment of union membershipas a condition of employment(the "closed shop") and permits "fight-to-work" laws (which bar the "union shop"). Taft-Hartley also restricts slowdowns,sit-down strikes, and wildcat strikes. Moreover,the National Labor Relations Board (NLRB),which administers federal labor law and investigates and decidesallegations of unfair labor practices against employers and unions, has delivered a high proportionof unfavorabledecisions to unions in the last two decades(Gross 1995;Forbath1991). Thefederal courts havebeen criticized for anti-union decisions as well. For example,the so-called MacKay Doctrine, promulgatedby the U.S. SupremeCourt in 1938but not widely applied until President RonaldReaganemboldened business by sacking 11,000 air traffic controllers in 1981, allows firms to hire permanentreplacementsfor striking workers. Theseconcernshave led union supporters to call for congressional actions to level a labor-management playingfield that appears to be tilting against the unions. Yet Congress has been influenced by business interests whohave frequently succeededin rallying Republicansand conservative Democratsto defeat labor-friendly legislation. For instance, a bill to ban permanentreplacement of striking employeespassed the Houseby a wide marginin 1992, but business interests helpedbottle it up in the Senate. 3. Strategic Factors The strategic choices made--andnot made--byunion leaders have contributed to union decline. Somecritical choices madedecadesago, including the rejection of ideological approachesto labor’s relationship to governmentand the failure to mounta labor party to competefor a legitimate voice in government, debilitate labor’s political powerand influence today. Labor’s long-term reliance on the DemocraticParty for political clout continues today (Dark 1999). But to many Democrats,labor is just another interest group. Fromthe 1970s until 1998, unions spent less moneyon organizing new membersand participated in fewer NLRB certification elections than in earlier years (the trend was reversed in 1998 with AFL-CIO President John Sweeney’s organizing initiatives). What’smore, management wonfar moreunion elections than they lost. Employerresistance to unions has growndramatically, assisted by hundreds of management consulting firms specializing in "union-busting" (Bernstein 1985;Gagala1983:Ch. 3). Varioustactics bolster employerresistance to unions. "Positive employeerelations" meansestablishing a compensationsystem and workingconditions that are as goodas or better than those found in unionized workplaces.Other legal resistance techniques involve hiring consultants to help contest unionelections throughtough, well-financedcorporate campaigns to keepthe unions out; stirring workerdoubts about the potential benefits of unions; delayingcertification elections until a majorityof employeeshavelost interest in joining a union; and refusing to bargain collectively even if a union is established. Finally, employerscan instigate actions to decertify a union. This


11

tactic wasquite successfulin the 1980s,with the total numberof uniondecertifications nearly doubling (Levine 1989). Somefirms also engagein illegal activities to fight unions. Workersare threatened, unionorganizers are fired, and lies and distortions are disseminated. Suchemployeropposition is asserted by somescholars to be the leading "cause of the slowstrangulation of private sector unionism"(Freemanand Medoff1984: 239; see also Goldfield 1987). The reasons for management intransigence are not difficult to fathom.Keepingunionsout meanshigher profits for the firm. It also meansthat certain managerskeep their jobs; those perceived to be responsible for losing a union election mayfind themselvesquickly on the street (Freeman and Kleiner 1990:363)! Merely to survive, unions must continually recruit newmembers.Organized labor has not told a compellingstory of whytoday’s workersshould want to join a union, nor has it manufacturedthe positive public imageand support necessary to nurture a receptive audience of unorganizedworkers. Ultimately, the responsibility for strategic errors by unionsmustbe laid at the feet of unimaginative,reactive, and--all too often--self-interested and corrupt union leaders. Laborhas too often poisonedits ownwell by betraying its membersthrough fraud and corruption and by formingindefensible alliances with organized crime (Fraser 1998). Canthe private sector uniondecline be reversed, or is it an inevitable part of a postindustrial society? Whereis the bottom?The hemorrhaginghas been going on for over 40 years and showslimited signs of arrest. However,unions suffered earlier periods of decline (Rachlett 1999). For instance, unions lost almost 40 percent of their membership from 1920to 1933, then recoveredstrongly. Anothersuch reversal is possible, but it presupposesmoreastute union leadership, moreeffective organizingstrategies, effective coalition-building strategies with other powerfulinterest groups, a shift in employerand public opinion in favor of unions, and a morefacilitative legal environment,amongother factors (see Tillman and Cummings1999). Somecause for optimismarose in 1995, whenformer SEIUpresident John J. Sweeneywas elected president of the 13-million memberAFL-CIO(Dark 1999:178-184). Sweeney, whose SEIU membershiphad doubled even as most other AFL-CIO affiliates’ ranks thinned, workedhard to reverse labors’ declining fortunes and provokeda far-reaching reexaminationof labor’s role in the 21st Century. Sweeneytook steps to include more womenand minorities in union leadership positions, dedicatedmillions of newdollars to organizingdrives, and greatly elevated labor’s profile during the presidential election of 1996and the congressionalelections of 1998. Will such actions be sufficient to stimulate a rebirth of labor in the U.S. private sector? It is too soon to know.For every action taken to rejuvenate the unions, businessinterests and their Republicanallies havecounteredwith efforts

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Chapter1

to rewrite labor laws and other strategies designedto disadvantageunions, such as restrictions on using members’dues for political and lobbying expenses. Eventhe celebration following the tactically clever and surprisingly successful Teamsterstrike against United Postal Service (UPS)in 1997proved be short lived. Initially, it appearedthat the strike wouldrepresenta turningpoint for the unions, which had garnered widespreadpublic sympathyfor UPSdrivers and mail handlers by portraying their job action as an attack on big business and the "neweconomy"of insecure part-time workers. Public opinion sided with the union by a 2 to 1 margin, boosted, no doubt, by positive feelings towards UPSdrivers and their packages (Schneider 1988). With the strong support other AFL-CIO affiliates, the Teamsterswonthe strike by forcing UPSto convert 10,000 part-time positions to full time and to abandona plan for the company to assumecontrol of the employees’pension fund. Just as the resuscitation of the sickly patient was being widelyheralded, labor once again suffered an untimely relapse as yet another Teamsterscandal-this one highly contagious--infected the top leadership of several other AFLCIOunions. Seventy Teamsterlocals had been placed under trusteeship by the federal governmentbecause of corruption and links to organized crime. Reform president RonCareyhad expelled hundredsof local officials. Finally it seemed that the ethically challenged unionhad cleaned itself up. But federal officials overturned Carey’s narrow reelection victory over James P. Hoffa, Jr. because of an illegal money-launderingscheme. Carey’s campaignmanagerand two consultants pleaded guilty to related charges. Improperconduct by AFL-CIO Secretary Treasurer Richard Tmmka and AmericanFederation of State, County, and Municipal EmployeesPresident Gerald McEnteewas also cited. A new election was ordered with Careyforbidden to ran. Hoffa was then elected president. The tragedy for labor wasthat despite sincere efforts to get its ownhouse in order, little had really changedin the eyes of the mediaand the public. "NewLabor’s" desire to reinvent, reinvigorate, and reposition itself underSweeney’sleadership faced significant obstacles fromcongressionalRepublicans,national conservative groups, business interests, and a skeptical public. C.

Unions in GovernmentmThe Early Years

As noted above, public employeeorganizations first becameactive during the early 1800s, particularly in federal shipyards. However,until 1836even in the shipyards they experiencedlimited success, as military bosses tended to be rather insensitive to the opinions of their workers.In that year a Washington,D.C.naval shipyard strike and a massdemonstrationled to intervention by President Andrew Jackson, whopersonally granted the federal employeesthe 10-hour day they sought. A tradition of direct presidential involvementin federal labor problems was to continue even after passage of the 1978 Civil Service ReformAct.


13

The postal workersformedthe first federal employeeorganizations of national significance. The earliest postal organization wasestablished in 1863by letter carriers in NewYork; in 1886 the Knights of Laborchartered locals in Chicago,Omaha,and other cities. Postal clerks were organized in 1888in New York,and the National Associationof Letter Carriers wascreated in 1890. Rural carriers formedtheir ownnational organization in 1903. The rise of the postal workersunderthe bannersof their various organizations was not met with equanimityby the federal government.In 1895, Postmaster GeneralWilliamL. Wilsonissued a departmentalorder prohibiting any postal employeefrom visiting Washingtonfor lobbying purposes, at the risk of being fired. Whenintensive lobbyingby postal workersand their organizations continued, muchto the annoyanceof the executive branch and somemembersof Congress, President TheodoreRoosevelt retaliated in 1902 with his infamousgag rule forbiddingall federal employeesfromseekinglegislation in their ownbehalf directly or indirectly, individually, or throughtheir organizations(Spero 1948: 117-127). Assiduouspostal employeemilitancy was also met with union-busting tactics that included the use of paid informers, the discipline and/or discharge of organizationalleaders, and, ironically, the openingof their personalmail (Nesbitt 1976:8). Ever tenacious, the postal workersrespondedwith an anti-gag rule campaign, spearheadedby a magazine,The Harpoon,which was edited by a railway clerk namedUrbanA. Walter. Finally, the postal workers, led by the AFLand the National Federationof Post Office Clerks, garneredsufficient congressional support to win passageof the Lloyd-LaFolletteAct of 1912, guaranteeingfederal employeesthe First Amendment right to organize and petition Congress for a redress of grievances. Althoughthe Lloyd-LaFolletteAct had only a small effect on federal union-bustingactivities (whichcontinued), it did denote a newdirection in the developmentof postal and other federal labor organizations as they increasingly beganto seek the full labor fights granted to private sector workers in the National Labor Relations Act (Spero 1948:143). Organizational efforts outside the defense establishment and post office included "almost every civil occupation from charwoman to zoologist, from astronomerto stone cutter" (Nesbitt 1976:56). Theseefforts first assumeda prominent profile in 1896with an organizingdrive based in NewOrleans, but the U.S. Civil Service Commission rebuffed the attempt. In 1912, however,the customs inspectors organizedsuccessfully on a national scale, and in 1917the National Federation of Federal Employees(NFFE)was formed as an umbrella organization intendedto cover all federal civilian employeesexcept for the postal employees and workerspermitted to join AFLaffiliates (Nesbitt 1976:58). Twoother significant general-purposefederal organizations followed: the AmericanFederation of GovernmentEmployees(AFGE)in 1932, and the National Association of GovernmentEmployees(NAGE)soon thereafter. As becomesevident later

14

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in our discussion, however,substantial growthin these organizations awaited implementationof President Kennedy’sExecutive Order 10988 of 1962. Organizationalprogress in the state and local governmentsectors wasalso unevenbefore the 1960s. A crafts orientation was clearly prevalent during the formativeyears, especially in local government,as teachers, firefighters, and police organized separately. The National TeachersAssociation (NTA)was formed in 1857. The National Education Association was created in 1870 through a merger of the NTAand two other teacher associations. Althoughthese early teacher associations wereset up and directed by administrators and other school authorities to advancethe interests of the teaching occupation and to provide mutualaid programs, a steady accumulationof grievances eventually drove the teachers into a moreaggressive posture. State laws and local ordinancesforbade teachers from smoking,placed restrictions on their dress, imposedcurfews, and even sought to regulate their leisure time. In WestchesterCounty, NewYork, for example, teachers were ordered to bed by 10 P.M. OneNorth Carolina town admonished its teachers "to sleep at least 8 hours a night, to eat carefully, and to take every precaution to keepin the best of health and spirits" (Spero 1948: 298-300). In 1900the Chicagoand San Antonioteachers’ federations responded to such intrusive rules by affiliating with the AFL.Joined by other teacher organizations in 1916, they formedthe AmericanFederation of Teachers. Firefighters and police beganorganizingduringthe late 1800sand the early years of the 20th century, primarily as mutualbenefit societies to provide pension and insurance programsto fulfill the social needs of their members.In 1918the AFLchartered the International Associationof Fire Fighters (IAFF), whichtoday remainsthe secondoldest nationally affiliated state or local union(after the NEA).Police officers first applied for an AFLcharter in 1897in Cleveland. By 1919, 37 local police organizationshad receivedcertification. A relatively large numberof strikes in the public safety services occurred during 1918-1919as evidenceof growingmilitancyby police and firefighters, particularly in the larger cities. Oneof those strikes--by police officers in Boston--tookon serious national proportionsafter several days of looting and mobrule and eventualintervention by GovernorCalvin Coolidge and the Massachusetts National Guard. Negativepublic reaction to the 1919BostonPolice Strike set back public safety unionizationby some40 years (see Chapter 8). Local police benefit associations continuedto exist, but little unionactivity took place again in the public safety services until the 1960s. The largest state and local uniontoday, the AmericanFederationof State, County, and Municipal Employees(AFSCME), was born in 1932 as the Wisconsin State EmployeesAssociation. Efforts to expandits scope of organization on a national basis and to extend membership to local employeeswere madethrough a 1935 affiliation with the American Federation of GovernmentEmployees (AFGE),which had previously held jurisdiction under the AFLfor organizing


15

state and local governmentworkers. The AFGE affiliation appearedunworkable, but AFSCME successfully wonindependent status within the AFLthe very next year (see Kramer1962). As in the case of the public safety organizations local government, AFSCME’s progress was uneven. By 1950 it had reached a membership total of about 68,000, but in most jurisdictions the organizationwas "harassed, coerced, dismissed--or entirely ignored" (Spero and Capozzola 1973:18). Although the founder of AFSCME, Arnold Zander, eventually supported collective bargaining and use of the strike whendeemednecessary, the formal goals of the organization were rather conservative, being "to stimulate the growthand extension of civil service and to improveexisting merit systems" (Kramer1962:31). A leadership changeat the 1960national conventionproduced a newpresident with a moreaggressivestyle (Jerry Wurf),a moremilitant posture by the national union and its locals across the United States, and substantial membershipgains. As the 1960sprogressed, it becameclear that governmentemployerscould no longer bank on a docile passive worker,content with a secure job and a rather modestsalary and pension. Federal, state, and local governmentemployeesin manyjurisdictions wouldinitiate a newventure that few had imagined. Thenext section exploresthe reasonsfor the rise of public employeeunions in the United States, after first considering the converse--that is, whypublic sector organization lagged behind the private sector for some30 years. D.

Why Government Employees Did (And Did Not) Unionize

In retrospect, there seemto be three principal factors that inhibited public employee unionismand collective bargaining prior to the 1960s: the sovereignty argument,the nature of governmentemployment,and an unfavorable legal environment. Each of them is examinedbelow. Ideology for its ownsake has never been widely embracedin the United States. For manygovernmentemployers determinedto resist unions, however, the doctrine of sovereignty assumedthe aura of ideology, althoughthe aura was somewhatdimmedby its self-serving usage by those opposedto unions. Briefly, the sovereignty argumentcontendsthat in a representative democracythe people are sovereign,andtheir will is servedby their elected representatives. If government, throughthese representatives’ appointeesor civil servants, bargains over terms and conditions of employmentwith a union, then sovereignty is violated through the illegal delegation of the people’s sovereignpower. The argumentwould perhaps stand if the various Americangovernments could demonstratetheir delegative virginity. However,representatives of the national, state, and local governmentshave for over twocenturies negotiated contracts and arrangementswith private sector entities without the express permis-

16

Chapter1

sion of the electorate. (Examplesinclude contracting out weaponssystems to private manufacturersor garbage collection to finns.) As a consequenceof the daily defloweringof sovereignty throughoutthe country, invoking the doctrine in oppositionto unionsappearsto be at best self-serving and at worsthypocritical. S tieber (1973:17)sumsup the counterargumentwell ".... the doctrine of sovereignty as applied to employmenthas been substantially dismemberedby legal and academiccritics, joined by governmentlawmakersand rulemakers. Governments, howeversupreme, makedeals." Nonetheless, the sovereignty argument has beenused with various degrees of success to stifle government unionization, and it continues to be a credo held by somepolitical conservatives. The nature of governmentemploymentalso had a strong bearing on slow public sector union growth and development.A numberof factors are salient here. Governmentworkis predominantlywhite collar in nature, and government workforces frequently include disproportionate numbersof womenand minorities. In the past, all three categories of employees weretraditionally difficult to organize. Moreover,governmentemployment,particularly at the federal level, has been characterized by strong job security, goodpensions, and merit system protections against partisan political pressure and other forms of management abuse. Merit systemsoffered an alternative to collective bargainingfor determining wages,benefits, and workingconditions, and for providing formal grievance procedures for unhappyworkerswishing to file complaints. Finally, the legal environmentfor public sector unionismwas highly unfavorableprior to the far-reachinglabor law changesinstituted at all levels of government during the 1960s. Manypublic employeeswere forbidden to strike or take other job actions and, mostimportant, statutory provisions for recognizing public employeeorganizations and implementingcollective bargaining were very rare. Whenunions asserted their recognition and bargainingrights in the courts, they were frequently spumedby a hostile judiciary. E. The Growth of Unions in Government As repeatedly mentioned,circumstanceschangeddramatically during the 1960s, and public employeeunions and collective bargainingspread rapidly across jurisdictions at all levels throughoutthat decade and the next. There were several important developmentsthat movedthe unions into the forefront of government employment.Althoughthe causal variables facilitating governmentunion growth are complex,multiple, and interrelated, it is possible to identify several factors that havecontributed significantly to unionization: (1) the growthof government, (2) the private sector experience,(3) changesin the public sector legal environment, and (4) the social changeand turmoil that characterized the 1960s and early 1970s (Shaw and Clark 1972a:901-904).


17

1. The Growth of Government During the 1960s and 1970s the numberof civilian governmentjobs approximatelydoubled,with mostof the growthoccurring in the state and local sectors. This greatly expandedworkforce presentedan attractive target for unionorganizers. By 1980, almost one of every six workingpeople in the United States was employedat somelevel of government. Froma base year of 1951, employment in federal governmentrose 24 percent to 2,866,000workersin 1980, while state and local employment increased by about 227 percent to 13,383,000.The nation’s total employment over this time period registered a gain of 89 percent. Thenumberof federal civilian employeeshas actually declinedsince 1980. The only notable surge in federal employmentafter the world wars and the Korean Warwas during 1965to 1967, reflecting defense-related civilian employment from escalation of the war in Viet Namand President LyndonJohnson’s Waron Poverty programs. The numberof federal civilian jobs dropped from about 2.9 million in 1980to 1.85 million in 1998,primarilyas a result of massive downsizingduring the Clinton-Gore administration (cpsinfo.bls.gov Jan. 25, 1999, see Figure 1.1). Several factors help explain the enormousgains in state and local governmentemployment that commenced in the mid- 1960sand tailed offby 1976. First, national populationgrowthnecessitated additional governmentworkersto service

14000

+ Federal --=-State Local

12000 10000

ooo ooo 4000 2000

--

0 Year F=GURE 1.1 Public employment, by level of government 1955to 1998.Source: U.S.Bureau of LaborStatistics, 1999.

18

Chapter1

the expandingnumberof programsintended to address people’s health, education, social service, and other needs. Second,the agedistribution of the population shifted. Larger proportionsof the populationweresituated in the "less than 25" and "65 years and over" ranges, the two groups that claim the bulk of governmentservices. Finally, federal fundingincreases for state and locally administered programs(including social services, transportation, and environmentalprotection programs)contributed to the surge in state and local jobs. Notsurprisingly, governmentemployment figures also depict a steady shift fromblue-collar to white-collar jobs as well as gains in the proportionof women and minorities in governmentemployment.Morethan half of public employees are women.African Americansand Hispanics makeup almost 25 percent of total public employment. Alongwith the growth of governmentcameincreasing bureaucratization and depersonalizationof the public service, twin forces that havetendedto isolate and alienate the individual employee(Shawand Clark 1972a:902;Shutt 1986). No longer is most governmentemploymentcharacterized by a small "family" of people whoknowand relate to one another in a neighborly fashion from the top of the hierarchyto the bottom.Dissatisfaction withpaternalism, personalism, and clogged communicationchannels within an increasingly complexorganizational structure convincedmanygovernmentworkersof the need for intermediary organizationslike unionsto represent themcollectively in their relationshipswith management. Ballooning governmentemploymentrolls presented a very attractive organizingtarget for private sector unions, whichweresuffering froma precipitous decline in the numberof blue-collar jobs in industry. Unionleaders whoheretofore had concentratedtheir membership drives on the private sector begancourting public employees,often throughexisting professional organizations. A natural community of interest amongpublic workerssuch as teachers, firefighters, and police officers had found expressionthrough professional associations and had preconditioned them to the values of organizational membership(Moskow et al. 1970:287).Unionshelped convincemembers of these associations that they could enjoy the same benefits of unionization as union membersin the private sector. 2. The Private Sector Experience Unionsin the private sector had successfully wonwageand benefit increases and improvedworkingconditions for their members.This did not go unnoticedby public employees,whowere becomingincreasingly dissatisfied with government wagesand conditions of employment. Eventhe traditional job security of government employmenthad becomeproblematic in somejurisdictions. Thecivil service systemsentrenchedin mostlarge government jurisdictions were unable or unwilling to respond adequately to public employeedemands.


19

For instance, wageand benefits adjustmentstypically required legislative action. In light of these circumstances public workers becamemore receptive to the notion of unionization and begandemandingcompensationand labor rights equal to those in the private sector. As private sector unions movedaggressively into the relatively unplowed and fertile fields of public employment, the preexisting professionalorganizations rightfully felt threatened. Strong organizingefforts by emergingunionslike the AmericanFederation of Teachers, for example, spurred the National Education Associationto reconsider its ownfuture role in public educationand eventually to embracethe full panoplyof union activities. In manyjurisdictions private sector unions like the Service EmployeesInternational Unionand the Teamsters beganto competedirectly with the professional associations. In somecases professional and fraternal organizationshad to adopt an overt unionstrategy in order to survive. The rivalries betweenthese various types of organizationsled to increased militancyand intensified organizingdrives, which,on the whole,further enhancedgovernmentunionization (Stieber 1974:830). 3. Changesin the Legal Environment Unionization, howeverwidespread within a governmentjurisdiction, maybe functionally impotentin the absence of a legal frameworkrequiting public employers to recognize and bargain with employeeorganizations. Twoevents during the early 1960scontributed indirectly to the creation of a morefavorable legal environmentfor enactmentof public sector labor laws. First, the U.S. Supreme Court ordered reapportionmentof the U.S. Congressand the 50 state legislatures (Baker v. Carr 1962; Reynolds v. Simms1964) on the basis of "one person one vote." These decisions endedor at least limited the dominationof manystate legislatures by rural, predominantly anti-union interests. Unions,whichhavealwaysfound their strongest support amongpeople in metropolitan areas, soon discoveredmoresympatheticears in the legislative bodies of the states. The seconddevelopmentencouragingbargaining legislation was President John F. Kennedy’sExecutive Order 10988of 1962, which guaranteed unionization and bargainingrights for federal employees.This order mighthave beenthe turningpoint in state and local unionization.Althoughit is impossibleto ascertain a direct cause and effect relationship betweenExecutiveOrder 10988and the subsequentenactmentof labor relations legislation in numerousjurisdictions, it does appearthat it had a substantial spillover effect in legitimizing public employee unionization and collective bargainingpractices (Moskow et al. 1970:5). 4. An Era of Social Change and Turmoil There was a massive infusion of youngpeople and racial minorities into the public workforce during the 1960s. Both groups were somewhatdistrustful of

20

Chapter1

authority and the existing management structure. Furthermore,both groups, on the whole, were favorably disposed to unions (Barrett 1973). Police officers, for instance, became"sick and tired of being harassed, cursed, spit on, and shot at" (Juris and Feuille 1973:18).Especiallyin large urban areas, police found themselvesworkingin an extremelyhostile environmentinhabited by militant blacks and students whoseire was often directed specifically at law enforcementpersonnel. SupremeCourtdecisions that restricted police discretion, such as Mirandav. Arizona (1966), and community demandsfor civilian review boards to assess alleged police misconductwere seen as threats to the officers’ professionaland personalwell-being. At the sametime public officials lodged increasingly adamantdemandsfor "law and order" and improvedpolice protection for the community. Tomanypolice officers, these intense and insistent external pressures, whenexaminedin conjunction with perceptions of low pay and antiquated personnel practices, becameunbearable. The options, as Hirschman(1970)has pointedout, are exit (resign), voice (protest), or loyalty (suck up). Some,indeed, decidedto look for other, less demanding lines of work;others choseto suffer throughthe experiencewhile awaiting retirement. Many,however, elected to give voice to their complaintsthroughunions. II. WHY GOVERNMENTWORKERSJOIN UNIONS--THE INDIVIDUAL PERSPECTIVE Identifying the broad societal forces that precipitated and accompaniedthe growth in public sector unionization during the 1960sand 1970sprovides only a partial explanation of the union phenomenon. In order to gain a morecomplete understandingof collective action within governmentemployment,one must also consider the problemfrom a micro, or individual, perspective. In other words, what leads the individual governmentworker to join a union? Americanworkersin the private sector join unions becausethey are dissatisfied. Theywanthigher wagesand better benefits, job security, participation in decision making,and protection of their rights as workers.Seldomhavepolitical or ideological appeals persuadedU.S. workersto organize. Rather, the principal motive has been to improveconditions of employmentthrough collective voice and action (Kochan1980:143).For blue-collar workersthe bread-and-butter economicissues are usually paramount.For white-collar workerspsychologicalreasons such as job security and a desire for a voice in decision makingare of somewhatgreater significance (Kochan1979:26). For almost all private sector employeesjob dissatisfaction "mustbe quite severe before a majority will support unionization as an option for improvingthese conditions" (Kochan1979: 26). A recent exampleis the widespreaddissatisfaction of medical doctors with HMOs and other forms of managedcare that provoked the AmericanMedical Association to vote in favor of forminga labor union in 1999.


21

To a large extent public employeesjoin unions for the same reasons as their counterparts in the private sector. Theyare dissatisfied with one or more important aspects of their jobs. Job-related conditions especially conduciveto unionizationinclude hazardous,physically demanding,or repetitive tasks; little input into job-related decisions; and perceptions of arbitrary and unfair management actions and decisions (Hills 1985; Hundley1988; Sherer 1987; Premack and Hunter1988). But dissatisfaction alone is not sufficient. Workersmustalso believe that union representation will be instrumental in securing the desired economicand psychological benefits, and that the value of these benefits will exceedthe costs associated with unionization. Race, gender, and life experiences also play a part in the propensityto join a union. Researchindicates that women, African Americans,Hispanics, the less educated, and individuals whohave been previously exposedto unions are morelikely to join them, for example,than are highly educated white males born of parents whoare doctors or lawyers (Hills 1985; Hundley 1988; Leigh and Hills 1987; DeFreitas 1993). No doubt these factors are related. For instance, women,blacks, and the less educatedhave had fewer opportunities for career advancement,and maytend to see unions as a vehicle for gainingstatus and pay. Individualswith these characteristics are also morelikely to have blue-collar, union parents. Union membershipis still higher amongmen(16.2 percent) than women (11.4 percent), but the gap is closing. By t998, a higher percentage of African Americans(17.7 percent) were membersof unions than whites (13.5 percent) and Hispanics (11.9 percent) (U.S. BLS1999). The growingpropensity of women and African Americansto join labor organizations reverses a long-term pattern in whichthese groups wereleast likely to join. Historically, women and minorities were systematically discriminated against by unions in both the public and private sectors. In the 1960sand early 1970s, however,the civil fights movement and the women’smovementforged links with organized labor. Today, low-paid womenand minority employeesoften have the most to gain from unions, and manypublic employeeorganizations in particular have recognized the tremendous potential for membership gains represented by unorganizedminority groups (see Riccucci 1990). Thecase of Hispanicsis complexand still being sorted out by researchers. The Hispanic labor force is rapidly accelerating in the United States, largely because of high immigration rates from the Caribbean, Central America, and Mexico. However,the growth rate of Hispanic union membership,although it nowexceedsthat of whites, has not kept pace with the increasing Hispanicpenetration of the labor force. Among the factors that maybe depressingunionization amongHispanicsare immigrationstatus, short duration of residence in the United States, and deficient English-languageskills (DeFreitas 1993:285).As this segmentof the population continues to surge and unions begin to recognize their organizing potential and reach out to them, higher unionization rates are very

22

Chapter1

likely to follow. Thesuccess of the "Justice for Janitors" campaignin organizing large numbersof Hispanic custodial workers in Los Angeles, San Diego, and manyother cities is one indication of the proclivity of low-skilled low-paidHispanics to join unions (Johnston 1994). III. FUTURE PROSPECTS Unionscontinueto exercise significant political influencein the U.S. private sector despite the steep declines in their representation of the labor force. Andthe "SweeneyRevolution" had stirred up a good amountof excitement and a renewedsense of optimismamongpartisans of organized labor as the newcentury arrived. But important economicand political forces continue to oppose organized labor in the private sector. Thepicture is quite different in the public sector. Althoughoverall membership leveled off years ago, several public employeeunions grewtheir membership during the 1990s, including the NEA,AFT,and AFSCME. Moreover,traditionally private sector unions have captured significant numbersof public workers. Public employeeunions are now, and will remainin the future, powerfulforces within U.S. politics and public administration. The final chapter in this book assessestheir future in greater detail.

2 The UnionsToday

This chapter explores the organizational landscape of public employeeunions, including the factors that are correlated with unionization. Thekey term is diversity. Public sector unions vary along manydimensionsand across levels of government.Theyare different in terms of affiliation. Someare federated with national organizations such as the AFL-CIO. Others are local independentorganizations with no national affiliation. Someunions representing government workersalso organizeand bargain for workersin the private and nonprofit sectors (e.g., SEIU).Others (e.g., Fraternal Orderof Police) essentially restrict their boundariesto public employees.There are unions with membership rolls numbering more than one million, and there are unions whose ranks are counted in doubledigits. Theoccupationsof unionmembers are also highly diverse. Clerical personnel,firefighters, nurses, welders, physicians,and university professorsall workunder union banners. Whereverworkersexperience high levels of job dissatisfaction, unionizationis a possibility. I.

THE FEDERAL GOVERNMENT

Despite the early recognition of federal employeeorganizingrights by Executive Order 10988,federal unions do not benefit from national policy as favorable as that governingprivate sector labor relations. The scopeof bargainingin federal labor relations is quite restricted; federal employeesrepresentedby bargaining units do not haveto join the union, and there is a strong no-strike policy. Excluding Postal Service employees,federal employeeunions represented about 55 percent of the 1.90 million civilian workforce in 1997(Light 1999). Between1964(the first year for whichsuch data werecollected) and 1968, federal employeeunion membership figures climbedrapidly to about half of the total civilian work force. The highwater mark was 1987, when59 percent of federal employeeswere covered by collective bargaining, agreements. But dramatic reductions in the size of federal employment have driven downthe number of employeesrepresented by unions, even thoughthe percentage represented by unions has remainedstable (U.S.O.P.M.1997:Table 14). 23

24

Chapter2

Federal labor relations policy as embedded today in the Civil Service Reform Act of 1978(see Chapter 3) severely constrains the potential influence federal unions on wages,benefits, and workingconditions. It is importantto note that federal law prohibits membership-enhancing union security provisions such as the Fair Share, whichrequires individuals whom the unionrepresents in collective bargainingto either join the unionor pay their "fair share" of unionduesfor representational expenses.This is an ideal situation for encouragingfree riders, whoenjoythe benefits of unionrepresentation in collective bargainingand grievances, but whoare not required to contribute out of their ownpaychecksfor union services. Free riders pose a serious problemfor federal unions, whichare mandatedby law to represent, equally and fairly, all members of their bargaining units, whetherthey belong to the unionor not. Duesare the primary measureof a union’sstrength andability to finance representationalandpolitical activities. Manyfederal employeesare, indeed, free riders. For example,the largest federal union, the AmericanFederation of GovernmentEmployees(AFGE),represented approximately596,000bargaining unit membersin 1997, but only about one-third of them were union members.All told, out of the approximately59 percent of federal wagesystem(blue-collar) and GeneralSchedule(white-collar) employeeswhoare represented by a collective bargaining contract, only 32 percent of themactually belong to the union and pay dues. The most notable exception to this pattern is the U.S. Postal Service. As noted in ChapterOne,postal workerswereinstrumental in early federal employee unionization efforts. Theyare the most highly organizedof all federal workers today. Theyenjoy their ownstatutory framework,whichwaswonin the aftermath of a 1970postal strike. Asa consequence,postal unions havefull private sector collective bargainingfights, with the exceptionof unionsecurity provisions and the right to strike. Postal unionmembership figures are almostequal to the proportion under contract, about 90 percent. The near absenceof a free-rider problem for postal unionsis attributable to these superiorbargainingrights and, in turn, to the unions’ greater success in winningimprovements in wages, benefits, and working conditions from management. Federal employeeunions represent employeesin at least 65 agencies, from the U.S. Departmentof Agriculture to the U.S. InformationAgency.In 1997, 59 percent of all federal civilian employeeswerein bargainingunits, including 88 percent of all blue-collar workers and 55 percent of white-collar (U.S.O.P.M. 1997: Table B). The largest numbersof represented employeesare found among civilian workers for the Army,Navy, and Air Force, and in the Departmentof Veterans’ Affairs and the Departmentof the Treasury. Ninety-oneunions represent employeesin at least one federal bargainingunit. Table2.1 showsthe unions that represent the greatest numbersof federal employees. It is useful to reviewbriefly the principal federal unionsand someof their distinctive characteristics. Thelargest federal union, the American Federationof

The UnionsToday

25

TABLE 2.1 Federal EmployeeOrganizations, Employees Coveredby Agreement,and Number of Agreements, January1, 1997 Organization American Federationof GovernmentEmployees NationalTreasuryEmployees Union NationalFederationof Federal Employees NationalAssociation of GovernmentEmployees MetalTradesCouncil InternationalAssociation of Machinistsand Airspace Workers InternationalFederation of ProfessionalandTechnical Engineers NationalAir TrafficControllers Association

No. employees covered No.collective by agreement bargainingagreements 546,468

725

133,680

50

118,285

291

52,396

146

24,229 20,392

36 67

15,411

38

14,459

2

Source:U.S.Officeof Personnel Management 1997.

GovernmentEmployees(AFGE),represents 546,468 employees. It was created by the AFL-CIO in 1932whena preexisting organization, the National Federation of Federal Employees(NFFE),withdrewfrom the AFL-CIO over jurisdictional and policy conflicts. AFGE membership today is heaviest in the District of Columbiaarea and, somewhatsurprisingly, in the Southeast, where large numbersof civilians are employedin military facilities. The head of AFGE from 1976 to 1988 was KennethBtaylock, a native of Alabama.Under Blaylock’s leadership the unionwas politically active in lobbyingand in participating in demonstrations and marches. In 1988, John N. Sturdivant, an African American,defeated Blaylockto becomethe newpresident. AFGE has substantial minority and female representation both in the rank and file and in leadership positions. Blaylock was instrumental in convincing AFGE convention delegates in 1976to approvea resolution supportingextensionof the union’s jurisdiction to military personnel. Althougha vote of the total membership later soundly defeated the resolution, merelyraising the issue wasenoughto generatea considerable amountof consternation and apprehensionin the defense establishmentand, subsequently,in Congress.

26

Chapter2

Ostensibly, the Americanmilitary wouldappear to offer a ripe environment for unionorganizers. Payis quite tow in relation to comparableworkin civilian life (althoughsomefringe benefits are superior) and workingconditionscertainly do not rank among the finest. In addition, a highly definedand rigorouslyenforced division exists between military "management"and "labor," represented by distinctions in uniformeddress, privileges, and other factors, creating a natural and sometimesintense adversarial relationship. Not of least importanceto the unions is the huge numberof potential members in the active military (over 1.4 million in 1999) and National Guardand Reserve. Organizationof the armedforces in several WesternEuropeannations (e.g., Germany,The Netherlands, Norway, Denmark,Sweden, Belgium) shows that military unionization is feasible. However,somerather serious objections may be lodged. The strike issue is of obviousimportance,as is the matter of maintaining military discipline. Othertroubling questions involveallocation of less desirable job assignments,effective representation of diverse military occupations by a single large union, and the potential scopeof bargaining(see Kovach et al. 1978; Krendeland Samhoff1977). For the indefinite future, organizing of military personnel by the AFGEor other unions has been precluded by a Departmentof Defensedirective and strong congressional opposition. Civilian workers in defense establishments maybelong to unions, but not uniformed personnel. AFGE’smajor competitor, the National Federation of Federal Employees (NFFE),has historically assumeda muchlowerprofile in its organizingand political tactics. Thecurrently independentNFFE beganin 1917as an affiliate of the AFL,but withdrewin 1931largely because of opposition to the strike and other aspects of collective bargainingas practiced by AFLaffiliates in the private sector. NFFEeven opposedthe conservative provisions of Executive Order 10988 for sometime. Theless than progressiveposture of the organizationled to steady declines in its membership until 1967, whennewleadership was elected. NFFE, like AFGE,then purged a no-strike pledge from its constitution and assumeda moreactive political posture. NFFE(118,285 employeescovered by collective bargaining agreements)is muchsmaller than AFGE,and suffers even more from the free rider problem--onlyone out of five represented workerspays dues. In 1990, the NFFEmembershipelected a woman,Sheila K. Velazco, as national president. The secondlargest federal organization is the National TreasuryEmployees Union(NTEU).NTEU is a nonaffiliated unionthat beganin the Internal Revenue Service in 1938(as the National Associationof Collectors of Internal Revenue) and has since expandedthroughout the Treasury Departmentand other federal agencies. Its aggressive organizing drives have madeNTEU one of the fastest growingfederal unionsin recent years, and it enjoys a higher percentageof duespaying membersthan most other federal unions.

The UnionsToday

27

The National Association of GovernmentEmployees(NAGE) (52,396 covered by agreements), which originally was composedmostly of veterans, especially within the Federal AviationAdministration,mergedin 1982with the Service EmployeesInternational Union, its major competitor in NewEngland. The NAGE originally organized the air traffic controllers, whosplit off during the early 1970sto formtheir ownunion, the Professional Air Traffic Controller’s Organization (PATCO),later to becomea victim of the Reaganadministration (see Chapter8). (Theair traffic controllers are representedby the National Traffic Controllers’ Association today.) The Metal Trades Council (MTC) the International Associationof Machinists(IAM)represent industrial workers in federal shipyardsand related facilities. Severalassociations(e.g., SeniorExecutives Association, Federal ManagersAssociation) represent upper-level federal employeesin lobbying the president and the Congressfor improvements in compensation and workingconditions and greater respect for the public service. Postal employees,whoofficially workfor a quasigovernmentcorporation, are representedby several organizations. The oldest, the NationalAssociationof Letter Carriers (NALC,241,300 members),was foundedin 1890, and later becamean affiliate of the AFL-CIO. Theother, larger, postal organization is the American Postal Workers Union (APWU,361,200 members), formed in 1971 through an amalgamationof five smaller organizations that represented clerks, carriers, and crafts workers. Women, whocompriseabout five percent of APWU membership, organized an intra-APWUgroup called POWER (Post Office Women for EqualRights). The ranks of the letter carriers remainpredominantly male, although a growing numberof womennowdeliver the mail. The multiple unit mergerof the APWU was promptedby the Postal Reorganization Act of 1970, whichcontained provisions permitting the National Labor Relations Boardto strongly encourageunion consolidation. Otherpostal organizations of significance today are the NationalRural Letter Carriers Association, the National Postal MailHandlers, and the National Alliance of Postal and Federal Employees. Thelatter servesprimarilyas a fraternal andcivil rights organization for black postal employees. Prospects for membershipgrowth in federal employeeunions are rather dim. Continuingtechnological changesand competition from private firms such as UnitedPostal Service and Federal Expressare steadily eliminating jobs in the postal service. The oft-suggested termination of Saturday mail delivery would permit further cutbacksin postal jobs. Since membership figures are already at 90 percent, postal unionscan expectlittle or no benefit fromattemptingto enlist represented (but nonunion)workers. Prospectsseemequally doubtful for the other federal unions, mostof which remain unable to bargain over important issues such as wagesand continue to lack union security provisions that wouldallow themto increase their membership. Far-reachingreductions in force during the early 1980sand again during

28

Chapter2

the Clinton administration (1992 to 2000) reduced the absolute numberof jobs, translating directly into membership losses and a concomitantweakeningof federal unionstrength and influence. To reverse these negativetrends, federal unions must do a moreeffective job of addressing the needs of women and minorities, whocomprise a rapidly growingproportion of the federal work force, and find a meansfor overcomingthe free-rider problem. II. STATE AND LOCAL GOVERNMENT Asof January1998, accordingto the U.S. Bureauof LaborStatistics, 30.5 percent of state governmentemployeesand 43.4 percent of local governmentemployees belonged to labor organizations (BLS.gov/news/release/union). Whenoccupation is considered,the mostheavily organizedare the firefighters. Teachersreport the secondhighest level of organization, followedby police officers, sanitation workers, welfare workers,highwaypersonnel, and hospital workers. Rapidgains havebeenregistered in sanitation, hospitals, and welfarein recent years. A. The Determinantsof State and Local Unionization Sophisticated econometricmodelshave been reasonably successful in explaining private sector unionization, assisted, froma practical perspective, by a national legal setting that places all private workersand employerson an equal footing under the National Labor Relations Act and its amendments.Theseeconometric modelsindicate that levels of unionization are influenced by wageand benefit levels, the rate of unemployment, urbanization, region, "right-to-work" laws, and various worker-and job-related characteristics. Determiningthe correlates of state and local unionizationis moreproblematic becauseof the complexlegal environment(one set of laws for federal workers and 50 for the states, plus numerous executiveorders, local ordinances,legal rulings, provisions, and practices). It is well acceptedthat organizationalmembership is closely related to the presenceand scopeof state bargaininglegislation. Thosestates with the mostpermissivelegal environmentreport the highest levels of union membership.Tables 2.2 and 2.3 showorganized state and local employees for all 50 states and the presenceor absenceof collective bargaininglaws.

TABLE2.2

Major Postal EmployeeUnions, 1999

Organization AmericanPostalWorkers Union NationalAssociation of LetterCarriers NationalRuralLetterCarriersAssociation NationalPostalMail Handlers Union

Membership 366,000 315,000 92,444 50,000

The UnionsToday

29

The relationship betweenpublic employeelabor relations policy and unionization, however,recalls the chickenand egg dilemma.This intriguing issue receives further discussion in Chapter3; for now,let it suffice to note that the relationship is reciprocal: political pressure fromunionshelps foster favorable policy outcomesfrom the state and local legislative processes, and, at the same time, union organizing drives have been aided greatly by laws encouragingor mandatingcollective bargaining. Economicmodelsare not particularly helpful for understanding or explainingpublic sector unionization. Amoreuseful approachis to treat the unionization issue in governmentas a socioeconomic-political policy phenomenon. Figure 2.1 displays a suggestive comprehensive modelthat identifies the direct and indirect effects of state socioeconomicenvironment,political culture, the state political system,and labor relations policy. Asshownin Tables2.2 and 2.3, unionizationis lowestin the Sunbeltstates such as Arizona,Arkansas,Mississippi, North Carolina, South Carolina, Texas, and Virginia. Clearly, collective bargaininglaws makea difference in levels of unionization. Evenwithin a single state the salience of law can be seen. For instance, Tennesseehas no collective bargainingprovisions for state employees; only 16 percent of thembelongto employeeorganizations. But teachers are permitted to negotiate in the VolunteerState, whichboosts the union membership level to 24.5 percent for all local governmentemployees.Similarly, only 18.9 percent of Oklahomastate employeesbelong to unions, comparedto 32 percent of local government workers;the formeremployeesdo not enjoy facilitative bargaininglegislation, while the latter do. State labor relations policy maybe the single most critical elementthat determinesthe fortunes of unions in state and local government. The socioeconomic environment in Figure 2.1 may be operationalized throughsuch variables as wealth (personal or family income),level of education, unemployment rate, urbanization, and industrialization. Wealthand high levels of urbanizationand manufacturingactivity are conduciveto unionization in industry, whichin turn is correlated with governmentunionization. Badeconomic times and governmentfiscal crises mayproduceretrenchmentand reductions in force, whichwill retard unionization. Highunemployment inhibits unionization because employeesare concernedabout layoffs and hesitate to jeopardize their jobs by joining a union. Educationlevels are likely to be inversely related to unionization, as a highly educatedworkforce earns goodpay, has moreindividualized bargainingpower,better workingconditions, and generally perceivesless need for unionization. The education effect, however,is contaminatedby relatively low education levels in the largely nonunionSouth and Southwest. Political culture shapes unionization through historical and demographic forces. Asformulatedby Elazar (1966),a traditionalistic culture, with its characteristics of elitism, paternalism,and hierarchy,shouldbe hostile to unions,as it

TABLE 2.3 Union Density' of State and Local Government Employees with Bargaining Rights, 1994 to 1996 Average w

Employees with bargaining rights State Alabama Alaska Arizona Arkansas California Colorado Connecticut Delaware Florida Georgia Hawaii Idaho Illinois Indiana Iowa Kansas Kentucky Louisiana Maine Maryland Massachusetts Michigan Minnesota Mississippi

Collective bargaining law

No. state employees

Union density

State

94,700 23,200 80,400 77,900 454,300 65,500 64,400 29,700 208,000 159,600 55,400 35,800 183,300 96,200 80,800 75,300 89,300 110,200 25,000 108,500 100,700 159,500 92,200 68,000

28.5 61.1 14.1 13.8 55.7 16.4 75.3 38.5 73.2 14.6 71.4 17.9 43.1 20.5 19.8 14.4 15.3 18.2 61.2 34.0 58.4 52.9 61.1 11.8

Alabama Alaska Arizona Arkansas California Colorado Connecticut Delaware Florida Georgia Hawaii Idaho Illinois Indiana Iowa Kansas Kentucky Louisiana Maine Maryland Massachusetts Michigan Minnesota Mississippi

No. local employees

Type

None All None None All None All All All MARTA employees All Teacherslfirefighters All Teachers All Teachers None None All Educationlpark police All All All 86,500 None

131,400 35,300 150,000 68,400 1,202,600 140,600 112,800 10,900 543,500 248,900 13,400 45,500 426,600 168,800 103,800 102,400 128,400 155,700 38,000 207,300 194,700 336,000 206,900

0

Union density 34.7 46.5 27.9 20.9 64.3 36.8 70.6 46.9 43.4 17.7 83.7 30.5 56.3 36.2 47.5 29.9 28.2 23.5 61.4 61.2 66.5 65.5 64.4 14.2

3

3

The Unions Today

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Chapter2

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, I State Political System

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’l FIGURE 2.1 A comprehensive modelof state and local government unionization.

certainly has beenin the South. A moralistic political culture is moreconducive to unions in its emphasison equity and "doinggood." The individualistic political culture viewspolitics as a marketplace.Unionsface greater obstacles here than in moralistic states, but throughpolitical action they can winbargaining rights. Political culture maybe related to ideology.States characterizedby political liberalism are morefavorable towardunions than are politically conservative states. Obviously,political culture and socioeconomicenvironmenthave a strong regional bias. A brief look at unionizationin the Sunbeltstates demonstratesthat conclusion. Generally speaking, the Sunbelt states (those below the MasonDixonLine extending to the WestCoast) do not have the characteristics that havebeen associated with unionization in other regions. AlthoughSunbelt growth has been accompanied by gains in urbanization and industrialization, a healthy overall business climate, and massiveinmigration of people from other regions and countries, unions in neither governmentnor industry have done an effective job of attracting membersand winningbargaining rights. Twospecial factors seemto be operatingin the Sunbeltto discourageunionization: the political culture and unionresistance tactics by employers.Thelatter probablyis a product of the former. In order to preservethe values comprisingtraditional political culture, employers in the Sunbelt havebecomehighly sophisticated in applyingunionresistance tactics. Some,such as the textile giant J. P. StevensCompany, haveconsistently employedextra-legal meansto fight off the unions (Stevens once was charged with more than 1,200 NLRA violations and convicted in over 100 cases by the National Labor Relations Board before reaching an accommodation with its unions). Mostfirms and manygovernments,however,have practiced the more "acceptable" union suppression tactics of "positive personnel management," which involves offering competitive wagesand benefits, good workingcondi-

The UnionsToday

33

tions, and participative decision-makingprograms. Whateverrubric management assigns to the activity, unions tend to perceive it as "union-busting." In someof the Sunbelt states, business interests have united with public employersto keep unions out, even at the price of losing new industry (Stepp 1974; Stucker 1980). Often, management consulting firms are retained to direct the employer’santi-union strategies and train employersin "union-avoidance" tactics. Althoughthese strategies and a predominantly anti-union climate are also in evidencein other portions of the UnitedStates, they are strongest in the Sunbelt. Large gains in public sector union membershipand influence do not seem likely soon, except in rapidly growingstates wherepermissivelegislation is in place, such as California and Florida, and perhaps NewMexico.In most of the Sunbelt, a vicious cycle seemsto be present in whichthe traditionalistic political culture and the absence of public union strength diminish the chances of new collective bargaininglegislation, while in the absenceof a favorable legal environment union membershipgains remain arduous. Nonetheless,there is somebasis for not writing off all prospects for union growthin the region. The area continues to prosper economicallyand to develop characteristics similar to geographicareas with morehighly unionizedstates. In addition, surveys have discovered a strong reservoir of potential support for unions in the region (Kochan1979), particularly amongAfrican Americans.The problems,however,remain substantial. Unionsmust find a wayto break through the barriers of the traditionalistic political culture and adapt to the conditionsand normsof the region. Lookingat Figure2.1, it can be seen that the state political systemis linked to the socioeconomicenvironmentand political culture. It encompassesfactors such as executive-legislative relations, legislative professionalism, interparty competition,and the political and economicstrength of private sector unions. For example,competitive two-party states should be moreconduciveto unionization becauseunion interests are morelikely to receive representation. Similarly, a strong DemocraticParty in the three branches of state governmentshould facilitate unionization in government;traditionally, Democratshave been more "prolabor" than the "pro-business" Republicans. Why,today, are workers in governmentorganized in muchlarger proportions (about four to one) than workersin private sector employment? There are several major reasons. Onereason is the legal environment,which, with the exception of the nonbargaining states, is more amenableto signing up members and keeping themon the rolls than the private sector legal environmentunder the NLRA.Second, most public employeesare protected by a blanket of civil service rules and regulations that prevent management, even if it so desired, from firing themfor engagingin union activities. Third, a primeobjective of unions

34

Chapter2

is greater workerparticipation in decision making,and there is evidence that managersin governmentorganizations are more willing to share authority and decision makingthan their counterparts in business (Freeman1996). Part of this willingness is no doubtassociated with the prevalenceof highly educatedprofessional and white-collar employeesin manygovernmentorganizations. Finally, governmentmanagershave muchless to gain from actively opposingunions than business managers. B.

EmployeeOrganizations in State and Local Government

Public employeeorganizations maybe categorized according to several characteristics. Thefirst importantdistinction is betweenassociations and unions. State and local governmentemployeeassociations were organized between 1920 and 1950, primarily as mutualbenefit and service-providing organizations (Stieber 1973:8). These early organizations provided credit unions, group benefit plans for health and life insurance, and other memberservices; someeven handled grievances. Althoughmost associations were concernedwith serving their members and, in somecases, enhancingthe status of various government-relatedprofessions, they also engagedin legislative and executivebranchlobbyingactivities in efforts to win favorable treatment for their members.Unlike early employee associations, unions accepted collective bargaining from the beginning as the fundamental meansfor winning improved wages, benefits, and working conditions from governmentemployers. A secondtype of categorization involves the nature of the employer.Some of the public employeeunions are all-public, such as the giant AmericanFederation of State, County, and Municipal Employees(AFSCME), while others are knownas mixedunions because they claim membershipin governmentand industry and, increasingly, in the nonprofit sector as well. Examplesof mixed unions are the Service EmployeesInternational Union(SEIU)and the International Brotherhoodof Teamsters(IBT). Third, unions maybe distinguished the functional coverageof their organizing activities. Some,like AFSCME, are general-purposeorganizations, whichseek out membersat all levels of governmentand in almost any occupation. Others, such as the International Association of Fire Fighters (IAFF),are functionally specific, concentrating membership a single governmentjob category. Moststate and local governmentprofessional associations initially opposed collective bargaining and the other trappings of unions. As observedby Steiber (1973:123), however,"Oncea collective bargaining law has been enacted, associations almost invariably haveadaptedto it by presentingthemselvesfor certification as employeerepresentatives, participating in negotiations, and becoming parties to written agreements."

The UnionsToday

35

By the early 1970s, there was a markedconvergencein goals, strategies, and tactics amongmanyof the associations and the unions. Someof the state and local associations have maintainedtheir independencewhile functioning as unions. Other associations have mergedwith unions; for instance, the Illinois State EmployeesAssociation mergedwith SEIUas did the California State Employees Association. The MassachusettsState Emplo’yeesAssociation joined with the National Association of GovernmentEmployees(NAGE),and the NewYork, Ohio, Arizona, and Mississippi civil service employeesassociations mergedwith AFSCME. But most associations remain predominantly service-oriented lobbying organizationsthat do not engagein collective bargaining. Examplesinclude the South Carolina and North Carolina state employeesassociations. Some22 of the independent,old-style state associations are allied in a federation called the Assembly of GovernmentEmployees (AGE). Althoughthere has beensomedebate on the relative effectiveness of independent unions versus unions affiliated with national labor organizations, it is very difficult to sort out key empirical dimensionsof organizational influence and power. However,the consensus seems to be that independentorganizations can be as effective or even more successful than affiliated organizations, depending on such factors as leadership, group cohesiveness, communityacceptance, and the general labor environment. Competitionover membersand collective bargaining recognition led to somerather severe interunion conflicts during the late 1960s and early 1970s (Spero and Capozzola 1973:32-37; Stieber 1973:89-100). Today, however, stable and comprehensivelegal environmentin the majority of states along with formal nonaggressionagreementsbetweensomeof the larger unions have helped alleviate overt conflict. TheAFL-CIO’s Internal Disputes Plan has been particularly useful in assuaging union confrontations over organizing new employees (Stieber 1973:108). Underthe plan, complaints against fellow AFL-CIO unions are broughtto a tribunal, whichrenders a binding decision on organizingissues. The next section examinesthe principal unions in state and local government, beginning with general-purpose organizations and then focusing on functionally specific groups(see Table2.4). 1.

General Purpose Unions

The paramount general-purpose organization in government is AFSCME. Membership estimates were 1.3 million in 1997. AFSCME is the next-to-largest AFLCIOaffiliate, behind the International Brotherhood of Teamsters. Although AFSCME’s greatest membershipgains were registered during 1962 to 1978, the union continues to grow, especially through mergers with other public sector unions. Its strongest presenceis in the clerical, health care, technical, professional, and law enforcementfields. Internally, AFSCME is organized through an "international" office and

36

Chapter2

TABLE 2.4 Membership of Largest State and Local Employee Organizations Organization NationalEducationAssociation American Federationof State, County,andMunicipal Employees AmericanFederationof Teachers ServiceEmployees International Union FraternalOrderof Police InternationalAssociation of Fire Fighters

Membership 2,200,000(1997) 1,300,000(1997) 1,000,000(1998) 589,0001(1999) 336,0002(1999) 270,000(1998) 225,000(1998)

1Publicsectormembership. 2Nonprofit sectormembership.

its executive committee,63 regional councils, and numerouslocals that report to the councils. The president (Gerald McEntee,elected in 1981followingWurf’s death) appoints his ownstaff, whichperformsexecutive and judicial functions for the organization. Thehighest policy-makingbodyis the international convention, held biennially. The locals elect their owndelegates, with the numberof delegates determinedby total membership.Betweenconventions,policy is developed and implementedby the executive committee. Dues are apportioned among the national, local, and council (regional) organizations. Duesincreases are tied to averageearnings increases of full-time state and local governmentemployees, as calculated by the Bureauof the Census. Underthe leadership of the late Jerry Wurf, AFSCME wagedsomevicious membership and recognition battles with other general-purposeunions within the AFL-CIO (especially with SEIU,IBT, and Laborer’s International Union(LIU)). AFSCME has maintained good working relations with other predominantly public sector unions. Mutualgoals are pursued through the Coalition of American Public Employees(CAPE)which was created in 1973 as a confederation composed of AFSCME, the National Education Association, the National Treasury EmployeesAssociation, and the AmericanNurses Association. AFSCME chose to participate in the AFL-CIO’s ownpublic employeeconfederation, the Public EmployeesDivision (PED)in 1985. PED,whichhas about 29 unions as affiliates, was organized in 1974to aid AFL-CIO public sector unions in collective bargaining, public relations, and the resolution of interunion disputes. AFSCME is generally recognized as the most progressive, outspoken, and politically active public employeeunionin the UnitedStates. It has not hesitated to take positions on salient questionsof domesticand foreign policy or to enter the electoral arena with large campaigncontributions to friendly candidates and massiveget-out-the-vote drives. Its principal political action committee,PEOPLE

The UnionsToday

37

(Public EmployeesOrganizedto PromoteLegislative Equality), typically ranks as one of the top five campaignfundraisers in national elections. AFSCME’s primarypurposein muchof its political activity has beento legitimize andexpand the bargaining rights of public employees(Masters 1998:316). Within its own ranks AFSCME usually has taken care to ensure proper representation of women and people of color, whohold a numberof important national offices. There are three other strong general-purposeorganizationsthat operate in government, all of themmixedunions with a majorpresencein the private sector. Two(SEIUand LIU) are AFL-CIO affiliates; the third (IBT) was expelled the AFL-CIO on corruption charges. The fast growing SEIUhas concentrated its organizingefforts in government andthe nonprofit sector in hospitals, nursing homes,andother health care facilities (it is the largest health care union), social service agencies, and nonteachingpersonnel in the schools. Approximatelyhalf a million of its membersare in governmentemployment.SEIUis especially strong in California, whereit rivals AFSCME in strength. SEIU’smajor organizing campaignsin the 1990sfocusedon health care institutions, using the themes of quality health care and consumerprotection within the rapidly changinghealth care industry to attract newmembers. The LIU’s membershipbase in the private sector is composedpredominantly of skilled and semiskilled construction workers. The LIUhas had some successin organizingblue-collar local government workersin streets, sanitation, and public works, and federal mail handlers. The 425,000-member union claims aboutone-third of its ranks in the public sector. The Teamsters, like the LIU, have focused their efforts mostly on bluecollar employeesin the public sector. Theyhave been a strong competitor of AFSCME in some local governmentjurisdictions. The IBT has achieved some degree of organizingsuccess in a widevariety of occupations,including clerks, corrections officers, police and firefighters, and health care workers.However, a very small percentageof IBT’stotal membership of 1.4 million is in government employment. 2.

Functionally Specific Organizations

A great amountof unionization in governmenthas occurred along professional lines, similar in somerespects to craft organization in the private sector. The majororganizationsin education,police and fire protection, health care, and miscellaneous governmentprofessions are examinednext. (a) Education--Primary and Secondary. Public education is the largest public employerby far in state and local government--some 5.1 million individuals workin public education. It is also the mostexpensiveof all state and local services, consumingsome$400billion in expenditures in 1998. Twoorganizations have dominatedthe union movementin education: the

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independent National Education Association (NEA)and the AFL-CIO affiliated AmericanFederation of Teachers (AFT). The NEA,under national president Robert Chase, claimed a national membership of about 2.4 million in 1998, with its primarystrength in midsizedcities and suburbs. Eighty percent of its members are classroomteachers, a large percentageof themin suburbanschool districts. The AFT,with a membership roll of about 980,000,is concentratedin large cities such as NewYork, Boston, Minneapolis, and Denver. The AFThas presented itself as an aggressive unionseeking collective bargainingfights for teachers since its inception in 1919. In contrast, the NEAwas born in 1857as a professional organizationopen to both teachers and supervisory personnel. Eventhough manyNEAlocals function as unions today, and the national organization has been officially labeled a "union" since 1976by the Bureauof LaborStatistics and the Internal RevenueService, a large portion of the membersare found in locals that do not engagein, nor seekto enter into, collective bargainingrelationships. Early in its history the NEA proclaimedthat discussions on teachers’ salaries with the local school board or superintendent were "unprofessional." The national organization’s attitude changed,however,with the 1961election of New YorkCity’s United Federation of Teachers(an AFTaffiliate) as teacher bargaining agent for the City--a painful loss for the NEA.Soonthereafter the NEA leadership madea numberof policy changes, including support for "professional negotiations" and "professional sanctions" against arbitrary or unethical school managementpractices. The NEAalso began sponsoring state legislation for teacher bargaining. Both organizations chalked up steady gains in membershipduring the 1960s. The rise of unionization in education has been related to a numberof factors: an increase in maleteachers, declines in teachers’ real dollar incomes, teacherattitude changesin responseto the social forces that buffeted the nation’s schools during the 1960s and 1970s, and intense competition betweenthe NEA and AFT. Althoughthere is no doubt that the NEAand AFThave becomemorealike in their strategies and activities, there remainimportantdifferences that have stifled recurring attempts to merge.Beginningin 1969, formal mergerdiscussions wereheld and someNEA and AFTlocals did join ranks (e.g., in Flint, Michigan), but the national leadership of NEAeventually backedout for three majorreasons: AFL-CIO affiliation (the NEAdid not desire it); the compositionof bargaining units (NEAwantedto retain supervisory personnelin somelocals); and, in general, moreconservative NEApolicy positions on a numberof issues (Stem1979: 63-64). By1977, talks of mergerhad ended. Theorganizations officially decided to go their separate ways, with the NEAcontinuing to limit its membership to professional educationpersonnel, and the AFTelecting to pursue the organization of teachers’ aides, paraprofessionals,library workers,cafeteria workers,bus driv-

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ers, and noneducationemployeesin civil service and health care (Stern 1979: 66-67). Drawingthe two organizationse~’en farther apart wasthe rancorousconflict over President Carter’s proposed Departmentof Education in 1979. The NEAsupported the newdepartment(whichwas subsequentlycreated), while the AFT,led by late President Albert Shanker and encouraged by the AFL-CIO, fought it adamantly.Duringthe 1980sthe two organizations continued to compete for newmembersand to raid the others’ jurisdictions for representation fights (see Cooper1988). But on several occasions in the 1990s, efforts were undertakento bring the two organizationstogether, to no avail. AFTPresident A1Shanke.r died in February1997. Shankerwas a charismatic figure whosepersuasive and respected voice influenced education policy debates from the WhiteHouseto the schoolhouse.His argumentsfor higher national educationstandards and other reformsreceived muchattention during the 1990s. Replacing Shankeras AFTpresident was Sandra Feldman. Feldmanand NEAcounterpart Robert Chasehelped generate a serious reconsideration of merger in 1998. An agreement negotiated by the AFT-NEA leadership wouldhave mergedthe two national organizations and encouraged local unionaffiliates to join forces withone another,whilerespectinglocal preferences. However,at the national convention in NewOrleans in 1998, NEAdelegates voted downthe proposal, generally for the samereasons that had halted earlier efforts. (b) Higher Education. Collective bargaining by college and university faculty in the UnitedStates wasinitiated in 1967by the AFTat the U.S. Merchant MarineAcademy.In 1999, approximately 130,000 professors were represented by faculty unions. Thisamountsto about25 percentof all faculty in higher education and involves 20 percent of all colleges and universities. Two-yearcolleges report the highest level of organization(40 percent), followedby four-year colleges and research universities. Abouttwo-thirdsof organizedfaculty are in colleges anduniversities, includingthe California State Universitysystem,the State University of NewYorksystem, Rutgers University, and the University of Connecticut. The major faculty unions are NEA,AFT,and the AmericanAssociation of University Professors (AAUP).The NEAfirst dabbled in organizing college faculty in 1870with the creation of a higher educationunit, whichwas dissolved during the 1920s, but recreated in 1943. After an early emphasison teacher’s colleges and communitycolleges, the NEAmovedstrongly into more comprehensive higher educationinstitutions in the early 1970s(Laddand Lipset 1973: 6-7). The AFThas focusedits energies on organizingthe nation’s two-yearcampuses. The AAUP,like the NEAin elementary and secondary education, existed for manyyears as a professional association not interested in collective bar-

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gaining or other unionlike activities. The AAUP was foundedin 1915to help protect academicfreedom and tenure rights and to advancefaculty salaries through informationgathering and other modestlobbying activities. Campusorganizing successes by competinggroups (the AFTand, ironically, NEA)forced AAUP to pursue collective bargaining. Since the collective bargainingstrategy was officially adopted in 1972, however,AAUP has suffered losses in membership primarily due to moreeffective organizationand representationby its rivals, dropoutsamongfaculty at noncollectivebargaininginstitutions, and the negative fallout of the U.S. SupremeCourt’s Yeshivadecision (discussed below). Nonetheless, AAUP has demonstratedmoderatesuccess by organizing faculty at fouryear and graduateinstitutions, whereit is generally viewedas a moreprestigious organization than NEAor AFT.ManyAAUP chapters continue to eschewcollective bargaining. A great majorityof the organizedinstitutions (over 90 percent) are publicly supported colleges and universities. The predominanceof faculty organization in public institutions was ensuredas a result of the Yeshivadecision of the U.S. SupremeCourtin 1980. TheCourtruled that faculty at private colleges are "managers" under the National LaborRelations Act, and therefore not protected for collective bargainingpurposes(NLRBv. Yeshiva 1980). Yeshivahas directly resulted in the denial of bargainingfights at several institutions, includingthe University of Pittsburgh and Boston University. Management responsibility, according to the Court, is found in the faculty’s "absolute authority over such matters as grading, teachingmethods,graduationrequirements.... student discipline .... academiccalendars, and course schedules." So far, Yeshiva thinking has not damaged unionizationin state and locally supportedinstitutions, although similar argumentshavebeenextendedto other categories of professionals, including government-employed attorneys and licensed practical nurses. A numberof studies have attemptedto explain the reasons for the rather abrupt reversal of scholars’ historical aversionto unionism.Faculty in American nigher educationhavelong valued a tradition of high social status and professional independence,two normsin deepconflict with the egalitarian and collective values associated with those occupationsmostgiven to unionization (Ladd and Lipset 1973:2-4). Conditions changedvery rapidly in academeduring the late 1960sand early 1970s, however.Lowsalaries becameless acceptable, and threats to the sacrosanct tradition of academictenure arose through reductions in force at somefinancially hard-pressedinstitutions. In addition, manyhighereducationinstitutions underwenta metamorphosis in size and missionthat stimulated faculty organization. For example,formerteachers’ colleges wereupgraded to major state universities with a concomitantchangein the administration’s research-related expectationsfor faculty. Otherinstitutions had grownso large, so fast, that seeminglyvast and unresponsiveadministrative bureaucracies had suddenlyappeared. Sucha strong degree of administrative centralization led

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manyfaculty members to seek a unified and collective voice of their own.Finally, professors, perhaps morethan any other professionals, found themselvescaught up in the social turmoil of the 1960s, muchof which was concentrated on or aroundthe campus(Laddand Lipset 1973:4). It should be noted that almost all organizedcollege and university faculties are in states that are characterized by a legislative environmentconduciveto faculty unionization and collective bargaining. Rarely do faculty organize into unions in the absence of permissive legislation. Interest remainedstrong in faculty unionization in the 1990sas newrounds of downsizingbuffeted colleges and universities and pushedthemtowards a business modelof operations run by administrators acting like corporate CEOs.An interesting and related developmenthas beena drive for unionization and collective bargainingrights for graduate teaching assistants, whoengagein part-time teaching and research but whoare paid far less than regular faculty. The first graduate student association to win recognition was at the University of Wisconsin (Madison)in 1969. Since then graduate assistants have successfully organized at 26 other public campusesin California, Illinois, Indiana, and Michigan(Aronowitz 1998). Long-sufferinggraduate assistants went out on strike just before final examsin spring 1996at prestigious Yale University, protesting their low pay and poor benefits. (c) Protective Services. The most highly organized of all municipal employeesare the firefighters. A large majority belongto the International Association of Fire Fighters (IAFF), although AFSCME does represent a small number and various independentorganizationsspeakfor firefighters in somejurisdictions. Withits roots in early social and benefits societies for firefighters, the IAFFwas foundedas an AFLaffiliate in 1918. It has a highly decentralized structure with a small national headquarters and staff in Washington,D.C., which functions mainlyto distribute informationon salary, benefits, and other job-related topics to the locals, providetechnical assistance for collective bargaining,andfacilitate congressional lobbying activities. The IAFFlocals have a high degree of autonomyin their activities and in their bargainingrelationships with local governments. About 225,000 memberswere reported by the IAFF in 1999, including a growing number of emergencymedical personnel. Unlikethe firefighters, police officers are representedby several national organizations. Somelocals are affiliated with general-purpose unions AFSCME (whosefirst police affiliate waschartered in 1937in Portsmouth,Virginia), SEIU, and the Teamsters, although their membershipfigures are relatively low. The principal police organizations are functionally defined. The International Union of Police Associations (IUPA), whichis in essence an "association of associations," is affiliated with the AFL-CIO.The IUPAserves as a coordinating body for local, independentpolice associations. Its membership is heaviest in the south-

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ern states. TheFraternal Orderof Police (FOP)is the oldest existing police organization, foundedin 1915. Its 270,000 membersare concentrated in the northcentral and southernstates. Othernational organizationsinclude the International Brotherhoodof Police Officers (IBPO), a NAGE affiliate created in 1964; the National Unionof Police Officers (NUPO),foundedin 1969as an SEIUaffiliate; the small AmericanFederation of Police (AFP);and the National Association Police Organizations(NAPO),whichis a coalition of police unions and associations that advancesmembers’interests through legislative and legal advocacy, political action, and education. Foundedin 1978, NAPO reported representing 4,000 unions and associations and over 220,000sworn officers in 1998. (d) Health Care. The nation’s burgeoning health care industry presents an enticing organizingtarget for the unions. Nurses, technical employees,maintenance workers,and clerical workersin hospitals, clinics, and other health care facilities face uncertainties (e.g., facility mergers,privatization) and experience dissatisfactions (e.g., toughworkingconditions) that makeunionslook attractive. "Professional" health care employeesin proprietary and nonprofit institutions were excluded from collective bargaining coverage until an amendmentto the NLRA in 1974 unleashed intense organizing activity by the AmericanNurses Association (ANA),AFT, United Nurses of America (UNA),SEIU, and other unions. The UNA,an AFSCME affiliate, represents 360,000health care employees, 76,000 of whomare nurses. SEIU,which has been concentrating on organizing hospital, nursing home,and health maintenanceorganization (HMO) chains, represents about 450,000 employeesin the United States and Canada. In January 1998, SEIU’shealth care profile was elevated by 120,000 new membersthrough a merger with the National Health and HumanServices Union. Thehealth care sector represents a ripening fruit for organizingas the nation’s population continues to age, with growingnumbersof people entering nursing homes,long-termcare facilities, and other health care institutions. Even physicians, looking for an antidote to the perceivedintrusions of HMOs, managed care organizations, and insurance companiesinto doctors’ pay and autonomy with patients, havebeenactively exploringunion representation. In mid-1999,the AmericanMedicalAssociation voted to form a labor union on behalf of 700,000 profoundlydiscontent practicing physicians. A key issue, however,is the status of private and nonprofit sector physicians under the NLRA.Are they "employees" of HMOs,for instance, and therefore "employees" who mayengage in collective bargaining?Or, like professorsin private colleges and universities, are they "supervisors" whoare excluded from NLRA coverage? Eventually, this question mayhave to be resolved by the U.S. SupremeCourt, which ruled in 1994that licensed practical nurses are supervisors, and therefore lack collective

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bargainingrights, if they direct the activities of less-skilled workers(NLRBv. Health Care and Retirement Corporation of America1994). (e) Other Public Employee Organizations. The growth industry of prisons attracted the attention of organized labor in the 1990s. AFSCME represents approximately75,000 correctional officers and thousands moreare represented by state organizations. The National Association of Social Workers(NASW) was established 1955 through a merger of several professional organizations. NASW represents state, local, and nonprofit social service employeesthroughoutthe UnitedStates. Finally, bus drivers and other local governmenttransit workersare represented by three major unions: the Amalgamated Transit Union(ATU),the Transport Workers Union (TWU),.andthe United Transportation Union (UTU).

IlL PROSPECTS FOR FUTURE GROWTH Whenunionstrength is measuredby the proportion of potential public and private sector members whoactually belongto a union, the UnitedStates trails all other industrialized or"developed" countries. Unionstrength has declined significantly in the private sector since 1954and has droppedslightly in government since its peak in the mid-1980s. Union membershiphas also declined in most other industrialized countries since 1985, but labor remains politically strong, particularly in Germany,the Netherlands, and the Scandinaviancountries. The membership losses appear to be the result of structural (economic)changes, with reductions in the size of heavily organizedpublic sectors, the shift to service and information-relatedemployment in the private sector, and the rise in size of the temporaryand part-time workforces. There are no convincing indications that the declining fortunes of unions worldwideare poised for a reversal. Indeed, the prevalence of manyof the samenegative patterns for organized labor that have been observedin the United States appears to be observable across the globe. In the U.S. federal sector, the situation is not nearly so desperate for the unions. However,downsizinginitiatives continue to shrink membershipnumbers and financial resources of most federal unions, especially those that represent employeesin the Departmentof Defense. At the end of FY1998, federal employmenthad fallen to its lowest level since 1961. Consideringthe modestincentives for joining a unionand payingdues, the inability to negotiate compensation levels and manyworkingconditions, negative public opinion toward unions, and the privatization movement, the forecast is for hard times ahead. It will take new, more permissive labor laws to boost the fortunes of federal employeeunions, and such is not evident in the foreseeable future. In state and local government,the picture is mixed.Theimportanceof state

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collective bargaininglaws in encouragingunionizationis illustrated by the leaps in membership followingnewlegislation in 1984in Illinois, Ohio, and California and in 1992in NewMexico.Perhaps other states with restrictive labor policy environmentswill enact morepermissive legislation in the next few years, but several factors militate against it. Asin the case of the federal sector, moststates and localities are operatingwithin a context of limited governmentgrowth,smoldering taxpayer revolts, and a citizenry somewhathostile towardpublic employees. Management resistance to state and local union demandshas stiffened. Reductions in force have depleted union ranks in somejurisdictions. AndSunbelt states remainhighly resistant to unionization. Still, unlike in industry, no state or local employerhas yet figured out a wayto "bust" or decertify a union short of terminating a public service or contracting it out. Unionswill remain powerfulpolitical and economicforces in manystate and local settings duringthe next decade, and fully deservingof study and understanding.

3 The Legal Environment of Public Sector LaborRelations

The legal basis for governmentlabor relations and collective bargaining is a hodgepodgeof statutes, ordinances, attorney general opinions, executive orders, and court decisions. The federal governmentdoes not have a single policy governing labor-management relations for all of its workers, and to say that state and local governmentlabor policy varies widelyis to be guilty of a gross understatement. Somestates continue to prohibit collective bargaining in government, while in others, virtually all civil service employees are in a bargainingunit. Most states forbid public employeesto strike, but somepermit strikes under certain conditions. Suchextremelabor relations diversity is in stark contrast to other industrialized nations, whereina single, national collective bargaininglaw prevails for all public workers. This chapter describes the legal environment of public sector labor relations in the federal, state, and local sectors, and introduces the majorinstitutions and political actors that establish the legal context, includingthe president, Congress, federal and state courts, state and local legislative bodies, governors,attorneys general, and the public. After a brief examinationof the right to form and join unions (whichis shared by all public employeesin the UnitedStates), the federal context of labor relations is described, including the 1978Civil Service Reform Act. The remainderof the chapter focuses on the state and local legal environmentsand legislation for unionization and collective bargaining. I.

THE RIGHT TO FORMAND JOIN UNIONS

Before 1967, public employeeassertions of the right to form and join unions were frequently met by words similar to those of Justice Holmesin the case of McAuliffe v. City of NewBedford (1892). Holmesallowed that while the petitioner in the case, a formerpolicemanwhohad beenfired for engagingin electoral activities, "mayhavea constitutional fight to talk politics .... he has no constitutional right to be a policeman.... There are few employmentsfor hire in which 45

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the servant does not agree to suspendhis constitutional right of flee speech.... The servant cannot complain as he takes the employmenton the terms which are offered him." AlthoughMcAuliffedid not directly address the issue of freedomof association, the case wasinfluential because it invited "judges to analyze governmental restrictions on public employees’First Amendment rights in a curious way; that is, as if public employeesweredifferent fromeveryoneelse; as if, with respect to public employees,governmentis especially empowered to restrict the political and civil rights the rest of us enjoy" (Wellingtonand Winter1971:70). IO.other words, governmentcould condition employmenton forfeiture of the employees’ right to organize, thereby restricting application of the First Amendment right of association to workers in private employment.Holmes’line of reasoning was cited as late as 1963 by the SupremeCourt of Michiganin the case of AFSCME Local 201 v. City of Muskegon(1963). In upholding the constitutionality of regulation issued by Muskegon’s chief of police that prohibited labor unions, the court held "that there is no provisionof either State or FederalConstitutionwhich gives to individuals the right to be employedin gdvernmentservice or the right to continue therein" (Shaw 1972:21). Denial of the right of governmentworkers to form and join unions was buttressed by the sovereignty doctrine. A sovereign government,the argument goes, has the powerto fix through law the terms and conditions of government workincluding, presumably, organizational membership.This poweris unilateral, and it cannot be given awayor shared through negotiations with a public employeeorganization. But the counterpoint to the sovereignty argumentis a strong one. As noted by Wellingtonand Winter(1971:71-73), the right of Americans to join together freely in what Madisoncalled "factions" has long been recognized as honoring an inherent tendency characterizing a free society, and constituting a necessary safeguardagainst a tyranny of the majority: Organizationsbasedon mutualeconomicinterests, such as trade associations or labor unions, are paradigmsof associations, factions, or--as they are usually called today--interest groups. Such groups are absolutely necessary to the survival of political democracyin the United States. Theyare the meansby whichindividuals makeclaims upon government;thus they are important to the structure of our federal system ¯.. the point is that unless individuals can freely bandtogether to advocate whatever they please, we shall not have democracy. These argumentsare interesting in their ownright, but what is important is howthey havebeenapplied by the federal arbiters of constitutional disputes-the courts. Since 1967, the federal courts have ruled that the First Amendment’s freedom of association clause outweighs governmentsovereignty claims. The first in a long line of cases is Keyeshianv. Boardof Regents (1967), in which the U.S. SupremeCourt held that public employmentcould not be predicated-on

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relinquishing the right of free association. Otherimportantdecisions include Atkins v. City of Charlotte (1969), wherea U.S. District Court invalidated a North Carolina state law, whichprohibited law enforcementpersonnel and firefighters from joining or being membersof labor organizations, because it violated the right of association and the Fourteenth Amendment’s Equal Protection Clause; and Letter Carriersv. Blount (1969), a case in whicha federal district court found that a federal statute and oath intended to prevent postal workersfrom asserting the right to strike, and fromjoining any organizationclaimingthe right to strike, violated the First Amendment. The landmarkcase supporting the right of public employeesto organize and join unions, however,is McLaughlinv. Tilendis (1967). In this case, one CookCounty,Illinois, teacher was dismissed and another one’s contract was not renewedbecauseof their alleged association with the local chapter of the American Federation of Teachers. The Seventh Circuit of the U.S. Court of Appeals held that these actions violated the employees’right of free association, and that they unjustly interfered with the employees’right to due process underthe Fourteenth Amendment. The court concludedthat "unless there is someillegal intent, an individual’s right to form and join a union is protected by the First Amendment." He or she cannot be disciplined or dismissed for joining a union or advocating that others join. Today,then, the constitutional right of public employeesto organize and join unions is protected by the courts. The sovereignty-based"doctrine of privilege," whichgranted public employeesfew rights vis-h-vis their employer,has been discarded by the courts. It is nowacceptedthat public employeesalso have the rights (1) to engagein protectedpolitical activities, and(2) to receivea written statement of reasons for dismissal and/or a formal hearing (Cleveland Boardof Educationv. Loudermill1985). In public employee/employer relations generally, the U.S. SupremeCourt’s reasoning in Pickering v. Boardof Education(1968) prevails: the state’s interest in restricting public employees’ First and Fourteenth Amendment rights mustbe significantly greater than its interests in limiting similar rights for members of the general public. In this sense, public employeesenjoy greater constitutional protection than private sector workers. However,the courts have held that public workershave no constitutional right to force their employersto bargain collectively, unless there is legislation that mandatesbargaining (Smith v. Arkansas State HighwayCommissionEmployees Local 13151979). In Indianapolis EducationAssociation v. Lewallen(1969), the same Seventh Circuit Court ruled shortly after McLaughlinthat "There is no constitutional duty to bargain collectively with an exclusive bargainingagent. Such duty whenimposedis imposedby statute." However,nothing prevents a public employerfrom voluntarily engagingin collective bargainingin the absence of enablinglegislation. Private sector labor relations and collective bargainingare governedby the RailwayLabor Act of 1926 and the National Labor Relations Act of 1935 (also

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knownas the Wagner Act), as amendedby the Labor ManagementRelations Act of 1947 (the Taft-Hartley Act) and the Labor Management Reporting and Disclosure Act of 1959 (the Landrum-GriffinAct). In the Railway Labor Act, Congresssought to establish labor-management peace in the railroad industry by requiring firms to negotiate with bargainingrepresentatives selected by railroad employees.Underthe NLRA, whichprovides coverageto all other private sector workers, labor policy is administered by the National Labor Relations Board, whichinvestigates and adjudicates allegations of unfair labor practices and administers matters concerning the composition of the employeebargaining unit and selection of the union to represent the bargainingunit. Since passageof the WagnerAct, official national policy has beento encourageprivate sector workers to formand join unions and engagein collective bargainingwith their employers. Taft-Hartley balances the WagnerAct by imposingcertain restrictions on union procedures and conduct, such as prohibiting compulsory union membership. Landrum-Griffinrequires unions to meet various internal operating standards, such as guaranteeingtheir members’ rights of free association and speech,maintaining certain financial records, and accountingfor expenditures. The NLRA specifically exempts public employees. Section 2 (2) of the Taft-Hartley amendmentto the NLRA states that "The term ’employee’includes any person acting as an agent of an employer,directly or indirectly, but shall not include [emphasisadded]any state or political subdivision thereof." II. LABOR RELATIONS IN FEDERAL EMPLOYMENT:THE LEGAL BASIS Althoughemployeeorganizations have existed in federal employmentsince the 1830s, it was 1960 before any union was formally recognized by a federal employer (with the exceptions of the TennesseeValley Authority, BonnevillePower Administration,and a handfulof smaller entities). Furthermore,no statutory basis existed for federal employeecollective bargaining before passage of the Civil Service ReformAct of 1978. The PendletonAct of 1883established the federal merit system, and gave Congressthe authority to regulate the wages, hours, and workingconditions of federal workers. It did not grant a collective voice for employees.As workers began to organize extensively anyway, two presidents (Theodore Roosevelt in 1902 and WilliamHowardTaft in 1906) felt obliged to issue executive orders to preclude employeeorganizations from collectively lobbying Congressfor improvedwages, workingconditions, or other matters, upon threat of dismissal. These"gag rules" stifled federal unionactivity until 1912, whenpassageof the Lloyd-LaFolletteAct guaranteed federal workersthe right to petition Congress and to join labor organizations, as long as those organizationsprohibited strikes against the federal government.Asa result, federal employeeswerepermitted to lobby membersof Congressfor pay increases and improvedbenefits and working

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conditions. Employer-employee relationships, however,continued to be determinedunilaterally by management. As private sector unions received statutory permissionfor collective bargaining under the 1935National LaborRelations Act (WagnerAct), public employee organizations continuedto be ignored. The only mentionof public unions madein the 1947 Taft-Hartley Act was Section 305’s prohibition of federal employeestrike activity. Thereafter, federal employeesattemptedto gain statutory recognition for their organizations through support of the Rhodes-Johnson bill, whichfailed repeatedly in Congressfrom1949to 1961. This proposedlegislation wouldhave required federal agencies to meet and confer with employee representatives and established an arbitration boardto resolve federal labor disputes. Finally, recognition was wonindirectly throughthe election of President John F. Kennedy. Kennedy, who was strongly supported by organized labor throughouthis campaign,appointeda presidential task force headedby Secretary of Labor Arthur Goldbergto recommend a labor-managementrelations program for the federal service. The task force’s recommendations later were embodied in President Kennedy’sExecutive Order 10988, which becamethe foundation of federal employeelabor relations. A. The Executive Orders ExecutiveOrder10988of 1962established for the first time the principle that federal workershavethe right to form and join unions and bargain collectively. It provedto be of tremendousimportancein public sector labor relations, stimulating employeeorganization and collective bargainingat all levels of government. Within two years 730,000 employeeswere covered by collective bargaining agreements(Blumand Helburn1997). Althoughmanyof the provisions of E.O. 10988were supplanted by subsequentexecutive orders and provisions of the Civil Service ReformAct of 1978,it is useful to considerthe labor relations frameworkit established. The Order covered almost all federal workers with the exception of the FBI, the CIA, and others whosework involved security needs. Three forms of recognition for labor organizations were provided: informal recognition was granted to any organization that could demonstrate it represented a minimum numberof employees; formal recognition was gained when the organization could claim at least 10 percent of the workersin a proposedbargainingunit as members;and exclusive recognition, the only form of recognition allowedunder present federal policy, was awardedto an organization that gained the support of a majority of a unit’s employees.Exclusiverecognition meantthat the designated union had the fight to meet and confer with agency management over personnel policies and practices and workingconditions affecting all membersof the bargaining unit represented by the union. Determinationof the bargaining unit was based on the NLRA modelof an identifiable "communityof interest"

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amongemployees. Managersand supervisors were excluded from exclusive bargainingunits. E.O. 10988established a codeof Fair LaborPractices to regulate the interactions betweenunions and management.The code, essentially coincident with the provisions in the NLRA, stipulated various unfair labor practices by both unions and federal agencies and listed proceduresfor hearing complaints. (Exampies of unfair labor practices are coercionof employees,discrimination, and "bad faith bargaining.") Certain management rights were enumeratedin E.O. 10988that remainimportant today, and continueto be in effect in mostfederal collective bargaining contracts: 1. to direct employeesof the agency; 2. to hire, promote,transfer, assign, and retain employeesin positions within the agency,and to suspend,demote,discharge, or take disciplinary action; 3. to relieve employeesfrom duties because of lack of workor for other legitimate reasons; 4. to maintainthe efficiency of governmentoperations entrusted to them; 5. to determine the methods, means, and personnel by whichsuch operations are to be conducted;and 6. to take whatever actions maybe necessary to carry out the mission of the agencyin situations of emergency. E.O. 10988served as the basic legal frameworkfor federal labor relations for approximately sevenyears, but dissatisfaction arose froma variety of sources, particularly the unions. Fromtheir perspective, the executive order did not go far enough.The scope of bargaining was severely restricted by the management rights’ clause and by prohibitions on bargainingover wages, benefits, and union security provisions. Furthermore,althoughthe strike wasforbidden, no substitute for the strike had beenprovided, and final authority for implementationand administration of the ExecutiveOrder, includingthe arbitration of grievances, remainedwith the respective departmentand agencyheads. Thescales were clearly tilted in favor of management. Richard Nixon’s Executive Order 11491 of October 1969 was intended to alleviate these and other deficiencies. Thedeficiencieshad beenofficially identified by two presidential committees,one appointed by President LyndonJohnson (whose recommendationswere not acted upon by a president awash in more pressing issues including the war in Viet Nam),and the other by a Nixon-appointed ReviewCommitteeheadedby Secretary of Labor GeorgeP. Schultz. The Schultz Committeeadvised six major policy changes (Fox and Shelton 1972: 118), most of which were adopted in E.O.11491of 1969. A Federal LaborRelations Council (FLRC)composedof the chairman of the Civil Service Commission, the Secretary of Labor, and one or morepresidential designees, was named


51

to administer and interpret the newexecutive order, decodemajor labor policy issues, and hear appeals resulting from decisions rendered by the newAssistant Secretary for Labor-ManagementRelations (ASLMR).The ASLMR’sduties included resolving unit determinationand representation disputes, supervising and certifying elections, and hearing unfair labor practice allegations and other alleged violations of labor relations proceduresand standards. E.O. 11491abolished the unwieldyformal and informal types of recognition, retaining only exclusiverecognition. Thebargainingstatus of supervisors remainedunchanged,but the scopeof bargaining, contrary to union aspirations, wasrestricted evenfurther. In addition, financial disclosureand reportingrequirementssimilar to those set forth for private unions under the Landrum-Griffin Act were imposedon federal unions. Majorchanges were madein procedures for resolving bargaining impasses and grievancedisputes. Bindinggrievancearbitration wasauthorizedas negotiable for the first time. Toresolve impasses,tw~newentities werecreated: the Federal Mediationand Conciliation Service (FMCS) to mediate labor disputes, and the Federal Services ImpassePanel (FSIP) to settle impasses or recommend impasse resolution proceduresto the parties involved. Athird party could nowoverrule agencyheadsand resolve impassesover contract negotiationsand over grievances. Nixon amendedE.O.11491 with Executive Order 11616 of 1971, which allowednegotiationsover paid timefor unionrepresentatives involvedin contract negotiations and over the agency-imposedcharge for administering the dues checkoff, and mademandatorythe use of the negotiated grievance procedurefor settling contract disputes. Further amendments to E.O. 11491wereissued in 1975 by President GeraldFord. The final document in this chain of presidential directives, Executive Order 11838, marginally broadened the scope of bargaining, encouragedthe consolidation of small bargaining units, defined "supervisor" morespecifically, and implementedminorprocedural changes. Thus, the early legal basis of federal labor-management relations was determinedincrementallythrougha series of executive orders, rather than through statute. Eventhoughexecutiveorders havethe effect of law, their provisions are easier to modifyor abolish than provisions written into statute. Anysubsequent president, or Congress,mayrescind or alter an executive order, whereaslegislation can be modifiedor abolished only through formal congressionalaction. Not surprisingly, insecure federal employeescontinuedto lobbyfor a statutory guarantee for labor-managementrelations. Their demandswere embodied,at least in part, in the Civil Service ReformAct of 1978. B. The Civil Service ReformAct of 1978 Passage of the Civil Service ReformAct (CSRA)maywell represent the single mostsignificant legislative victory for the Administrationof President Jimmy Carter, despite the fact that manyscholars and practitioners regard it todayas a well-meaningfailure at best. There is no doubt that the CSRA was the most

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importantpiece of legislation regarding federal employment since the Pendleton Act nearly 100years earlier. The ReformAct also stands as a rare case of a majorbill proceedingquickly and relatively unhinderedthroughthe national legislative process. Thetime from initial conceptionof the legislation to final passagespannedonly 15 months-almost unheardof for any domesticlegislation since the 1960s. The rapid progress of the CSRA maybe attributed to a numberof factors, the most important beingthe strong supportof the president, the influential leadershipof Civil Service CommissionChairmanAllan (Scotty) Campbell, widespread support among career civil servants, and the reform-mindedness of a post-WatergateCongress. Furthermore, Title VII of the CSRA,the chapter on federal labor-management relations, was endorsed, with somereservations, by the AFL-CIO and the largest federal employee union, the AmericanFederation of GovernmentEmployees (AFGE).Although the National Treasury EmployeesUnion and the National Federation of Federal Employeesopposedthe measure, mainlybecause they felt the scopeof bargainingcontinuedto be too narrow,their resistance did not hinder passageof the legislation. Federal employeelabor fights wereplaced into statute by Title VII of the CSRA.The act also created the Federal Labor Relations Authority (FLRA) administer the labor relations program, and established the Office of LaborManagement Relations within the U.S. Office of Personnel Management. The Ofrice of Labor-Management Relations provides technical advice to federal agencies on labor policies, leadership, and contract administration. CSRA’s Title VII covers all federal employeesexcept for supervisory personnel, membersof the armedforces, foreign service employees,and workers in the GovernmentAccountingOffice, FBI, CIA, National Security Agency,Tennessee Valley Authority (TVA),and U.S. Postal Service. Employeesof the TVA, a governmentcorporation, bargain collectively under the 1935 "Employment Relationship Policy" created as part of the NewDeallegislation of Franklin D. Roosevelt.Postal workers,as part of a settlement with the Nixonadministration following a 1970 postal strike involving 200,000 employees,gained bargaining fights through the Postal ReorganizationAct of 1970, whichremovedthem from the authority of E.O. 11491and granted full NLRA collective bargainingrights with the exception of the right to strike and union security provisions. Armed forces personnelare prohibited fromcollective bargainingand engagingin other unionactivities such as strikes and picketing by a Secretaryof DefenseDirective of October5, 1977. GAO,FBI, CIA, and NSApersonnel have no legal authority for collective bargaining. The statutory guarantee of federal employeelabor rights had long been sought by federal unions for the reasons outlined above. Underthe CSRA,employees enjoy "the right to form, join or assist any labor organization, or to refrain fromany such activity, freely and without fear of reprisal, and each emo


53

ployee shall be protected in the exercise of such rights," including the right to represent a labor organization and present its viewsto agencyheads and other officials in the executivebranch,and the right to "engagein collective bargaining with respect to conditions of employment.... " Conditions of employmentare defined as "personnelpolicies, practices, and matters, whetherestablished by rule, regulation, or otherwise, affecting workingconditions." Excludedfrom the scopeof negotiableissues are wagesand benefits, prohibitedpolitical activities, unionsecurity arrangements,and position classification. Thus,the scopeof bargaining for federal employees,in essence, remains unchanged.Theseverely circumscribedscope of bargainingcontinues to be a topic of controversy and profound union discontent. However,President Clinton’s ExecutiveOrder 12871of 1993 did expandthe mandatoryfederal scope of bargaining to embracepreviously permissabletopics including the numbers,types, and grades of employees and positions as well as the technology,methods,and meansof performingwork. Animportant provision of Title VII extends negotiated grievance procedures to all matters covered by the definition of "grievance" in the CSRA, thereby expandingthe scopeof grievanceactivities. UnderTitle VII, all federal labor agreementsmustinclude negotiated grievanceprocedureswith binding arbitration as the final step. Previously,grievancearbitration wasoptional. In addition, the grievanceprocessis morecarefully delineated in Title VII than it was underthe authority of the executiveorders. Othersections of Title VII recognize the right of federal workersto engagein informational picketing, provide for grade retention for twoyears for employeesinvolvedin reductions in force and position reclassification actions, authorizeofficial or "union"time for unionrepresentation, and allow the checkoffof dues at no cost to the employeeor to the union (previously the checkoff was subject to negotiated administrative fees). Otherwise, the labor relations principles established by ExecutiveOrder 11491 and its amendments were reaffirmed. C. The FLRA The Federal LaborRelations Authority (FLRA)is a three-memberbipartisan entity chargedwith integrating all labor relations administrative functions previously divided betweenthe Federal LaborRelations Council (FLRC),Assistant Secretary for Labor-Management Relations, Federal Services Impasse Panel, Federal Mediationand Conciliation Service, and executive agencies. The FLRA effectively replaced the FLRC,a change approvedof by the unions. The FLRC had a decidedly promanagementbent, as it was composedof three executive branch appointees: Chairmanof the Civil Service Commission,Director of the Office of Managementand Budget, and the Secretary of Labor. The FLRAis somewhatmore independent in its makeupthan the old FLRC.Although the three members are appointedby the president with the advice and consent of the Senate, they are full-time members whomaynot hold any other office or position

54

Chapter3

in the federal government.Their terms run for five years, staggered by two-year intervals. The membersmaybe removed"only for inefficiency, neglect of duty, or malfeasancein office." The FLRA is intended to serve as the final authority in federal labor relations matters, but a provision (Section 7123) permits judicial review of most Authorityrulings by the U.S. Courtof Appeals.Specific functions of the Authority are very similar to the private sector NLRB. Theyinclude: (1) determining bargainingunits, (2) supervising and conductingunionelections, (3) resolving allegations of unfair labor practices (this constitutes the bulk of its activities), (4) resolvingexceptionsto arbitrators’ awards,and (5) decidingissues concerning what is negotiable between labor and management.The FLRAhas subpoena powerand the right to issue cease and desist orders. It is served by a General Counsel,appointedby the president to investigate unfair labor practice allegations and to serve as prosecutor in ULPcases, and a numberof administrative law judges, The FSIP and FMCS remain ongoingorganizations within the FLRA, continuingtheir original executive-orderfunctions of resolving federal impasses. The FMCS has also broadenedits mission to include preventive mediation and alternative disputeresolution. In its primaryrole as the principal adjudicatory bodyfor federal labormanagement relations, the poorly regarded FLRA has comeunder heavycriticism fromthe courts, the unions, and frommanagement. TheAuthorityhas frustrated all parties "for its inconsistenciesandthe illogic of its decisions,"which"encourages unions and agencies to seek judicial resolution" (Rosenbloom1989; see also Thornton1987). There are four alternative dispute resolution paths within the FLRA, creating needless confusionand redundancy,and often resulting ultimately in court review. Thelength of dispute resolution is measuredin years rather than months--notexactly a moralebooster for either employeesor management. In defense of the FLRA,someof its problems have been externally imposed. For instance, it could not issue a decision for almosta year fromlate 1988 to 1989, because President Bush delayed so long in appointing a third member to fill a vacancy.Duringthe 1990s, reorganizationand downsizingof the federal bureaucracycaused an explosion of ULPcases to be filed with the FLRA,adding to existing delays. Meanwhile,the FLRA has assumeda newmission of promoting labor-managementcooperation through acting as an information clearinghouse and providing training in cooperative techniques. In the long term, this effort could help reduce the numberof ULPsand other labor disputes. The CSRA altered little in the basic federal labor relations framework,essentially placing into code what had been originally created through executive orders. The CSRAhas been subjected to muchcriticism from manydifferent quarters. Title VII has receivedspecial opprobrium fromthe unions. Toall interested parties, parts of the legislation are ambiguous.Accordingto the unionperspective, the FLRA is biased and ponderouslyslow. Unionsecurity restrictions depress membership,and free-rider problemsabound. The narrow scope of non-


55

postal bargaining, particularly the exclusion of wagesand benefits from negotiations, left little for the unions to bring to the bargainingtable. Withfiling grievances one .of the few tactics available to them, unions were pressured by dissatisfied members.Takentogether, the weaknessesof Title VII promoted "fierce disagreementand hostile litigation" (Tobias 1998:263)and marginalized humanresource managers. Clinton’s E.O.12871was aimedat easing someof these serious problems. By expandingthe federal scope of bargaining and promotinglabor-management partnerships, the Executive Order furthered Clinton’s and Vice President A1 Gore’sefforts to reinvent government.Throughpartnerships, federal employees are providedwith a greater opportunity for involvementin agencydecision making and the implementationof changeand reform. In a sense, E.O. 12871recognized that the traditional adversaryrelations betweenfederal unions and managementwas dysfunctional and outdated (Tobias 1998). III. THE LEGAL BASIS OF LABORRELATIONSIN STATE AND LOCAL GOVERNMENT Thelegal frameworkfor federal employeeunionizationand collective bargaining is slightly fragmented, with the great majority of workerscovered under two statutes: the Civil Service ReformAct and the Postal ReorganizationAct. But the legal basis for state and local government labor relations is a Byzantineweb of myriadstatutes, ordinances,court decisions, executiveorders, attorney general opinions, and other policy articulations. If ever the state and local governments haveservedas political laboratories,it is in the field of publicsector labor relations. The advantagesof diversity are many.But there are important disadvantages of legal fragmentationfor governmentsand their workers,too. Duringthe mid-1970sthere was a great deal of public debate on national labor legislation for state and local governmentemployees,whichwouldhave forced a substantial amountof standardization in the legal environmentof labor relations. For a timeit appearedthat national legislation stood a goodchanceof passage. After briefly consideringthe pros and cons of a national law for state and local collective bargainingand the possibilities of a resurrectionof the idea in the future, we examinein detail the diffusion and general characteristics of state and local collective bargainingpolicies today. A. Federal Legislation for State and Local Government A numberof bills were introducedin Congressduring the 1970swith the intent of federally regulating state and local governmentlabor relations. Threebasic approacheswere represented in the proposedlegislation. Onesought to amend the National LaborRelations Act to cover state and local governmentemployees. The reasoning behindthis approachwas that public employeesshould have labor

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rights identical to those enjoyedby private sector workers.Accordingly,jurisdiction of the NLRB wouldhave been extendedto cover nonfederal public employee collective bargaining, thereby preemptingexisting state and local government policies. Anotherapproachto federal legislation wouldhave created a newfederal labor authority to cover state and local governmentbargaining: in other words, an NLRBor FLRAfor state and local employees. The act would have been administered by a National Public Employment Relations Commission(NPERC) muchlike the NLRB.The proposed National Public Employment Relations Act, popularly knownas the Clay-PerkinsBill, received strong union support. Like the first approach, Clay-Perkinswouldhave supersededall existing state and local bargaininglaws and any other inconsistent statutes. The third approachto a federal statute envisioneda state-federal partnership, with the federal governmentsetting minimum standards for labor relations and collective bargaining and ensuring conformitythrough the federal powerof the purse, muchas federal highwayrequirementsand the mandatory21-year legal drinking age were implemented. This "minimumstandards" approach would have avoided completefederal preemptionof labor relations while permitting a measureof continuedstate and local experimentation.States already conforming to the federal standards wouldhave authority to administer their ownprograms without federal interference. Proponentsof the various bills argued that federal legislation woulddecrease the incidence of strikes by (1) makingunion recognition mandatory, therebyeliminating the needfor recognition strikes, and (2) stipulating impasse proceduresdesigned to preclude the strike. Proponentsfurther contendedthat federal legislation wouldprovide equal treatmentfor all state and local governmentemployeesin the United States. Laborrelations uniformity would, as an addedbenefit, enable a common national approachto training all labor relations participants, thereby enhancingthe overall quality of labor-management relations. FormerAFSCME President Jerry Wurfsummedup the arguments for federal regulation as follows: "Thereis clear needfor changein public sector labor relations. Thechoice, in our view, is betweencontinuedchaos, or Federallegislation" (Flynn 1975:66). Opponentsof the proposals seemedto prefer Wurf’s continued chaos to the alleged advantages of uniformity. "In the case of public employeeunionism," argued Wellingtonand Winter(1971:53, 54), "uniformityis most undesirable and diversity in rules and structure virtually a necessity." Regulationby the states "providesa moreflexible approachthan national legislation. State officials are likely to be moresensitive to problemsof local governmentthan federal officials, and legislation that proves inappropriate can be modifiedmoreeasily at the state level than at the national." AlthoughWellingtonand Winter(1971: 55) wenton to suggest that the proposedminimum standardsbill mightbe accept-


57

able, other critics (see Nigro1976)contendedthat any formof federal regulation wouldviolate the autonomyof state and local governments and that, furthermore, there could be no "one best way"to regulate public employeeunionization and collective bargaining. Althoughthe timing seemedpropitious, none of the proposals managedto makethe transition from policy agendato statute. Interunion disagreementsover the formand specific content of federal legislation lessenedthe possibilities for congressional passage. The most salient factor preventing enactmentof federal regulation, however,emergedfrom the courts. On June 24, 1976, the U.S. SupremeCourt in a five-to-four decision held unconstitutional a 1974amendment to the Fair Labor Standards Act that had extended the federal minimum wage, maximum hour, and overtime pay provisions to state and local governmentemployees. The court’s ruling in National Leagueof Cities v. Usery(1976) overturned an earlier decision (Marylandv. Wirtz 1968), which had upheld other FLSAextensions to certain state and local governmentworkers. NationalLeagueof Cities v. Userywas broughtagainst the federal governmentby the National Leagueof Cities, the National Governors’Conference(now the NationalGovernors’Association),and several individual state and local jurisdictions. The plaintiffs argued that the FLSAAmendments mandatingfederal wageand hour requirements interfered with state sovereignty and impaired the ability and effectiveness of states to structure a systemof employer-employee relations. Thecourt agreed, ruling that the powersreservedto the states underthe Tenth Amendment to the Constitution (the Reserve Clause) outweighedpowers granted to the national governmentunder the Commerce Clause, at least as far as "traditional governmentfunctions" were concerned. Justice Rehnquist,writing for the majority, declaredthat "one undoubtedattribute of state sovereignty is the state’s powerto determinethe wageswhich shall be paid to those whom they employ.... what hours those persons will work and what compensation will be provided wherethese employeesmaybe called uponto workovertime." The importanceof Useryfor state and local governmentlabor relations is that the sameline of reasoningcouldresult in the court declaringunconstitutional any federal bill mandatingcollective bargaining for state and local government employees.Indeed, someobservers of the Court’s ruling charged that the thrust of the decision wasaimedat the pendingcollective bargaininglegislation. However, the five-to-four majoritywasa fragile one, as reflected by Justice Brennan’s strongly wordeddissenting opinion: MyBrethren thus have today manufacturedan abstraction without substance, foundedneither in the wordsof the Constitution nor on precedent .... Today’srepudiation of this unbrokenline of precedents(e.g., Marylandv. Wirtz)... can only be regarded as a transparent cover for invalidating a congressional judgmentwith whichthey disagree .... I

58

Chapter3 cannotrecall anotherinstance in the Court’s history whenthe reasoning of so manydecisions coveringso long a span of time has beendiscarded roughshod....

Useryhad the undeniableeffect of squelchingfederal legislation to regulate state and local governmentlabor relations. Subsequently,however,the FLSA’s applicability to the nonnational governmentsreceived a newhearing by the nation’s highest court. Identifying the "traditional" state and local government functions that were germaneto the FLSAhad proved to be an impossible endeavor. Certainly public educationand police and fire protection weretraditional functions, but what about providing ambulanceservices, operating a municipal airport or a solid wastedisposal facility, or regulating land use? After these and similar questionsbeganpervadingthe federal court system, the U.S. SupremeCourt held in Garcia v. San Antonio Metropolitan Transit Authority (1985) that Userywas "unsoundin principle and unworkablein practice." In another highly controversial five-to-four decision (only Justice Blackmunchanged his vote), the justices found that the Tenth Amendment does not preclude the Fair LaborStandardsAct frombeing applied to state and local governmentworkers (the immediatecase concernedlocal transit employees,but the ruling wasapplied generally). Gareiacausedsubstantial financial hardships for states and localities, whichwere nowforced to pay time and a half instead of compensatory timeoff to police officers, firefighters, nurses, and others whotypically work more than 40 hours in someseven-day weeks. The Congress later amendedthe FLSAto provide some relief to the nonnational governmentson requirementsto meet overtime and other provisions of the Act. But an important conclusion of Garciais that Congressdoes have the constitutional authority to supplantexisting state labor relations policies witha national policy. Garcia’s survival is not assured. Chief Justice Rehnquist, whostrongly dissented fromthe majority opinion, has threatened to reconsider the principles set out in the case. Moreover,the SupremeCourt is muchmoreconservative and moresympatheticto the states and localities than wereits predecessors(Kearney and Sheehan1992). In addition, althoughnational bargaininglegislation remains high on the wishlist of the unionsand is occasionallyreintroduced,congressional action is not likely in the foreseeablefuture. Organizedlabor’s political influence in Congressis weak;a presidential veto wouldbe likely in any case, and the record nowshowsthat the decentralizedapproachto state and local labor relations has functionedreasonablywell. Othernational laws maybe enacted that influence labor relations at the margins(see Table3.1), but an all-embracingpolicy change standslittle chanceat present. B. State and Local GovernmentPolicies Todaymorethan 110separate state statutes governpublic sector labor relations, augmentedby numerouslocal ordinances, court decisions, attorney general opin-


59

TABLE 3.1 Major FederalLawsAffecting Public Sector LaborRelations Legislation Civil RightsAct of 1964 Equal Employment OpportunityAct of 1972 AgeDiscriminationin Employment Act (1967) OccupationalSafety and HealthAct (1970) EmployeeRetirement IncomeSecurity Act (1974) UrbanMassTransportation Act (1964)

Subjectmatter Prohibitsemployer discriminationonthe basisof race, color, gender,religion, or nationalorigin. Extended Civil RightsAct of 1964requirements to public employers,and extendedthe enforcement powers of EqualEmployment Opportunity Commission. Prohibitsdiscriminationby the employer againstemployeesaged40 to 70 years. Health-andsafety-relatedworkingconditionsare prescribed. Pensions, healthcare, disability, andaccidentplans are addressed.

Requires that interestsof employees, includingcollective bargainingrights, are protectedwhenownership transit systemchanges. SocialSecurityAct of Personnel policies are stipulatedfor state andlocal 1935 workerspaidin wholeor in part with federalgrant dollars. Fair LaborStandards Appliesfederal wageandhourlawsto state andlocal Act (as amended) governments. policies for mentallyandphysically Americans with Disa- Affects personnel bilities Act (1990) disabledworkers. Civil RightsActof Reversedandaltered 12 U.S. Supreme Court deci1991 sionsthat hadnarrowed civil rights protections. Familyand Medical Ensures that leaveis availableto employees for auLeaveAct (1993) thorized medicalreasonsandfor compellingfamily reasons.

ions, and executive orders. Thesepolicies exhibit considerabledivergence. State legislation, for instance, ranges from a single comprehensivestatute providing coveragefor all public employeesin Iowa, to coverage of only firefighters in Wyoming, to the total prohibition of collective bargaining in NorthCarolina. In other states, public employeesbargainunderthe authority of an attorney general’s opinion (North Dakota)or civil service regulations (Michiganstate employees). The earliest legislation regulating state and local governmentemployeremployeerelationships sought to abolish strikes by public workers. Shortly after WorldWarII eight states enactedno-strike laws with stiff penalties for violators. In other states, beginningin 1951, laws werepassed that established the right of

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public workersto join employeeorganizations and provided a limited degree of support for developingbilateral relations betweensomegovernmentjurisdictions and their workers. In addition, several local governmentspassed ordinances or issued executive orders regulating collective bargaining. As Schneider (1988: 197) observed, "The stand that any form of bargaining in the public sector was impossible was crumblingin the face of experience and political expediency." Finally, in 1959, Wisconsinbroke out of the state legislative void with a law establishing collective bargaining rights for local governmentemployees.Today, legislation or other policies imposinga duty to bargain or meet and confer with at least one groupof public workersare in effect in 42 states. Mostof the bargaining laws were enacted over a period of about 10 years from the mid-1960sthrough the mid-1970s.A variety of important decisions had to be faced by the state lawmakers,including (1) whethereach jurisdiction within the state should be permitted to establish its ownlabor relations policy or all should conformto a single policy applied uniformly; (2) whether one comprehensive law should apply to both levels of governmentand all occupationalfunctions, or separate policies be established for state and local governmentand for each functional category; (3) whoshould administer the policy; and (4) what labor relations principles and proceduresshould be adopted. Legislative outcomeswere hammered out in fierce battles fought betweenpublic employeeunions, public employers,and numerousinterest groups. By 1976, legislative activity, chilled by the influence of the Userydecision, beganto focus on refining existing policy rather than enacting newlegislation. Onlythree states havepassed majorcollective bargaining laws since the 1970s: Ohio, Illinois, and NewMexico.Table 3.2 showsthe legal frameworkfor labor relations as of 1999. TABLE3.2 State BargainingLegislation,

1999(X: collective bargaining provisions;Y: meetandconferprovisions)

State Alabama Alaska Arizona Arkansas California Colorado Connecticut Delaware Florida Georgia Hawaii Idaho

State

Local

-X

Y X

y

y1

X X X -X --

X 1 X ~ X -X --

Police -X ..... ..... y1 ..... X X X -X --

Firefighters

K-12 Teachers

Y X

-X

y1

X

X X X X X X

X X X -X X


61

TABLE3.2 Continued State Illinois Indiana Iowa Kansas Kentucky Louisiana Maine Maryland Massachusetts Michigan Minnesota Mississippi Missouri Montana Nebraska Nevada NewHampshire NewJersey NewMexico NewYork NorthCarolina North Dakota Ohio Oklahoma Oregon Pennsylvania RhodeIsland South SouthDakota Tennessee Texas Utah Vermont Virginia Washington WestVirginia Wisconsin Wyoming

State

Local

Police

Firefighters

X X X y --

X -X y1 --

X -X y1 X

X -X y1 X

X X X X --

X X X X X

X 2 X X X X

X -X X X

X X X X X

Y X X -X X X X

Y X X X X X X X

-X X X X X X X

X -X X X ..... Y X X X X X X X

y2 X -X X X Carolina X

~ X X X 1 X X X

y2 X X X X X

X

--

-.... X

X .... 1 X

X

y~ X X X X X ..... X

-X Y X X X X X X X X X X X

X

X X -X X

X y2 X X

X y~ X --

~ X

X

K-12 Teachers

..... X y~ X --

X y~ X --

X y~ X --

~Local optionpermitted. 2Meet andconferestablished byattorneygeneral opinion. Source: Complied fromvarioussources includingLundandMaranto 1996.

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Thelarge percentageof states withlabor relations policies reflects a realization of the needto developa formal frameworkto direct bilateral relationships betweenpublic workers and their employers. Clearly there are manyvariations in policies, but the trend has beento extend comprehensive coverageto all state and local governmentworkers. Twenty-ninestates and the District of Columbia currently provide bargaining coverageby statute for all major employeegroups, either througha single comprehensive public employeerelations policy or separate policies for different functions. Thirteen states regulate employer-employee negotiationsin one to four occupationalcategories, whileeight states do not have public policies permitting bargainingfor any groupof employees(see Table3.2). As noted in Chapter 2, bargaining laws are both a product of public employee unionizationand a stimulant of unionization. This reciprocal relationship has beenboth observedand validated in the scholarly literature (Waters et al. 1994;Farber 1987).Specifically, politically influential public sector unionshave spurred enactmentof bargaining legislation in the states, while newlypassed collective bargaining laws have been associated with the growthof union membership. This relationship is evident in Ohioand Illinois. Bothstates had long histories of strong public sector unions, whichhelpedprovokelegislation in 1983. And,followingpassageof the bargaininglaws, levels of unionizationexperienced significant growth,particularly in functions that werepreviouslyleast organized (Hindmanand Patton 1994). Bargaining laws are the single most important factor in determining the tone and character of public employer-employee relationships in state and local government.The states with comprehensivebargaininglaws tend to share certain traits and experiences. Generally,they are industrialized, urbanized,relatively affluent states of the Frostbelt that traditionally have beenpolicy innovators. Strong private sector unionization (indicating pro-unionsentiment)is associated with comprehensivepublic sector bargaining policy, and so is the alignmentof the political stars--most of the comprehensive statutes were enacted by liberal Democraticmajorities in the state legislatures and signed by a Democraticgovernor (see Hundley1988:302-303;Saltzman 1985). In Ohio, comprehensivebargainingbills passed the legislature in twoconsecutivesessions, only to be vetoed by Republican Governor James Rhodes. The third time was the charm when newly elected DemocraticGovernorRichard Celeste signed the bill in 1983. In Illinois, a comprehensivebargaining bill was bottled up for years by Chicago Democrats,whofeared that union contracts woulddamagelong-standing patronage arrangements. C. States Without Collective Bargaining Policies Six of the eight states that do not formallypermitcollective bargainingare situated in the South: Arkansas,Louisiana, Mississippi, NorthCarolina, South Caro-


63

DE

FIGURE 3.1

]

NoCollectiveBargaining

]

Non-Comprehensive

]

Comprehensive

Collectivebargaining policy in thestates.

lina, and Virginia (see Figure 3.1). The other two(Arizona and Colorado)are the West. Althoughnone of these eight states has enacted policies permitting negotiations, all but one (Mississippi) do havesomesort of labor relations policy. South Carolina, Virginia, and Coloradohave statutes establishing public employee grievance procedures. The dues checkoff is permitted in Louisiana. Taking a negative approach, North Carolina and Virginia have passed laws that prohibit collective bargaining. Nonetheless, "informal bargaining" occurs regularly in someNorth Carolina local governments (Rhodes and Brown1992) and strikes have occurred in Virginia. Arizona and Arkansashave established somesemblanceof labor relations policy throughattorney general opinions. Duescheckoffis allowedin both states and a scope of bargaining is denoted. However,no policies providing for bargaining havebeen adopted for any group of employeesin either state. This would appear to be reason enoughto distinguish these two states from West Virginia, whereattorney general opinions permit the right to join a union, and provide for exclusive representation, impasse procedures, and meet and confer procedures with respect to wages, hours, and workingconditions (see MidwestCenter for Public Sector Labor Relations 1979). As mentionedat the beginningof this chapter, public employeesin these

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and all other states enjoy the right to form and join unions. Theyalso have the right to petition their employersas individuals or through an organization, but there is no concomitant obligation on the part of the governmentemployerto meet with the organization, engage in collective bargaining, or even withhold organizational dues. However,if the public employervoluntarily elects to conduct negotiations with a unionin the absence of enabling legislation, the courts generally have upheld the bargaining relationship, with two exceptions. In the case of Virginia v. Arlington CountyBoardof Education(1977), the Virginia SupremeCourt unanimouslyruled that public employers in that state had no authority to recognize a union or negotiate and enter into a binding agreement without express statutory authority. At the time of the decision, about 30,000 local governmentworkers were under collective bargaining contracts, whichimmediately becamevoid. Similarly, the GeorgiaSupremeCourt held that although it "wouldn’tprohibit negotiations, it (would)not enforce the resulting contract" (ChathamAssociation of Education v. Board of Public Education 1974). Whena service changes from private ownership to public ownership, an interesting problemarises in those states that deny negotiating rights for their employees.Just such a situation developedin several instances involving local governmenttakeovers of private transit systems. Prior to the transfer of ownership, of course, collective bargaining agreementsare administeredunder the authority of the NLRA. Uponchangein ownership, however,private sector policies no longer apply. The newtransit authority must retain the existing contractual arrangementswith the union under Article 13(c) of the UrbanMassTransportation Act of 1964, whichstates that "workers and unions will lose no rights as the result of public takeovers financed by federal funds." Becauseprobably all public takeoversof transit systemsare aided by federal grant funds, the implications for the newpublic ownerare quite clear. Unfortunately, without a preexisting legal frameworkto guide labor relations, the city, county,or special-purposegovernment mayfind itself in the midst of a dilemma.One rather imaginative solution is the "MemphisFormula," which was developedin that city prior to the passage of Tennessee’s1971 bargaining law for transit employees. Under the MemphisFormula, governmentowners of a transit systemcontract out transit activities to a management services firm, which bargains collectively with the union. The management firm thus serves as the bargaining agent for the local governmentin the absence of statutory guidelines (see Jenningset al. 1978). Of course, ownershipcan change in the opposite direction as well, with functions formerly operated by governmentbeing contracted out to a private or nonprofit organization. In this event, private sector law (the NLRA) normally applies. However,there is a touch of irony with respect to transit systems. The UrbanMassTransportation Act of 1964 requires, amongother things, that existing labor rights be preservedwhentransit operations changeownership.Early


65

on, most ownershipchangesinvolved public takeovers of private systems. Today, the trend is to privatize transit through contracting out. Local governmentsand transit managersarguethat the provisionto protect labor rights, includingcollective bargaining, impedescontracting out because union contracts, whichexist in 95 percent of transit systems,are not acceptableto potential private transit contractors (Lugerand Goldstein1989). The legalities surroundingtransit ownership and labor rights remainfar from settled. In mostof the states that do not permit negotiations with governmentworkers, hostility toward unions, unionization, and collective bargaining remain strong. For manypolicy makersin these states, the sovereignty argumentstill holds water. In upholdingthe ban on public sector bargainingin North Carolina, for example,a U.S. District Court reasonedthat: To the extent that public employeesgain powerthrough recognition and collective bargaining,other interest groupswith a fight to a voice in the running of the governmentmaybe left out of vital political decisions. ¯ . . All citizens havethe right to associate in groupsto advocatetheir special interests to the government. It is somethingentirely different to grant any one interest group special status and access to the decision makingprocess (Atkins v. City of Charlotte 1969). Other states, such as SouthCarolina, have had to confront few real "problems" with organized public employees.Establishment of any sort of legal basis for unionization or collective bargaining is unlikely to occur in the absence of strong organized pressure by public employees.In South Carolina there has been a long-standing and widely shared aversion toward unions in the private as well as the public sector. Unionsare still associated in someminds with communism, socialism, and other "foreign doctrines." There is a basic suspicion of the purposesof unionsand a fear that they exist in the public sector only to extort money from the public through winningunwarrantedwageand benefit increases. In the case of somesouthern states racial prejudice also played a role in anti-union feelings in the 1960sand 1970s. A high percentage of minorities are found in manypublic services, especially the sanitation, health care, and custodial functions. The Memphissanitation strike of 1968 and the 1969 Charleston, South Carolina, hospital workers’ strike convincedsomepeople that public unions were serving as vehicles for increasing black militancy. Today,in the group of southern states that do not formally permit negotiations with public workers, the policy of no labor relations policy appears to be a calculated choice of state decision makersinterested in providinga "goodbusiness climate" by holding downpublic employeecompensation. In Colorado and Arizona, however,a considerable amountof bargaining does transpire, but without the statutory regulation provided by a labor relations law. Laborrelations

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66

policies in these states maybe established by local ordinance or on an ad hoc basis by mayors, city managers,department heads, and school boards. In Louisiana, for instance, teachers bargain with school boards in several districts, even thoughsuch activities are not protected by state legislation. The Louisiana courts have ruled that collective bargaining in public educationis not inconsistent with law or public policy and is therefore permitted (Dilts et al. 1993a). Texas showcasesa rare legal environmentin which cities can bargain collectively with their police and firefighters only if enabling legislation is adopted by public referendum(no other Texas state or local employeescan win formal bargaining fights). However,municipal employeeunions are active in the largest cities. In Austin, AFSCME Local 1624has participated in negotiations with city officials over wageand benefit packages. The union influenced compensation policy through a "political instrumentality" approachthat included building a media campaignto increase the union’s visibility and create a positive imageamongcity council members,developing a favorable political climate, and forging coalitions with other city employeeunions. AFSCME’s success has also beenattributed to its ability to exploit a lack of cohesivenessamong city officials (Swanson 1993). Indeed, it is safe to assumethat someform of bilateral decision making betweenpublic employersand workers takes place somewherewithin each of the eight states discussedin this section. Evenin a fewSouthCarolinaschooldistricts, for instance, representatives of the NEA-affiliated South Carolina Education Association assembleat the sametable with school board representatives and the district superintendentto "sit and talk" about teacher wages,benefits, and working conditions. Asimilar situation prevails in NorthCarolina, despite legislation prohibiting collective bargaining (Brownand Rhodes1991). In these states, in Louisiana, this occurs because the unions have had the powerto force bargaining or because bargaining makesmore sense than other alternatives for resolving disagreements with public employees. Public employeeunions can play an important representational role even in the absence of collective bargaining, as illustrated by the case of Austin. For example,they can lobbythe legislature or city council, represent members in grievance proceedings, file equal opportunity complaints, and otherwise attempt to influence policies and procedures. D.

States with Noncomprehensive Policies

Withinthe 13 states that have policies permitting someformof bilateral relations for one or moreemployeegroups, firefighters and teachers are the most common beneficiaries. Police, municipal employees,and state workersoperate less frequently within an umbrellaof labor relations policy. This is not too surprising whenone considers the history of teacher and firefighter organizational activity and the strength of their national labor organizations. Whatis somewhatunexpected is the relatively lowincidenceof collective bargainingpolicies for police


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officers. Perhaps this is a legacy of the ill will surroundingthe infamous1919 Boston police strike (see Chapter 7) and a function of the comparatively weak and divided national police organizations. Mostof the policies in this category were enacted through statute, and a large majorityrequire collective bargainingrather than meetand confer activities. In principle, the two approachesare quite distinct. Meetand confer is an activity peculiar to the public sector. It implicitly rejects the legitimacyof transferring private sector bargaining rights to public employeesin that it formally denies bilateral (equal) decision-makingresponsibility for the two parties. Undermeet and confer policies the employerretains final decision-makingauthority--there is no obligation to negotiate and sign a written agreement. Furthermore, meet and confer laws typically are less comprehensive in their treatment of labor relations issues such as determiningand representing bargaining units, establishing an administrative framework,and settling disputes and unfair labor practices. Although a meet and confer approach is sometimes favored by management, unions argue that the arrangementmoreclosely approximates’’collective begging" than collective bargaining. Actually, true meet and confer activities rarely take place. In reality, employershaveadopteda modifiedapproachto bilateral relations that moreclosely approximatescollective bargainingthan meet and confer. In practice, it often is not an easymatter to distinguish betweenthe two anyway. Nearly half of the comprehensivebargaining states achieved across-theboardcoveragein an incremental fashion, authorizing negotiations first for one or twooccupationalcategories and then later for others. California is such a case, as are Maineand Washington.It certainly is possible that other states presently offering noncomprehensive coverage will eventually enact legislation for additional occupationalcategories. However, the struggle is likely to be a difficult one for unions as illustrated by setbacks suffered by public workersin Indiana. There, a comprehensive state and local governmentbargaining law wasdeclared unconstitutional on the basis of a technicality in 1980(Klingerand Smith1981).Efforts enact a newstatute in the late 1980sfounderedbecause of gubernatorial vetoes. The election of pro-labor DemocratGovernorEvanBayhstirred hopes for passage of a bargainingbill in 1992,but the bill did not pass the senate. Governor Bayhdid issue an execufiveorder that grantedstate workersthe right to elect unionrepresentation, but he lackedthe authority to imposefull bargainingfights. In his case study of Kentucky, Wanamaker (1977) offers someperspective on the Herculeantasks involved in lobbying for bargaining legislation. Police and firefighters lobbied strongly for four years before the General Assemblyauthorized collective bargainingstatutes for the twogroups, and even then the legislation was restricted in scope to counties with a population of over 300,000. Onlyone countyfit that description: Jefferson County,the location of Louisville. Teachers’ hopes for a bargaining statute that sameyear (1972) were dashedwhen the governorvetoed a bill that had passed both houses of the legislature. The next year, Kentuckyteachers decided that their best strategy was to

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join a coalition of several other public employeeunions to lobby for passage of a comprehensivebill permitting bargaining for all Kentuckypublic employees. The coalition was composedof virtually every important employeeorganization in the state: AFSCME, AFL-CIO,Associated Professional Fire Fighters of Kentucky, the Fraternal Order of Police, KentuckyNurses Association, and local chapters of the AAUP,NEA,and AFT. But those groups opposing bargaining legislation carried moreclout in the GeneralAssembly:business interests, school administrators, the Chamberof Commerce,FarmBureau, and Municipal League managed to kill the bill in legislative committee. Frustrated by their notable lack of successwith the legislature, the teachers next tried the executive branch, asking the new governor to extend them bargaining fights through an executive order. The strategy was declared illegal by the attorney general. Today, although teachers do conduct negotiations with school boards in a fewof the larger jurisdictions in Kentucky,they still haveno statutory right to bargain. E. States with ComprehensiveCollective Bargaining Of the states that provide for collective bargainingfor all majorgroups of state and local governmentworkers, only three are in the Sunbelt: California, Florida, and Hawaii. Florida truly is an anomalyas it is the only southern state with a comprehensivelabor relations policy. As one might imagine, the circumstances surroundingthe Florida case are unique. The judicial role in public sector labor relations in the Southtypically has consisted of responding to requests from governmentemployersfor injunctions to halt job actions. And,as discussed previously, early court decisions regarding the legality or constitutionality of collective bargainingfrequently wereanathema to negotiating rights for public employees.In Florida, however,the state supreme court in effect initiated and implementeda comprehensivebargaining policy (see Miller and Canak 1991). In the case of Dade County Classroom Teachers Association v. Ryan (1968), the Florida SupremeCourt enforced a provision in the 1968 Revised Constitution which afforded that state’s governmentworkers the same right to engagein collective bargaining as Florida’s private sector employees.The court held that, except for the fight to strike, it was incumbenton the state legislature to enact appropriate legislation to set regulations and standards implementing this constitutional provision. But collective bargaininglegislation failed to pass during the 1969through1971legislative sessions. The following year, the chief justice of the Florida SupremeCourtnotified the legislature that failure to implementthe constitutional requirementfor bargaininglegislation for public employees wouldforce the court to issue its ownguidelines in lieu of legislation, under the sameauthority it had used to redraw school boundaries whenpublic schools


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had failed to desegregatein that state. When legislation still wasnot forthcoming, the court appointeda seven-personcommission to study the issue in preparation for issuing court-mandatedguidelines for collective bargaining. The commission reported the guidelines in 1974. Shortly thereafter, with legal gun held to its collective head, the legislature finally enactedthe Public Employee RelationsAct of 1974. Whilecollective bargainingfor public employeescamein through the back door in Florida, in mostof the other states with comprehensive labor relations policies a morepredictable approachwas employed.Staudohar (1973) provides an interesting description of the events precedingpassageof the HawaiiPublic EmployeeRelations Act of 1970, one of the nation’s most comprehensivestate collective bargainingstatutes. Hawaiihas had a history of strong organizedlabor since WorldWarII. As early.as 1950, public workerswere granted the right to organize and present proposals and grievancesto their employers.Evenin this labor-friendly environment, however,public employeeshad to work hard for passageof collective bargaininglegislation. A bill that wouldhavegrantedlimited bargainingrights similar to those foundin ExecutiveOrder10988failed in 1965. But in 1967, a meet and confer statute requiring discussion on working conditions, personnelpolicies, and other matters affecting public employeeswas enacted, and the new1968state constitution mandateda public employeecollective bargaininglaw. Thestruggle then turned to questions of howbargainingwas to be structured. Atotal of eight bargainingbills wasconsideredduring the next twoyears, each bill differing substantially in majorprovisions and each supportedby separate interest groupsand employeeorganizations. Majorpoints of contentionwere: (1) bargaining over wagesas opposedto using a prevailing wagerate tied private sector pay, (2) unionsecurity provisions,(3) appropriatebargainingunits, and(4) the right to strike. Theissue of appropriatebargainingunits wasespecially salient in Hawaii. It is a small state that has only four counties. The county governmentsprovide manytraditional municipal governmentservices such as police and fire protection, public works,and sanitation, while the state handles typical countyfunctions such as welfare services and property taxation. In the 1970Act, it wasdecided to establish predeterminedstatewide bargainingunits in order to provideuniformityin personnelpractices. The right to strike also presented a sensitive issue in a four-countystate whereeducation, for example,is governedby a single jurisdiction and a teachers’ strike can cripple the educationsystemof the entire state. After concludingthat prohibitionsof the strike in other states had beenineffective, and at times even dysfunctional,the legislature granteda limited right to strike. Beforestriking, Hawaiiunions must first exhaust mandatorydispute settlement procedures, wait througha cooling-off period, and give a 10-daynotice of the intent to strike to the employerand the public employeerelations board. In addition, no strike may

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threatenthe publichealth or safety, whicheffectivelyprohibitspoliceandfirefighter strikes. Interestingly, a strike wascalled to spur desiredlegislative action on the very daythe legislature wasscheduledto vote on the collective bargainingbill. Thefirst states to enact comprehensive bargaininglegislation tended to be strong two-party states with active and powerfulorganizedlabor groups. These early innovators, such as Michigan, RhodeIsland, NewYork, Massachusetts, Delaware,and Connecticut,patterned their legislation on the National LaborRelations Act. Mostof the subsequentpublic sector labor relations statutes, including the most recent ones in Illinois, Ohio, and NewMexico,also were guided by NLRA principles on employeelabor rights, scope of bargaining, unit determination and recognition, unfair labor practices, and other bargainingtopics. The major provisions of typical comprehensivelabor-managementrelations legislation foundin the comprehensive bargainingstates are briefly examined below.(Each of these conceptsreceives extensive discussion in subsequent chapters.) 1. EmployeeRights Generally, the NLRA (Section 7) rights apply to public workers: "Employees shall havethe right to self-organization,to form, join, or assist labor organizations, to bargaincollectively throughrepresentatives of their ownchoosing,and to engagein other concertedactivities for the purposeof collective bargaining or mutualaid and protection, and shall also havethe right to refrain fromany or all of suchactivities." In the comprehensive bargainingstates, all nonsupervisory workerstypically are guaranteedrecognition and bargainingrights uponrequest. 2. Employer Rights Thegreat majority of the state statutes provide a management rights clause excluding certain matters from the scope of negotiations. Typical management rights include: the right to determinethe nature of workto be performedand howit is to be performed;the tools and equipmentnecessary to do the work; retention of traditional personnelmanagement functions including recruitment, hiring, promotion,and dismissal; and the right to determinethe missionof the agency and the efficiency and effectiveness of governmentoperations. Some states stipulate that existing merit systemprovisionsare excludedfromcollective bargaining (NewHampshire),while others (Washington)provide that negotiated agreementssupersedeall existing policies or regulations. 3.

Administrative Agency

All comprehensivestatutes identify someform of administrative machineryto administer public sector labor relations. The administrative agencymaybe an existing entity such as the state departmentof labor or the civil service commission, or, as is nowthe norna, a newagencycalled a public employeerelations board (PERB)or somethingsimilar maybe established especially to implement


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labor relations policies. Regardlessof whichstrategy is employed,it is important to establish an administrative agencyto resolve recognition claims by employee organizations,certify bargainingrepresentatives, hear complaintsof unfair labor practices, resolve disputes betweenthe parties, and otherwiseprovide authoritative interpretations of existing policies. A majoradvantageof the PERB is its neutral posture, whichis necessary if the agencyis to develop the confidence and respect of both parties that is required for its effective functioning. PERBs normally are composedof three to five membersappointed by the governorfor staggeredtermsof office. 4. Unit Determination The PERB or other administrative agencydetermines the appropriate bargaining unit of employees.A bargainingunit consists of one or moreworkersrepresented by a single union under one contract. Theseworkersselect a bargaining agent (union) to represent themas a unit. The most commonly used criteria for unit determinations are " communityof interest" amongthe employees,the history of employeerepresentation, the effects on the efficiency of agencyoperations, the exclusion of supervisory employees,and the avoidanceof unnecessaryfragmentation of units. The numberof recognized bargaining units varies widely from state to state. NewYork, for example, has hundreds of local government bargainingunits, whileHawaiihas only a handful. In practice, unionsoften determinethe bargainingunit’s boundariesby wayof their organizingactivities and the initial "showingof interest" throughpetition signatures. 5.

Recognition Procedures

Oncethe bargaining unit is determined, employeeorganizations competeover the right to represent that unit’s members in collective negotiations. All comprehensive statutes, and the NLRA,provide for exclusive recognition, whereina single union has the authority to speakon behalf of all employeesin the bargaining unit. Exclusive recognition generally is obtained throughan expression of support by a majorityof workersthrougha secret ballot. [In almost all other countries recognition is achievedthroughsignatures of a prescribed percentageof employees;this is permittedin somestates as well (e.g., Ohio).] After exclusive recognition is authorized by the administrative agency, management must deal only with that labor organizationin bargainingmatters, and the unionmusteffectively and fairly represent all individualsin the unit whetherthey are dues-paying members or not. Moststatutes also establish proceduresfor decertifying a previously recognizedorganization. 6. Scopeof Bargaining Collective bargainingitems maybe mandatory,permissive, or illegal depending on provisions of the bargainingpolicy. In the absenceof specific language, administrative agenciesor the courts resolve ambiguitiesin the scopeof bargaining.

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Althoughstate scope of bargaining provisions vary greatly, most comprehensive policies follow the NLRA in mandatinga broadscope of negotiations over wages, hours, and other terms and conditions of employment. As noted above, most states exclude certain management rights or civil service provisions from negotiations. The normtoday is to treat all topics as negotiable unless specifically excludedby statute or administrativelyinterpreted to fall within the realm of agency "mission." As a general rule, management prefers a narrowscope of bargaining, while unions seek a broad scope. Because the vital interests of bothparties are at stake, battles overthe scopeof bargaining tend to break out frequently. 7.

ImpasseResolution Procedures

In the private sector, impasses mayultimately (and legally) be resolved by strike. But in public employment strikes either are prohibited or severely restricted. Thus, the need for other proceduresto resolve impassesis quite clear. Withonly one or two exceptions, state labor-management relations policies address the needto resolve impassesresulting fromgrievancesor contract negotiations. Eachstate with a comprehensive labor relations statute provides for one or moreforms of dispute resolution that either are invokedby the administrative agencyor left for the parties to adoptvoluntarily. Thethree primarydisputesettlementdevicesare mediation,fact finding, and arbitration. Moststates that permit strikes makethemsubject to compliancewith prestrike impasseprocedures. 8. Union Security Thereare six possible options for securing the institutional viability of a union as exclusive representative of a bargainingunit. a. Closed Shop. Under this arrangement, the prospective employee must becomea union memberprior to initial employmentand maintain membership as a condition of continuing employment. This "unionhiring hall" approach is illegal in both public and private sectors under the Taft-Hartley amendments, but continuesto exist de facto in a few settings. b. Union Shop. All ongoing and new employees must, as a condition of employment, join the union within a specified time period (usually 30 days) and maintaintheir membership through the duration of the contract. Unlike the closed shop, there is no preemployment membershiprequirement. This arrangementis providedfor in unionshopclauses in state collective bargaininglegislation in only five states, and it applies to a limited numberof employeefunctions. c. AgencyShop. Under this provision employeesare not required to join the union, but they still must pay the employeeorganization a sumof money equivalent to union dues in order to defray union expensesincurred during contract negotiations and administrationof the agreement.The District of Columbia


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and 19 states specifically permit this arrangementas a condition of employment throughstatute or regulation. d. Fair Share. This is a common variation on the agency shop in which employeesmustpay a certain portion of regular uniondues to cover the organization’s costs for collective bargainingand other representationalactivities. It differs from the agencyshop in that nonbargainingactivities such as lobbying or mediacampaignsare not paid for by those whochoosenot to join the union. Thefair share is authorizedin at least 11 states. e. Dues Checkoff. Most comprehensivepublic employeerelations laws permit an arrangementin whichthe employerautomatically deducts union dues from paychecksof employeesand remits the funds to the employeeorganization. The dues checkoffnormallyis found in conjunctionwith one of the other union security provisions. f. Maintenanceof Membership.Here, all union membersmust maintain their organizational affiliation as a condition of employment.Nonmembers need not join. Threestates, Alaska,California, and Wisconsin,specifically providefor this arrangement,althoughin practice it is prevalent throughoutthe comprehensive bargainingstates. Unionsecurity policies are desirable for the unions becausethey help increase or maintainmembership in the organization and ensure a high rate of dues payments.A financially soundunionis a moresecure union, and a morepowerful organizationpolitically. Furthermore,unionsecurity provisionsobviate the problem of "free riders" whoenjoy the benefits of exclusive union representation in contract negotiations, grievanceprocedures,and other activities withoutpaying organizational dues. It also maybe arguedthat union security is beneficial for the public employer,whichgains labor peace froma stable union with a steady membershipand income. Unionsare adamantlyopposed to right-to-work laws and have fought to have the authorizing provision removedfrom Section 14(b) of the Taft-Hartley amendments for manyyears. But a powerfulargumentagainst the union shop is that it can violate an individual employee’sright to freedomof association and speech under the First Amendment by compellingthe individual to join a union. Twenty-one"right-to-work" states prohibit union security arrangementsrequiring union membershipor financial contributions as conditions of employment (i.e., unionand agencyshopsand fair share). Elevenright-to-workstates axe the old Confederacy;the remainderare scattered about the United States west of the Mississippi River (see Figure 3.2). Noneof the right-to-workstates has history of strong organizedlabor, and noneis a traditional industrialized state. Onlyabout 8 percent of private sector employeesbelong to unions in right-toworkstates comparedto 20 percent in other states (Davis and Huston1995:223). The empirical evidence is not clear on whetherright-to-work laws hinder union growth and effectiveness through depressing the numberof dues-payingmere-

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] Not Right to Work [] Right to Work

FIGURE3.2

Right-to-work states, 2000.

bers. Preexisting anti-union sentimentmayinspire adoptionof right-to-worklaws and lowerworkers’interest in unions. Alternatively, right-to-workmayindependently depressfuture unionization.A recent and very careful reviewof the scholarly research, however,indicates that fight-to-work laws do depress union membership by 3 to 8 percent in the long run and boost free riding by 6 to 10 percent (Moore1998). The reasoning behind a ban on stronger types of union security is that unions are private voluntary organizations in which membershipshould be by conscious free choice of the worker. Anindividual madeto join a union or pay dues maybe forced to support an organization, ideology, or political program he or she does not condone.Thus, unionsecurity provisions mayappear to violate an employee’sFirst Amendment fights of free speechand association. It is also arguedthat unionsecurity measuresconflict with the merit principle, since all public employeesshould be hired on the basis of their job qualifications, not membershipin an organization. Generally, the federal courts have not accepted constitutional arguments against unionsecurity provisions, but they have upheldthe right of individual states to bar unionsecurity provisions throughright-to-work laws. However,the federal courts haveaddressedFirst Amendment rights of free speechand associa-


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tion that are raised whena unionuses dues for purposesnot related to collective bargaining,such as campaignsupportfor a political candidateor legislative lobbying. If an employeeobjects to supportingthese activities financially, does this not constitute a violation of free speech? The courts have also addressed the procedural safeguards that a union must establish for nonunionmembersto receive a rebate of nonchargeablefees. In a triad of cases, the U.S. SupremeCourt upheld and protected private sector employees’ First Amendment rights under the Railway Labor Act (see Mitchell 1978). In Railway EmployeeDepartment, IAMv. Hansen(1956), the Court found that a unionsecurity agreementwas constitutional as long as dues collection did not serve as a "cover for forcing ideological conformity.., in contravention of the First Amendment." In International Association of Machinists v. Street (1961), the Courtheld that unions cannot utilize dues to support political causes if an employeeobjects. Andin Brotherhoodof RailwayClerks v. Allen (1963), the SupremeCourt suggestedthat unions adopt a voluntary plan to enable dissenters to avoid having a portion of their dues used for political expenditures. The principles developedin these three cases were applied to the public sector in Aboodv. Detroit Boardof Education(1977), whichconcerned an agencyshop clause undera Michiganstatute. Here, the Courtupheldthe validity of the agencyshopas long as the uniondid not require its members to support (through their dues) an ideological or political cause with whichthey disagreed. It is not a simple matter to drawa clear line distinguishing betweenthe acceptableand unacceptableuse of service fees. This problemwasfirst addressed in the private sector case of Ellis v. RailwayClerks (1984), in whichthe Supreme Court decided that "the test must be whether the challenged expenditures are necessarily or reasonably incurred for the purpose of performingthe duties of an exclusive representative of the employeesin dealing with the employeron labor-managementissues." The Court specifically approved national conventions, social activities, and publicationsas "necessarilyor reasonablyincurred," whileprohibitinga portionof the service fee for activities not directly related to contract negotiationor administration,or to grievancehandling.In Ellis, the court also found "inadequate"the union’s schemefor rebating the portion of the service fee not spent on allowable items. By collecting an amountequal to full dues, then refunding a portion later, the union was in effect borrowingfrom nonmembersand not providing them with a viable mechanismfor challenging the size or proportion of the rebate (see Darkoand Knapp1985). In ChicagoTeachersUnionv. Hudson(1986), the SupremeCourt specified a procedure for drawing a line betweenacceptable and unacceptable use of a service fee. The Chicago Teachers Unionhad negotiated a contract with the Boardof Education requiring nonmembers to pay a service fee of 95 percent of members’dues. The Court ruled that the union was required to give nonmembers "an adequate explanation of the basis for the fee, a reasonablypromptopportu-

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nity to challenge the amountof the fee before an impartial decision maker, and an escrowfor the amountsreasonably in dispute while challenges are pending." The nonunionemployeewas "entitled to have his objection addressedin an expeditious, fair, and objective manner."In the 1991case ofLehnertv. Ferris Faculty Association, the SupremeCourtprovidedfurther instruction by devising a threepart test to determinethe share of dues that maybe deductedfor a nonmember’s agencyfee. UnderLehnert, expenses are chargeable to nonmembers if they are (1) germaneto collective bargainingactivities, (2) justified by the government interest in labor peaceand avoidingfree riders, and (3) not significantly burdensometo free speech. Permissible expenditures include national and state union conventionexpensesand strike preparation costs. Disallowedare lobbying, electoral, andother political activity costs. The Ellis and Hudsondecisions cast doubt on the constitutionality of agencyfee practices in a numberof state and local jurisdictions, and are likely to result in additionallegal challengesin the future. At least twostates, Minnesota and NewJersey, haveacted to keepthe service fee issue out of the federal courts by statutorily providing for a maximum service fee percentage of 85 percent of full union dues (Volz and Costa 1989). Althoughthis approach holds promise for balancingthe unions’ free rider problemagainst the First Amendment rights of nonmember workers, morelitigation has followed in the state courts. Generally, the Lehnertprinciples havebeenappliedby state courts, but there are inconsistencies. Expensesfoundto be chargeableto uniondues in Indiana, for example, are not chargeable in Wisconsin(Lund and Maranto1996:35-45). The facts the individual situation determinewhichunionexpensesare payablewith dues of nonmembers. Several states haveexplicitly identified chargeableexpenses(e.g., California, NewJersey). As for proceduralsafeguards for recovering a dues rebate, at least eight states haveenacted such proceduresinto law (Lundand Maranto 1996:45-47). 9.

Unfair Labor Practices

Followingthe modelof the NLRA, most bargaining statutes specify unfair labor practices (ULPs) that must not be committedby public employers or unions. TheseULPsare intended to protect the rights of the parties under the law. Prohibitedpractices by public employersinclude: Interfering, restraining, or coercing public employeesin the exercise of their rights grantedunderstatute; Dominating,interfering, or assisting in the formationor administrationof an employeeorganization; Encouraging. or discouraging membershipin any labor organization throughdiscriminationin hiring, tenure, or other terms or conditions of employment;


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Dischargingor discriminating against an employeebecause he or she has filed chargesor given testimonyunderthe labor relations statute, or because he or she has formedor joined an employeeorganization; Refusing to meet and bargain in goodfaith with the recognized employee organization; Denyingrights of exclusive representation to the duly designated bargaining agent; Refusingor avoiding statutory impasse procedures; Instituting a lockout; Dealingdirectly with employeesrather than with their bargainingrepresentatives on matters within the scope of bargaining; Violating the terms of a collective bargainingcontract. Unfair labor practices by an employeeorganization mayinclude: Interfering with, restraining, or coercingpublic employeesin the exercise of their fights grantedunderstatute; Interfering with, restraining, or coercinga public employerwith respect to protecting the exercise of employeerights understatute or selecting a bargainingrepresentative; Refusingto meet and bargain collectively with a public employerin good faith; Refusingor avoiding statutory impasse procedures; Engagingin or instigating a strike; Hindering or interfering with an employee’sworkperformanceor productivity. Uponwritten notice from an employeror unionplaintiff, the administrative agency determines whether an unfair labor practice has occurred. The accused party has a certain period of time in whichto respond (normallyseven days). the alleged ULPis foundto havetaken place, the administrative agencygenerally has authority to issue a cease and desist order against the accusedand to reinstate any unjustly dismissed employees,with back pay. F. The Initiative

and Referendum

As illustrated above, state legislation is not the sole meansof regulating labor relations in the public sector. Court decisions, attorney general opinions, and executiveorders haveplayedsignificant roles in establishinglabor relations policies in a numberof states. Andin somestates, mostnotably California, an additional vehicle for public policy makinghas been utilized to governlabor relations-the public referendum. Twenty-four states permitcitizen initiatives to amendthe state constitution and adopt statutory law. Moststates also allow local initiatives and referendums.

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UnderCalifornia’s version of homerule, a local governmentcan amendits city charter through action by the legislative body(council), a charter commission, or citizen initiative petition. Normally,charter amendments or ordinances are enacted by council. However,the initiative petition has played an importantpart in California local governancefor morethan 90 years. The local initiative was used by police and firefighters to set wages, establish retirement systems, and enact rules governing working hours as early as 1907 (Crouch 1978:191). state initiative created the Civil Service Systemfor California local government workers,and the process also has beenutilized to establish prevailing wageprinciples and parity formulas. California’s state initiative procedurerequires supportersto obtain the signatures of at least five percentof the total votes cast for all gubernatorialcandidates in the last general election for a statewideinitiative. Proposition13, which severely limited state taxation and expenditures, was perhaps the most famous, or infamous(depending on one’s perspective), statewide measureever passed. Anynumberof local initiatives are decided each year throughoutthe state. That California’s use of the initiative has beenso popular is a function of the state’s political system.California has long beenknownfor its weakpolitical parties. Becauseinterest aggregation and articulation must occur if democracy is to be a reality, other entities--namely, interest groups--haveassumeddirection and somedegree of control over politics of the state. California politics is interest group politics, and nowhereelse have interest groups enjoyed more successful application of the initiative procedureas a meansof influencing and determining public policy. Needless to say, organized labor is one of the most powerfulinterest groups. The California State EmployeesAssociation (CSEA)and California Teachers Association (CTA)have used the state initiative process to achieve goals denied them at the bargaining table (Crouch1978:182-190),as have other local governmentemployeeorganizations. For example, in 1963 San Francisco police officers fought successfully for a charter amendment that authorized the city to pay police salaries equal to those paid by any other California city of over 100,000 population. Shortly thereafter, the Bay City’s firefighters obtained a charter amendmentrequiring pay parity with the police (Crouch 1978:194). However, increasing voter discontent with large salary gains by police and firefighters culminated in a rebellion of sorts in 1975, whenthe city governmentrefused to honor the wageand parity amendments.Police and firefighters went on strike, but voters used the initiative procedureagainst themby approvingstrong antiunion charter amendments.Anti-unioninitiatives have also been passed in Oakland, Santa Barbara,SanDiego,and other California cities. Throughthe initiative process, state employeeorganizations have suffered importantdefeats and victories. Onerecent victory was the defeat of Proposition 226, a "paycheckprotection" initiative that wouldhaverequired unions to obtain permissionfrom their


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memberseach year before spendingtheir dues for political purposes. State and local unions led an aggressive campaignwith radio and television spots and a voter turnout drive to reverse early public support for the paycheckprotection proposal, ultimately defeating it 53 to 47 percent (Mahtesian1998). The tremendousexpense of conducting initiative campaignshas dampened the interest of public employeesin this methodof policy change.(In California, it costs at least $1 million just to place an initiative on the ballot). However, employeeorganizations will participate aggressively whentheir interests appear to be threatened. G. Labor Relations in Nonprofit Organizations As a general rule, nonprofit organizations share the legal terrain with private sector organizations. The NLRA is the governinglaw for nonprofit organizations throughoutthe UnitedStates. Therapid growthof the nonprofit sector, along with a friendly environment for labor and its causes, haveheightenedunioninterest in organizing nonprofit agencies. As noted, SEIUand AFSCME have demonstrated special interest in nonprofits. Nonprofitmanagement tends to be at a serious disadvantagewhenunionization occurs. The board of directors and CEOmayfind themselvesin unfamiliar territory and with little or no knowledgeof the NLRA provisions. Evenif they wereinclined to fight unionization, they rarely havesufficient funds to hire a union-busting firm. Froma practical perspective, nonprofits differ fundamentallyfrom firms and public governmentorganizations in their missions, assumptions, and operating procedures. For example,a nonprofit that operates a numberof assistedcare homesfor the aged and disabled undera state contract mayfind itself in a dispute with one or moreunions demandinga substantial wageincrease. If they cannot or refuse to pay, the assisted-care workersmaylegally walk out the door, abandoningtheir patients. Whatis the role of the state governmentin such a situation? Legally, it probablyhas insufficient authority to intervene. Morally and politically, it mustact to protect the lives and well beingof citizens whodo not havethe resources to take care of themselves.Suchcrises haveinducedgovernors to take direct action to hike employeepay through an amendmentto the operatingcontract with the nonprofit. IV. SUMMARY AND CONCLUSIONS Thischapter has describedthe legal basis of labor relations in federal, state, and local governmentsin the United States, including the right to form and join unions, and the various statutes, ordinances, executive orders, attorney general and court decisions, and public referenda that have established labor relations

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policies for public employees.Provisions of the federal executive orders were outlined, followedby a description of Title VII of the 1978Civil Service Reform Act, and union-sponsoredefforts to convince Congressto enact national bargaining legislation for state and local employees. The"political laboratory" of labor relations policies in the states was examinedby classifying state policies into three groups, those with no statutory bargainingrights, those with partial coverage,and those with comprehensive policies mandatingbargaining. Majorprovisions of typical collective bargaininglegislation were outlined, including employeeand employerrights, administrative agency,unit determination, recognition, scope of bargaining, impasseresolution procedures, unionsecurity, and unfair labor practices. Unlikein the private sector, there is no single, coherent legal framework for public sector labor relations. In the federal sector, the Civil Service Reform Act regulates labor-managementrelations through an increasingly inadequate frameworkthat has not withstood the test of time. Federal unions struggle to justify their existence in the absence of union security arrangementsand of a broad scope of negotiable topics. The prohibition of bargaining over wagesand benefits is particularly burdensometo the federal unions. The "ReformAct" itself is in dire needof reform. It has beenonly for about three decadesthat public employeesin the United States haveenjoyedthe legally protected right to form and join employeeorganizations. Manystate and local governmentemployeesstill do not enjoy statutory collective bargainingrights. Giventhe long period of state and local government fiscal limitations, weakenedpolitical support, and negative public opinion, the legal status quofor unionsis likely to persist for years to come.Regionalvariations in labor relations policies and unionmembership will persist, with Sunbelt states and several RockyMountainstates likely to continue denyingbargaining rights to public workers. Withthe possible exceptionsof Indiana, Kentucky,and Maryland,the legal environmentwill probably be altered only at the margins, barfing the emergenceof a new pro-labor majority coalition in the respective state legislative bodies, or a profound change of course by Congressand the president. The legal environmentfor public sector labor relations is important, and deservingof careful attention by scholars and practitioners. It is very strongly associated with levels of unionization, the extent and nature of collective bargaining, and the general character of employer-employee relations. The legal environmentof public sector labor relations undergirds and shapes everything that follows in this book, and largely determineswhowinsand loses on the labormanagement playing field.

4 Fundamentals of the Bargaining Process

Collective bargaining and other forms of management-union relations in governmentare replete with formal and informal procedures, official and unofficial participants, and--perhaps aboveall else--politics. This chapter examinesthe multidimensionalbargaining process in the public sector and attempts to shed somelight on the mysteries of labor-management negotiations. At the outset, it is imperativeto consider the waysin whichcollective bargainingdiffers between governmentand the private sector. Next, the basic elements of the bargaining process are considered in somedetail. The chapter concludeswith a look at the internal and external politics of public sector collective bargaining.

I.

PUBLIC-PRIVATE SECTOR DIFFERENCES

Perhaps becauseof the sovereignty doctrine or, in somecases, the shockof early union successes in government,the differences in collective bargaining between the public and private sectors were often overstated during the 1960sand 1970s. Uponclose inspection, the samesorts of people and occupationsare involved in governmentand corporate jobs and frequently the work is identical. The dayto-day activities of the printer, the classroomteacher, the vehicle operator, the maintenanceperson, and the computerprogrammerare indistinguishable regardless of public or private ownership of their place-of employment.Fewwould dispute the claim that the duties of private sector hospital personnelare somehow less "essential" than those performedin the county hospital. Moreover,the principles and processes of collective bargainingexhibit manymoresimilarities than differences. Nonetheless, there are important distinctions to be drawnbetweengovernment and business concerningthe environment,actors, and processes of collective bargaining. 81

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A. The Environment The environmentof collective bargainingin governmentdiffers fromthat of business in four general areas: legal environment,financial incentives, the nature of work, and the role of politics. The legal frameworkfor unions and collective bargainingin governmentwascontrasted with that of the private sector in Chapter 3, with particular attention to statutory and regulatorypolicy. Private sector financial policy is driven by the profit motive. A corporate entity cannot remain"in business" unless assets and net incomeexceedliabilities and net outlays over the long haul. In simple terms, a corporation that falters must fold its tent and moveits operations to a morefavorable location (most recently to the Sunbelt or to a developing country), declare Chapter 13 bankruptcy, or negotiate a takeoverby a moresuccessful firm. Private sector organizations adjust financial policy in response to the demandsof the marketplace.For example,increased labor costs maybe passed on to consumersthrough boosting product prices; they maybe offset through introducing labor-saving technology; or they maybe digested internally through lower profits. The financial tribulations of NewYorkCity, Cleveland, Philadelphia, and other cities notwithstanding, general-purpose governmentscannot "go out of business." Municipalities mayfile bankruptcyunder Chapter 9 of the federal code, but they cannot lock their doors and lay off all employees,as Bridgeport, Connecticut’s unfortunate experience with Chapter 9 demonstrated in 1991 (Lewis1994). The uninterrupted provision of law enforcement,fire protection, potable water, sewerservices, and (especially during July and August)trash collection is critical to the health and well beingof the citizenry. Andwhileconsolidation of a financially troubled governmentwith a more healthy counterpart is a possible (though unlikely) alternative, Bridgeport did not have the option picking up and movingto Honduras.Furthermore, there is no profit motive in government. Higher labor costs must be passed on to consumersthrough a fee or tax increase or ameliorated through productivity gains. Becausethere are no "profits" to reduce, and a balanced budget is usually mandatedby law, governmentssometimesmust respondto higher labor costs with hiring freezes or reductions in force, or hope for a bailout from a higher level of government.Onthe whole,public sector choices are rather constrained. Similarly, the nature of the governmentservices differs from services provided by the private sector. In general, governmentservices are labor intensive. Theyalso tend to be monopolistic; typically there is no convenientalternative supplier of police and fire protection, water, sewage,or garbagepickup. This is not to say that no alternatives exist: one maysink one’s ownwell, install a septic tank, and take the trash to the nearest sanitary landfill in the trunk of the family vehicle. Volunteerfire departmentsare responsible for protecting the great pre-

Fundamentals of the BargainingProcess

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ponderanceof property in the United States, private schools educate hundreds of thousandsof children, and private security finns and citizens’ organizations can performthe police function at least to a limited extent. Indeed,one is hard pressed to imaginea single governmentfunction that could not in theory (if not in practice) be performedby a nongovernmentalentity. However,the point is that alternative services are not immediatelyavailable in mostcases. Theimplications of an employeestrike in services essential to the health and safety of a community are obvious, and not taken lightly. Finally, public sector labor relations are deeplyand inherently suffusedin politics. Theactivities of all labor unions(organizingworkers,lobbyingelected and appointedofficials, influencing public opinion, and representing workersin collective bargainingand grievanceprocedures)are highly political in nature. But the level of politicization is muchgreater in the public sector. Theprimary distinction betweenthe politics of public and private sector unions and bargainingrests in the basic contexts of the two systems: the public arena (and public policy) versus the marketplace(and corporate policy). vate sector finns are responsive to the citizenry primarily through adjusting to and influencing consumerdemandfor their products. In the public sector, governmentservice providers must be responsive not only to their immediate "customers,"or service recipients, but also to elected officials, civil servants, the voting public, and other levels of government.Collective bargainingassumes a multiparticipant character, with its outcomeshighly dependenton the political interplay betweenunions, elected officials, interest groups, and taxpayers. In addition, the access points of labor organizations to the governmentemployer are muchmore extensive than those of private sector unions. For example, in government, public employeesmayhelp elect their ownemployers through voting and campaignsupport. As pointed out by Stieber, "In both public and private sectors, organized employeesuse power to affect the distribution of resources and the management of men[sic] and materials. In the private sector they do this primarily as employees.In the public sector they exert influence as employees,as pressure groups, and as voting citizens" (Steiber 1973: 2O). The reason for the high level of involvementby governmentemployeesin politics is principally becauselegislative bodieshavethe authority to appropriate funds and can pass laws that supersede agreements betweenlabor and management. Therefore, both labor and management devote attention to the bargaining table and to whateverpolitical entities and individualscan help themrealize their objectives. This is not to say that private sector bargainingis apolitical and that private meetingsdo not occur. But spendinga great amountof time dealing privately with parties awayfrom the table wouldno doubt be considered bad faith bargainingin the private sphere.

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B. The Parties Theprincipal actors in private sector labor relations havewell-definedroles. The unionteamentails the unionleadership, bargainingrepresentatives, and rank and file; the management team includes designatedlabor relations specialists and negotiators. Both parties are likely to have legal counsel at the table or readily available. Teamsmayvary on occasion as specialists are brought in to address special topics such as pension or health care benefits. Management authority is firmly situated at the top of the organizationalhierarchy. Majorcorporationsdelegate responsibility for contract negotiationsto specified individuals within various divisions. Division management is rewardedaccordingto that division’s contributions to corporate profits; profits dependin large measureon minimizing labor costs. Typically, division heads are assisted in collective bargainingand contract administrationby a personneldirector or industrial relations specialist, whose future with the company ¯ .. dependsuponhoweffectively he manageshis areas of responsibility. ¯.. If, in negotiation, he surrenders those management prerogatives his superiors deemessential, or if he is too lenient with the unionin any other aspect, he will morethan likely be removedfromhis position... if he does his job well, he will be rewardedby advancement,and his salary and other benefits will accordinglybe increased; he has twopositive motivations, and both are important" (Shawand Clark 1972b:869). Union negotiators whodon’t deliver for the membershipface the same grim fate as does management’s negotiator. The quality of the collective bargaining agreementis alwaysan issue during union elections. Management’s labor relations roles are sometimesclearly defined. Separate staff functions for labor relations are foundpredominantlyin the largest local governmentsand in states with comprehensivebargaining laws and manyyears of bargainingexperience.In other jurisdictions, the responsibility for labor relations is not clearly fixed. Thisis unsatisfactoryfor at least tworeasons:"First, becauseresponsibility for collective bargainingis not explicitly assigned,no individuals are ascribed the specific obligation to promoteand protect management’s interests. Second,since labor relations is not recognizedas a distinct function, the individuals uponwhom this responsibility is thrust are still expectedto perform their normalduties... " (Shawand Clark 1972b:870). Faced with a wellpreparedopponent,disorganizedparticipants pay high costs. Blurred management responsibility for labor relations fosters motivation problems.Motivationsuffers whena poorly trained, part-time negotiator fails to see howthis temporaryjob assignmentwill further his or her career. Unclear management responsibility also invites the unionto exploit any fragmentationor inconsistency in management’s position. Whileprojecting team solidarity on both


85

sides of the table is a time-honoredtradition, certain differences usually exist. In other words, the apparent team solidarity is usually an illusion and a good negotiator detects it. Thelonger the bargaininggoes on, the moredifficult it is to sustain motivationor maintaina false front. Negotiations are not a war, a game,or an exercise in sheer cunning. No amountof style can substitute for preparationand teamwork.It is imperativethat both sides cometo the table focused, organized, and prepared to work hard to reach a settlement. It is one thing to fail to negotiate a fair contract becauseof the nature of the issues or the determinationof the other party not to makeconcessions. It is quite anotherfor negotiationsto breakdownbecauseof a lack of clear lines of authority or failure to prepare. Unfocusedmanagement responsibility for labor relations is compounded by the diffused nature of management authority in government.As evena passing familiarity withfederal and state constitutions reveals, Americans believe firmly in the separation of powersand checksand balances amonginstitutions of government. Poweris divided both betweenlevels of government(federal/state/local) and within individual governments (executive/legislative/judicial), and all relationships are characterized by elaborate provisions for checks and balances. In this context, labor relations responsibility is ambiguous.Withrespect to local governmentlabor relations, for example,the federal governmentregulates some workingconditions, the state legislature mayestablish benefits packages,and the city council mayset salaries. Anysearch for a coherent chain of command is tedious, and compounded by the election cycle. This diffusion of management authority posesserious problemsduringthe early stages of a collective bargaining relationship, and it encouragesunions to circumventformally designatedmanagementrepresentatives through"end runs" to moresympatheticindividuals. At the very least, the process becomesextremelypolitical. A final nettlesomeproblem concerns howmerit systemprovisions meshor clash with collective bargaining. Central personneloffice staff typically participate in or closely observethe negotiations process to discern howany agreementwill affect provisions of the merit system. C. The Process Finally, public and private sector labor relations differences exist in the process of collective bargaining. Someof themare obvious. For example,the diffusion of management authority results in multiple decision points in governmentlabor relations. Andas previously noted, the bargainingprocess is highly politicized in government,and influenced strongly by citizens and interest groups.Moreover, someof the formal elements and steps in collective bargaining differ, such as the legal absenceof the strike option in mostgovernmentjurisdictions and the correspondingreliance on other impasseresolution procedures. The next section

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discusses the elementsof the collective bargainingprocessin government,pointing out the distinctions betweenthe public and private sectors whereappropriate. II. IDENTIFYING A UNION AND GETTING A CONTRACT: THE ELEMENTSOF COLLECTIVE BARGAINING Recognizingthat informal, meet and confer arrangementsare not uncommon in government,especially where negotiations are not sanctioned (see Brownand Rhodes1991), this section limits discussion to conventionalcollective bargaining relationships. "Collective bargaining"refers to the continuousprocess in which representatives of the employer(government)and employees(the union) jointly to establish the terms and conditions of employmentfor workers in a bargainingunit. Thediscussion proceedssequentially from bargainingunit determinationto contract ratification (see Figure4.1). Strikes, impasseresolution procedures, and contract administration receive extensive treatment in subsequent chapters. A. Bargaining Unit Determination Unit determination refers to the identification of a certain group of employees for the purposes of collective bargaining; this groupof employeescomposesthe

Unit Determination [

b[ Co~tractNegotietion]

[

Representation Election/ Show of Mejodty SuppoltI

Certification of Bargaining Representative

FIGURE 4.1 Thecollective bargainingprocess.

II’ I Contrac~Adminislration [


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bargainingunit. The appropriate bargainingunit maybe (1) specified by a state administrativeagency,in accordancewith statute; (2) arrived at throughadjudication on a case-by-case basis; or (3) be congruentwith a union’s demandto recognizedas a bargaining agent because it has majority support from members of a preliminarybargainingunit. Supportfor the unionis documented by eligible employees signing cards or petitions for the unionto be recognizedfor collective bargaining. In federal employment, unit determinationis the responsibility of the Federal LaborRelations Authority; in the private and nonprofit sectors and in the health care industry, the National LaborRelations Boarddeterminesunits. Duringthe early (prestatutory) years of collective bargainingin state and local governments,the makeupof the bargainingunit frequently was decidedby the union’s preferences and the exercise of political power;management simply concurredout of weaknessor ignorance. In mostcases today, however,the process is set forth in statute or in the administrativeproceduresof a state public employeelabor relations board. Proceduresfor unit determinationand certification usually require multiple steps: petition for a certification election, proper showingof employeeinterest in the election, a hearingto establish the petition’s validity, determinationof the unit by an administrativeentity, andfinal certification (see Figure4.2). In mostjurisdictions a proper showingof interest requires evidencethat at least 30 percentof the workersin the proposedunit desire collective bargainingrepresentation.Thehearingtypically is usedto gather information on the validity of the showof interest andthe timelinessof the petition. A petition is timely only if (1) there has not been an election within the past 12 months, (2) an existing certification is not in effect, and(3) a valid collective bargaining contract is not in effect (Rubin1979:123). Statutory and administrative agencycriteria for unit determinationdecisions vary greatly, but usually take into accountthese factors: (1) community interest, (2) bargaininghistory, (3) extent of prior unionorganization,(4)

Show of Employee Interest ]

Procedures

Petitionfor Election

bl

Determines ~e Unit

FIGURE 4.2 Stepsin determining the bargainingunit.

Cer~fication

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ciency of agencyoperations, (5) avoidanceof fragmentationof bargainingunits, and (6) exclusion of supervisory and confidential employees.The parameters the unit maydependin part on the union’s membershipstructure. AFSCME, for example, maydesire a citywide nonuniformedbargaining unit, while IAFFis likely to wantuniformedfirefighters only. Generally,the unionwantsa unit that will support it in the representation election, and that will be strong enoughto negotiate a favorable contract. Community of interest, usually the mostcritical criterion in determining the bargaining unit, refers to job factors held in common amongemployees.They are engagedin similar workor are treated in a similar fashion by management. The wishes of employeesare also taken into consideration. Workerswith clear conflicts of interest are not usually placed within the sameunit (e.g., teachers and principals). Bargaininghistory refers to previousrelationships betweenlabor and management within the jurisdiction, including patterns of negotiation and recognition that mayreflect traditions or appropriatenessof unit determination. Theextent of prior unionorganizationwithin the bargainingunit refers to previous unionefforts to force representation elections, and current unionmembership structure. Efficiency of agencyoperations becomesa factor wherea proposed unit woulddisrupt standard personnelpolicy and practice. Fragmentation of bargainingunits, whichis especially likely in the absence of legislative guidelinesor administrativeregulations, is related to unit size and the occupational characteristics of unit members.The conventional wisdomis that a large numberof small bargainingunits creates serious administrativeproblems for management,which is faced with multiple, time-consumingnegotiations, constant problemsin administering the labor agreement,end runs (where the unioncircumventsthe official government bargainingteamby taking its case to elected officials or other third party "friends"), leapfrogging (whereeach unionfights to set its wageincrease and other bargaininggains at a level higher than any other union’s), and disruptive jurisdictional battles andrivalries between competingorganizations (Spero and Capozzola 1973:142-145). Additional disadvantages of a large numberof bargaining units are the difficulty in maintaininguniformityand equity in wages,benefits, and working conditionsfor all workersin the jurisdiction, a greater potential for conflicts and job actions, andproblemsin estimatingtotal labor costs in the jurisdiction’s budget. Finally, fragmentationmeansinefficiency and complexity.In a state governmentwith 50 bargaining units, management might have to go to the table half a hundredtimes with assorted unions. Significant administrative support is required on behalf of both parties. Andthe administration of numerouscontracts with multiple unions can be a nightmare for management and a headache for union leaders (whofind that what they have negotiated is comparedby their memberswith the performanceof every other bargaining agent). Thebargaining unit is also the election district in whichemployeesvote


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for a union(or for no union)to represent them. Objectivecriteria for unit determination notwithstanding,unions have a pragmaticinterest in organizing units for whichthey can win elections against other unions and the employer.An analogy is foundin activities to reconfigure legislative districts followingeach census. Whilethe principles of goodgovernmentand fair representation maybe espoused to justify a changein boundaries,gerrymandering districts to favor one candidate or party over another is common practice. Because of these widely recognized problems associated with bargaining unit proliferation, there has been a tendencyto consolidate existing units. This trend seemsto be amplified by fiscal stress. In NewYorkCity, for example,400 units were collapsed into fewer than 100 over a 10-year period; in the federal government,the Civil Service ReformAct encourageda 32 percent drop in the numberof bargaining units from 1975to 1981. At the state level, problemswith unit fragmentationhave also led to a trend towardstatewide units. Thus, the boundariesof bargainingunits are not etched in stone. Theymay be amendedthroughunit clarification proceduressuch as accretion, whichpermits assimilation of employeesfilling newlycreated positions, and consolidation, whichcombinestwo or moreexisting units into a single entity. A controversial consolidation issue involves combiningpolice and firefighters into a single unit within a public safety department.Strong professional identification by members of each group leads to vigorous opposition to consolidation. Frequently, police and firefighters’ unions attemptto negotiate a ban on consolidation into the contract (see Wolkinsonet al. 1985). Despite the trend towards--andargumentsin favor of--large units, numerous small bargainingunits offer certain advantages.First, it is simplerto identify the bargaining interests of a small unit. Diverse membership interests within a broad unit can create negotiating problemsand tensions that the union mayfind difficult to manage.The union, for instance, mayhave trouble placating each faction in the bargainingunit. Second,a small groupof craft or other specialized workersmighthaveits interests ignored within a larger unit, and thus can makea case for separate recognition. This is closely related to the community-of-interest principle whichposits that employeeswith similar workand job interests should be located within the sameunit. Third, there is evidencethat in somecases small, occupationallybasedunits reflect the needsand objectives of their members better than units organized along departmental or agency lines (Perry and Angle 1981). Finally, from the perspective of the public employer, small bargaining units can be dealt with effectively in somecases througha strategy of divide and conquer. Small units tend to be weakin political powerand thus easier for the employerto dominate. Thesixth and final criterion usually taken into accountin unit determination decisions is the exclusion of supervisory and confidential employees.In the private sector, Taft-Hartley excludes supervisors from membershipin a bargaining

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unit. Supervisors in the federal governmentare likewise prohibited from being represented in a bargainingunit. Elevenstates, like the federal governmentand the NLRA,deny all bargaining rights to supervisors. Six states exclude only certain classes of bona fide supervisors. Eighteen permit supervisory bargaining by creating separate units for supervisors. The most prevalent approach, used by 22 states, is to providefor mixedunits of supervisors and rank-and-file employees (Douglas1987). Forces such as downsizingand decentralization of authority are pushing local governmentsupervisors in the direction of collective bargaining to protect their jobs and to secure pay raises commensuratewith those wonby their unionizedsubordinates (Piskulich 1995). The conventionaloperating assumptionis that supervisors are part of managementand therefore should not be permitted to bargain in league with their subordinates. Moreover,supervisors included in subordinates’ bargaining units wouldlikely face significant role conflicts, be less loyal to management, and be less effective in dealing with disciplinary problemsand grievances. However, evidence concerning these assumptionsis mixed(see Scott and Seers 1987), and the question of supervisors’ bargaining rights remains very muchunresolved. In the private sector, it is usually simple to distinguish supervisors from nonsupervisory employees, with the exception of someskilled trades such as printing and construction. In government,however, the laws are variable and "sprawling bureaucracies makeemptyshells of manyimpressive titles" (Spero and Capozzola1973:145). Furthermore, public sector managersfrequently hold close working relationships with and perform manyof the same duties as the rankand file, particularly in such functionsas police and fire protection, nursing, and teaching. As team approachesto work continue to expand, role ambivalence amongpublic sector supervisors will keep pace. The principle that legitimate, bona fide supervisors should not be placed with their subordinates in bargaining units is seldomdisputed. The bona fide supervisor is the primary management agent in contract administration, and, to further the goals of the organization, he or she should be committedto the managementpoint of view. The key determination that must be made is whois a bona fide supervisor and whois a supervisor only in title. Froman analysis of roles and attitudes of local government"supervisors" in Iowa, Hayford(1975) was able to distinguish clearly betweenbona fide supervisors and others. He foundthat the two groupsdiffered substantially in their attitudes towardmanagement, with bona fide supervisors identifying moreclosely with management than less-than-bona fide supervisors. Hayfordsuggests that there should be no presumptionof bona fide supervisory status for all supervisory employees.Instead, collective bargainingstatutes and administrative proceduresshould spell out what constitutes a bona fide supervisor and exclude those individuals from bargaining units composedprimarily of subordinates. Less-than-bonafide supervisors can be placed within units of rank-and-file employees(Hayfordand Sinicropi 1976).


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Several states have adopted this approach, including Wisconsin, Connecticut, Nevada,and Oregon, whichapply an NLRA-type operational test to the definition of supervisor and then exclude only bona fide supervisors from bargaining law coverage. Typically, bonafide supervisors have the authority to hire, fire, promote, and discipline, or are involvedin policy formulation,collective bargaining, or contract administrationactivities. That supervisoryidentification is not alwaysa cut and dried affair is illustrated by the complexities of higher-educationinstitutions. The management line is drawnat the level of the departmenthead in somestates, and at the dean’s office in others. Recall from Chapter 3 that the U.S. SupremeCourt held that faculty at YeshivaUniversity held certain managerialduties, including involvementwith hiring and retention decisions, and therefore had to be excludedfrom faculty bargaining units (National LaborRelations Boardv. Yeshiva University 1980). Althoughthe Yeshiva case directly applies only to private colleges and universities, its implications for public institutions have not beenoverlookedby interested faculties and administrations. Whenmanagersjoin a union and win collective bargaining rights, they may encountersomeinteresting role conflicts. Asmanagers,they tend to have a natural antipathy to unions, and they will fight tooth and nail to defend management rights. But as union membersthemselves, managersare aligned against their own appointed and elected bosses. In a sense, these "supervisors have discovered howto have it both ways: managerial authority with union benefits" (Piskulich 1995:281). Aninteresting concept related to unit determinationis multiemployerbargaining. Multiemployerbargaining involves two or more employers negotiating a labor agreementwith one or moreunions. It should be distinguished fromcoalition bargaining, whichinvolves only one employer. Coalition bargaining occurs whena single employersimultaneously negotiates a single contract with two or more unions. This relationship existed in NewYork City from the late 1960s through 1980, as the City negotiated a common,or master, agreement with several of its unions in an attempt to cope with its fiscal crisis (Lewinand McCormick 1981). Multiemployerbargaining in the United States maybe traced back to about 1900, whenprivate employerassociations were formed to oppose the emergent unions. Private sector multiemployerbargainingtoday can be either industrywide, as in the railroad and coal industries, or areawide, where employerswithin a region or city join together to bargainfor their industry. Themajorpurposebehind multiemployerbargaining in industry is to achieve uniformity in wagesand working conditions within an industry, region, or locality (Mansfield1979:165). The experience with multiemployer bargaining in government has been limited, but it does hold someattraction. Manypublic jurisdictions draw from the same area labor pool and the same union often represents similar workersin

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the neighboring jurisdictions. Municipal employers can save moneyand staff time by pooling their resources for collective bargaining, including contracting with a professional negotiator to direct bargainingactivities. Standardizedwages and workingconditions in comparablejurisdictions becomefeasible, helping stabilize the labor market. Multiemployerbargaining also avoids whipsawing,where a union uses a "modelcontract" wonin a jurisdiction as the baseline standard for future bargaining demandsin other jurisdictions, thereby playing one employer against another in a continuing gameof one-upsmanship. There are somepotential disadvantagesas well. Contracts maytake longer to negotiate because of additional participants. Compensationand terms of employmenttend to rise to the level of the most generousjurisdiction. Strikes can be muchmoresevere if an impasse arises, affecting all the employers in the bargaining alliance simultaneously. Anotherconcernis that the autonomyof governmental jurisdictions is compromised by the multiemployerunit, undermining the "delegationdoctrine" (found in state constitutions and local charters), which prohibits the delegation to another entity of the legislative powerto enact laws (Kimmelman 1975). Finally, employeeunions must usually consent to multiemployerbargaining, but the benefits to the union are not obvious, other than somesavings in the cost of negotiations. B.

The RepresentationElection or Showof Majority Support

Whende facto bargaining arrangementsexist, a union has already been selected to represent workers, and no newelection need be held if a newcollective bargaining statute is enacted. In most instances, however,there must be a formal determinationof whichunion, if any, shall represent the unit in collective bargaining. This maybe accomplishedthrough a representation election or by the employer’svoluntary recognition of the unit representative. Thelatter normally occurs only where a single employeeorganization seeks recognition and is able to demonstrateto the satisfaction of the employerthat it enjoys the support of a majority of the employeesin the unit. If morethan one union is involved or majority support has not been demonstrated to the employer’ssatisfaction, a representation election is normallyheld. The election maybe requested by the employeror, under somestate laws, by a union. If the union asks for an election, it usually must present evidence (a "showingof interest") indicating a showof support of at least 30 percent of the bargainingunit (this figure is required by NLRB rules for the private sector and by several public sector statutes). This showingof interest or supportis typically done by employeessigning "authorization cards" designating a union to represent them or by signing a petition for the samepurpose. In comprehensivebargainingstates, the showof supportis validated by the state labor relations agency.


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Onceit is decidedthat a representation election will be conducted,a number of procedural problemsmust be resolved, including whowill pay for the election and whowill administer it. Typically, the PERB or other state labor board will do both. Next, the agencymustdeterminewhois eligible to vote (typically, those employeesworkingwithin the unit on election day), whenthe election is to be held (usually within 30 days), the type of election (public or secret ballot), what vote is required for certification (usually the majority of votes cast, but Illinois and Indianarequire a majorityof all eligible voters). As a general rule, the secret ballot is preferred. Useof the secret ballot, a longstanding tradition within the Americandemocratic experience, helps protect voting employees from undue preelection pressures from managementor the unionand, after the election, fromretributive measurestaken by a sore loser. A unionelection for representation rights looks muchlike any election for public office. For example,there are voting booths, voter lists, and rules against campaigningnear the polling sites. Before voting day the employerposts notices of the forthcomingelection and takes other steps to ensure a large turnout of eligible voters. Eachof the principal parties usually is permittedto post observersat the polls and at the site whereelection results are compiled.The ballot itself includes the namesof all organizations demonstrating a showof support and a choice of "no representative." In the event that none of the choices receives majority approval, a runoff election is held betweenthe top tworecipients of votes. Votingmatters, particularly whenturnout is low. In Florida’s first election for a statewideadministrative clerical unit of nearly 30,000 employees,AFSCME certified the unit with only about 5,000 votes. During the period preceding the election, management mayattempt to influence the results through various activities. Employer-induced election delays can help management’scause. Implicit indications of future compensationincreases or an improvedbenefits packagecan also boost the employer’schances. Unionsuppression tactics mayeven continue after a union election victory, through formal objections, court action, and other activities (Hunt and White 1985; Lawler and West 1985). As noted in Chapter 1, employersin the private sector often use illegal tactics such as threats and reprisals to suppressunions, and sometimesthey get awaywith it. Such behavior is less common in government, but not unknown.Becausethese are all considered unfair labor practices, charges can be filed by the injured party with the appropriate labor board for redress. If an employeeorganization wins majority support, and various challenges to the election are resolved short of a changein outcome,the union is certified as bargainingrepresentative. Obviously,if "no representative" is victorious, the unit remains unrepresented for the purposes of collective bargaining. An "elec-

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tion bar" typically prohibits newelections for one year, in order to give the union sufficient time to negotiate a contract and otherwise"proveitself." C. Certification of the BargainingRepresentative Certification by the state or local labor relations agency(or FLRAin federal employmentand NLRB in the private sector) normally stands for at least one year fromelection day. Thestatus of unit representation thereafter maybe challengedby a rival organizationor by dissidents within the certified unionthrough petition for a decertification election. Election proceduressimilar to those outlined abovethen comeinto effect to determineif the unionwill be decertified as bargainingrepresentative, a fairly common outcomein the private sector since the early 1980s, but still rare in the public sector. Theprocessworksin the same wayas certification only in reverse, with a showingof interest of 30 percent to decertify the union and a subsequentvote. Workersmaydecertify unions for a variety of reasons, including nonresponsiveness to memberneeds and demands, anti-union campaignsby the employer, and the union’s failure to win and maintain favorable wages, benefits, and workingconditions. If the union loses, it ceases to function as bargaining representative. A second election maythen be held on whether to select a new representative; otherwisethe collective bargainingstatus of the unit is dissolved. The employergrants exclusive recognition to the successful employeeorganization. Exclusiverecognitionprovides substantial benefits to both the employer and the union. Theemployeris assured that the union, and only that union, will represent all employeesin the bargaining unit whetherthey are membersof the union or not. Management will have only one organization to deal with, simplifying administration, saving time, and eliminating costly interunion struggles. The unionis guaranteedthat management will deal with it alone concerning any issue within the scopeof bargaining, at the bargainingtable, or during administration of the contract. Exclusiverecognition also benefits employeesbecause a negotiated contract applies to all members of the bargainingunit evenif they are not dues-payingunion members.The organization has a duty to fairly represent all employeeswithout any form of discrimination or favoritism (see Vaca v. Sipes 1967). The duty of fair representation can be a double-edgedswordfor a union, however.If a union fails to adequately represent a memberof the bargaining unit, it maybe sued for lost earnings or other damages(Bowenv. U.S. Postal Service 1983). D.

Negotiating the Contract

After unionrecognition westep into the heart of labor relations--the negotiation of the contract betweenunion and management representatives. Bargaining is a wayto changethe terms and conditions of a relationship and to makedecisions


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betweencompetingalternatives. It is what happensat the bargaining table that will largely determinethe tone, context, and commitments in labor relations during the next one to three years. The satisfaction of employeeswith their wages, benefits, and workingconditionsis directly influencedas is the financial solvency of the jurisdiction. At issue as well is the nature of the relationship betweenthe parties. Poor relations betweensomeunions and employershave little to do with presentday issues, but rather reflect bitter memories of unresolvedprior conflicts. Resentmentsand revenge can blur the primary objectives of the bargaining process, whichis to provide both parties with an agreementthey can live with and to achieve goodworkingrelations with representatives of the other party. 1. The Participants (a) The Union. Managementand union representatives are the direct participants in contract negotiations. Unlessan impassenecessitates the intervention of a third party neutral or other individual(s), labor and management representatives, sometimesassisted by a hired professional negotiator, hammerout the terms of the labor agreementon their own.Later, of course, the contract must be ratified by the union rank and file and by elected public officials, but the contract wheelingand dealing is the responsibility of the individuals sitting across the table from one another. The leading union figure--not only during contract negotiations but throughout virtually the entire process of labor-management relations--is the unionleader, or president of the local. Whilethe unionleader has manyresponsibilities, it is primarily what he (the vast majority are men,so the masculineform is used) carries to the membership from the bargaining table that determines his tenure in the position. Victor Gotbaum(1972:77), former President of District Council 37 of the AmericanFederation of Teachers, describes it this way: "It is one thing to showworkers newhorizons. It is more important, however,to obtain a wagethat feeds and clothes their families .... If his wagesdo not keep up with the cost of living, hell will have no fury like the worker scorned." Thejob of the unionleader is a demanding one, requiring strong political, managerial, and oratorical skills. Unionleaders havebeen found to exhibit high activity and energylevels, strong goal direction, idealism, and a desire to change things for the better (Sayles and Strauss 1967:58-60). The successful union leader mustnormallybe a sharp negotiator and an effective public relations person as well. He is faced constantly with the needto provehimself to his membership, whomayinclude militant extremists, avoweddissidents, loyal supporters, and the apathetic. "The script," according to Spero and Capozzola(1973:115), "calls for a mixtureof reason, explosivetalk, threats, fear, justice, optimism, and pessimism." The union leader must be careful not to appear too friendly with managementor he will risk dissension that mayproducea strong opposingfaction within

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the union, and ultimately result in membership rejection of a negotiated contract. Obtainingratification of agreementsis probablythe most difficult problemthe union leader confronts. The membershipmayspurn the proposed contract becauseof dislike or distrust of the leader, overblown expectationsfor a settlement, disenchantmentbecause of moresubstantial gains wonby other organizations, or for any numberof other reasons. Thus,it is very importantfor the unionleader to keep his finger on the pulse of the organization and be highly persuasive in communicatingwith the membership. A time-tested meansof "rallying the troops" for a leader whosestatus and position are challengedis to create a crisis and an "us versus them"situational perception, not a difficult task given a highly adversarial and emotionalbargaining context. Ovenenmitybetweenthe late union leader MikeQuill, President of the Transport Workers’Union(TWU),and his nemesis, MayorJohn Lindsey, wasevident during the 1966NewYorkCity transit strike. Quill took great delight in humiliating "Lindesley," publicly calling him a "pipsqueak" and an "ungrateful sourpuss" (Horton 1973:80-81).Quill carried his disdain for the Mayor and other opponentsto newtheatrical heights. Duringthe strike (Raskin 1972: 129-130), "The TWU chief was near death from heart disease; he had to swallow great gobsof pills in his moments of privacy; but noneof themdulled his appetite for melodrama.He went before the television camerato tear up no-strike injunctions like confetti. Whena judge orderedhimcarted off to jail, he said, "Let the judge drop dead in his black robes." Whilesuch dramamayhelp unite the rank and file behind the union leader and drawclear lines of battle with management, it can severely inhibit agreement makingand compromisewhencarried too far; settlement maycomeonly after a protracted and painful strike. As management-union relations have matured, such histrionics haveyielded to cool professionalismand quiet political deal making. In manysettings, bargainingresponsibility is turned overto unionstaff, with the leader active only behindthe curtain. Perhaps more so than most organizations, unions are victims of the "Iron Lawof Oligarchy." As originally described by Michels (1949), the Iron Law Oligarchyrefers to control of an organizationby a small, self-perpetuating, selfinterested elite. The membership,except during times of extraordinary provocation, remains apathetic. Evenwhennewleaders emerge,they soon revert to oligarchical tactics in order to thwart oppositionand ensure their ownsurvival. This pattern does indeed appear to be applicable to most labor organizations wherea leader emerges,consolidates power, and along with a small but loyal staff, controls the organization’sactivities with an iron fist. Contract rejections by union membership mayreflect a certain level of dissatisfaction with this situation, and the perception (sometimescorrect) that the leadership is cutting "backdoor deals" with management while maintaining an elaborate public charade. Occasionally, disenchantedopposition groups arise to challenge the union


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and to displace the leadership. For someunions, such as NewYorkCity’s Transit WorkersUnion, organized rank-and-file revolt is a fact of daily life. The TWU represents bus and subwayworkers,a diverse, volatile, and chronically dissatisfied lot. Since the 1940s, various factions haveattempted to unseat the ruling oligarchy. The most recent is Hell on Wheels/New Directions, whosegoal has beento break up the entrenchedunionbureaucracythrough electing its Ownsupporters to leadership positions and throughindependentlyorganizingjob actions, such as shutting downthe BrooklynBridge at rush hour. Hell on Wheels/New Directions gained strong influence in the TWU during the early 1990s, only to face its ownchallenge by a splinter group in the late 1990s(Downsand Schermerhorn1999). The roles and behavior of rank-and-file union membershave received some scholarly attention. Child et al. (1973) suggest a four-celled typologyof member attachment to the union, based uponthe congruencebetweenunion policies and memberexpectations. A "cardholder," the most typical member,is committed to the organizationas long as she benefits fromits policies. The "troublemaker" is highly involvedin unionaffairs but his notion of what union policies should be is not congruentwith that of the ruling elite. The"stalwart"also is veryactive in the organization,but she is loyal to the leadershipand personallyidentifies with union objectives. Finally, the "alienated member"maybe ideologically opposed to unions themselvesor, in somecases, a defeated former troublemakerwhohas withdrawnfrom active union involvement. Recently, researchers have beeninterested in identifying the correlates of employeecommitmentto the union. The level of commitmentis important because it helps determineunion effectiveness in organizing, bargaining, retaining membership,and political action (Gallagher and Clark 1989). Four dimensions of union commitment have been identified (Gordonet al. 1980): union loyalty-member pride in the union; responsibility to the union--the extent to whichthe member fulfills the obligations and duties of membership; willingness to do special workon behalf of the union; and belief in the concept of unionism. Interesting differences characterize male and female members.Women tend to believe there is moreto be gained from union membershipand express greater loyalty to the organization than men,but women appear to feel less responsibility to the union and are not as willing to workfor it. This divergence could be due to the fact that womenhave greater family commitments that limit their ability to participate, and because menstill dominatethe top leadership positions (Gallagherand Clark 1989:57).Little difference has beenfoundin participation rates of blacks and whites (Hoymanand Stallworth 1987). Hispanic participation has not beenreported in the publishedliterature. Importantly, union commitment is positively related to commitment to the employer:the quality of one relationship apparently feeds the other (Gallagher and Clark 1989:58-60). But union commitment is bolstered by a poor relation-

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ship betweenthe memberand his or her immediatesupervisor, and by a positive perception of the union steward. Membersalso appreciate open and frequent communication with the union, democraticprocesses (Jarley et al. 1990), an effective grievanceprocedure(Clark 1989), and, of course, a union that produces the bread and butter--good pay and benefits (Fiorito et al. 1988). Are union membersmore satisfied with their jobs than nonmembers? Research findings are somewhatcontradictory (Freeman1978; Kochanand Baderschneider 1981). Duringan organizingcampaign,the union mayattempt to garner support by pointing out negative aspects of the job. But oncecertified, it is in the union’sbest interest to increase workersatisfaction throughcollective~’bargaining, and to proudly herald the manybenefits wonfor membersof the bargaining unit. In other words, happymemberskeep the union in business (Gordon and Denisi 1995). (b) Management.The initial problem that must be confronted by a jurisdiction becominginvolved in union-management relations is developing a satisfactory operational definition of "management." In government,as we have already observed, there are myriadcomplicationsin identifying and designating managementfor the purposes of collective bargaining. Powerand managerial authority are divided amongthe three branches of government. For example, personnelauthority is situated within the executive branch, while budgetauthority resides with the legislative body. Both are critical to negotiating outcomes, yet the twofunctions are rarely coordinated.In addition, budgetaryand personnel authority are themselvesfrequently fragmentedamongvarious agencies and departments. Further management identification problemsare created by overlapping functional responsibilities and jurisdictions amongthe approximately87,000 governmentalentities in the United States; state and country welfare agencies provide one commonexample. Jurisdictional confusion in managementauthority is compounded by the intergovernmentalnature of governmentrevenues. It is highly unusual for a public jurisdiction to raise all its funds fromits ownsources. Thegreat majorityof governmentalentities drawrevenues from a variety of sources, including other governments.The federal grant-in-aid is the prototypical example,in whichbillions of federal dollars are transferred to state and local governments for various functions. The transfer of dollars is almost always accompaniedby "strings" on howthose funds maybe spent. Whenthe strings apply to personnel-related expenditures, as they often do, management authority in a very real sense is located one level of governmentremovedfrom collective bargaining activities, thereby obscuring whois authorized to makecertain personnel-related decisions at the bargainingtable. Thediffusion of public management authority has been the focus of a considerable bodyof research, muchof it concentrated on a principal outcomeof


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diffusion, multilateral bargaining. Multilateral bargainingis characterizedby a plethora of direct and indirect participants, all of whomseek to influence the outcomeof negotiations. Accordingto Kochan(1973), multilateral bargaining develops fromfour factors: (1) goal diversity amongmanagement officials, (2) dispersion of management power, (3) open management conflicts, and (4) union political influence and access to management officials. Basinghis analysis on negotiations in city governments,Kochandemonstrates the variety of professional goals and personalagendasbroughtby managementofficials into the bargainingprocess. Elected officials are most concerned about their constituencies and prospects for reelection, while departmentheads, city managers,and civil service commissioners are driven by different considerations. Overtevidenceof goal diversity is displayed, for example,whena city council refuses to ratify a proposedcontract that has gained unionand managementbargainingteamapproval. Asa rule, highgoal diversity translates into high levels of management conflict during negotiations. Froma broad perspective, the dispersion of management powerand authority results fromthe legal separation of powersin Americangovernmentand the principle of checksand balances. Conflict betweenand within branches of governmentis an inherentpart of politics, as is conflict betweenlevels of government. The greater the dispersion of authority, and the moreit is fueled by individual political and personalagendas,the greater the conflict within the ranks of management. Openconflicts are especially inimical to effective management negotiations. Suchconflicts sometimesdevelop whenunresolved personal and professional frictions and controversiesspill overinto the collectivebargainingprocess. Kochan(1973:25) provides the following examplefrom a dispute over police and firefighter salary parity. Clear and open disagreement amongmanagementofficials existed on whatthe city’s position shouldbe on this issue. Thecity personneldirector, whowas acting as chief negotiator, vigorously opposedit. The mayordid not take a position at the outset of the dispute but endedup arguing in support of it. The city council was rather evenly divided on the issue. Finally, there weretwo civil service types of bodies involved in the dispute and one opposedparity and one supportedit. Apredictable result of this openconflict wasan impasseover the parity issue. Hearings were conducted by one civil service commission,the council passed various resolutions in responseto the impasse,and the secondcivil service body sought court action. A three-daystrike prompteda final settlement. Kochan(1975) develops a modelof management conflict and multilateral bargainingthrough an analysis of city government.Accordingto the model,goal incompatibility amongmanagement officials and the extent to which decision-

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makingauthority is dispersed determinethe level of internal management conflict, whichin turn determinesthe extent of multilateral bargaining.Unionnegotiating and political tactics such as end runs can expandthe levels of conflict and multilateral bargaining. That management conflicts will exist during the bargaining process is a given. The important policy question then becomeshowto resolve themso that management effectiveness is not diminished. Theinitial response of mostjurisdictions to unionization and collective bargainingis to superimposethe newbargainingresponsibility over the existing organizational structure (Burton1972). Thus, management attempts to utilize existing expertise and personnel, while maintainingprevailing authority relationships. However,the time-consumingnature of bargaining and the typical dearth of labor relations expertise amongexisting staff intensify the dispersion of managementauthority, heighten conflict, and create an altogether unstable and unfavorable situation for management. As a result, for moreeffective coordination, preparation, and conduct of negotiations, it usually becomesnecessaryto transfer bargainingauthority to the executivebranch. Eventually,organizationfor collective bargainingis centralized within the executive branchas well, with (especially in larger jurisdictions and with big, comprehensivebargaining units) the emergenceof a labor relations office or agencyand the appointmentof full-time specialists as chief management negotiators (Burton 1972), The ideal situation, as espousedby a numberof labor relations experts, is to specify clearly in statute or administrativeregulationsexactly wheremanagement responsibility for collective bargainingis located. Several states have done this, including NewYork, Connecticut, and Hawaii. Nonetheless, bargaining remains inescapably multilateral. Internal management cohesivenessmayimprove,but multiple external actors (e.g., legislative bodies, interest groups) remainactively involved. There is no conventional modelof management representation for collective bargaining in government.The actors and their roles vary greatly among jurisdictions and levels of government.The following discussion examinesthe principal actors in the dramaof collective bargainingand the roles that they play in a "typical" labor relations situation in each level of government. Federal government:In federal employment,collective bargaining is essentially an individual agency’sresponsibility subject to the provisions of the Civil Service ReformAct and the oversight of the Federal Labor Relations Authority. Thenegotiating team normallyis composed of full-time labor relations specialists appointed by agency heads. The Congresshas no direct involvement in collective bargaining, althoughindirectly it can have a role in determining compensationlevels if the Congressoverrides presidential compensationdecisions. Overall, the federal systemis highly decentralized, with around4,000 bargaining units and a widevariety of bargainingparticipants. Employerand agency


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wide bargaining takes place in the Postal Service, TVA,and the small number of other agencies that permit bargainingover compensationissues. Unions,also, coordinatebargainingactivities in somecases, particularly in the Postal Service and TVA. State government:Duringthe early stages of collective bargainingin state government,management negotiating responsibility was frequently addedto the duties of existing bodies, such as the state civil service commission,or handed over temporarily to individuals on a part-time basis. Sucharrangementsbecame untenableas bargainingactivities expanded.Eventually, moststates centralized negotiating responsibility within the executivebranchunderthe ultimate authority of the governor. Compositionof the bargaining teams varies amongstates, but a general operatingprinciple is to include a chief negotiator with direct responsibility to the governor,a budgetor finance officer, a personnelofficer, and representatives fromthe relevant state agencies. In Wisconsin,wherebargainingunits are statewide by occupation, the team is composedof chief and backupnegotiators from the State Bureauof Collective Bargaining,representatives fromthe two largest agenciesparticipating in the negotiations, and an individualrepresentingthe interests of all other affected agencies. Primaryresponsibility resides with the Bureau members. As a rule, it is importantto include agencyrepresentation in negotiations. Agencymanagement must live with the contract on a day-to-day basis and thus has a very high and direct stake in the bargaining outcomes.Agencymanagement should be involvedthroughoutthe bargainingprocess, including the formulation of management positions and the evaluation of the potential impact of union demandson agency budget and personnel. Generally speaking, the larger the bargaining unit conductingnegotiations, the greater the extent of agencyhead involvement. Therole of the state legislature in collective bargainingactivities usually is quite limited. As noted by the Committeeon EconomicDevelopment(1978: 6), however,"... the legitimate interest and responsibility of the legislative body to assure that agreementsare in accord with their interpretation of the public interest, includingthe fiscal limitations on government,should also be acknowledgedand provided for." Unacceptablebargaining outcomesmaylead (in theory morethan practice) to legislative override and renewednegotiations. Fromthe management perspective, bargaining proceeds best whenthe executive and legislative branches are unified on major negotiating issues and resistant to union efforts to winfavorable settlements throughthe end run. Toachieve legislativeexecutive cooperation, the Council of State Governmentrecommends goodcommunicationsbetweenthe legislature and the bargaining team (Carlson and Sedwick 1977:18):"At the very least, the teammust be awareof the attitude of the legislature towardeconomicand other major issues simply to have parameters

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in mindfor bargainingpurposes, while the legislature and its leadership should have knowledgeof the issues being negotiated so that they can makeintelligent judgments on negotiated agreements. If there is a misunderstanding, the bargaining process maybreak downwith legislative rejection of contract provisions.’’ Approximately 30 states havestate labor relations agenciesthat act as quasijudicial bodies with administrative and oversight authority for labor relations. The agencies consist of from three to seven members(usually three) appointed by the governor. There maybe labor and management representatives and one or more "neutrals," or all maybe neutral members.Wisconsin’sEmployeeRelations Commissionand Ohio’s State EmploymentRelations Board are examples of tripartite composition.Becausethe state agencyis chargedwith protecting the rights of both labor and management, it is critical that the appointeesbe acceptable, credible, and legitimate in the eyes of both parties. In at least nine of the comprehensivebargaining states the agencies were created solely for the purposeof administering and overseeinglabor relations. Somestates, however,have placed labor relations administrative responsibility within existing entities, such as the state departmentof labor, the state personnel office, or the civil service commission.Other states have lodged administrative responsibility in existing functionalentities, such as the state boardof education. The opinion of manylabor relations professionals is that the optimum situation is centralization in an entity created expresslyfor public sector labor relations. This type of arrangementencouragesprofessionalism, centralizes executive financial controls, promotesconsistent compensationand personnelpolicies statewide, and, in general, helps stabilize union-management relations. Althoughcombiningpublic and private sector labor relations within an existing agencyalso offers certain advantages, including reducedadministrative costs and the use of existing experiencedpersonnel, public-private sector differences in labor relations are substantial enoughto require staff personnelwith distinctive backgroundsand training. However,none of the possible organizational arrangementsis inherently superior. Andas Helsbyand Tener (1979:34) explain, "the single most important ingredient appears to be the caliber of the persons selected for and employedby the agencies.., the ideal is to combine goodlaw with top quality appointments." Local government: It should comeas no surprise that local government has the widest variety of management participants in collective bargaining. There are, of course, tens of thousandsof municipal,county, town, school district, and other local governmentswithin the United States, and each has its ownset of labor relations policies and actors. Someof the actors have expertise in labor relations, but the great majority, especially those employedin small to mediumsized governments,can hardly be considered labor relations professionals. Management representation in local governmentis following a similar path


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as that of state government. Sometimesfollowing aborted attempts by mayors or council membersto negotiate for the city or county, the tendencyhas been to centralize management responsibility within the executive branch. However,the structure of municipal or county governmentinfluences union-management interactions and the locus of management authority. In mayor-council forms of government, the power of the mayor is the major component of management authority. In "weakmayor"cities, the council is likely to play a strong or even dominantrole in labor relations and collective bargaining, while in "strong mayor"cities authority usually is concentratedwithin the mayor’soffice. In the council-managerform of government,executive branch authority typically resides primarily in the city manager’soffice. Althoughit is difficult to pinpoint any specific unionadvantagesor disadvantagesthat are related to city governmentstructure, it has been suggestedthat the council-manager form results in someloss of leverage for the unions, primarily becausethe council tends to removeitself from the bargainingprocess (Juris and Feuille 1973:63). It is argued that city managersview themselvesas management representatives and therefore are basically disposed to opposeunion demands.Furthermore,the city management profession tends to attract individuals whoare politically and socially conservative (Saltzstein 1974). In somecouncil-manager cities the managertakes on the role of chief management negotiator; in others the assistant manageris appointed to that job. In larger cities (over 250,000population)professionalnegotiators and labor relations staff almost always represent management regardless of governmentform. In small to midsized cities (50,000 to 250,000)a part-time bargaining team approach has yielded gradually to delegating bargainingresponsibility to the personnel director or a labor relations professional. The most commonapproach appears to be city manager/assistantmanager,city attorney, personnel director, and departmenthead in council-managercities. In mayor-councilforms of governmenta chief administrative officer or other representative of the municipal labor relations office (large city) or mayor’soffice (small to midsizedcity) typically is joined on the management teamby an attorney, personneldirector, departmenthead, and, in somecases, the budget director (Chandler and Judge 1993). The logic behind the presence of the legal and personnelofficers is obvious-theywill haveto administerthe city payroll and benefits, position classification plans, personnelprocedures, and the final labor contract, all of whichare affected by the outcomesof negotiations. A legal officer or attorney mayprove valuable in assessing important questions of law in the proposedcontract. Labor lawyersand other labor relations professionals are increasingly serving as chief city negotiators and team membersin mayor-councilcities. Theyare particularly likely to sit on negotiating teams in cities with an extensive unionpresence and history of high levels of strikes and other job actions (Gelyand Chandler1993). The role of the departmenthead is morenebulous. Departmentchiefs rarely

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are directly involved in negotiations, largely because they want to avoid as much as possible a potential adversaryrelationship with departmentpersonnel. Rather, the departmentheads usually participate only insofar as they furnish information to the regular management team, makerelevant recommendations,and, in general, serve as observers and advisors. The specialized knowledge and direct interest of department heads in bargaining outcomes argue strongly for some form of participation. In somecities the departmentheads dispatch their personnel directors to serve as liaisons with the bargaining team. Elsewhere, the agency chief sits at the table in person. Dependingupon the jurisdiction, the range of other management officials whomaybe involved as part of the negotiating team or otherwise is almost limitless. Somelocal governmentsretain an outside consultant or labor lawyer to serve as chief negotiator or act in an advisorycapacity, reflecting an effort by management to bring an individual with recognized bargaining expertise into an inexperienced city administration. Such a person mayindeed prove helpful to the managementteam, particularly if he or she has a solid comprehensionof local governmentin general and the unique problemsof that city in particular. Mayorsand membersof council rarely sit on the bargaining team. Instead, they usually eschewinvolvementin the negotiation process, unless a deadlock forces their intervention as mediators,or until it is time to approveor disapprove the agreementthat is submittedto themin their formal capacity as elected officials. Wheremanagement conflict is at a high level and the local governmentis highly politicized, however, the mayerand/or individual council membersmay fall victim either to the "hero syndrome"by attempting to arrange a settlement personally, or to an end run by a union seeking to circumvent the bargaining team. But direct involvementmayhave a political price in the next election. It is usually a no-winsituation for the elected official. If he takes a hard-line stance against the union, he risks sacrificing unionvotes in the next election. If he sides with the union, conservativetaxpayerswill cast their votes for another candidate. For both management and the unions, it is always necessary to designate a chief negotiator. The duties of the chief negotiator normallyare to present one side’s views and, in general, serve as leader and chief spokesperson. The chief negotiator leads the discussion during caucuses and serves as the mainlink with other local government(or union) officials. Accordingto one labor relations scholar (Davey1972:133-134),the most valuable attributes of the chief negotiator are courage,personal integrity, patience, stamina, intelligence, and close familiarity with the issues, motives, and pressures in the negotiations. Practice and painstaking preparation are also demanded. Administration of local governmentlabor relations varies between and within states. For example,in public schools the chief administrative agencymay be the state board of education. Alternatively, the labor administration function maybe provided by the superintendents of the individual school districts, or,


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where schools are established by municipal, town, or county governments,by a central labor relations agency.In large cities there is usually someformof central labor relations office, although often it is exclusively devoted to management interests. The most prominent exampleof an independent agency is NewYork City’s Office of Collective Bargaining (OCB),whichwas created jointly by the city and municipal unions. It is comprised of two management representatives, two labor representatives, and three "impartial" members.OCBalso includes a Boardof Certification and a Boardof Collective Bargaining. The former has the task of determiningbargainingunits and certifying unions; the latter makesscope of bargaining determinations, issues advisory opinions on city bargaining law, handles grievance arbitration, and helps resolve disputes arising during negotiations. State administrative agencies in somecases exercise administrative oversight over labor relations in local governments.In Wisconsin,for instance, the Employment Relations Commission oversees allegations of prohibited practices, enforces the duty to bargain in goodfaith, aids in dispute settlement, and determines the appropriate bargaining unit. Iowa’s Public EmployeeRelations Board has similar functions. Thus, while local administrative machinerymayexist, those states that have established statewide agencies usually assumeoverall responsibility for local governmentlabor relations. (c) The Public. Therole of the general citizenry in collective bargaining is highly variable and subject to a great deal of controversy.Public participation in the negotiations process can range from an active and direct role at the bargaining table to simple access to the terms of the negotiated agreement. This represents, of course, a major point of departure from private sector collective bargaining, wherethere is no meaningfulthird party role for the general public. Public access to collective bargainingmaybe either structural or political. Structural access provides a formal and legal meansof direct citizen involvement through, for example, formal comments on bargaining proposals, public hearings on negotiations, trilateral bargainingwith citizens participating directly in bargaining sessions, citizen observationof opennegotiating sessions, or voter referenda on contract settlements or other labor relations issues. Political access includes citizen or interest group participation in hearings on the budget, use of court injunctions, lobbyingelected officials, and openingup indirect lines of communicationto legislators and other elected officials. The trend has been toward formal, or structural access. The abuses and governmentalsecrecy in Washingtonduring the Watergateyears led to a call for moreaccountability and transparency in government,and resulted in a proliferation of public disclosure and "open meetings" laws to open up governmentpolicy making. Althoughall 50 states have open meetings laws, most exemptcollective bargainingactivities, thus permitting negotiations to be carried out behind

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closed doors. Also, a waveof public resentment of governmentin general and "underworkedand overpaid" public employeesin particular has led to demands for increasedcitizen oversight of public sector collective bargainingsettlements. After all, it is the taxpayerwhomustpay the final costs of the negotiated settlement.Wherethe perceptionexists that elected officials havenot effectively represented the public’s interest in negotiations, strong movements for direct citizen involvement sometimes have ensued. Several states desiring to institutionalize a public role in collective bargaining have done so through sunshine laws. Eighteen states require somesort of bargainingin the sunshine.Florida’ s collective bargaininglaw is the strongest, mandatingthat all negotiations be held in public. Kansaslaw providesthat teacher bargaining be open. California’s statutes for state employeesand public schools require initial bargainingproposals to be presented at a public hearing, and new proposals to be madepublic within 48 hours. Furthermore, a reasonable period of time must be allowed for the public to becomeinformed and express opinions on all proposals before a new round of negotiations begins. Tennesseerequires open meetingsfor teacher negotiations, as does the Texaspolice and firefighter bargaining law. In Montana,Maine, Florida, and Oregonstudents in higher-education institutions havethe right to attend negotiations. In Idaho, the state teachers’ law mandatesthat minutes of negotiating sessions be madepublic and that contracts be ratified in openmeetings. Sunshinebargainingis optional (both parties must agree to it) in Iowa, Maine, Massachusetts, Nevada,and NewJersey. In North Dakota, the state supremecourt ruled that negotiating sessions must be public. A great deal of debate has turned on the pros and cons of bargaining in the sunshine. Advocatesof sunshine laws contend that public deliberation on important public policy issues promotescitizen understandingand confidence in governmentand makesgovernmentmore responsive to voter concerns. It deters misappropriationof public funds and conflicts of interest, and makesthe public a receptive partner in reachinghard decisions on difficult problems.It is said to help moderate union demandsby subjecting them to formal public and media scrutiny. Public management, union leaders, elected officials, and professional labor negotiators all are quick to point out the disadvantagesof bargainingin the sunshine. Opennegotiations are time consuming,and maypromote "rancorous conflict" and destroy workingnegotiating relationships. The presence of the media mayencourage "bargaining through the press" and grandstanding instead of constructive bargaining over the issues (Cassidy 1979:12). The process may"... take on the aspects of a poorly produced drama where emotions upstage good judgmentand egos, not issues, get the best lines" (Sherman1979:274). Skeptics also assert that sunshine bargaining suffers from inexpert and uninformedreporting in the media,and very little citizen interest.


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Althoughthe alleged advantages and disadvantages of bargaining in the sunshinehave not yet beensystematically assessed across the states, it has becomeapparent particularly fromthe Florida experience(wheresubstantial majorities of labor and management representatives support it), that manyof the criticisms have been exaggerated(see Westand Feiock 1989). For instance, despite delays causedby the presenceof the mediaand other representativesof the public, the content of the vast majority of agreementshas not beenaffected. Moreover, the more stringent requirements of some of the laws maybe circumvented through creative actions. In one state requiring that school board meetingsbe open, for example,mediators have avoided open meetingsby carrying out delicate negotiations with a fewof the board members at a time, or by meetingwith the boardin executivesession. It is clearly consistent with democraticprocesses for citizens to havea formal third-party role in public sector collective bargaining. Examinedintimately, collective bargainingas it is presently conductedin most jurisdictions mayor maynot be conduciveto the best interests of the public. Appointedofficials typically control the negotiations; final agreementsare usually rubberstampedby elected representatives. Public participation is very indirect, coming only in the guise of after-the-fact judgmentson the performanceof elected officials, only part of whichis related to collective bargaining.Yet citizens havea fundamentalright to hold officials accountablefor howtheir tax dollars are being spent. There is no simple solution for involving the public in collective bargaining. But given the highlevels of citizen discontentand distrust in government that haveprevailed since at least the mid-1970s,benefit of the doubtshould be given to inclusive, sunshine-style experiments. Exclusionof the public builds neither confidencenor trust, and it perpetuates ignorance. III. SUMMARYAND CONCLUSIONS Collective bargaining shares common structures and processes in the public and private sectors, but it also differs in manyimportantrespects, includingthe environmentof labor relations, the majoractors and their motivations,and the process itself. Unit determination raises a numberof important issues in public sector bargaining,includingcriteria with whichto determinethe unit, size of the unit, fragmentationof bargainingunits, the inclusion or exclusion of supervisors, and the possibilities of multiemployerbargaining.Oncethe unit is determined,a representationelection is held to select the organizationthat will represent the unit in collective bargaining, or the employermayvoluntarily recognize the union upona showingof majoritysupport. Thevictor is certified as exclusiverepresentative of the bargainingunit. Thenext step is negotiationof the contract. Theunionleader and designated

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management representatives play the starring roles. It is difficult, however,to identify "management" in the public sector becauseof the large numberof interested parties whoparticipate directly or indirectly in multilateral bargaining.This is reflected in the wide compositionalvariety of management bargaining teams in and amongthe three levels of government.Public concern with someof the less edifying aspects of multilateral bargaininghas led to increased interest in sunshinebargainingand the institutionalization of a public voice in collective bargaining. The process of collective bargainingin governmentis highly politicized, with politics pervadingbehaviorat the bargainingtable and suffusing the labor relations environment.Collective bargaining has been comparedto a Byzantine play, completewith actors, roles, and script. The ending of the play, however, is not predetermined.It dependson the bargainingpowerof the parties, howthey play the game,and whetherthe bargainingis primarily distributive or integrative in character. Bargaining outcomesalso dependon the effectiveness of public employeeunions as interest groupsengagedin lobbying,electoral activities, and public opinion making. CASESTUDY4.1: WHOSE UNION IS IT?* Simonlooked downat the stack of petitions on his desk. Unionmemberswere reacting with signatures to rumorsthat they had heard regarding the layoff of 500 workers.Theywere calling for the ouster of the current union president and all union stewards. A survey (see Table 4.1) that had been conductedby union leaders of the membershipto determine the bargaining path for the union had producedresults that were not followed by the union. The largest majority of respondents had indicated that Scenario 4 was acceptable, yet the union was negotiating for Scenario5. Simon,a unionsteward for 15 years, was not accustomedto feeling uneasy with the stance of the union he represented. But this one madehim wonder. A. Cleaning Up the State BudgetCrisis The latest budgetarycrisis in state governmenthad caused the governorto, once again, request concessionsfrom all state employeeunions. Theconcessionstook the formof an increase in the length of the workweek (from 35 to 40 hours) with a corresponding increase in pay. The increased workweekwas meant to calm state residents whosaw state workers as underworkedand overpaid, and who wantedmassive layoffs to reduce their state incometaxes. Becausethe budget

* Adapted fromTrella1996.

TABLE4.1 Union Survey Pleaselist belowthe top threeissuesthat youwouldwantyournegotiatingcommittee to considerpresentingto the State in the upcoming negotiations.Pleasedo not includepensionandhealth careissues,

Pleaseindicate whichscenariois acceptableor not acceptableto youregarding a 40-hourworkweek.Pleasemarkeachscenario. Scenario1-Thecontract providesfor no generalwageincreasefor five years, skips the payment of oneannualincrement,makes no guarantee to avoidlayoffs, andinstitutes a 40-hourworkweekphasedin with pay. Acceptable

__Not Acceptable

Scenario2-Thecontractprovidesfor three 2%generalwageincreasesin January of the last threeyearsof a five-yearperiod,skipsthe payment of oneannualincrementand delaysthe payment of the other annualincrementsfor five months, makes no guarantee to avoidlayoffs, andinstitutes a 40-hourworkweekphased in withpay. Acceptable

__Not Acceptable

Scenario3-Thecontract providesfor generalwageincreasesthat keeppacewith inflation, paysannualincrement on time, makes no guarantee to avoidlayoffs, and doesnot institute a 40-hourworkweek. Acceptable __Not Acceptable Scenario4-Thecontract providesfor no generalwageincreases, paysannual incrementandlumpsumpayments on time, makesa guaranteeof no layoffs for generalandspecialtransportationfund employees, andinstitutes a 40-hourwork weekwith pay. Acceptable

Not Acceptable

Scenario5-Thecontract providesfor generalwageincreasesthat exceedinflation, paysannualincrementson time, institutes a 40-hourworkweekwith pay, andresults in 500P4employees beinglaid off. Acceptable

__Not Acceptable

Demographics Name(Optional)

Jobtitle

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supportingthe state workers’salaries wasnot to increase, the increaseto 40 hours per weekwouldresult in layoffs in every union. Workersin the union whohad been with the state for more than 10 years had a nice pensionbuilt up, paid medicalbenefits uponretirement, and job security. Theywere not anxious to workan extra five hours a week, even with the additional pay. Ernie Banks, with the Departmentof Transportation (DOT)for 19 years, madeit his business to knowhowhis share of the pie wouldbe affected. Andhe did not like what he saw. "Simon,Emiehere, just wonderingabout the union’s stand regarding the 40-hour workweekproposal. We’renot going to work longer hours, are we?" "Well, Emie, you knowI’m always out to protect our interests. Whatdo you think about it?" "Don’t like it. I’m getting ready to start thinking about retirement. The last thing I need to do is worklonger hours. Youkeep on protecting our rights, okay, buddy?" Simonswallowedhard as he hungup the phone. The "good" days in state governmentwere over. Every year nowit was howmuchwill you give up. Three years with no increases and nowan addition of five hours per week. But the messagewas not getting to the older union members.They wanted to hold on to an era gone by, whenunions got muchof what they bargained for. Ernie knewthe leaders in the union. He called the president and negotiators by their first names.Andhe let each of themknowthat he expected his union to protect his fights earned through19 years of state service. B. Union Represents Many Faces BrendaMcGuireworkedas an entry-level engineer at DOT.She got the position right out of college, and althoughthe wageswerelower than those in the private sector, she opted for the job security of workingfor the state. After two years, she felt fairly comfortableperformingher duties and understoodhowthe public sector functioned. She was happy to have steady employment. Jason Steel, Brenda’scoworker,stopped her on the wayto a meeting. "Did you hear about the layoffs?" Brendabristled, "No, what have you heard?" "The older union membersare selling us out. The union won’t agree to reduced wageincreases to compensatefor the addition of the 40-hour workweek, so the governoris goingto begin ordering layoffs. Anyonewith underthree years of service has no seniority." Brendathought of her daughter whohad just started preschool. That would have to stop with no job. "Well, what can we do?" "There’s a meetingright after workto discuss the options for the younger membersof our union. Seemsthere are a lot of us whodon’t believe the union


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represents us. We’repretty certain that we youngermembers represent the majority. There’stalk that they maytry to get rid of Evansandall of the unionofficials. Maybeyou should attend." C. DOTCommissioner’sOffice "There’s a messagehere fromthree of the field supervisors. They’re wondering whythe unionis so dedicated to opting fer layoffs. Eachof themhas field staff with experience under three years with the department, and are concernedthat they will not meettheir deadlinesif they lose staff. All wouldlike a return call from you." Commissioner Smith wasn’t certain howto proceed. He had major projects with fundingthat weregoingto suffer serious delays if the layoffs wentthrough. That wouldreflect badly on his Executive Management Objectives and he would lose the bonus he’d been working toward. He also had people whohad worked in the Departmentover 20 years whohad little sympathyfor the "youngsters" whocould lose their jobs. Heneededtheir experienceto makethe projects go. Smithcalled Simon,the unionsteward, to request a meeting. D. Simon’s Office--Phones Ringing "That makes210against--33 for. The callers are not appreciating the stance of the unionon this one. Sayingwedon’t care aboutyoungfamilies, only the retirementage workers. Is this really worth it? Heardrumorsthat they maycall for your resignation," said SamanthaEdwards,Simon’slongtime assistant. Simonsat downheavily. There did not seem to be a way out. Another phone rang. "Commissioner’son the phone--wantsto comeover for a meeting to discuss the options." "Oh, great." E. Afterwork Meeting of Union Members "I say we get rid of Simon. He is so out of touch with the majority of this bargaining unit. Whodoes he think he’s representing?" "I need myjob. I don’t really want to workmore hours, but I need the job. Wedo what we have to do." "Canwe oust Simon?Will that help our cause? Dowe have legal recourse if we see no hope of our views being represented?" Simonknewthe contract inside and out. He had special coverage under the contract that madehim the last to go if layoffs ever went that deep in the agency. Theycalled it superseniority. Healso knewthat "incompetency,inefficiency, neglect of duty, or misconduct"were groundsfor dismissal.

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Thecontract survey that the union members had been askedto fill out had shownthat the majority of membershad opted for Scenario 4, which did not include layoffs. This informationhad not been publicly acknowledged, however, but had somehow found its way back to the membership.In fact, the union had decidedto opt for Scenario5 becausethey thought they wouldend up in a better bargainingposition by asking for as muchas possible and then, perhaps later, concedingon somepoints. The union’s plan, however,had backfired. Nowthey faced a membership whosought retribution for not havingtheir wishesfollowed. F. Simon’s Office "CommissionerSmith is here." Simongot up to present his plan. Discussion Questions 1. Whatare the mainissues in this case study? 2. If you were union steward Simon,howwouldyou proceed with negotiations? 3. Arelayoffs preferable to givebacksin this situation? 4. Wouldthe ouster of the union president help the youngerunion members? 5. Whatare the possible outcomesof this situation?

5 TheProcessandPolitics of Public SectorCollective Bargaining

Collective bargaining in the private sector is about economics;in government, it is about economicsand politics. Transpiring within a political environment composedof a rich variety of interests with clashing views, the outputs of the process--decisions concerning public employment,public workers, and the allocation of tax dollars--are "central political acts in any organized society" (Horton1973:123).Andthe majordirect participants are clearly political actors, locked in a political contest with high stakes. I.

INTERNAL POLITICS

Collectivebargainingis both a relationship and a process, or set of activities. It is a formal relationship that continues over time betweenlabor and management, involving the joint determination of wagesand other terms and conditions of employment.The activities include identification of proposals, preparation for bargaining, negotiation of an agreementspecifying the terms and conditions of employment for a fixed period of time, and the day-to-day administration of the agreement. (Contract administration is discussed at length in Chapter 10.) The formalities of the process itself as carried out in most jurisdictions are briefly discussed below. A.

Identification of Proposals

Bothsides in the bargainingprocess anxiouslyanticipate receiving proposals that either alter the existing agreementor identify key issues for the first time in a new collective bargainingrelationship. Initial agreementscan be particularly difficult because they represent the first attempt by the parties to significantly change the process used to solve problemsand determine the terms and conditions of employment.Today, the large majority of negotiations involve parties whohave already negotiated one or more contracts. 113

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As proposals are being readied on both sides, decisions must be madeas to howto packagethemand sort out the moreimportant from the less important. Negotiators must bring together their teams to help themmakethese strategic determinationsand to talk about readiness and strategy. Thereare a lot of "what if" scenarios to ponder. A division of labor is madein terms of the contract language itself. Certain team membersare assigned to watchinterpersonal dynamics,bodylanguage, and facial expressions on the other side of the table. The principle of having a single spokespersonfor each team remains customary. Theunionwill have a list of issues, manyof themarising from difficulties with the contract in effect. Somemayinvolve compromisesmadeduring past negotiations that are no longer satisfactory because certain situations have changed. Other union demandsmayrepresent longstanding objectives not realized during past years, but still important to the labor organization. The union holds membershipmeetings in which the rank and file can raise new issues, or provide guidancethat limits the chief negotiator’s discretion on key matters that might have to be brought back to the membershipfor discussion. Someunions do a special mailing or survey to solicit proposalsfrommembers.Invariably there are individual memberswhowill insist that a pet problem or concern become part of the bargaining proposals. In successor agreements,there is typically a series of complaintsthat emergefrom grievancesthat the labor organization lost becausepresent contract languagedid not supportits position before an arbitrator. If the local unionis affiliated with a national union, it is possible that certain matters maybe advancedthat wereidentified as priorities duringthe past national meeting. The challenge usually is to pare downthe membership’s"wish list" into a packageof realistic proposals. Management brings proposals to the table, too. This mayseem obvious, but for years the movingparty at the table was the union alone. Management’s posture was to react to what the union wanted. That has changed. Management understandsthat there is moreto negotiating an agreementthan getting the state legislature or city council to pay the bill. Contracts cover nearly all humanresource management functions and issues and operational matters that deeply influence howthe organization’s work gets done every day. Managershave ideas, too, about howto changethe organizationto makeit run better, but unioncooperation maybe required. Goodmanagersare not indifferent to howpeople feel about their work. Managersdo their homework by examininggrievance files, the scope and cost of benefits, wagesurveys, and practices in other departmentsor agencies. Whenmanagementand the union both come to the table ready, the negotiations process proceeds moreefficaciously. B.

Preparation for Bargaining

Preparationis a critical aspect of the bargainingprocess. Thebest preparedparty, the one that has "done its homework,"is usually the one that emerges from

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negotiationswith the balanceof its objectives secured. It is said that "Tabletime is showtime, but preparation time is doughtime." Preparation usually entails eleven steps, as sketchedbelow. 1. Establish a bargaining committeeand a negotiating team, including a chief spokesperson. 2. Analyzethe experience under the previous contract (if any). Department heads and supervisors are asked to determine problemareas from management’s perspective and offer advice on the next contract. Both parties study the grievance records under the old contract, including arbitration awards, and consider the motives,strategies, and viewsof their counterpartson the oppositeteam. The union committee solicits and screens demandsfrom the membership(see above). 3. Analyze wageand benefit data, particularly comparableinformation from similar jurisdictions and occupational groups. Conducta wageand fringe benefit survey if necessary. Respondto the other party’s requests for data. The union reviews the employer’sfinancial data. 4. Analyzerecent developmentsand relevant agreementsin other jurisdictions for personnel policy changes.Both parties prioritize their demandsand prepare justifications for them. 5. Arrangeprenegotiation conferences betweenthe parties to establish the rules of the gameand determine schedules. Include preliminary discussions on acceptable data and facts to be used during negotiations. 6. Makeformal presentations of written proposals and demands. 7. Set the bargaining agenda, including which issues should be considered first. Attemptto resolve simple, noncontroversialmatters first to create a cooperative atmosphere. Consider dividing controversial issues into those that are primarily economicin their implications and those that are not, and decide whetherto take up issues as a packageor break themdowninto smaller decision units. 8. Arrange negotiating sessions. These normally should be held during regular workinghours for short (one- to three-hour) periods of time. Theyshould be held at a "neutral" location at the workplaceor elsewhere. Provide for separate and private caucus rooms. Minutes of each meeting should be maintained by a neutral secretary and kept by each party as well. 9. Conductnegotiations. Hold caucuses to exchange reactions of members of the bargainingteam, reconsider tactics and strategy, and check with superiors for guidanceand direction. 10. Execute a written agreement. 11. Unionmembership and the legislative branch ratify the written agreement. The reality of the bargainingprocess is not nearly as orderly as the above steps imply. The process is highly dynamic,changing in response to the role behaviorand personalities of the participants, the actual and perceivedbargaining

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powerof the parties, and any numberof other intangible factors that mayimpinge on negotiations. Not surprisingly, unions and managementare increasingly relying upon information-based technology. Such technology assists them in developing and respondingto proposals. Specifically, computer-basedtechnologyis used to keep historical records and personnel data, analyze the costs of alternative wageand benefit proposals, comparecontracts across other jurisdictions, and mediatedisputes (Extejt and Lynn1994). Electronic spreadsheets, database management software, and other decision support systems are frequently utilized to examine and display data. Perhaps the most visible employeeorganizations of the future will be "cyber unions," whichknit together information technologyto redefine, reinvent, and reinvigorate themselves(Shostak 1999). C. The Duty to Bargain All state bargaininglaws include a requirementfor the parties to bargain or meet and confer in goodfaith. In mostof these states the duty to bargain closely approximatesthat defined for the private sector by the National LaborRelationsAct. It applies only to mandatorysubjects within the scope of bargaining. Permissive subjects maybe discussed at the discretion of the parties. Prohibited topics, such as those listed in a management rights clause, are not enforceable even if they find their way into a written agreement. The NLRA (Section 8) describes the duty to bargain as: "The mutualobligation of the employerand the representative of the employeesto meet at reasonabletimes and confer in goodfaith with respect to wages, hours, and other terms and conditions of employment.., but such obligation does not compeleither party to agree to a proposal or require the makingof a concession." In essence, the obligation to bargain in goodfaith, as interpreted by the courts, requires active participation in negotiations witha sincere effort to reach an agreement.It is a cooperativestate of mindthat is evidencedin specific standards of behavior. In the public sector, those states that provide for collective bargaining (rather than meet and confer) have adopted statutory standards that closely approximatethe NLRA’ s. They include (D’Alba 1979:157-166)the following. 1. Timelimits for commencement of negotiations. Parties must furnish notice of the intent to modifyor terminate an existing agreement,usually within at least 60 days. 2. Obligation to provide information. The public employeris required to provide relevant information on any matter within the mandatoryscope of bargaining that is requested by the employeeorganization. 3. Prohibitions against bypassing the bargaining representatives. In an effort to avoid the end run, somejurisdictions prohibit communications between

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the union representatives and any other official not a designated management bargainingrepresentative. 4. Requirementthat the employermakeno unilateral changes in existing wages, hours, and workingconditions while negotiations are under way. Unilateral implementationusually is permitted for nonmandatorybargaining subjects. 5. Prohibition against workstoppages during negotiations. 6. Formal procedures to resolve impasses. 7. Dutyto reduce the bargaining agreementto writing and to execute it. 8. Prohibition against bad faith bargaining, whichexists whenone or both of the parties simplygo through the motionswithout any real intention of reaching agreement.Indications of bad faith bargaining include dilatory tactics, the failure to offer proposals or counterproposals,or refusal to makeconcessionson any issue. Oncea term or condition is legally embodiedin a signed ratified contract, neither party is obligated to reopen discussion on that term or condition during the life of the contract. Suchdiscussions mayensue, however,if mutually agreed upon. D. The Script In the traditional modelof collective bargaining, the processes and activities are sometimescomparedto those of a poker game,complete with bluffs, deceptions, and the luck of the draw. The bargaining process is highly variable amongjurisdictions, but certain common strategies and informal patterns of behavior are recognizable everywhere. For example, the chief negotiator is normally the only bargaining team memberto speak at the table. He or she seeks to keep the other team members under control and restrained from speaking out of turn (unless it’s part of the script). Teammembersstrive to keep a "poker face"--uttering a squeal of delight uponhearing a generous counteroffer is not recommended. Disagreements amongteam membersare carefully hidden to prevent the opposing team from figuratively driving a wedgebetweenthemand weakeningtheir overall position. Usually one person on each side acts as a recording secretary, keeping detailed notes of the proceedings. Cassette recorders are normally forbidden. Theycan cause problemslater if, for example,heated wordsare exchangedand individuals say things they later regret. Onememberof the team maybe assigned the responsibility for observing the membersof the opposing team, scanning their faces and bodylanguagefor indications of true feelings and reactions. Duringthe initial presentation of demandsand proposals, typically there maybe somegrandstandingas each side tries to sniff out the resistance points of the other and the strength of feelings on separate issues. During this stage union leaders in particular sometimesmakedemands"that exhibit a greater use

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of imagination than that shownby Fellini or Hitchcock" (Sloane and Witney 1981:190). A Long Island, NewYork police association once demanded"85 concessions, including a gymnasiumand swimmingpool; 17 paid holidays, including Valentine’s Day and Halloween; and free abortions." This strategy, sometimescalled "blue-skying," is intended (1) to appease influential members of the union by formalizing their pet demands,(2) to allow ampleroomfor later concessions, and (3) to raise newissues that maybecomeimportant in future contract negotiations. As one wouldexpect, management usually takes the full plate of demandswith a grain of salt, either rejecting items outright or ignoring them. Serious demandsmust be justified with documentation,appropriate data, and compelling arguments. A classic illustration of "the script" in the traditional bargaining model involves negotiations between the NewYork City Transit Authority and (now deceased) President MikeQuill of the Transport WorkersUnion(Spero and Capozzola 1973:108). Along about Mayor June every other year, Quill... would summon membersof the press to announcethe demandsof the TWU for justice, the 30-hour weekand various other possible--and impossible--goals to be enshrinedin the forthcomingcontract with the Transit Authority. "Or else," Quill wouldthunder, "the trains won’t run!" After the rejection of the union’s demandsby the Transit Authority and possibly the breaking off of a meeting or two, quiet woulddescend upon NewYork for the balance of the summer.In the fall a series of meetings, usually stormy, wouldtake place, building up to a peak in early December,when someone,usually the TWU leader, wouldbreak off negotiations. Quill wouldwarnthat there wouldbe no transportation for Christmasshoppers unless talks becameserious. The Transit Authority wouldannouncethat there was no moneyto meet the union’s "exorbitant" demands.Just in the nick of time a third party wouldstep in, at the request of the Mayor, to mediate the dispute. Shopperswouldbe saved, the negotiations would begin to build up to a NewYear’s climax. Both parties wouldbe summonedto city hall; the mediators would movefrom the union to the Mayorto the union, building suspenseas they went. Finally, a settlement wouldbe announced--usuallyin time for late television and radio news broadcasts and the morningpapers, and Quill would declare that the embattled transit workershad been victorious. After initial meetingshave permitted each party to size the other up and estimate its "true" bargainingposition, serious negotiations begin over the substantive issues. The negotiating atmospherefrom that point on dependson a number of factors, includingthe past history of the bargainingrelationship, the basic attitude of the employertowards unions, economicand political Conditions, and


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motivations of managementand union representatives (Davey 1972:131-132). As a general rule, however,as illustrated by the above examplefrom NewYork City, near the deadlinefor completionof negotiationsthe talks take on increasing intensity. The expectations of the parties in "the game"are that if one side movestowardthe other on one or moreissues, the secondparty will reciprocate. "Informal" discussions awayfrom the bargaining table maybe used to explore possible avenues toward compromise.All-night bargaining maybecomenecessary. There is nothing like the tedium and discomfort of round-the-clock bargainingto separate the insignificant issues fromthe truly important.Negotiations continue until an agreementis attained or all movement towarda settlement stops and the twoparties declare an impasse.For a settlement to be reachedboth sides mustavoidrigid or unrealistic positions and try to remainflexible, whilekeeping in mindthe reciprocal nature of the bargainingrelationship (see Tables 5.1 and 5.2). E. Concession Bargaining Flexibility is usually in short supply whengovernmentfiscal problemsproduce what has cometo be knownas crisis or concession bargaining. Unions, which often havecontributedsignificantly to fiscal problemsthroughpredictable activities designed to drive up wages, expandbenefits, and maintainjobs, are asked to makegivebacksto the employingjurisdiction. Concessionbargaining has long occurred in the private sector during the downcycles of capitalism, but the first majorexperiencewith it in the public sector camein 1975, as a consequenceof NewYorkCity’s fiscal collapse (see Maier 1987). Concessionbargaining becamemore commonplace during the 1981 to 1982recession and returned during the late 1980sand early 1990sas state and local fiscal crises again erupted across the country. NewYorkCity, confronted with a 1991 budget gap of some$3.5 million, faced a "doomsdaybudget" that threatenedto pare the BigAppleto its core by turning off street lights, laying off nearly 30,000city employees,and closing libraries, clinics, and even the Central Park Zoo. Maineand RhodeIsland instituted rolling one-dayshutdownsof state government, in which "nonessential" employeesstayed home without pay. Detroit police forfeited one year of pensionbenefits to save jobs. Public employeesin hundredsof jurisdictions begancopayinghealth care insurance or increased their percentageof insurance copayments. Concessionbargainingimplies changesin the script. Instead of asking for more, unions must fight to avoid giving back what they have got. Management takes the bargaininginitiative, seeking wageand benefit givebacksand changes in workrules. If the unionrefuses to bend,layoffs are one likely alternative. Concessionbargaining represents a threat to the union. Members react to layoffs and other management threats with "insecurity, frustration, and strong

120 TABLE 5.1

Chapter5 Bargaining Homilies

¯ Besurethat youhaveset clear objectiveson everybargainingitemandthat youunderstand on whatgroundsthe objectiveswereestablished. ¯ Donot hurry. ¯ When in doubt, caucus. ¯ Bewell prepared withfirm datasupportfor cleadyidentified objectives. ¯ Always strive to keepsome flexibility in yourposition--don’tget yourselfout ona limb. ¯ Donot concernyourself only with whatthe other party saysanddoes--find out why. ¯ Remember that economic motivatioris not the only explanationfor the other party’s conductandactions. ¯ Respect the importance of face-saving for the otherparty. ¯ Constantly be alert to the true intentionsof the otherparty--withrespectnot onlyto goals,butalsoto priorities. ¯ Bea goodlistener. ¯ Builda reputation for beingfair butfirm. ¯ Learnto control your emotions--don’t panic. Useemotions as a tool, not an obstacle. ¯ Besure as youmakeeachbargainingmovethat youknowits relationship to all othermoves. ¯ Measure eachmoveagainst your objectives. ¯ Payclose attention to the wordingof everyclausenegotiated;wordsand phrasesare often the sourceof grievances. ¯ Remember that collective bargainingnegotiationsare by their verynature part of a comprehensive process. ¯ Thereis nosuchthing as havingall the pie. ¯ Learnto understand peopleandtheir personalities--it maymean a payoff duringnegotiations. ¯ Consider the impactof presentnegotiationson negotiationsin future years. Source: Richardson 1977:150.

suspicion" (Craft et al. 1985:169).Frustration mountsas hard-foughtgains from past contract negotiationscomeat risk. Unionleaders tend to lose their credibility and control over the rank and file, Combined with reducedpublic support, these tendencies meana loss of unionpowerand influence (Craft et al. 1985). Future relations with management are morelikely to be confrontational and adversarial. Frustrated unions, weakenedat the bargaining table, are likely to seek to win objectives outside the bargainingprocess, throughgrievances,the courts, and the political arena. Ironically, a financially weakgovernmentemployermayflex its muscles and becomestronger at the bargaining table. Retrenchmentpresumesreducing,


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TABLE 5.2 Negotiating YourFirst Contract:Tips andTricksfor Management Youwill needpaper,trans1. Don’tforget yourbasiclogistical requirements. TM tape, scissors,a copymachine, parentScotch three-holepunch,etc. Plan ahead. 2. Remember bargainingdiscipline. Know whowill speakfor your side. Know andunderstand the rules for a caucusbeforesitting downat the table. 3. Gofor a small agreement early. Agreethat the weatheris (nice, crummy, cloudy,clear, or whatever).Theimportantthing is to obtaina mind-setof agreement, All of this maysoundtrivial, butit is important because it works!!! 4. Onceyouare bargaining,go for anothersmall agreement early. Select something that neither side caresabout.Yourgoal, onceagain,is to obtain a mind-settowardagreement. 5. Find out as muchas youcan aboutthe union’s agenda.Find out as much as possibleaboutpotentialschisms in the union’sbargainingteam. 6. Fosterpoordiscipline on the unionteamby talking directly to members otherthantheir principal spokesperson. 7. Listen to whatthey say. Explorealternatives. Theymaywantless than you think theydoandless thanyouwerewilling to give. Gofirst with yourinitial proposal(s), butdon’t gofirst withyourlast bestoffer! 8. Useinterest-basedtechniques.Theuniondoesn’tcare a fig aboutyour position. 9. Berespectfulandcourteous.Nevertalk downto the union. 10. Bepatient. Negotiating labor agreements is a frustrating endeavor. Oftenit is the mostpatientteamthat getsthe bestcontract. 11. Movement is the mostimportantthing. If the parties keepmovingtoward the goal(a contract)youwill eventuallygetthere. Donotallowyourselfto get stuck on anything.This canlead to impasse anda generalmind-setof futility. 12. Askthe unionto explain their proposals.Sometimes they wantsomething that youwill behappy to give them,but theydidn’t askfor it in the right way.Properlydone,management canendup writing (for better or worse) almostall the language that endsupin the contract. 13. Remember the old schoolcrossinginstructions: Stop,Look,andListen! Source:Dodd1996.

or at least holding the line, on personnel expenditures, whichmeansreductions in force, wagefreezes, and similar actions. If the unions are uncooperative,the public employercan act unilaterally in several importantwaysbesides layoffs. For instance, mostof the state bargaininglaws providethat the financial aspects of labor contracts dependon legislative appropriationof funds, whichmightnot be forthcomingin a fiscal emergency.Also, the U.S. SupremeCourt and lower

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courts have recognizedthat a state maybreak a bargaining contract in certain cases of financial emergency (Befort 1985:1243- 1251). In a worst-casescenario, local governmentcan seek bankruptcyprotection under Chapter9 of the Federal BankruptcyCodeand, presumably,break union contracts. [In fact, the SanJose, California, SchoolDistrict filed for bankruptcyin 1983and canceledcontractual wageincreases for education employees,although the cuts were later restored by the school board. (See GERR1984:1081.)] In general, fiscal crises tend to stiffen the backsof public employersand tip the balanceof powerin their favor. Fortified by supportfromangrytaxpayers, public management in fiscally stressed states and localities can successfullylimit, and in somecases recover, union bargaining gains. II. EXTERNALPOLITICS In public sector collective bargainingthe intensely political nature of the enterprise frequently spills over fromthe bargainingtable into the broader environmentof labor-management relations and vice versa. Public employeeunions are active interest groups whethercontract negotiations are taking place or not. As interest groups, they participate in lobbying, campaigning,and other activities typical of organizedinterests seekingto moldpublic policy to the benefit of their members.Government unions, however,enjoy a special role in the public sector decision-makingprocess in those jurisdictions wherethey havegained collective bargainingfights. Public officials are legally required to recognizeand bargain with unions in mostjurisdictions, an advantagerarely available to other interest groups. In addition, most labor-managementdecisions are madein private and beyondthe immediateinfluence of other interest groups whichalso stake claim to a piece of the public pie. Whilepublic employeeunions do enjoy distinct access points not available to other groups, it should be recognizedthat governmentemployees are vulnerableto counteractingpolitical pressures. Theymay,for instance, have their jobs taken awayfromthemfor participating in an illegal strike; or the union maysuffer the wrathof the voters in anti-union referenda. Otherinterest groups cannot be slapped downso resoundingly whenthey offend the general public. To lessen their vulnerability and to pursue sources of powerand influence beyond the bargainingtable, public employeeorganizationsengagein a variety of political activities. This discussion on external politics considersthe majorpolitical activities of public employeesand their unions, especially lobbying, electoral activities, andefforts to influencepublic opinion. A. Lobbying Unionlobbyingactivities assumea variety of forms, includingwriting letters to elected officials; introducing,preparing,or sponsoringbills; makingpresentations


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on proposed legislation at hearings and meetings; providing information to elected officials; and cultivating an ongoingatmosphereof trust and cooperation with elected officials. Lobbyingactivities maybe direct (aimedat a specific objective such as legislative approvalof a wageincrease) or indirect (promoting goodwilltowardunions amonglegislators). Beforeinstitutionalization of collective bargaining in government,lobbying constituted the preeminentmeansof political influence for public employeeorganizations. Lobbyingefforts usually are directed at members of legislative bodies, because of the legislative role in structuring the legal environmentand approving the financial provisions of any negotiated agreement.However,executive branch officials also are targets on occasion. Mostlobbyingactivities are concentrated at the samelevel of government;that is, the teacher union focuses on members of the school board, the firefighters lobbythe city council, and state employees devotetheir attention to state representatives. However, local government organizations often attempt to influence legislative decisions at the state level when state law controls local terms and conditions of employmentor whena more general piece of legislation is of indirect interest to the union. Anexampleof a specific, state-controlled policy wouldbe a statewidebenefits packagefor teachers or, in the case of firefighters, statewidefire safety standards.Generallegislation of interest couldinvolvetax increasesor taxation andexpenditurelimitations. Unioninterest and involvementin the legislative processis appropriateand legitimate. Public employee organizationsare registered lobbyists in moststates. Someunionsretain full-time professionallobbyists in their state capital and in Washington,D.C. Others employtheir ownmembers,particularly whenlobbying efforts are aimedat the local level. It is whenlobbyingtakes on the lookof an end run that certain activities are questioned,and whenconcernby elected officials for their personal political futures maycompromise the process of collective bargaining. The end run occurs whenemployeerepresentatives discuss demands with officials whoare not part of the bargainingteam.If successful, the end run can result in a unionwinningfromthe legislative bodywhatit has beendenied at the bargainingtable. Thetactic is inimicaland chilling to collectivebargaining. It makesfuture negotiations moreproblematicand undercutsmanagement authority. In several states, the endrun is treated as an unfair labor practice. Asis the case withmostinterest groups,it is difficult to measurethe impact of public employeeunionlobbying. At a national level, unions in both governmentand industry havenot beenparticularly effective overthe past three decades. Thelimited impactof unionlobbyingactivities maybe due to a numberof factors, including declining private union membership and leveling off of public union membership, increasing hostility on the part of employersand the public, statutory restrictions on unionpolitical activities, ineffective andunimaginative leadership, and the decline of political liberalism. To these mightbe addedthe conflicting philosophiesamong unionleaders and members, divided partisan political

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loyalties of members, the divisivenessof narrowoccupationalinterests, increased competitionfrom other interest groups, and the growingdominanceof business interests. B. Electoral Activities Electoral activities are designedto help elect candidates for public office who are believedto be sympatheticto the union. The relationship clearly is intended to be reciprocal: "We’llhelp youwinthe election if youwill supportthe union." Several union electoral tactics are commonly employed,often through political action committees(PACs).Becausefederal law prohibits direct contributions uniondues to candidatesfor political office, PACsare used to raise and disburse "voluntary" contributions to candidates. In 1998, union PACscontributed approximately$35 million to congressional candidates (Federal Election Commission 1998). Unionscommonly endorse candidates for state, local, or national office, whichof course implies that the candidate will be the recipient of the "union vote." If the candidate wins, the union presumablyenjoys access and favorable consideration.If, however,the endorseeloses, the union"later finds itself dealing with the victor, whomayhave a long memory"(Spero and Capozzola1973:91). Instead of officially putting the employeeorganizationout on a limb, unionofficials sometimeswill proffer an informal endorsementthrough public statements supportingthe candidate’s record. Accompanying the official or tacit endorsement of a candidate are contributions in money,humanresources, or both. This mayrepresent the mosteffective labor tactic in American electoral politics, as it is direcdyrelated to voter turnout for union-supportedcandidates. As a member of the firefighters’ union in Hartford, Connecticut,once said, "councilmenare interested in twothings, the vote and money.Wesupply both" (Gerhart 1973:26-27).In recent years, the National Education Association has supplied enoughmoneyto political candidates to rank in the top five of all political action committees.PACcontributions from AFSCME, the National Association of Letter Carriers, and other large unions has grown tremendously. Humanresource contributions mayinclude door-todoor canvassingof prospectivevoters, distributing campaignliterature, operating telephone banks, and stuffing envelopes. Suchdirect aid in someinstances producesvery tangible returns in future wageand benefits packagesand increased agency and departmental expenditures (Gely and Chandler 1995; Hammerand Wazeter 1993; O’Brien 1996). In rare instances, unions sponsortheir owncandidatefor public office. This can create a serious conflict of interest whenthe victor is a union member,as he or she musttry to balance what is goodfor the public at large with whatis goodfor the union. However,the strategy maybe useful to promulgatethe union voice and perspectives evenwhenthe candidate stands little chanceof victory.


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Althoughunion electoral activities can help a favored candidate to win office and perhaps ensure a sympatheticear in the legislative body, no union or any other interest groupcan guaranteedelivery of all the votes within the organization. As John DeLuryof NewYork City’s Sanitation Union once admitted "only Godcan guarantee 100%delivery [of votes]. Weare sure of 99%, based on past performance" (Spero and Cappozzola1973:92). This is especially true at the national level, wherethe political viewsof unionleaders often differ markedly from those of the rank and file. Someunions, such as huge District Council 37 of AFSCME in NewYork, are potent political forces that can mobilize strong support for union-supported candidates or issues. But union leaders must workhard to politicize, educate, and activate the members.Mostcount on a dedicated core of union activists for campaignactivities. District 37 sponsors "campaigncourses" and other educational opportunities to entice membersinto politics and to hone their political skills. The union also successfully encouragesits membersto register and vote on election day (Bellush and Bellush 1985). Howsuccessful are unions in organizing the vote? Empirical research indicates that union membersare morelikely to register and vote than nonmembers (Freemanand Medoff1984:192-193). In recent congressional elections, union households madeup from 14 percent of the vote in 1994 to 23 percent in 1996 (Masters 1998:314). Apparently, however, union family membersare no more likely to vote than nonmembers (Delaneyet al. 1988). Domembersvote in accordance with the wishes of the union? Moreoften than not, they do, but support varies by jurisdiction and by election. Unionsmust competewith larger socioeconomicand political forces for the voting allegiance of their members.For example, an estimated 40 percent of the union vote in the 1984presidential election went to Ronald Reagan, even though most unions had endorsed his opponent, Walter Mondale.One study found that memberswhoattend union political meetings, read the unionnewsletter, and otherwiseparticipate actively in their organization are morelikely to support the union-endorsedcandidate than the less active rank and file (Juravich and Shergold 1988). Historically, the union vote has strongly favored liberal and Democratic candidates, although someerosion in this pattern has been noted beginningwith the 1968presidential election (Masters and Delaney1987:343). Duringthe midto late-1990s, the congressionalstrength of the RepublicanParty encouragedlegislative attacks on laws and policies that benefit unions and their members.The DemocraticParty continues to be the only friendly political port in a storm, despite regular assertions by union leaders that Democraticcandidates whoare not in the campof organized labor will not receive union campaignsupport or votes. A third party movement is frequently a topic of discussion amongfrustrated unionists, but the political reality has beenthat votes for third party candidates increase the likelihood of Republicanelectoral victories (Delaneyet al. 1999).

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The most important question, of course, is whether the union vote makes any difference in public policy; in other words,does the unionvote elect national, state, and local officials whosupport and help win union political objectives? The answerdependson the time, place, issue, and union, but generally the unions have fought a defensive battle since 1980. It also dependson whetherthe glass appears to be half emptyor half full. Unionshavecountedpreciousfew legislative victories, but labor rights havenot yet beenseriously diluted, either. C. Public Opinion Mostpolitical activities by an interest group are intended to influence public opinion. Certainlythis is true withregard to electoral activities. Somelabor organizations directly undertakecampaignsdesignedto affect public opinion on various issues of immediateor long-range concern to the union. Information maybe conveyedto the public throughpress releases, television and radio spots, informational picketing, rallies and demonstrations,and other techniques. AFSCME has engagedin a variety of efforts to shape public opinion. It has operated since 1968 through its umbrella organization PEOPLE (Public Employees Organizedto PromoteLegislative Equality) to coordinate its national political activities, and has participated in AFL-CIO’sCOPE(Committeeon Political Equality), a related organization. Throughthese efforts AFSCME has promotedprogramsas diverse as federal revenue-sharing, anti-poverty programs, civil rights, a higher minimum wage, pay equity, and consumerand environmental protection. AFSCME has concentrated someof its public opinion initiatives on national "image" advertisements designed to promote the organization and the union movementin general (Masters 1998). Unionstoday suffer from their lowest public approvalratings since before WorldWarII. Surveysrate themlowerthan all other majorAmericaninstitutions, even the Congress. Corruption charges against union officials have compounded the public opinion problem. Newinitiatives to elevate the union image seemed to have little or no effect, pointing to a future problemof no small concern. D,

Restrictions on Public Employee Political Activity

Civil servants have been involved in political activities of one sort or another since the earliest days of the Republic.In a legal and constitutional systemcharacterized by multiple levels of management decision-makingauthority, government workersand their unions will alwayshavestrong incentives to exploit the various access points to their governments. Collectivebargaining, legislative politics, and elections are not mutually exclusive processes. Giventhe pervasive presence of politics in governmentlabor-managementrelations, the salient issues become: should political activity by public employeesbe restricted? If so, how?The conventional approachin the United States has been that public employeepolitical


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activity should indeed be limited throughstatute. Thefirst statutory prohibitions were included in the Pendleton Act of 1883. In 1939 the Hatch Act restricted federal employeeactivities; it wasextendedto federally paid state and local governmentworkers in 1940. Thereafter, most states and manylocal governments enacted their own"little HatchActs" to apply to nonfederally fundedemployees. Thelaws taken together are almost chaotic in their diversity. Someprohibit all electoral activities exceptvoting; others permitpublic employees to run for office. Mostrestrict partisan political activities, reflecting their origins in the reform struggle against the spoils system. All are inimical to the interests of unions in government,whosemembers’activities are constrained. For various reasons, the HatchAct and other political restrictions on public employeeactivities are rarely enforced, and the trend today is in the direction of easing the restrictions throughlegislative actions and court decisions. Although the constitutionality of the HatchAct has been upheldby the U.S. SupremeCourt (United States Civil Service Commissionv. Letter Carriers 1973), it has been ignored, on the whole, by both public workers and their employers, with a few exceptions. Thereis strong pressuretoday fromunionsat all levels to abolish restraints on political activities by public employees.Duringthe presidencies of Ford, Carter, Reagan, and Bush, Congresspassed legislation revoking the HatchAct, but each time the president vetoed the bill. Finally, in 1993, the Congresspassed and President Clinton signed an overhaulof the federal HatchAct. The reformpermits mostfederal employeesto engagein political activities that werepreviously prohibited, includingdistributing partisan campaignliterature, workingfor partisan candidatesand campaigns,soliciting votes, and holdingoffice in political parties. Pressureon similar lawsat state and local levels is likely to continue.It is increasingly difficult to justify denyingpublic workersthose fundamentalconstitutional rights enjoyedby their counterparts in the private sector. III.

FROMTRADITIONALTO INTEREST-BASED BARGAINING

As the union and management representatives cometo the table, bringing issues important to themwith respect to the current agreementand the successor that is about to be negotiated, they are intent on improvingor eliminating old vocabulary and creating newlanguagefor the future. It is the reshapingof both a documentand a relationship. The union usually submitsand explains its proposals first. The unionmakes somesort of opening statement that soundsthe themefor this round of negotiations. Management follows the union by makingits ownstatement, usually indicating the employer’sdeep concern for the agencyit represents and pointing out its regard for its loyal dedicatedworkers.Management is clear about its willing-

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ness to find waysto help solve problems,and then customarilyremindsthe union of various limitations that makeit difficult to accommodate all of the union’s demands.There are countless possible responses from the union to management’s statement but the mostcommon maybe that it is not a problemof ability to pay, but rather willingness to pay, for the union’s demands.The openingstatements, and responses, are meantto apprise each side as to what the other wantsor does not want~In a sense, duringthis initial session, each party is remindingthe other that it has equal standing in the processand that it mustbe treated with respect. Muchof whatis said is expected,but it is not unusualto hear things quite unanticipated. This introductory period also signals the tone the negotiations mighttake, and teams begin the bondingprocess as the real bargaining is soon to commence. Both sides pledge to work in goodfaith. Thisis all part of the openingdanceritualistically performedby the parties. Nonetheless, serious messagesget delivered and sophisticated negotiators glean importantinformationor the seeds of suppositions about whatto expect in future meetings. The parties watchnonverbal communication quite closely at this time, searching for clues to attitudes on the other side that maybe predictive of what is to follow and to identify individuals whomayrepresent problemsin the bargaining. Whenthe initial exchangeis completed,the parties are ready for serious negotiations. A. Traditional Negotiations Traditional negotiations fit the stereotype mostpeople haveabout collective bargaining. That image represents what Fisher and Ury (1981) characterize as the "hard" approach to bargaining and what Walton and McKersie(1965) refer as distributive (zero-sum)bargaining. It features: (1) looking at participants adversaries and wantingto win at all cost, (2) lowtrust of the other side, (3) trying to force the other party to makeconcessionsthrough sheer use of power, (4) using threats, and (5) seeing issues in dualistic terms (i.e., "fight or wrong," "sensible or irrational"). In terms of collective negotiations, the hard bargaining approachfeatures only two perspectives on the issues. "Positional" is the wordmost associated with traditional bargaining. Having a position meanshaving a specific idea on howany differences or problems should be resolved. Manypeople believe that there is a "fight" answer to any question or problem.At the bargainingtable, the attachmentto a single "correct" concept or solution makesgetting settlements very difficult. The dynamicsare such that one side digs into its position and rejects or denigratesthe ideas of the other. As we becomeidentified more and more with our singular view of the world, we are less able to listen to contrary arguments. Onecan easily turn a mere difference of opinion into a personal matter. Onemight makethreats or statements such as "under no circumstances will we ever .... " Obviously,such


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behaviordoes not help the parties to reach a settlement and it has a deleterious impact on the relationship betweenthe parties. For example,a management that refuses to negotiate in goodfaith, demanding that the unionaccept its nonnegotiable positions on all the issues (this behavior is knownas "Boulwarism") leaves the union fewchoices: concedeor go to arbitration (or strike). The parties have to worktogether once the contract is settled. A party can win the bargaining battle but lose the war. Fisher and Ury(1981) also describe a" soft" approachto bargaining, which is the oppositeof the traditional forceful method.In the soft strategy, negotiators want to see people as friends. They makeconcessions to showtheir goodfaith in wantingto reach an agreementand havea tendencyto yield to pressure. They perceive conflict in general as an unseemlysort of fighting. Soft strategists do what they can to avoid trouble and are overly willing to makecompromisesand accommodations to demonstratetheir willingness to be collaborative. Theyforget that they haverepresentationalresponsibilities for one side or the other and that it takes two adult strategies to fashion an agreementthat worksfor both parties. Avoidingconflict can lead to moreproblemsin the future than confronting it directly whenit first needsto be engaged.Collective bargainingis a processthat fully recognizesthat conflicts in the workplaceare natural and that the parties need to peacefully and productively resolve their differences. Soft bargaining underminesthe process and does damageto the public, public institutions, and public employees.It does not further either major objective of collective bargaining: achievinga workablecontract and maintaininga productiverelationship betweenthe parties. In this regard the soft approachis "lose-lose." Avoiding conflict maybe wise on someoccasions. However,as an overall philosophy of bargaining,it courts disaster. Traditional or distributive bargainingis adversarial and conflict oriented by nature. Asin a gameof poker, neither side reveals its handto the other. There is deceptionand bluffing and a numberof other gamesthat negotiators play. The imageis to be toughand clever. For example,during negotiations in the California State EmployeesAssociation (CSEA--now SEIU)and its ownstaff (union staffs are often unionizedand bargainwith the leaders of the union), the management team proposed installing time clocks and maintained an apparent seriousness about the issue throughoutthe negotiations. Nomanageractually wanted time clocks but the issue was includedin the packageso that it couldbe conceded near the end of bargaining whenthings were most intense. This was a way of giving the union a win (no time clocks) in exchangefor something management really wanted. During the same negotiations, the management chief negotiator woulddeliberately leave someof the notes that are routinely passed between team memberson the table at the end of the day. The notes were full of false information. As expected, the union wouldread the notes and spend time developingdefenses against management strategies that werein fact nonexistent. It is

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no wonderthat trust levels are lowin negotiationsin whichone or both sides are intent on manipulatingthe other. It is alwaysdifficult undersuchcircumstancesto tell what is real and what is true. Rumorsare commonplace during negotiations and they are often personaland negative in terms of individuals and organizations on both sides. It is also common for people to treat colleagues suspiciously if they are on the "wrongside" or appear to be insufficiently loyal to the side they are supposedto support. Information frequently gets distorted, sometimes intentionally. All of these gamesmanship dynamicsmakeit difficult to cometo mutualterms in solving problems.Fundamentally,traditional bargainingis adversarial, contentious, and emotionallydraining. It worksin terms of producinga settlement but there are costs that maybe destructive to the relationship. The traditional approachto bargaining is about power, not collaborating for mutualgain. Thebehavioral characteristics associated with the traditional approach are competitive (win-lose, zero-sumassumptions), aggressive, resistant, hostile, andevenbullying(Barrett 1995).It is replete withcontentioustactics including gamesmanship,"guilt tripping," irrevocable comments(if-then messages), and threats (Rubinet al. 1993). The traditional approachattempts to wear down,dominate,seduce, manipulate, and threaten. Personal attacks are not unusual and sarcasmhas a central place in the discourse. The underlying idea is that "I cannot get what I want unless you don’t get what you want." This is zero-sumthinking. Everyconcessionis seen as a loss. The problemwith these tactics is that muchof what is being done appears personal and threatening to individuals on both sides of the table. It raises emotions, and any perceivedattack generatesreciprocal behavior.A spiral of conflict then begins as sides form, positions harden even more, communicationis impaired, hostility escalates, threats becomeissues, until the top of the spiral is reached wherepeople want revenge more than a fair and workable contract. The style and approachof traditional bargaining is rough on the problems and tough on the people (Fisher and Ury 1981). Traditional talks gone awry damagethe ongoingworkingrelationship betweenthe parties, disrupt teamwork, lower productivity, and spawnan "us versus them"workclimate that is destructive to the creation of high performanceagencies. Contemporary public administration theory and practice are marchingin an entirely different direction from the assumptionsand values of traditional bargaining. The major leadership and management modelsin contemporarygovernmentand business rely a great deal on collaboration and participative decision makingat all levels of organizations (Kearneyand Hays1994). There are a numberof teamwork,reinvention, reengineering, quality, learning, and other innovationsthat dependon trust and the use of genuine participative dialogue to improveperformance. Howorganizations negotiate labor agreements, and the outcomes,both real and intangible, matter importantly in transforming workorganizations and delivering high quality public services. Thetrend today is towardinterest-based bargaining.


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B. Interest-Based Bargaining (IBB) Interest-based bargainingis also knownas win-winbargaining, integrative bargaining, and principled negotiations. The IBBmethodis intended to changethe operating assumptionsof persons whohave learned to negotiate in traditional waysusing traditional tactics (comparethe two approachesas presented in Table 5.3). It is worth pointing out that win-winmayoverstate what is possible in manynegotiating settings. Theterm makesit soundas if differences can be resolved without costs, but "win-win" ought to be used with somecare because it is importantto keeppeople’s expectations realistic. Level of expectations in any formof bargainingis an importantfactor in howthe talks will go. Obviously parties that expect to get a lot, or perhapseverythingthey desire, are in for a comeuppance. "Winning"meansbeing able to get an agreementwith which both parties can live. Suchan agreementfairly satisfies the interests of both parties and encourages smooth administration once the pact is consummated.The idea that each side can go to the bargainingtable and haveall its needsmet withoutmaking someconcessions or having to engage in somegive and take is unrealistic and can makethe negotiations extremely difficult. That is whysomemediators are cautious about the "win-win"phrase. Whatnegotiators and mediators focus on instead is helping the parties to understandthat the real spirit of the win-win philosophy meansbeing assertive about one’s ownneeds and, at the same time, being willing to actively listen to whatthe other party wants. Theidea is that agreementsare producedmoreefficiently and equitably if the interests of both sides are taken into consideration. Anotherunderlying aspect of the win-win philosophy is that there are manyways to solve problemsif people will work together. Interest-based negotiation is not a "soft" approachwherepeople have to like each other and bend over backwardsto makeconcessions. It is, instead, a methodto get a tough job done in a way that settles the immediateproblems and sets conditions for improvedfuture workingrelationships. It is meantto be efficient and fair to bothsides.

TABLE5.3

Comparison of Traditional and InterestBasedBargaining

Traditional ¯ ¯ ¯ ¯ ¯

Issues Position Arguments Power& Compromise Outcome:Win-Lose

Interest-Based ,, Issues ¯ Interests ¯ Options ¯ Standards ¯ Outcome:Win-Win

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Theprinciples of IBBare (1) negotiate on the merits of the proposal; don’t reject it becausesomeonefromthe other side suggestedit; (2) separate the people from the problem, which means"don’t shoot the messenger" and don’t blame someonefrom the other side for doing her job; (3) be hard on the problemand professional with the people; avoid assigning blameand recognize the value of face-saving;(4) determinethe interests of the other side instead of just reacting to their positions; understandingthe overall interests helps to openup moreoptions for solving the problems; (5) avoid fighting issue by issue, position position froman adversarial posture; considerusing a facilitator to help generate dialogue and to mediate whencalled for; (6) invent options for mutual gain; brainstormto identify a range of possible options that reconcile differences and advanceshared interests; (7) have someonechart the ideas that are brainstormed by the groupsin the roomand then post the charts on the walls so that there is one set of data andit is public andavailable to all; type up the charts eachevening and give themto the parties the next morningso everyone is workingfrom the same set of notes; (8) establish criteria uponwhich a proposal maybe judged on the merits and have the parties makethe determination about whether any idea satisfies the interests and criteria of bothparties; these become likely candidates for inclusion in the contract (Fisher and Ury 1981). Anexamplewouldbe helpful. In one state, the parties knewfrom the outset that they wouldhave a gooddeal of difficulty in getting a contract and asked for two labor facilitators (mediators) to help themwith this newprocess called interest-based bargaining. Beforethe mediatorswouldagree to facilitate an entire agreementthey put the workers and management through IBB training. The parties weretold to pick a real problem,one that was a problemin the relationship, that wouldcertainly find its wayto the bargainingtable, and that they had not been able to resolve. They chose a probleminvolving welders. After somevery basic training on IBB, the parties were broken into groups and about 40 people went into brainstorming on howto fix the problem. This is what is meant by inventing options for mutualgain or helping the other side win. Thegroups came up with morethan 60 ideas whichwere written on the board. The criteria then wereestablished (the solution had to be affordable, it should be legal, it should not lead to any layoffs, it shouldbe ethical, etc.). Abouta dozenof the ideas fit the criteria. Twoor three ideas were especially goodand were used to settle the issue. In this particular case, an entire labor agreementwasnegotiated using the IBBmethodin slightly more than one week. It wouldbe nice to think that negotiators movesmoothlyto IBBand away fromthe morepathological aspects of traditional bargaining, but it is not that easy. Individuals have different perceptions of the world. Someare open to changingtheir cosmologyand others simply are not. Somenegotiators begin the IBBprocess but revert to traditional tactics. Theactual negotiations experience frequently involves sometraditional methodsand someIBBtechniques. Things


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mayproceed smoothlyfor a while but eventually someoneor something pushes the parties backto wherethey started--suspicious, confrontational, and adversarial. It is normal.Peopleforced to address difficult issues do not behaveconsistently with models.Theysay and do whatthey feel is right at the time. It is a challengefor a facilitator to allow venting and regression while gently prodding folks back to the IBBmethod.Bargainingis immediateand actions and reactions naturally occur. It does the facilitator no goodto disallow a discussion because it fits the wrongmodelor isn’t timely. It is a sure wayto get the facilitator replaced. The process has a wayof workingitself out in its ownwayand in its owntime. Solid advice for facilitators and mediatorsis "try not to step on the conversation." Thereare times and places wheretraditional bargaining is called for becauseof the comfortzoneof the parties, the nature of issues in dispute, intense constituent pressures fromthe union’sside, or the high level of strain being exerted downward from upper management in the public agency. Sometraditionalists like the modelthey use becauseit is predictable and they knowhowto play the game.Theidea of a newprocess like IBBis viewedas risky. There are many of the samefears fromthe unionside. There are those on both sides whostereotype the other ("unions are evil and destructive," or "managersdon’t care about employeesand cannot be trusted"). Anotherbarrier to implementingIBBis intraorganizational conflict. This is wherefriction, disagreement,or just plain personal animositysurface within the union team or amongunion membersnot part of the team. Interpersonal and professional conflicts mayplay a role here as well. Manya negotiator has had to keep one eye looking across the table and the other on the behaviorof people ostensibly on his side. Bargainingteamsfromboth sides rarely havethe internal solidarity they seek to project. Thereare other confounding factors that interfere with getting a goodagreement.Negotiationis a dispute resolution mechanism, whichmeansthat it is inherently about conflict. Thereare honest differences of opinionsabout issues. This helps to explain whysomenegotiations can be so contentious. There is rarely agreement amonga group of people on what it is the organization should be doingor whereit should be headed.This manifestsitself in bargainingstrategy. Peoplemaycometo terms with wherethey wouldlike to go, but have differences on howto get there. So, we havedisputes on ends and means.Peoplehavedifferent values and ideologies and do not let go of themeasily. Thereare personality conflicts. Peoplesee the same"facts" in every different ways.People’s perceptions in every aspect of life tend to be self-serving and distorted. Wetend to attribute bad motivesto people whodisappoint us but are quick to blamesituational factors beyondour control for our ownfailings. People don’t communicate very effectively. Perhapsit is moreaccurateto say that peopleare better at being assertive abouttheir ownneedsthan listening to the other party expressits needs.

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Explanationsof traditional and interest-based bargaining should be appreciated as methodsand techniques that are conductedin the thicket of humanpersonalities and emotionsthat exist at every workplace.Somesituations are favorable for IBB, and someare not. If these factors were not enough,there are a few morethat makeany successful conclusionto bargainingproblematic.First, there is the pressureof time. Bargainingmaystart slowly but there is normallya deadline that has to be met if the contractis to be placedbeforethe jurisdiction’slegislative bodyfor ratification. Late-night bargainingagainst the clock is not uncommon. Thereis the problem of union ratification. Each memberof the bargaining unit gets to vote on whetherthey accept the agreementor send their negotiators back to the table, "Soft" negotiators maypush their chairs back fromthe table with their assumptions that bargainingis essentially a friendly process intact. But the deals they makewill havetrouble being ratified becauseof the perceptionthat they are too weakor "sellouts." Anotherproblem, "unresolvedprior conflict," meansthere will be no newagreementuntil somepast issue is resurrected and rectified. Experienced negotiators characterize this as "sin bagging." Issue after issue may comeand go and the parties avoid dealing with them. Then, one day, an incident breaks the proverbial camel’s back and all of the past problemscomeflooding out at once. This is another exampleof whereavoidancemaycause the price of peaceto be higher later, than if the problemhad beendealt with earlier. Theprevalenceof integrative (win-win)or distributive (traditional) strategy dependsto a great extent on the distance betweenthe union’s objectives and the objectives of the employer.A cooperative approachtends to prevail if the two sides are not far apart. Coercivetactics tend to be used whena large gap separates bargainingobjectives. The gap betweenthe positions of the parties is referred to as the "bargaining zone" (Walton and McKersie1965). The bargaining zonespans the distance betweenthe resistance points of each party, that is, the point beyondwhicha strike or impassewill result. Eachside tries to determinethe resistance point of the other. Anegative zoneexists wherethe gap represents the distance betweenthe farthest point of compromise acceptable to each party. For instance, if the union will accept no less than a $2.00 an hour wageincrease and management is unwilling to agree to a pennymorethan $1.50, a negative zoneexists and impasseis likely. A positive zoneis characterized by overlappingresistance points: the union wants no less than $1.75 and management has already decided to grant up to $2.00. Here, settlement is a foregone conclusion. The resistance points of the respective parties dependto a large degree on their bargaining power. "Power," as defined by Robert Dahl (1957:203), is the extent to whichA can get B to do (or not do) somethingthat B otherwisewould not (or would) do. In the words of Chamberlainand Kuhn(1965:162-190),power "is the ability to secure an agreementon one’s terms." Poweris a product of


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the resources available to each party with which to influence bargaining outcomes. The resources that maybe used include money,votes, political party support, budgetaryexpertise, negotiating skills, information, access to the media and elected officials, and job actions. In government,powerresources are predominantlypolitical. In the private sector they are primarily economic.

TABLE 5.4

Contrasting Bargaining Approaches

Soft bargaining Participantsare friends. Thegoal is agreement.

Hardbargaining Participantsare adversaries. Thegoalis victory.

Makeconcessions to cul- Demand concessionsas tivate therelationship. a conditionof therelationship. Besoft on the people Be hard on the people and on the problem. and on the problem. Trustothers.

Distrustothers.

Change your position easily. Makeoffers. Discloseyour bottom line. Acceptone-sidedlosses to reachagreement.

Digin to yourposition.

Principlesnegotiations Participantsare problem-solvers. Thegoal is a wiseoutcomereachedefficiently andamicably. Separatethe people fromthe problem. Besoft on the people, but hardon the problem. Proceedindependently of trust. Focuson interests, not positions. Exploreinterests. Avoidhaving a bottom line. Invent optionsfor mutual gain.

Makethreats. Misleadas to your bottomline. Demandone-sided gainsas the price of agreement. Searchfor the single an- Searchfor the single an- Developmultiple options swer:the onetheywill swer:the oneyouwill to choosefrom; deaccept. accept. cidelater. Insist on agreement. Insist onyourposition. Insist onusingobjective criteria. Try to avoida contest of Try to win a contestof Try to reacha result will. will. basedon standardsindependent of will. Yield to pressure. Applypressure. Reasonand be open to reasons; yield to principle, not pressure. Source:Adapted fromFisherandUry1981.

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Collective bargaining is about dealing with differences and constructing a relationship. It is not a game.It is not a war. Getting goodsettlements that the parties can live with is a formidabletask given the nature of the processes used, the mindsetsof the parties, the maturity of the relationship, the psychological nature of humanity,and the complexityand difficulty of the issues. Table5.4 summarizesthe differences in attitude and behaviorbetweensoft, hard, and principled bargaining approaches.

IV. BARGAINING IN THE FUTURE Collective bargainingstill follows the traditional model,althoughIBBis spreading to a growingnumberof jurisdictions. IBBpromotesthe kind of workclimate consistent with teamwork.It has the potential to makecollective bargaining a strategic asset in organizations as it pushes to the surface numerousproblems management maynot knowexist. In other words, the bargaining process gives managementand employeesat all levels an opportunity to talk about mutual problemsthat can be rectified. In a broadsense, IBBis part of the trend toward greater employeeinvolvementand participation (Kearneyand Hays 1994). It a type of empowerment and sharing of responsibility. IBB also comportswith the growinginterest in Alternative Dispute Resolution (ADR),which is being used throughoutgovernmentand the private sector to help resolve disputes involving family, labor relations, civil relations, commercial interactions, custody disputes, and manyothers. IBBis similar in processto manyorganizational development(OD)third-party peacemakingand teambuilding interventions. And, public administrators know,the handling of conflict through negotiations is an importantpart of the day-to-dayoperation of every public organization. Negotiations expertise is a very importantskill in government and in life.

V.

SUMMARY AND CONCLUSIONS

The bargaining process commences with each party communicatingits proposals to the other. Manypolitical and psychologicalconsiderationsare relevant in determining whichproposals to makeand howto portray them. As in the courtroom, preparation is a critical componentof the process. Both parties are typically boundby law and practice to bargain in goodfaith. Government fiscal constraints in somejurisdictions have produceda trend towards concessionbargaining, in whichunions are pressed to makefinancial or workrule givebacksto their employer.Althoughtraditional, zero-sumbargaining remainsthe norm,there is a great deal of attention beinggiven to interest-based, win-winnegotiations. Thelatter approachdiffers substantially in its assumptions, processes, and potential outcomes.However,it involves significant changesand


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naturally provokes resistance from parties whowant to cling to a moreconventional approach.

CASE STUDY 5.1: SANITATION WORKERS AND THE CITY OF BELVIEW: CONTRACTNEGOTIATION A.

Instructions

Twonegotiating teams should be formed,each consisting of three to six individuals. Theteams should be namedbefore the day of the exercise and given sufficient time to organize themselves and prepare for the negotiations. A leader and a recorder should be elected by each team. The job of the recorder is to record proposals, counterproposals, agreements,and other useful information in a Negotiations Ledger. The teams should negotiate an agreement, record their final settlement in writing, and calculate the financial costs of the settlement. The length of the negotiations should be one to two hours. If one or more items go to arbitration (see below), the instructor or a designated individual should serve as the arbitrator.

B. Background The Belview Sanitation Department(BSD)has 75 employees. Seventy are members of the bargaining unit, whichis represented by the Sanitation Workersof America(SWA).The BSDcollects household and business trash and recyclables twice per weekthroughoutthe city limits. It utilizes 20 garbage trucks and five vehicles for collecting recycled aluminumcans, paper, and plastics. Three employees workon each garbage truck and two on each recycle vehicle. The rolling stock is getting a bit old: the garbage trucks average about eight years and the other vehicles around five years. The technology is somewhatoutdated as well. Somenearby jurisdictions, for example, use two-persongarbage trucks that collect householdtrash in large, green, "HerbieCurbees." This technologyrequires residents to push their Herbie Curbies out to the street once per weekand then return themto the rear of the house. During the past two decades the BSDemployeeshave received competitive pay raises and their benefits package comparesfavorably with those of neighboring jurisdictions. There wasan illegal strike to gain union recognition about 20 years ago, but recently relations between the union and managementhave been good. Becauseof a recent state supremecourt ruling, however,strikes by public employeesare nowlegal, although none have yet occurred. Deadlocked negotiations havegone, instead, to binding arbitration.

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The present two-year contract expires in three days. Negotiationshave gone nowherefor the past month, but nowthe parties are prepared to engage in a marathonbargaining session to settle the remainingissues. C.

Interests of the Parties

1. Wages.The union is asking for an increase of $1.25 per hour for the first year of a newcontract and $1.00 for the secondyear. Management, preferring a three-year contract, has counteredwith an offer of $.50 for twoyears and $1.00 for the third year. The average hourly rate for sanitation workersis $13.00 per hour, slightly belowthe regional average of $13.50. 2. Health Care Benefits. The City of Belview currently pays the full cost of medical insurance for its sanitation workers. Approximately75 percent of the employeeshave dependents also covered under the city health insurance program. Underthe existing contract, the city pays 50 percent of the cost of dependent coverage, which is $75 per month. The union is asking for full (100 percent) coverage of dependents. Management has received notice from the HMO that the cost of each policy will increase by $50 next year. Management wants employeesto copay 25 percent of their personal health care insurance but is willing to continue paying 50 percent of dependentcoverage. 3. Sick Leave. The present contract includes 7 paid sick days. The BSD workersclaim that the nature of their workcauses themto be ill morefrequently than other city employees,and they are asking for 10 paid sick days. Other city employeesalso have 7 days. Assignment 1.

2.

Negotiate and record your agreement. If no agreement has been reached on one or more issues whentime expires, the dispute(s) will have to be submitted to conventional arbitration. Each party must develop a written defense of its positions and perceivedinterests. Eachparty should calculate the costs of the economicitems, including the wageincrease (at 2,080 hours per year), health insurance benefits, and sick leave.

6 Financial Impactsof Unionsand Collective Bargaining

Manystate and local governmentshavesuffered throughthe throes of fiscal crisis intermittently since the early 1970s. Indeed the fiscal problemsthat can assault governmentsare legion: inflation, recessions, increased service demandsand costs, shifts in populationand tax base, declining intergovernmentalaid, expensive court orders or settlements, citizen resistance to tax increases, infrastructure deterioration, burdensomefederal regulations--the list is almost endless. Symptoms of fiscal stress run the gamutfrom the near bankruptcyof NewYork City, Detroit, and Cleveland in the late 1970s and the actual bankruptcy filing of Bridgeport, Connecticut, in 1991, to former MayorHenryMaier’s complaintthat the city of Milwaukee’scost of removinga dead cat from the street jumped400 percent in five years--from9 cents to 37 cents per fallen feline (it costs far more than that today). Financial adversity has becomea long-term affliction for somestate and local governments,particularly those that have been net losers in the movements of jobs and industry overseas and to the Sunbelt. The major social, economic, and political forces contributingto government fiscal stress haveshownlittle sign of abatement, even in the prosperous economictimes that characterized the 1990s. Meanwhile, state and local governmentemploymentand payroll costs have risen steadily. States and localities employmorethan 16.5 million workers. Total payroll costs exceed$400billion. Somecommentatorson labor relations in the public sector allege that unions, throughcollective bargainingand various political activities, contribute to state and local fiscal difficulties by inflating payrolls and operating budgets. It is often asserted that the primaryimpact of public employeeunions is driving up the cost of wagesand fringe benefits. Since 40 to 80 percent of the typical local governmentand school district operating budget is allocated to employee compensation,strong union influence in setting pay and benefits could, indeed, press financially troubled jurisdictions up against the wall by achievingmonetary 139

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gains that the local governmentcould not afford. State governmentpayroll costs represent a smaller percentageof the operating budget, but they are also influenced by union pressures for wage and benefit increases. Because government is a highly labor-intensive enterprise, if unions drive up pay and benefits, then they also establish an upwardbias on state and local expenditures. In the private sector, a firm mayrecapture compensationincreases through higher prices or improvedproductivity, or absorb them through reduced profits. In government, where a price increase translates into a tax or fee hike, the choices are more constricted, moredifficult to make,and morevisible to the relevant public. This chapter assesses the financial impacts of public employeeunions. There are two major types of impacts: on the budgetary process and outcomes and on employeewagesand benefits. After a description and appraisal of union influences in budgeting, the empirical literature on labor relations is examined in an effort to identify the dollar and cents wageand benefits effects of unionization. The various factors that influence wageand fringe benefits outcomesare discussed, including parity arrangements, prevailing pay rules, and comparable worth criteria. The consequencesof public sector wageand benefits decisions for governmentdecision makersare considered, along with citizen reactions to these decisions. A brief description and analysis of gain sharing and productivity bargaining is followed by a look at the financial impacts of federal employee unions and collective bargaining. The chapter provides no simple answer to the question of what are the financial impacts of unions and collective bargaining in governmentThe nature, size, and significance of the union effects on budgeting, pay, and benefits are complexand multifaceted. The major conclusions are (1) that whereas unions have exercised a measurableinfluence on budgeting and compensationoutcomes, the overall effects have been moderate, and not as substantial as the monetary impacts of unions in the private sector, and (2) that the magnitudeof the impact varies greatly over time, function, and jurisdiction.

I.

BUDGET MAKING AND UNIONS

The annual (or in somestates, biennial) operating budget determines whogets what moniesfor whichpurposes. To the extent that budgetary allocations go to public employeecompensation,there is that muchless moneyfor other expenditure items. But for public employees,the operating budget determines the size of their raises, the quality and cost of health insuranceand other benefits, and, in tough economictimes, whichof themwill retain their jobs. Not surprisingly, the unions are active participants in the budget-setting process, both throughcollective bargaining and political activities intended to influence elected and appointed officials in the executive and legislative branches.

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A. The Budgetary Process In the absence of unions, employeecompensation maybe determined almost unilaterally by elected officials and public sector management. In the case of a council-managerstyle of government,department heads makeexpenditure recommendationsto the city manager,whoformulates a budget for consideration by the council. In this highly simplified model,compensation decisions are implementedafter the council ratifies the budget. BudgetStaff

$ Department Heads

> City/County Manager

> Council

Public employeeshave no formal role in determining wagesand benefits under this model. Their chief collective influence over compensationlevels is limited to statements at budget hearings and informal lobbying of managerand council as one of a plethora of interest groupsin the local political arena. Indirectly, public employeesmayexercise somecollective impacton wagesand benefits throughelectoral support of "friendly" candidates. Acting as individuals, workers mayattempt to convince superiors to recommend them for higher pay. Oncecompensationdecisions are rendered, however,public workersmust usually accept their monetaryallocations without recourse. The situation is not dissimilar for nonrepresentedstate employees,whodo exercise at least a modestcollective voice throughtheir state employeesassociation, whichtestifies and introduces data before legislative budget committees. Individual state employeesare largely, however~at the mercyof legislative decisions and the pay distributions of supervisors. In the presenceof unions and collective bargaining, the role of public employees in budget makingand compensationdetermination is greatly enhanced. A formal collective voice is provided throughwhichpublic employeespress their demandsduring budget making. A modelof union representation in a councilmanagergovernmentmaybe depicted as follows. Department Head ~ Budget Staff ~ City/County Manager ~ Council Municlpai/County Bargalning Team Union Bargaining Team Here, public employeesenjoy direct formal access to budget making, as well as informal channelsof influence such as lobbyingand campaignactivities. At the state level, unions negotiate their terms and conditions of employment

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with a management team representing the executive branch; the legislature typically honorsthe results by incorporating theminto the budget. Theproceduralimplications of this bilateral (or, one mightsay, multilateral) arrangementfor the budgetaryprocess can be substantial with regard to the budgettimetable. Public employeeunions can seriously limit the ability of budget makersto rationalize, control, and managethe budget (see Hayes1972:89-100). In the absenceof collective bargaining,allocations for wageand benefit increases normallyare settled well in advanceof legislative ratification, guidedby departmenthead and budget staff recommendations and anticipated municipal revenues. But under collective bargaining, wageand benefit allotments cannot be finalized until contracts are signed betweenthe jurisdiction and its various employeeorganizations. Uncertaintyoccurs whenbargainingis extendednear or past the legal deadline for having a budget in place. Whenthis happens, the governmentmay have to seek newrevenue sources or take other measuresto provide for a late compensationincrease that is higher than originally expected. Unionshave been knownto take advantageof the situation by drawingout negotiations beyondthe budgetfinalization date in an effort to maximizecontract gains. Moststate and local government jurisdictions try to completeall collective bargaining contracts as soon as possible and especially before the budget goes to the legislative body. But reconciling the budget and bargaining schedulesis a long-standing problem.Somejurisdictions have attempted to resolve the problem of coordinating bargaining and budgetingthrough legislation. For example, collective bargaining mustbegin a specified period of time before budget making in NewHampshireand Massachusetts. Hawaiiand Iowatie the bargaining schedule to the fiscal year, and quite a fewbargainingjurisdictions declare an impasse automatically if no agreementhas been signed by a specified time. Variousformal and informal venuesfor legislative consultation and participation are also provided in somestates, including Minnesota(legislative hearings), Connecticut (formal consultation), and California (legislators mayeven speak at bargaining sessions) (Allshouse1985). Still, late contract settlements are not unusualeven in those jurisdictions that attempt to eliminate themthroughstatute. Evenwhenjurisdictions are in the early years of a multiyear contract, the budget schedule can becomederailed because of fiscal shortfalls. This occurred in numerousjurisdictions during the recession of 1991to 1992as unions were asked to give back negotiated wageincreases to avoid layoffs or furloughs. In someinstances, statewide contracts were reopened,with high stakes budgetnegotiations needed to producea newagreement. Whatkinds of problemsdo late settlementscreate? Clearly there is a certain loss of efficiency. Continuationof bargainingpast the final budget date makes the budget process less businesslike and less controllable for management,and maynecessitate shifting other allocations or enacting supplementaryappropria-

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tions, or newrevenue measures,to finance late settlements. Layoffsor service cutbacksare also a possibility. Budgetmakersmayanticipate a late settlement and decide to earmarkor "hide" dollars in unrelated budgetlines or contingencyaccountsto pay for late wageand benefit settlementsor to keepin reserve for other financial emergencies. Such"hiding behavior" is rather common,and generally considered to be part of the bargaininggameby bothparties. It is the rare agency,department,or other organizational entity that seeks true accuracy in all budget estimates (Toulmin 1988:627).Althoughhiding tactics are successful to varying degrees as a means of copingwith late settlements, their usefulness in holding downunioncompensation gains remains a matter of speculation. Moreover,public sector managers should consider the possible repercussions of concealing funds should unions, the media,or citizens discovertheir actions. The unions play their ownbudget games.Theymayattempt to bring supervisors into their support groupby implicitly tying together a pay hike for bargaining unit members with a salary increase for supervisors. Unionspokespersons seek out the relevant media,soliciting reports establishing the credibility and importanceof governmentprogramsand howimportant newdollars are for service maintenanceand improvements.Alliances with client groups mayhelp turn up the burner on the legislative bodyduring budgetdeliberations. Late contract settlements mayor maynot cause problemswith respect to the financial situation of the government,dependingon the finally agreed upon amountof compensation.In someinstances a late settlement can help makea moderatepay increase moreacceptable to public employees.Juris and Feuille (1973:68)explain that in one city the unionnegotiator regularly allowednegotiations to run far beyondthe contract expiration date as a wayof reducingrankand-file expectations. As the workers yearned more and morefor their lumpsumretroactive checks and increases in weeklypaychecks, they becamemore "realistic" in their expectations. In other cases, late contract settlement may result in a cutbackof services within a particular service function. In somejurisdictions, for example,agenciesreceive a lump-sum appropriationfromthe legislature. Late, unanticipatedsalary increases mustbe absorbedin the agency’sown budget. Clearly, integration of bargainingand budgetingwouldmakethe budgeting process moreconvenient, morecontrollable, and less stressful for management. Thequandarylies in finding an effective meansto achievecoordination.Statutory requirements that bargaining be concludedprior to a budget completion date apparently have not had the intended outcome--the budget finalization date comesand goes while negotiations run on. However,nonstatutory steps can help link state budgetingwith collective bargaining. For instance, negotiationsshould begin early in the fiscal year; certain benefits such as pensionscan be provided

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uniformly,thereby simplifyingbargaining; and, in general, revenueand expenditure data should be transmitted to management and labor negotiators and analysts in a timely fashion. The widespreadinfusion of technology into budgetinghas helped to speedup the flow of financial informationto all parties, aiding budget preparation and analysis in numerousways(Cope 1996). State and local bargaining and budget makingare likely to remainaskew wherecollective bargainingprevails, with mandatorybudgetadoptiondates serving only as benchmarks.In such a context, budgetingcan be frustrating for all concernedparties, including the myriadinterest groups seeking governmentlargess for their special programsand concerns.State and local discretionary funds are highly constricted becauseof tax and expenditurelimitations, federal mandates, and citizen opposition to raising and spendingtax revenues. Withmore and morespecial interests fighting over a shrinking governmentbudget pie, the level of conflict is high already. Theadditional uncertaintyintroducedby a tardy collective bargainingagreementelevates the intensity of the budgetbattle even more. B. Budgetary Outcomes Becausepersonnel costs constitute a large proportion of the typical operating budget for state and local governments,an increase in wagesand benefits will likely result in higher budget outlays. Howwill the growthin the compensation bill be funded?In the absence of sufficient newrevenues from economicgrowth or state or federal grants-in-aid, the local jurisdiction mustweighseveral options, including a hike in the property tax rate or user charges, reductions in other expenditures, or seeking out productivity gains from ongoingoperations. Of course, compensationcosts rise whetherunions are in the picture or not, with "catch-up" or cost-of-living adjustments and merit pay increases. But "unions are in the public spotlight" (Stanley 1972:121) and can always be blamed public officials and the mediafor financial difficulties. Existing empirical research, whichfocuses only on municipalbudgets, indicates that unionsare, indeed, associatedwith larger budgetoutlays in cities, althoughthe impact appears to be moderatewhenother budget-expandingand budget-restricting factors are taken into account.Specifically, collective bargaining is linked to higher personnelexpenditures(as a proportionof the operatingbudget), but the strength of the relationship varies by city size and the functional area examined,and it is temperedby declines in employmentlevels. Benecki’s (1978) investigation of the impactsof collective bargaining on expenditure and employment patterns in 729 cities determinedthat the unioneffect was relatively lower in larger cities (100,000+population), suggesting that large cities may cope with union-driven compensationincreases by cutting back on employment and service levels. An examination of police unions and budgets in a five-

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state area of the south-central UnitedStates over a 10-year period indicated that unions tend to increase the portion of the police operating budget devoted to personnel costs (Kearney1979). Again, the union effects were lower in large cities. Otherstudies (Gallagher1978;Lewisand Stein 1989;Valletta 1989;Zax 1988;O’Brien1994) also found municipalunionizationand collective bargaining associatedwithhigher expenditures,but with city size less important.Apparently, then, municipal unions influence the budgetary process to their advantage by driving up personneloutlays throughcollective bargainingand political activities. However,in somecases there appears to be a tradeoff betweenpay and positions. Collective bargainingclearly affects compensation levels, as discussed in detail later in this chapter. But its effects on total city expendituresare less certain (Valletta 1989: 438-439; O’Brien 1994), probably because wageincreases are sometimesaccompaniedby employmentreductions in the bargaining units or in nonbargainingdepartments. Dounions protect pay levels at the expenseof.jobs? Perhaps. Underunion contracts, reductionsin force are applied withreverse seniority--or, "last hired, first fired." Juniorrank andfile constitute a relatively noninfluentialminorityof total union membership.The more numeroussenior membersof the bargaining unit are not usually personally vulnerable to layoffs, and they maychooseto protect their pocketbooksinstead of other employees’positions (see Freeman and Medoff1984). The negative relationship betweenunionization and employmentfoundin other research (Clark and Ferguson1983; Stein 1990:491;O’Brien 1994;Trejo 1991)also indicates that someunion-related factor or set of factors is at workto hold downjob levels. Perhapsunionsprompta cutbackin the quality and quantity of services. Or maybemanagement is able to institute productivity improvements or to contract out to maintainservice levels with a reducednumber of workers.Andthere is alwaysthe possibility that bureaucraticfat is beingsliced off instead of muscle. Alternatively, unions mayforce city officials to become more efficiency-minded managers. Thereare contrary findings, however,that showthat collective bargaining and unionpolitical activities are positively associated with city employment levels (see Zax 1989; Freemanand Valletta 1988; Valletta 1989). Unioncampaign contributions and endorsementsof political candidates have been foundto significantly affect the demandfor services, and employment,of police and firefighters (Chandlerand Gely 1995). The conflicting findings on the union impact on budget outcomesand employmentlevels are a result of the variable time periods and employeefunctions examined,the quality of available data, and the researcher’s methodologicalapproach. Mostlikely there are also salient yet unmeasuredfactors that remain unaccountedfor in the empirical research, such as the average age of the bargaining unit and the sense of solidarity amongunion members.

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I1. UNIONS, WAGES, AND BENEFITS One of the most popular research topics for the communityof labor relations scholars has been the impacts of unions on wageand nonwagecompensation.It is also one of the mostimportanttopics for research becauseit represents a fundamental measureof union powerand organizational success or failure. A great manyfactors influence governmentwageand benefit levels, including social, economic,and political forces and conditions, decision-makingrules and processes, and circumstancesuniqueto particular jurisdictions and settings. Beforeone can isolate the effects of unions and collective bargainingon compensation, these other factors mustbe satisfactorily taken into account. A. Socioeconomic Factors The socioeconomicforces that establish boundarieswithin whichpublic sector compensationdeterminationsare madeare many,diverse, and interrelated. Economists refer to themas labor marketfactors or, morespecifically, labor supply and demandfactors. Fourvariables that help measurethe supply, or availability, of labor are cost of living, labor concentration, labor force composition,and opportunity wage. Cost of living represents howmuchone must spendto acquire the necessities and wantsof life, as well as howrapidly prices are rising. Highand rising cost of living is associated with higher public employeewageand benefit levels, but, in somecases, it is also associated with a shrinkinglabor force as workers moveto jobs locatedin areas withlowercosts of living. Cost of living also varies according to geography.In general, wagesare higher in NewEngland,the midAtlantic, Great Lakes, and Pacific states, about averagein mostof the Midwest, and lowest in the Southand Southwest.Withinregions, cost of living tends to be dearest in metropolitanareas, and least in small and rural communities. Unions,of course, often base wageand benefit demandson measuresof cost of living, such as those compiled by the U.S. Department of Commerce(e.g., the Consumer Price Index). Laborconcentration, or "labor density," refers to the numberof potential workerswithin a labor market. Wagesand benefits norrnally are greater in governmentjurisdictions with high levels of populationand populationdensity. Several possible explanationsexist for this phenomenon, including the availability of a well-trained and educated labor force in heavily populatedareas, a higher tax base from which to extract resources for employeecompensation,and the simple expectation that highly populatedcities and states will remuneratetheir workersmoregenerouslythan rural jurisdictions. Thecompositionof the labor force is a third labor supply variable. These "humancapital" variables account for differences in compensationthat occur as the result of variations in education, experience,race, and genderof the work

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force. Becauseof vestiges of racial, ethnic, and gender discrimination, white males still enjoy pay advantagesover their African-American,Hispanic, or female counterpartsthat cannot be attributed to different backgrounds in education and job experience. Althoughaffirmative action strategies and legislation such as the Equal Employment OpportunityAct of 1972have assuagedthese disparities, equal pay for equal workis not yet a reality across all U.S. governments. The opportunitywageis a fourth labor supply influence on wagesand benefits. Briefly, the opportunity wageis that whichwouldbe available to the same individual for workin a similar occupation for another governmentor private sector employer.Raidingnearbymunicipalities for highly qualified or otherwise desirable workersis a common phenomenon in manyurban areas, and manystate governmentscompetein the job market with private or nonprofit firms, other states, and the federal government.Thus, there are pressures on the employerto keep wagesand benefits at levels high enoughto discourage employeeturnover for higher economicrewards elsewhere, and at the same time to attract wellqualified job seekers. Threefactors that are related to employerdemand for labor are fiscal capacity, monopsony, and unemployment. Fiscal capacity is positively associated with wageand benefit levels. Generally speaking, wealthier state and local governments with high tax bases enjoy revenue advantages that mayrebound to the benefit of public employees.Related factors are the amountof funds obtained throughfederal grants-in-aid and other intergovernmentaltransfers, and tax effort. For example,a relatively poor state maypay quite competitive wagesand benefits if it receiveslarge amountsof federal aid and taxes its citizens heavily. Monopsony is, in effect, a monopoly in the labor marketthat is exercised by a single employer.Thus, an employerdemandsa large enoughquantity of a particular type of labor so that the wageswithin an occupationare pusheddownward. For example,a geographicallyisolated city with a single school district exercises a monopsony over public school teachers whohave no alternative education employmentavailable to them (except of course, in the private sector wherewagesin most cases are lower for teachers). Teachers, like nurses and university professors, maybe disadvantagedin the labor marketwhenthey are their household’ssecondwageearner, or whenthere is a scarcity of alternate places of employmentwithin reasonable commutingdistance (Merrifield 1999). The expectation is that pay and benefits can be kept low by the school board. Alternatively, wheretwo or moreschool districts competewithin the sameurban area for the services of teachers, the degree of competitionmaybe positively related to teacher compensation.Several studies havefoundthat these relationships do indeed exist in the case of public education(see Delaney1988;Merrifield 1999;Luizer and Thornton1986). But the relevance of the monopsony argumentto the public sector appears to be rather limited whenother occupations are considered. For example, Schemenner(1973) has determined that whereas

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monopsony does tend to reduce the wagesof teachers, the relationship does not hold, and is even reversedwhenpolice, firefighters, and other municipalemployees are examined.Perhaps, as research by Hall and Vanderporten(1977) suggests, the presenceof formalbargainingrights and a strong unionoverridesthe potential monopsonypower of most public employers. Unemployment rates are inversely related to compensation.Highlevels of unemployment place downward pressure on wages. Fully employedjurisdictions must pay a wagepremiumto attract qualified employees. B. Political Factors Political factors also have an impact on governmentcompensationoutcomes. Althoughnumerouspolitical variables operate on pay and benefits, three of them deserve to be singled out: legal environment,the nature of governmentmanagement, and governmentstructure. The legal environmentof public sector labor relations affects compensation in a variety of ways. Bargaininglaws reflect union powerand influence in the political arena, whichspills over into wageand benefit decisions. Onewould expect, for example,that public employeesbenefit frommorefavorable compensation outcomesin a state with a comprehensivebargaining law, such as Iowa, than in a state like South Carolina whichdoes not legally sanction collective negotiations. Arbitration laws also mayinfluence compensationoutcomes. A study of police bargainingover a 10-year period found that the availability of interest arbitration is associatedwith higher police salaries (Feuille and Delaney 1986;see also Chapter8). Recentresearchalso has identified a positive relationship betweenthe availability of arbitration and earningsof other local government employees(Belmanand Heywood1997), including teachers (Zigarelli 1996). Manyother elements in the legal and policy environmentcan also affect compensation levels, includinga legal or de facto right to strike (Zigarelli 1996),taxation and expenditureslimitations, and the setting of certain employeebenefits statewide(teacher pensions, for instance). Howmanagement organizes itself for wageand benefit decisions is relevant to compensationoutcomes.As noted above, in nonunionsettings such decisions maybe rendered unilaterally--by a city manager,for instance. But multilateral negotiations maytake place wherecollective bargainingexists. Onewouldexpect that unilateral determinationwouldtend to hold downwagesand benefits, while the involvementof multiple actors, whichoften reflects internal management conflict and political forces, wouldplay out to the representedemployees’advantage (Kochan1974). The structure of governmentitself mayaffect public employeecompensation outcomes. "Reformed"political institutions such as a council-manager government,nonpartisan elections, and at-large constituencies maytend to mini-

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mizethe access of public workersto the decision-makingarena. Public employees should have stronger influence on wageand benefit decisions where they find it relatively easy to apply political pressure to elected officials. Thus, mayorcouncil systems, partisan elections, and single-memberelectoral districts should be associated with more favorable compensationoutcomes.Empirical research on this issue reports mixedfindings, however(Ehrenberg1972; Gerhart 1976; Lewis and Stein 1989; Chandler and Gely 1995). C. Politics of the CompensationDecision Process As noted above, in nonunionjurisdictions the role of the public workerin compensation decisions is normallylimited to informal individual or group requests for a satisfactory increase in monetaryawards.But wherepublic employeeunions enter the scene by wayof formal or informalbilateral negotiations, the compensation determination process assumesan important newpolitical dimension. The politics of compensationinvolve union activities in election campaigns, including membersupport of and financial contributions to candidates. Politicians maytrade favorable pay and benefits for union political support (Chandler and Gely 1995; O’Brien 1994; Hammerand Wazeter 1993). Lobbying elected and appointedofficials, collecting, analyzing, and disseminatingpertinent information on pay and benefits, and influencing citizen opinion through public relations have more immediateimpacts. Unions mayapply raw political power throughreal or threatened job actions, warningsof electoral defeats, and other intimidating behavior. Increasingly, however,public sector compensationdecisions are based on decision rules that tend to substitute for powerpolitics. Unionsand management each strive to gain acceptanceof decision rules that workto their ownadvantage, but several rules have beenwidely adoptedby both parties: the prevailing rate, pay parity, and cost of living adjustments. The prevailing pay rate for labor is important both symbolically and substantively. Symbolically,it represents a fair day’s pay for a fair day’s work. Substantively, it keeps workersreasonablysatisfied and helps preclude attrition of the workforce to higher-payingemployers.The prevailing rate is determined from secondary sources such as the U.S. Bureauof Labor Statistics’ Area Wage Surveysor other appropriate data fromnational, state, or business organizations, or it maybe calculated independently through salary and benefits surveys by individual jurisdictions. All states and the great majority of local governments with populations of 10,000 or above conduct such surveys either regularly or intermittently. Someare mandatedby law; others are done informally. Typically, data comparinga jurisdiction’s salaries and benefits with those of neighboringpublic and private organizations are sought for "benchmark"jobs such as key entry-level positions. Throughmail or telephone surveys, wagedata

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are obtained from other relevant employers.Benchmark positions must be closely comparablein job descriptions and knowledge,skills, and abilities required, as well as in hours worked. Examplesinclude beginning school teachers, clerktypists, police sergeants, and social service caseworkers.It is also importantto collect data on benefits. Variability in benefits sometimesmakesmeaningfulcomparison problematic, but the dollar value of major benefits such as pensionsand medical care should be taken into account. At first blush, establishing the prevailing rate throughsurveys appears to be rather objective and straightforward. However, politics is inherently involved. For example, which employers should be surveyed? What should be the scope of the investigation? Surveyoutcomesare related to characteristics of responding employers,including population and geographicsize, fiscal capacity and status, prevailing labor climate, and cost of living. Thus, howthe sampleis drawnhelps determineresults. Moreover,interpretation of survey results is subject to dispute. Should data from extreme or "outlying" respondents be tossed out? Are benchmarkpositions truly comparable?Shouldrespondentsbe classified by population size or someother characteristic? Becauseso muchjudgmentand discretion is involved,employeeorganizations often seek to determinethe prevailing rate independently,throughtheir own surveys or with the help of national union staff. Data collected by unions and public employersmaybe shared, but each tends to look suspiciously at survey results fromthe other. Parity is a second decision rule widely used by managementand labor, particularly in manylocal government jurisdictions. Theparity rule is an old one. As early as 1898 a parity provision was in effect in NewYork City, about 65 years before collective bargainingbeganits great period of growthin urbanareas. Parity maybe set at 100 percent, wheretwo occupational groups alwaysreceive the samelevels of pay and benefits, or it maybe set at a certain percentageof the pay of a key occupation. (For example,police officers in Hawaiireceive five percent pay advantageover firefighters.) After one bargainingunit negotiates a raise, a comparableincrease will automatically be granted to the other unit. Parity provisionsusuallyapply to the police and fire functions, withpolice setting the pay standard. However,parity also mayexist betweencraft workers in the public sector and their private sector counterparts. Parity rules maybe embodiedin collective bargaining contracts, state or local legislation, or city charters, or they maybe implemented informally. Sometimes parity rules becomethe subject of intense rivalry betweenpolice and firefighters. Firefighters, whooften seek to achieve or maintainparity with police, claim that they work longer hours and perform more dangerous work, and that their job requires a substantial amountof technical training and expertise. Police respond that their job is moredangerous, involves moreintensive work, and requires greater use of interpersonal skills. Furthermore,police claim that they need

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higher entry-level pay to attract recruits into the demanding field of law enforcement. It should be noted that the police position on parity today is somewhat ironic: until the 1960spolice supportedparity in order to take advantageof the superior compensationand political powerof the firefighters. Police unions havetried to break parity arrangementsin somecities, including NewHaven,Connecticut; Vallejo, California; San Francisco; Cincinnati; and Buffalo (Juris and Feuille 1973:100).Parity betweenpolice and firefighters began to be questioned as a decision rule during the late 1960sbecause of the impacts of increasing crime, violence, racial tensions, and urbanunrest on police recruitmentand retention. If compensation is equal but job demands are not, it is logical to expect moreapplicants for one type of job than for the other, although both are essential functions of local government.Parity arrangementshave beenstruck downby the courts in several jurisdictions, including Maine, Connecticut, and NewYork, on the grounds that it effectively withdrawsbargaining rights from a union that is not a party to the arrangement(LaFranchiseand Leibig 1981). Anotherdecision rule is cost of living, which usually rises. Unionswant to incorporate its effects in salaries so that members do not lose groundin purchasing power.Duringperiods of price inflation, unions seek to negotiate escalator clauses so that future wageincreases track cost of living increases. Slowdowns in inflation result in the elimination of mostpublic sector escalator clauses. Unionsusually prefer to have pay increases awardedacross the board, or in equal percentages(e.g., a five percent hike for everybody).This limits managementdiscretion and is perceivedto be fair by mostparties. But this decision rule does nothing to encourageor rewardspecial effort or outstanding performance, and that disturbs management.Merit pay or pay for performanceties remuneration to achievementand maximizesmanagement discretion to rewardhigh performanceand productivity. It maytake the form of incentive pay or group performancebonuses.In principle, it makesa great deal of sense and it has beenwidely adopted in someform throughoutgovernmentat all levels. But in practice, merit pay is plagued by a multitude of problems(see Gabris 1986; Lovrich 1987; Perry 1995). Unionshave generally, and successfully, opposedit (Garen1999). Comparableworth rose to prominencein the public sector in the 1980s largely because of public employeeunions. As a compensationdecision rule, it meansequal pay for work of comparablevalue. Equal pay for equal work is a widely accepted legal principle, but comparableworth is a highly contentious issue that challenges conventional market-basedwage-setting practices. Fifty years ago, the vast majority of working womenwere employedin only a handful of occupations. Fewcommonalternatives were available beyond teaching, nursing, and clerical work. In these "female ghettos," women earned less than 60 percent of the medianpay of males. Today,there are essentially no occupational barriers that large numbersof womenhave not broken down,yet as a group they still earn only about 78 percent of whatmendo. Frustration with

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this wagegap has mounted. Supporters of comparableworth argue that the wage differential is causedby continuing(if voluntary) job segregation and wagediscrimination. It is primarily the latter factor that comparableworth seeks to address. Opponentscounter that comparable worth takes wages beyond the law of labor supply and demand,and wouldwreak devastating results on national--not to mentionorganizational--pay policies. Theyfurther contend that wagediscrimination is a myth. Women are paid less because manyof them are part-time workers,they tend to leave the labor force to give birth and raise children, and they chooseto segregate themselvesin low-payingjobs such as nursing, clerical work, and library work. In the absence of congressional action, the argumentsfor and against comparable worth have been addressed in courtroomsand state and local legislative bodies across the country. The bell for the first round of the comparableworth fight was sounded in San Jose, California, in 1981. AFSCME Local 101 struck to force the city to implementcomparableworth adjustments to close a pay gap identified by a salary study. Anagreementbetweenunion leaders and city officials was quickly reached that hiked the pay of about 20 percent of the city’s employees (Flammang1986). Twoimportant court cases also arose from the WestCoast: Countyof Washington v. Gunther (1981) and AFSCME v. State of Washington(1983). In the first, female jail matrons sued WashingtonCounty, Oregon, under Title VII of the Civil Rights Act of 1964because they were paid 30 percent less than male guards for substantially equal work. A lowercourt ruled against the matrons,but a federal court of appeals reversed the decision and was later narrowlyupheld by the U.S. SupremeCourt, whichsent the case back for reconsideration without accepting the concept of comparableworth (Legler 1985). In the second case, AFSCME spearheaded a class action suit against the State of Washingtonfor failing to act on several comparableworth studies the state had commissioned.The studies had discovered a 20 percent gender-based wagegap for comparable positions. The union position prevailed in the U.S. District Court, but was later overturned on appeal. Nonetheless, Washingtonsettled with the union and the 15,500 female workers it represented, and implementedcomparableworth fully within 10 years. AFSCME President Gerald McEnteerecognized the potential benefits of the comparableworth issue for the union, observing that "the ruling in Tacoma (Washington)is going to reach into every one of the 50 state governments,every one of the 3,041 counties, and each and all of the townshipsand cities and school districts. In fact, it is goingto affect everyone of the nearly83,000publicjurisdictions in this land . . ." (quoted in Legler 1985:241-242). McEnteemayhave overstated his case, but other public employeeunions joined AFSCME in latching onto comparableworth during the 1980s, recognizing it as an excellent tool for

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organizing the female labor force in government.Today,unions continue to pursue comparableworth through additional legal actions, the collective bargaining process, and state legislation. Pay equity arrangementshave been negotiated in Connecticut, Iowa, Massachusetts, and several other states. Comparableworth laws have been passed in Minnesota, Montana, NewYork, Iowa, Oregon, Washington, Wisconsin, and elsewhere. Morethan 20 states have comparable worth policies in place today. Unions must tread a fine line between accommodatingthe comparable worth demandsof female memberswhile avoiding the alienation of males, who mayfear that pay adjustments will be extracted from their ownearnings (see Riccucci 1990). The public work force is projected to becomeincreasingly female, so the issue is likely to remainsalient. Obviously,comparableworth policies drive up the price of women’slabor. Asa practical matter, men’swageswill not be reducedto makeup the difference. Thus, the total wagebill of comparableworthjurisdictions growsrather substantially. The initial impact appears to average a 17 percent gain for women when comparable worth is implemented;men’s wages remain approximately the same (Sorensen 1987). Total payroll is estimated to have increased from one to four percent in comparableworth states (Gardner and Daniel 1998). The basic comparableworth methodologyis point factor analysis. Critical job factors, whichtypically include knowledge,skills, and abilities, are identified for male- and female-dominatedpositions and assigned numerical scores on the basis of their relative importanceto the organization. The factor scores are summedfor each position. Jobs with equal or nearly equal scores receive equal pay. For example, an administrative secretary’s wagesmight be brought up to the level of a transportation departmentcrew leader or a state grain inspector, or the pay of a nurse might be raised to equal that of a truck repair foreman. Whenfaced with employeedemandsfor compensation increases, public employersoften invoke a plea of inability to pay. In a sense, it is more of a negotiating tactic than a decision rule, but its omnipresencecertainly demands discussion. In makingthe inability to pay argument,governmentis claiming that it is unable to grant its workersmorethan a certain amountin wagesand benefits becauseof revenueshortfalls or other contingencies. Ostensibly, inability to pay is a valid argument.Nevertheless,public employeeunions often translate inability to pay as unwillingnessto pay. Certainly, the issue is subject to debate. For example, whenis a governmentunable to pay? Whenit defaults on outstanding debts? Whenit fails to meet its payroll? Or before such crises arise? Surely if a state or local governmentis prohibited by law from running an operating deficit, a union-proposedwagesettlement that wouldforce the budget into the red could be successfully countered by an inability to pay argument. But governmentemployersraise the inability to pay flag so frequently that unions are disposed to seek and demanddetails on revenues, expenditures, and

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debts and to search for moneyhidden in the budget (Toulmin1988). Management mayseek to bolster its owncase with figures on cash flow, debt and debt service levels, pendingor actual court decisions that present future liabilities, legally mandatedbudget expenditures, and various comparisons with wageand benefit levels and tax burdensin other jurisdictions. Unionsexaminemanagement’sdata and financial projections and calculate their own. Often, assistance is available from national unions, manyof which maintaina budget analysis staff. Mosthave the capability to conduct econometric analyses. The National EducationAssociation, for example, has created a computerized budget analysis software packagefor local school districts. And,in general, information technologyand resources havegreatly simplified such analysis. A thorough union review of data will examinethe proposed budget, including expenditure forecasts and economicassumptions, past budgets, external audit reports, budgetreviewsand financial statements, minutesof council or legislative meetings, newsreports, bond prospectuses, promotional literature, independent fiscal data from citizen’s groups, "inside" information from secretaries in key offices, a search for contingency funds or other hidden monies, and personnel reports on unfilled positions (Leibig and Kahn 1987:194-204; Toulmin1988: 622-623). D.

Monetary Impacts of Unions: The Empirical Research

Unionization (the extent, or density, of employeeorganizational membership) and collective bargaining (formalized labor-managementdecision makingwithin a collective framework)drive salaries and wagesupward. Even in the absence of collective bargaining, the merepresence of unions mayinfluence compensation policies. Andunions in a neighboringjurisdiction mayaffect compensationlevels in nonunionsettings through a "threat effect," as employersseek to discourage employeeorganizing by paying competitive wagesand benefits. Case studies and anecdotal evidence pointed to very substantial union-associated wagegains in state and local governmentsduring the late 1960sand 1970s, as unions first becamesignificant financial factors in government. Somethree decades ago, unions and collective bargaining in government were unknownquantities that aroused criticisms running the gamutfrom blind devotion to virulent criticism. The most influential and thought-provokingattack on public sector unions and collective bargaining was set out in a controversial BrookingsInstitution study in 1971 by Wellington and Winter. Accordingto The Unionsand the Cities (page 167), union activity and collective bargainingdistort the democraticpolitical process. The distortion results from unions obtaining too muchpower, relative to other interest groups, in decisions affecting the level of taxes and the allocation of tax dollars. This distortion therefore mayresult in a

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redistribution of income by government whereby union membersare subsidized at the expenseof other interest groups. There are several major reasons that public employeeunions "leave competing groups in the political process at a permanentand substantial disadvantage" (Wellington and Winter 1971:30, 31): (1) some municipal services essential, so prolongedinterruption resulting froma strike directly threatens public health and safety; (2) the demandfor public services is relatively inelastic and insensitive to changesin price becausegovernmentservices lack close substitutes and competitive service providers rarely exist; and (3) the disruption governmentservices inconveniences voters whomaypunish political leaders in the next election. Implicitly;.el~cted officials solicit and rewardunionpolitical support. Thus, the authors argue, unions in governmentinherently have greater powerthan those in the privat~ sector. A product of this poweradvantage, one would logically assume, is higher compensationfor unionized governmentemployees as comparedwith their union counterparts in private employment or nonunionized colleagues in other governmentalunits. Havepublic sector unions achieved wageand benefits gains that outstrip their union counterparts in the private sector, and nonunionworkers in other governmentaljurisdictions? Wellingtonand Winterfurnished no quantitative data to support their assertions, but these questions haveoccupiedthe time of a great manyother researchers. Example6,1 Costing Out Public employers(and unions) "cost out’.’ proposedwageand benefit increases before contract settlement. Thepurposeis ito determinethe potential fiscal impact of each item in the labor agreement including wageincreases, cost of living increases, shift differentials, overtime,paid holidays, sick leave, vacationbenefits, insurance premiums,pensions, and employerSocial Security contributions. Computing the dollar value of wageincreases is illustrated below. HogWallow,Washington,has a city water utility with ten meter readers, five laborers, and six plant operators in the bargaining unit. Their current earnings are as follows(all current payroll, straight time, per year). Ten meter readers @$8.50 per hour Five laborers @$9.00 per hour Six plant operators @$11.50 per hour Meter readers: $8.50/hour × 40 hours = $340/week × 52 $17,680 Laborers: $9.00/hour × 40 hours = $360/week × 52 $18,720 Plant Operators: $11.50/hour × 40 hours = $460/week× 52 $23,920 Six meter readers @$17,680/year = $106,080 Five laborers @$18,720/year = $93,600 Six plant operators @$23,920/year = $143,520 Total annual payroll: $343,200

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Bargaining Proposal. Six percent across the board wageincrease Cost of Bargaining Proposal. Meter readers: $0.51/hour × 40 hours × 52 weeks × 6 employees = $6364.80 Laborers: $0.54/hour × 40 hours × 52 weeks × 5 employees = $5616.00 Plant Operators: $0.69/hour × 40 hours × 52 weeks× 6 employees= $8611.20 Annual cost of six percent wageincrease = $20,592.00 Substantial associated expenseswouldresult from the proposedsix percent increase, including higher cost of overtime and bonusesand a rise in the dollar value of fringe benefits that are basedon salary, such as pensions, social security, longevity payments, workers’ compensation, unemploymentcompensation, and insurance programs. Each of these items should be costed out using proposed changes in base pay. Proposals involving certain noneconomiccomponentsalso should be estimated. For example, liberalized vacation schedules and time off for union business add to personnelcosts just as surely as a pay raise. Finally, indirect costs that might result from the sacrifice of somemanagement prerogative should be estimated. For example, a city might purchase a new water treatmentsystemthat requires one less plant operator. But if the union winsa contractual right to veto equipmentchangesand will not concur with the reduction of one person, then the cost to the city wouldbe the wagesand benefits of a superfluous employee. Costingout specifies dollar impactsof bargainingproposals, and helps keep both parties tuned in to reality. It requires careful computationsand thorough record keeping.

III. ARE PUBLIC SECTOR WORKERSPAID MORE THAN PRIVATE SECTOR WORKERS? Until the rise of unions in government,public employeeswere consistently underpaid relative to similar workersin the private sector. Since the advent of unions, several studies have attempted to comparewageand benefit levels in public and private sector employment.It is generally agreed that public employeesimproved their pay position relative to private sector workersin mostoccupationalcategories from the late 1960sthrough the late 1970s(Field and Keller 1976; Ehrenberg 1972; Reder 1975; On- 1976). Have public employeescontinued to close or even reverse the pay gap? Whichsector pays the highest today? The findings are mixedon this question-the answerdependson level and size of government,function, time period, methodology, and, apparently, the political values or ideology of the researcher. The first study to directly address relative public-private sector pay (Smith 1976) determinedthat federal workersmakesubstantially more(10 to 20 percent)

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than similar private sector workers, but state and local employeesenjoy only a very slight (1 to 2 percent) advantage.Otherresearch tends to supportthis conclusion (Linnemanand Wachter 1990), although state and local earnings growth lagged the private sector during the 1980s according to one researcher (see Krueger1988). Twostudies using 1991data found that public sector employees earned a "significant wage premium"(Choudhury1994) that exceeded private sector pay by 5.4 percent and total pay and benefits by 10.3 percent. The public sector compensationadvantage rose to 25 percent whenthe shorter government workweekwas taken into account, leading Cox and Brunelli (1992) to call for cutting state and local jobs, reducing payroll, and contracting out government services to save money. Thesestudies, however,were suffused with methodologicaldifficulties and swampedby the magnitudeof the task. For example, the aggregate data used in manyof the studies, including those cited above, do not account for important information, including occupationalcategories, position levels, units of government, or geographical differences. Not surprisingly, there are enormouscontradictions in results in research on federal employeesas well. Perloff and Wachter(1984) and Krueger (1988) found that postal employeeswere muchbetter paid than similar private sector workers.Onthe other hand, there are well-knownshortages in somefederal position classifications due to inferior pay and benefits--engineers, MDsand other health care personnel, and information technologyjobs are just three examples. U.S. Bureauof LaborStatistics’ wagecomparabilitystudies consistently find that private sector workersare paid substantially more than most federal employees for similar work. Independent studies by the U.S. General AccountingOffice, the Merit Systems Protection Board, the Federal Pay Agent, and a major consuiting firm, Hay Associates, arrive at the same conclusion and point to an alarmingly high turnover rate for federal workers leaving for higher pay and better opportunities elsewhere. Even the apparent pay advantage of the muchmalignedpostal workercan at least be partly explainedby the fact that the large numberof female and minority employeesin the postal service are not systematically discriminatedagainst in their pay, as they are in muchof the private sector. Tworecent studies attempt to overcomesomeof the major methodological pitfalls in comparingpublic and private sector earnings. Belmanand Heywood (1995) comparepublic and private sector earnings in seven states, statistically controlling for occupationand individual workercharacteristics (e.g., age, experience). Results indicate that lower-level governmentemployeesearn more than their private sector counterparts, but mid- to upper-level employeesin governmentare paid less than those in the private sector. For the sevenstates examined, six underpay local governmentemployeesand three underpay state government workerscomparedto similar workersin the private sector. Animportant finding is that state and local employment consists disproportionately of occupationsthat

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garner high earnings. Someof these relatively highly paid jobs are not found in the private sector (e.g., firefighter, police officer). Moreover,governmenthas more highly educated work force and a muchgreater proportion of managerial and professional employeesthan the private sector (Belmanand Heywood 1995: 196). The second study, by Bureau of Labor Statistics economist Michael A. Miller (1996), confirms several of the findings in the Belmanand Heywood research: state and local employerspay more than private industry at the low end of the pay scale and private firms pay better than state and local government for higher-level jobs, particularly those involvingadministrative and professional responsibilities. But highly paid administrative and professional employeescomprise 30 percent of local and 40 percent of state employees,comparedto only 10 percent of private sector workers.This distribution pushesthe averageearnings of governmentemployeesabovethat of private sector employeesunless occupation is taken into account (see also Bradenand Hyland1993). As observed by Miller (1996:21), the comparability question should framedas follows. "If two persons are doing the samejob, at the samelevel of duties and responsibilities, with one person performingthat job in state or local governmentservice and the other in private industry, are they also paid alike?" UsingBureauof LaborStatistics data for 1993, Miller was able to directly address this research question. His findings? That "contrary to comparisonsbased on overall averages or broad occupational groups, private industry paid better for virtually all professional and administrative occupationaljob levels and for the majority of technical and clerical jobs levels. For blue-collar workers,the situation was mixed"(Miller 1996:22). Pay premiumsfor private sector professional and administrative positions exceeded10 percent; for technical and clerical jobs, a private sector pay advantage was found in 60 percent of the jobs examined. The issue of pay compressionis troubling for public employers.The relatively high-paid positions at lower levels of governmentorganizations are typically easy to recruit for, but the relatively low-paid positions at upper levels of agencies and departments do not comparewell with positions with similar responsibilities in business. The result is difficulty in recruiting and retaining mid- to top-level governmentofficials. Wagesand salary represent only a portion of the compensationpicture. The evidence with respect to the dollar value of benefits favors governmentworkers, but not as muchas commonly believed. Withregard to specific benefits, state and local pension plans generally provide more generouspayouts than the average private sector plan, but they are morelikely to require employeesto copay contributions. State and local workerscan also expect to retire with feweryears of service and to experience moregrowthin their monthlyretirement check (from cost of living adjustments) than private employees(Lovejoy 1988). State local employeesare at a disadvantageto private workersin the percentage cov-

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ered by life insurance policies (96 percent of private workers,85 percent of public), and dental care (71 percent versus 62 percent). Vision care and health care policy coverage was essentially equal. Public employeesreceived an average of 12 sick leave days per year, while private sector individuals averaged 15 days (Blostin et al. 1988). Governmentemployeestend to workfewer hours (40 percent toil fewer than 40 hours weekly,whereas82 percent of private sector workers have a standard 40-hour workweek)(Wiatrowski 1988).

IV. COMPARINGTHE RELATIVE EFFECTS OF UNIONS IN THE PUBLIC AND PRIVATE SECTORS Whatis the compensationimpact of unions in the public and private sectors, respectively? In whichsector are unions most effective in driving up wagesand benefits? The empirical evidence is fairly conclusive that private sector unions are more successful than those in the public sector. The most comprehensive examination of unions and wagesin business in H. G. Lewis’ Unions Relative WageEffects: A Survey (1986). Accordingto Lewis, the wageeffects of unions were 15 to 20 percent from the late 1930s to the early 1940s, 7 to 10 percent from 1944to 1945, less than 5 percent for 1946 to 1949, and 10 to 15 percent from the late 1950sto the late 1970s. His data indicate that the relative wages of unionized workers in business tend to rise during periods of recession and fall during inflationary times, and that in general, they vary greatly across time, occupation, and the state of the economy.Direct comparisonswith union wage effects in governmentindicate that private sector wagegains run from 10 to 15 percent higher, whencontrolling for occupation and the time period from 1960 to 1985 (Shapiro 1978; Mooreand Raisian 1987; Ashraf 1997). Further evidence is found in annual Bureauof LaborStatistics studies indicating that since 1990 wagegains under public sector collective bargaining contracts have averaged about 3.5 percent versus approximately7 percent in the private sector. Thus, it appears that, in general, private sector workershave gained morefinancially from unionization than their counterparts in public employment. Unionsin both sectors appearto changethe distribution of earnings as well. As noted above, unions have been associated with salary compression,reflected in a reduction in the spread betweenthe average pay of the lowest and highest ranking employeesin an organization. Unionsare also associated with a lessening of inequality in earnings amongwomenand men(Flaherty and Caniglia 1992). In principle unions seek greater egalitarianism in pay structures throughoutthe economy.For those laboring in very low paying jobs, unions desire a "living wage." This typically takes the form of a push for a hike in the minimum wage to a level that is conducive to self support. The living wagecampaignhas a desirable secondary effect for unions in government,because if private sector

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pay is increased, this reduces the impetus for privatization of public services (Swope 1998). V.

THE EFFECTS OF PUBLIC EMPLOYEEUNIONS ON COMPENSATION: METHODOLOGICAL PROBLEMS

Like all research in the social sciences wherelaboratorylike conditions cannot readily be approximated, the research concerning union effects on public employee compensationsuffers from certain methodological shortcomings. Seven specific problemshaveplagued researchers in this area of investigation. 1. Unexplained variance in wages. Almost without exception, multiple regression analyses intended to isolate the relative influence of unionizationon wagesand benefits have been unable to account for muchmorethan half of the total variation in compensationfor the occupational group under consideration. Poor specification of independentvariables appears to be the culprit here. One possible result of this problemis the overstatementof unionimpacts. 2. Operationalization of "union." Somestudies have employed measures of unionization that are simply inadequate. For example,manyignore the potential role of nonaffiliated employeeorganizations or employeegroups that do not call themselvesunions even though they represent their membersin wage and benefit negotiations. The most appropriate measures of "union" are (a) whetherthere is a contract and (b) the percentage of employeesbelongingto union. 3. Unit of analysis. Most pay studies routinely aggregate data across states and localities to makebroad nationwideconclusions about union effects. State- and city-level results maybe confounded by variability in unionrepresentation and legal environment.For example,somestate or local agencies mayengage in bargaining while others maynot, and some, as a matter of policy, mayconsistently pay higher salaries to their employeesthan local firms pay their own(Belman and Heywood1995). Generalizations across governments obscure internal differences in bargainingoutcomes.Generally, the study of individual functional areas (e.g., police, sanitation, social welfare)is best, controllingfor legal environment(see Ichniowskiet al. 1989). 4. Threat effects. Employers mayraise pay and benefits of nonunion workersto forestall threatened unionization or to prevent moraleproblemsthat could result in losing valued employees.Thus, in jurisdictions that experience high levels of organizational membership and collective bargaining, unions tend to set marketwidepay and benefit levels, driving up payroll costs for all employers. 5. Cross-sectional research designs. The overwhelmingmajority of compensationstudies limit the scope of investigation to a narrow time range, usually a single year. Time-series research designs that attempt to capture the changingunion influence over a longer period of time are called for before mean-

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ingful conclusionscan be drawn. This shortcomingprimarily is a function of the lack of adequate longitudinal data on public employeeunionization, a problem that worsenedwhenthe Reaganadministration severely cut back the data-collection activities of federal agencies duringthe 1980s. 6. Neglectof benefits as a dependentvariable. The dollar value of benefits should be includedas part of a total compensation packageif researchers are to depict the full impact of public employeeunions. Althoughwageincreases are the most visible aspect of bargainingsettlements, benefits can be the most burdensomein the long term. Indeed, they mayrepresent the most significant unioninfluence of all. Thereis evidenceof a tradeoff betweenpay and benefits whenunions participate in determining the compensationpackage. Unionstend to favor benefits increases overpay hikes for several reasons. First, unionsreflect the desires of the "medianmember,"whois older, moreestablished in a life pattern, and concernedwith health care protection, a pension, and similar benefits (Freemanand Medoff1984). Second, there is a public choice argumentfor increased public employeebenefits. Froma political perspective, maximizingbenefits over salaries makessense. Payhikes are highly visible to taxpayersand easy for them to oppose. Improvementsin benefits, while perhaps even more expensive in the long run, provide union memberswith highly valued rewards that have low taxpayer visibility (Belmanand Heywood1991:112-113). Finally, most public workers, whether union or not, enjoy certain tax advantages from taking compensationincreases in the form of employer-provided benefits. In sum, if benefits are not capturedin the research design, union-associatedimpactsmight be significantly understated. 7. The values and political ideology of researchers. Economicand social science researchshould be objective and free of bias, but unfortunatelysometimes it is not. For instance, there are at least three possible values that maybe associated with the public employeepay issue. First is equity--public and private sector employeesshould be paid equally for equal work, whether unions are in the picture or not. Thesecondvalue is efficiency--the public sector should pay no morethan is necessary to attract and retain an adequate supply of workers, and shouldconsiderprivatizing all possible activities. Thethird value is governmentas the modelemployer--publicorganizations should be the standard bearers for howto remunerateand treat workersfully and fairly. Thus, government should pay high salaries and benefits and have the best feasible workingconditions. Howa researcher feels about these values mayinfluence his or her methodology, findings, and conclusions. VI. THE EFFECTS OF PUBLIC EMPLOYEEUNIONS ON COMPENSATION:A REVIEW OF THE FINDINGS Takentogether, the 45 or morepublishedstudies on unionsandpublic employee pay indicate that unionshaveexerted a slight to moderate influence, depending

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on methodologyemployed,the state or local function examined,and time period observed. A. Salary and Wages Mostresearch on the effects of union activity on public employeesalaries and benefits uses a traditional economic,or market, approach. Public sector labor supply and demandequations are specified in order to "solve" the wageand/or benefits rate of public workerswhile statistically controlling for various nonunion influences. Multipleregressionanalysis is the statistical techniquethat best lends itself to this approach.Throughmultiple regression proceduresthe influence of input and decision process variables (such as socioeconomiccharacteristics of the labor marketand government structure) are held constant, permitting the isolation of any specific union-related impacts on compensation.Economistshave conductedsuch empiricalresearch on the impact of unions on wagesin the private sector for morethan 50 years, but investigation of union impacts in public employmentis of morerecent vintage. Teachers. Mostof the early studies of public employeeunion influence wereconcernedwith the occupationalcategory that continues to receive the bulk of scholarly attention--schoolteachers.It is understandablethat public education has dominatedscholarly interest in this field of research. Aboutone half (8.5 million) of all state and local governmentemployeeswork in public education, and a majority of these workers are classroom teachers. Their sheer numbers, magnifiedby aggressivepolitical and organizingactivities, ensure that teachers are frequently in the public eye. The intense public interest in the quality of education also fosters manynewspapercolumnsand media sound bites. Results of the union and teacher compensationstudies have been, at best, inconsistent. Generally speaking, those whohave aggregated their data at the state level (e.g., Balfour1974;Brown1975)havenot founda significant association betweenunionizationand teachers’ salaries. But excludinga single published study (Frey 1975), those whohave examineddata at the moreappropriate level of school districts haveuncoveredstatistically significant associations between unionization and teacher pay. Thesefindings indicate a union advantageof from 1.0 to 28.8 percent of base pay (e.g., Delaney1988; Holmes1976; Freemanand Valletta 1988). The meanwageeffect of teacher unions, calculated by averaging available research findings, was approximately5 percent during the 1960s and 7 percent in the 1970sand 1980s. Mostof the research indicates that the greatest salary advantageaccrues to senior teachers. Unfortunately, none of the studies attemptsto accountfor nonsalaryaspects of teachers’ earningsand their relationship to unionization. College and university faculty. Early faculty studies matchedunionized institutions with nonunioninstitutions with similar characteristics and found a salary and benefits advantage of $777for unions over 1968 to 1972 (Birnbaum

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1974), and $1,000 during 1974to 1975 (Morganand Kearney1977). In percentage terms, the salary advantage for organized faculty ranged from 11 per cent in 1970 to 1971 (Freeman1978), to only 2 percent in 1977 (Barbezat 1989). Apparently,however,the union-related advantagefor faculty leveled off in later years (Leslie and Hu1977; Marshall 1979; Guthrie-Morseet. al. 1981), and unions mayeven have been a net detriment to faculty salaries since the 1980s in doctoral and research institutions (Hu and Leslie 1982; Kesselring199l; Ashraf 1997). Researchdoes indicate that senior tenured faculty benefit morefrom unionization than do junior faculty (mostly from across-the-board raises instead of merit-basedpay raises) (Barbezat1989). Also, unionizedfaculty tend to enjoy superior benefits in comparisonto their nonunioncolleagues (Guthrie-Morseet al. 1981). Police officers. Accordingto the empirical research, organized police have experienceda salary advantageof from 4 to 8 percent, whichpeakedaround 1977and fias declined since (e.g., Ehrenbergand Goldstein 1975; Feuille and Delaney 1986; Hall and Vanderporten 1977; Kearney and Morgan 1980a,b; Chandler and Gely 1995; Trejo 1991). One study suggests that police unions temporarilyforce up salaries, but the threat effect pulls pay to the samelevel in nonunionpolice departmentsfunctioning within the samestate legal environment (Ichniowski et al. 1989). Unionizedpolice do appear to hold an advantage with regard to benefits. A national study of cities of 25,000 and abovefor the 1981 to 1984 period found a "very large and strongly positive association" between police bargainingand retirement and insurancebenefits (Feuille et al. 1985b;see also Hunter and Rankin 1988). Firefighters. Althoughno recent studies are available, early research on firefighter unionizationidentified a wageadvantageof 2 to 18 percent, averaging about 8 percent (Ashenfelter 1971; Ehrenberg1972; Smithand Lyons1980; Trejo 1991). Other municipal employees. An assortment of research efforts has investigated the compensationeffects of other local governmentworkers, including sanitation: 0 to 17 percent (Karper and Meckstroth1976; Edwardsand Edwards 1982; Chandler 1995), hospital employees:8 to 12 percent (Feldmanand Scheftier 1982), and secretaries: 14 percent (Gomez-Mejia and Balkin 1984). Inclusive studies of city and county workersacross various functions find that bargaining increases monthlypayroll by 8.5 percent (Zax 1989), and hourly compensation by 5.6 percent (Zax 1988). "Common function" employeessuch as blue-collar and clerical workersexperience an average positive impact from unions of 8 to 10 percent (Freund 1974; Ehrenbergand Goldstein 1975; Belmanet al. 1997). State employees. State governmenthas not received muchattention from scholars, except for higher education. One study (Kearneyand Morgan1980b) various categories of state employeesacross the United States found that unions captured a combinedsalary and benefit gain of approximately4 percent for their

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members.Morerecent research using 1991data indicates that unionized state employeesenjoy a wagepremiumof 7.4 percent over nonunionworkers (Belman et al. 1997). In conclusion,unions are associated with higher wagesand benefits in state and local government,but the magnitudeof the impact varies widely over time, function, and study methodology.The best estimate of an overall union effect is probably5 to 6 percent, whichis well belowthe 10 to 15 percent union compensation advantageassociated with the private sector. B. Benefits Benefits deserve more careful examinationin union impact research. Theytypically makeup 20 to 40 percent of the total compensationpackagein government. Thequantity and quality of benefits vary considerablyacross states, localities, and employeefunction. The most costly are defined benefit pension systems and health care insurance. Unfortunately, becausereported data are not standardized, benefits informationis very difficult to collect and operationalize. In addition, research is complicatedby lags betweenthe time benefits increases are wonand whentheir effects becomemeasurable. The sheer variety of potential benefits also defies precise measurementand comparison(see Daley 1998). 1.

Insurance(medical, mentalhealth, dental, hearing, vision, disability, life, malpractice, workers’ compensation, unemploymentcompensation) 2. Leave(sick, vacation, holiday, education,military, jury duty, voting, maternity, paternity, unionbusiness, funeral, personal) 3. Retirement(pensions, social security) 4. Survivor’s benefits 5. Severance pay 6. Employeedevelopment (tuition reimbursement, book allowances, time off for education and training) 7. Employeeassistance programs, wellness programs 8. Dependentcare 9. Longevity pay 10. Premiumpay (emergencyovertime, call-in and call-back pay, police court time, compensatory time, shift differentials, standbytime, holidays, hazardous duty) 11. Miscellaneous(meals, parking, movingexpense, uniform allowance, auto allowance,legal services, retirement counseling) Of the above, retirement benefits (pensions) are potentially the mostsignificant from a public employer’scost standpoint. This is particularly true for police and firefighters whosepensions typically commence after only 20 years

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on the job. Frequently, retirement paymentsamountto 50 to 100 percent of the employee’sfinal salary figures with annual adjustmentsfor cost of living changes. The burden on governmentrevenues can becomesubstantial. In Detroit a special tax assessment once had to be levied to help fund a pension plan. In NewYork City in the mid-1970s,a married employeeretiring at age 65 after 20 years with a municipal departmentreceived up to 117 percent of pay in combinedretirement and social security benefits (until a revised pension programwas enacted to help lower labor costs; see Gujarati 1979). Agrowingproportion of states and localities are movingfrom these expensive defined benefit plans (where, for example, the governmentfunds the full cost of pensions, whichare based on years of work experience and age) to defined contribution plans (in whichthe pensionrecipient has a proportion of his or her salary deducted and invested in a pension plan along with a contribution by the employer). In the early 1980s, the debate over public employeepension funds shifted focus to controlling howthe funds are invested. Traditionally, investmentdecisions concerning pension funds were handled by the employerand its investment advisors. But the unions argue that the nearly one trillion dollars in public employee pension fund assets represent deferred compensationand therefore should be controlled by public workersor their representatives, not by management.In addition, the unions prefer investmentpolicies that favor in-state firms and firms with pro-union policies. And, in somecases, they want pension fund assets to be invested to advancecertain social and political goals. Duringrecent recessions unions have becomeconcernedabout pension underfunding, as revenue shortfalls have led somestates (e.g., NewJersey, NewYork, California) to borrowfrom pensionfunds or to delay paymentsinto accounts designedto meet future pension liabilities. A benefit undergoingrapid reconfiguration today is employeehealth care. Spiraling health care costs--the averagecost of state health care plans has been growingannually in double digits since the late 1980s--have damagedemployers’ budgets and employeepocketbooks. Health care plans have becomea major flashpoint in collective bargaining as employers, in cost-cutting moves, have adopted managedcare plans, HMOs,and other arrangements that require larger financial contributions from employeesbut typically permit fewer health care options. C.

Evaluating the Union Effect on Wagesand Benefits

A review of the literature concludes that unions boost wages and benefits in government. The impact varies along dimensions of time, space, methodology, and function in response to numerousand highly variable social, economic,and political factors. The union compensationimpact, whichaverages 5 to 6 percent for salaries and perhapsa bit morefor the dollar cost of benefits, is far less than

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the 10 to 15 percent impact attributed to private sector unions. Nonetheless,the effects maybe felt morestrongly in states and localities, whichare muchmore labor intensive than most private enterprises. Considering, for example,that 50 to 75 percent of a school district’s revenues are dedicated to teacher pay, a 6 or 8 percent salary increase lays a substantial burdenon the school budget. Firms, especially large ones, can usually enhanceefficiencies or pass along salary and benefit hikes to the consumersof their goods and services. Governmentshave fewer options for funding the price of a new labor agreement. Clearly, public sector constraints do help limit union-inspired employee compensationgains. Theseconstraints are powerful, even though they differ in nature fromthe private sector marketconstraints of competition,profits, and product prices. In government,political and economicforces help contain union demands. Budgets must be adopted, taxes must be levied, bonds issued, and user fees imposedwithin a context of participatory democracy. Citizens’ groups pay attention to wageand benefit settlements and look over the shoulders of responsible elected officials. Citizen oversight behavior helps stiffen the backboneof public officials during contract negotiations and reduces the scope of union demands.A patently equitable compensationsettlement mayproceed relatively unmolested, with little mediaor public attention. Citizen review is tacit in such instances. But whenbargaining outcomesappear to be excessive, the mediaand general public mayrespond with great outrage. A bond issue or tax proposal maygo downto defeat at the polling places, or incumbentpoliticians maynot be returned to office. Onoccasion, an aroused electorate has revolted convincingly. A 1975San Francisco police and firefighter strike and subsequent voter rebellion maybe viewedas a critical turning point in the relationship betweenpublic employee unions and the public (see Raskin 1976). After a brief strike, lame-duckMayor Joseph L. Alioto caved in to police and firefighter demands,awardingthe full 13 percent compensationincrease they had sought. The San Francisco Board of Supervisors, the city’s legislative body, vetoed the agreement, but Alioto proclaimed a state of emergencyand invoked the settlement anyway. At the polls the following November,San Francisco voters rebelled against the bargaining agreement and what they felt were excessively high public employee salaries. A series of antiunion referenda were approvedthat (1) revoked the mayor’semergencypowers, (2) altered the parity formulas (a step intended to lower the wagesand benefits of city workers), and (3) authorized the firing of any police officer or firefighter whostrikes. Encouragedby voter ire, the Boardof Supervisorsloweredsalaries of laborers, electricians, and other city workersto a level comparablewith the rates paid in private industry. The craft unions struck, but new MayorGeorge Moscone stood firm. Citizen support for the actions of elected officials was strong, even

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to the point of providingvolunteer street-cleaning crews. After a 39-daystrike, the unions agreed to terms. The lesson for elected officials and public employeeunions was clear: excessive unioncompensationgains will eventually provokea backlashby citizens. Whensuch a backlashoccurs, agile public officials can use taxpayer resentment to redress an imbalance in union-management bargaining power. VII. RESPONDINGTO PUBLIC SECTOR COMPENSATION COST INCREASES Wherecompensationincreases are allowed to stand by the legislative body, moneymustbe earmarkedto pay the bill. Withina context of limited competition or substitutability for governmentservices and general fiscal austerity, public managershave a variety of options available to them. 1. Raise taxes: local property taxes usually can be increased without a referendum.But state or local sales or incometax hikes normallymust receive voter or legislative approval.Electedofficials, of course, rarely favor the course of a tax increase and usually exhaust all other remediesfirst. State law mayeven preclude tax increases whenstatutory limits have beenreached. 2. Increase other revenues: user fees maybe raised in order to cover compensation awards within a particular governmentfunction. For example, water rates, trash collection fees, or sewercharges can be hiked. This option maybe subject to state lawor local ordinance,and, like a tax increase,it is highlyvisible and subject to vehementcitizen resistance. 3. Borrowthe necessary funds: bonds or short-term notes maybe issued and sold with the proceeds diverted to workerpayrolls. A secondoption is to borrowfrom employeepension funds. Restrictive legislation, however,mayprohibit borrowing. 4. Cut back elsewhere in governmentspending: this maytake the form of an across-the-boardreductionin all departmentalappropriationsor moreselective reductions. 5. Divert capital expenditureallocations to personnelcosts: capital construction or purchasing projects maybe postponedor eliminated so that wage and benefit settlements can be honored. 6. Divert intergovernmentalrevenues: state and local jurisdictions may channelgrant-in-aid appropriationsto meet personnelcosts. 7. Mandatea hiring freeze: unfilled positions mayremainunfunded,with further savingsrealized throughattrition. 8. Institute layoffs: reductions in force (RIFs) maybe implemented across the board or by departmentor agency. 9. Offer a "GoldenHandshake":provide incentives for early retirement.

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10. Reducethe quantity or quality of services: for instance, trash can be collected once per weekrather than twice weekly(quantity), or curbside pickup can replace backdoortrash collection (quality). 11. Cut working hours and reduce wages proportionately: compensatory time off maybe substituted for overtime, for example, or mandatoryfurloughs can be imposed. 12. Improvetechnology: labor-saving technologyis available in functions such as trash collection (one person trucks), clerical work(wordprocessing spreadsheets), and personneland budgeting(labor-saving software), for instance. 13. Contractout services to other jurisdictions or to private firms: water, fire protection, and sanitation are goodcandidatesfor this strategy. 14. Consolidateexisting functions: somefinancially pressed local governmentshave consolidatedpolice and fire functions into a public safety department. Otheralternatives exist as well. 15. Refuse to fund negotiated payroll increases, makingthe argumentof inability to pay: collective bargaininglaws in at least 11 states offer this final option to public employers.For example,the Iowalaw provides that "Nocollective bargainingagreementor arbitrator’s decision shall be valid or enforceable if its implementationwouldbe inconsistent with any statutory limitation on the public employer’sfunds, spending, or budget or wouldsubstantially impair or limit the performanceof any statutory duty by the public employer."The efficacy of this strategy maybe questioned, however,as courts generally have affirmed the obligation of public employersto implementagreed-uponcompensationincreases (see Wheatleyv. City of Covington1972). 16. Declare bankruptcy: whena nonnational governmentis insolvent, it can, in theory, file for protection underChapter9 of Title II of the FederalBankruptcy Code. The only general-purpose governmentof note to attempt to take this option since the Great DepressionwasBridgeport, Connecticut,in June 1991, but state courts disallowedit. 17. Increase productivity: enhance productivity through improvedwork proceduresand technological innovations.

VIII. PRODUCTIVITY BARGAINING Productivity bargaining involves the "negotiation and implementationof formal collective bargaining agreementswhichstipulate changesin workrules and practices with the objective of achievingincreased productivity and reciprocal worker gains" (Newland1972:807). Thus, employeerewards are linked to increases productivity through the bargaining process. Productivity bargaining was first developedin Great Britain during the 1960s at the ESSO(now Exxon)Petroleum Refinery in Fawley. The so-called Fawley Agreementof 1960 began a 10-year

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period of productivity bargainingthroughoutmajor British industries, with substantial benefits for both employersand workers. In the United States, productivity bargaining has been experimentedwith in a variety of industrial concerns, including meat-packing,steel, railroads, and longshoring. In government,the experiencehas been limited to only a few jurisdictions, primarily in local government. The two principal forms of productivity bargaining are "buy-outs" and "gain-sharing." Buy-outs involve a paymentof money(for bonuses) or other financial inducementsby management to the union in return for union acceptance of changesin workrules that hinder productivity. Theparties’ agreementis formalized in the collective bargaining contract. Examplesof workrules that might be changed are work scheduling, minimumnumber of employees on a work crew, or previousagreementsthat tend to obstruct the introduction of labor-saving technologies. Gain-sharingrefers to a financial incentive systemin whicha cash bonusis offered for measurableincreases in productivity attributable to extra efforts by employees.Here, management and the union worktogether in identifying barriers to productivity and implementingchangesthat enhanceproductivity. The monetarysavings that ensue are shared. Gain-sharinghas been adopted in various forms in state and local government. Examplesinclude the following. Tacoma,Washington. Firefighters negotiated a productivity agreement involving a new deploymentsystem, permitting one fire station to be closed. Wisconsin. State employeeshelped create a cost-savings commissionto help discover meansof reducing costs, with savings to be distributed through employeesalaries. Orange, California. Productivity bargaining producedan agreement with police officers in whichthey were awardeda cash bonusfor a net reduction in the incidence of various crimes. An18 percent crime reduction led to a 20 percent police salary increase. Detroit, Michigan. A productivity bonuswas granted to sanitation workers based on savings from attrition and reductions in overtime pay. Michigan.State prison guards agreed to hold downtheir health care costs in return for a salary increase. Zebulon, North Carolina (nonunion). A percentage of any budget surplus at the end of the fiscal year is distributed equally amongemployees.For their part, city employeespitch in to help one another whenpossible. For example, police alert public worksemployeesto potholes and missing street signs. Productivity savings maybe paid out to workers on a one-time basis as a cash bonus, used to augmenttheir salaries, or deferred into a shared savings plan

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for retirement. Mostproductivity provisions require a defined split of savings (e.g., 50 percent) betweenmanagement and labor. Someof the productivity bargaining experiences have achieved a measureof success. In Detroit, an initial evaluation showed$1,654,403in cost savings to the city over the first year (after bonuseswere paid), and found that citizen complaints over sanitation services had declined (National Commissionon Productivity 1978). A similar program in Flint, Michiganreduced overtime pay in sanitation by 44 percent in one year and saved the city $16,792 (Mankin1977). Productivity savings also were realized in Tacoma,and in Orangethe incidence of somecrimes decreased substantially. Mostof the productivity bargainingexperiments,however,havebeen relatively short-lived, lasting through a single collective bargaining contract. And there havebeenseveral reports of abject failure for productivitybargaining, especially from management’s perspective, where the parties were unable to finalize an agreement or where the agreement had unintended consequences. To succeed, productivity and gain-sharing programs require strong employer and union leadership and consistent oversight, widespread employee involvement, good measurementof service outputs, and win-win expectations (Holzer 1988; Matzer 1988:185-186). Wheresuch conditions do not exist, productivity improvementprogramscan collapse. In Detroit, problemsarose in determining whowas to receive productivity bonusesbesides the sanitation workers on the trucks. Dispatchers, clerical employees, and supervisors also wanteda piece of the action. In other jurisdictions, lack of commitment by key participants and difficulty in negotiating the terms of the productivity bargaining agreement and in sustaining the productivity efforts led to a loss of interest. Additional problems include the natural resistance of management and union bureaucracies to change, difficulties in developingaccurate and meaningfulstandards for measuring tradeoffs betweenservice efficiency (quantity) and effectiveness (quality), failure to link productivity bargaining with overall programgoals, mistrust betweenthe parties, and interference by elected officials. Ironically, a serious obstacle to meaningfulproductivity gains is cost. It often takes moneyto save money.For example, substantial productivity gains may ensue from technology enhancements and improved data collection, both of whichrequire additional expenditures. Adding,rather than reducing, staff may enhanceproductivity (e.g., hiring a trained court administrator to handle case scheduling and other administrative duties, thereby freeing judges to concentrate on interpreting and applyingthe law, or hiring a city managerto identify potential cost savings). Productivity, especially in government,typically becomesa popular buzzwordwhen moneyis tight and retrenchment is under way, so there is less moneyfor productivity enhancementssuch as capital or humanresource investmentsor financial incentives. Productivity bargaining deserves further attention and experimentation. The popularity of interest-based negotiations helps promote productivity bar-

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gaining. Almosteveryonewants and benefits from improvedgovernmentperformance.Productivity bargainingoffers an alternative to tax increases and it directly involves employeeswhoare most knowledgeableabout service provision problems,permitting themto becomea part of the solution. Indeed, if government is to be reinvented, win-winapproaches such as productivity bargaining and gain-sharing can lead the way. IX. MONETARYIMPACTS OF FEDERAL EMPLOYEE UNIONS The environmentsurrounding unions and pay determination in federal employmentis quite different fromthe situation prevalentin state and local government. Mostrelationships betweenunions and federal agencies are well structured, and compensation determinationis generally unilateral. The federal government,in theory, could pursue one of several possible strategies in setting wagesand benefits for its employees.As a conservativeapproach it could seek to awardits workersas little as possible, assumingthat governmentemployment is either a privilege or not difficult work and, above all, that the taxpayer should be protected fromthe unnecessaryburdenof high federal employeewagesand benefits. A far different strategy wouldbe to assume the role of modelemployer, where the federal governmentwouldawardaboveaverage salaries and benefits to its workersas a modelfor other employers.A middle-of-the-roadapproach,the one long accepted in federal employment, is to apply the principle of the prevailing wage. Unlikein state and local government,the prevailing wageprinciple has a long formalized role in federal compensationdetermination. The principle was first established throughstatute by Congressfor federal Navyyardworkersduring the Civil War. It was extended to employeesof the U.S. GovernmentPrinting Office in 1924 by the Kiess Act, to TVAworkers by the TennesseeValley Authority Act of 1933, and to other federal employeesby the Classification Acts of 1923and 1949. However,the principle of the prevailing wagewasnot explicitly applied to nonindustrial (classified) employeesuntil passageof the Salary ReformAct of 1962, whichestablished that civil service salaries should be comparable to those of similar workersin the private sector. The FederalPay Comparability Act of 1970reaffirmedthat principle, anddelegatedauthority to the executive branch to makeperiodic adjustments to the pay of Federal Schedule, ForeignService, and other federal employeesin order to establish comparability with private sector workers.Theseacts weremajor steps forwardin coordinating federal pay setting. Procedures for determining the prevailing, or comparable, wagevary by agencyand by type of employee.It is established throughcollective bargaining in the TennesseeValley Authority, by conference in the GovernmentPrinting

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Office, by the U.S. Bureauof LaborStatistics and the Presidential PayAgentfor white-collar workers, and by wageboards for blue-collar employees.There are separate pay systems for blue-collar (WageBoard)workers, GSemployees,the Foreign Service, Veterans Health Administration, Senior Executive Service, Postal Service, AdministrativeLawJudges, air traffic controllers, and seniorlevel scientific or professional positions. Mostprevailing wagedeterminations are commonly referred to as "wage-board"procedures regardless of the formal decision-makingapparatus. Thethree largest categories of employeesfor purposesof pay are the wageboardsystem,the classified civil service, and the collective bargainingsystem. A. Wage-Board Employees The222,000trade and blue-collar workersin federal civilian service are covered by the Coordinated Federal WageSystem (CFWS).Specifically excluded are agencies exemptfromthe general classification and pay laws, including the TVA, National Security Agency,and the CIA.Althoughthe CFWS retains final authority for pay determination,federal unionshavesubstantial rights of participation. The CFWS is operated by the Office of Personnel Management(OPM).The organizational structure consists of a National WagePolicy Committeeof 11 members,equally divided between managementof federal agencies and union representatives. The director of OPM serves as the odd member of the committee, receiving policy recommendationsregarding the CFWS.The OPMcoordinates wagesregionally through designating a "lead agency"within local wageareas. This agency,typically the largest federal employerin the area, administerslocal wagesurveys and sets pay schedulesfor all agencieswithin its geographicalarea, workingwith the Bureauof LaborStatistics wherefeasible. Basedon the survey results, wagesmaybe adjusted several times during the fiscal year. Unionparticipation is achieved in local wageareas through an Agency WageCommitteeconsisting of two union members,two managementmembers, and a chairperson appointed by the lead agency. The AgencyWageCommittee advises the lead agencyon pay determinationprocedures.Further unionparticipation occurs through Local WageSurvey Committees,which conduct pay scale surveys on private industrial job categories in morethan 100 localities in the UnitedStates. Theright to participate in wagesetting throughthe prevailing pay principle is an importantone for federal unions that are precludedfromformal bargaining over wagesand benefits. Determinationof the prevailing rate of pay for any particular occupationis a rather inexactundertakingthat is greatly influencedby the techniquesused to gather and present wagedata, the characteristics of the businessesselected for comparabilitypurposes,and the individuals collecting the data. Strong union participation potentially can serve as a powerfulsubstitute

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for formal collective bargaining over wages, and the CoordinatedFederal Wage Systemreceived a substantial measureof unionsupport in its early history. The system was a definite improvement over the wage-boardpractices before 1968, whenmorethan 800,000employeesin over 50 agencies aroundthe United States were paid widely divergent salaries for similar work(Nesbitt 1976:413). However, blue-collar wageincreases since the 1980shave been severely restricted by Congress,causing federal pay to slip well belowcomparablepay in private employment. B. Classified Civil Service The 1.26 million classified federal employeesare covered under the General Schedule (GS) wagesystem. Thesewhite-collar workers are placed in a series of pay grades (GS1 to GS15), each with a salary range and 10 salary steps. Underthe Federal Pay ComparabilityAct of 1970, the Federal (or Presidential) Pay Agent, consisting of the Secretary of Labor and the directors of OPM and OMB,madea GSpay increase recommendation to the president each year based on a Bureauof LaborStatistics survey of comparableprivate sector wages. This recommendation took effect unless the president put forward an alternative and justified it "becauseof national emergencyor economicconditions affecting the general welfare." Congressthen had 30 days to overturnthe presidential proposal by joint resolution; otherwise, it was implemented automatically. At first (until around1978) the systemworkedwell enoughin keeping and private sector pay comparable.But becausenot a single president accepted the Pay Agent’s recommendation,and Congress overrode the president’s pay alternative only twice--in 1984, changingthe increase fromReagan’s3.5 percent to 4 percent, and in 1990, from Bush’s3.5 percent to 4.1 percent--by 1990the cumulative underpaymentof GSworkers amountedto approximately300 percent (President’s Pay Agent, 1990). The pay disparity was most pronouncedfor federal employeesliving in large metropolitanareas with high costs of living. For example,it was 39 percent in San Francisco. Recruitmentand retention problemsassociated with this sizeable pay inequity were documentedextensively by OPM,the Merit SystemsProtection Board, and various federal agencies. Larger influential agenciesbeganappealingto Congress for special pay systemsfor their employees,raising the distinct possibility of the return to a Balkanizedfederal pay structure. Belated congressionalrecognition of this unfortunate problemresulted in the Federal Pay Comparability Act of 1990 (FEPCA).Beginning in 1992, employeeswere to receive pay increases matchingthe averageannual salary gains in the private sector in each majorgeographicalarea. Starting in 1994and continuing for nine years, extra pay increases were to be awardedto GSemployeesin high cost of living metropolitanareas until their pay reached95 percent of local

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wagelevels. But because federal pay everywherecontinued to fall further behind pay in business, the Presidential PayAgentnowdivides the nation into 32 locality pay areas. BLSsurveys employers on 25 occupations in each geographic area. All of this activity has beento little avail, as the PayAgent’s recommendations havebeen consistently rejected; the federal pay disparity remainedapproximately 30 percent in 1998. The implications for attracting and retaining qualified GS system employeesare obvious. C. Collective Bargaining System Several groups of federal workersset their wagesthrough collective bargaining patterned on the private sector NLRA model. The largest are the Bonneville PowerAdministration, the TennesseeValley Authority, and the Postal Service. Collective bargaining in the TVAdevelopedshortly after Congressestablished the Authority in 1933. Becauseof flexible enabling legislation, the TVA has beenallowedto operate virtually autonomously in the area of labor relations, subject only to merit and efficiency requirementsfor employeehiring and promotion, and a ban on political considerationsin personnelactions. As a consequence of a progressive management attitude toward labor and the presence of strong craft unionsin the publicutility industry, the prevailing rate principle wasapplied very early in setting wagesand by 1940 a formal contract was signed between the TVAand a craft union. Today, wagesand benefits are the subject of bargaining for both blue- and white-collar TVAworkers. The major pressure point in TVAcollective bargaining is determination of the prevailing wage(Brookshire and Rogers 1977). The problems of implementing the prevailing rate for TVAworkers involve determining the appropriate geographicarea from whichrates are gathered, choosingthe particular employers within that area, identifying the jobs to be used for survey purposes and how they are compared,workingaroundthe lack of use of full benefits comparisons, deciding whetherthe survey should produceregional or local rates, and determining the methodologyfor deciding whichrate constitutes "the prevailing" rate. TVAnegotiators built in an upwardbias in implementingthe prevailing rate criterion by, for instance, focusing their salary survey on high-wageunionfirms. As a result, compensationlevels at TVAexceed those generally prevailing in the region. Recently, TVAlabor relations have deteriorated. Economicdownturns and a redefinition of agency mission have promptedhard bargaining by management resulting in union pay concessions and a reduction in force of morethan 50 percent of total employment. Collective bargainingcameto the Postal Service with passage of the Postal Reorganization Act of 1970, which abolished the 181-year old Post Office Departmentand created the Postal Service as an independententity within the executive branch. For the first time, postal unions were allowed to negotiate wages and benefits. The various postal unions alwayshave been successful lobbyists,

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using strong organizations and nationwide membershipsto encourage Congress to award high postal employeepay and benefits. But the strongest evidence of successfollowedthe postal strike of 1970.Asa price for setting the strike, postal unions offered their support for the Postal ReorganizationAct. Theyreceived substantial pay increases, full bargainingrights over future pay determinations, and a formal comparative wagepolicy. Wageand benefit gains for Postal Service employeeshave been consistently higher under collective bargaining than under previous arrangements.As noted earlier, postal workersalso appear to be paid substantially morethan comparable private sector employees. Severalyears after the morbiddeath of their unionpredecessor, the Professional Air Traffic ControllersOrganization(PATCO), air traffic controllers organized a new union called the National Air Traffic Controllers Association (NATCA). In August, 1998, NATCA signed a contract with the Federal Aviation Administration (FAA)that wonits 14,300 members$200 million in salary increases and a staffing reorganizationthat significantly reducedthe ratio of supervisors to controllers (Walters1999).Air traffic controllers receivedthe right bargain over pay in an amendmentto the FAA’s1996 appropriation bill that exemptedthe agencyfrom Civil Service ReformAct restrictions on bargaining over wagesand benefits. Thus, unionparticipation in federal wagesetting varies fromdirect involvement for those engaging in wageand benefit bargaining, modestinvolvement for wage-boardemployees,and no direct role for GSemployees.Indirect union influence is broughtto bear throughlobbyingactivities, Not surprisingly, pay for collective bargaining employeesmeasuresup to private sector wages. GSand wage-boardemployeeshave fallen substantially behind. It should be notedthat the federal benefits systemcovers all exceptcollective bargainingemployees.It generally comparesfavorably to private sector and state and local governmentplans, althoughbenefits are not included in federal compensation surveys by the BLS. X.

CONCLUSION

The evidenceis sufficiently clear to concludethat public employeeunions, especially at the state and local levels, affect the budgetaryand compensation determination processes. Theymakebudgetingand pay setting highly complexand politicized. Unionshave driven up total personnel costs in somejurisdictions and pushed up wagesand benefits virtually everywhere.However,economicand political constraints help restrain union influence, increasingly so since the late 1980s. In manybargaining jurisdictions, the level of pay increases wonin new contracts is somewhatanticlimactic. Silent understandingsand cues about what

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the jurisdiction can afford to pay tend to give the outcomegreater predictability. As a consequence,a substantial portion or" negotiations today involves benefits and workingconditions, topics explored in the next chapter. CASESTUDY6.1:

THE MERIT PAY DILEMMA

Anewlyratified collective bargainingcontract provides for a three percent across the board raise for all state employeesand a two percent merit increase. The meansfor distributing the merit raises wereleft to agencyheads’ discretion. At the State Departmentof Corrections, agencymanagersmet over a period of three weeksbefore deciding to allow unit heads to allocate the merit raise according to their ownbest judgments. Youare the chief wardenat a medium security prison just outside the state capital. The largest bargainingunit in your organizationconsists of corrections officers. All officers will receive the three percent across the boardpay hike. But howshould you distribute the merit increase? A numberof alternatives occur to you. Total payroll for your 60 corrections officers is $2.4 million (averagesalary is $40,000). The merit pool consists of $48,000. Youcould distribute the merit pay in percentagesof base pay (perhaps in 1/2 percent incrementsup to 10 percent for the top performers), or youcould allocate the merit awardsin dollar amounts, such as $100 increments, and ranging from a low of $100to a high of perhaps

$3,000. Meanwhile,the union president has appearedin your office to urge you to distribute the merit pay as twopercent across the boardwith the rest of the annual pay increase. His assessmentis that all the guards are fully competentand deserve merit pay. Moreover,this approachwouldbe noncontroversial. He notes that the senior members of the bargainingunit are particularly supportive of his proposal. The following day three junior officers schedule an appointmentin your office. Theystate that in their opinion, the highest performersare the recently hired guards. Theyoffer the observation that the senior guards are by far the highest paid, whilethe less senior officers lag far behindin salary. A true "merit" award based on performance appraisals wouldbe more valid and in accordance with the taxpayers’ interests. Questions 1. Whatis your view of the state legislature’s merit awardprogram?How could it havebeen better structured? 2. Whatissues are raised by the merit pay systemthat you must implement? 3. Developa plan for distributing the merit pay funds in a mannerthat you will be reasonably comfortable defending.

7 UnionImpacts: Personnel Processesand Policies

The influence of public employeeunions on wages, benefits, and budgets receives the lion’s share of mediaand scholarly attention. Impactson personnelprocedures and policies represent somethingof a hidden dimensionof public sector unions. The average citizen has little interest in or understandingof public personnel administration (or humanresource management,HRM),particularly the shadowy realm of civil service systems. Yet, the nexus between unions and personnel processes and policies is very important in shaping the future of government workand the quantity and quality of services renderedto citizens. Personnel matters are likely to dominate the union-managementagenda in the 2000sfor three reasons. First, union-management relations have matured in most state and local settings. Financial relationships and understandingsbetweenthe twobargainingparties tend to stabilize over time. Oneresult is a reduction in the real dollar, upperrange of compensationsettlements. Becauseunions, by their very nature, alwayswant more, it is typical for themgradually to cast their bargainingnets farther and farther, expandingthe scopeof negotiations to include new areas. HRM rules and regulations are easily pulled into the union net. Second, a seemingly permanent period of governmentretrenchment has constrained the amountof resources that public employers can devote to the wages and benefits of employees. The driving philosophy behind the taxpayer rebellion of the 1970s and the various antigovemment spending campaignssince then at all levels of governmentis that governmentspending is wasteful and should be cut back. Limitations have been imposedon state and local revenues, expenditures, or both in moststates. Discretionaryfundshavedramaticallydeclinedat all levels of government. One important result is that public employeesrarely have an opportunity to enlarge their slice of the public budgetary pie. Wheneconomic indicators turn downward,as they did in the recessions of the early 1980s and 177

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early 1990s, wagefreezes, givebacks, layoffs, and related actions becomecommonplace. In order to maintain their membershipin times of economicstress, and justify their existence, unions must be able to showpositive results. Thus, they increasingly tend to turn their attention to the noneconomic personnelareas traditionally left to public sector management. The focus, in large part, is on personnelprocesses and policies. Finally, the compositionof the Americanworkforce is changing rapidly. If unions are to remaina vital powerin government,they must address the needs of an increasingly large proportion of women,minorities, immigrants,and older workers. Whitemales represent a declining proportion of new additions to the workforce. Extraordinary changesin personnel practices are occurring, forcing employersand unions alike to consider training and developmentneeds for new workers; day care, maternity leave, and elder care policies; and programsfor accommodatingolder workers, amongmanyother needs. This chapter explores the impacts of unions and collective bargaining on HRM processes and policies. First, merit systems are discussed in relation to collective bargaining. Fourspecific policies that threaten to underminemerit systems are examined:union security arrangements,the seniority criterion, affirmative action, and the Reinventing GovernmentMovement.Effects of unions on specific personnelprocesses are addressed, including hiring, promotions,retention, training, grievances, discipline, position classification, workloadand staffing, and emergingpolicy areas. I.

MERIT SYSTEMS

Merit systems are a product of the civil service reform movement that swept the United States during the late 19th and early 20th centuries. The purpose of the reformmovement was twofold: to insure the political neutrality of civil servants by removingthem from partisan political pressure and spoils politics, and to insure that the selection, promotion,and retention of public employeesare carried out objectively in accordancewith the principle of merit. The PendletonAct of 1883was intended to address both of these objectives at the national government level. A fundamentalprovision of the Pendleton Act was to create a bipartisan Civil Service Commission charged with the duties of keeping political patronage out of public personnel administration and overseeing a merit systemdesigned to implementthe merit principle. It is important that distinctions be madeamongthe merit principle, the merit system, and the civil service system. The merit principle seeks to make employeecompetencethe major criterion in decisions affecting the movement of employeesinto, within, and out of public organizations. Merit and fitness for the job are to replace spoils, patronage,favoritism, and other subjective criteria in all personneldecisions.

PersonnelProcesses andPolicies

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A merit system is a legally established set of procedurescreated to implementthe merit principle in recruitment, selection, promotion,retention, and compensation of employees.The merit systemis an administrative apparatus directed by a nonpartisan or bipartisan board or commissionor a central personnel office with the purpose of implementingthe principle of merit in governmentpersonnel decisions. In the federal sector, the U.S. Office of Personnel Management and the Merit SystemsProtection Boardimplementpersonnel processes in accordance with the merit principle. In state and local governments,the responsibility is vested with an independent civil service commissionor a central personnel agencyin the executive branch. Althoughstate and local governmentshave their ownmerit systems,all state and local employeespaid in full or in part by federal grant-in-aid funds in welfare, employment security, health, vocational rehabilitation, civil defense, and other programshave to be hired under a merit system under the terms of the Social Security Act of 1940and subsequentfederal legislation. Thus, the merit systemis a standard feature of governmentpersonneladministration in the UnitedStates, so standard, in fact, that the terms "merit system" and "civil service system" are used here (and elsewhere) synonymously. A civil service system is the personnelsystemfor all nonmilitary employees of a government.The civil service system encompassesthe merit systemas well as all positions filled by patronage, policy making, and other appointments. A civil service system mayor maynot contain a merit system, but a merit system is alwayspart of a civil service system. Virtually everyonein the UnitedStates agrees with the conceptof the merit principle as the basis for governmentpersonnel decisions. The problemlies in deciding what range of personnel functions is fundamentalto maintaining the merit system and therefore should be exempt from collective bargaining. According to the federal Intergovernmental Personnel Act of 1970, the following elementsare essential. 1.

2. 3. 4. 5.

6.

Recruitment, selection, and advancementof employeeson the basis of relative ability, knowledge,and skills, including openconsideration of qualified applicants for initial appointment Equitable and adequate compensation Training to ensure high-quality performance Correcting inadequate performance or separating those whoseinadequate performance cannot be corrected Fair treatment of all employeesin all aspects of personneladministration withoutregard to political affiliation, race, color, national origin, sex, or religion Protecting employeesagainst partisan political coercion.

Public employeeunions take issue with manyof these "essential" merit system components,especially pay and benefit determination, grievance proce-

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dures, training, and position classification. Theyespousethe view that such matters should be subject to collective bargaining. Furthermore,unions have leveled attacks at the concept of the merit systemitself. The late AFSCME leader Jerry Wurf(1974:432) stated his union’s position on manyoccasions: "Wesee merit as a personnel systemdefined and controlled by management in pursuit of reasonable recruitment, promotion,and classification policies for its workforce. It’s the bosses’ system--onethat they havesubstituted (voluntarily or otherwise) for the old political patronageselection process." Merit systemsare criticized because they are basedon the unilateral decision-makingprocess that unions have fought from their earliest days. Personnel directors, for example,are appointed by the chief executive. While they maybe "neutral" with regard to partisan politics, they are perceivedto be managementoriented by the unions. Originally created to provide a measureof job security and protection against patronage, few civil service commissionsremain today. The typical arrangementtoday is for the head of a state or local personnel systemto report directly to the chief executive rather than to a commission.The purpose of such a reporting relationship is to integrate the personnelfunction with the executive function, but there is nearly always sometendency for governors or mayorsto politicize the system (Newland1987). Understandably, unions are concerned about unilateralism, favoritism, and other distasteful features of this arrangement. Merit systems havecomeunderincreasing scrutiny by other critics as well. The credibility of the federal merit systemhas been seriously eroded because of allegations and subsequent investigations of widespreadpolitical patronage in federal recruitment and promotionpolicies. Abuseof the merit principle occurred during the Nixonadministration in the GovernmentAccountingOffice; Housing and Urban Development; Office of EconomicOpportunity; and Health, Education, and Welfare. Explicit evidence of blatant patronage procedures are found in the Machiavellian "Malek Manual"written by a Nixon appointee to assist other political appointeesto circumventthe merit principle in departmentalpersonnel actions (see "The MalekManual"1980). Similar problems characterized the federal service during the Reaganyears, whenthe merit system was underminedby convertingpositions fromclassified to appointive status; written tests were abandonedfor somepositions in favor of direct appointment, and career bureaucrats seeminglywere debasedat every opportunity by their political bosses (see Stahl 1990). It is not only the federal merit systemthat has been condemned.State and local merit systems have received equal criticism. Indeed, there are few nations in the world in which civil service and merit systems are not under heavyand concerted attack (Kearney and Hays 1998). The most commonlycited deficiencies are the following (Ingraham1996).


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1, Excessive and constraining rules and regulations. Personnel systems continue to be plaguedby stultifying, centralized control systemsthat hinder management authority and flexibility. 2, Slow, unimaginativerecruitment proceduresthat inhibit the hiring of qualified people. 3. Rigid classification systems that impedethe efficient assignmentand reward of work. 4. Isolation of public employeesfromelected officials. Merit systemslegitimately protect public employeesfromunduepolitical interference, but they also tend to diminishpolitical responsivenessto the chief executive. Atypical responseof elected officials is to seek to increase the numberof political appointees. 5. Isolation from citizens. Agencygoals to serve clients have been displaced in someinstances by internal rules, regulations, and processes. Anearly (and scathing) article by Savas and Ginsburg(1973) points problemswith the NewYorkCity merit systemthat are, unfortunately, typical of certain other large cities: In trying to prevent itself from doing the wrongthings--nepotism, patronage, prejudice, favoritism, corruption--the civil serx;ice systemhas been warpedand distorted to the point whereit can do hardly anything at all. In an attempt to protect against past abuses, the "merit system" has beenperverted and transformedinto a closed and meritless seniority system. The authors conclude, "... the system prohibits good management,frustrates able employees,inhibits productivity, lacks the confidenceof the city’s taxpayers, and fails to respondto the needsof the citizens." Clearly, the merit systemis a downtroddeninstitution in Americangovernment. Support for the merit principle, however,remains strong even amongmost of the merit system’smost adamantcritics. If we throwout the merit system, what will replace it? Newpatronage?Short-termemployeecontracts? Isn’t incremental reform preferable? The unionvoice in this ongoingdebate plays a critical role in determiningwhichelementsare truly essential to the merit system, and which are not. A.

The Interface BetweenCollective Bargaining and the Merit System

Thereare several possible views on the interface betweencollective bargaining and merit systems.The first viewholds that the twoare irreconcilable and doomed to never-endingconflict; the secondview maintains that one or the other ulti-

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mately will prevail, as the two systems cannot be mutually accommodated; the final perspective is that the merit systemand collective bargainingcan exist together peacefully if certain modificationsare madewith respect to the merit system. Mostscholars, practitioners, and key stakeholders subscribe to the latter point of view. As Wurf(1974) once observed, "To pose an ’either-or’ relationship betweenmerit and collective bargaining is to ignore reality. Both have a legitimate place in governmentlabor-managementrelationships. Both are here to stay." The merit principle requires an administrative structure for successful implementation-in other words, a merit system. Abandonment of the merit system wouldresult in alternatives that most knowledgeable observers find unacceptable (Spero and Capozzola1973:209): "The alternatives.., are political patronage, large-scale corruption,and less merit, fitness, andpersonalinitiative. Thealternatives are systems which demeanand degrade employees, leaving thembereft of security and at the mercyof shifting winds." Fewdesire a return to the "spoils and boodle" days of public employment. Instead, collective bargainingand the merit systemmust be madeto coexist, even as they evolve. The adjustmentprocess plays out in state legislative and court decisions addressingthe difficult task of placing collective bargainingand the merit system in their respective and appropriate places. Mutualadjustmentbetween the two systems is ongoing, with outcomesvarying from place to place. B.

Accommodating Collective Bargaining and the Merit System

In the absence of collective bargaining, merit systems remainlargely unchallenged and unchanged.Personnel decisions are rendered unilaterally. Employee appeals or grievances maybe dealt with individually by managementor by a grievanceboard. In the presenceof collective negotiations, however,sometenets of the merit system are no longer absolute. Bargaining and compromisebecome the order of the day as manypersonnel issues are resolved at the negotiating table. Generally, the range of personnel matters affected by bargainingdepends on the scopeof negotiations as defined throughlabor agreements,the courts, and state legislation. Areasnot subject to bargaining are governedby merit system rules and regulations. It is largely throughscope of bargaining determinations that the conflict betweencollective bargaining and the merit systemis engaged and resolved. Moststate collective bargaininglaws limit negotiations to "wages,hours, and workingconditions." But "workingconditions" maybe interpreted broadly or narrowly, depending on the terms and conditions of employmentcovered by existing state or local legislation, personnelrules and regulations, and areas ex-


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cluded fromthe scope of bargainingby management rights clauses. Mostefforts to accommodate collective bargaining and the merit systemhave been directed towardprohibiting certain key personnelmatters from the scopeof negotiations, thereby keeping them within the domainof management. As bargaininglaws developed,somestate legislation mandatedblanket exclusions whereasother laws stipulated specific exclusionsof merit-related items from negotiations. NewHampshire, Vermont,and Pennsylvania, for example, bad blanket exclusions restricting collective bargainingto matters not covered undermerit systemrules and regulations. California, Massachusetts,RhodeIsland, and Washington specifically excludedcertain items from bargaining, such as recruitment, selection, or, morebroadly, management rights. Otherstates, such as NewYork, Michigan,Minnesota, and Nebraskadid not attempt to accommodate collective bargainingand the merit systemthroughstatute, leaving decisions, essentially, to the courts. At the heart of the dispute are two related issues: whichsubjects should not be submitted to collective bargaining and thereby reserved as management rights, and whenmerit systemprovisionsconflict with collective bargainingcontract language, whichone should prevail. Title VII of the CSRA established a three-tiered system. Core management rights, includingagencydecisions on the mission, organization, budget, and number of employees,are prohibited or nonnegotiable. So are certain operational matters, includingcontracting out, hiring, firing, and reductions in force. The secondtier incorporates mandatorynegofiating topics, whichgenerally involve implementingagencydecisions. Examplesinclude decisions on howto ease the impactson laid-off employees.Thethird tier of issues is nonmandatory, or permissive, with regard to collective bargaining. Theseissues, such as the use of technologyin performingwork, are negotiable at the option of management (Ban 1995:131-132).Conflicts over negotiability, of whichthere havebeen manybecause the boundariesbetweenthe three tiers are blurred, are resolved by the FLRAon a case-by-case basis. The trend in the states and localities has been to declare moreand more items negotiable, except for those that are directly concernedwith the quantity and quality of government services, and those that involve policy questions related to the missionof the governmentemployer.Moststates prohibit from bargaining recruitment, selection, promotions,and other "management fights." The problemis that manysuch management fights are closely related to the "terms and conditions of employment" that are negotiable under collective bargaining statutes. For example,class size is both a teacher workingconditionand an elementof educationpolicy; similarly, one- or two-officer assignmentsto police cruisers contain elementsof both workingconditions and policy. Often, resolution resides with the courts, whichtypically apply a balancingtest to determine

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whatis negotiable. Wouldbargainingon the topic significantly abridge managerial prerogatives?Doesthe topic havea significant effect on the workof employees in the bargainingunit? Whicheffect is greater? States differ as to howthey respond whenmerit systems and collective bargainingprovisions clash. Somestates grant primacyto merit systemprovisions, but others (e.g., Connecticut,Massachusetts,Delaware,Illinois, Ohio)favor collective bargainingprovisionsin statute or contract. For example,the Delaware statute (Labor-Management Services Administration, 1972:34) provides that wherethere is a conflict betweenany agreement.., in matters appropriate to collective bargaining.., andany charter, special act, ordinance, rules or regulations adopted by the municipalemployeror its agents such as a personnelboardor civil service commission .... the terms of such agreementshall prevail. To reiterate, if statutory law does not clearly assign priority to merit systemor bargainingprovisions, the courts will makethat determinationon a case-by-case basis. Gradually, public employeeunions have caused a shift in personneldecision makingfrom the realm of management fights to the bargaining table. Even in the federal sector, whereneither the Civil Service ReformAct nor any other statute can legally be overriddenthrougha collective bargainingagreement,certain personnelfunctions havebeen influenced by negotiated settlements. Still, the merit principle enjoys broadacceptanceby all parties. Collective bargainingand the merit systemare not incompatible,but their relationship has changed.Merit systemstend to be least extensive in coverage in the comprehensivebargaining states. Here, merit systems are being reduced to their "essential" elements, dependingon bargaining outcomes,local values, political culture, legislation, andcourt decisions.Thisis not necessarilydetrimental to efficiency, effectiveness, and equity in public employment, all of which are goals of unions as well as management. However,merit systems continue to suffer a broad-basedattack fromindividuals and organizations both inside and outside governmentfor a variety of alleged shortcomings.Collective bargaininghas furnished fuel for merit system detractors by complicating personnel rules and procedures and making"an already rule-boundfield even morepervasively legalistic and litigious" (Newland 1984:39). Government is characterized by less flexible personnel systems and procedures and less managementauthority than the private sector anyway (Coursey and Rainey 1990), and collective bargaining tends to compound these tendencies. Bargaininghas also raised newissues--union security and the seniority criterion--that threaten to underminethe merit principle itself. In states and localities with long experiencewith comprehensive bargainingsystems,dual personnel systems have developed, and efforts to integrate themare seldomseen.


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Accordingto one experienced observer (Douglas 1992), this maybe inevitable: civil service systemsare basedon individualism,opencompetition,political neutrality, and other values that inherently conflict with the values of collectivism, equality, and uniformtreatment that infuse collective bargainingsystems. C.

UnionsandThreats to the Merit Principle

Thereare at least four legitimate threats to consistent implementation of the merit principle in government:union security, seniority, affirmative action, and the Reinventing Governmentmovement. 1.

UnionSecurity

As discussed in detail in Chapter 3, there are six possible variations of union security: closed shop, unionshop, agencyshop, maintenanceof membership,fair share, and dues checkoff.Unionsecurity provisionsrepresent a threat to the merit principle. First, competitionfor jobs maybe restricted if those whodo not wish to join or otherwisesupport a union do not apply for available positions; those with less "merit" possibly gain employment.Second, under the union shop, agencyshop, and fair share, employeeswhorefuse to join the union or contribute to it financially could be fired whetherthey are competentor not. Unionsecurity clauses "Illustrate the three-waytension betweenthe labor organization’s need for institutional security, the individual’sdesire to protect[this] right of nonassoelation, and the merit system’s insistence that employment be based on merit, not affiliation" (Feigenbaum1974:246). Whilethere does appear to he a constitutional issue regarding the public employee’sfight of nonassociationin the case of the closed, union, and agency shops, the other less stringent unionsecurity provisions escapethis problem.All things considered,it is doubtfulthat unionsecurity clausespresenta serious threat to the merit principle. Most employeessimply accept a requirement to join a union as a condition of employment. 2. Seniority Seniority involves granting preference in certain personnelactions based on an employee’s length of service to the organization.In the private sector the seniority criterion has long beenapplied throughcontract clauses to promotions,transfers, layoffs, vacation time, and other personnelmatters without any measurablereduction in the efficiency and effectiveness of the workforce. In the public sector, the role of seniority in personneldecisionsmaybe fixed in a collective bargaining contract or, morecommonly, it is implementedthrough statute or civil service rules. In both businessand government,seniority offers an advantagein personnel decisions becauseit is both objective and quantifiable. Lengthof service with the organization or in a particular job or departmentis a matter of record and

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someindication of achievement.In jurisdictions where promotionalexamsare not validated (demonstrablyjob-related), seniority mayevenbe a superior indication of merit. Seniority and merit are not inherently in conflict in public employment. For example,application of the seniority criterion in determiningvacation time, shift assignments, worklocations, days off, and similar workingconditions is widelyacceptedand presentslittle threat to the principle of merit. In the case of promotions and layoffs, however, seniority and merit maybe at odds. Public employeeunions generally seek promotionof the senior qualified person. Unions regard the seniority criterion as a protection against favoritismin personneldecisions. Management, of course, believes that using this decision rule hampers flexibility, and prefers to have the option of discounting seniority in selected promotionsdecisions. Whenlayoffs are based on last-hired, first-fired (as they normally are whetherunions are key players or not), a perversesort of self-seeking logic can arise in unionized settings in whichmoresenior union membersopt to exchange jobs of less senior membersof the bargaining unit for their ownfuture wage increases. Thus, the majority give up nothing, while a small minority lose their livelihood, and, presumably,the quality or quantity of government services deteriorates. NewYork City is an excellent case in point. Approximately50,000 positions were lost during the 1981to 1982fiscal crisis in NewYorkCity, yet most union membersreceived their scheduled pay hikes. As the 1990 to 1991 recession probed for a bottom, 150,000 city employeeswere threatened with losing their jobs, while others receiveda five percent raise undera newcontract. In other settings, unionshavechosento protect jobs, foregoingpay raises. During negotiations with the governorduring a severe budget shortfall in Connecticut in 1991, all but one of the 27 state bargainingunits opted to defer pay increases in order to savejobs (only the state troopers chosewages,and they later reneged). Ultimately, whetherseniority detracts from merit considerations depends on howthe criterion is applied. Whenseniority alone is the determiningfactor and other qualifications are ignored, merit receives short shrift. For example, teacher unions havebeen roundlycriticized for negotiating seniority rules that leave principals little say in assigningteachers to classrooms.Andwhenjobs are at stake, seniority rules canresult in veteranteachers beingreassignedto instruct in subjects for whichthey havelittle or no training or expertise whilemorejunior, fully qualified teachers are laid off. In federal employment, seniority maybe used as an evaluativecriterion only if it is clearly related to the quality of future job performance,or to resolve ties betweenequally qualified workers. This application of seniority is fully compatiblewith merit. For promotions,strict application of seniority precludes management consideration of suchrelevant factors as written or oral tests and performance evaluations. The senior qualified individual simply receives the promotion.Usually,


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however, promotions are based on somecombination of factors, with years of service treated as only one consideration. Whenseniority is used in this manner its influence is moderated to a point whereit coincideswiththe principle of merit; length of service becomesthe cutting point in promotiondecisions in whichmore than one candidate meets minimumjob qualifications. Theuse of seniority as a considerationin personneldecisions is long-standing, and it predates the growthof public employeeunionism.It is a decision rule that management frequently applies voluntarily. It is mucheasier for personnel decisions to be groundedat least in part on an indisputably objective criterion that enhancesemployeemoralethan entirely on relatively moreesoteric considerations such as unstructured oral exams,nonvalidated written exams,or supervisory evaluations. Seniority clearly weakensmanagement authority, but that is not always a bad thing. Theseniority criterion’s threat to the merit principle is overshadowed by more serious concerns such as favoritism, nonvalidated examinations, and biased performanceappraisals. Unionsstrongly adhere to the seniority criterion in personnel decisions because of problems associated with uncheckedmanagement discretion. 3.

Affirmative Action

Merit, it has been argued, has two different components:special consideration in hiring, promotion,and retention policies for competence,and special consideration in personneldecisions for beingdeserving.It is the latter aspect that throws collective bargainingand affirmative action into conflict. Equal employmentopportunity (EEO), as effectuated by the Equal Employment Opportunity Act of 1964, prohibits discrimination in employmentprocedures andpractices on the basis of race, color, sex, religion, age, and other factors. It is a nearly universally acceptedprinciple in the United States, but achieving the EEOideal is difficult, if not impossible,becauseof systematic discriminatory practices. Therefore, employersmaytake special "affirmative" actions to eliminate barriers and alleviate imbalancesin the workforce attributable to past discrimination, such as special efforts to recruit, hire, and promotemembers of disadvantagedgroups. The primary legal bases for affirmative action policies are Title VII of the 1964Civil Rights Act, whichprohibits private sector employment discrimination as a violation of the Fourteenth Amendment, and the Equal EmploymentOpportunity Act of 1972, which extends Title VII coverage to public employers. Affirmativeaction and collective bargainingintersect in the use of the seniority criterion in personneldecisions. Problemsarise as union-supportedseniority rules sometimesdiscriminate against women and other membersof protected classes in promotions and layoffs, because membersof these groups are often the last hired. Affirmative action policies intended to overcomepast or present

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discriminatorypractices sometimesconflict directly with seniority clauses in collective bargainingcontracts. Public employeeunions have a mixed record with regard to affirmative action. Organizedlabor has actively advocated legal fights and better working conditions for disadvantagedgroups as part of its social and political agenda. Equal employment opportunity, affirmative action, and other diversity efforts are important items on this agenda, and they have been strongly promotedby some public employee unions, particularly AFSCME, SEIU, NEA,and AFT, all of which, of course, have sizable minority memberships. Onthe other hand, the craft-type unions in governmenthave resisted EEO and AAand management efforts to implementthem (Riccucci 1990). Police and firefighter unions have beenespecially staunch opponentsof these principles, and remain overwhelminglywhite male in their membership.White male police and firefighters, and their unions, fought to maintaindiscriminatoryphysical strength and agility tests and height requirements(the Americanswith Disabilities Act of 1990 has helped end this), and ostracized and verbally abusedwomenand minority employees(Riccucci 1990: Ch. 5; 1988:44-46). They have also regularly challenged local governmentaffirmative action plans. Of course, not all police and firefighter organizations discriminate against womenand minorities, and there is someevidence that police unions have been actively supporting hiring greater proportions of female recruits since the mid-1980s(Sass and Troyer 1994). Accessis gradually improvingfor women and minorities, and is likely to pick up pace as labor force characteristics dictate. Not surprisingly, the empirical research presents mixedfindings on unionization and minority and female employment.Kellough(1990) found that federal employeeunions have not been an obstacle to African-American,Hispanic, and female employment.Highly unionized federal agencies are likely to be more diverse in employeecharacteristics than those with weakerunion presence, althoughKelloughsuggests that this maybe due to the fact that "federal unions have simply been better able to organize in agencies which are already integrated." The local governmentpicture remains cloudy. Several studies find little or no relationship betweenmunicipal unionization and female and minority employment(e.g., Davis 1984; Riccucci 1986). However,the most ambitious research date (Mladenka1991) discovers that municipal unions have a strong and negative impact on African-American job success, but only in cities with large black populations and nonreformed(i.e., mayor-council,district elections, partisan elections) systems of government. Mladenka(1991:545) suggests that unions have less influence in hiring decisions madeby professional city managersin reformed governments than they do in unreformed governments, where "they operate to retard minority employmentprospects severely."


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Avariety of local conditionsthat are not related to unionizationalso influence minority and female employment.For instance, minorities fare better in cities with black or femalemayors(Stein 1986)and with high levels of diversity on city councils. Unionssometimesfind themselves in disconcerting situations whengender or racially based discrimination is alleged by a member of the bargaining unit. Most continue to have majority white male membership,but the legal duty to fairly represent all members of the bargainingunit regardless of individual traits must be honored; if it is not, aggrieved membersof protected groups mayfile discriminationsuits against the union. Anissue that has received a great deal of attention in the courts is the influence of seniority clauses on affirmative action duringlayoffs. In the private sector, the courts havefoundthat seniority maybe utilized as a decision rule for layoffs if (1) past hiring policies werenot discriminatory,(2) individual workers laid off werenot victims of prior employment discrimination, and (3) the criterion of seniority is applied in a neutral fashion with no intent to discriminate(Watkins v. Steelworkers Local 2369 1975; Waters v. Wisconsin Steelworks 1974). But whenseniority systems inhibit the promotionof womenand minorities because of past discriminatory practices in hiring and transfers, they maybe declared illegal (Local 189, United Papermakersand Crown-ZellerbackCorp. v. United States 1969). Several SupremeCourt decisions have addressed the seniority/affirmative action conflict directly in local governments.In MemphisFirefighters Local UnionNo. 1784v. Stotts (1984), a federal district court had approvedtwoaffirmative action plans for improvingthe percentage of African-American firefighters. A subsequentfiscal crisis forced the city to lay off 40 firefighters, mostof whomwere black, in compliancewith a seniority clause in the collective bargaining contract. Theblack firefighters filed suit and wonin federal district and circuit courts. Onreview of an appeal by the firefighter union, however,the SupremeCourtheld that the lower courts should not haveinterfered with the seniority system to protect newly hired black employees. Thus, bona fide seniority systems take precedenceover affirmative action whenlayoffs are required. Importantly, the City of Memphis’s affirmative action plan was in the form of a consentdecree in whichno finding or admissionof intentional discrimination was made,and, of equal significance, the firefighter union was not a party to the decree (see Seaver 1985). The Reaganadministration’s Justice Department interpreted Stotts broadly, and sought to apply it to prohibit other race-conscious goals and quotas, and programssuch as minority set-asides. However,later SupremeCourt decisions clarified Stotts and reduced its significance (Wygantv. Jackson Board of Education 1986), and the Bush and Clinton administrations chose to ignore Reagan-erapolicy on affirmative action.

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The lesson for local governmentsis that affected unions should be made formal parties to consent agreementsconcerningaffirmative action procedures. Affirmative action can be incorporated into negotiated contracts. For example, minority and female employmentgains maybe protected through negotiated alternatives to layoffs, such as job sharing, voluntarylayoffs, or buyouts. It appears that the samelesson should be applied to measures taken to accommodatedisabled employees under the Americanswith Disabilities Act (ADA).Underthe duty of fair representation, unions must represent the interests of disabled membersof the bargaining unit. Employersare advised to negotiate with the union on any job assignment, workinghours, or other special dispensation for disabled employees.Althoughthe case law is still evolving, indications are that the courts will support seniority provisions in collective bargainingcontracts over the ADA.For instance, a managementdecision to accommodatea less senior maintenanceworkerwith a disability by a transfer to a desk job that a moresenior employeeis qualified for, wouldviolate contractual seniority rights (Ott 1998; Bruyereet al. 1996). Rather than bypassingthe union, whichinvites a dispute, the employershould consult with the union to workout an acceptable accommodationfor all concerned. In somejurisdictions, perceiveddiscrimination has resulted in the rise of organizedracial factions within unions or the establishmentof separate minoritybased organizations, such as the Vanguardsin Cleveland and other Midwestern cities. The Vanguards,composedof African-Americanand Hispanic firefighters, sued the City of Clevelandfor discrimination in hiring, assignment,and promotion decisions. A federal district court ruled in their favor and ordered certain hiring and promotion practices and goals. The majority white union, Local 93 of the IAFF,intervened, complainingthat the hiring and promotionquotas violated the merit principle (Firefighters v. City of Cleveland1986).A revised decree was negotiated with Local 93 leaders, but the rank and file overwhelminglyrejected it. After the City executed a consent decree with the Vanguards,Local 93 appealed. The Sixth Circuit Court affirmed the consent decree as fair to nonminority firefighters. Local 93 took its appeal to the U.S. SupremeCourt, but lost again. The Court observed that the consent agreement between Cleveland and the Vanguardsdid not bind Local 93 to do anything, or impose any duties or obligations on its members(see Sullivan and Nowlin1986). Since the late 1980s, an increasingly conservative U.S. SupremeCourt has launcheda series of attacks on affirmative action in higher-educationadmissions, contracting decisions, and hiring and promotionpolicies. Gradually, existing affirmative action programsare being dismantledat all levels of government,except in instances wherea past history of illegal discrimination has been documented and the affirmative action programdesigned to redress past discrimination has been "narrowly tailored" (see Riccucci 1997). The current emphasisis for employers to develop broadly construed diversity programsthat embracemyriad


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workplacedemographic concernssuch as gender, color, language, disability, and religion. 4.

Reinventing Government(REGO)

REGO,initially based on a widely read book of the same name by Osborne and Gaebler (1992), is a far-reaching approach to improvingthe performance, productivity, and responsivenessof government.Its key themesare debureaucratization, decentralization, downsizing,privatization, and managerialism (adopting business ideology and practices in government). In essence, REGO represents an attack on bureaucracy and "big government." Although REGO has chalked up manyimpressive achievements,as a broad strategy it remains fiddled with inconsistencies and controversy (Kearneyand Hays 1998; Ingraham1997), from the specious promisesof empowering the very workersunder assault to its simplistic theory of customer-drivengovernment. Unions,not unrealistically, tend to perceive REGO as a serious threat. At the federal level, REGO efforts were embodiedin the National PerformanceReview (NPR)during the Clinton administration, and spearheadedby Vice President A1Gore. The ambitious NPRinitiatives included improvinglabor-managementrelations, which were widely recognized as excessively adversarial and litigious (U.S. GeneralAccountingOffice 1991). A presidential executive order (E.O. 12871)established the National Productivity Council (NPC)to coordinate agency-level labor-management partnerships for implementinga variety of NPR recommendations.E.O. 12871also required agencies to negotiate with their unionson all subjects not expresslyreservedto the president or Congress,thereby expandingthe mandatoryscope of bargaining and eliminating one of the three tiers of negotiability established by the CSRA. Throughthe NPC,the federal unions were significantly involvedin developing labor-managementpartnerships. Sitting on the NPCwere heads of the three largest federal unions (AFGE,NTEU,NFFE).NPCrecommendationsincluded streamliningdispute resolution processesand providingtraining in alternative dispute resolution techniques, and encouragedcollective bargaining for improvingrecruitment and selection, position classification, and performance management processes (U.S. National Partnership Council 1994). Despite serious efforts to construct an agreementon muchneeded reform in federal HRM and labor relations practices and the signing of manyagreements and muchprogress in someagencies (e.g., IRS, Departmentof Labor, Bureauof Engravingand Printing), legislative and labor relations history have conspired to limit success(Doeringeret at. 1996).Therestrictions of Title VII of the CSRA on unionsecurity, wageand benefit bargaining, and other areas effectively constrain the possibilities for unionand management bilateral decision making.Decades of sometimesbitter adversarial relations haveseparated the parties into hostile campsin someagencies. Anduncertainty over which topics should be

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addressed by partnerships and which should more appropriately be determined through collective bargaining creates confusion amonglabor and management officials. Asone unionleader reportedlydescribedthe ensuingrole conflict, "It’s hard to represent someonewho’s being screwed in the morning, and then flip the switch and be buddies with management in the afternoon, whenwe are still angry" (quoted in Ban 1995:184). In agencies where positive labor-managementrelations have developed, the unions play a constructive role in government reform. In the IRS, for example, NTEU partnered with managementto substantially reform an agency under extreme duress during congressional and public attacks in the late 1990s. But in agencies unable to overcometheir history of negative relationships, unions have stifled reform attempts. For instance, unions in the Patent and TrademarkOffice (PTO) were unable to agree with managementon muchof anything. PTOunions even resisted plans to moveinto a newoffice building and efforts to progress towards a "paperless office" ("Patent Answers"1999:81). It "takes two to partner" and manyserious obstacles to productivity partnerships remain.

II. SPECIFIC IMPACTS OF UNIONS ON PERSONNEL A.

Functions and Policies

1.

Management Rights (Scope of Bargaining)

Unionand management disagreements on which personnel functions and policies are essential to the merit principle, and should therefore be reserved for managementdecision makingonly, are closely linked to scope of bargaining disputes. Management rights are defined as outside the scopeof bargaining, and are prohibited from collective negotiations. Whereasunions seek to define it very broadly, management tries to keep the scope of bargaining narrower. (a) Federal Employment.In the federal sector the scope of bargaining is legally defined by Section 7106 of Title 7 of the Civil Service ReformAct, which specifies management rights, and by management rights clauses incorporated into bargainingcontracts negotiated for the various federal agencies, departments, and other bodies (see Table 7.1). Even though management rights and the scope of bargaining appear to be specified clearly, their practical application is somewhat nebulous, with results varying from agency to agency. The CSRA provides for negotiations over the procedures to be used by managementin exercising its prerogatives. Federal unions do have a voice in howpromotions,assignments,position classifications, transfers, layoffs, and other proceduresare carried out. Alarge majorityof federal contracts also call for official unionrepresentation in establishing promotions, assignments, and other procedures. This is important, because processes often


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TABLE 7.1 FederalManagement Rights UnderSection 7106of the Civil Service ReformAct 7106. Management rights (a) Subjectto subsection (b) of this section,nothingin this chaptershall affect the authority of anymanagement official of anyagency (1) to determinethe mission,budget,organization,number of employees, andinternal security practicesof the agency;and (2) in accordance with applicablelaws (A) to hire, assign,direct, lay off, andretain employees in the agency, or to suspend, remove,reducein gradeor pay, or take other disciplinary action againstsuchemployees; (B) to assignwork,to make determinations with respectto contracting out, andto determinethe personnelby whichagencyoperations shall beconducted; (C) with respectto filling positions,to make selectionsfor appointments from(i) among properlyrankedandcertified candidates for promotion; or (ii) anyotherappropriatesource;and (D) to take whateveractions maybe necessaryto carry out the agency missionduring emergencies. (b) Nothingin this section shall precludeanyagencyandanylabor organizationfromnegotiating* (1) at the election of the agency,on the numbers, types, andgrades employees or positions assigned to anyorganizationalsubdivision,work project, or tour of duty, or onthe technology,methods, andmeans of performingwork; (2) procedures whichmanagement officials of the agencywill observe exercisinganyauthorityunderthis section;or (3) appropriatearrangements for employees adverselyaffected by the exerciseof anyauthority underthis section by suchmanagement officials. *These "permissive" topicsare made mandatory by E.O.12871.

determine outcomes.President Clinton’s E.O. 12871openedthe door to a more expansivescope of bargaining, assumingfuture presidents do not rescind it. Federal unions are prohibited from bargaining over matters that are governed throughfederal statute, such as hours of work,sick leave, annual leave, and holidays. But because these and related matters require implementingprocedures, unions often havean influential voice. Federal employeeunions are makinginroads in these personnel areas and gradually proceeding with incursions into the field of specified management rights. In the legal absence of wageand benefit bargaining and union security arrangements,they muststruggle to justify their existence to present and potential members,and this offers one promising track. However,the uniform, formal

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management rights as stipulated in the CSRA and union contracts have erected a barrier, albeit permeable,to expandingthe scopeof bargaining. Asa consequence federal management has generally retained its traditional rights moresuccessfully than state and local managerswhomust operate within a union environment. (b) State and Local Government. Although managementrights clauses are common in state and local labor agreements,they frequently are narrowerin scope than the standard federal provisions. Most, however,are at least partly modeledon the federal management rights clause originally promulgatedin Executive Order 10988and incorporated in Section 7106 of the CSRA. Eighteen states specify management rights in their bargaining laws. Managementrights clauses are also set out in local ordinancesand in unioncontracts. Whateverthe source, the effect is to place certain items outside the scope of bargaining. Unionsostensibly abide by legal restrictions on the subject matter of bargaining. As in the federal sector, however,decision-making procedures used to implementmanagement policies maybe negotiated. Additionally, state and local unions often insist on having a voice regarding the effects of managementdecisions in proscribed areas. As noted by Stanley (1972:22), "The boundary is uncertain, the distinction fuzzy, because management really directs the work with the consent of employees." Whenmanagement rights are not formally reserved through statute, ordinance, or contractual language, the presumptionis that all workingconditions and terms of employmentare negotiable. Evenwhenmanagement rights clauses are specified in statute or ordinance, weak state and local managementshave been knownto bargain away some of their reserved rights. Municipalunions in NewYork City significantly eroded managementrights during the late 1960s. Uniongains were due in part to a muddiedfiscal and political situation and certain decisions of the Boardof Collective Bargaininginterpreting management prerogatives. Horton(1973:75) states, "By 1970 the major unions for all practical purposes bargained with the City governmenton whatever managerial issues they wanted and refused to bargain on issues they wantedleft alone." In general, the strength of management is directly related to the strength of the management rights clause in a labor agreementand howsuccessfully it is enforced. Municipalmanagement today is insistent on placing management rights clauses in labor contracts. Morethan 90 percent of Americancities have such a clause in at least one union contract (Chandler 1989:93-94). Most frequently listed is the right to determinemissions, policies, budget,and general operations. Notwithstanding formal managementrights verbiage, unions continue to encroach on traditional management prerogatives. Their effect on management dependson manyfactors, including bargaining history, political and organizational culture, union-management relationships, and leadership style, but one


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thing is certain: managingin a union environmentis moredifficult and complicated than managingin a union-free setting. 2.

ManagementStructure

"Management structure" refers tO the organization of managerial authority for personnel issues. It is apparent that personnel policy makinghas becomemore centralized in the public sector in response to union activity. This is a union impact long observed in private employmentas well. In a classic labor relations study, John F. Burton, Jr. (1972) documented the centralization of management authority in public employmentthat resulted from collective bargaining in 40 local governmentunits. Before the emergenceof collective bargaining, management structure was characterized by a "bewildering fragmentation of authority for personnel issues amongnumerousmanagement officials," includingthe chief executiveofficer, civil service commissioners, personnel director, departmenthead, budgetdirector, and city attorney (Burton1972: 127). Whencollective bargainingappeared, the usual first responseof local governmentmanagement was to imposea bilateral system on the preexisting authority structure with little or no alteration. This is understandable,as local governmentsuse whateverlabor relations expertise exists to avoid disrupting authority relationships. However,the situation soon becomesunstable because (1) staff officials havelittle collective bargainingexpertise, (2) labor relations are timeconsumingand necessitate full-time attention by officials, and (3) authority for labor relations remainsfragmentedin a jurisdiction withmultiple centers of political power.The last problemis especially serious as it tends to promoteend runs and whipsawing.After an initial experience with collective bargaining under these conditions most cities have reacted with efforts to centralize management structure and thereby stabilize labor-management relations. Collective bargaining has had similar impacts on management structure in higher-educationinstitutions. Faculty bargaininghas resulted in the concentration of powerin college and university central administrations at the expenseof deans and department heads. Management has becomemore professionalized and specialized in order to confront the challengeof collective bargaining. Faculty power has coalesced in the union in most cases, with union committeesdisplacing the powerand influence of traditional faculty senates. The general tendency in governmenthas been for the executive branch to acquire authority at the expenseof the legislative bodyand independentcivil service commission.Then, as labor relations further develop, centralization of management authority occurs within the executive branch, with bargaining authority transferred from budget and personnelstaff to full-time labor relations specialists. In a growingnumberof jurisdictions, certain aspects of collective bargainingand labor relations are contracted out to private specialists such as

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labor lawyers. Thesedevelopmentsare both logical and advantageousto management, as the executive branchis the best place to devise negotiating strategies and coordinate management’s positions on the issues. Laborrelations specialists are morelikely to master the vicissitudes of bargaining, and there is an added advantageto havingthe executivebranchnegotiate the contracts that it ultimately will be required to administer. Fromthe union perspective, the centralization of management structure also maybe considereda goodthing. Unions,generally speaking, wantto bargain with a party whocan render binding decisions and deliver the goods. Fragmented managementcreates an unstable bargaining environment that can offer some short-run tactical advantagesto a union, but in the long term both parties benefit from positive mutualadjustmentand the lessening of conflict within the context of a maturecollective bargainingrelationship. B. Personnel Processes A wide spectrum of personnel processes are subject to negotiations. Manyof themare included in Table 7.2. 1.

Recruitment, Testing, and Selection

The recruitment, testing, and selection of employeesare personnelfunctions that fall within the traditional purviewof management. Generally speaking, they remain management prerogatives. Nonetheless, in someinstances unions have penetrated these traditional areas of management rights. Recruitmentpractices maybe affected through union efforts to determine or at least influence job qualifications and position descriptions, and any modifi-

TABLE 7.2 Nonmonetary SubjectsTypically Included in Contracts UnionRights Management Rights UnionSecurity GrievanceProcedures Hoursof Work,WorkSchedules AlternativeWorkArrangements (e.g., flextime, telecommuting) Seniority Layoffs Bumpingand Recall Procedures Labor-Management Committees Inclement WeatherProcedures

Discipline and Discharge HolidaysandVacations Sick Leave Child Care,Elder Care Leavesof Absence PositionClassification HealthandSafety Training and Education PastPractices Subcontracting Privatization NewTechnology


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cations to them. The experienceso far suggests that resistance to changesin job qualifications is the most common.For example, the NewYork City Uniformed Firefighters Association successfully opposed a management proposal to lower the minimum height standard below5 feet 6 inches for newrecruits, a plan intended to enhancethe enlistment of Puerto Ricans (Stanley 1972:33). Police and firefighter unions wonsimilar battles in other large cities wherethe recruitment of Puerto Ricans and MexicanAmericansbecamea contentious issue in the 1960s (Juris and Feuille 1973),but affirmative action policies haveresulted in substantial minority employmentgains since the 1970s and 1980s. Somepublic employeeunions oppose examination policies because of the lack of demonstratedvalidity of the testing instruments. AFSCME has frequently goneon record against written tests because they maydiscriminate against poorly educated minorities, suggesting that performancetests should be used instead. Employeeselection is also subject to union attention. Unionsgenerally agree that the "rule of one" is preferable to the "rule of three" (or more). Conventionally, agency or department heads in a state or local governmentmust, accordingto civil service rules, select a newemployeefrom one of the top three scorers on an entrance examination--thus, the "rule of three." By permitting somedegree of employerdiscretion, the rule of three implicitly recognizes the vagaries and imperfectionsof testing procedures.Thetrend is to extend the selection pool to 5, 10, 20, or even moreapplicants. In somejurisdictions, however, the rule of one prevails. Here, agency or department heads are not allowed to exercise any discretion, they must offer the position to the individual whoscores highest on the exams. Unions, always interested in limiting management discretion, usually support the rule of one despite recognizedtesting inadequacies. At least in this case, it shouldbe noted that unionsare promotinga purer application of the merit principle than management. Teacher unions probably influence selection processes more than unions in any other occupational category. Examinationof a national sample of 80 collective bargainingcontracts found that 84 percent of the teacher agreementsincluded policies governingteacher selection to fill existing vacancies. Typically, these provisions establish a hiring pool consisting of "teachers whohave been laid off recently; requestedvoluntarytransfer; beeninvoluntarily transferred; returned from leave of absence; or served as substitutes" (Goldschmidtand Stuart 1986:354).Vacanciesare filled by prioritizing these conditions and, usually, taking into account seniority of pool membersas well. Unionsalso have an interest in shortening employeeprobationary periods as an additional meansof restricting management hiring discretion. The union position is that management should have to render a quicker determination of employeesuitability than in the usual six months.Amajor fault of public sector management is the failure to removeunsatisfactory workers during probationary periods, whentermination usually cannot be appealed or grieved.

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In general, unions want their existing membersto have the first shot at a vacancy, and at a minimum,whena position is opening up to be notified in a timely manner. Mostunions wouldenjoy more voice in recruitment, testing, and selection, but these have not been high priority issues in mostsettings. 2.

Promotions

Unioninterest in promotionspolicy is not tantamountto influence. In moststate ¯ and local jurisdictions the staffing of well-paidjobs situated highin the organizational hierarchy is governedby merit systemrules and regulations. Unionswill support civil service policies that they consider favorable and workto change those merit systempolicies with whichthey disagree, but in general, promotions policy remains a matter outside the sphere of union influence. Managers, of course, often submit that merit systemprovisions unduly hamstringthem in selecting employeesfor promotion. Whatdo the unions want with respect to promotions?They want nonentrylevel jobs to be filled throughthe promotionof employeesin the bargainingunit, taking into accountseniority. This objective is not necessarily out of touch with management’sbasic preferences. Promotionfrom within is a decision rule for manygovernmentdepartment heads, agency heads, and personnel directors because it is goodfor employeemotivation and morale, and it minimizesrecruitmentand time costs. Seniority is often the prime criterion used in determining promotionfor employeeswhosequalifications are relatively equal. It should be mentioned,however,that exclusive promotionfrom within is not congruent with the merit principle becausehighly qualified outsiders are not evenconsideredfor the job. In fact, lateral entry that openspositions to personsoutside the organization offers somedistinct advantages. Public organizations, perhaps even more than private firms, need periodic infusions of "newblood"and fresh ideas. Moreover, individuals with private and nonprofit sector experience maycontribute useful perspectives on howto do things differently in government. Assuming continuedgovernmentfiscal constraints, it is likely that the number of collective bargainingcontracts that explicitly stipulate the proceduresand criteria for promotion to nonsupervisory positions will grow. Competitionfor nonentry-level jobs will be restricted to current employeesin somejurisdictions and seniority mayincreasingly displace written, oral, and performanceexaminations. Wherepublic sector organizations are expanding, union attention to the allocation of governmentjobs wanes. A challenging staffing issue for the union is emerging from Workfare, which is a key componentof 1996 federal welfare reform legislation. Under Workfare,welfare recipients whocannot find paying jobs are required to perform public work assignments, whichmayinclude a variety of tasks such as cleaning streets or parks, clerical work,janitorial work,or painting. Unions,whichrepresent full-time employeesengagedin similar work, fear that their ownranks will be depleted by layoffs, with Workfarerecipients filling vacant jobs.

PersonnelProcesses and Policies

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As of 2000, serious conflict betweenstate and local jurisdictions and unions had been averted, largely because of the enormousamountof employmentgenerated by the private sector during a sustained period of economicprosperity (an estimated 20 million jobs from 1993 to 1999). AFSCME, SEIU,and other unions have sought to restrict replacementof full-time employeeswith Workfareworkers through contract language, while attempting to organize Workfarerecipients themselvesso that if they do enter full-time, paid positions, they will do so as union members(Walters 1997:37). In at least two states (California and Maine), unions have wonlegislation protecting existing employeesfrom Workfaredisplacement.But signing up Workfareworkersis not easy: they tend to be transient, and their right to organize is subject to legal interpretation by the states and localities. The unions have been more successful in cooperating with managementto develop training and hiring programsfor Workfareworkersto fill vacant positions, then signing up the new employees. Examplesinclude custodians in the Los AngelesUnified School District and cleaning personnel in the NewYork City Transit Authority (Walters 1997; Perez-Pena 1996). 3. Training and Development The formal training of public workersfor improvementon the job or preparation for a higher-rankingposition has never been a priority item in public sector humanresource management,the preaching and proselytizing of training and developmentspecialists notwithstanding.The conventional perception is that training is desirable if extra funds can be found, but that the training function should be the first to be cut during budget reductions. Thus, as a "stepchild" of public personneladministration, training has traditionally received only minimalattention from management.Unions, too, were slow to recognize their potential role and responsibility in promotingthe skills developmentof members. But gradually unions have begun to value training programsfor their membership. Someeven sponsor their ownprograms, such as assisting membersto study for high school equivalency tests and promotional examinations. Career developmentfor womenand other membersof protected classes aids equal employmentand diversity goals and can help crack the "glass ceiling" that blocks them from upper-level positions in manygovernmentorganizations. Unionshave promotedthree types of career development:helping workers in "dead-end"positions moveinto jobs with established career patterns (e.g., from data input clerk to office manager);creating new, permanent"bridge positions" betweenexisting jobs (e.g., various paraprofessional occupations); and upgradingworkers’ skills to qualify them for expected future vacancies (Figart 1989). Unionsalso favor tuition reimbursementand paid leave for training and development-relatedactivities. Specific illustrations of uniontraining and development efforts include the following (Figart 1989).

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Chapter7 AFSCME District 37 in NewYork City administers an education fund that offers to membersskills-improvementcourses and assistance in preparing for promotion exams. SEIULocal 1000in California helped develop a career ladder programfor nurses. AFSCME Local 1776 at the University of Massachusetts at Amherstnegotiated an apprenticeshipprogramso janitors couldtrain to be electricians, painters, plumbers,and carpenters.

Training and developmenthave been too long neglected in public employment. The training of governmentworkers redoundsto the benefit of the workers themselves, their unions, management,and the general public. Workersdevelop skills that can help them win promotion, while unions, management,and the people gain from more effective, productive, and satisfied governmentworkers. 4.

Position Classification

In most public jurisdictions in the UnitedStates, jobs are organizedinto classes or groupson the basis of the responsibilities, duties, skills, and qualifications assigned to them. Positions are analyzed and evaluated on the basis of work performed,then groupedinto classes on the basis of their similarities and differences. Class standards establish the boundaries for each group of positions. Unionsare interested in classification plans because they serve as the basis for the organization’s compensationstructure. The productof position classification is an orderingof individual positions within job classes. For example,the HRM division within a state social services agencymightcontain the positions of PersonnelAnalystI, II, and III; or, a municipal finance office might be assigned a class for Auditor, with the positions Accountant I, II, III, and Senior Accountant.Usually position classification is a management responsibility of the state central personnel agency and the local governmentpersonnel director, assisted as necessary by private consultants. In federal employment,position classification is a duty of the Office of Personnel Management. Position classification is a common topic of collective bargaining in the private sector, securely within the scope of negotiations, but public management has typically viewedclassification as a management prerogative and hence not a proper subject for bargaining. The basic argumentis that the classification of positions is an objective, scientific enterprise that serves as the cornerstone of the merit system. Positions are placed into classes in accordancewith empirically determinedjob descriptions. However,the union position is that position classification is inherently subjective and arbitrary, especially whenpositions are classified across occupationalfunctions. For example,should a data entry person be comparedto a shipping clerk, or a senior secretary to a newassistant personnel


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officer? Suchdecisions, the unions claim, involve value judgments.Therefore, they should be subject to collective negotiations. In federal employment,according to Title 7 of the Civil Service Reform Act of 1978 agencies maynegotiate "... on the numbers, types, and grades of employeesor positions assigned to any organizational subdivision, workproject, or tour of duty . . ." In most federal contracts unions participate in position classification. In the TVA,for instance, unions exercise influence throughjoint committeeson position classification standards. Position classification is increasingly being pulled within the scope of bargaining in state and local jurisdictions. Unionsaccept the need for a system of position classification, but they want to havea voice in it becauseit affects compensationso directly. Theywant to participate in decisions to assign newjobs to higher pay grades and to create newjobs for promotionalopportunities. Theyalso seek higher pay and time limits for employeesworking"out of class." Reclassifying jobs to higher pay grades is usually a rather complexprocedure involving a variety of personnel actors, including the department head, agencyor departmentpersonnel staff, and the central personnel agency. Unions maynegotiate directly for reclassification whereit is permitted, or they mayattempt to influence any or all of the personnel actors. The creation of newjobs is particularly sought for occupationsin which employeeshave little opportunity for promotion after the first few years on the job. The police function serves as a good example. Police patrol officers can "top-out" at maximum pay after about five years. Higherpay can only be achieved through cost of living adjustments, seniority pay, or promotionto a supervisory or investigative position (jobs for whicha goodpatrol officer maynot be suited). In somecases, unions have been instrumental in creating a new position of "Master Patrol Officer" to rewardsenior officers on the beat with higher pay for their experience. The matter of properly compensatingemployeesfor out-of-title work in higher-rated jobs is also of concern. Unionssubmit that whenan employeeperforms duties of a higher-payingjob in the organization because of a vacation, illness, temporaryvacancy,or other reason, that employeeshould be fully compensatedat the relevant rate of pay. Moreover,say the unions, after a specified period of out-of-class work, the "temporary"employeeshould be promotedinto the job. Disagreementsbetweenthe union and management on out-of-class work maybe settled through grievance or merit systemprocedures, a partnership approach, or they maybe addressed throughlanguagein the formal labor agreement. For example,a contract maystipulate that an employeewill be paid at a higher rate if he or she worksfour or morehours at a higher-rated position. Properly rewardingemployeesfor the nature of the workthey performseems an equitable proposition in whichunions are likely to winsupport.

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5. Work Load and Scheduling Theseclosely intertwined issues refer to the amountof workrequired of individuals or groups of employees,the decision as to howmanyworkers are required to performthat work, and the mannerand time in whichthe workis accomplished. In federal employment,agencies maynegotiate with unions over the numbersof employeesor positions assigned to workprojects, as well as the meansof performing work. They seldombargain over total hours of employment,which are fixed, but alternative workarrangements(e.g., flextime) are negotiable. In state and local governmentmaximum workinghours maybe set by law or by contract. In somelocations, employeeorganizations have wonmajor workloadand scheduling concessions from management in overtime provisions, shift assignments, overtime compensation,weekenddifferentials, meal and rest periods, cleanup time and transfers to other jobs or different locations. Unions have campaignedand bargained for a shorter workweekfor more than a century. The 40-hour weekremains the standard, but reductions to 37.5 and 35 hours have been wonin somejurisdictions. Several empirical studies on the unioninfluence on hours of workfocus on municipalfirefighters. The general finding is that firefighter unionssignificantly reducethe numberof averageannual workinghours (Ehrenberg1973; Smithand Lyons1980). Police also have negotiated favorable changesin shift hours (Juris and Feuille 1973:125-127). Teachersbargain in mostunionized districts over the length of the school year and the school day, and the numberand size of classes (McDonnelland Pascal 1979). Teacherunionefforts to shorten the length of the workdayor school year face significant legal and practical limits, however,fromstate laws mandating a standard school year and citizen and parental opposition to altering the public school timetable. In one interesting experimentaimedat improvinga public educationsystem in crisis, the Rochester, NewYork,City SchoolDistrict and the RochesterTeachers’ Associationactually negotiated a longer school year. In exchangefor a more than 40%increase in salaries, teachers agreed to workan extra five days a year, take personal responsibility for a group of students, and makehomevisits (Doherty and Lipsky 1988:56-57). Teachershave madeother gains in the general area of workloadand scheduling, and have managedto expandthe scope of bargaining wider than any other occupational function in the United States. Teachers have demandedand won relief from nonteachingchores such as milk distribution; playgroundsupervision; cafeteria, bus, and hall supervision; bookdistribution; and copyingmaterials for classroomuse. Dutyfree lunch periods for teachers also have been established, as have limitations on workbeyondthe regular school day. Teachershave gained extra compensationfor after-school administrative meetings, parent-teacher conferences, and other extracurricular activities. Theyhavealso wonprovisions limiting involuntaryteacher transfers, and requiring teacher assignmentsto be based


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on characteristics such as certification, seniority, and experience(Goldschmidt and Stuart 1986:354). Teachers have staked out a claim in the field of education policy making by demandingto include class size in the scope of bargaining. This appears to be an instance wherea workloadfactor links fairly directly to the quality of education. Morestudents mean more work for the teacher, less time for the teacher to spendwith each student individually, and higher probability of disciplinary problems.Whereclass size falls within the scopeof bargaining, studentteacher ratios tend to be smaller. Whenit is excludedfromnegotiations, teachers seek to winsalary increases for larg.e class sizes and workloads(Woodbury 1985). Other unions have been concernedwith workloadand scheduling, too. New YorkCity welfare caseworkersonce went out on a strike that produceda settlement providing for a maximum caseload of 60 for social service employees. Probation officers and juvenile probation officers in San Francisco also struck over excessive caseloads (Stanley 1972:95-96).Police unions mayinterpret work assignmentsas a safety issue in instances involving one- or two-officer patrol cars. Someunions assert that two officers are necessary to maximizeofficer safety, while police management wantsflexibility in assigning officers according to time of day and geographicalarea. Police also havestruggled with management over the matter of using civilian employeesfor administrative and clerical jobs, preferring to post swornofficers instead. Management typically prefers to keep moreofficers on the street by placinglower-paidcivilians in administrative,clerical, and other support positions. A trend successfully promotedby unions is flexible work schedules. A growingpercentageof the total public and private labor force is engagedin flextime, job-sharing, telecommuting,or permanentpart-time work. Interest in such arrangementshas developedwith the changing demographicsof the workforce, including semiretired employees,working mothers, and family-oriented fathers. Flextime also can help employeescope with difficult commutesand rush-hour traffic by permitting them to comeand go to work at various times between 6:00 A.~. and 8.00 ~,.~. Nearly three-quarters of federal employeestake advantage of this type of program, as do a growingnumberof state and local workers. Studies showthat flextime has positive effects on morale, reduces absenteeism and tardiness, and enhances productivity (Kemp1987:79-81). It appears be a win-winissue for unions and management.Another rapidly growing trend is "flexiplace," or telecommuting, in which employeesdo their work at home or at regional workcenters on personal computers,communicating with the main office through modemsor by telephone. 6.

Grievances

Grievanceprocedures, whichprovide a formal avenuefor employeesto tell their side of the story on problemsarising on the job, are secondin unioninterest only to wagesand benefits. As in the case of compensation,this is an element of

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personneladministrationin whichunions havehad a significant effect. Collective bargaining brought formal grievance machineryto public employment.Virtually all bargainingjurisdictions today havecontracts with negotiated grievanceprocedures. Mostprovide for binding arbitration as a final step in cases wheregrievances cannot be settled at the agencyor departmentlevel. (Grievanceprocedures receive full treatmentin Chapter10.) 7.

Employee Discipline

Closely related to grievance proceduresis the subject of employeediscipline. Disciplinary actions by management are frequently the triggering mechanismfor grievance procedures. In general, unions have sought to protect employeesfrom unfair disciplinary actions by formalizing the process and placing the burdenof proof on management.Theyalso have fought to removethe authority from civil service systemsfor protecting workersfrom arbitrary dismissals and other disciplinary actions and to negotiate proceduresthroughcollective bargaininginstead. Typically, unions represent the accused employeein any disciplinary proceeding, although the employeemaynot automatically be defended by the union in some instances. In the case of police, for example,civilian allegations against an officer almost always promptunion protectionism, while charges against an officer by a supervisor maynot. It maywell be that the most importantunion influence on disciplinary actions is tacit. Unioninfluence is experiencedlong before formal disciplinary actions are actually taken, becausesupervisors are fully awarethat hasty or unfair actions will be contested. Employee discipline has penetrated the scopeof collective bargainingin nearly all unionizedjurisdictions across the UnitedStates. 8.

Dismissals and Layoffs

Oncethe initial probationary period has expired, it is not a simple matter to dismiss a governmentemployeeunder even abnormalcircumstances. Due process is a powerfulvalue in public personneladministration, and the courts and arbitrators have consistently held that nonprobationarypublic employeeshave property rights in their jobs. Employerscan no longer follow the employment at will doctrine and dismiss an employeefor goodreason, bad reason, or no reason at all. The courts in manycases have becomeleading policy makersin personnel matters. Withregard to employeedismissals, the tendencyhas been for the courts to establish proceduralsafeguardsso elaborate that, for all practical purposes, public employeeshave becometenured, with "ownership"of their jobs. In combination with merit systemprotections, vigorousunion appeals, and sympathetic arbitrators, this has mademost public employeesimmunefrom being fired (see Hays1995).Onthe bright side, elaborate job protections lowerthe turnover(quit) rate in government.


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Generally, workers covered by bargaining contracts enjoy comprehensive protections against arbitrary dismissal. Employersmust prove "just cause" in order for a sacking to stand, and unions effectively fight anything that smacks of wrongfuldischarge. Indeed, such protective actions are a major selling point to potential union members.Sometimes,however,unions maygo too far in defense of their members.For example,a Hartford, Connecticut, firefighter was fired on three separate occasions from 1981 to 1991. A chronic alcoholic, he missedone out of every four workdaysand was often sent homedrunk. Incredibly, he frequently drovefire trucks. Once,whenhe had an accident, it was determinedthat his driver’s license had been suspendedfor six monthson a drunkdriving charge. Yet the unionstaunchly defendedthe miscreant and got him reinstated eachtime. Finally, morethan a decadeafter his first sacking,the firefighter was permanently removedfrom his job (Hartford Courant 1992). Aninteresting question concerns employeedismissal for off-duty misconduct. Theprinciple that appears to be evolving in the courts and in arbitration hearings is that discharge is justified whenthe misconducthas a demonstrated adverse impact on the employer. Examplesinclude the firing of a state liquor store employeefor fatally injuring "a 71-year-old woman whoasked him to stop beating his wife," a police officer whogave illegal drugs to a police department informer, and a high school teacher whowas seen socially with one of her students (Hill and Dawson1985). Oncethe alleged misconductis proven, it must be demonstratedthat the misconductdamagedthe agency’s image or "product" through adverse publicity, through another employee’srefusal to work with the offender, or by causingthe offender to be unableto performhis or her job. Generally, those in sensitive jobs such as police and fire protection and teaching are held to higher standards than other governmentworkers. In somejurisdictions overtly pro-union grievancearbitrators have madeit nearly impossible to fire a union member,no matter howoutrageousthe offense. In Connecticut during the late 1990s the State Board of Mediationand Arbitration "reinstated a cop fired for giving up an informant, a school warehousesupervisor caught embezzlingthousands of dollars from his union, a parks worker whoabusedhis boss," and a prison guard whouttered racial slurs and vulgarities into the answering machineof an African-Americanstate senator (Condon 1998:B1). 9.

Reductionsin Force (RIF)

Public employeesoccasionally had their job security threatened during budgetary hearings, but RIFSgenerally were very limited in numberand scope until the late 1980s, whenthe halcyon days of governmentgrowth in the United States ended in most jurisdictions and layoffs becamecommonplace.Individual worker procedural protections apply only marginally whenagency- or government-wide reductions in force are implemented.However,unions exert influence on which

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workers are to be laid off, what the "bumping"order will be, and what the priority and procedureswill be for reemployment. In makingsuch determinations, unions favor the criterion of seniority. Thebasic unionposition is that less senior workersshould be the first laid off and the last rehired. In general, this is not a point of contentionwith management, although seniority in retention and reemploymenthas becomea common topic in formal contract negotiations. In public educationsomestate laws require certification and teachingqualifications to take precedencein determininglayoff, but years in the classroomcan be negotiated as an additional criterion. Alternatives to layoffs are sometimessought by a union, dependingupon membersentiment and managementconsent. Possibilities include work sharing (reducing the length of the workweekor workdayand cutting pay accordingly), rotating layoffs, furloughs, and voluntary days off without pay. Traditionally, however,unions prefer seniority-based layoffs to alternative arrangements. 10. Other HumanResource ManagementPolicies Unionshave beeninfluential in establishing certain humanresource-related policies in various jurisdictions, and in other instances they have helped mold management-initiatedpolicies. Eight are considered here: technological change, productivity, privatization, workerhealth and safety, disability, drug testing, workers’ compensation,and miscellaneous terms and conditions of employment. (a) Technological Change. Unions in the private sector have long been interested in the consequencesof technological changefor their membership,and historically have opposedlabor-saving innovations that reduce the numberof union jobs. Unionsuccess in this area led to the practice of "featherbedding," in whichidle employeeswere kept on the firm’s payroll indefinitely. Thereare limits to the application of labor-savingtechnologyin the public sector becauseof the labor intensity of government services. Still, certain services are better candidates for technological innovations than others. Garbagecollection is one such area, wherechangeshave included curbside instead of backyard service, trash compactors,standardized carts, automatedcollection systems, and even the one-personcrew. Stanley (1972:100)relates an amusingstory involving technological changein solid waste collection in Detroit: "Management proposed increasing the productivity of garbage collection trips by using a rig knownas a ’motherloader’--a garbage truck towinga trailer. The employeestook one look at it, changedits name,and started for home.Management soon droppedthe idea because the equipmenthad technical, as well as labor-relations, drawbacks." Recently, the employmentand work scheduling effects of computerand information technology have received increased union scrutiny and becomea frequent subject for bargaining. The automationof offices can replace humans with technology,resulting in reduceddemandfor clerical and other support work-


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ers (Klay and Chen1993). Computerand information technology also present newopportunities for alternative workschedules and workplaces,as noted above. All of these are of great interest to unions. Mostpublic employeeunions claim that they are not opposedto technological changes, given these conditions: 1. the changescan be shownto be beneficial to the particular service; 2. workers’ jobs are adequately protected; 3. employees will share in any monetary gains from productivity improvements; 4. changesin the place, rules, and hours of workare negotiated or, at a minimum,subject to consultation with the union; and 5. the union receives advancenotice of planned technological change. The most important condition is that employeesbe protected from job loss, or wherethat is not entirely possible, that severancepay, natural attrition, reassignments, early retirement, or other arrangementsare utilized. (b) Productivity. Maximizingoutputs while minimizing inputs--productivity-became a significant concern in governmentduring the 1970s. It is receiving even more attention today (Kearneyand Berman1999). But to improve levels of productivityone mustfirst be able to measureit; that presents enormous problemsin the public sector, wherelabor-intensive services, not goodsor manufactured items, are the product. Government services do have identifiable output (process) and outcome(results) indicators, but in practice they are difficult collect and interpret. Empirical research on private sector unions has generated mixedfindings. Freemanand Medoff(1984: Ch. 11) conclude that unions enhanceproductivity because in unionized settings, management hires higher-quality workers, purchases morecapital-intensive technology, expandstraining opportunities, and benefits from lower employeeturnover. There is also research suggesting that improvementsin product quality and quantity are more likely to be achieved through programsjointly designed and administered by unions and management, comparedto settings with no union involvement(Kearneyand Hays1994). However, unions can thwart productivity improvement efforts, and their wage-setting activities maycause research and developmentfunds to be displaced by payroll costs. Also, unionization maybe associated with low turnover, but it is related to higher absenteeismas well. To summarize,little reliable evidence exists regarding the productivity effects of private sector unions. In government,the influence of unions on the quality and quantity of services is also uncertain or variable. Withregard to productivity in specific functions, unions apparently have no significant impact on municipallibrary productivity (Ehrenberget al. 1984), they have cooperated in adopting productivity

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improvementtechnologies in somemunicipalsanitation departmentsbut not others (Lewin1986), and they tend to enhanceproductivity in the public schools (Eberts and Stone 1987) but not in public universities (Meadorand Waiters 1994). Sanitation unions have found themselves with a Hobson’schoice in cities whereprivatization is a loomingthreat. Mostprivate contractors are substantially more productive and less expensive than municipal sanitation departments in collecting householdand industrial garbage, largely due to smaller crews, lower wages, newer equipment, less absenteeism, and superior incentive systems (Lewin1986:255). If municipal unions fight technological change(such as sanitation trucks with smaller crews) the threat of privatization must be taken seriously. But if unions accept technological improvements,workforce reductions eventually follow, diminishing the ranks of dues-paying members.Unions have adamantly--evenviolently--opposed technological change and privatization in somecities (e.g., Tampa,Salt LakeCity, Camden,N.J.). In other cases, sanitation unions have addressed the issues through labor-managementcommittees or productivity bargaining (Lewin 1986:259-260). Since the late 1970s, a debatehas raged over the issue of teacher productivity in the public schools. Thedebate is really part of a larger dialogue over the role of teachers in educationreformand in the quality of the schools. Conservative scholars have laid muchof the blamefor the perceiveddeteriorating quality of public education (K-12) on teacher unions, accusing themof protecting incompetent teachers, ignoring the education needs of children, and opposing meaningful reform efforts, such as "educational choice." Teacher unions and liberals view teachers as the key element in any serious effort to reform the schools. Several empirical studies have been conductedon the effects of teacher unions on public school productivity. Eberts and Stone (1987) found that for elementary schools, unionized school districts were seven percent moreproductive for average students than nonuniondistricts, whenproductivity was measured in terms of student scores on standardized tests. However,union districts were about seven percent less productive for students either significantly above or below average, possibly because teacher unions support "standardized" educational practices morethan specialized instruction techniquesof greater benefit to very good, and very poor, students. Acrossall students the union productivity advantagewas a "modestlypositive" three percent (Eberts and Stone 1987:359). Kurth (1987) weighedinto the debate with an analysis of the decline SATscores between 1972 and 1983. He determined that several factors were related to student test performance,includingexposureto the written word,parental involvement, an urban environment,and education spending. However,teachers’ unions were found to have a highly negative impact on student performance.


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Kurth(1987) concludedthat unions significantly impair teacher productivity and student educational achievement. Kurth’s findings were vigorously attacked by Nelson and Gould(1988), whoargued that Kurth’s mathematicalmodelwas misspecified ("theoretically shallow,oddlyconstructed")and his variables poorly defined, leading to an erroneousconclusion. Reexamining the data, Nelsonand Gouldfoundthat collective bargainingwasassociated with higher SATscores, at a statistically significant level. This provokedKurth(1987) into a vitriolic retort in whichhe called his critics’ comments "misleadingand full of distortions." Register and Grimes(1991) entered the controversyby examiningthe relationship between teacher unions and scores on the SATand ACT,using more current data measuredat the micro level. Their findings supported those of Kurth’scritics, discoveringthat unionswereassociatedwith significantly higher (4.7 percent) examscores. Zigarelli (1994) also foundthat unions are positively related to student performance.His modelattributes the relationship betweenunions and student achievementto (1) teacher unions "shocking" school bureaucracies into more efficient practices that generatepositive classroomoutcomesand(2) unionpolitical activities that boost education funding. Finally, Zwerlingand Thomason (1994), examiningthe effects of teacher unions on high school dropout rates, found that unions significantly reduce the likelihood of boys droppingout but only slightly decrease the femaledropoutrate. In higher-education,the mostdirect measureof faculty productivityis the publication of professional journal articles. Meadorand Waiters(1994) examined research productivity in 889Ph.D.-grantingdepartments.Their findings associated faculty unions with both a loweroutput of publishedarticles and a lower peer assessment of departmental scholarly competencethan departments with nonunionfaculty. Otherresearch has determinedthat faculty unions increase the retention rate of moresenior faculty (Rees 1994). Becausefaculty unions tend to favor across-the-board salary increases over merit pay, perhaps productive junior faculty tend to leave, perceivingthat their future earningswill be higher at nonunioninstitutions. (c) Privatization. The transfer of public goodsand service provision responsibilities to the private sector has beena worldwidephenomenon since the 1980s. The privatization movement has several impetuses, including ideological oppositionto public sector growth,belief that the private sector canprovidegoods and services moreefficiently (cheaply)than government,and the fiscal squeeze at all levels of government.In the UnitedStates, privatization has taken three majorforms:constructionof a public facility by a private contractor(e.g., prison or highway),government purchasesof specialized services (e.g., legal assistance,

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engineeringexpertise) on a short-term basis, and contractingout public services to a private or nonprofitorganization. In most U.S. governments,privatization is considered a management right related to the efficient management of the workplaceand therefore outside the scopeof bargaining.Andin principle, unionsdo not object to constructingfacilities, makingspecialized purchases,or contractingout professionalservices that their ownmemberscannot perform, such as architecture or engineering. It is whentraditional government functions,like sanitation or fire protection, are given over to the private sector that the unionsregister vociferousopposition. Unions contendthat contracting out, in particular, results in the terminationof public employeejobs and the creation of newjobs in the private sector, and tends to displace women and minorities. Therefore, it is a personnel matter that should fall within the scopeof bargaining.In state and local government, labor relations boards and the courts, with two exceptions (NewHampshireand NewJersey) have supportedthe union position that the decision to contract out should be a mandatorysubject of bargainingand that public employersare obligated to provide notice of the proposed workchange to the unions and an opportunity to negotiatethe issues. In the federal sector, agencymanagement clearly controls contracting-out decisions despite union opposition (Naff 1991). Fortifying federal management is (1) the Office of Management and Budget’scircular A-76,a directive to federal agenciesthat requires workto be contracted out to a firm if it can conductthe work moreeconomically; and (2) Title VII of the CSRA,which grants managementthe authority to "makedeterminations with respect to contracting out." Unionsin state and local governmenttend to discourage employersfrom decidingto contract out becausetheir strident oppositionis assured. Anyavailable political strings will be pulled. As suggestedabove,such oppositionis entirely rational, because the record showsthat union membership declines wherecontracting out occurs (Chandlerand Feuille 1991). Moreover,there can be benefits whenunions force a careful objective pace to privatization that diminishesthe possibility of policy mistakes. Increasingly, unions seek to developcompetitive bids to retain their public service productionresponsibilities, therebyeliminating the economicrationale for privatizing. Theyhavedoneso successfullyin several cities, includingPhoenix,Philadelphia, Indianapolis, and Charlotte. Nonetheless, privatization has madesubstantial gains in such functions as sanitation, street construction, architectural and engineeringservices, legal counseling,building repair and maintenance,social services, and ambulanceservices. Chelsea, Massachusetts evencontracted out the entire public schoolsystemto BostonUniversity for 10 years. Massachusettshas privatized mentalhealth care, prison health care, and highwaymaintenance,amongmanyother activities (Wallin 1997). Interestingly, however,in cities wheremanagement-union relations are highly adversarial, the likelihoodof privatizationis greater than in cities withcooperativerela-

Personnel Processes andPolicies

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tions (Chandlerand Feuille 1991). Perhapsmanagement is sorely temptedto try to rid itself of a perceivedpest in suchcities. Contractingout does not eliminate unionizationand the strike threat. To the contrary, private firms can be unionized,too, and often are. Furthermore, monetarysavingsmaybe illusory. Quality and service levels sometimesdecline, accountabilitymaysuffer, equity in service delivery maybe sacrificed, and contracts maybe awardedon the basis of political favoritism. Privatization has been particularly controversialin police and fire protection,and education.Still, the outlookis for additional gains ahead,withhighways,masstransit, watersupply, and education showingthe greatest potential. In federal employment, environmentalandpostal services couldbe future targets for privatization. In caseswhere privatization is assured, unionswill stronglyvoice their concernsaboutlayoffs, workschedules,and the quality of service delivery. (d) Health and Safety. Myriadhealth- and safety-related issues have foundtheir wayto the bargainingtable, reflecting newknowledgeand information, changingtimes, unions’traditional concernfor the physicaland psychological well-beingof workers,and the fact that public employeesare not protected by the OccupationalSafety and Health Act of 1970(OSHA).Three particular health issues have received increasing scrutiny from management and unions: smokingin the workplace, AIDS,and drug testing. Unionswant to formally register the perspectivesof their membership on these importantissues, and to defendaggrievedindividuals in the bargainingunit. Smoking:It has been estimated that smokingis responsible for over 300,000deaths per year through causing lung cancer, heart disease, pulmonary disease, and other ailments. Today,only about 25 percent of U.S. adults smoke, versus morethan 40 percent in 1965. Employersare concernedwith smoking(and second-handsmoke)because it affects themfinancially throughincreasedabsenteeism,higher insuranceand medicalcare costs, and lost productivity. Moreover,mostemployersmustenforce state andlocal laws that prohibit or restrict smokingin designatedplaces (smoking in federal buildings is regulated by GeneralService Administrationrules). A/thoughthe federal courts havenot founda constitutional basis for a smokefree workplace,somestate courts haveuphelda common-law right to a safe and healthy workplace, whichincludes protection from second-handsmoke(Wilson 1989:39). Anemployerwhofails to provide a safe and healthy place of work maybe held responsible in the courts for negligence. In response, employershaveadoptedpolicies not to hire active smokers, and to prohibit employeesfromsmokingon the job altogether. Somehaveprohibited off-the-job smokingas well, althoughthe legal groundsfor suchactions are questionable, and probablyviolate the right to privacyand due process(Wilson 1989:41-42).Anadditional problemwith employerdiscriminationagainst smok-

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ers is that it has discriminatory impacts--AfricanAmericansand Hispanics are more likely to smokethan whites. Finally, employers in most states have a common-lawduty to accommodateboth smoking and nonsmoking employees, and in 25 states employers are prohibited by law from discriminating against smokers. Unions,of course, havea legal obligation to represent the interests of all members in the bargaining unit, regardless of smokingpreference. Undercollective bargaining laws and contracts, managementmaynot alter the terms and conditions of employment unilaterally. Smoking restrictions and rules are terms and conditions of employmentunless a management rights clause clearly places such workrules and conditions within the realm of management authority. Thus, management and unions usually must negotiate or otherwise agree on smoking policy. Even wherestate or local laws apply, the implementationof statutory restrictions through workplacerules should be negotiated with the unions. The alternative is for management to field any numberof formal grievances. Unionsdo not opposesmokingbans or restrictions directly related to workplace safety, such as aroundmunitions, chemicals, or flammablematerials, and they mayremain silent whenmanagementimposes such restrictions. However, management’s right to imposerules concerningsmokingin offices, nondangerous facilities, and similar areas will be contested, usually throughunionrepresentation of a grievant whohas beendisciplined or dismissedfor rule-breaking. Furthermore, unions insist on consistent, nonbiasedenforcementof smokingpolicies and sanctions. (e) Disability. The Rehabilitation Act of 1973 and the Americanswith Disabilities Act of 1990protect persons with disabilities from discriminationin any humanresource managementprocess. Disabled workers must be provided with "reasonable accommodation"by employers, subject to "business necessity" limitations. For example,workplacesmust be madephysically accessible to people in wheelchairs (reasonable accommodation) unless the workplacecannot be modifiedwithout extreme cost to the employer(business necessity). The ADA’sdefinition of "disability" is expansive, covering an estimated 43 million Americans,about one of every seven. Withinthe broad definitional umbrella of the ADA are alcoholism, drug abuse, mental illness, and HIVinfection. For employers, as well as for unions charged with fair representation of all members of the bargainingunit, a fine line mustbe walkedbetweenprotecting the rights of the disabled workerwhile respecting the rights and preferences of their coworkers.For instance, a union must represent both an HIV-infectedemployee in terms of reasonable accommodationof his or her medical needs and treatments, and the concerns of coworkerswhofear becominginfected with the virus,


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Generally, an employershould consult with the union before transferring an HIV-infectedworker or makingother accommodations that affect other employees. Anda plan to test all union-representedemployeesfor HIVis certain to generateoppositionif the unionhasn’t signed off on it. (f) Drug Testing. Alcohol abuse has always been a scourge of the Americanworkplace;it has nowbeen joined by another serious addiction--illegal drugs. These"evil twins" cost the U.S. economy up to $200billion per year, and accountfor a disproportionatepercentageof discipline and dismissal cases. Substanceabusers are less productive, moreprone to turnover, tardiness, and dismissal, and morelikely to get sick or be injured than other employees. Unionsseldomdisagree with management-initiatedrules prohibiting working under the influence, becausethe safety and productivity of all members are potentially involved. However,unions do prefer to negotiate specific rules and proceduresfor addressingthe problem.Andunions will aggressively defend employees accused of substance abuse. In the case of alcohol abuse, unions frequently argue that discipline is unfair becausealcoholismis a disease beyond one’s owncontrol. Mostgovernmentemployersaccept this view, and give alcoholic employeesan opportunity for treatment and counseling through an Employee Assistance Program(EAP)or on their own.If the unfortunate worker unable to conquerthe addiction and his or her performanceis judgedunacceptable, discharge usually follows. Althoughboth alcohol and drug addicts have someprotection from adverse employmentactions by the Rehabilitation Act and Americanswith Disabilities Act (they are considered to be disabled, like AIDSvictims), drug abusers are morelikely to be treated severely by management. Druguse is, after all, usually illegal, and a greater stigmais attachedto it than to drinking. For example,offduty drug use mayresult directly in discharge if a court conviction is made, whereasalcohol abuserarely if ever does, except indirectly throughpoor attendance and job performance.Dischargeis also likely to follow a workerguilty of using or selling drugs at the place of employment.Unionsnormally do not raise a significant barrier to such employeractions, as long as members receive due process and any policy alterations are submitted to the unionfor consideration. The matter of testing employeesfor drug use is morecontentious. Fewrestraints exist on drug testing in the private sector, or on testing prospective employeesin any setting. In government,constitutional issues are more germanefor ongoingemployees,including the Fourth Amendment’s right to privacy and freedomfrom unreasonable search and seizure, the equal protection clause of the Fourteenth Amendment,the Fifth Amendment’s protection from self-incrimination,and various state constitutional protections. Anonunionjurisdiction mayget awaywith unilaterally imposinga drug-testing policy on current

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employees,but whereunions represent workers,the policy is usually treated as a term or condition of employment--amandatorybargaining subject. Undermost circumstances, unions are adamantlyopposedto drug testing, particularly if it is randomly imposedand its value is uncertain. Drugtesting is an invasiveprocedurethat requires analysis of urine, blood, hair, or nail samples. It is not time-specific, so it often "reveals moreabout the employee’soff-duty life-style than about his ability to performon the job" (Denenberg1987:305). Laboratorytesting proceduresare notoriouslyunreliable. Courtstend to side with the unions, unless the government employercan demonstratea legitimate interest in testing (e.g., public safety) and a fair programthat adequatelyguardsemployee rights. In Skinner v. RailwayLaborExecutives’Association(1989), the U.S. SupremeCourtheld that urine collection violates the reasonableright to privacy under certain conditions; in NTEUv. Van Raab(1989), the SupremeCourt restricted the U.S. CustomsService’s drug testing programfor candidatesfor promotionto those in" sensitive positions" involvedin druginterdiction. Legitimate "reasonable" interest in testing for drug use is easier to prove for employees directly involvedin protectingthe public health and safety, such as police, firefighters, train andmasstransit drivers, andair traffic controllers. Someof the mostinteresting activity concerningthe legality of drugtesting has occurredin the federal government.Random drug testing in the military was ordered by President Nixonin 1971, and it continues today. In 1986, President Reagansupported his wife Nancy’s"Just Say NO!"campaignby directing all executiveagenciesto randomlytest all workersin "sensitive positions." A flurry of vehementunionactions ensued,resulting in several court cases and rulings by the Federal LaborRelations Authority, and congressional involvement(Masters 1988). The federal unions claimed that management must prove a link between a positive drug test and an individual’s workperformancebefore disciplinary actions can be taken. The federal agencies differed on this issue, and asserted that drug testing is a nonnegotiablemanagement right underSection 7106of the CSRA.Drug-testing programscontinue to be challengedin somefederal agencies today. Whennot fighting over drug testing in the courts, arbitration venues, or across the bargaining table, unions and management can embarkon cooperative ventures to address the drug abuse problem.Employeeassistance plans provide aid and counselingto drug users that benefit both parties. So do drug prevention programs,sponsoredor cosponsoredby unions, whichcan marshal peer pressure against drug abuse and encourageusers to seek help. (g) Workers’ Compensation. Workers’ Compensation is a federalstate programthat pays benefits to workersinjured on the job, regardlessof fault. Compulsory in all but three states (NewJersey, SouthCarolina, and Texas), its annual costs approach$50billion (Hirschet al. 1997). Astudy of workers’corn-


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pensation claims from 1977to 1992found that union memberswere significantly morelikely to receive such benefits than were similar nonunionworkers. The reasons? Possibly because unions provide their memberswith more assistance and informationabout the programand, throughthe contract and grievanceprocedures, protect fliers from management-imposed penalties for filing claims. Moreover, union workersare morelikely to hold dangerousjobs (Hirsch et al. 1997). (h) MiscellaneousTermsand Conditions. If a variable in the environmentof workcan even imaginatively be labelled "workingcondition," then the odds are that someunion, somewhere,has challenged management over it. In manyinstances union interest in workingconditions has led to improvements, especially within the area of employeesafety. Safety, of course, is an important concern to both employeesand management. Injuries or deaths at the workplace are anathemato both parties. Their prevention is normallyrecognizedin labor agreementsas the joint responsibility of management and labor. Unions,in particular, are vigilant concerningthe employer’sduty to provide a healthy and safe workingenvironment,including the provision of protective equipmentand clothing and expeditiouslyaddressingpotential health and safety threats to employees. For public school teachers, a safety-related issue is the needto protect teachersfromviolent students. Teachersfeel that control overstudent disciplinary proceduresis critical to their physicaland emotionalwell-being.Disciplineis an especially salient issue in big city school systemscontainingmanystudents who are "difficult to teach." Generally, teachers want the right to expel from the classroomstudents whoevidenceintractable disciplinary problems,and the right to representation on student disciplinary committees.The courts havetended to affirm that negotiationsover student disciplinary matters are within the scopeof bargaining, unless specifically excludedas a management right (Sutherlin Education Association v. Sutherlin SchoolDistrict No. 1301976). Otherconditions of worksubject to bargainingin various functional areas include mealand rest periods, clean-uptime, coffee breaks, locker rooms,clothing allowances,and mileageallowances¯Oneexhaustivelist of negotiated working conditions was attributed to the Social Service EmployeesUnionin New YorkCity (Stanley 1972:110-1l 1): The union’s contract contains unusuallydetailed provisions on working time and free time, including: travel time to get pay checks; grace periods for handicappedemployeesat the beginningand end of shifts; grace periods for delays due to inadequateelevator service’, dismissal at 3 p.m. if the temperaturereaches 92 degrees F; dismissal at noonif the temperaturefalls below50 degrees outside and 68 degrees inside, or if it falls belowthose levels after 12 noon, dismissal within an hour ¯.. the contract assures the employeeof a place to hanghis coat, and--

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For municipalpolice, nametags once werea volatile issue. The seemingly innocuousmatter of being required to wear one’s nameon one’s uniform came to a headin somecities during the civil disturbancesof the late 1960s. Police supervisors and citizens claimed that there was a need for nametags so that individual police officers whoviolated a person’s civil rights or engagedin a bit of unwarrantedhead-knockingcould be identified. Police officers, however, resisted, alleging that the pin on the tag could be used against an officer as a weapon;furthermore,identification wasleading to harassmentof officers’ families by protestors. Younameit, it has beenthe subject of negotiations somewhere. The Minnesota SupremeCourt ruled, on appeal, that facial hair and fingernail length are not mandatorysubjects of bargainingfor sheriffs deputies. Ear studs? Theyare not bannedin Boston,but officers cannot wear themin Peotone, California, or Vernon,Connecticut.In Middletown,Connecticut, the townpolice unionfiled a grievanceagainst the chief for suspendingChance,a police dog, for eating the dashboardof a police cruiser. Chanceapparently becamefrustrated whenhis two humancruiser matesgot involvedin a scuffle with a suspect whilethe protective canine was locked in the car. In NewYork, AFSCME negotiated "captivity coverage"for state correctionalofficers in its contract. Underthe coverage,Lloyds of Londoninsures the officer: if they are held captive by inmates, officers are compensatedfor 50 percent of salary whenthe traumatic event is over, Death, dismemberment, or disfigurement results in 200 percent compensation. As mentionedpreviously, teachers have had more success in broadening the scopeof bargainingthan any other occupationalgroup, in large part because there are significant elements of management and independentdecision making in their daily duties. Among the workingconditions negotiated in teacher contracts are: Class size provisions Numberand functions of teacher aides School calendar Teacherrepresentation on instructional policy committees Teacher evaluation procedures Special programs Curriculum Gradingcriteria Textbookselection Allocation of federal grant money Teaching methodologies Peerevaluationof teachers in lieu of principal’s ratings


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Provisions for day care centers for teachers’ children, and Teacherparticipation in school site selection. It does appear that a "balance" has been reached in somestate courts over the scopeof teacher bargaining. Thecutting point seemsto be howdirectly an issue affects the well-beingof the individual teacher, as opposedto its impacton the operation of the school systemas a whole.

III. CONCLUSION As the purse strings of state and local governmentshave been cinched tighter and tighter by fiscal constraints, a stingy yet mandate-issuing federal government, and a hypercritical citizenry, unions have turned from an almost exclusive concentration on wagesand dollar-driven benefits to certain nonmonetaryelements of humanresource administration. Wagesremain a visible and important issue for unions, but pay gains have been constricted since the 1980s. The clash betweenbargaining and merit systems is inherently a part of public sector labor relations, as unions seek to extend their sphere of influence and limit management authority. Unionswant greater control of the workplace for their members,and they workhard, and often successfully, to get it. Managementtoday, however,is a moreforceful and competentadversary in protecting its rights and prerogatives than it once was. In someways, public management is mademore effective and fair by union involvementin workplace decisions. In other respects, the loss of flexibility in a unionenvironmentcan impedemanagementresponse and adaptation to social, political, and economicchanges. There is a precarious balance between bureaucracy and democracy in the United States. Unionsrepresent institutionalized bureaucratic power, while elected governmentofficials and their appointeesmust defendthe principles and processes of representative government.As unions encroachon traditional areas of management rights, they sometimespenetrate the arena of public policy making. This is evident in public education, where teacher unions have fought and wona voice in determininga variety of education policies. It is difficult to state with any assuranceor finality whetherunionpolicy involvementis goodor bad. In public educationit clearly has meantless flexibility for school management and increasing rigidity in school operations. But, teacher participation in determininghowthe learning process is structured may producehigher moraleand, in the long run, positively affect the quality of program implementation. Perhaps, as a Huntington, NewYork, teacher contract states, "The membersof the teaching profession have a special expertise which entitles themto participate in determining policies and programsdesigned to improve educational standards." But this claim could be made by almost any

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occupationalgroup in public employment,fromcorrections officers to sanitation engineers. As a practical matter, there is a need for management-labor consultation over the role of public employeesin policy determination.Final authority unquestionably should be retained by management,but the union voice is legitimate and it can prove invaluable. The wise manager,the democratic manager,should not refuse to discuss policy matters that are of direct concernto unions and their members. Ultimately, the unions get only what management gives to them. The protections of collective bargainingstatutes, management fights clauses, ordinances, and merit systems shore up the defenses of management.So do political and economicfactors in public employment that act as constraints on unions, not the least of whichis public opinion. Public management must learn to use available resources and tools in establishing a firm, but not rigid, posture vis-a-vis the unions. Bothparties in the relationship shouldstrive to negotiate in an atmosphere of mutualrespect and concernfor the public interest. As the next chapter points out, however,this is mucheasier said than done.

CASE STUDY 7.1:

A BLOOMINGLABORDISPUTE

Nine-year old Katie Corletta, a student at Horton Elementary, was distressed about the condition of a public park across the street from her school. So, she organizeda group of fellow third-graders to pick up the trash and plant a flower garden. Theydid a very nice job, muchto the pleasure of teachers and parents, whowere impressed by the communityspirit of the children. Local 1029 of AFSCME was muchless pleased. The municipal union, whichrepresents Parks and Recreation Departmentemployees,filed a prohibitive practices complaint,stating that it should havebeeninformedand consulted about the student project because its membersmaintain the park by picking up broken glass and other trash, mowingthe lawn, and repairing playgroundequipment. Parents and the PTOwere shockedand outraged, and the children confused. "Wedidn’t think we were taking anything awayfrom the union because they weren’t planting flowers," Corletta said in a local newspaperreport. "All we were doing is helping pick up trash. We’renot mowingthe lawn that the union people woulddo. We’rejust doing things they don’t do." KennethBoulware,president of Local1029, said that the union had a serious problemwith the city’s lack of communication.Unionmembers,he asserted, work nearly every day in the park. "Personally, I don’t have a problemwith third-graders," he said. "Myproblemis if they abandonthe project, I’d have to have our people maintain it as they have in the past. Andunion workers should perform union work."


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Questions 1. Whydid the union react as it did whenit discovered that the flower garden had been planted by the children? Whatwerethe possible justifications for the unionaction? 2. If bargaining unit membershad been laid off recently because of budget cuts, wouldthis be important? 3. Whatare the implications for union-citizen relationships? 4. Howwouldyou have handled the issue, if you were the union president?

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8 Strike!

Ironically, in a nation known for the individualistic spirit of its citizens and workers, collective job actions are not rarities in public employment in the United States. Neither are they a newbornphenomenon.David Ziskind (1940), in One ThousandStrikes of GovernmentEmployees,chronicled a numberof public employee strikes that occurredvery early in the history of the Republic,including an 1835 strike of civilian yard workers in the NavyDepartmentand an 1880 walkout by Pennsylvaniateachers. Early federal employeeworkstoppages also occurred in the GovernmentPrinting Office (1863) and in federal arsenals (1890s). However,the first serious waveof governmentemployeestrikes did not take place until the early 1900s. The causes of these early workstoppages were as diverse as their participants: Connecticutlegislators walkedout in 1911, demandingthe elimination of "paid agents" whowere acting as lobbyists on the floor of the state senate; workers at the Watertown(NewYork)Arsenal struck during the sameyear over the introduction of Tayloristic time study techniques; moth workers, whosejobs entailed the extermination of biting moths, struck at least four times in Massachusettsbetween1907 and 1917for higher wages; and gravediggers in Milford, Massachusetts,hungup their shovels over the issue of Sundaywork in 1913 (Ziskind 1940:96). The most controversial strikes during the early 1900sinvolvedfirefighters and police. Firefighters, incensedover egregiously poor working conditions (low pay, 24-hour duty with time homeonly for meals, and one day off out of every eight) struck in locations all over the country during 1903to 1921. Police refused the call to duty in a numberof large cities, including Cincinnati and Boston(see CaseStudy8.1); they, too, demanded improvedworkingconditions, shorter hours, and wageincreases. Today, some of the place names and worker demandshave changed, but public employeework stoppages continue to occur. This chapter examinesthe anatomyof public employeestrikes in the UnitedStates. First, data on their frequencyare presented. Next, argumentsfor and against the strike are discussed. Therelevant legislation on workstoppagesin both the public and private sectors 221

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is summarized,along with research findings on whypublic workers go out on strike. Strike tactics and strategies of employersand unions are examinednext, including the role of the injunction and penalties for workstoppages. Finally, some speculation is offered on public employeejob actions in the future. Throughout the discussion case studies are used to help capture the flavor of the strike as the ultimate weaponin labor’s arsenal.

CASESTUDY8.1:

THE BOSTONPOLICE STRIKE OF 1919

A period of rapid monetaryinflation usually characterizes the economy of a nation windingdownfrom a large wareffort. This has been the case after all major wars involving the United States. FollowingWorldWarI, prices of goods and services began climbing rapidly. But police wagesin Boston ranged from only $900to $1,400per year, with an averageannual salary of $1,000. Out of salary, each officer was required to pay about $200per year for uniformsand equipment. Inflation hit these and other low-wagepublic workers very hard indeed. Compounding the unhappiness of Boston police were exceptionally long working hours: day workers were on duty 73 to 78 hours per week; the night shift 83 to 91 hours; and "wagonmen"were required to be on the job up to 98 hours per week. Each officer had to sleep in the station house one night per week, whereconditions were filthy and decrepit. The beds were infested with cockroachesand bedbugs.Other, relatively minorjob irritants also existed, including the necessity to secure special permissionto travel out of Bostoncity limits and the requirement to run personnel errands for superiors. Police spokesmenhad taken various grievances to the commissioneron several occasions, but no actions were forthcoming. In 1919, "Boston’s finest" applied for and received a municipal police charter from the AmericanFederation of Labor. The Bostonpolice commissioner declared that union membership was groundsfor dismissal from the force, firing several officers as an exampleto others. In protest, almost the entire force (1,140 out of 1,540) walkedoff the job. The commissioner respondedby firing all striking police officers. Without adequate law enforcementpersonnel, law and order broke down. Rioting, looting, violence, and general mayhem spread throughoutthe city, causing the mayorto declare a state of "tumult and riot" and to call in the Massachusetts State Guard. GovernorCalvin Coolidgereadily compliedwith the Mayor’s request, issuing his famousstatementthat "there is no right to strike against the public safety by anybody,anywhere,any time." AlthoughCoolidge’sactual role in ending the strike was limited and the publicity he received quite undeserved (see Spero 1970:252-281),the episode did help him considerably in his later quest for the presidencyof the UnitedStates.

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TheGuardestablished and maintainedlaw and order until newpolice officers could be recruited. The striking policemenwere not rehired, yet they did win somethingof a Pyrrhic victory: newofficers were granted virtually all of the demandsmadeby the strikers, including an entrance salary of $1,400, free uniforms, a pension system, and positive changesin workingconditions. The strike had the addedbenefit of encouragingsimilar improvements in the lot of policemenin numerousother cities aroundthe northeastern portion of the United States. Fromthe perspectiveof public sector unionization, however,the strike had to be considereda resoundingdefeat. Fear resulting from the Bostonviolence, combinedwith a more generalized "Red Scare" of Communists,forced all 37 AFL-charteredpolice locals and morethan 50 IAFF-charteredfirefighter locals throughoutthe UnitedStates to relinquish their charters followingthe strike. Unionization amongmunicipal protective services employeeswas set back a good20 years. Questions 1. Coulda strike of this intensity that set the stage for widespread violence in a city happenagain today? 2. Whatfactors wouldhave to be present for a contemporarystrike to generate a similar amountof public attention? A. A Strike By Any Other Name... Theterm "strike" is thought to be derived from the act of sailors hauling down or "striking" their sails to quit work(Shafritz 1980:20).Today,however,expressions characterizing a workstoppageare limited in numberonly by the fertile imaginationsof their participants. Acrossthe country, firefighters havecalled in sick with the "red rash," police with the virulent "blue flu," and teachers with "chalk-dust fever"; In San Diego, on "HumanError Day," June 4, 1979, members of the countyemployees’association cut off incomingtelephonecalls, misfiled and misroutedpaperwork,and producednumeroustypos and other mistakes to express their opposition to a wageoffer by SanDiegoCounty.In Knoxville, Tennessee,police officers threatened to engagein a "pray-in"by attendingevangelist Billy Graham’sCrusadeeach night until the city council took action on a proposal for 48 hours’ pay for a 40-hour workweek(Stanley 1972:182). The president of the local FOPobserved, "I cannot advocateworkstoppages,strikes, or sick call-ins, but I ama firm believer in prayer." OnAugust19, 1977, thousands of state workersin Pem~sylvania called in with severe cases of "budgetitus" to protest receiving no paychecksfor four weeksdue to the failure of the state legislature to enact a newbudget. For three days in December, 1989, Boston City Hospital doctors staged a "heal-in," refusing to release patients fromthe

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hospital until exhaustingall possible health care options. Thedoctors wereseeking higher pay. Theseand other activities such as massresignations, continuous"professional meetings," "professional holidays," work slowdowns,"work-to-therule," picketing, and protest marchesall comeunderthe rubric of "job actions." All are not, however,properly labeled "strikes" or "workstoppages." Generally, the courts and other interested parties haveinterpreted "strike" in accordance with the Taft-Hartley Act ([Section 501 Id]) definition, whichis "any concerted stoppage of work by employees.., and any concerted slow-downor other concertedinterruption of operations by employees."Thus, a strike entails the interruption of normaljob operations through a walkout,slow-down,sickout, or any other tactic that disrupts governmentwork. All of the job actions mentionedaboveprobably wouldbe interpreted as workstoppages by the courts (whichhavebeenfairly strict in these determinations),exceptpicketingand protest marchesby off-duty workersthat do not interfere with the job performance of on-duty employees.The NLRA grants all private sector employeesthe right to withholdtheir labor througha strike, whetheror not they belongto a union. Mostpublic employeesdo not enjoy a legal right to strike, although a growing numberof states are permitting workstoppagesfor specified groupsof workers, subject to certain conditions. The vast majorityof public employeestrikes are authorizedeither formally (through a strike vote) or informally by the employeeorganization. Thosework stoppagesthat are not so authorizedare referred to as "wildcatstrikes." A strike that occurs simultaneously amongdifferent governmentservices in the same jurisdiction is called a "general strike." Employerscan institute a strike of their ownknownas a "lockout." In a lockout, the employerrefuses to permit employeesto work,literally or symbolically locking the doors to keepthemout. Theobjective is to apply pressure for a contract settlementor for employees to reject, or decertify, the union. Lockouts occurredin recent years in professionalbaseball and basketball. B. Public Sector Strike Activity Althoughcomparisonswith private sector strike activity vary by year, the evidenceis clear that a smaller percentageof public workersgo out on strike, and that they strike for muchshorter periods of time, than do workersin the private sector. In 1998,for example,there were30 major(i.e., 1,000 employeesor more) workstoppages in the private sector, versus only 4 in government.Government strikes accountfor only a small proportion of all workstoppagesin the United States. That strikes in public employment are briefer (averagingabout 12 days compared to 21 daysin the private sector) is explainedby several factors, including the "essential" nature of somegovernmentservices, the illegality of some

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public sector workstoppages, the lack of union "strike funds" to help support strikers, morefrequentuse of court injunctions to halt stoppages,greater publicity and political pressure for settlement, and the political consequenceswhenquick settlementsare not attained. In addition, private firms can build up productinventories to help ride out a strike; public employersrarely enjoy that option. The peakyear for public employeeturmoil was 1979(see Table 8.1). Since then, all indications point towarda steep drop in workstoppages. However,caution must be used in interpreting the data in Table 8.1. Strike data for 1960to 1980include all knownworkstoppages. In 1981, the Bureauof LaborStatistics stopped collecting information on job actions involving fewer than 1,000 workers, as part of the Reaganadministration’scutbackson government statistics gathering. Moststrikes in the public sector engagefewerthan 1,000 individuals. The other immediatecauses of the decline in job actions were the national economic recession of 1981 to 1982 (workers value their jobs morewhentimes are tough and alternatives are scarce), and the virulent anti-union posture of the Reagan administration, which becamepainfully palpable during the Professional Air Traffic Controllers strike of 1981(see CaseStudy 8.4). From1988to 1998, there wasan averageof only 6.5 strikes in state and local governmentper year (Cimini 1998). Strikes also declined dramatically in the private sector during the 1980s and 1990s, to less than half the rate of the 1970s. Duringthe decadeof the 1970s nearly 300 major work stoppages occurred per year, comparedwith fewer than 100 annually during the 1980s and only 33 in the 1990s(U.S. Bureauof Labor Statistics, 1999). Here, likely causal factors include weakeconomicconditions in the union-intensive manufacturingindustries; the willingness of employersto hire permanentreplacementsfor striking workers, or even to moveoperations to cheaperlabor markets in the United States or overseas; and, again, the hostile tone set by the Reaganadministrationin firing the air traffic controllers. Hiring nonunionreplacement workers has been particularly effective in repressing strikes in business. Historically, even if such workers("scabs," to the union members)were hired temporarily, they were terminated whenthe strike ended and union memberswere reemployed. A 1989 U.S. SupremeCourt ruling (the Mackay Doctrine) upheldthe right of private sector employersto hire permanent replacementsfor strikers, and to favor ongoingworkerswhostay on the job in spite of a job action (NLRBv. MackayRadio and Telegraph1935). However, permanentreplacementswere rarely used until the 1980s. By then, public opinion had slowly turned against the unions on this key issue and competitivepressures increasedthe inclination of firms to play hardball. A final impetuswasPresident Reagan’sfiring of striking air traffic controllers in 1981and replacingthemwith newemployees. By makingthe strike a double-edgedsword that can either win the union concessionsfrom a firm or result in dismissal of strikers and, essentially, the demiseof the union, the MackayDoctrine has seriously undermined

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the power of the strike and even reformulated it into a managementweapon (Victor 1992; Kosterlitz 1997). CASE STUDY 8.2: OF 1970

THE POSTAL WORKERSSTRIKE

Federal postal workershavebeen politically active through their employeeorganizations since the 1890s. The postal unions have enjoyed numerouslegislative successes from their powerfullobbying efforts in Washington,including revocation of the "gag rules" of presidents TheodoreRoosevelt and William Howard Taft and passage of the Lloyd-LaFollette Act of 1912, which established the right of federal workersto organize and join unions. Postal unions evenconducted a numberof limited local strikes throughoutthe United States during the early 1900s. Their most successful strike occurred in 1970. On March, 18, 1970, movementof the U.S. mail slowed to a trickle as postal employeesin NewYorkCity, then across the natio, walkedoff their jobs, in wildcat strikes over low wagelevels, dissatisfaction with their treatment by Congress,and the inability of their unions to "deliver." It wasone of the few, and certainly the largest, strikes of federal employeesin Americanhistory. After a back-to-work order was ignored, presidents of the seven major postal unions met with Secretary of Labor GeorgeShultz, Assistant Secretary for Labor-Management Services WilliamJ. Usery, Jr., and Postmaster General WintonM. Blount to reach an accord: striking workers wouldgo back to work in return for a formal discussion with administration officials over pay, postal reform, and other issues. However,the union rank and file refused to accept the agreementand continued to spread the strike across the country. By March20, close to 200,000workers failed to report to workand muchof the national was without mail service. The strike threatened to disrupt the economyas the flow of financial documentsand other important materials was squeezed to a trickle (one must recognize that UPS,Fed-Ex, and e-mail were not options in 1970). On March13, President Richard Nixondeclared a state of national emergency, ordering federal troops into NewYork City to movethe mail and calling to active duty 15,000 Armyreserves and 12,000 membersof the National Guard. The President informed the striking postal workers that negotiations wouldnot begin until they returned to work;if necessary, troops wouldbe deployedin other locations. Through"unofficial" channels, the postal employeeswere told that if they returned to their jobs Congresswoulddirectly address their grievances. Meanwhile,as paychecksstopped, the pleas of PostmasterBlount and union leaders for a return to workreached more receptive ears. By March25, most of the striking workers were back on the job, and federal troops began a withdrawal. Negotiations quickly commenced between union leaders and the Post Office Department,and a partial settlement was announcedon April 2. Underthat

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agreement,postal employeeswouldreceive a six percent retroactive pay increase plus an additional eight percent whenCongresspassed a postal reorganization bill. Congressapprovedthe pay provisions with great haste, and the President signed theminto law on April 15. In the long term, negotiations over postal reorganization were muchmore significant than the wagesettlement. In return for postal union support for the Postal ReorganizationAct, whichestablished the mail service as a government corporation, postal workers were removedfrom labor relations coverage under ExecutiveOrder11491and granted full private sector collective bargainingprivileges, except for the right to strike. Mostother federal employeeswouldcontinue to fall under the very restrictive scope of bargaining imposedby the Executive Order, and, later, the Civil Service ReformAct. But becauseof the impactof their national workstoppage, postal workerswonpreferential treatment, including the critical right to negotiate pay andbenefits. Thefinancial benefits of the settlement were soonevident. Whileother federal white-collar workersreceived a 47 percent salary increase from 1970through 1977, the postal employees’salary was hiked by 94 percent. Questions 1. Whatare the lessons from the postal workers strike for other public employeesand their organizations? Are these lessons relevant today? 2. Is mail an "essential service" today? Whatabout other forn~s of mail and packagedelivery? 3. In hindsight, should President Nixonhave handled the strike differently? Why?How? Approximately90 percent of all governmentstrikes since 1960have taken place at the local governmentlevel, with state workersaccountingfor nearly all the remainder. The incidence of local governmentstrikes has been greatest for teachers, whohave accounted for about 70 percent of the work stoppages since 1982 (Cimini 1998). Highways,transportation, and clerical employeescomprise most of the remaindertoday, comparedto 20 years ago whenpolice, firefighters, sanitation, and social workershad a greater strike profile. Geographically,strikes occur most frequently in the Midwest, then in the Northeast, South, and West (in that order). In the westernportion of the UnitedStates, only California has reported a significant numberof work stoppages. Since 1982, five states have accountedfor the majority of major workstoppages: California, Michigan,Illinois, Ohio, and Pennsylvania. The data on strike duration indicate that work stoppages in the South tend to be larger and moreintense, perhaps because of the general absenceof legal machineryto guide the parties in labor relations and a traditional employerresistance to unions. Whatmaybe the longest recorded strike by public workers, however,took place in Maryland,a border state, when

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Garrett Countyroad workerswalkedout for 207days in an effort to gain recognition of their union. Thereis a tendencyfor local governmentworkstoppagesto spill over into two or morefunctions. Police often have been joined on the picket line by firefighters, and vice versa, while sanitation, streets and highways,parks, and sewage workerssometimesjoin ranks. Teachers, hospital employees,and social service workers usually walk out alone. Somethingapproachinga general strike has occurred in several cities. For example, during the Baltimore strikes of 1974, garbage workers were joined by parks and recreation employees, sewagetreatment workers, water line maintenance crews, animal shelter employees,city corrections officers, departmentof education grounds workers, and police in a stoppage involving morethan 3,000 city employees(Flynn 1975:60-73). In Toledo, Ohio, 3,700 city workers went out on strike July 1, 1979, includingpolice, firefighters, and sanitation workers; in nearby Youngstowncity employeeswalked off the job en masse during May, 1980. Duringa July 1986strike in Philadelphia, sanitation employeeswerejoined by nearly 10,000 other strikers whoshut downlibraries, museums,and swimming pools. In April 1991, 5,000 Montanastate employees,representing almost every state agency, struck for several days, requiring National Guardtroops to staff prisons and the MontanaCenter for the Aged. Public employeeworkstoppagesremaina regular activity in the five states noted above, as illustrated by the nine-daySeptember,1999strike by the 11,500memberDetroit Federation of Teachers over school board reform proposals. But they have attenuated in most other jurisdictions. Nonetheless, argumentsfor and against the strike continue to be debatedamonggovernmentofficials, unionleaders, academics,the media,and others. The next section reviewsthe philosophical and practical points in the debateover the legitimacyof strikes by public servants. A. The Right to Strike in Public Employment The strike issue has been called "the most controversial, urgent, and misunderstood problem of labor relations in public employment"(Spero and Capozzola 1973:239).The central query to be dealt with here is as follows. Is it equitable and realistic to deny public employeesthe right to strike while guaranteeingthe same right to private workers in vital sectors of the Americaneconomy? 1. The Sovereignty Argument For years, those whowoulddeny the right to strike to all public employeeshave trotted out the now-staleargumentof sovereignty. In his adamantrefusal to concede the right of Bostonpolice officers to strike against the city, Massachusetts GovernorCalvin Coolidge charged the officers with "desertion of duty." The mayorof Cincinnati called the 1918strike by that city’s police "the most das-

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tardly crime ever committedin the City of Cincinnati" (Ziskind 1940:3,37). Both men,along with other presidents, governors, mayors, and judges, were staunch believers in the notion that a sovereign governmenthas the inherent and unique fight to weigh the merits of disputes in whichthat governmentis a party, "in order to head off insurrection, rebellion, and eventual anarchy"(Capozzola1979: 178). Mostscholars date the origins of the sovereignty doctrine to Englishman ThomasHobbes,whoset forth the argumentsfor a sovereign state in Leviathan. Assertions that "the King can do no wrong"were translated into the American experience through the bodyof common law planted along with the spring crops by early Englishsettlers. Withrespect to public employeestrikes, the sovereignty doctrine asserts that because, constitutionally, sovereignty is vested in the people of this democratic nation-state, permitting governmentworkersto strike surrenders, to a special interest, governmentauthority to determinepublic policy. In theory, this constitutes a direct challengeto the peoples’will; in practice, it creates a climate of disrespect for governmentand the law. In theory and in principle this is a legitimate concern. However,events have madethe practical applicability of the sovereignty argumentsuspect. The "sovereign" powerof the state has long been waived,delegatedto, and shared with various entities, especially interest groups, firms, and various other entities (see Lowi1979). Furthermore, public workers legitimately view the conceptas a legal ruse to clothe governmentwith the absolute right to act not onlyunilaterally and paternalistically but also arbitrarily and capriciously in determiningall facets of the employment relationship. Perpetuation of the mythshields inept administrators, blinds the vision of competentones, and enables irresponsible managersto escape their responsibility and retreat behind a curtain of sovereignty (Capozzola1979:179). Finally, the sovereignty argumenthas beenlaid to rest in those states that have in recent years, through democraticprocesses, permitted strikes by public employeeswithout political, economic,or social collapse. Sovereigntydoes not, in fact, preclude governmentfrom entering into collective bargaining arrangementsor legally establishing the right of public employeesto strike. Today,the sovereignty argumentis seldomheard in the public employeestrike controversy. 2.

Distortionof the Political Process

Critics Harry H. Wellington and Ralph K. Winter (1971:25) argued that public employeestrikes threaten the survival of the "normal"political process by giving public sector unions political and policy advantages over other interest groups. This excessive power, augmentedby union lobbying and voting activities, distorts the political process and diminishesdemocraticdecision making. Like sovereignty, this is an ill-defined and ambiguousargument.For example, what is the "normal" political process? Whereis the evidence of "distortion"? (Sterret and Aboud1982:8-9). Wellington and Winter’s overstatement

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of the problemis probably a product of the time in whichthey wrote The Unions and the Cities (the late 1960s), a period of strong emergentunionismin governments administered by unprepared and weakpublic managers. 3.

Lack of Market Constraints

In the private sector, high labor costs tend to be held downby competitionand consumerproduct demand.Pay hikes must be accounted for by raising product prices or, less commonly, improvingproductivity. If labor costs rise excessively, consumerswill purchase their goodsand services from another producer, substitute for them, or do without. It is arguedthat in the public sector no such market constraints exist, becausepublic services are monopolies.Thereis little or no opportunity for comparisonshoppingby citizens. Thus, unions can makeextravagant demandsand win them by threatening to strike. This line of argumenthas been rebutted on numerousoccasions (Burton and Krider 1975; Capozzola1979; Fowler 1974). Marketconstraints do operate during public sector strikes. Employeessacrifice wageswhile tax revenues continue to accrue to the governmentemployer; the workers often come out net financial losers. Althoughno profit motivecan be said to exist in the public sector, there are, frequently, strong political pressures broughtto bear on public sector unionsto forego the strike or to settle quicklyin the event one transpires. Public officials are also under great pressure not to raise taxes or fees, especially to fund employeecompensationincreases. Pushedtoo far, city councils and state legislatures mayseek to subcontract governmentservices to private and nonprofit providers, thereby creating competitionin the marketfor public goods. 4.

EssentialServices

Accordingto opponentsof the right to strike, public employeesare engagedin providing services essential to the community.A strike poses unacceptable threats to the public health, safety, and well being, and promptspublic officials to cave in to public pressure to settle with the union. Onecritic comparesa public employeestrike to a siege, in which an "indispensable element of the public welfare.., is madehostage by a numericallysuperior force and held, in effect, for ransom" (Saso 1970:37). However,it is clear that not all governmentservices are essential to the public’s immediatehealth, safety, and well being. Teacherstrikes, for example, have lasted for months, disrupting the school year and the lives of pupils and parents. But it is very unlikely that any long-termdamageto the students or the parents has resulted (Thornicroft 1994). Strikes by police, firefighters, and, someinstances, sanitation workers are muchmore serious and mayindeed pose a threat to the well being of citizens. It mustbe recognized,however,that state law enforcementpersonnel have successfully assisted nonstriking police officers in maintaininglaw and order, that volunteer fire departmentseffectively protect

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a muchlarger geographicalarea of the UnitedStates than municipalfirefighters, and that mostpeople are not incapableof delivering their owngarbageto landfills or central collection stations. It should further be recognizedthat manygovernmentservices are contracted out to private and nonprofit organizations, including private schools, sanitation companies,private security firms, and various health care organizations. Suchfunctions are not so essential that they cannotbe handled adequatelyin the private sector. It is also importantto understandthat someservices traditionally provided by private and nonprofit concerns are morecrucial than manypublic services. This fact has beendemonstratedby the serious impactof strikes by railroad workers, coal miners, utility employees,truckers, and nursinghomeand hospital workers. TheTaft-Hartley law recognizesthe essential nature of these and other functions in the private sector by providingfor presidential and congressionalactions to help contain and settle a strike posing a threat to the well being of the nation. Unfortunately, there is no cut-and-dried solution to determinewhichpublic and private sector services are "essential" and whichare not. If there were, then logic woulddictate that all strikes by workersin critical functions--regardless of sector of the economy--be prohibited. But it is very difficult to separate essential from nonessential services, especially whenmatters of strike location and duration are considered along with various extenuating circumstances (such as season of the year during sanitation strikes). There have been someefforts to categorize work stoppages in accordancewith their essentiality. For example, Burton and Krider (1975) suggest identifying governmentservices as essential (police and fire protection), intermediate(sanitation, health care, transit, water, sewer), and nonessential (education, streets, parks, recreation, welfare, general administration). Strikes wouldbe prohibited for essential services and permitted for intermediate services unless they presented a threat to citizens’ health or safety. Workersin nonessential functions wouldbe granted the right to strike. Somestate lawspermitting a limited right to strike havetaken this approach(e.g., Alaska). To manypublic workers and their unions, the claim that public servants shouldbe saddledwith special responsibilities and constraints on their labor activities does not hold water. Since the social turmoil of the 1960s, governmentworkers haveincreasingly insisted uponhavingthe samerights of citizenship as their private sector counterparts, including the fight to walk off the job. As Speroand Capozzola(1973:269-270)put it, "The legalistic public-private dichotomyhas little relevance to the municipal employee. He has the same dreams, desires, fears, frustrations, problemsand hopes as his counterpart in private industry. Excessive theorizing falls on deaf ears, as the municipalworker pays the same taxes, buys the same food and shelter, and has no more immunityfrom disease than a private employee."Shouldn’tthey enjoy equal protection under the law, as long as a strike does not present a clear and immediatedanger to the community?

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Strike bans are not particularly effective, and are sometimesignored. Strikes will continue to occur whetheror not they are legally forbidden. As a study commissionnoted in Pennsylvania, in recommending the fight to strike, "Twentyyears of experience [under a no-strike law] has taught us that such a policy is unreasonableand unenforceable,particularly whencoupledwith ineffective or nonexistent collective bargaining" (see Schneider 1988:199). Moreover, public managementhas gained experience contending with strikes, and whenit receives greater public support than the union, it can wina strike. Striking public workersdo not get paid, and public sector unions do not normally maintain strike funds. Yet governmentrevenues continue to comein, improvingthe employer’sfinancial position (unless the strike does, indeed, ultimately accomplish the financial objectives of the union, including paymentof strikers’ wages).In addition, a public management skilled in mediarelations can channel almost unbearable public pressure on a striking union and help force concessionson its leaders. To return to the querythat openedthis discussion on the right to strike in public employment:is it equitable and realistic to deny public employeesthe fight to strike while guaranteeing it to private sector workers.Legislatures or courts in 13 states havelegalized a limited right to strike for certain categories of state and local employees.There is no tidal wave, but others mayfollow. B.

Legislation Pertaining to Strikes

In private employment,the fights of workers to strike and employers to lock them out are viewedas essential componentsof the free process of collective bargaining, as legally embodiedin the National Labor Relations Act. In public employment the right to strike traditionally has been denied by various federal and state laws. Federal employees,in the only section of Taft-Hartley applying to governmentemployment(Section 305), are categorically forbidden to strike and threatened with immediatedismissal and forfeiture of civil service status. In addition, striking federal employeesare not eligible for reemployment for three years. Federal workers are also forbidden to strike by Public Law330 (1955) and the 1978 Civil Service ReformAct. Membersof the ArmedForces are prohibited from striking by Departmentof DefenseDirective 1354.1. Followingthe Boston police strike of 1919, a series of anti-strike ordinances were adopted by numerouscities, including Salt LakeCity, Philadelphia, San Antonio, Chicago, and Detroit. The U.S. Congress passed a law outlawing the strike in the District of Columbia.A secondwaveof strike prohibitions came just after WorldWarII, as nine states enacted laws banning the strike along the lines of Taft-Hartley’s prohibition against federal employeeworkstoppages (Virginia, Michigan, Missouri, Nebraska, NewYork, Ohio, Pennsylvania, Washington, and Texas). The constitutionality of these various strike prohibitions has

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been consistently upheldby the courts. In addition, most state courts (with five exceptions) haveheld that state employeeshave no right to engagein workstoppagesin the absenceof legislative authorization. Someor all public employeestrikes are outlawedin 35 states throughstatute, court decision, or attorney general opinion. Furthermore,the vast majority of collective bargainingcontracts contain no-strike clauses intended to prevent stoppages during the life of the contract. (A typical clause reads, "The union and its employeesexpressly agree that there will be no strikes, slowdowns,picketing during working hours, work stoppages, mass absenteeism, mass feigned illness, or other forms of interference with the operations of the police department.") Nonetheless, public employeeshave struck repeatedly. From1958 to 1968 no state authorized the strike for any of its workers, but the numberof public employeestrikes increased 17-fold. Penalties were infrequently invoked against striking union membersor their organizations. In recognition of the failure of strike prohibitions to prevent government workstoppages, 10 states have nowlegislatively granted at least someof their employeesa limited right to strike. Vermontwas the first: Act No. 198 of 1967 provided that local governmentworkstoppages are prohibited only if the strike is found to endangerthe public health, safety, or welfare. Pennsylvaniafollowed with permissive legislation of its ownin 1970; Hawaii, Alaska, Montana,Oregon, Minnesota,Wisconsin,Ohio, and Illinois completethe list. In addition, state supremecourts in California, Colorado,Idaho, Louisiana, and Montanahave upheld the fight of public employeesto strike. Table 8.2 summarizesthe policies of those states that havelegalized the strike throughlegislation. Mostof these statutes specifically excludecertain essential employeesfrom the strike right, particularly police, firefighters, correctionalofficers, andhospital workers. Mostalso require compliancewith specific pre-strike provisions, such as mediation,fact finding, andprior notice. All of themhavetriggers that prohibit strikes in cases involvinga threat to the public health and safety. In Montana,Louisiana and Colorado,state supremecourts applied the private sector right to strike principle to public employment. But the judicial action withthe greatest potential influencein other states occurredin 1985in California, wherethe state supremecourt ruled that in the absenceof express statutory languageforbidding the strike, local governmentemployeescould legally walk off the job (CountySanitation District 2 v. Los Angeles CountyEmployeesAssociation, Local 660 1985). TheCalifornia SupremeCourt has a reputation as a trendsetter amongthe state high courts, and its opinions are widelydisseminated.In this particular case, the court systematicallyexamined,then dismissed,traditional argumentsagainst public sector strikes. It concludedthat the conventional common-lawprohibition against strikes was outdated and without merit, and that the right to strike wasconstitutionally protectedas a necessarycorollary of the right to join a union (Hogler 1986).

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TABLE 8,2 PermissiveState Strike Legislation, 1999 State

Employees covered

Alaska

All public employees

Hawaii

All publicemployees

Illinois

All publicemployees

Minnesota

All public employees

Policy Rightto strike for semiessential andnonessential workers. Police,fire fighters,correctional workers,and hospital employees maynot strike. Limitedstrikeright for publicutilities, sanitation, snowremoval,and schools,after exhaustion of mediation.Otherworkers maystrike uponmajorityvote. Strikepermitted after exhaustion of impasse resolutionproceduresand60daysafter issue of fact-findingreport.Ten-day noticeby unionis required. Strikesendangering public healthandsafetyareillegal, asarestrikesbyfirefighters andotheressentialemployees. Mediation andfive days’notice required priorto strike. Prohibited if strikeconstitutes a clear andpresentdangerto public healthandsafety.Firefighters, lawenforcement, andsecurity employees maynot strike. Strikesprohibitedexceptwhere employer refusesrequestfor bindingarbitrationor refuses to submitto arbitrationaward. Teachers haveright to strike followingexpiration of contract, 60daysof mediation, and10days’notice. Nonteachinglocal employees and state employees maystrike afterexpiration of contract, 45 daysof mediationand 10days’notice.Nostrikes by essentialemployees.

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TABLE8.2 Continued State Montana

Ohio

Oregon

Pennsylvania

Vermont

Wisconsin

Employees covered

Policy

Strikes permitted.Nurses mustgive 30 days’notice; noother nurses’strike may occurwithin 150miles. All public employees Mediation, fact finding, and 10days’ notice required prior to strike. Nostrikesby publicsafety personnel. All public employees Strikes permittedafter completion of mediation andfact finding, elapseof 10-day strike notice, and30-day cooling-offperiod.No strikesbypolice,firefighters, or hospitalguards. All public employees except Strike permittedafter exhausprison guards,court employ- tion of impasse resolution ees,police, andfire procedures, unlessstrike presentsclear andpresent dangerto public health, safety,or welfare. Municipal employees Strikes permitted30 days after fact-findingreport whereparties havenot agreedto arbitration and thereis nodangerto public health,safety,or welfare. Teacherstrike maybe prohibitedbycourtsif it endangers a soundprogramof education.Nostrikes by state employees. Municipalemployees, Strikepermittedif bothparties teachers withdraw their final offer, and10 days’ notice by union.Strikeis illegal if it posesimminentthreat to publichealth,safety,or welfare. Nostrikesby police, firefighters, or state employees. Publichealth nurses

Source: Government Employee RelationsReport(variousissues);Cimini(1998:33-34).

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The CountySanitation decision appeared to infringe on the proper policy domainof the legislature, and it contradicted long-standingprecedentthat public employeesdo not possessthe right to strike withoutexplicit authorizationthrough statute (Hogler 1986;Baird 1986). A spate of criticism of the court’s reasoning ensued, accompaniedby concern that the decision wouldpromptsimilar findings in other states not expressly prohibiting strikes, and a hope that the California legislature wouldoverturn the court ruling through legislation. So far, no other courts havereacheda California-typeconclusion. Prospects for emulationby other states appear to be limited by the questionable logic supporting the opinion of the very liberal court of Chief Justice Rose Bird, who, along with twoof her colleagues on the court, wasdefeated at the polls the year following the CountySanitation case (the principal reason for her loss was her unwaveringstand against the death penalty). The mostpoignant issue, after all, does not concern the strike right, whichhas been established in a significant numberof states. It concernswhichpolitical institution has the proper authority and responsibility to decide if strikes by governmentworkersare to be permitted, and, if so, underwhat conditions and restrictions. C.

Public Policy and the Incidenceof Strikes

The relationship betweenstate policies on strikes and the incidence of public employeework stoppages presents an interesting and very important question for empirical analysis. Unfortunately, research has been hamperedby methodological problemsand the lack of comprehensive,reliable comparativedata on public employeeworkstoppages since the federal governmentstopped collecting it in 1981. Further compounding the difficulty of assessing the results of permissive and restrictive strike laws are the effects of various political, economic,and labor force factors on strike incidence. However,published research does permit us to drawseveral conclusions. First, a statutory prohibition against strikes maydiscouragethem, but it clearly does not prevent them. This general finding holds both in states that mandate or permit collective bargaining and in those states that do not provide for bargaining. Studies do indicate that the nature of sanctions imposedon striking workersand their unions are related to strike activity. Specifically, consistently enforced penalties tend to reduce the incidence of workstoppages. Second, compulsoryinterest arbitration tends to reduce strike activity. Strikes are least likely to occurin states that providefor the alternative of compulsory arbitration (Olson1988:165;Partridge 1996). (Alternatives to the strike addressed in Chapter 9.) Third, the effects of permissivestrike policies apparently vary from state to state, and by employeefunction. Strike frequencyincreased markedlyin Pennsylvania following enactmentof a limited right to strike in 1970. Teachersand

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other nonuniformed,local governmentworkers so commonly walked off the job in the KeystoneState that it impairedthe state’s ability to attract newbusiness (GERR1985). Teacher strikes occurred morefrequently in Pennsylvania during the 1970sand 1980s than in almost any other state. Otherstates legally permitting the strike have experiencedno greater incidence of workstoppages than those that prohibit it. Anexaminationof strikes four years before and four years after the adoption of permissive strike laws reveals in most states a brief jump in the numberof work stoppages, then a decline to earlier levels (Sterret and Aboud1982:41-46).Vermont,the first state to enact a permissivelaw, did not experienceits first strike until eight years later. Studiesof strikes in Ofi{o, Illinois, and Minnesota,followingpassageof collective bargainingstatutes legalizing workstoppagesfor certain categories of employees, found a decrease in strike activity in all three states (GERR1990:991-992;Ley and Wines 1993). Clearly, most public employeeunions do not look uponpermissive strike policies as an open door to walk out. Teacher exceptionalism in Pennsylvania and several other states is morea result of state or school district policies that reschedule missedschool days than of strike policies. Jurisdictions mandatinga fixed number of workdaysduring the school year typically reschedule days misseddue to teacher strikes by extendingthe school year or canceling holidays. Thus, the financial costs of striking are lowfor the teachers, whoare paid later for the days they miss while on strike (Olson 1988:161). D. WhyPublic EmployeesStrike Withthe exception of periodic localized outbursts, public workersuntil 1965 generally were perceived to be meekand humbleservants of the people. "Public employeeswere so docile a group that they scarcely seemedpart of the American labor movement.Public work was regarded as a short step above the dole, the refuge of lazy, dimwitted people willing to exchangea decent wage and the respect of their fellow menfor security and an undemanding job. Public employee uprisings were few, and they met severe censure" (Williams 1977:13). Federal employees,in particular, "had beenrelatively passive for two decades, they werethought to havebeen professionalizedinto objective, politically neutral competence,cleansed of radicalism by three decadesof loyalty oaths and security investigations, and madeboth happy and prosperous by very generous salary increases. The outbreakof protest in the federal service obviouslyjarred these conceptions" (Hershey1973:xi). Whythe suddenmilitancy of public workers in the 1960s?Whydo they continue to engagein disruptive job actions today? Until the early 1980s, the Bureauof LaborStatistics recorded the major reason given for work stoppages in industry and government.Since 1964, more than half of all private sector strikes have been attributed to wageand benefit

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disputes (about 52 percent). The next most frequently mentionedreasons are "plant administration" (about 17 percen0; this category includes such reasons as conflicts with supervisors or serious disagreementswith management decisions; "union organization and security" (approximately 15 percent); and "interintra-union matters" (about 12 percent; e.g., union representation battles). The figures are fairly similar for the public sector, with economic disputes also fostering the most strikes (65 percent), then unionorganization and security (14 percent), and administrative matters (13 percent). Inter- and intra-union matters have accountedfor only I percent of governmentworkstoppages since 1964, as public sector unions havelargely avoidedthe destructive organizingconflicts that characterized the private sector during unionization. That economicissues have provokeda larger percentage of strikes in governmentreflects the morerecent inception of widespread collective bargaining in public employment;wageand benefit issues usually top the union list of demandsin a newbargainingrelationship. Of course, the official reasongiven for a workstoppagereveals little about either the broader macrolevelfactors related to a strike, or the moreimmediate process-related variables that contribute to a complete breakdownin negotiations. 1.

Macrolevel Factors

In the private sector, until the last decadeor so, there was a strong association betweenunions’ propensity to strike and prevailing business conditions (often referred to as the business cycle). Workstoppages had a tendency to increase during periods of rising prices and falling unemployment,and decrease during economicrecessions. For example, postwar boomperiods following World War II and the wars in Koreaand Viet Namsaw a substantial rise in the numberof work stoppages (Ashenfelter and Johnson 1969). Economicexpansion usually meansplentiful job opportunities; a striker whois permanentlydismissed should be able to find another position. Conversely,during periods of economicdecline, unemployment levels rise and jobs are hard to locate. Workersare less likely to risk being fired for a job action. Therelationship betweenstrike activity and the business cycle has been similar in public employment (Partridge 1991). Whathas changedrecently is the nature of job opportunities. Private sector manufacturing workerspermanentlyreplaced during a strike mayfind it very difficult to locate a similarly paid job today becauseof the enormousshift in employment to informationtechnologyand the service sector. In the private sector, strikes also are related to the nature of the industry and the work involved. Strikes are more commonamonghomogeneousgroups of workers whohave little opportunity for economicadvancement(e.g., coal miners). Physical labor (unskilled or semiskilled), unpleasant or dangerouswork

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surroundings,and seasonal casual jobs are positively associated with strike behavior as well (see Burton and Krider 1975). Similar patterns are evident in the public sector. The largest numberof strikes has been by homogeneous unions of teachers, police, firefighters, and sanitation workers. Workingconditions are highly variable in these occupational categories, but dangerous situations are not uncommon in any of them (e.g., teachers in inner-city schools; sanitation workersloading, compacting,and unloading solid waste), and one can imagine few jobs moreunpleasant than intimately workingall day with garbage. 2.

MicrolevelFactors

Three types of microlevel variables are related to strike activity: demographic and attitudinal factors, bargaining powerand costs of disagreement,and faulty negotiations. (a) Demographicand Attitudinal Factors. Although male teachers are moremilitant and strike-prone than female teachers (Fox and Wince1976; Greet and Brown1982), gender seemsto be insignificant for other occupational categories in business or government. Ageis more important. Older employees, who havethe mostto lose and the least to gain froma strike, tend to be moreconservative about a job action (Makiand Strand 1984). Educationlevel is also related to strike behavior;the higher the level of schooling, the lowerthe propensityto strike (Maki and Strand 1984; Shutt 1982). Research further suggests that job satisfaction, favorable attitudes toward the employer, worker autonomyin the workplace, and progressive humanresource management practices are negatively related to strike activity (Ng 1991; Goddard1992), and that those moststrongly committedto the union are morelikely to vote for a strike than less committed membersof the bargaining unit (Wheeler 1985). (b) Bargaining Power and Disagreement Costs. The bargaining power of the respective parties influences strike behavior. Burtonand Krider (1975) measurebargaining poweras the union’s "ability to obtain wagesgreater than the employerwouldhave voluntarily paid on the basis of market conditions." Theyassert that strong unions are less likely to strike than weakunions because they tend to accept less than whatthey could actually get througha full flaunting of power (which would harm the competitive market position of the employer) and because the employertends to give them "more"in order to avoid a costly and painful confrontation. Relative bargainingpowerfluctuates with economic and employmentconditions, union membershipstrength and commitment, the union’sability to control the labor market,effectivenessand leadershipskills of management and union negotiators, public opinion, and an almost limitless numberof other factors that vary, in government,by service function and em-

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ployer. Despite impressive attempts (see Rees 1973), no single simple equation has beenderived to represent all the vicissitudes of public-sector bargaining,nor is it likely to be. Furthermore,the relationship of the strike to bargainingpower is nebulous:"strikes maybe a manifestation of weakness,as well as a demonstration of power" (Spero and Capozzola 1973:250-251). Notwithstanding the extreme complexityand turgidity of the bargaining powerconcept, one aspect of it can furnish someuseful insights into a bargaining relationship, including the workstoppage. Unionand management costs of disagreeing up to and beyondthe threat of a strike maybe calculated, either mathematically or less precisely, to help disinter true attitudes and beliefs--or where the parties are "comingfrom." In Theory of Wagesand Employment,Alan M. Cartter (1959) views strikes from just this perspective, as represented by the following equation. Costs of Disagreeing with Y = Bargaining Attitude of X. Costs of Agreeing on Y’s Terms If values equal unity (one), then X will settle on Y’s terms. Oneexamplehas already been mentioned:teachers’ costs of attempting to settle a bargainingdispute througha walkoutare lowerin jurisdictions that mandate a fixed numberof days in the school year, and thus permit strikers to make up lost days on holidays or during the early summer.Wherestrikes result in a reduction in school days, or whereschool districts fill in for striking teachers with substitutes, the costs of disagreementare considerablyhigher. Similarly, as discussedbelow,the costs of striking are higher in jurisdictions that enforcesanctions as a matter of course, and lower wherestrike penalties are rarely applied or often forgiven. (c) Faulty Negotiations. Strikes may ensue from what Hicks (1932), manyyears ago, called "faulty negotiations." This ensues whenone or both parties err in assessing the other’s true bargainingposition, willingnessto engage in a strike, or understandingof a "reasonable"settlement. "Faulty negotiations" is as illusive an explanation for workstoppages as bargaining power, but there are manyinstances in whichthe bargaining process clearly collapses becauseof inept negotiators, personality conflicts, unrealistic demands,or, in general, communicationsbreakdownsor the lack of good faith bargaining. Aninteresting exampleof faulty negotiations was the 232-daybaseball strike in 1994to 1995. For players and owners,any concept of mutualgains bargaininghas beenas elusive as the triple play. Eight workstoppageshave been experiencedsince 1972, one for each collective bargaining contract expiration. Players and ownersdistrust and disrespect one another and have even resorted to name-calling."Strong-willedand abrasive personalities" on the part of negoti-

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ators and hostile negotiating styles have plagued baseball and kept the parties widely apart (Staudohar 1996:24). Evenpresidential intervention and appointment of perhaps the nation’s most respected and experienced mediator, William J. Usery, Jr., failed in 1995. The strike was finally endedwhena U.S. District Court judge issued an injunction against the ownersfor unilaterally imposinga salary cap (Staudohar1996). Faulty negotiations because of severe personality conflicts characterized the BayArea Rapid Transit strike of 1997. While union and management representatives deadlockedover minor issues and denouncedone another in dueling press conferences, the strike of 2,600 SEIU-affiliated workersinconvenienced some275,000masstransit riders for several days (Faganet al. 1997). Another exampleof faulty negotiations is documentedin Case Study 8.3.

CASE STUDY8.3:

FAULTY NEGOTIATIONSIN MEMPHIS

The Mississippi River City of Memphis,Tennessee, has never had the reputation of being a kind host to labor unions. The political machineof "Boss" E.H. Crumprespondedharshly to early organizing efforts by firefighters, teachers, police officers, and custodial workers,telling themto quit the unionor find another job. Boss Crumpdied in 1954, but anti-labor attitudes survived, successfully repressing union organizing by public employeesuntil 1964, whensanitation workers chartered local 1733 and affiliated with AFSCME. The garbage workers were driven to the union by extremely poor wagesand workingconditions. Pay was so low that garbage collectors were reduced to "ragging" householdtrash for salvageable items. Workingconditions were filthy and dangerous, and employees were subject to whimsicaldismissal or suspension by supervisors. Only drivers, the majority of whomwere white, received paid vacations. All of the trash collectors were African-Americanmales. The sanitation workersattempted to strike in 1963and again in 1965, but each time failed because of poor organization and a lack of support from the historically submissive black community.By 1968, however, the Civil Rights Movement, rising expectations on the part of blacks, and the election of white conservative Henry Loeb as mayorled to a moodof greater militancy in the black community.OnFebruary 12, 1968, the sanitation workers walkedout with widespread black communitysupport. The triggering incident cameon a rainy day when35 African-Americanworkers were sent homewithout pay while their white counterparts were allowedto stay on the job for a full day’s pay. MayorLoebrespondedin a fashion appropriate to the city’s violent labor history. Marcherswere macedand clubbed by white police officers, and scab laborers were hired to collect the garbage. Loebrefused to negotiate until the

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1,100 strikers returned to work. Arelatively minorbreakdown in labor relations suddenlytook on the dimensionsof a major racial confrontation. Paternalistic pressures and threats of dismissal failed to movethe striking sanitation workers. Negotiationswerenot held at all during the initial 40 days of the strike. Whendiscussion did begin, Loeb’sintransigence and the inexperience of negotiators on both sides of the table undermined the chancesof a settlement. WhileMemphis residents carted their owngarbage to pickup stations, the strikers held numerousmarchesand successfully implementeda boycott of white downtownmerchants. Assisted by 4,000 Tennessee National Guardtroops, Loeb imposeda dawnto dusk curfew on the city. Underpressure from the business community,the city reopened negotiations and attempted to makea settlement. The assassination of Dr. Martin Luther King, Jr., at a Memphismotel on the fourth of April and ensuingnegative national publicity exerted tremendousadditional pressure for a labor agreement. (King had led a marchin sympathywith the strikers.) Withthe assistance of a federal mediatorsent by President Richard Nixon, a memorandum of understanding was signed by both parties ending the 65-daystrike. The city granted most of the union demands,including merit promotion, a grievance procedure, and recognition of Local 1733 through a dues checkoff system. An anonymous benefactor of the city donated $50,000 to make up the wagedisparity betweenthe final offers of the city and the union. Satisfied, the sanitation employeesreturned to their jobs. Mayor Loeb had remained adamantly opposed to union recognition and the dues checkoffuntil pressures from the local business community,the Governor, and finally the President of the UnitedStates movedhiminto makingconcessions. The sanitation agreementburst the labor damin Memphis.Hospital workers were organized by AFSCME in 1973, and firefighters created an IAFFlocal. Anuneasy peace characterized municipal labor relations throughout the early 1970s under the administration of a new mayor. Then, during the hot summer of 1978, "faulty bargaining" resulted in a newepisode of labor turmoil. This round commenced on the first of July with a three-day strike by firefighters over pay parity with police and the length of the next contract. Thewalkout wasa violent one, with tire slashings and incidents involvingarson. It continued with a walkout by 1,100 membersof the MemphisPolice Association (MPA) on the 10th of August, following the MPA’srejection of the city’s wageoffer, stalled mediationefforts, and an unsuccessfuleffort by police, firefighters, and teachers to recall MayorWyethChandler from office. Chandler, cut from the samelabor relations cloth as former mayorHenryLoeb,had first alienated Memphis city employeesduring negotiations the previous year whenhe convinced police and firefighters to accept a small wageincrease becauseof the city’s alleged inability to pay more.Shortly after the agreementwas struck, a $1.5 million budgetsurplus miraculouslyappeared,leaving unionnegotiators feeling like utter

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fools. Newunion negotiators wereelected to bargain with the city during 1978. The city’s bad-faith bargaininghad left city employeesfull of frustration and resentment. These feelings surfaced openly whenthe police struck on August9, 1978. MayorChandlerand his administration were prepared: they quickly implementeda strike plan that included a 6 A.M.to 8 P.M. curfewand the assumption of law enforcementduties by police supervisory personnel, sheriff’s deputies, and the TennesseeHighwayPatrol. The National Guardwas placed on alert. The next morning,the city obtained a temporaryrestraining order against the strikes in ChanceryCourt. Police officers ignored the court order; a strike injunction and back-to-workorder were secured, but these, too, were rebuked. Onthe night of August12, MayorChandler, following a script seeminglywritten in the Bluff City manyyears before, ordered the dismissal of all police employeesnot returning to duty within 24 hours. OnAugust15, 1,400 firefighters walkedoff the job in a wildcat strike to express solidarity with the MPAand their ownlingering frustrations with the city. Chandlerdeployedthe National Guard, had 50 police arrested for violation of curfew, and threatened to withdrawcity recognition of the unions. Thenthings beganto get nasty. Tires on patrol cars wereslashed; rocks and bricks weretossed through windowsat police headquarters. On August17th saboteurs caused a 2l/2 hour powerblackout of Memphisand Shelby County; looting quickly spread throughoutthe city. Arsonists also had their day: over a single 24-hour period, 166 homeswere burned, comparedwith a normof six or seven house fires per day. Onceagain, outside parties were forced to enter the picture to push an uncompromisingmayorwholacked negotiation skills into a compromise.Communityleaders, fearing a loss of business and city prestige, joined with AFLCIOofficials and federal mediatorsto persuadeall parties to agree to contracts by August19 and return to work.The Governordid his part to promotesettlement by billing the city for the services of the National Guard(over $1 million) and assessing an additional fee of $65,000per day until the strike ended. Negotiations during the labor troubles of 1968 and 1978were "faulty," to put it mildly. Thesanitation workersin 1968werenot sophisticates in their initial set-to witb the city; police and firefighters wereattemptingto negotiate without a great deal of prior experienceas well. Perhapsunionexpectations were too high, and union leadership naive. Nonetheless, the city’s elected leaders showedan almost completelack of flexibility, little or no spirit of compromise, and a consummatedearth of negotiating skills. Loeb and Chandler, by making offers and insisting, in the spirit of Boulwarism, that the unions"take it or leave it," left no opportunity for union leaders to claim concessionsfrom City Hall. The rank and file could not help but be resentful. Of course, the unions werenot

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without blamethemselves. Tire slashings, property damage,arson, and violence pervaded the city during the strikes of 1978 and turned an already anti-labor citizenry vehementlyagainst the unions. The 1978 round of work stoppages did provide someimportant "lessons learned" to the citizens of Memphis.During the November municipal elections that same year a charter amendment was approvedthat prohibited municipal employeestrikes, providedstrong sanctions against strikers, and established impasse resolution proceduresgranting the city council the powerto makefinal contract decisions upon a lack of settlement by a specified date. WyethChandler was reelected as Mayorin 1979, but whencontracts expired the next year negotiations were conducted in a relatively peaceful atmosphere. The MPAsigned a threeyear contract in 1980;firefighters ratified a two-yearagreement,as did AFSCMErepresented employees. MayorChandler maynot have picked up manynewnegotiating skills but clearly the unions werewilling to give the newlabor relations procedures an opportunity to work. Labor-managementrelations in Memphis during the 1980sand 1990swere still unsettled and highly adversarial, but major work stoppages were avoided. Questions 1. Howcould the strike situations under the Loeband Chandler administrations have been avoided? 2. Whichside was at fault during the crises--unions or management? Defend your answer. 3. Whatrole did race play in the turmoil? 4. Whyhasn’t Memphismovedto privatize sanitation services? In the perfect world envisioned by someeconomists, negotiators for both sides wouldhave completeinformation and full knowledgeof all important variables, including the other party’s true position. A Pareto-optimalsolution would be devised at the bargainingtable; both would"win." Unfortunately,this perfect worldis ineluctably contaminatedby divergent interests and perceptions of reality, schisms within the ranks of both management and labor, unequal bargaining power,the Hydraof public opinion, intense personality conflicts, diabolical political machinations,and uncountablerelated factors, eventhe genderof chief negotiators (Montgomery and Benedict 1989:389). Faulty negotiations maybe minimizedby experience and maturity. Reder and Neumann(1980) argue that bargaining parties develop protocols to reveal indirectly whereeach truly stands on the issues. As the parties becomefamiliar witheach other, the likelihood of a strike occurringbecauseof faulty negotiations is reduced. This view is supported by the higher incidence of strikes in new bargainingrelationships, and research findings that experiencednegotiators make fewer mistakes in assessing their opponents’ actual position (Montgomery and

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Benedict1989). Thegreater the bargainingexperience,the less the likelihood of strike. Carried to the extreme, secret agreementsbetweenunion and management negotiators can even makebargaining a charade with most important outcomes predetermined. A. Strike Tactics 1. The Union Workstoppages usually follow a formal majority vote of the union membership after rejection of the employer’slast offer. Workersolidarity is important. The strike meetingitself is "run with all the hooplaa union can muster. Unionhalls reverberate to the soundsof shouts, whistles, and applause.., an effort is made to secure unanimousapproval. Meetingsare used as a showcaseto provide the most devastating political impact possible" (Spero and Capozzola1973:128). The union must movequickly to build up maximum pressure on the governmentemployerand elected officials. Timingthe strike and its announcement to have the fullest impact is important to the union also. For example, maximum media coverage norn~ally is available Mondaythrough Thursday; a strike announcementover the weekendcan go relatively unheralded. Similarly, little immediate impactis registered if transit workerswalkoff the job on a Saturday. Whenthe Bay Area Rapid Transit (BART)unions struck on a Mondayin 1997, service on the 93-mile commuter rail systemwas curtailed, inconveniencingsome 275,000passengers. Pressure tactics must be applied quickly: newsconferences, massmeetings, mediaadvertisements, lobbying, and picket lines all help apprise the public and elected officials of the union’s point of view. Picket lines have high visibility and, if other union membersrefuse to cross them, they create powerfulnewpressures on public officials and management.U.S. Postal Service employees,for example,picketed at post offices across the country in 1999to drawattention to the lack of progress on a newcontract. Picket lines thrownup by striking janitors, maintenance workers,sanitation employees,and others in Hawaiiforced a shutdownof the docksand the Honolulu bus systemwhenworkersrefused to cross them. In Detroit, picket lines disrupted garbage collection and bus service. Of course, public employeesmust take care not to affront citizens too greatly: after the 1980NewYorkCity transit strike it was reported that passengersverbally and physically abusedreturning bus drivers and subwayconductors. The strategic timing of a workstoppage was perhaps no better illustrated than in the 1979 walkout by NewOrleans police. In this case, the Teamstersaffiliated unionannouncedits strike on the Friday night before MardiGrasweekend. Overmorethan 120 years, the internationally famedfestival had been canceled only seven times--five times during war and twice for epidemics. The walkout,officially over bargainingrights for management-level police officers,

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fringe benefits, and certain workingconditions, also involvedrivalries between two police unions, and racial overtones (the mayorwas black, the police force largely white). The strike threatened to wreakeconomichavoc on the city of NewOrleans, whichexpected to realize $250million from MardiGras that year. Before the strike was settled 15 days later, 18 parades were canceled or moved to the suburbsand thousandsof tourists left the city early or avoidedthe festival altogether. The union gained a numberof concessions from city officials, but lost somethingperhaps of greater value, its public support. Before the strike ended, anti-union rhetoric had becomestrident and widespread.The vitriol and "base, vile behavior" on both sides tainted labor-managementrelations for manyyears. In retrospect, the union’s timing strategy mayhavebeen ill advised (see Salerno 1981). Unionleaders do not usually call a strike withoutcarefully consideringthe possible ramifications and the odds of winningit. A strike committeecomposed of various stewards and unit representatives typically is formedto address the costs and benefits. If a workstoppageindeed is the decision, the strike committee operates out of a control center to direct picketing actions and mediarelations, handle members’questions, maintain solidarity, and coordinate with other unions (Gagala 1983:230-241). Sometimesjob actions just short of a work stoppage are employed. By "workingto the rule," employeesrefuse to performactivities not in their job descriptions, turn downovertime work, and otherwise legally interfere with the operations of the employer.As another illustration, employeesmayprotest what they consider to be unsafe conditions by assemblingen massein the supervisor’s office or filing reamsof grievance paperwork.Wherestrikes are prohibited by law and alternatives such as arbitration are not available, absenteeism,negligence, reduced effort, rudeness in dealing with customers, and even sabotage mayoccur (Hebdonand Stern 1998). Events proceed at a rapid pace during most public employeestrikes. In private employment,managementfrequently has accumulated inventories and otherwise prepared itself for a possible workstoppage. Nationally affiliated unions typically maintainstrike funds to help out of workmembersget by financially until paychecksbegin to flow again. But public sector services rarely are conduciveto inventory accumulation. Public services are provided directly by people; tangible material products seldomexist. Thereis strong pressure to restore services as soonas possible. For striking public workers,a strike fund exists infrequently (for obviousreasons whereworkstoppagesare illegal), and if it available it often is depleted within a short period of time. Thus, workersare motivated to seek a speedy settlement--an outcomealso appreciated by the inconveniencedgeneral citizenry. Whena quick resolution is not in the cards, a determinedunion elevates the level of conflict. In his study of social movement unionism,Paul Johnston

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(1994) suggests that any collective action by public employeesis likely to enjoy greater success if the union is able to (1) frame its demandsin terms of the "public interest" and (2) to form coalitions with programclients, other unions and groups of employees,elected officials, agencyor departmentalmanagement, or other entities. A strike over pay inequities for womenemployeesmight be presented as a fight for the interests of all women;a teachers’ strike mightbe articulated as being for the "goodof the children", or, as Case Study 8.3 indicates, a strike by predominantlyAfrican-Americanworkers might be portrayed as a civil rights struggle. 2.

Management Strike Tactics

In most collective bargaining situations, employersmust ask themselveshowfar they will go before taking a strike, howlong a strike they can stand, and what will be the likely result of the strike (Shawand Clark 1972b:883).Until fairly recently, most public employers wouldgo more than the extra mile to avoid a strike, or, in the event one did occur, settle it as expeditiouslyas possible with only passing regard for the long-termresults. The tendency of public managersto cave in to avoid facing the turmoil and confusionof a strike has lessened, as they recognizethat certain factors favor them during work stoppages. As already noted, during public employeestrikes governmenttax revenues continue to be collected while employeewagesstop, unlike in the private sector, whereplants maybe shut downand sales halted. Withouta substantial strike fund, public employeescan be seriously inconveniencedboth by their loss of wagesand benefits and by the curtailment of governmentservices uponwhichthey and their families, like all other citizens, depend. Furthermore,striking public workersface citizen hostility that often tilts public opinion in favor of management. Andthere is alwaysthe disturbing possibility that striking governmentworkerswon’t be badly missed, thus calling into question the needfor the services they haveprovidedin the past, or raising the possibility of privatization. Evenworkstoppagesin police and fire services, arguablythe most"essential" of all local governmentfunctions, do not always have adverse impacts. Althoughthe 1919Bostonpolice strike and the 1969Montrealpolice strike were accompaniedby shocking episodes of crime and general breakdownsin law and order, such was not the outcomein other incidents, including police strikes in NewYork City, Albuquerque, and San Francisco, and a walkout by Chicago firefighters. In these and manyother jurisdictions, public managersutilized longrange planningto copewith strikes by providing for temporarysubstitute labor. For example, local police supervisors, county law enforcementpersonnel, and state highwaypatrol officers can augmentnonstriking police personnel, while adjacentdistricts or volunteerfire departmentscanassist duringfirefighter strikes. Throughcontingency planning essential services can be maintained during a

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workstoppage. Planning mayhave the added benefit of reducing the likelihood of a strike occurringin the first place. 3.

ContingencyPlanning for the Strike

Despite the fact that workstoppagesin government are rare today, strike planning is a sound, and necessary, management practice in government if critical services are to be maintained and a strong management bargaining position ensured. Althoughcontingencyplanning is more common today than in the past, a majority of employerscontinue to ignore the need for it. For instance, only 38.5 percent of cities surveyed in 1988reported such plans (International City Management Association 1989:8). In comparingmunicipalstrike preparation to civil defense and other emergency preparedness requirements, Levesque(1980) suggests that certain groups of personnel should be identified: (1) a strike task force composedof the city manager,assistant city manager,city attorney, director of public works, chiefs of police and fire, and the personneldirector; and (2) strike operations personnel consisting of department heads and other management employees. The principal duties of the task force are to maintainessential services by assessing problems on a day-to-daybasis and creating alternative approachesfor dealing with them. Strike operations personneloversee and performcritical services in their functional domains.In the event of a general strike, the task force should implement a strike plan to continue operating designated essential services and as many other services as possible, while shutting downgovernmentfunctions not posing a threat to the public health and safety. A strike headquartersshouldbe designated in advance, and, as in any emergency,reliable communications channels should be established to link the task force with the union leaders, strike operations personnel, the media, the legislative body, and the mayor. The strike contingencyplan should focus very explicitly on whichpersonnel can be utilized to maintain essential services. Aninventory of supervisory skills and job experiencesis compiledto aid in assigning managersto essential line operations. Private contractors can be enlisted to provideservices on a temporary basis. Intergovernmental cooperation through formal, written mutual aid pacts also is advised to augmentsupervisory personnel or to replace them in case they, too, walkout. Possible assistance from other local, state, or federal governmentunits should also be explored. In all cases the contingencyplan must provide for the protection of nonstriking workersthrough arrangementssuch as carpools, escorts, and patrolled parking lots. During the work stoppage, the public employerattempts to garner public support for the managementposition in order to apply maximum pressure on waveringunion membersto return to work. A numberof strategies maybe used, most of theminvolving manipulationof the television, radio, and print media. For example,management might consider publishing salaries of striking workers,

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or showinghowincreased taxes and/or expenditures will result from bowingto union demands. Robert J. Gerardi (1986), Superintendent of Schools in Pawtucket, Rhode Island, a city that holds the dubioushonorof experiencingthe mostteacher strikes in the United States, adds the following suggestions. Be awareof election-year pres~sureson elected officials for a quicksettlement. Designatea single spokesperson to deal with the media, so that conflicting information will be minimal.Be preparedfor teacher unions to use pressure tactics on the school boardand administrators, suchas daily picket lines and unfair labor practice charges.Also, "Stick to your guns.., don’t give awaythe store. The union is counting on your fatigue." 4.

TheInjunction

Aninjunction is a request by the public employer(as plaintiff) to a state or local court to halt a strike or other job action. Atemporary(or ex parte) restraining order, intendedto halt a job action until a final determinationas to its legality can be madeby the court, usually is easily obtained with a prima facie showing to the court of jeopardyto the public health or safety, or of the intentional interruption of a legally mandatedgovernmentfunction. In practice the temporary restraining order often is used simply to serve notice on the public employee union of governmentconcern, and to set the stage for imposingsanctions such as fines or dismissals. If the workstoppagecontinues, after a hearing the court mayissue a preliminary injunction aimedat stopping the job action until it can reach a final decision on whether to issue a permanentinjunction. Permanent injunctions normallyare not required in public employment because of the short duration of most strikes. Until passage of the Norris-LaGuardiaAct in 1932, the courts tended to be very quick to issue injunctions against almost any type of job action in the private sector, from strikes to picketing, thereby immediatelyplacing unions in the unpalatable position of having either to order their membersback to work or to keepthemoff the job in violation of the law. Use of the injunctive process frequently was abuseduntil enactmentof Norris-LaGuardia,which forbids federal courts from issuing injunctions in labor disputes unless they threaten the public health or safety, or are accompaniedby fraud or violence. The Act does not cover public employees, whocan be enjoined from job actions by state or local courts. Before 1968, most courts held that injunctions against illegal workstoppagesdid not require the public employerto demonstrateirreparable harmto the operations of governmentor to the public health and safety; injunctions were routinely granted upon request. In that year, however, the SupremeCourt of Michiganassumeda muchstricter approach to issuing injunctions. In School District for the City of Hollandet al. v. HollandEducationAssociation (1968)

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the MichiganSupremeCourt refused to issue an injunction against teachers who failed to report for workbecausethe schooldistricts did not demonstrateirreparable injury or breach of the peace. The Court stated, "Wemust concedethat the merefailure of a public school systemto begin its school year on the appointed day cannot be classified as a catastrophic event. Weare also awarethat there has been no public furor whenschools are closed downfor inclement weathe~r, or on the day a presidential candidate comesto town, or whenthe basketball team wins the championship." The Hollandcase set an important precedent for other states by implying that the employershould approach the court with "clean hands" after having bargained in goodfaith; the mereinjunctive request was not, in and of itself, enoughto merit court action. Interestingly, Michiganlaw expresslyforbids public employeestrikes. The normtoday is for the courts to require the public employerto demonstrate that someharmresults froma job action before it will enjoin that action. Use of the injunction simply to avoid inconvenienceor escape confronting the causes of labor conflict head on has been an increasingly untenable behavior for governmentemployers. Even wheninjunctions are won, enforcementof contempt of court penalties maybe counterproductive, intensifying employer-employee conflict and makingmartyrs out of jailed leaders. If penalties are not enforced, the credibility of management certainly is not enhanced.Either way, management maynot emergein a stronger position. Thisis not to say that there is no legitimate role for the injunction in public sector labor relations. Tothe contrary, serious threats to the health and safety of citizens resulting froma strike are appropriately metwith an injunction; in many cases a workstoppage in violation of an ongoingcontract mayproperly be enjoined. Whatis called for is flexibility, with employerand court decisions appropriate to the circumstances surroundingeach case. 5.

Strike Penalties

If a strike is illegal, or if an injunction and back-to-workorder are secured in the court and strikers defy them, should public workersbe punished?If so, how severely, and what penalties should be invoked? Excessivelyharsh strike penalties imposedby the courts or by the employer maybe counterproductivethrough encouragingstrikers to extend their job action with the belief that they havenothing to lose. Alternatively, strikers maytake a calculated risk that the employerwill not actually imposestrong sanctions, such as dismissal (Balfour and Holmes1981). Illegal walkoutsby schoolteacherspresent a particularly delicate situation becauseof the special relationship between teachers and their students. Arrests can result in serious and lasting damageto a public school system,including a loss of student respect for a "convictedcriminal."

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When, however, a walkout extends for an untenable period of time or causes great hardship and the public employerwants to apply newpressures for settlement, and managementbelieves that sanctions must be leveled, a number of options are available. Unionmembersand/or officials maybe imprisoned, fined, fired, demoted,or suspended;the unionmaybe decertified; the dues checkoff maybe suspendedor revoked. Moststates provide statutory strike penalties. In Georgia, striking state employeescan receive five years probation and no pay increase for three years; Nevadalaw establishes a $50,000fine per day against a striking union, with a $1,000daily fine plus imprisonment for the unionofficials. Michiganlevies a fine of one day’s pay for each day’s strike on school employees and daily monetarypenalties against the union as well. Striking teachers in Maryland mayhave their union decertified as exclusive representative in the school district. One of the most severe state laws was NewYork’s Condon-Wadlin Act, whichprovided for automatic loss of jobs for striking employees.If they were rehired at a later date, their pay wouldbe frozen for three years, and they would receive a probationary period of five years. Becauseof these extremeand mandatory sanctions, public officials either ignored or circumventedCondon-Wadlin requirements on all but two occasions involving small weakunions (Donovan 1990; Spero and Capozzola 1973:7). In 1967, the inflexible Condon-WadlinAct was replaced by NewYork’s Taylor Law,whichset out less stringent, thoughstill substantial, penalties for striking workersincluding loss of two day’s pay for each strike day and suspension of the dues checkoff. Generally, the Taylor Lawsanctions (as amendedin 1968) have been regularly enforced and strike incidence has been minimized, indicating the value of flexibility and consistency in enforcing strike penalties (Donovan1990:207-233). Whereemployers have been reluctant to invoke strong state-provided penalties, local governmentssometimeshave enacted ordinances permitting a greater variety of strike sanctions (Moore1979:36). In sum, mild penalties maybe ignored, and severe punishmentof strikers, such as dismissal, maynot serve as a deterrent because severe sanctions are rarely invoked. However, moderateenforceable sanctions do tend to reduce the probability of strikes, particularly wherebinding arbitration is available to resolve disputes (Balfour and Holmes1981; Partridge 1996; Currie and McConnell1994). Occasionally, courts are downrighthostile towardstriking public employees, as indicated by the size of fines levied against unions. For example, a $260,000fine was assessed against the Fall River Educators Association by a Massachusetts Superior Court judge in 1979, and a $900,000 fine was charged to the AFSCME-affiliatedHawaiiUnited Public WorkersUnionas a result of a 1980stoppage(the latter fine waslater dismissedby a circuit court judge). Althoughstriking employeesare often threatened with dismissal and sometimes fired outright, as in the case of the PATCO strike (see Case Study 8.4), management usually opposes such actions as a practical matter because they do

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not want to lose good employees for whomthey have made an investment in time and training. Often, there is dissension within the ranks of management over such decisions, creating an interesting political rivalry betweenthose whowant to dismiss striking workers and those whodo not. Elected officials mayfind themselves deeply divided in such disputes as well. CASESTUDY 8.4:

THE PATCOSTRIKE

The Professional Air Traffic Controllers’ Organization (PATCO) was established in 1968as a "professional society" of federal air traffic controllers. Relations with the controllers’ "employer," the Federal Aviation Administration (FAA), were stormy from the very beginning. Within two years PATCO had engaged in a limited job action (a "sick-out") and the FAAhad responded by canceling the organization’s dues checkoff system. A 1970 report commissionedby the U.S. Department of Transportation (DOT) categorized PATCO-FAA labormanagement relations as "the worst in the federal sector." OnMarch25, 1970, PATCO called its first nationwide job action, a sickout that lasted three weeks, over FAAtransfer of four PATCO memberswho were engagedin organizing efforts in Baton Rouge, Louisiana. It was a nearly disastrous mistake, resulting in a membership decline in the organization from over 7,500 to less than 3,000 and near bankruptcy from a $100 million damage suit brought by the airlines. As part of the settlement, PATCO agreed to a permanent no-strike injunction. PATCO spent the next three years seeking reinstatement of hundreds of controllers fired and suspended from duty by the FAA. Meanwhile,the FAAunsuccessfully fought PATCO’s petition for certification as exclusiverepresentative of the controllers. In 1973,the first contract negotiations were held. Throughout the remainder of the 1970s PATCO and the FAA negotiated a series of one-yearcontracts, almostalwaysin an atmosphereof crisis and work slowdowns. Accumulatingbitterness from hostile contract negotiations and wavesof grievances filed underthe various written agreementscameto a head as the last contract expired in March1981and negotiations over a newcontract reached an impasse. The dispute involved PATCO’sdemands concerning salaries, work hours, retirement programs, and other benefits which, to be granted, wouldrequire special treatmentof the controllers somewhat similar to that accordedpostal workers. PATCO President Robert Poli polled his membershipon whether to go out on strike. Seventy-fivepercent voted for a walkout,but this fell belowPoll’s benchmark.Hesubmitted the FAA’sbest offer to the rank and file, whichrejected the packageby a 20-to-1 margin. After two subsequent monthsof further negotiation and federal mediation, the two sides were, in mediator KennethMoffett’s words, "still miles apart." PATCO was asking for $575 million in newsalaries and benefits, while the FAA

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said it wouldagree to $40million and no more. OnAugust3, 12,000 controllers left their control towers at airports throughoutthe UnitedStates. If the controllers thought President RonaldReagan,a former head of the Screen Actors’ Guild (whose candidacy PATCO had endorsed) would be sympathetic to their cause, they were sadly and fatally mistaken. Reaganlabeled them "lawbreakers," sought the imprisonmentof strike leaders, and summarilydismissedfromfederal service all the strikers whorefused to return to workwithin 48 hours. A federal judge supported the president by imposingaccelerating fines on the union that wouldtotal $1 million per day within three days. If PATCO leaders were counting on public sympathyfor the controllers to help encourage the FAAand the Reagan administration to compromiseor back down,they were wrongagain. The average citizen--even the typical union member--found it difficult to identify with the relatively well-paid controllers whowere demandinga maximum salary of $59,000 (worth perhaps four times as muchas today’s dollars), almost unexcelledretirement benefits, and a 32-hour workweek. Moreover,the strikers clearly werein violation of several federal laws and their own oath of office. WhenReagan and DOTSecretary Drew Lewis declared the strike over (becauseall strikers had been fired) and the DOTbegan hiring newcontrollers, there was little public outcry. There was, however,concern by air travelers that the nation’s air traffic control systemwouldbe unable to function safely, amidpredictions by the airline industry of massivelayoffs and flight cancellations. Meanwhile,as newrecruits begantraining to becomeair traffic controllers, some2,500 supervisors were joined in directing aircraft by about 800 military controllers, the 5,000 civilian controllers wlao had stayed on the job or returned within the amnestyperiod, and hundredsof recently retired controllers. Despite PATCO predictions of terrible air disasters and a crippled industry, neither happened. Commercialflights continued, although at reduced levels, and accidents occurred at or belownormallevels. The airlines lost a great deal of money,but they never waveredin supporting the president. Three monthslater, PATCO wasofficially decertified as a bargainingrepresentative by the Federal LaborRelations Authority. Subsequentcourt appeals by the union were fruitless. The once proud and aggressive organization of professional air traffic controllers had beendestroyedby its ownstrategic mistakesand a hostile administration. In hindsight, the strategic errors of PATCO are obvious. First, the union badly misread public reaction to the strike and to its demands.Little sympathy was forthcomingfor the highly paid white-collar workersduring a period of citizen resistance to governmenttaxation and spending. Second,the union failed to publicize legitimate grievances, including congestedairways, tremendousmental strain on overworkedcontrollers, and the need for improvements in technology. Third, PATCO did not anticipate the strong Reaganadministration reaction to

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the strike and the government’sdetermination to "stick to its guns." Finally, PATCO did not take the time or effort to garner the support of other federal and private sector unions prior to the strike. Althoughcontrollers in Canadaand Portugal did refuse to route U.S. flights over their air space for several days, the actions wereshort-lived and not very troublesome.Organizedlabor in the United States abandoned the striking controllers and refused to respect their picket lines. Haddomesticunion support been stronger, the airline industry could have been brought to the brink of financial disaster, whichwouldhave tremendouslyincreased settlement pressure on the administration. Yearslater, in 1987, air traffic controllers voted in a newunion: the National Air Traffic Controllers’ Organization(NATCO), organized by John Thornton, one of the controllers sacked by Mr. Reagan. The new union adopted a nostrike pledge and disavowedillegal job actions, while renewingmanyof its earlier complaints concerning heavy workloads and an autocratic FAA. In 1989, NATCO successfully (and peacefully) negotiated its first contract. In 1993, President Clinton lifted the ban on rehiring the controllers fired by Reagan. Questions 1. Werefaulty negotiations in play in events leading up to the PATCO strike? If so, how? 2. Howdid public opinion play a role? 3. If he had been able to exercise hindsight, howmight Poli have played his cards differently? 4. Whydo you think that President Reaganreacted so strongly to the air traffic controller strike? Howmight subsequentpresidents (Bush, Clinton) have handled the events differently? 5. Do you think that NATCO’s strategies today are predicated on the PATCOexperience? How? Evenin the event of initial management determination to dismiss striking workers,it frequentlyprovesdifficult to carry out the final action. This is illustrated by a 1979workstoppageby KansasCity, Missouri, firefighters. Morethan 900 firefighters engagedin a slowdown,then called in sick whenGovernorJoseph Teasdale declared a state of emergencyand obtained an injunction ordering them back to their posts. Forty-twofirefighters were dismissed and manyothers suspendedbefore the strike ended. The following March, firefighters again abandonedtheir jobs to protest the city manager’srefusal to reinstate the 42 dismissed union members.This time, a circuit court judge convicted 78 of the strikers of criminal contempt of the strike ban he had imposedin Decemberand gave them each 20 days in jail plus a $620 fine. Onehundredsixty additional dismissals were madethe next day whenmore firefighters failed to report to work. The bitter six-day strike, accompaniedby 30 confirmedcases of arson and numerous

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other suspicious fires, wasbroughtto a halt only after the city council agreed to reinstate the 42 whohad been dismissed during the original Decemberaction and after the Governorindicated that he wouldpardonthe jailed firefighters once he received wordof unionratification of an agreementwith the city. This, not an atypical case fromthat era of labor-management strife, demonstrates whyfiring striking public employeescan provoke more problems than officials anticipate, and whythe real politics of public sector strike policy often diverges substantially from formal provisions in the statutes. Nonetheless,many employeedischarges have been announcedand permanentlycarried out. For the public employer,the difficult task is to avoid strikes whenpossible, alwaysprotect the public’s health, safety, and well being, and promotesolutions through good-faith bargaining. Aninteresting unresolvedquestion that mayreceive future attention in the courts is whethertort liability can be recognizedin the event of damagesto an individual citizen resulting from an illegal public sector workstoppage. For instance, there are monetarycosts to workingparents whomust pay day care fees during a teachers’ strike; patient health maydeteriorate whennurses walk off the job; and blazes that a fully staffed fire departmentcould readily snuff out with only limited damagemight cause widespreaddestruction during a firefighters’ strike. Shouldthe unionor individual strikers be held liable for such damages?Therehas beenlittle recognitionof tort lability in such cases as yet (Crouch 1978:239),but in a society that has a surfeit of lawyersand a resultant penchant for litigation, strike-related liability cases are not out of the question. A. Conclusions and a Look Ahead Workstoppages and related job actions by U.S. public workers have been recorded since the 1830s. The incidence and intensity of governmentwork stoppagesincreased dramaticallyfrom 1965to the late 1970s, especially at the local level. Since the 1980s, the numberof strikes has decreaseddramatically, both in governmentand in the private sector. The vast majority of public employeeworkstoppages have occurred in the face of philosophical and legal prohibitions by governments.The sovereignty doctrine, althoughessentially irrelevant in those jurisdictions engagingin collective bargainingwith their workers,remainspertinent wherenegotiations are prohibited. Nonetheless, governmentemployeework stoppages have taken place in all states. Early on in the public sector experiencestrikes did seemto bias the political processin favor of the unions, but workstoppagestoday tend to generate strong political and economiccounterpressures on the striking employeesand their unions. Somegovernmentservices are not perceivedto be quite so "essential" as they once were. As the "ultimate weaponin labor’s arsenal," the governmentemployee workstoppage appears to have lost muchof its firepower. Employerrecognition

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of the apparent inevitability of governmentemployeestrikes has resulted in a moremature, calculated approachin jurisdictions experiencinga strike. Negotiating skills, training, experience, and planning have improvedgreatly during the past decade, especially at the local governmentlevel. As TimBornstein (1980) remarked, "Public management cameof age in the 1970s. Public sector negotiators havelearned well fromthe private sector that there are 10,000 waysto say "no" to a union’s demandswithout bargaining in bad faith. And they have learned the ultimate lesson from private sector management: Never blink an eye at a union’s strike threats; talk softly and carry a big strike contingencyplan." Yet since the early 1980s, several signs seemto portend heightenedpublic sector strike activity. Government employment has becomeless desirable because of retrenchment-drivenlayoffs and hiring freezes, limited wageand benefit gains, and bureaucrat bashingby citizens and elected officials. Workingconditions have deteriorated for manypublic workers: classroom teachers face unruly and violence-pronestudents; police officers endurelife-threatening encounterswith users, abusers, and purveyorsof illegal drugs; health care professionals confront the AIDSmenace.These, and manyother negative trends and problems, continue into the 2000s. In view of such factors, the precipitous general decline in strike activity seems paradoxical. Closer examination, however,uncovers somepowerful deterrents to the strike. Foremostamongthem is the PATCO debacle, widely seen today as a seminal event in Americanlabor history. That a highly skilled group of professionals could be relatively easily replaced, and their union absolutely crushed, made all organized labor enormously insecure. The PATCO strike markeda major changein political climate, with very negative implications for the unions. Another factor discouraging governmentwork stoppages is that they are simply not as effective as they once were. Management is more experienced at the bargaining game, and whena strike is called, muchbetter prepared to cope with it effectively. Wherestrikes continueto be illegal, sanctions, whenconsistently enforced, can be very painful for the union and for individual members whoface the loss of their livelihood. Concernfor job security mayoverride a desire for wageand benefit increases. Time,and political and economicrealities, are workingagainst the efficacy of strikes. Bargaining relationships have matured and stabilized. Manyunion leaders have reached a comfortable accommodation with management,and silent understandings and glances have replaced thunderous emotional displays and angrystares. Finally, and very importantly, alternatives to the strike, as intended, have provensuccessful in deterring them. Mediation,fact-finding, and especially binding interest arbitration provide morepeaceful venuesfor settling contract disputes. Theyare discussed in Chapter 9.

9 ResolvingImpasses:Alternatives to the Strike

Ultimately,collective bargaininginvolvespeopleat the table and their constituent advisors, who,together, choosewhatthe nature of the dialogue will be in negotiations and whether settlements will be achieved. Someparties want to walk out or to drag out the talks for reasonsthat are seen as beingpolitically or personally significant. Theydo not want a deal, or at least they do not wanta deal quickly. In other cases, the desired outcomeof bargaining--attainment of a workable solution that maintainsthe relationship--gets displaced as the parties get entangled in the processes used to get there, or becomeboggeddownin personality conflicts. Process issues and party conduct can becomeso contentious that mediators or other third parties have to remindeveryonethat the goal is a contract settlement, not landing puncheson the other side. Experiencednegotiators knowthat "All cases settle eventually." But they do not settle in the sameways.Notwocontract negotiationsare the same.Patterns certainly exist but evensubtle differences can matter a great deal in determining bargaining outcomes.As public administrators have learned in manycontexts, "There is no one best way."Sometimes,despite the best efforts of the parties, a negotiated settlement is not obtained. In the private sector, this usually means a strike. In government,it mayproducea strike in somecases, but muchmore often an impasse is addressed through third-party dispute resolution mechanisms. Despite the modesttrend during recent years for public employersto accept the strike as a legitimate component of labor relations and collective bargaining, the great majority of state and local governmentscontinueto prohibit strikes. If strikes are prohibited, labor unions are at a distinct disadvantagein collective negotiations unless an alternative impasseresolution procedureis available. In virtually all government jurisdictions in whichcollective bargainingtakes place, someform of impasse device is provided to help balance the power of unions and management.The dispute resolution mechanismsdeveloped in U.S. labor 259

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relations are increasingly being adaptedto settle conflicts in other venues, from environmentaldisputes to divorces. This chapter examinesthe three principal measures employedin public sector impasseresolution: mediation,fact-finding, and arbitration (including final offer arbitration). Weconsider their various permutations,advantagesand disadvantages, and relative effectiveness. The chapter concludeswith a look at several newtechniques that have been suggested or experimentedwith in various jurisdictions. The focus in this chapter is on disputes over interests, which occur during contract negotiations. In Chapter10, impassesover rights, or grievances, under the terms of an existing contract are addressed. I.

THE PRIVATE SECTOR EXPERIENCE

Thefight for unions to strike in the private sector is guaranteedby the National LaborRelations Act. It is generally perceivedto be a legitimate and fundamental part of private sector labor relations. Third-partyproceduresfor resolving private contract disputes short of the strike are used muchless frequently than in public employment, but mediation, fact-finding, and arbitration all have a long history in the private sector that predates their utilization in government. The conventional procedurefor private sector parties seeking to avoid a strike is to call in a mediator if no agreementhas been attained within 30 to 60 days of contract expiration. Typically, a mediator is assigned by the Federal Mediation and Conciliation Service (FMCS),an independent federal agency established under 1947 amendmentsto the NLRA.The FMCSis also empowered under the NLRA to offer its services, even if not requested. If the emissarysent by this neutral peacemakerfails to bring the parties into an agreementthrough the powersof persuasion, fact-finding maybegin. Fact-findingis a quasijudicial processin whicha neutral third party (individual or panel) examinesthe "facts" of the impasse, hears the arguments of the parties, and issues findings and recommendations. Fact-finding’s history dates back to 1902, whenPresident TheodoreRooseveltappointedthe first fact-finding board (the Anthracite Coal Commission) through an executive order. Similar entities were established by executive orders of Presidents Woodrow Wilson, Franklin Roosevelt, and Harry Truman.In addition, ad hoc fact-finding boards have beenused on manyoccasionsin other critical industries such as steel, autos, and railroads. Grievancearbitration has long been used to settle private sector disputes over the application and interpretation of existing contracts. Bindingarbitration by a neutral third party to settle unresolveddisputes over the termsand conditions of a newcontract, knownas interest arbitration, also has a long history (it was first recorded in Connecticut copper minesin the 18th century). However,it is seldomused. Generally, the strike is the preferred impasseresolution procedure

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in the private sector, althoughmediationand fact-finding are often given an opportunity to workfirst. II.

IMPASSE RESOLUTION IN FEDERAL EMPLOYMENT

Prior to Executive Order 10988of 1962, impasses betweenfederal agencies and unions representing their employeeswere resolved on an agency-by-agencybasis withoutthe benefit of legal or statutory guidance.E.O. 10988only partially filled the legal-structural void, since it providedno interest arbitration proceduresexcept for advisory arbitration in cases involvingunit determinationand representation disputes. The arbitrator’ s sphere of decision makingwas highly constrained and the decision was not binding on the parties. This lack of adequate impasse resolution procedures was a major source of criticism of the Executive Order and a prime reason for issuance of Executive Order 11491 by President Nixon, whichauthorized the Federal Mediationand Conciliation Service to aid in resolving federal impasses upon the request of one or both parties. Dependingupon the situation, the FMCS could recommend mediation, fact-finding, or arbitration and assign trained personnelto help settle the dispute. Underthe Civil Service ReformAct of 1978, the FMCS continues to play a leading role in assisting federal agencies to resolve negotiation impasses. FMCS is a majorproviderof technical assistancein conflict resolution andlabor relations in the United States and abroad. However,under Section 7119 of the CSRA,if FMCS assistance or other voluntary arrangementsfail to settle a dispute, either party mayrequest the intervention of the Federal Services ImpassePanel (FSIP) or mutually agree to a binding arbitration procedure, which must win FSIPapproval. The FSIP, which has averaged hearing about 250 cases per year (Bohlander 1995:198), is composedof a chairperson and six membersappointed by the president for overlappingfive-year terms. Whenasked to intervene in a federal labor dispute, the FSIP can makeone of several possible determinations: (1) that cannot exercise jurisdiction, (2) that negotiationsshould resume,(3) that negotiations should resumewith mediation, (4) that fact finding be implemented,or (5) that other proceduressuch as arbitration be used. The parties have the option of using FSIParbitrators or, with FSIPpermission, an outside arbitrator. In cases where voluntary settlement proves elusive, the FSIPis authorized to hold hearings, take sworn testimony or depositions, issue subpoenas, and take "whatever action is necessary"within its authority to resolve the impasse,includingimplementationof final offer arbitration. (Final offer arbitration differs fromconventional arbitration in that the arbitrator mustaccept the "most reasonable" last offer of one party or the other, without modification or "splitting the difference.") FSIP impasse decisions are enforced by the Federal Labor Relations Authority, whichcan imposeunfair labor practice determinations and penalties

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against a noncomplyingparty. The issues most commonlyheard by the FSIP concern disputes over facilities (e.g., parking, office space), hours of work, ground rules for negotiations, and various humanresource managementissues (Bohlander 1995:200-201). Disputes involving postal workersare covered under the 1970Postal Reorganization Act. If the parties fail to reach a contract agreementor mutuallyadopt a binding impasse resolution procedure, the FMCS is authorized to establish a fact-finding panel consisting of three persons (twoselected by the parties, a third chosenby the twoselectees). Thepanel mustissue a report of its findings within 45 days; settlement recommendations are optional. If an agreementis not forthcoming within 90 days, the FMCScreates a three-member arbitration board through the same procedures. The board holds hearings, takes evidence, and makesa binding decision within 45 days. Costs of the fact-finding panel and arbitration board are shared equally by the two parties. Postal Service negotiations wentto arbitration for the first time in a 1984 dispute involving 500,000employees,the most ever participating in an arbitration settlement in the UnitedStates. The parties were$13 billion apart in their final demands,with the major point of disagreement being howmost appropriately to measure wageand job comparability. The arbitration panel found that postal workers were making more moneythan comparable private sector employees. Theyissued a salary decision of "moderaterestraint," adding about $4 billion to postal costs (Loewenberg1985). Arbitration panels were also called upon imposesettlements after postal bargaining collapsed in 1990 and 1996.

III. STATE AND LOCAL GOVERNMENTIMPASSE PROCEDURES At least 38 states havelegislation on the booksprovidingfor somesort of impasse resolution procedure for one or morecategories of employees(see Table 9.1). Mediation is the technique most frequently provided for (36 states), followed closely by fact-finding (34 states), then arbitration (30 states). Sixteenstates mit final offer arbitration for one or moreclassifications of state and local government employees.The wide variety of state approachesto resolving contract impasses provides a rich groundfor experimentationand research. Notsurprisingly, a great deal has been written on the use, and the impacts, of impasseprocedures. Neutral third parties for state and local labor impasses maybe obtained from a numberof sources including the state PERB,state or local impasseagencies, the Federal Mediationand Conciliation Service, or lists of private third parties provided by organizations such as the AmericanArbitration Association, the National Academy of Arbitrators, or the National Center for Dispute Settlement. Somestates and localities employpart-time, ad hoc neutrals. The FMCS


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offers its services to help state and local jurisdictions developtheir owndispute resolution capabilities. Wheresuch capabilities are not available, the FMCS will assist in resolving disputes whenrequested to do so by one or both parties. It will also provide technical assistance for training programs. A. Mediation Animpasse in contract negotiations maybe declared whena deadline has been reached, an important bargaining issue appears insurmountable,or the relationship betweenthe parties has degenerated to name-callingand inflammatoryaccusations. In mediation,a nonbiasedthird party helps the others to achievea voluntary agreementon substantive issues in dispute. He or she also maytry to help the parties maintain or improvethe quality of their relationship. Mediationmay be requested by either party in a state or local dispute. However,in somestates, such as North Dakota, both parties must makethe request, while in other states, like NewYork, the state Public EmployeeRelations Board can intervene at its own initiative. As noted above, the mediator maybe provided by the FMCS, state or local agencies, or private sources. If appointed by the FMCS,there is no financial charge to the parties. However,the federal service is furnished only whereno state or local mediationassistance is available. Wherestate legislation molds the impasse resolution process, mediators maybe selected by the parties from certified lists, or, as in Vermont,the state PERB mayassign a neutral upon request. As a general rule, because the success of a mediator dependslargely uponthe degree of confidenceand trust with whichhe or she is held, mediators are sought out whoare fully acceptable to both parties. FMCS-provided mediators generally have achieved an excellent record and reputation. Theyare experienced,well-trained, full-time professionals (Dilts and Haber 1989; Zack 1985:14). State-assigned and ad hoc mediators vary greatly in skill and experience.The quality of state-appointed neutrals is improvingwith continued seasoning in public sector impasses. Meanwhile,the parties at impasse do well to avoid allowing local community figures or elected officials to serve as mediators. Althoughthe intentions of local notables maybe quite honorable, their lack of experience and expertise in resolving labor disputes can lead to unintended and undesirable outcomes. 1. The Mediation Process Mediationis very informal, quite private, and highly individualistic. Recordsare not kept, so one is forced to rely mostly on anecdotes or personal experience to gain an understanding of what transpires. The process is intriguing. As Zack (! 985:180)observes, "It brings together two opposingparties, frequently antagonistic and hostile in their relationship; interposes a third party betweenthem, often of their mutualselection; and creates thereby the expectationthat the three

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264 TABLE9.1

State Legislation on DisputeResolutionProcedures for State and Local Employees,1998 State Alabama Alaska Arizona Arkansas California Colorado Connecticut Delaware Florida Georgia Hawaii Idaho Illinois Indiana Iowa Kansas Kentucky Louisiana Maine Maryland Massachusetts Michigan Minnesota Mississippi Missouri Montana Nebraska Nevada NewHampshire NewJersey NewMexico NewYork NorthCarolina North Dakota Ohio Oklahoma Oregon Pennsylvania RhodeIsland SouthCarolina

Arbitration Mediation Fact-Finding (Conventional) X

Arbitration (FinalOffer)

X

X

X-

X X X X X X X X X X X

X X X

X X X X X

X

X X

X

X

X X X

X X X

X X X X

X

X

X X X

X X X

X X X X X X X

X X X X X X X

X

X

X X X X X

X

X X

X X X X X X

X X X

X X X X X X

X X X X X

X

X X X

Resolving Impasses: Alternativesto the Strike

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TABLE9.1 Continued State South Dakota Tennessee Texas Utah Vermont Virginia Washington WestVirginia Wisconsin Wyoming

Arbitration Mediation Fact-Finding (Conventional) X X X X X

X X X X

X

X

X

X

X

X

X X

Arbitration (FinalOffer)

X X X

X

forces will be able to achieve an agreementwhenthe two parties could not .... Eventhe participants in the process often are astonishedthat it actually works." Themediatortypically begins by calling a joint session to reviewthe most recent proposals on unresolved bargaining issues along with an already agreed upon list of items. Mediationgroundrules mayalso be decided, including how to handle the media. Formal statements maythen be obtained from each party regardingits positions on remainingquestions. Next, after consideringthe respective bargainingpostures of the two parties, the mediatoris likely to meet with each of themprivately in order to gain their confidenceand to explorenegotiating roomon the issues. The mediator strives immediatelyto gain the confidenceof the parties by listening closely to what they have to say, and makingsure to appear evenhandedin everythingthat is done. For instance, it is importantthat any contacts with one party be reported to the other. Throughthe mediation process contacts can be maintained betweenthe mediator and the parties and betweenthe parties themselves,so that all participants are continually awareof their obligation to reach a settlement and so that communication channelsremain open.Indeed,a majorfunction of mediationis to keepthe parties at the bargaining table in order to avoid a lengthy period of stasis or stalemate. Somemediators believe in doing an extensive analysis of the issues and parties in dispute and designingcontingentand noncontingentstrategies for dealing with the parties. Other mediators, recognizing that manycomplications and complexities will workthemselves out, focus on the people involved. They know that the parties are morefamiliar with the jurisdiction and its problemsthan the mediatorcan ever be, and that they can resolve their difficulties if they can be helped to talk productively and persevere in movingtowards settlement.

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Twobasic strategies are available to mediators.The nondirective, or broad strategy, is aimedat producinga climate moreconduciveto settlement, and assisting the parties to becomemore adept at the bargaining table. The mediator maypress the parties to focus first on issues relatively easy to resolve, while suppressing negative or hostile outbursts. Eventhe nondirective mediator must also "orchestrate" (Kolb1983) various administrative details (time and place meetings), structure and order the issues that must be considered, ensure that negotiations moveat an orderly pace, and keep the substanceof the negotiations private. A majorfunction of the nondirectivemediatoris to assist the parties in exploring potential avenues for accommodation. For example,trial balloons may be launched by the mediator and ponderedwithout risk to the parties. Accommodation can also be encouragedby the mediator assisting the parties in properly presenting offers and proposals at the bargaining table. Seeminglyinnocuous factors such as the language used or the wayan offer is communicatedcan be a bar to settlement. Often, "toning down"the language while still preserving the substanceof the proposalis effective. Attentionby the mediatorto such relatively minorproblemsmaymeanthe difference betweensettlement and continued impasse. Directive, or narrow, strategies are intended to help the parties discern points of compromise,makethemface the consequencesof their respective situations, offer suggestions for settlement, and, in somecases, apply pressure for settlement. The "deal-making"mediator, in other words, attempts to take control of negotiations and bring things to closure (Kolb1983). In extremeinstances the mediator mayeven provokea crisis by, for example, publicly labeling a party as intransigent or obstructive, or by stalking out of a nonproductivecaucus in apparent disgust. The relative usefulness of the strategies dependson the phase of the bargaining process. A nondirective posture is good for facilitating an agreement without too muchintrusion. As negotiations moveclose to an agreement but remainsnaggedover one or moreissues, the mediator maybecomemoredirective in his or her approach. Whatevertactics are brought into play, the successful mediatormustmaintainthe trust of the parties, masterthe intricacies of the situation, and be persuasive in helping union and management negotiators steer towardsa conclusion. Andhe or she must understand that uncontrollable external factors (e.g., economicproblems, political variables) mayultimately be more importantthan the mediator’sstrategies in determiningwhethersettlement is attained (Kolb and Rubin 1989). To help the parties worktogether, the mediator typically calls for joint sessions. In these meetings, he or she employsa variety of techniques. One is "idea charting," which is a form of brainstorming. Here, the mediator goes aroundthe roomaskingeach individual to identify the issues that are mostimportant to resolve. Eachissue that is mentionedis written on a flip chart or computer


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projection screen. Theparties clarify the issues, and the underlyinginterests represented by the issues, through discussion. Idea charting helps each party focus on the mediator and the written ideas, rather than on their peers and personal notebooks. For example, suppose a managementrepresentative says, "Wewant to changethe waycare is providedto certain patients and relocate themto another building." "Why?"someoneasks. "Because these patients are dangerous and our visiting psychiatric support people wouldbe better used if wecould relocate the patients. Wecould also use better psychiatric aides, whichwouldbenefit our vocational program. Andwe need to keep costs down,and this might help." The issue here is to movepatients into a common facility for the reasons given. The union mayagree that this is a legitimate interest of managersand be willing to talk about it. Andmanagement’s interest maypromptthe union to identify its ownrelated issues. The union could observe that "membersfear newfacilities, current wardsare already understaffed, and the proposedchangesmight put persons in danger by consolidating potentially violent patients. Unionmembers might have to workout of class or have their caseloads increased. Moreover,the building in question is a firetrap." Throughout,the mediator tries to help the parties identify key interests and drop unimportantones, developcriteria for addressing them, generate alternative proposals, and decide on the most pragmatic path to settlement. At any time, a team mayrequest a caucus to discuss what concessions or compromisesmight be offered and under what conditions (mediators usually attend the caucuses and provide assistance if needed). Eventually, there maycome a breakthrough whereat least one significant issue is resolved. Oncethe dam breaks, the chances are improvedfor more accommodations.However,particularly sticky issues maysimply be deal breakers. Andthe agreementcan stand or fall on howthe parties treat one another and react whenthe going gets tough. The principal goal of mediationis to reach a "goodsettlement," one that can win widespreadacceptance amongthe constituencies of the parties and can be lived with, in general. For the purposes of the mediator, the public interest or the fairness of the outcomeis of secondaryimportance. (a) Traits of an Effective Mediator.The traits ascribed to effective mediators read like the Scout Code:experienced,skilled, unbiased, open, creative, inventive, patient, persevering. He(the majority are male)shouldalso be intelligent, tenacious, humorous,persuasive, empathetic,and full of stamina. Mediators should have the "patience of Job," "the guile of Machiavelli," and "the wisdom of Solomon"(Simkin 1971:53). They should evince optimism tempered with realism. Theyshould seek to build trust by being genuine and straightforward. Mediators should have a calm and friendly demeanor,but avoid being ingratiating. Theymust accept the need for emotionalismand venting by the parties, but

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prevent it fromshattering the process. Everyoneknowsthat there are gamesgoing on at the table, underthe table, in the room,and out of the room,and that potential troublemakershover everywhere.The mediator must try to keep fully abreast of goings on by joining meetingsin the halls, parkinglot, or local bar. It is often at such "side meetings"that breakthroughsoccur. The mediator also needs some of the skills of the diplomat.For instance, there is the classic television shot of a mediator comingout of negotiations to meet the press. "Whatis going on?" the reporter asks. The response: "Theyare talking." "Howwouldyou characterize the talks?" The mediator observes, "They are frank and candid." Althoughthese qualities "are not the stuff of whichprofessional curricula are made"(Kressel 1977:270), formal training in labor relations, labor law, and facilitation are important for the novice mediator. A task force of the FMCS (1996) identified several core competenciesthat mediators for the agencyshould achieve, including expertise in collective bargaining and other labor-management processes, facilitation and problem-solvingskills, knowledgeof tools to improveorganizational effectiveness, and conflict resolution skills. There remainsa disturbing lack of standardsconcerningwhois qualified to practice mediation (Mareschal 1998; Bellman1998). Certificate programsabound, but some of themfall well short of being rigorous. Evenif a set of universal standards wereagreed to and taught, mediationwouldremainan art, not a science. Effective mediators are adaptive, flexible, and resilient, using their best judgmentunder the circumstances and makingthings up whennecessary. The road to settlement always has manytwists and turns. 2.

Advantagesand Disadvantagesof Mediation as a Technique for Resolving Impasses

Mediation’sutility as a dispute settlement techniqueis evidencedby its frequent application to public sector impasses. A major advantageof mediationover other impasseproceduresis its flexibility. It is an inexpensiveinformal process that permitsthe parties and the neutral great latitude in devisinga settlement, in large part because no written record of the proceedingsis required. Thus, alternative settlement packagescan be explored through the mediator without placing formal proposals on the bargaining table. The informal nature of mediation also helps break downcommunicationbarriers that may have developed as negotiations atrophied. Mediationcan help "educate" inexperiencednegotiators on the vicissitudes of the bargaining process and on the specific viewpoints and positions of the opposingparties. Anotheradvantage is that agreementsattained through mediationare reached by the parties voluntarily. Becausethey are not imposed, terms of the settlement are morelikely to be fully accepted by the parties and their constituencies. Finally, mediationmoderateslabor conflicts by subjecting points of disagreementto different meanings,interpretations, and possibilities (Kolb and Rubin 1989:4).


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Despite the notable advantagesof mediationas a dispute resolution procedure, there are unfavorableaspects as well. Twomajor criticisms maybe offered. First and foremost, there is no element of finality to mediation. The mediator cannot force a settlement. Thereis no final report--only a voluntary settlement or a declaration of failure and promptconsideration of other impasseresolution alternatives. Second,goodmediatorsare hard to comeby. Thespecial personality traits exhibited by successful mediatorsare problematicto teach and difficult to emulate. Onbalance, mediation is recognizedas an effective meansof confronting an interest impasseat an early stage. It should not be expectedto do morethan originally intended: namely,to get the parties back to the bargainingtable in a climate conduciveto settlement. Mediationis moresuccessful under someconditions than others. The technique appears to be most effective whenthe mediator is experienced, highly skilled, and tenacious, and the parties are less sophisticated and experienced (Karim and Pegnetter 1983; Kochanand Jick 1978). Here, the strategies and personal qualities of the directive aggressive neutral have maximum impact (Downie1992). Experienceand tenacity are particularly importanttraits of the effective mediator. As one commented,"Mediation doesn’t start until both of the parties havetold the mediator there’s no moreroomfor compromise" (Briggs and Koys1989:519).In situations in whichthe twoparties have lengthy experience with collective bargaining, the mediator’srole is a less directive one. Kochan(1979:179) suggests that mediation is most effective where (1) overcommitment to a position stifles negotiations, (2) the dispute is of limited difficulty or intensity, and (3) the parties are motivatedto attain a settlement. The probability of reaching a settlement increases whenmediation is followed by compulsorybinding arbitration rather than by fact-finding. Mediationappears to be least fruitful (1) in large jurisdictions, (2) where the parties have a poor relationship and have gone to impasse frequently, (3) wherethe basic dispute involves ability of the employerto pay (Kochan1979: 179), and (4) wherethe parties face strong political and/or constituent pressures that encouragethemto use the full range of impasseresolution procedures(Kochanet al. 1979). B. Fact-Finding As is the case with mediation, fact-finding normallymaybe initiated by either party, although in somestates it can be invoked by the PERB.Anindividual fact-finder or a panel (usually composedof three members)is appointed from the same sources used for mediators. Often, the same names appear, as many mediatorsalso act as fact-finders. In legal contexts providingfor both mediation and fact-finding, the latter is usuallyused onlyafter mediationfails to resolve the

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dispute. Unlikemediation,fact-finding is a rather formalproceedingconsisting of a quasijudicial hearing by the neutral of both parties’ positions and evidence,a written record of the facts and events, and, in most cases, written recommendations for settlement. The recommendations are not binding. It has been widely noted in the literature of public sector impasseprocedures that "fact-finding" is a misnomer.As Simkin(1979:337) points out, "The wordsfact-finding conjure up notions of preciseness, of objectivity, of virtue. Theyeven have a godlike quality. Whocan disagree with facts?" Yet, as McKelvey (1969:528-529)explains, "Althoughthe ’nameof the game’is fact-finding, ¯.. the sport itself has little to dowithfact-findingin the literal sense of determining objective facts through the judicial processes of trial and proof to provide evidentiary answers.... " In other words,there is rarely a single set of "facts" underlyingany collective bargainingimpasse.Onthe contrary, there are at least two different "objective" interpretations of the circumstances surrounding all components of any dispute. The principal task of the fact-finder is to determine whichset of "facts" is paramountin any given labor relations context. It should comeas no surprise to the student of public administration and politics that twosets of actors portray varyinginterpretations of reality. If the facts of a situation wereapparentto all, the neutral’ s job wouldbe muchsimpler. However,public sector employmentissues tend to be rather complex,and "the plethora of facts produced maywell overwhelmthe fact finders" (Spero and Capozzola1973:283). Furthermore, each party naturally seeks to put a spin on the facts to present themin their mostfavorable light. 1. The Fact-Finding Process Theformal role of the fact-finder is to enter an interest dispute, hear both sides of the story, collect relevant data, and issue recommendations for a settlement. The process is moreformal than mediationas it takes place in a quasijudicial adversarial atmosphere. This does not meanthat the two processes are clearly separable. Mediators,too, deal with "facts," and fact-finders frequently mediate betweenthe two parties, particularly whenfact-finding is the last impasseprocedure provided for, before a strike or unilateral imposition of terms by management. The mediativerole of fact-finding is evident in a study of the first seven years of fact-finding in Michigan,where it was found that 20 percent of the disputes goingto fact-finding weresettled before a final report and recommendations were issued, even thoughfact-finders in that state are not given formal authority to mediate disputes (Steiber and Wolkinson1977). Usually, for factfinding to be successful, recommendations must be acceptable to both parties. Thus, the fact-finder often probes the range of the parties’ expectationsthrough off-the-record meetings, and reveals each side’s expectations to the other. Sometimes, voluntaryagreementresults. This practical reality is informallyrecognized


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in Iowa, wherefact-finder reports becomede facto arbitration awards(Gallagher and Veglahn1990) and formally recognized in Ohio, where the collective bargaining law officially encouragesfact-finding panels to mediateat any time. The hearings generally take one or two days. Transcripts of the proceedings are required in somejurisdictions. After a period of time in whichthe fact-finders examineand analyze the data and testimony presented to them, they normally issue recommendations on all unresolvedissues. At this point the formal duties of the fact-finder are complete.Informally, the fact-finder mayact as a mediator by trying to convincethe parties to accept the recommendations and settle the dispute. Therole of the fact-finder varies with the circumstancesof the individual dispute. In somecases fact-finding is undertakenin a climate of cooperation, as whenthe parties unite to promotea common goal such as legislative enactment of a statute that wouldbenefit themboth. Here the legislative bodymaybe the adversaryas the parties look to the fact-finder as an importantally in pressing their case. In other situations, fact-finding maybe used by one or both parties to give credibility to an agreementthey wouldhavereached anyway,so that the chancesof rank and file and/or legislative ratification are heightened.Also, factfinding, if followedby public recommendations, can bring the citizenry into play by using public opinion to encourage compromiseby an obstreperous party. In arriving at their conclusions,fact-finders often concentratetheir investigations on data allowing a comparisonof the local circumstances with other, similar jurisdictions. Fact-finders are concernedthat their recommendations are fair. Thus, wages,benefits, and workingconditions in other agencies or jurisdictions are importantconsiderations. Hence,the fact-finder can focus on such variables as ability to pay, cost of living, and the nature of the local labor market. In somestates, like Florida, fact-finding criteria are delineatedin statute. Generally, fact-finders strongly desire to convincethe parties to accept their recommendations as the best option available for settling the dispute. The issue of recommendations--whether they should be offered and, if so, to what audience--has been the subject of somecontroversy. Fact-finding without recommendations differs little from mediationand, as one expert has argued (Simkin1979:340), it "is likely to be an exercise in futility." Withrespect fact-finding with recommendations, however,the question arises as to whomthey should be issued: to the parties alone, or to the parties and the general public? The recommendations,of course, maybe rejected by one or both parties. The potential advantageof public notice of recommendations, as indicated above, is that it can mobilizepublic pressure for a settlement, especially in the case of an extremeposition by one of the parties. Cynics, however,point out the very low level of public interest in mostlabor disputes and, indeed, politics in general, and note the overall lack of citizen understandingof the collective bargaining process. If the local mediaare also uninformedor otherwise incapable of ex-

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plaining the complexitiesof the labor dispute to their reading and viewingaudiences, then makingpublic recommendationswouldseem to be an emptygesture. Furthermore, once recommendations are disclosed, the negotiations process may shut downand the parties becomemore polarized than ever. 2. Advantagesand Disadvantages of Fact-Finding Several benefits are claimedfor fact-finding as an impasseresolution procedure. It provides an opportunity for the parties to cool off after temperflares and to analyzetheir positions. It is a time-consuming processthat permits themto collect boththeir thoughtsand data supportingtheir respectiveinterests. Thefact-finder’ s report can lower the expectations of one or both parties (Karper 1994), serve a newbasis for continued negotiations towarda voluntary settlement, or it can represent a helpful scapegoatto justify a painful settlement (Marmo1995). Also, fact-finding does permit the public to enter the bargaining arena by revealing unresolved issues and howthe parties stand on them. In the case of extreme posturing, the taxpayingpublic has an opportunity to chastise the moreimmoderate party. Themajorcriticism of fact-finding is that, like mediation,it lacks finality. Andevenif the parties agree on the basic facts, their interpretations of themmay vary wildly. Fact-findingis also faulted in manysettings for a relatively low rate of success in settling interest impasses,and for drawingout impassesunnecessarily and expensivelyinstead of proceedingdirectly to arbitration or a strike. Other problems with fact-finding have been recognized, someof them of sufficient magnitudeto support argumentsfor elimination of the technique, especially whereutilized as an intermediate step betweenmediationand arbitration. The mereavailability of fact-finding maylead to excessive use by someparties and thus "chill" the bargaining process. Public opinion appears to exert little influence on the parties’ positions. It is further arguedthat the parties tend to revert to moreextremepositions after fact-finding fails and that fact-finding seldomreduces the numberof issues going to arbitration (even thougharbitration awards deviate little from recommendationsof the fact-finder; in NewYork, Kochanand his colleagues (1979) determinedthat they were identical in 70 percent of the cases examined). It is difficult to render an accurate assessmentof fact-finding’s effectiveness. Somefact-finders act primarily as mediators, others morelike a judge and jury. Fact-finding proceduresvary from state to state. Generally, only the most difficult disputes--those that cannot be settled with mediation--goto fact-finding. However, the single mostsalient criticism of the effectiveness of this method of resolvinginterest disputesis its lack of finality, as either the unionor managementmayreject the fact-finder’s recommendations. Althoughseveral states have droppedfact-finding, a majority continue to use it as a technique for resolving labor impasses. The process appears to work


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rather well in Ohio. In 1986 and 1987the State EmployeeRelations Board appointed fact-finders in 1,105 disputes. Theparties voluntarily settled before the hearing in 60 percent of the cases, and another 10 percent were settled before the fact-finder’s report was issued. The parties acceptedthe fact-finder’s recommendationsin another 13 percent of the disputes, leaving only 18 percent (202 cases) in whichthe parties rejected the findings and remainedat an impasse(Herman and Leftwich 1988:516). Florida’s experience with fact-finding under a "special master" is more ambivalent. A survey of fact-finding participants in 28 cases during 1983 and 1984found that only 30 percent of the respondentsfelt fact-finding was useful in creating movement towardsettlement, exposingthe truth, or clarifying issues. However,a substantial majority of participants said they woulduse the process again for a variety of face-savingand political benefits. Anotherstudy (Magnusen and Renovitch1989) is also moderatelysupportive of the special master procedure, observing that although very few findings are accepted in their entirety, manyof the special master’s specific recommendations do end up in the labor contract. Florida represents a uniquecase: if the special master hearingfails to producean agreement,the dispute is settled directly by the appropriatelegislative body(e.g., city council, state legislature, school board). C. Arbitration Arbitration, in any of its various permutations,is the most controversial impasse resolution procedureshort of the strike. Like fact-finding, arbitration involvesa formal quasijudicial setting in whicheach party presents evidencesupportingits position to a single neutral or a multimember board. The majordifference is that the arbitrator’s report, in mostcases, is final and bindingon the parties. Thus, arbitration is intendedto serve as a direct alternative to the strike and to unilateral employerdecision making.Ideally, it results in a fair settlement for the parties whileprotectingthe publicinterest. (In this chapterour focusis on interest arbitration, whichis concernedwith formulating a newcontract. In Chapter 10, grievance arbitration is discussed; its purposeis to determinethe rights and claimsof the respective parties underan existing contract.) Arbitration in public employment is of fairly recent vintage, having been first established in federal employment with binding arbitration provisions for postal workers under the Postal Reorganization Act of 1970. State governments beganenacting public sector arbitration provisions in 1965, starting with Wyoming and Maine in 1965. The arbitrator’s decision under someimpassesituations is advisory; the parties do not have to accept it as final. This strategy, however,is rare in the public sector, and generally out of favor as it differs in no meaningfulwayfrom fact-finding with recommendations. In the great majorityof jurisdictions, arbitration (usually followingmediation,fact-finding, or both) is binding and final.

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Arbitration mayalso be distinguished as voluntary or compulsory.In the former, the parties jointly agree to settle an impassethrough arbitration (often before an impasseevenoccurs). In the latter, binding arbitration is mandatedby statute or by an administrativeagency,usually after mediationand/or fact-finding have been exhausted. Generally speaking, both managementand labor prefer voluntaryarbitration, althoughpolice and firefighter organizationshavebeensupportive of the compulsoryform. Finally, arbitration maybe conventionalor final offer. Conventionalarbitration is the traditional approachcurrently practiced in a majorityof the states, in whichthe decision-makingauthority of the neutral is unfettered. Hemayaccept one party’s last offer or, as is often the case, "split the difference" betweenthe final positions. Final offer requires the arbitrator to select the last best offer of one of the parties as the final terms for settlement; no compromising is permitted. Final offer arbitration maybe by package, in whichthe neutral must select the last offer of one party or the other in its entirety, or by issue, wherethe items under impasse are decided uponseparately by the arbitrator. At least six states provide for compulsory tripartite arbitration, with each party designating a neutral and the third neutral chosenby the parties’ designees or by an administrative agency. Moststates, however,makesingle or tripartite arbitration optional to the parties. In manycases they select a single individual because it is less expensiveand time-consuming. The first arbitration statutes were enacted for public safety personnel on the groundsthat strikes by police and firefighters couldnot be tolerated, so some alternative to the strike shouldbe offered. Many states continueto restrict arbitration to public safety services; others have extendedthe techniqueto "essential" nonprotective service personnel in state and local government. 1. The Arbitration Process Arbitration involves the following steps: selection of one or morearbitrators, formal hearings with the presentation of evidence (but arbitrators are not bound by the formalrules of evidencethat prevail in the courtroom),and a final written decision by the arbitrator. (a) Arbitrator Selection. Whena single arbitrator is to rule in a given case, he maybe selected by the parties or be appointed by a state agency, state court, or independentarbitration agency. (Notethat the masculinegender is used here. Arbitration remains a white male-dominatedfield, although womenand minorities are gradually makingprogress in gaining spots on the rosters. Careful screening of candidates is necessaryto ensure that the selected neutral (1) will evidenceno bias towardseither party, (2) is cognizantof proceduraldue process requirements,(3) is experienced,(4) is timely in makingdecisions, (5) will clear unambiguous awards, and (6) will be knowledgeableof any special circum-


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stances surrounding the impasse or its governmentalcontext (Seltzer 1977; Ver Ploeg 1988). If a tripartite arbitration structure is implemented, a different situation prevails. Arbitrators selected by. the individualparties to take twoof the three panel seats typically act as unabashedadvocates for their appointing party (Kochanet al. 1979). Therefore,bargainingcarries over into tripartite arbitration, with the independentneutral’ attempting to develop an awardacceptable to the other two arbitrators. Evidenceof this process is presented by Kochanet al. (1979), who found that about 60 percent of the arbitration awardsthey examinedin NewYork were unanimousrulings, indicating a compromisesettlement was fashioned by the independentneutral. Labor and management negotiators usually do their homework before arbitrator selection takes place. Namesand prior records are checkedout with colleagues in other jurisdictions. Prior decisions maybe read, and tallies done on employer-unionwin/loss records under various arbitrators. Unionand industry research departments maybe asked for information, and law finns maybe retained to assess credentials. Someprivate firms "keep score" and sell their opinions on prospectivearbitrators to interested parties. The"overridinggoal is select an arbitrator whowill maximize[the party’s] chanceof winning"(Nelson 1986: 703-704). Interestingly, the disputants do not normally consider fact-finders to be acceptableas arbitrators, althougharbitrators are usually acceptedas fact-finders (Dilts 1984;Elsea et al. 1990).Perhapsthis is attributable to the superiortraining and experienceof most arbitrators. Also, some"rights" or grievancearbitrators refuse to workas interest arbitrators. Thereasons vary: the pressure cookerand fishbowlenvironmentof interest arbitration; the greater risk to an arbitrator’s professional reputation (and monetaryincome)from a highly visible, interest impasse decision; or a dislike of final offer arbitration (Helbumand Rodgers 1985;Vest et al. 1990). (b) Decision-MakingCriteria. Mostarbitration statutes specify certain criteria that the arbitrators mustconsiderin renderingtheir decisions. Thecriteria in somestates are rather broad, such as requiring that "equity" and the "public interest"be considered. Otherstates are morespecific. In Massachusetts,for example, the panel must consider ability to pay; comparablewages, hours, and workingconditions; cost of living; long- and short-term debt; average property tax burden; and other specific factors (Turpin 1997). The use of comparativedata such as salary and benefit information from similar categories of workersin neighboringjurisdictions or in the private sector plays a very importantrole in somearbitrators’ decision making(Turpin 1998). Inflation and cost of living factors are also salient, along with the employer’s ability to pay (Bazerman1985; Bazermanand Farber 1985; Feuille and Schwo-

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chau 1988). Typically, however, arbitrators focus narrowly on the immediate bargaining context and "anchor" their judgmentsto the terms of the previous bargainingcontract in order to maintainstability in the relationships betweenthe parties. Oftenthis meanssplitting the difference betweenfinal positions, in the case of conventional arbitration, or selecting the most "moderate"last offer whenfinal offer arbitration is used. Onespecific result is that existing salary structures and relationships are maintained with incremental, percentage-based adjustments(Dell’Omo1989), yet another illustration of the powerof incremental decision making. The predictability of arbitration outcomesleads Bloom (1988:123) to suggest that this process "could probably be accomplishedmore inexpensively by averaging the parties’ final offers and adding on somenoise using a computer’s randomnumbergenerator." Of course, arbitrators vary greatly in the weightthey place on various decision criteria (Dell’Omo1990). Ability to pay offers a goodcase in point. It up to the employerto marshall the strongest possible argumentsfor inability to pay what the unionis asking, using revenueand expenditureprojections, accounting data, debt levels, and other relevant information,such as a credible listing of potential service and programcutbacks or cancellations. The employer’s case maybe persuasiveto somearbitrators. Others, however,translate inability to pay into unwillingnessto pay. If the city or state musthike taxes or fees to comply with the arbitrator’s compensationdecision, then so be it (Dell’Omo1989:11). In all fairness, arbitrator vacillation and uncertaintyin applyingthe ability to pay principle is encouragedby ambiguityand the lack of statutory specificity as to whichfactors should be considered and howthey should be weighted. For example, does inability to pay meanthat statutory or constitutional spendinglimitations wouldhave to be breached? That no additional funds could possibly be transferred into salaries? That services could not be maintainedat current levels without hiking taxes or fees to meet union demands? Generallyspeaking, arbitrators, like fact-finders, must be concernedwith the fairness of their awardand its acceptability to each party. The importanceof acceptability is illustrated by the continuationof negotiationsand, in somecases, mediationduring the arbitration process (see Section E on mediation-arbitration). For example, Gerhart and Drotning (1980) showthat in Michiganthe majority of arbitration cases are settled before the arbitrator issues an award.Theneutrals frequently "caucus with the parties privately and give themclues, sometimes subtle and sometimesnot so subtle, concerningwhatthe arbitrators are likely to consider the ’morereasonable’ position." The arbitrator’s concern for fairness meansthat in states wherearbitration is precededby fact-finding, the process often amountsto a "show-cause"hearing as to whythe fact-finder’s recommendations should not be imposedby the arbitrator (Holden1976). What happens when a final binding award is rendered and one or both parties refuse to accept it? At least 10 states provideappellate rights throughthe


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courts to ensure due process and a reasonableaward.Typically, arbitration decisions maybe appealed if obtained by fraud, legal error, or collusion. In New Yorkand Michigan,an appeal maybe filed if the decision is not supported by substantial evidence. In Pennsylvaniaand Ohio, if the decision involves institutional questions or if the arbitrator exceeds his or her authorized powers, the appellate route maybe taken. Other states provide for appeals through an administrative bodyor the legislature. Asa general principle, arbitration appeals are strongly discouragedso that they do not becomea normalpart of impasseresolution; they can be costly, time-consuming,and anathemato free collective bargaining (Kochanet al. 1979:133). Yet, an appellate path must be provided correct instances of injustice or illegality. An unusual statute that serves as a compelling exampleof the need for finality in arbitration is the 1971Oklahoma Firefighters’ and Policemen’sArbitration Act, whichprovides that rulings by an arbitration panel are binding on the union(if the municipalityalso accepts the decision), but that the city is not bound to abide by the arbitrators’ award. When,in 1975, the OklahomaCity Police Departmentand OklahomaCity went to arbitration over the size of a wageincrease, the city refused to accept the decision of the panel, whichhad supported the union’s position. The police instituted a workslowdown,to no effect, and then marchedinto the city manager’soffice en masseto turn in their badges. The strike endedthree days later whenthe city madea compromise wageoffer (Greer 1978). Clearly, for arbitration to serve successfullyas an alternative to the strike, the arbitrators’ decisions mustbe final and binding on both parties and each must fully accept the process as a legitimate meansfor resolving interest disputes. For arbitration to function in a meaningfulfashion, only the legislative body, or in extraordinary circumstances, the courts, should be able to alter arbitrators’ awards.Althougharbitration issues are frequently broughtinto the judicial process, the courts havealmost universally adopted the assumptionof arbitrability prevalent in the private sector, whichrecognizesthe superiority of the arbitrator’s expertise over that of the judge (Jascourt 1979a:159-165). 2. Advantagesand Disadvantagesof Arbitration The major advantageof arbitration as comparedto mediationand fact-finding is that it supplies a balancedmeasureof finality in impasses.In mediationand factfinding, the employerenjoys more discretion and bargaining power than the union,as long as the strike is illegal or infeasible. Witharbitration, the interests of the parties are balancedwhile an end to the impasseis finalized, avoidinga strike and its accompanying service disruptions. Researchindicates that arbitration has, indeed, beenmoresuccessful in preventingstrikes than statutory strike prohibitions alone (Ichniowski 1982; Loewenberget al. 1976; Wheeler1975; Gundersonet al. 1996), although it has not completely eliminated them. Of

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course, as long as there are public employersand workers,the strike threat can never be totally exterminatedno matter whatstrategy is used. Nonetheless, the tendencyof arbitration to settle mostpublic sector impassesshort of the strike contributes to rational budget making,the continuous provision of public services, and, in a broadersense, social and political stability (see Feuille 1979:7071). But to say that the use of arbitration in publicsector labor disputesis controversial is to understate the case greatly. Themajorcomplaintsagainst arbitration are: (1) it constitutes an illegal delegationof authorityto personsnot held responsible throughdemocraticprocesses, (2) it tends to distort settlements and redistribute resourcesin favor of the unions,and (3) it destroysor chills free collective bargaining. Eachcriticism is discussed below. (a) IllegalDelegation of Authority. It has been asserted that arbitration constitutes an illegal delegation of authority to persons who,thoughnot responsive or accountableto the electorate, are charged with makingdecisions on the expenditure of public moniesand other importantissues related to the provision of public services. Thus,it is claimedthat arbitration is inimical to the operation of representative governmentand democracybecause the accountability of elected executiveand legislative officials is sacrificed to arbitrator decisionmaking on public issues. Clearly, there is no direct link betweenan arbitrator and the electorate. Heis at least four levels removedfrom the electorate if appointed by an administrative agencysuch as a state PERB.Whenan arbitrator is provided by a nongovernmental entity, such as the AmericanArbitration Association, there is scarcely evenan indirect link to the citizenry. Suchfractures in governmental accountability throughthe delegation of decision-making authority to private sector entities havebeenthe subject of extensivedebatein the literature of political science (see Lowi1979). In the specific case of public sector arbitration and the delegation of authority, the state courts havebeenthe final arbiters on questions of law and arbitrability. Early judicial decisions werenearly unanimous in declaring arbitration illegal. Arbitration was rejected as early as 1873by the Illinois SupremeCourt and thereafter by attorneys general and courts in Maryland,Ohio, Indiana, Florida, and Minnesota(Spero and Capozzola1973:289-290). Along with the allegation of illegal delegation of legislative authority, the principal groundsfor challenge in the courts havebeenthat the arbitration statute does not sufficiently limit an arbitrator’s discretion, that it unconstitutionallydelegatestaxation authority, and that the selection of arbitrators violates the principle of "one person, one vote" (Grodin 1979:242). Arbitrationhas beenruled unconstitutionalor illegal by courts in five states: South Dakota, Colorado,Utah, Nebraska,and Maryland.The constitutional issue of illegal delegationof authority wasthe basis for rejection of arbitration in Colo-


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rado and Utah. In South Dakotaand Maryland,arbitration was prohibited because of the presenceof "ripper clauses" in the state constitution whichforbid legislative delegation of the municipalfiscal and service provisionfunctionsto a private entity (Grodin 1979:242-243). Theserulings, however,are in the minority, as at least 16 state courts have upheld statutes providingfor compulsoryarbitration. Oneof the most frequently cited rulings is the Michigancase of DearbornFirefighters Local412 v. City of Dearborn(1975), in which a divided state supremecourt held that a compulsory arbitration statute did not divest home-rulecities of constitutionally grantedpowers, nor, despite the presenceof a ripper clause, did it causean illegal delegation of powerto private persons or a surrender of the powerof the city to impose taxes. Asa general rule, the state courts haveupheldcompulsoryarbitration when they have"foundthat there is a public interest in preventingstrikes, that illegal delegationdoes not occurwhenthere are statutory provisions of explicit standards and guidelines for arbitrators and proceduralsafeguardsin the form of court review, and that the powerto tax has not beentransferred in that an arbitration act is regulatory, and does not in itself imposea burdenor charge"(Schneider1988: 206). Among the actions that legislative bodies can take to makearbitration more amenablein a democracyare to specify in the arbitration statute restrictions on the scopeof the arbitrator’s authority, limitations on the statute’s coverage,and strict decision-making criteria (Feuille 1979:72).In addition, arbitrators can compelledto set forth the basis of their findingspublicly. And,in the final analysis, the legislature retains the powerto overridearbitration decisionsor to terminate arbitration or any other delegation of legislative power(Carofanov. City of Bridgeport1985). Still, the legal issues surroundingarbitration can be murky. The Ohio SupremeCourt struck downthe binding arbitration provision in 1988, only to reconsider and upholdit a year later. (b) Arbitration Favors Unions. Ideally, arbitrators should balance the interests of both parties in arriving at the terms of a settlement. Whilethis certainly is what the arbitrator intends, he mustcontend with competingcontradictory values in reachinga decision, particularly the tradeoffs involvedwith assuring comparablewages, fringe benefits, and workingconditions, and, on the other hand, protecting the taxpayer f~omexcessive governmentpersonnel costs. If such a balancecan be attained, then, over time, neither party shouldbenefit fromarbitration morethan the other. However, public sector managerswidelybelieve that the interest arbitration deck is stacked against themand in favor of the unions. Duringstate legislative debates in the 1970sand 1980son proposed arbitration laws, union support for the process as a substitute for strikes was exceededonly by public managers’ opposition. Management resentmentand dissatisfaction with arbitration, and, in

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truth, all other third-party proceduresexcept, perhaps, mediation,lingers (Giacobbe1988; Kochanet al. 1979). During the early 1990s, employerscomplained loudly in NewJersey, NewYork, and Connecticut that arbitrators gave short shrift to the impactsof their decisions on taxpayers and the financial health of the jurisdiction. FormerDetroit MayorColemanYoungadamantly opposedarbitration, insisting that it "has beena failure. Slowly,inexorably,compulsory arbitration destroys sensible financial management..,the arbitrators seemto believe there is no limit to howmuchof our moneythey should spend." Youngconcluded that compulsory arbitration awards "caused more damageto the public service in Detroit than the strikes they were designed to prevent" (Pierce 1980:2). Has compulsoryinterest arbitration been a windfall for unions, as managementand manypublic officials believe? The empirical evidence indicates that it has not. Althoughsomestudies have found that wagerates are slightly higher in jurisdictions permittingarbitration, the effects are not statistically significant (Kochanet al. 1979; Lipsky and Barocci 1978; Steru et al. 1975). However, does appear that the availability of arbitration has a significant positive impact on salaries and benefits. This relationship has beenassociated with police, firefighter, and teacher arbitration (Delaney1983;Feuille et al. 1985a,b;Olson1980; Zigarelli 1996; Feuille and Delaney1986). Apparently, then, the availability of compulsoryarbitration morethan evens up the bargaining relationship, and movesit slightly to the union’s side. Why?For one thing, the unions have an equal opportunity to submit supporting data to a true neutral whom they have helped select. Andfrom a practical standpoint, the arbitrator must be very careful to render a "fair" compensationdecision if he or she wantsto workin the samecapacity again in anotherjurisdiction. Wordgets aroundquickly whenan arbitration settlement is perceivedto be inequitable. Management is awareof these tendencies, and consequentlymaybe more likely to settle on terms morefavorable to the union than if arbitration were not available. Theunion, of course, will not hesitate to opt for arbitration when management takes a hard position viewedby the union to be against the interests of its membership (Feuille and Delaney1986). Hence,using arbitration is less important to union pay and benefit gains than having the legal authority and potential to use it. Arelated impactof arbitration is on the distribution of salaries. Generally, arbitration tends to exert a leveling effect by enhancingthe economicstatus of bargainingunits that havelagged in pay gains for their members (Feuille 1979:69; Feuille et al. 1985). Theavailability, and at least occasionaluse, of compulsory arbitration helps units at the lowend of the pay scale to catch up with similar units through arbitrators’ emphasis on the comparability criterion (Bazerman 1985; Feuille and Schwochau1988).


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It mustbe noted that the arbitration proceduresestablished through state legislation can be amendedto tilt the scales in the direction of management. At least three states haverestricted terms of settlements and interest arbitration decisions by imposingfiscal considerations, subject to legislative review(Pennsylvania, NewJersey, Wisconsin).Connecticut’sarbitration laws for state agencies and municipalities assumeda high profile during the early 1990s, as employers lodged complaintsthat arbitration rulings were financially crippling them. The state senate respondedby rejecting more than 12 contracts that had been decided by arbitrators. The legislature also amendedthe municipalarbitration law to permit local governments to appealarbitrator decisions to a secondarbitration panel, whichmayrevoke the decision of the first panel (Keating 1994). (c) Arbitration Chills Collective Bargaining. The argumentthat arbitration destroys free collective bargainingis groundedon certain related assumptions. First, it is claimedthat it is the presenceof a credible strike threat that forces the parties into a compromise. Wherearbitration substitutes for the strike there is less incentive for timely settlement; the bargainingprocess is chilled. Second,it is said that availabilityof arbitration leads to its use as a crutch, particularly by the weakerparty in a bargainingrelationship. Arbitration thus exercises a "narcotic effect": the parties becomeaddicted to its use rather than settling disputes bilaterally at the bargainingtable. Feuille (1975:303)summarizesthe chilling effect allegation as follows. "If either party, the argumentgoes, anticipates that it will get morefromthe arbitrator than from a negotiated settlement, it will have an incentive to avoid the tradeoffs of goodfaith bargainingand will cling to excessiveor unrealistic positions in the hopeof tilting the arbitration Outcome in its favor. This lack of hard bargaining will occur becauseof a significant reductionin the costs of disagreement. Notonly will there be no strike costs, the uncertainties associated with continued disagreementare reduced because of the usual compromiseoutcome:the arbitrator gives less than the union has asked for and more than the employerhas offered." Evidenceof the chilling effect is foundin several studies. In the early Pennsylvania bargainingexperience,some30 percent of police and firefighter disputes went to arbitration, while in Wisconsinthe incidence of usage was about 15 percent (Rehmus 1975). Other indications of the chilling effect are found in Minnesota from1973to 1980. In negotiations involving essential services, whichare denied the fight to strike, 30 percent of those goingto mediationendedin arbitration, versus only 9 percent for nonessential services (whichare permitted to strike) (Champlinand Bognanno1985). The narcotic effect has also been verified by researchers. For example, Kochanet al. (1979) and Lipsky and Drotning (1977) report evidence of a

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cotic effect in NewYork. Further evidence of the parties becominghabituated to third-party impasseproceduresis found for municipalworkersin Pennsylvania (Loewenbergand Kleintop 1992) and Ohio (Grahamand Perry 1993). Apparently the "newtoy" of arbitration is tried out by the parties to see what happensand, as sometimeshappens in the case of hard drugs, the users eventually become addicted. Stronger indications of the narcotic effect are reported by Kochanand Baderschneider (1978; 1981) for police and firefighters in NewYorkState between 1968and 1976. Duringthis period 85 percent of the firefighter bargainingunits and morethan 90 percent of the police units went to impasseat least once, with the total percentageof units goingto impasseincreasing steadily from41 percent in the early part of the period to 65 percent by the latter part. Moreover,80 percent of those units reaching impassein the first and secondroundsof contract negotiations during this period also went to impasse in the third (Kochanand Baderschneider 1981:438). However,different methodsof analysis and quantitative techniques have yieldeddisparate results, indicating that positive narcotic effects characterize the early experience with impasse procedures, followed by stabilization and even negativeeffects ("rejection") as the parties becomedissatisfied with third-party intervention (Lewin1985; Butler and Ehrenberg1981; Chelius and Extejt 1985). Evenif, as seemslikely, arbitration exerts a modestchilling effect on negotiations, it stretches the point to argue that this constitutes the demiseof free collective bargaining. A large majority of settlements continue to be negotiated without arbitration. Evenwhenarbitration is invoked,it frequently serves as a forumfor continuingnegotiations. And,as discussedbelow,final offer arbitration reduces the chilling and narcotic effects. Collective bargainingremainsa viable process. D.

Final Offer Arbitration

Final offer arbitration, like conventionalarbitration, does not escapethe criticism of delegating authority to private individuals whoare not responsibleto the electorate. However, final offer arbitration is intendedto allay concernthat arbitration exerts chilling and narcotic effects on free collective bargaining. Presentlyin use in 15 states and several local governmentsin someform for one or moreemployee groups(but mostoften for police and firefighters), final offer arbitration wasfirst tried by Eugene, Oregon, in 1971. Wisconsin and Michigan adopted it as an impasse strategy in 1972. The final offer maybe by package, as in Nevada,or by issue, as in Ohio. NewJersey, amongothers, allows a packagefinal offer for unresolved economicitems and issue-by-issue presentation for noneconomic questions. In Eugene,each party gives the arbitrator two final offer packages.


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Regardlessof specific form, final offer requires the arbitrator or panel to choosethe final proposal of either management or the union. (In some"tri-offer" jurisdictions, the fact-finder’s conclusionsmaybe substituted for the parties’ last offers). Themajorobjectivesof final offer are to increasethe risks of not settling and to encourage a narrowingof the differences between the parties. Conventional arbitration has beenfaulted for chilling the bargainingrelationship by tacitly encouragingthe parties to assumeextremepositions in hope that the neutral will "split the difference." Underfinal offer, the mostreasonableposition normally prevails--no compromiseby the arbitrator is permitted. States that provide packagefinal offer operate under the assumptionthat the parties will havean incentiveto settle out of a fear that evenoneissue position perceivedto be extremeby the arbitrator will result in rejection of the entire last offer and "suddendeath." Underfinal offer by issue, the arbitrator has greater flexibility in settling the impasse.In addition, selection by issue helps preclude a Hobson’schoice involving two unreasonable final offer packages. The two strategies do appear to have divergent effects. Althoughthe evidenceis somewhat mixed,there are indications that final offer by packagecreates a greater level of uncertainty than final offer by issue, thereby providinggreater encouragementfor the parties to settle (Farber 1980; Subbarao1978). Using experimental design under laboratory conditions, Subbarao(1978) found that packageselection maximizespressure on the parties and "generates genuine bargaining," but issue selection "subverts free negotiations," and "mayhave the same’narcotic effect’ as that of conventionalarbitration." Theevidencewith regard to the narcotic effect is not entirely clear in comparing final offer arbitration of either packageor issue variety with conventional arbitration. After examininga numberof empirical studies, Feuille (1975) concluded that "Final-offer arbitration procedures appear to do a somewhatbetter job of producing negotiated agreementsthan do conventional arbitration procedures," although in someinstances this maybe attributable to differences in bargaining climate and bargaining histories in the respective conventional and final offer states rather than to differences in impasselaw and procedures(Kochan et al. 1979). Meaningfulcomparisonis further confusedbecause the actual practice of final offer arbitration often divergesfromwhatis stipulated in legislation. In Michigan,for instance, during the final offer hearing, "final" offers are often changedbetween the hearing’s opening and closing by one or both parties; a whole series of "final" offers sometimesare proffered (Rehmus1974). Such practices are often encouragedby arbitrators who,in effect, are acting as mediators to promotevoluntarysettlement. In somejurisdictions this processis institutionalized in the form of "med-arb," whichis discussed below. One particular permutationof final offer arbitration appears to be a failure. This is Pennsylvania’s statute for teachers, whichprovidesfor nonbindingfinal offer, followed,if

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no settlement is signed, by a legal strike. Onlya very small proportionof Pennsylvania teacher disputes havebeen settled in arbitration (Stoltenberg 1995). Someobserversapplaudthe injection of additional flexibility into the final offer process. Certainly, the process has assumedgreater complexitysince its introduction in the states in 1971as a simple packageoffer. In addition to using final offer by issue, somestates distinguish betweeneconomicand nonmonetary issues, with final offer on the formerand conventionalarbitration on the latter. Iowaand Massachusettspermit final offers to be selected from either the last offers of the parties or fromthe fact-finders’ s recommendations. Nevadahas one of the most unusual arbitration procedureswherein the governor, prior to commencement of fact-finding, has the authority to makebinding the fact-finder’s awards on any single issue or on all of them (Grodin 1974). E. Other Impasse Resolution Procedures Med-arbcombinesthe mediationand arbitration functions in a single third party, If mediationfails to producea settlement, the sameneutral has the authority to render a binding decision through arbitration. This technique, "mediation with a club," is intended to provide a strong incentive for voluntary settlement by the parties during the mediationstage by keeping the demandsof the parties reasonable. If extremepositions are taken by one party, the med-arbitratoris likely to rule against that party duringarbitration. As an alternative to the strike or conventional arbitration, med-arbhas the addedadvantageof the arbitrator’s intimate familiarity with the issues gained during the mediation stage. The arbitration award,if it becomesnecessary, is likely to be firmly groundedin the facts and circumstancessurroundingthe dispute and thus acceptable to the parties. Med-arbhas not been widely adopted throughout the United States, which perhapsis just as well, as neutrals well trained and experiencedin both mediation and arbitration are hard to find. However,the U.S. Postal Service utilized medarb successfully in resolving an impasse involving 600,000 postal employeesin 1978. The procedure was suggested by the FMCSand accepted by both parties in a dispute involving layoffs and the size of future wageincreases. The issues finally were resolved through an arbitration award issued by the medarbitrator. Other formal experience with med-arb has been in Wisconsin, where the technique has been used for municipal and school district employees, and Ohio and NewJersey, wherebargaining laws authorize mediation during arbitration. Underthe Wisconsinstatute if a dispute remains unresolvedafter mediation, the mediator-arbitrator must attempt mediation for a reasonable period of time before arbitration begins (Lester 1984).The med-arbitratorsolicits offers fromeach party, which maybe changedafter reading the other party’s offer. Offers are exchangedas long as each interaction generates a response from the other party.


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Whenprogress toward settlement ends, the med-arbitrator assumesthe role of final offer arbitrator. The Wisconsinlaw is intended to seduce the parties into drawing ever closer together until a voluntary compromise has been attained and a mandatory arbitration awardavoided. Results indicate that med-arbhas been successful in settling impassesprior to arbitration and in discouragingstrikes (MidwestCenter for Public Sector Labor Relations 1980; Lester 1984). 1.

Labor-Management Committees

Massachusettswas the first state to experimentwith labor-management committees as an impasseresolution strategy in 1978. A breakdownin good faith bargaining in municipal governmenthad occurred, primarily over the issue of how to settle impasses. FormerSecretary of LaborJohnDunlop,a professor at Harvard University whohad experience with establishing labor-managementcommittees in industry, suggestedthat Massachusettscreate its owncommitteefor the resolution of labor disputes (MidwestCenter for Public Sector LaborRelations 1980). Shortly thereafter the Massachusetts Labor-Management Committeefor Municipal Police and Fire was incorporated into legislation. The 14-member committee is composedof 12 membersappointed by the governor from a nominations list provided by police and firefighter organizations (3 memberseach) and a local governmentadvisory committee(6 members);a neutral chairperson and vicechair are selected by the 12 gubernatorial appointees. TheMassachusettsCommittee has statutory authority to invoke jurisdiction over any police or firefighter negotiations either before or during impasse. (If intervention by the Committeedoes not take place, then disputes are settled through final offer arbitration.) The Committeeenters disputes uponthe request of one or both parties. Its job is to confer with the parties and encouragevoluntary settlement. If these mediative efforts fail, the Committeemayinvoke binding arbitration in any form it desires. A report of the Massachusettsexperience(Midwest Center for Public Sector LaborRelations1980)indicates that it wasan early success, with the Committee’sdecisions unanimousin every case in which it intervened. Duringthe first 22 monthsof existence, the Committeewas involved in 127 cases. Onlyfive went to final offer arbitration, comparedwith 97 final offer settlements during the previous twoyears (MidwestCenter for Public Sector Labor Relations 1980:6). A second state, Indiana, modeleda joint labor-managementcommitteeon the Massachusettsexperience, althoughits committeeis established voluntarily, without benefit of legislation. Representativesfromfire and police organizations (both labor and management)and the Indiana Association of Cities and Towns receive dispute resolution training and are expected to discuss statewide issues affecting police and firefighter collective bargaining. The committeemayprovide assistance in impasseresolution if requested to intervene by both parties.

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A more conventional purpose for labor-managementcommittees--to help identify, discuss, and resolve problemsin labor relations outside the formal bargaining process--is discussed in Chapter 10. 2.

Referenda--Letting the Taxpayers Decide

Strong strains of direct democracyhave pulled on the political heartstrings of manyAmericanssince the earliest Europeancoastal settlements developedindependently along the Atlantic. The concept of direct democracyhas even been applied to dispute settlement in public employment.Whenin doubt, someargue, it is best to let the peopledecide througha vote. Oneof the first to interject this line of thought into labor-management conflicts was SamZagoria (1973), whosuggested granting either party the right to take a contested issue to the public throughplacing fact-finder’s recommendations on a ballot and makingthe terms of the voters’ choiceretroactive. Until the people madetheir decision, issues mutually resolved betweenthe parties could be implementedimmediately(Zagoria 1973) or the parties could remain under the terms of the old contract (Foegen1974). Thus, a strike wouldbe skirted and those whoultimately haveto foot the bill for labor settlements, taxpayingcitizens, wouldrender a final judgment.Further advantagewouldaccrue, at least in theory, from democratically involving the public in determiningwhat is in its own"interest." Public referenda have beenused to settle limited collective bargainingissues since at least 1947in Texas, whenpolice and firefighter organizationstried to win increased wages, shorter workinghours, pay parity, and changesin civil service laws (Helburn and Matthews1980). Anti-union charter referenda have been held in a numberof California cities. For example, a 1979referendumin San Rafael provided for dismissal of public safety employeeswhogo out on strike (with no reprieve) and a reduction in pay for police and firefighters who participate in other job actions against the city. A 1985SanFranciscoreferendum rescinded comparableworth-basedpay increases that had been wonin collective bargaining. Severalcities in Coloradoare amongthe few jurisdictions that legislatively provide for impasseresolution through public referendum.Anordinance in Lakewood,for example,requires that interest disputes proceedingwithout settlement throughmediationand fact-finding be submittedto the voters if the fact-finder’s recommendations are rejected by either party. It is the rejecting party’s position that is placedin the ballot. In Denver,the positions of both parties maybe considered by the voting public if each rejects the fact-finder’s recommendations. The costs of the election (whichare substantial) are paid by the rejecting party shared by both if neither accepts the recommendations. Onthe face of it, resolving bargaining impasses through referendummay soundlike an excellent idea. Theuncertainty, or outright fear, of public involvementat the ballot box should provide a strong incentive for voluntary settlement.


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It imposespolitical accountability on a process often criticized for lacking it. Paying for the referendum represents a measure of economichardship to the parties, whomust also lay out moneyfor campaignexpenses (see Hogler and Thompson1985). Thereare someimportantdisadvantages, however.First of all, as any person withsurveyresearch experiencewill attest, it is very difficult to reducecomplex issues to simple terms. The problemis patently evident whena referendum is held on any issue. Second,the process assumesthat voters will educate themselves on the relevant issues and makean intelligent choice, a risky assumptionat best. Third, excessive delays ensue while the election machineryis programmed, ballots prepared, polling places organized, and so on, complicatingthe budgetary process (although one might point out also the extremelylong duration of many other impasseresolution procedures,particularly arbitration). Fourth, excessive politicization of collective bargaining issues can lead to rigid uncompromising postures by the major parties and harmfuloutcomes.In San Rafael, for example, a walkoutby public safety employeescould result in the unalterable dismissal of the entire police and firefighting forces. Fifth, voters are highly unlikely to approveany wageor fringe benefit increase that can lead to higher taxes. This potentially biases the processagainst the unionposition. It is little wonderthat public employeeunions have fought hard to keep off the ballot proposed referenda that could adversely affect them. Finally, organizingthe vote can be quite expensivefor both parties. 3. The Unfair Labor Practice Anotherimpasseresolution alternative is the unfair labor practice. The ULPprocess can be used to resolve issues such as scope of bargaining and complaints concerning the failure to bargain in good faith. In NewYorkState, the PERB rules on ULPsunless it can assist the parties to agree on their own.Mostof the ULPcases never reach a formal heating, being resolved successfully beforehand (Riccucci and Ban 1989). IV. THE SEARCHFOR FLEXIBILITY Eachinterest dispute in public employment is different. Givenany particular set of circumstances,one or a variety of settlement approachesmaybe appropriate. As with most everything else, there is no "one best way." Whenpublic policy deemsthe strike unacceptableas a meansof settling labor disputes, alternatives to the strike are necessary. Generally, the states havedevelopedapproachesthat permit morethan one impasse resolution procedure. The normis mediationand/ or fact-finding followed by compulsorybinding arbitration, either conventional or final offer. Of course, the exact dispute resolution packagevaries for different occupationalgroups, with arbitration often available only to public safety personnel.

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Oneof the most flexible and interesting approachesto impasseresolution is foundin the Iowastatute. Asthe initial step in the collective bargainingprocess, the two parties themselves are required to reach an agreementon whichdispute resolution procedurewill be used in the event of an impasse(a strategy borrowed fromthe Canadianlabor relations experience). If the parties are unable mutually to arrive at a procedural agreement, then statutory impasse procedureswill be invoked,consisting of mediation, fact-finding, and final offer (issue by issue) arbitration. Fact-finding is required after 10 days of nonproductivemediation. The fact-finder’s recommendations are madepublic if a settlement is not achieved 10 days after the report is first issued. If a settlementcontinuesto proveelusive, the IowaPERB mayimposefinal offer arbitration by a tripartite or single arbitrator on those issues uponwhich no agreement has been reached. The arbitrator mayselect from the final offers and the fact-finder’s report. The timetable for all proceduresis coordinatedwith the jurisdiction’s final budgetsubmissiondate. Assessmentsof the Iowamultistep procedure have been positive (Gallagher and Pegnetter 1979; Gilroy and Lipovac 1977). The parties have madecreative use of their fight to modifydispute resolution proceduresas they wish: time limits have been altered, fact-finding has been eliminated as a required step, and the issue by issue final offer arbitration stage sometimeshas beenchangedto a package form. Mostimportant, however,is the indication that the Iowaprocedures havebeen successful in holding downthe numberof disputes going to arbitration, therebyencouragingthe parties to settle voluntarily. Other states also have taken a "laundry list" approachto impasseresolution, permittingthe parties in disputeto select betweenfinal offer arbitration and the strike (Wisconsin)and betweenassorted arbitration strategies (NewJersey). Thepolice and firefighter statute in NewJersey includes the options of final offer by issue or by package,conventional arbitration, or final offer for someissues and conventionalarbitration for others. Clearly, the state and local governments are serving well in their traditional roles as political laboratories. In developingproceduresto resolve interest disputes, the states and localities provide strong evidenceof the needto adapt procedures to circumstances.In this sense public sector impasseresolution strategies illustrate the ends (an acceptable bargaining settlement) justifying the means (mediation/fact-finding/arbitration,etc.). Noone is moreaware of the ends justifying the meansthan the neutrals themselves.It is not unusualfor neutrals to exceedtheir statutory authority in the quest for a voluntarysettlement. Asnoted above, arbitrators frequently serve a mediativefunction even in the absence of a med-arbprovision. In fact, mediation maycontinuethroughoutfact-finding and arbitration, culminatingin a voluntary settlement just before the arbitrator’s award. Gradually, distinctions among the various dispute resolution processes havebecomeblurred, as mediationoften goes on during, and occasionallyeven after, fact-finding and arbitration.


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This argues for combiningmediationand fact-finding in a single neutral and suggests somepotential benefits fromconductingfact-finding before mediation. If the parties knowthat fact-finding can be followedby mediationthrough the sameperson, they should be less apt to hold back information from the neutral; voluntary settlement is encouragedonce mostof the relevant data havebeen placed on the table. NewYork’s PERBproceeds under these assumptions in initially assigninga fact-finder to an interest impasse;if this first step doesnot result in a compromise agreement,then postfact-finding mediation, or "superconciliation" maybe employed(Kochan1979:182). Wisconsinapproaches impasses in a similar but moreformal fashion through its med-arbstatute. Finally, a tripartite arbitration or fact-finding panel composed of a neutral and representativesfromeach party shouldbe recognizedfor whatit is in reality, mediationat a higher level. In sum,those whoargue against permitting mediation duringother impasseresolution processes are missingthe point: the ultimate goal is a final acceptablesettlement that avoidsthe strike. Themeansto resolution of the dispute are not as importantas the voluntarysettlementitself. Andflexibility, not ill-founded rigidity, is the key. V.

UNCERTAINTY: BENEFIT OR BANE?

The conventionalwisdomin impasseresolution holds that there is a direct relationship betweenuncertainty and the likelihood of voluntary settlement. Thus, impasse proceduresshould create an ocean of insecurity and misgivingsso that the parties will be forced to swimto an island of compromise. Arbitration supposedly fulfills this intent, as the parties can never be certain just whichside will be shipwreckedby the neutral’s decision. As noted, however,there is a marked tendencyfor arbitrators to split the difference betweenthe opposingoffers, thus establishing someboundaries within whichit normally can be assumedthe award will fall. Final offer arbitration enjoys an addedadvantage,its supportersclaim, of creating muchgreater levels of uncertainty through the mandateof an all or nothing choice. Better for the risk-averse party to compromise than face losing everything. A study by Gerhart and Drotning (1980) casts somedoubt uponthe conventional assumptionregarding uncertainty and propensity to settle. Basedon interviews with union and management officials in six states (Iowa, Michigan,New York, Ohio, Pennsylvania, and Wisconsin)during 1978 to 1979, the authors conclude that "uncertainty precipitates and contributes to the continuation of impasses" by increasing the likelihood of going to the terminal step in impasse resolution procedures. Certainly there are somesignificant costs to both unions and management whenan impasse drags on. Unionmembersmaysacrifice wagesand benefits and the union itself mustpay certain monetarycosts, including attorney fees and at

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least part of the fees and expenses for neutrals. Management absorbs costs of attorneys and neutrals also, along with certain political debits as the result of citizen unhappinessif services are disrupted. However,it should not be forgotten that in the event of a work stoppage management maybenefit financially from foregoing wageand benefit payments,and politically from "hanging tough" with the union and helping delay possible tax increases. Gerhart and Drotning claim that wheneach party feels reasonably certain in its predictions of the costs and benefits of impassefor itself and for the other party, a settlementis highly likely. Uncertaintyoverthe relative costs and benefits of impasseencouragesthe parties to delay settlement. This hypothesis receives somesupport from Farber (1980), whosemodelof the final offer arbitration process indicates that final offers tend to diverge greatly whenuncertainty is high. Knowledge,or at least apparent knowledge,of the respective costs and benefits helps bring the parties to a compromise. This perspective is intuitive if one considers the nature of the collective bargainingprocessitself. For example,if both parties are cognizantof the other’ s bottom line on a disputed issue, then the basis for compromise is writ largely and clearly. To carry the examplea step further, a city maytruly havean inability to pay a wageincrease greater than l0 percent; that is the bottomline. Theunion’s bottomline maybe an 8 percent wageincrease. Groundsfor settlement are readily apparent to both parties if knowledgeexists of the respective "unyielding"positions. Of course, the real worldof labor relations is not so simple, and knowledge of true bargainingpositions is not so easy to gain. Vl. CONCLUSION: THE BENEFITS OF IMPASSE PROCEDURES As indicated in the previous chapter, 15 states nowpermit the strike through statute, state supremecourt decision, or de facto procedures for one or more groups of employees.This wo,uld not be so if third-party procedureswere always successful in practice and presented no problemsfor accountability and representative democracy. A numberof troublesome aspects that accompanythe use of various impasseprocedureshave been discussed, including the lack of finality, the chilling and narcotic effects, the delegation of public decision-making authority to parties not accountableto the electorate, and claims by public managers that arbitration awardstend to favor the union’spoint of view.In addition, thirdparty procedures can be time-consumingand expensive (although a requirement that the parties share expensesor the losing party pay all costs of the neutral largely overcomesthis objection). It is usuallyin the interests of the parties to settle as soonas possible,so that union memberscan begin receiving any newpay and benefits and the government employer can finalize the budget and prepare for new compensationarrange-


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ments. However,time delays as a result of impasseprocedurescan be enervating. The period from impasse declaration to award has averaged 12 monthsin Massachusetts (Lipsky and Barocci 1978), and 280 to 380 days in NewYork, depending on whether the initial award was appealed to the PERB.In NewYork, "In many cases, an agreementthat the arbitrators werestill decidinghad (itself) expired, and it was time to renegotiate another contract" (Kochanet al. 1979:154). Third-party procedures(particularly arbitration) haveclearly been abused in somejurisdictions by the unions. Unionsthat are small in membership,lackin’g in political resources, or laboring under other limitations vis-a-vis management, have looked upon impasseprocedures as a meansof gaining somethingnot available at the bargaining table. Basedon her research in NewYork City over 1968 to 1975, McCormick (1979) concludesthat interest arbitration did not function as a strike substitute for small, less powerful, "nonessential" unions. Rather, arbitration was invoked more than 90 percent of the time by bargaining units that were too weakto mounta meaningful strike. McCormick attributes three different roles to arbitration: (1) providinga forumfor less powerfulgroups plead for parity arrangementswith stronger unions; (2) facilitating intraorganizational bargaining within the union and management ranks, so that a lack of consensus on bargainingpositions can be overcomeby an arbitrator’s ruling (in other words, to promoteface-saving for top officials in both parties); and (3) helping union leaders "to go all the way"for their membership,thereby asserting a leadership role and strengthening their positions within the organization. Similar developmentsare occurring in other jurisdictions with long histories of bargaining and mandatoryimpasseprocedures. In their study of NewYork local governments,Kochanand others (1979) arrived at the surprising conclusion that "Impasses were more frequent in disputes involving experienced managementnegotiators and hired professional union negotiators... Unfortunately, this implies that as the parties to bargaining becomemoreexperienced and sophisticated over time, they becomemorewilling and able to press their demandsand counter-demandsharder and farther into the impasse procedures. As a result, it becamemoredifficult to get settlements without an impasseor early in the impasse proceduresas the parties gained experiencewith public sector bargaining." Thechilling and narcotic effects of third-party procedures, it appears, may get worsein jurisdictions that have bargained collectively for manyyears and developednegotiating expertise (although at least one prominentscholar and arbitrator disagrees; see Lester 1984). This can occur despite evidencethat arbitration is a "learning experience" for the parties, whoadjust their expectations about arbitrators’ beliefs in each subsequentcontract that goes to arbitration (Olson and Rau 1997). Onewouldthink that a narrowinggap betweenthe parties’ expectations (the settlement zone) wouldbe conduciveto a negotiated agreement. Lest third-party proceduresbe overly criticized, it mustbe noted that in the majority of bargainingrelationships they seemto worksatisfactorily. Mediation

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continues to be highly valued as a flexible and informal methodof resolving disputes, and fact-finding has proveduseful in manyjurisdictions. And,as a dispute resolution devicethat includes a distinct measureof finality, arbitration in its various formshas beenshownto be a reliable alternative to the strike. In further defense of the various third-party procedures, it mustbe recognized [as McCormick (1979) found] that they fulfill important functions not directly related to avoidingthe strike. Impasseresolution proceduresact as safety valves in helping contain labor management conflict and solve labor-related problems (Babcockand Olson 1992; Lester 1986). For instance, impasse procedures help one or both parties to save face whensettlements are painful. Whena voluntary compromiseis unlikely to win acceptance by rank and file union members or management, reliance on a third party to dictate the necessarysettlement tends to deflect criticism and blamefrom the negotiating team to the neutral. Thus, union and management leaders can retain their positions of authority by using the neutral as a buffer or scapegoat, and constructive labor-management relations are maintained. These "arbitrated" agreements have becomecommonplacein manyjurisdictions, including NewYork City, Michigan, NewJersey, and Wisconsin (Lester 1986). Dispute resolution proceduresalso act to reduce conflict and build consensus betweenthe two parties on labor relations issues that have beensubjects of contention (Sulzner 1977). Actually, the most useful long-term function of impasse procedures,particularly arbitration, "maybe the mannerin whichit quietly absorbs and accommodates conflicting interest group claims over scarce public resources" (Feuille 1979:75). In this sense, dispute resolution procedurescontribute to social and political stability by providingan alternative to overt conflict and the strike. Arethird-party proceduresethically superior to the strike in public employment?In respondingto this question, we defer to John F. Burton, Jr. (1978), who concludes that "the relevant standard is the jurisdiction’s law. Public sector strikes that are legal are ethical, and vice versa." Public employeeunions are interest groupsthat havea strong voice in state and local government legislative bodies. Their preferences, as likely as not, are for third-party dispute resolution procedures. Althoughpublic employershave demonstratedan increasing propensity to take a strike, they, too, usually prefer settlementthroughless conflictual meansand, like unions, maketheir desires knownto legislators. Other interest groups also have the opportunity to lobby for what they consider to be in the public interest in labor-management relations. In response to the cacophonyof these manyand varied voices, legislative bodies must render the final decision regardingthe best meansof resolvinginterest disputes. Flexibility in dealing with labor conflicts is of the utmostimportance.

10 Living with the Contract

After the negotiations have been completed,the written agreementsigned, hands shakenall aroundthe table, and photo opportunities providedfor the media, the two parties to the agreementmustbegin the difficult task of applyingand interpreting the broad terms of the contract on a day-to-day basis. Althoughcontract negotiations steal the limelight of labor relations, the true test of the soundness and maturity of the relationship between union and managementcomes with implementation of the agreement.It is throughliving with the contract that collective bargainingexerts its greatest effects on the behaviorand attitudes of individual public workers (Kochan1980:384). A collective bargaining agreementmaybe effectively administered by each party or it maybe poorly administered. The union, like an unruly child, may attempt to tilt interpretation of the contract to its advantageby picketing, walkouts, or job slow-downs.An immaturemanagementmayignore the terms of the agreementand attempt terms and conditions of employment unilaterally. Just as in a marriage, conflict and controversy are inherent in any labor-management relationship. The key to a healthy and stable employment relationship is to manage conflict and controversyover the implementationof the contract in a peaceful manner,with due consideration of the rights and responsibilities of each party. Both parties must strive to resolve their differences amicablyin the short term so that the long-termrelationship will be maintained. In this chapter, after a brief general examinationof collective bargaining agreementsand their administration in the public sector, our attention focuses on the primary meansfor living peacefully with the contract--a responsive and effective grievance procedureculminatingin binding grievance arbitration.

I.

THE COLLECTIVE BARGAINING AGREEMENT

The negotiated contract serves as the legal foundation, or "law of the workplace," for the unilateral determination of employmentdecisions by management with a shared decision-making process between equals. 293

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The collective bargaining agreementin the United States is traditionally referred to as a "contract" muchin the sense of a commercialcontract, and like the commercialcontract, the collective bargaining agreementis enforceable in the courts. But a labor agreementis morethan a contract in that it attempts to construct a democratic system for governance of the workplace. Also, whena commercialcontract expires, the fights and duties of the parties are terminated. Laboragreementshave a life beyondcontract expiration, particularly with regard to employerobligations to contribute to health insurance and pension plans and to honor grievance proceduresthat arose during the term of the contract. The basis in the private sector for legal recourse involving contracts is found in Section 301 (a) of the LaborManagement Relations Act, whichprovides that union or management violations of contract terms maybe challenged by a lawsuit in U.S. district court. In the public sector, litigation to enforcecontracts is usually taken before a state court or the Federal LaborRelations Authority. Other potential remediesare available in both industry and government,including unfair labor practice charges before the NLRB or the state labor boardor agency. As a general rule, however,contractual disputes are settled within the parameters of the agreementitself without resort to an external forum. A. Contents of the Agreement The typical collective bargaining contract runs anywherefrom 10 to 100 pages. The documentmaybe very basic and limited in scope or, especially where bargaining relationships are longstanding, exceedingly detailed and complex.All labor relations contracts, however,are intended to provide rules for governing the parties’ relationships on a day-to-daybasis andto delineate the duties, fights, and responsibilities of the respective parties. Generallyspeaking, contract provisions maybe classified as (1) fixed, (2) contingent, or (3) dispute resolution procedures. Fixedprovisions usually remain unchangedover the life of the agreement.Theytypically include the following. Contract duration (typically one to three years) Boundariesof the bargaining unit Unionrecognition and fights Managementrights Wages Hours of work Benefits Unionsecurity Antidiscrimination clauses Residency requirements Unionpolitical activities Official time

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Reopeningclause (maybe used to "reopen" another fixed provision, such as wageincreases in the third year of a contract). Contingent provisions are intended to governunion or management actions in a changing labor relations environment. They address activities in which changeis likely. Theseinclude the following: Discharges Layoffs Reductionsin force/recall of laid-off workers Promotions Workscheduling Workassignments Transfers Discipline Disputeresolution proceduresare designedto resolve conflicts arising from contract interpretation and application, especially of the contingent provisions. Thevast majority of labor agreementscontain a no-strike provision for the life of the contract, and a multistep grievanceprocedureculminatingin binding arbitration of contract disputes. As noted, another common procedure for resolving disputes is to file an unfair labor practice (ULP)complaintwith the appropriate state or federal organization. In living with the contract, dispute resolution provisions are particularly important.Everyclause in the contract maybe subject to differing interpretations. Like other written instruments, the labor contract simply describes the terms agreed uponby the parties. Like any screed, it maysuffer from the vagaries of the written word.Duringnegotiations, a variety of tones and intonations, facial expressions, body language, and contexts enrich and expandupon formal language. Whatmayappear to be perfectly clear to the negotiating teams maylater seemto be riddled with ambiguities to the person whohas only the written words before him. Furthermore, interpretation of contract provisions can be complicatedby deliberately ambiguouslanguagethat helps to avoid a negotiations impasse.Poor drafting and "legalese" compoundambiguities. The pressure and time constraints of negotiations, along withthe fatigue they often precipitate, are not conducive to precise writing. To minimizecontract ambiguity, the drafters of the agreementshould (1) use short declarative sentences; (2) avoid excessive legalisms; (3) be precise with such terms as "agency," "union," and "employee"; (4) carefully outline proceduresin a step-by-step format; (5) use examples clarify abstract clauses; and (6) have a draft of the agreementproofreadby individuals whowere not present at the bargaining table. The drafters should also

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strive to avoid polysyllabic words and nebulous terms such as "reasonable," "equitable," and "normally." Scott and Suchan (1987) assessed the readability of a sample of public sector collective bargainingcontracts using three readability formulas, including the "Fog Index." Theydeterminedthat virtually all of the contracts were very difficult to read and understand, requiring at a minimum the reading comprehension skills of a college graduate. Obviously,manystewards, front-line supervisors, and union rank and file maybe expected to have difficulty applying the provisions of such contracts. Scott and Suchan(1987) recommend that writing consultants be used to draft contracts in plain lucid language. Nonetheless, as long as humansare fallible, vaguenessand contradictions will be found in their written agreements. B.

Disseminating the Agreement

Just as management is the initiator of most personnel-related actions, management also has the primary responsibility for implementingthe collective bargaining contract. As the action agent, management initiates policy under the agreement and the union reacts, either through complianceor challenge. It is commonlyobserved that "managementadministers the contract and the union enforces it." Assuminglegislative ratification of a negotiated collective bargaining agreement,management’s first task is to disseminate the contract throughoutthe organization and to educate the respective constituencies on specific provisions and grievance procedures. The contract maybe reproducedin its entirety and, as is often the case with lengthy or complexdocuments,its importantprovisions abstracted and explained. A fundamentalprinciple of contract administration is that all managersand membersof the bargaining unit should receive a copy of the contract as soonas possible. Supervisorsshould be allocated a sufficient number of copies to distribute to each of their subordinates, including those whoare not membersof the union (they are parties to the contract nonetheless). Usually the public employerassumesresponsibility for the costs of printing and distributing the agreementand collateral materials. The key individuals in contract dissemination are management supervisors and unionstewards. If these persons becomeintimately familiar with the contract terms early in the life of the agreement,there should be fewermisunderstandings, and, as a consequence,fewer unnecessarygrie3~ances.In fact, it is not a bad idea for supervisors to begin familiarizing themselveswith a newcontract while it is still being negotiated. Suchearly involvementenhancesunderstandingof contract provisions as they are finalized, enables supervisors to serve as valuable channels of communicationbetween employees and managementduring negotiations, and provides an early assessment of the potential impact of various union and man-

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agementproposals. Oncea newcontract is signed, supervisors should quickly dbe given a written analysis of each provision, and special training sessions shoul be held to explain the management perspective on each clause and its intent. The union should also train its stewards in the provisions of the newcontract. The bargaining agreementis "the most tangible product the union has to sell," and it can be used to elevate membercommitmentto the union (Clark 1989b:69). Newmembersmaybe familarized with contract provisions during the union’s orientation, as well as in management-sponsored orientation programs. Benefits can accrue to both labor and management fromjoint training and orientation sessions, but such programsare relatively uncommon. C. Administering the Agreement Management organization for administering the contract varies with the size of the employer.In smaller units, such as school districts or small municipalities, communication usually flows freely within the ranks of management and authoritative interpretation of contract clauses is readily forthcoming.In governmental units of greater size, multiple levels of supervisioncan hinder promptand effective contract administration. Consequently, informal communicationchannels that function very well in smaller jurisdictions tend to be supplanted by formal integrative structures, such as a central labor relations office, whichcoordinates labor relations policies betweenagenciesor departments.Interorganizational politics frequentlymakesthe job of the central office difficult at best. For example, a district director of a state social service agencywhois welt connectedwith the agencyheador influential political figures maydecide to run personneloperations her ownway, ignoring the contract. In such circumstances, the agencypersonnel director’s options are severely constrained. For successful administration of the bargaining agreement, two important objectives must be met. First, the contract must be implementedin a uniform and consistent mannerby both parties. Management should almost compulsively enforce all contract provisions in order to avoid underminingthe agreement.The supervisor who,in an effort to be a "nice person," violates the contract by, for example,permitting employeesto leave worka couple of hours before quitting time in order to get an early start on vacation or holiday leave, is inadvertently sacrificing a management right and setting the table for future grievances. The sameis true of the supervisor whooverlooks an employeeviolation of agency rules to "give the workera break." In sum, administrators mustbe very cautious in makingad hoc exceptions and modifications to contractual procedures. The union steward, for his or her part, should police the agreementvigorously and represent all membersof the bargaining unit, whetherunion memberor not, in an impartial manner.Althoughstringent adherenceto the formal contract by the parties mayseemto be impersonal, inflexible, and overly rigid at times, labor

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relations experts insist that the commitment not to take exceptionto the rule is muchpreferred to inconsistent contract administrationand the inevitable perceptions of unfairnessthat result. The secondessential objective for successful contract administrationis to maintain open communicationschannels between union and managementrepresentatives. Theadversarial approachthat typically characterizes the contract negotiations process should be replaced by a more cooperative relationship once the agreement is signed. It has been estimated that managersspend up to 50 percent of their time resolving conflicts. Conflict betweenthe parties is certain to continue during contract implementation.But conflict is not necessarily an undesirablething. Constructiveconfrontationcan be carried out in a healthy positive atmospherethrough negotiated grievance procedures. Careful monitoring of the labor-management relationship through, for example,grievance analysis, can provide appropriate feedbackfor identifying problemsat an early stage of development.Effective grievanceproceduresare a necessaryprerequisite of successful contract administrationand, indeed, an importantextensionof the collective bargaining process. Grievanceseffectively addressed today help prevent newgrievances tomorrow.The union benefits both tangibly and intangibly from representing membersof the bargaining unit, while managementgains from improved workforce morale and early problemidentification. Conflict while living with the contract permits membersof the organization to constructively confront important issues and further the organization’s mission (Rahim1992). II. GRIEVANCE PROCEDURES Agrievanceis an employeeor unioncomplaint(or, albeit infrequently, a managementcomplaint) arising out of dissatisfaction with someaspect of the contract or the workenvironment.Usually the grievance involves an alleged violation of a Clause in the negotiated contract. The nature of a grievance is "limited only by the variety of circumstancesthat might arise in the employment relationship and by the real or imagined grievances arising therefrom" (Richardson 1977: 162). The mostcommon grievancesubjects are disciplinary actions, such as reprimands,suspensions, or discharges; absenteeism; health and safety issues; vacation assignments;job assignments;promotions;discrimination; overtime; layoffs; and reductions in force. Employeegrievances over the terms, conditions, or continuation of employmentmaybe resolved in several waysin the public sector, including unilateral determination by management, civil service procedures, unfair labor practices, and contractual grievance procedures. The primary purpose of a grievance procedureis to provide a meansfor a workerto register a formal complaintabout workingconditions or other matters and receive a fair hearing. In the absence of unions and contractual grievance procedures, the employeeusually must either


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represent him- or herself or privately secure the services of an attorney. Where unions are present, negotiated grievance proceduresand union representation are available. Whilealmost all negotiated agreementscontain grievance procedures (the estimate is 95 percent in business and slightly less in government),their scope varies. Somecontracts stipulate grievanceproceduresbut never directly treat the issue of.what constitutes a grievance. Most contracts, however,either define grievances very broadly, as any disagreement or dispute between management and the employeeor union, or define them narrowly by specifying the types of grievances that maybe raised under the terms of the agreement.Somecontracts specificalIy exclude certain matters from the negotiated grievance procedure, such as designated management rights (e.g., selection, promotion, performance appraisal). Even for specified noncontract-related grievances, however, some meansof resolution should be provided, for if a grievance is raised, a problem exists whetheror not it is grievable under the contract. Noncontractgrievances give management an opportunity to resolve potential problemsin an early stage of development, "while this potential oak of a problemis still in the acorn stage" (Davey1972:145). As a general operating principle management should broadly interpret whichgrievancesare subject to contractual grievanceprocedureswhile taking care to complywith any statutory restrictions. Negotiatedgrievance procedureshave supplanted traditional civil service appeals systemsin virtually all jurisdictions in whichunionsengagein collective bargaining. Thereare importantdistinctions betweenthe twolegal settings. Civil service grievance procedures are established in statute or by the employer, whereasnegotiated proceduresare established bilaterally through union and managementnegotiations and embodiedin the contract. A grieving worker under a civil service system is essentially appealing a management decision to higher authority; a negotiated grievanceprocedurerepresents a continuationof the collective bargainingprocess throughwhichthe parties’ fights and responsibilities are clarified continually. Final decision-making authority in a civil service system typically resides in a commissionof elected or appointed officials whomust attempt to balance dual, and sometimesconflicting, responsibilities as both the executive personnel arm of management and the protector of classified employees and the merit system; negotiated grievanceproceduresnormallyprovide for final decision makingby a "disinterested" third party (arbitrator). Finally, the scope civil service grievanceproceduresfrequently is restricted by state law, municipal ordinance, or commissionrules and regulations; negotiated procedures are usually muchless limited in scope. The functions of negotiated grievance procedures go beyond merely furnishing a basic forumfor employeecomplaints. Contractual grievance procedures also help resolve differences in interpreting the written agreement,protect the rights of the union, avoid strikes over contract application, identify newissues

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for negotiations, and, in general, promotelabor-management peace in living together with the contract. Other important functions of the negotiated grievance procedure include detecting underlying problems in the agreement and in the basic functions of personnelmanagement. In all the foregoingrespects, the grievance procedurerepresents an extension of the bargaining process. Althoughthe negotiated and civil service grievanceproceduresdiffer conceptually, in practice they sometimesoverlap, providingmultiple points of access to the grievant. For example,an adverse action such as dismissal maybe appealed to a civil service commission or taken to arbitration throughthe negotiated contract in somejurisdictions. Additionalappellate venuesexist if the dismissal results in charges of sexual, racial, or other formsof discrimination. Federal sector grievance proceduresrepresent the best (or worst) example of multiple dispute resolution mechanisms.A single dispute betweena unionrepresented grievant and an agency"maybe litigated before four separate agencies and with as manyas ten different procedures" (Feder 1989:269). At any given time a grievance maybe pending before the FLRA(contract dispute), MSPB (disciplinary action), the Office of Special Counsel(whistleblowerreprimand), and the EEOC (discrimination complaint). Within the FLRAalone, there are several alternative dispute resolution paths. Notsurprisingly, confusionand lengthy delays plague the process. "Mixedcases" involving allegations of discrimination and one or morerelated matters often take four years or longer for settlement, especially if findings of the various grievance-decidingbodies diverge. Clearly, such costly, convoluted, and bewilderingprocedures negatively affect the quality of federal labor-management relations. Onewriter (Feder 1989) suggestsreplacing this multiplicity of grievance-hearingbodies with a single Federal Dispute Resolution Board. Similar levels of redundancyand complexityalso are found in somestates, but others haveattempted to end the confusion by amendingtheir collective bargaining laws so that the negotiated contractual proceduretakes precedenceover all other channels of appeal (e.g., NewJersey, Maine,NewYork). Other states (e.g., Florida) require the grievant to chooseeither the negotiated procedure a civil service procedure. A. Causes of Grievances As noted above, grievances spring from diverse sources in the workplace. Three major causes of grievances have been identified: misunderstandings,intentional violations, and symptomatic grievances (Werther 1974). Misunderstandings, which probably is the most frequent source of grievances in most employment relationships, can result from deliberate ambiguities in a newlynegotiated contract, misinterpretation or misunderstandingof contract languageby one or both parties, or fromignoranceor ineptitude in contract administrationon the part of


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the union steward or the supervisor. For example, a managerwhodemonstrates incompetencein applying the terms of the contract is likely to find his or her decisions increasingly challengedby a leery steward. As a result, the numberof grievanceswill rise. Intentional violations typically involve circumventionof a contract provision by managementbecause of "special circumstances" that have developed. For example, management maychange the hours of workto meet client demands. To prevent a waiver of future contract rights, the union grieves. Symptomatic grievances are indicative of someunderlying problemin the workplacethat is causing employeefrustration. For example, an under- or overqualified worker mayfile a petty grievanceout of personal frustration, stewardsmayraise grievances to harass management just before or during contract negotiations, or a "hard ass" supervisor mayarbitrarily crack downon coffee breaks and casual conversation. Conflictual relations during contract negotiations often carry over into the administration of the agreement,and any particularly contentious issues remainingunresolvedin the contract are apt to generate grievances. Environmentalfactors that induce complaints maybe included within the category of symptomaticgrievances. Thesefactors, whichcharacterize the broad organizational context of union-management relationships, are found in the work environment,task organization and technology, and socioeconomicconditions. In their study of the U.S. steel industry, Peachand Livernash(1974) found that grievancerates werehigher in workunits with low-skilled employees,repetitious work, jobs requiring constant attention, and other unfavorable workingconditions. In a study testing the applicability to the public sector of the environmental factors associated with high grievancerates in the steel industry, Muchinsky and Maasarani(1980) examinedtwo large state agencies in Iowaover several months. Their findings were similar to those of Peach and Livernash. In Iowa, the work environments at the Departmentof Social Services (DSS)and the Department of Transportation(DOT)were closely related to the frequencyand subject matter of grievances. For instance, state hospital and prison employeesin DSSfiled a great manygrievances over matters of discipline, health, safety, and transfers, whichthe authors suspect wererelated to the stress-ridden nature of their work. At DOT,the majority of grievances were concernedwith hours of work, wages, and benefits. Grievanceshave also been found to be associated with characteristics of the individual worker.Grievants tend to be younger,have moreformal education, exhibit greater absenteeism,earn lower wages,be moreactive in their union than nongrievants, and have a weakcommitmentto the job (especially students or part-time workers)and to their supervisors. Somestudies have foundthat minorities are morelikely to file grievancesthan whites (Labig and Greer 1987). An organization characterized by a comparatively high numberof grievances is not necessarily an "unhealthy organization," although grievances are

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costly in terms of their demandson management time, energy, and resources. The emergenceof manygrievances maysimply reflect the lack of an effective union screening process to shut off frivolous complaints, or combative union stewards (Bemmels1994). A relatively small numberof grievances maysignal trouble in terms of a lack of employeefaith in the grievance procedureor their union, or, as is sometimesthe case, the availability of a morefrequently used alternative such as a civil service systemappellate route. Alternate grievance procedures, in conjunction with a narrowerscope of bargaining, have been cited as major reasons for the lower incidence of grievances in governmentas compared to industry (Stanley 1972:54; Stewart and Davy1992:323). However,more grievancesgo to arbitration in the public sector. Thereis probablysome"ideal" range of grievances per employeein a healthy organization, but no mathematical equation has beenderived that accurately reflects the total ambienceof the workplace. It is important, however,that grievance channels be kept open and functional to serve as a safety valve, clear up ambiguous contract language,and otherwise ensure an adequate flow of employeefeedback. B. The Grievance Process Althoughthere is a great deal of variancein written, negotiated grievanceprocedures amongpublic employers,almost every plan consists of step-by-step techniques for grievanceresolution, with nearly all culminatingin bindingarbitration. Twooverriding concerns for any grievance procedure, whatever the specific steps, are that they encouragethe rapid fair settlement of complaints,and promote resolution of the grievance at the lowest possible level. Usually the numberof steps in the procedurecorresponds with clear lines of management authority. Mostgrievanceplans include three basic steps, followedby arbitration (see Figure 10.1). First, the complaintis raised and respondedto at the supervisory level. Duringthis initial phasea strong effort should be madeto settle the grievance informally. Often the grievanceis handledorally, whichpermits moreflexibility than can exist once the complaintis reducedto a written form. The duty of the supervisor during this phaseis to get the full story fromthe grieving employee, consult with the union steward if necessary, investigate the complaint through collecting data and/or interviewing other workersto determineif there are adequate factual grounds for the complaint, and render a decision one way or the other. The supervisor should record the basis of his or her decision and documentany corroborating information in anticipation of an employeeappeal. The usual secondstep in the grievance procedureinvolves union intervention and marks the commencement of a "formal" grievance. If the union grievance committeedetermines that further action should be taken on appeal, the complaint is summarizedin writing, signed by the grievant, and forwarded to the next management level. At this point both parties are well served by carefully


303

I 30 ~ys Step one

(informal, oral)

Grievance resolved

I Immediatesupervisor I

5 days

_,

Step two (formal, written)

I

~

Department head

I

10 day~

officer or a~ent,J

I

I0 days Step three

Grievance resolved

I

20 daye

I

30 days

Compromiseeettlement

or

~ ~rievancewithdrawn arbitration FIGURE 10.1 Typical grievanceprocedure.Source:McPherson (1983).

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retaining completeand accurate records of the case. The responsibility of managementat this juncture is to reviewthe complaintin view of relevant contract languageand other significant informationand try to find a meansfor resolving the dispute. Fairness and promptnessshould be of major concern to both union and management in order to demonstrateto all interested parties, especially the rank and file, that the grievance systemworksas intended in the contract. If the complaint remains unresolved, higher levels of management become involved. In municipalities the departmentheadmaymakethe final prearbitration determinationor, especially in middle-sizedand smaller localities, the mayoror city managermayfunction as penultimate arbiter of the grievance. In school districts the local school board or superintendentoften makesthe final managementdecision prior to third-party intervention. Policy in state governments varies, with state grievancecommittees,agencyand departmentheads, or labor relations divisions makingfinal prearbitration judgment.Evenwhengrievancesare settled during the early procedural stages, top management often plays an important role through consulting informally with supervisors. Thefinal venuein morethan 90 percent of negotiated public sector grievance proceduresis binding grievancearbitration by a neutral third party. In contracts not calling for third-party intervention, management makesthe final determination unilaterally or someother alternative such as grievance mediation is employed. To encouragethe promptprocessing of unresolved grievances through the system, manycontracts specify time limits. Normallya grievance must be initiated within a certain period of time or it will not be permitted to go forward through the appellate route. Such time constraints benefit labor by precluding management delaying tactics and they help alleviate employeefrustration over untreated complaints. They also help management avoid expensive retroactive pay awards. Both parties gain from the timely use of evidence concerning the grievance. Althoughthe exact time limits vary amongcontracts, a common requirementis that management representatives at each step mustrender a decision and forward it to the grievant within 5 or 10 workingdays of receiving the complaint. The employee,if still dissatisfied, has the sameperiod of timeto take the case to the next level of appeal. The time required for grievance resolution is "largely a function of the complexityof the issue and its importanceto [the] basic interests" of the parties involved (McPherson 1983:31). If the parties are mutuallyconcernedwith resolving the dispute quicklyand satisfactorily, that is likely whatwill transpire. If one or both parties chooseto "stand on principle" or fight it out to the end, binding arbitration is the result. Occasionally, management’s interests maybe served by foot dragging. For example, wheremanagement intentionally violates a workrule in the interests of efficiencyor serving the public, there is little incentiveto handlethe resulting


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grievancein a timely fashion. This is becausethe conventionalrule is for employees to "follow the order then grieve" to avoid insubordination charges. Thus, management can get awaywith a contract violation or unfair labor practice while the grievance is pending, although time limits place a ceiling on such delaying tactics. C. Representation of the Grievant 1. The Steward Anemployeeregistering a grievanceunder the contract is entitled to representation by the union steward and, in a growingnumberof instances, a union or personal attorney. The employeealso has the right in mostpublic jurisdictions to have unionrepresentation during disciplinary hearings, investigations of alleged employeemisconduct,and arbitration proceedings. The steward plays a key part in representing the employeeand, in general, ensuring that management implementsthe provisions of the contract even-handedly. The steward fills an elected or appointed position within the union for a term that runs one year or more. The steward typically is obliged to deal with employee problems during working hours. Managementrecognizes the importance of the steward function by releasing the steward for union workwith pay at the regularly assigned rate. "Superseniority" generally is granted to protect the steward fromlayoffs or other management actions that could adversely affect the performanceof his duties. Anothermajorfunction of the stewardis to enlist newunion members.A bargaining unit mayhave several stewards collateral with formal levels of management authority. If so, a chief steward normallyexercises someauthority over the various shop stewards. The steward’s role can be complicatedsubstantially whensupervisors belong to the bargaining unit. A steward can find himself representing his own supervisor before higher management,or a steward whoalso happens to be a supervisor mayhave to represent a subordinate. Even more confounding, the steward’s supervisor mayhave taken the action that gave rise to the grievance. Thusthe steward can represent a grievant whohas a grievance against the steward’s immediatesupervisor, whois also in the bargaining unit and presumably has the right to union representation. Such role confusion stands as powerful testimonyfor the needto excludesupervisors fromrank-and-file bargainingunits. Grievancehandling can be a sensitive area for the stewardand the union, and it clearly is of fundamentalimportanceto both the union and to the overall quality of labor-management relations. The steward is in a key role to influence the behavior and attitudes of bargaining unit members.Effective stewards can nurture strong commitmentto the union amongindividuals in the bargaining unit, and maximizedues-paying membership(Clark 198%;Clark and Gallagher 1988). The quality of labor-managementrelations is enhancedby stewards who

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can workeffectively with supervisors while fully dischargingtheir representation duties. Yet stewardsrarely receive extra monetarycompensationfor their efforts to carry out union-management relations within a high-pressure, stressful environment.In manyways, it is a labor of the heart. 2.

Union Duty of Fair Representation

Theunion’s duty of fair representation results from its designation as exclusive bargaining agent for all employeesin the bargaining unit. In exchangefor this designation the union agrees to represent fairly, honestly, and in goodfaith all employeeseven if they are not membersof the union. The union’s legal duty to represent all membersof the bargaining unit is provided for in the contract or in state labor legislation. The standardsfor determiningfair representation were developedin the federal courts for the private sector and applied to public employmentwith little considerationgiven to public/private sector differences. Several key court cases further delineate the duty of fair representation. The most frequently cited case is Vacav. Sipes (1967), in whichthe SupremeCourtheld that the only instance in whicha unionviolates its duty of fair representation whenit decides not to arbitrate a grievanceis whenit acts in an arbitrary or discriminatoryfashion or in bad faith. The burdenof proof, therefore, wouldrest with the grievant. However,a later decision, Hines v. AnchorMotor Freight (1976), held that the "perfunctory" processing of a grievance mayalso violate the dutyof fair representation, particularly wherethe uniondoes not investigate the potential merits of a grievancebefore droppingit. Becauseunions have limited funds for grievance processing, they cannot take every complaintall the wayto arbitration. Undermost public sector contracts and statutes, the union alone decides whichcases it will take to arbitration, eschewingthose that have questionablemerit or reflect narrowinterests, or settling before arbitration. Although "mere negligence" in grievance handling does not necessarily breach the duty of fair representation, the uniondoes havethe legal responsibility to exercise a minimallevel of care in meetingtime limits and pursuingthe evidence submitted by the grievant (Rabin 1979:301). The best route for the union is usually to file the grievance, then conduct as thorough an investigation as feasible, droppingthe grievanceonly if it clearly has no merit. Otherwise,the unionmaybe subjectedto an unfair labor practice chargeor a civil suit for breach of contract. The union that neglects to fulfill the duty of fair representation maybe courting financial catastrophe. In Bowenv. United States Postal Service (1983), the U.S. SupremeCourt ruled that a union failing to properly represent an employee fired illegally fromthe job is liable for a portion of the employee’slost wages. Charles V. Bowen,a memberof the American Postal Workers’ Union, was dismissed by the Postal Service because of an alleged altercation with a fellow worker.Herequested the union to initiate arbitration proceedings,but the


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APWU refused. Bowensued the Postal Service for illegally firing him and sued the union for failing to discharge its duty of fair representation under Section 301(a) of the Labor-Management Relations Act of 1947. A five-to-four Court majority held that Bowenwas entitled to recover financial damagesfrom both the employerand the union, apportionedaccording to degree of fault. The Court reasonedthat the union’sliability beginsat the time whenfinal resolution of the dispute would have been obtained through the grievance procedure, had the union fully represented the employee.Thus, the employer’sliability is limited, but the unioncould be held responsible for back wagesfor years, as a case slowly makes its way through the courts. One outcome could be union bankruptcy. Anotherresult of Bowenis that unions, to be consternation of management,now tend to err on the side of caution by carrying even meritless grievances all the wayto arbitration, with someinevitable congestion and delay in the grievance process. Bowensoundeda warningbell for unions at all levels of government,but it applied specifically only to postal workerscovered by the Labor-Management Relations Act. A 1989 U.S. SupremeCourt decision held that other federal employeescannot sue their union for breach of the duty of fair representation, because an administrative remedy(the Federal Labor Relations Authority) provided for by the CSRA of 1978(Karahalios v. NFFE1989). At the state and local levels, state courts and public employeerelations boards makedeterminations concerningthe duty of fair representation. IIh GRIEVANCE ARBITRATION Anygrievance procedureis intended to provide strong incentives for the parties to settle quickly. Bothgenerally wantto avoid the trouble and expenseof a prolongedgrievance and to maintaina healthy, cooperative labor environment.Inevitably, however,somegrievances are not easily resolved. For these troublesome cases grievance arbitration is frequently used as the final step in meetingthe complaint. Anoutside neutral is brought in by the parties to hear the evidence and testimonyfavoring each position and then to render a final binding judgment based on presentations of the evidence and the languageof the contract. Grievancearbitration was first used in the UnitedStates in 1871in the coal industry. It gained widespreadacceptance throughout the private sector during WorldWarII as a technique strongly advocatedby the WarLabor Boardto avoid the time and monetarycosts of taking contract disputes to the courts. Grievance .arbitration was granted formal legal status in Section 203(d) of Taft-Hartley, and received further protection through a series of SupremeCourt cases known as the Steelworker’sTrilogy (see below), whichset downthe doctrine that arbitration awardsare not subject to review in the courts unless due process has been denied or the arbitrator has exceededhis or her authority. In 1947a professional

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association, the National Academyof Arbitrators (NAA),was formed. A code of ethics for arbitrators was promulgatedin 1951by the NAA and the American Arbitration Association (see Pops1976: Ch. 2). Today,grievance arbitration has achievedalmost universal acceptancein unionized settings in the private sector and is used in manygovernmentsettings as well. Arbitration of grievances is required in the federal sector as a final step in the negotiatedgrievanceprocedure. Althoughpresent in a substantial majority of public sector collective bargaining contracts, grievancearbitration, like interest arbitration, has beencondemnedby critics as an illegal delegation of governmentauthority to an outside party whois not responsible to the citizenry or to elected officials. Althoughthe practical effects of such argumentshave not beengreat, the courts generally have held that public sector grievancearbitration is not legal unless specifically provided for in appropriate enablinglegislation (Bowers1976:35).Thereare alternative public sector forumsfor the bindingsettlement of grievances,including civil service commissions,state or local governmentgrievance committees,state labor agencies, federal or state equal employmentopportunity commissions,and the courts. Nonetheless,whereenabling legislation exists and the parties consent to the binding arbitration of grievances, as long as the arbitrator does not exceed his or her legal authority in makingthe decision, the courts have generally held that grievancearbitration is legal and desirable. A. Arbitrability Beforea grievancecan be taken to binding arbitration and the merits of the case considered,the dispute must be foundto be arbitrable. In other words,the disputants musthave agreed to place the case before the arbitrator, and the arbitrator must have the requisite authority to rule. Claims of nonarbitrability are most often madeby management,whoseprevious decision or viewpoint prevails when arbitration is denied. Claimsof nonarbitrability maybe raised on procedural or substantive grounds. A determination of procedural arbitrability dependsupon the extent to which there has been compliancewith the requirements set forth in the contract for filing and processinggrievances. Substantivearbitrability refers to whether the agreementand the law include or specifically exclude the issue(s) in question from arbitration (Bowers1976:65). Examplesof procedural argumentsagainst arbitrability include failure to sign the grievanceor submitit in a timely manner,failure to cite the provision of the contract purportedly violated, or other such irregularities. The claim that a dispute should not be arbitrated becausethe contract has expired has not been supported by the courts as long as it can be demonstratedthat the grievance definitely occurredduringthe life of the contract. Evenwhengrievancesare filed after contract expiration, grievancearbitration is usually extendedas part of the continuing duty to bargain (Decker 1994:160-162).


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Substantive groundsfor challenging arbitrability include the scope of the definition of "grievance" in the contract, management fights, and conflicts with state or administrative rules. For example, management mayclaim that an employee’s copaymentof a physician’s bills is to be settled by the employerand the insurance company,not by an arbitrator. Mostquestions of arbitrability are decided by the arbitrator, although the courts sometimesmust makethe determination (Decker1994:151).Often, an arbitrator will take arbitrability arguments under advisement and hear the merits of the case the same day so that if he decides the case is arbitrable he can then render a judgment.This increases the risk for both parties and mayencouragethemto settle voluntarily. B, Court Reviewof Arbitrators’ Decisions Thepresumptionof the federal courts in private sector cases has beenthat issues taken to arbitration should be settled by the arbitrator--not by the courts--based on the terms of the contract. Judgesshould not substitute their opinionsfor those of the arbitrator, unless the arbitrator is guilty of fraud, misconduct,or gross unfairness, or the awardviolates established public policy. This basic principle was established in the Steelworkers’ Trilogy, three SupremeCourt cases in 1960 involving the United Steelworkersof America.The Court’s decisions established arbitration as final and binding, and essentially exemptfrom court review (see Edwardset al. 1979:73-677; Colemanand Vasquez 1997). However,deference in the private sector to the Steelworkers’ Trilogy was relaxed somewhatin Alexander v. Gardner-Denver(1975), where the U.S. SupremeCourt ruled that, contrary to the Trilogy, an "arbitrator’s decision is not final and binding" if a violation of Title VII of the Civil Rights Act of 1964has occurred. Thus, a grievant can pursue a Title VII case throughgrievancearbitration under the contract, or independentlyin the courts. In other words,legislatively established fights mayoutweighcontractual rights. This principle wasalso applied in Barrentine v. ArkansasBest Freight Systems(1981), in whichthe U.S. SupremeCourt ruled that a grievant’s claim arising from statutory rights (the Fair LaborStandards Act in this case) maybe subject to judicial review, even if submittedto arbitration earlier. Somestate courts (e.g., Wisconsinand Minnesota)have adopted the Trilogystandards wholesale,deciding that arbitrators, not judges, should resolve labor disputes. Other state courts, however,have ignored or given short shrift to the Trilogy principles. Somecourts have substituted a scope of bargaining test to determinethe breadthof the arbitrator’s authority, juxtaposingthe legal scope of bargaining and the subject of the grievance to decide whether the grievance should havebeen submittedto arbitration. In other states, courts haveoverturned arbitrators’ rulings becausethey violated public policy as embodiedin statutes, previous court decisions, or common practice (Nicolau 1997:261; Bodah1999).

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Other groundsfor setting aside an arbitrator’s decision are fraud or misconduct by the arbitrator. Errors of fact, law, or interpretation by the arbitrator are not sufficient to invalidate an award(Decker1994:152). Thus, public sector grievance arbitration maylack a strong presumptionof finality dependingon the government jurisdiction. In the future, the use of grievance arbitration could be significantly altered through court actions involving federal and state regulations such as EEO,disability, and occupationalhealth and safety standards, if the courts determinethat certain individual fights go beyond contract stipulations (Levine 1985). In public employment the problemis accentuated by various federal, state, and local laws that precedecollective bargaining and provide employeeswith additional rights and remedies beyondthose established in the bargainingcontract. Perhapsnowhereis this problembetter illustrated than in equal employment opportunityissues, wheremultiple forumsexist. Asnoted earlier, a discrimination complaint maybe taken to grievance arbitration, the Federal Labor Relations Authority, the federal Equal Employment Opportunity Commission or a state or local counterpart,the federal district court, a state court, or other venues.Agrievance arbitration decision is not final and binding in discriminationcases, which maybe carried from forumto forum with de novo consideration, in a continuing search for a finding that satisfies the gfievant. C. Selection of the Arbitrator Like interest arbitration, grievancearbitration maybe conductedby a single neutral or by a tribunal. Three- or five-memberarbitration panels usually are composed of each party’s appointees and one or moremutually agreed upon thirdparty neutrals. Tribunals offer the opportunity for a full accountingof relevant information and arguments by the parties. The advocate-memberscan clarify their parties’ positions, identify possible problemswith a proposedaward, and even negotiate a settlement. The single arbitrator is less expensive and more timely in issuing a decision, an important advantagethat helps account for its substantially greater use (see Veglahn1987). Arbitration systems maybe permanentor ad hoc. Permanentsystems provide for a single arbitrator or a panel retained for the length of the contract. Permanentarbitration systemsare used in mediumto large-sized firms in private industries suchas steel, autos, and clothing, but are relatively rare in public employment.The majoradvantageof this methodis that it saves time because arbitrator selection and schedulingis unnecessary.In addition, permanentarbitrators are able to familiarize themselveswith the contract morethoroughlythan ad hoc neutrals. Nonetheless,ad hoc systemsare still predominantin both industry and government,with a newarbitrator chosen for each grievance.


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Grievance arbitrators, like interest arbitrators, are usuallyselected fromrosters provided by the AmericanArbitration Association (AAA),the National Academy of Arbitrators, the Federal Mediationand Conciliation Service (FMCS), the relevant state agency,or a local bar association. Theorganizations furnish management and the union with biographical information on prospective arbitrators. AAA biographical sketches include such pertinent backgroundinformation as experience, qualifications, and fees. The AAA charges a modestservice fee, but supplies someassistance in scheduling the heating. FMCS’s ARBIT (Arbitration Information Tracking) system provides a computerized biographical data retrieval systemupdated after each case decided by an arbitrator, and rotates FMCS arbitrator designeesfor panel referrals to encouragebalanceduse of qualified neutrals. Theseservices are providedfree by FMCS, as it is an independent federal agency. Generally, whereas both the union and managementare very interested in the arbitrator’s track record, years of experience, and demographic traits, suchdata are of limited utility in predictingan arbitrator’s decision(Kauffmanet al. 1994). Ordinarily, if the parties are unable mutually to agree on selection, they will strike names from the FMCS or AAAlist until only one remains. Lists typically contain five to sevennames. All arbitrators, regardless of the list on whichtheir nameis found, must be paid for their time. Compensationusually varies from $1,000 to$2,000 per day, dependinguponthe r~putation, experience, and demandfor individual arbitrators and the natureof the case. Additionalcosts of arbitration include the arbitrator’s meals, lodging, and travel, and paymentfor researching and writing the opinion. Arbitrators vary in their academictraining, but mosthold graduate or professional degrees and are associated with universities in somemanner.Manyare based in law schools. Theheavyinvolvementof law school faculty and attorneys has beenvigorouslycriticized by those whoclaim that lawyer-arbitrators tend to be too technical in procedure, overly aggressive with witnesses and the opposing counsel, too dramaticand emotional, overly reliant on precedent, and excessively concernedwith winninginstead of problem-solving(see Pops 1976:43-46). Such "creeping legalism" has been defendedby prolegalists whofavor lawyers’ skills in analyzing and interpreting facts and information and presenting them in an orderly fashion in the courtroom.Still, it has been demonstratedconvincingly that one doesnot require legal training to performwell as an arbitrator (Raffaele 1978:33). Arbitration remains a highly white, male occupation, but the number of womenhas been growingsince the late 1980s. Excellent qualifications and pedigrees notwithstanding, newarbitrators havea difficult time gaining acceptancein grievancecases. Thenumberof cases goingto arbitration has increasedsteadily, muchfaster than the numberof arbitrators deemedwidely acceptable by labor and managementrepresentatives. The

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qualified but inexperiencedarbitrator faces a Catch-22situation familiar to many university graduates: one needs experienceto be hired, but cannot obtain experience without a job. Althoughtraining programsfor arbitrators are offered at some universities, arbitrator selection consistentlyfavors a relatively small poolof experiencedneutrals. Thesearbitrators havelarge caseloads and, as a consequence, are slower in deciding awards. D,

Problemsin GrievanceArbitration

Twomajor grievance arbitration problems already have been alluded to: high monetarycosts and lengthy delays. Given a reasonably healthy labor-managementrelationship, perhapsthe high cost of arbitration is not completelyundesirable, as it mayinspire the parties to settle at an early stage in the process. Further economicincentive to settle a grievance prior to arbitration can be achieved through "loser-pays arbitration," in whichthe party with the weakestcase must pay the arbitrator’s fees and expensesin their entirety. Whenthe union and its members,out of frustration or for other reasons, constantly file grievances, petty or otherwise, the workenvironmentis poisoned and the union can quickly deplete its financial reserves. Sometimes,goodfaith and common sense are more important to the long-term relationship betweenthe union and management than is resolute attention to contract details. For example, local unions in Hartford, Connecticut, spawnedwidespreadcriticism by filing grievances over work done by volunteers. Whenstudents from local colleges painted someroomsin a public school, the janitors’ unionforced the city to pay the janitors hundredsof dollars on the groundsthat the union should have done the painting. Similarly, the AFSCME local filed a grievance over volunteers painting and repairing park benches.Also, after the city hired a private contractor to clean up elephantdungtracked into the civic center by workers(city equipment could not removethe smell), the unionfiled a grievance. Of course, the shoe can fit the other foot as well: a recalcitrant management mayconstantly violate the contract, forcing the frustrated union to go broke from the expenseof appeals or to go on strike in violation of the agreement. Excessivetime delay is the mostmalignedaspect of grievancearbitration. It maytake monthsafter a grievanceis originally filed before it reaches arbitration, andthen a year or morebefore a final judgmentis renderedby the arbitrators. Suchdelays, sometimesexceedinga total of two or three years, can lower employee moraleand destroy faith in the collective bargainingagreement.As Coulson (1980:496) explains: "Unionmembersexpect arbitration to be a swift and rational avenueof justice. Members becomefrustrated, alienated, and bitter when they are faced with unexplained delays, when legal mumbojumbo keeps them fromtelling their story, and whenthe resolution of their case becomeslost behind the opaqueinnuendoesof the lawyers."


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Thegrievancearbitration process, like any legal or quasilegal proceeding, is fraught with opportunity for delay and procrastination. QuotingCoulson(1980: 496) again, there are "tedious multiple steps in the grievanceprocedure;delays; unnecessaryformality; briefs and transcripts;.., long-windedargumentsby lawyers about arbitrability; attempts to keepout evidence; and adjournment,delays, and postponements,for reasons that often relate moreto the convenienceof attorneys or unionofficials than to the merits of the case." The "tedious multiple steps" Coulsonrefers to are similar to those in a civil or criminal court case, includingthe following. 1.

2. 3. 4. 5. 6. 7. 8.

Preparation for the arbitration hearing (assemblingfacts and records, obtaining depositions, scheduling witnesses and testimony, and other preliminary matters) Setting the hearing date and format Openingstatements to the arbitrator Presentation of the case by the initiating party (documentaryevidence, witness testimony, cross-examination, etc.; transcripts maybe made) Presentation of the case by the respondingparty Closing arguments Preparation of the post-hearing briefs (written arguments)and transmittal to the arbitrator Makingthe award(mayconsist of single statement of findings or summary of hearing and arbitrator’s reasoning in makingthe award).

Monetarycosts and delays in grievance arbitration are considered to be more serious problems by unions than by management.Management has deeper pockets to pay arbitration costs, and, as observedabove, delays often result in management getting its wayat least until the arbitration awardis rendered. Management’sprincipal concern, accordingto a survey of users of FMCS arbitration services, is the poor quality of arbitrators’ decisions (Berkeley1989). Anotherproblemwith grievance arbitration has to do with what happens to the grievant and his or her supervisor oncevoluntary or arbitrated settlement occurs. A disturbing analysis of outcomesof grievanceactivity in four unionized organizationsover two, three-year periods indicates that grievants and their supervisors suffer retribution from their employers.Lewinand Peterson (1999) examined grievance activity and postsettlement outcomesin a steel manufacturing firm, a retail departmentstore, a nonprofit hospital, and a local public school district. Results indicated that grievants’ performanceratings, workattendance rates, and promotionrates declined while turnover rates increased in comparison to nongrievants.Similarly, supervisors of grievance-tilers received lowerperformanceratings and promotion rates, and "were significantly more likely to be terminated from their jobs than supervisors of non-tilers" (Lewinand Peterson, 1999:572).

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Thesechilling findings were not attributable to grievancefliers and their supervisors being less competentperformersthan nongrievantsand their supervisors, becauseno significant differences weredetectable in job performanceevaluations betweenthe twogroupsin years prior to and during the filing and settling of grievances. Theconclusion,then, is that personnelinvolvedin grievancestend to be punished, muchlike whistleblowersexperienceretribution after they expose their employer’s wrongdoing.The unfortunate implication for employeeswho feel unfairly treated on the job is that theyshouldsuffer silently or face retribution (Boroff and Lewin 1997). E. Standardsfor Arbitrator Decision Making The degree of arbitrator emphasison legal principles and proceduresis a reflection of whetherone takes a "judicial" or a "problem-solving"approachto grievance arbitration (Davey1972:169). Thoseassuminga judicial posture believe the contract should be the primary instrument governing the relationship between the parties and, of necessity, the decisionof the arbitrator. Thejudicial arbitrator is likely to require proceduralrules as extensive as those used in the courtroom and to mandatewritten transcripts, court reporters, and post-hearing briefs. The "problem-solving"arbitrator, on the other hand, views the contract as a documentprovidinggeneral guidelines for the parties and the arbitrator, withthe arbitrator’s function being primarily mediative in promotingmutual accommodation betweenthe parties. Problem-solvingneutrals tend to have a broader, moreexpansive and innovative approachthan those taking a narrowjudicial, or "strict constructionist" approach to arbitration (Davey1972:166-168). Of course, any arbitrator’s principal interpretive duty is to makean award in accordancewith the express terms and conditions of the contract and the key elementsof the case at hand. Thelegal doctrine of stare decisis used to establish case precedent in the courtroomdoes not apply to grievance arbitration, unless a permanentarbitrator uses earlier decisionsto build continuity in contract interpretations. Rather, each decision is arrived at de novo,with the existing agreement serving as the primary benchmarkfor the arbitration award. Among the specific case-relatedfactors arbitrators take into accountin arriving at a decisionare management’sconduct and consistency in applying the languageof the contract; the grievant’s workhistory, job performance,and seniority; proceduralerrors by either party; and various mitigating circumstances (Bohlander1994; Simpsonand Martocchio 1997; Haber and Karim 1995). In interpreting the contract, arbitrators sometimesfind that the languageis unclear or ambiguous.For example,a contract maystate that leave time around Christmas should be applied for "as soon as possible." As a commentatorobserved long ago, "Given the obvious pressures of labor-managementrelations and the steady deterioration of Englishprose usage, it is no wonderthat collective


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bargainingagreementsare generally clumsy,inarticulate, and replete with provisions that are mutually contradictory" (Rubenstein1966:704-705).In such cases certain "rules of contract construction" are adoptedby arbitrators, including the following. 1. The commonor popular meaning of language takes precedence over a special meaning. 2. Technical words are ascribed technical meaningunless local usage clearly indicates a different intention by the parties. 3. Conflicts betweengeneral provisions and specific provisions are settled in favorof the latter. 4. The express inclusion of certain items or guarantees in the contract meansthat those not listed were intentionally excluded. 5. The intent of the parties whenthe languagewas written is considered. Witnesses, notes, rough drafts, and other sources maybe examinedto help determinewhat the parties intended by certain words. Whenthe language of the agreement is exceedingly ambiguousor incomplete with regard to the grievance, the arbitrator mustgo well beyondthe contract to determinethe parties’ intent. Thereare several standards that maybe used to discern the intent of the parties whenthey signed the agreement. 1.

Past Practice

Past practice is the standard most frequently used to clear up hazy languageor to guide the arbitrator whenthe contract is silent. A widelyaccepteddefinition of past practice is "a reasonably uniformresponse to a recurring situation over a substantial period of time whichhas been recognizedby the parties implicitly or explicitly as the proper response"(Miller 1979:203).As "the objective manifestation of the meaningsthe parties assumedat the time the agreement was signed"(Fen’is 1975:226),past practices carry great weightin contract interpretation. For example,if municipaltrash collectors have been provided with cleanup time at the end of their shift for several years and the Director of Sanitation suddenly revokes this practice even though job conditions have not changed,an arbitrator (barring contract languageto the contrary) wouldhave strong reason for siding with the grieving sanitation workers. 2.

Prior Bargaining Record

The secondstandard used by arbitrators to clarify contract languageis the prior bargaining record of the parties, particularly whennewlanguageis confusing. Here the neutral mayexamineminutes or other records of bargaining sessions, contract supplements,or, on occasion, oral testimony. A common practice is for the arbitrator to find against the party whodrafted newcontract languagewhen an ambiguityforces the loss of a benefit by the other party, the logic being that

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the drafting party had the opportunityto avoid any potential doubtof the intended meaningof the language. Only whenthe drafting party can showthat the other party had not been confused or misled as to the intent of the language is the drafting party freed of this responsibility. 3.

Previous Arbitration Awards

As noted earlier, stare decisis does not formallyhave standingin grievancearbitration awards. Eachcase is treated as unique. Nonetheless, prior decisions can and do exert an impact on subsequent rulings whencircumstances are similar. Manyawards are published and read by other arbitrators. Althoughnot legally binding,such decisionsare likely at least to havean indirect instructive influence on someneutrals. 4. Other Considerations After listening to the argumentsin a grievancecase, the arbitrator mustdetermine which party should prevail based on the evidence submitted, the contract language, and other relevant factors. In mostgrievancearbitration hearings, the burden of proof rests with the party whobrings the action. However,management has the burden of proof in disciplinary and discharge cases, whereasthe union normally shoulders the burden in contract interpretation issues. Studies have shownthat the party bearing the burdenof proof loses moreoften than it wins, no doubtbecause"it is moredifficult to provea claim than to refute it" (Dilts and Leonard1989:340).Interestingly, public sector grievants tend to fare better than private sector grievants in terms of winninga higher percentageof cases, and being suspended or terminated less often (Mesch1995). Like decision makersin all settings, arbitrators silently and often unconsciously filter case informationthrough their sets of personal values. In other words,throughpermittingtheir personal values to influence their decisions, arbitrators can be guilty of bias. For example,alcohol abusers are often treated more sympathetically in substance abuse discharge cases than are abusers of illegal drugs. The alcoholic tends to be viewedas a person suffering from an illness, but the illegal drug user is held responsible for misbehavior.Yet, most contracts do not distinguish betweenthe use of alcohol or other "intoxicants" on the job (Thornicroft 1989). Does the grievant’s gender matter? The evidence is inconclusive. Early studies found that womenwere more likely than mento win their grievances (Bemmels1988). The implication was that arbitrators, whoare predominantly male, tend to give women preferential treatment (as do judges in criminal cases). Morerecent research either finds no gender-associateddifferences in arbitration outcomes(Steen et al. 1994) or at least in one study, that womenlose more cases than mendo (Mesch1995). If malearbitrators once acted paternalistically toward female grievants, perhaps they have nowbeen sensitized to avoid gender


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bias. In general, the arbitrator’s gender,experience,training, and occupationare not important determinants of case outcomes(Zirkel and Breslin 1995). IV. GRIEVANCE PROCEDURESIN FEDERAL EMPLOYMENT Prior to the appointment of President John F. Kennedy’s Task Force on Employee-Management Relations, no uniform system for handling federal employeegrievances had been established, although most federal agencies had created their ownin-house system. Uponthe recommendation of the Task Force, President Kennedyissued Executive Order 10988in 1962, which directed all federal agencies to developgrievance and appellate proceduresincluding, if desired, advisory arbitration as a final step. Final decision-makingauthority on grievance systems thus continued to reside with agencyheads, as they were free to reject the opinion of an arbitrator. Meanwhile,grievants could process their complaints through regular, preexisting agencyprocedures if they so desired. This bifurcated system was roundly criticized by both unions and management, and the absenceof a final and binding step short of unilateral management action was a source of particular discontent for the employeeorganizations. The inadequacies of the federal grievance procedures were addressed in President Richard Nixon’s Executive Order 11491of 1969, whichpermitted negotiated procedures, including binding arbitration, to serve as the exclusive methodfor resolving grievances over the life of the contract. A subsequent amendmentto E.O. 11491 (Executive Order 11616), mandatednegotiated grievance procedures in all federal labor-managementcontracts. Underthese executive orders federal agencies and their unions established step-by-step procedures similar to those in the private sector and state and local government,manyof themculminatingin binding arbitration. Federal grievance procedures today are provided for in Title VII of the Civil Service ReformAct of 1978, which incorporated manyof the executive order provisions. Underthe CSRA federal employeesand their unions are guaranteed the right to present and processgrievancesundereither the negotiated system or regular agencystatutory procedures, but not both, for cases involving demotions, dismissals, and other adverse actions. The negotiated grievance procedure, which must culminate with pending arbitration, is the only channelavailable to employeesin the bargainingunit for all matters covered solely by the contract. Complaintsinvolving discrimination, occupationalhealth and safety, and other matters addressed in federal laws, may be processed through the contractual procedurewithout prejudice to subsequent review of the case by the EEOC,the MSPB,or the federal courts. A federal arbitration awardmaybe appealed by either party to the Federal LaborRelations Authority on groundsthat the terms of the awardconflict with existing statutes

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or agencyregulations, the arbitrator exceededhis or her authority, the awardwas not taken fromthe written contract, the arbitrator wasbiased or refused to hear pertinent information, or the award was based on incomplete information (Edwards et al. 1979). The award must be appealed within 30 days or it becomes final. All federal labor agreementstoday must provide for someform of final binding arbitration. Amajority stipulate that a single arbitrator is to be chosen from lists provided by the AAAor FMCS,and arbitration costs shared by the parties. Althoughthe groundsfor contesting arbitration awardsare fairly narrow, and appeals pertaining to adverse actions by management maybe taken directly to the federal courts, as manyas 20 percent of all federal awardsare appealed to the FLRA(Frazier 1986:7). This is a muchhigher rate than in the private sector, and it has caused case backlogs. However,the FLRA usually upholds the arbitrator’s decision. Nearly always, FLRA modificationor rejection of an arbitrator’s awardis basedon a finding that the awardis contrary to existing statutes, roles, or regulations. Federal arbitrators are held moreaccountablefor laws external to the contract than are private sector or state and local neutrals. Theyalso mustbe attentive to decision-making standards used by the Merit Systems Protection Board in cases that maybe filed under either an agency’s statutory appeals procedureor the negotiated procedure(Cornelius v. Nutt, 1985). Generally, the federal grievance process has not received great acclaim. Frivolous and frequent complaintsclog up the system, the systemis plagued by high costs and cumbersome lengthy procedures, and options for informal resolution of problemsat an early stage are scarce (Sulzner 1997; Roberts 1994). V.

NEW DIRECTIONS IN GRIEVANCEHANDLING

The manycriticisms leveled at conventional grievance procedureshave led to a search for reformsor alternatives that wouldbe faster, simpler, and less expensive. Onereform, knownas expeditedarbitration, essentially speeds up existing arbitration processes. Othernewdirections in handlinggrievancesare characterized by the term "alternative dispute resolution." A.

ExpeditedArbitration

Expeditedgrievancearbitration (also knownas "instant arbitration") is designed to reduce the time and monetarycosts of resolving grievances. It is a fairly new innovation, first used in the private sector in a 1971contract between10 steel producers and the United Steelworkers of Americato reduce a large backlog of unsettled grievancecases. In public employment expedited arbitration was initiated in a 1973contract betweenpostal workersand the U.S. Postal Service.


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Expeditedarbitration systemsvary fromplace to place, but mostare characterized by the following. 1. Cases are screenedto identify routine, nonprecedent-settinggrievances for expeditedarbitration. 2. An informal atmosphereis maintained, with no transcripts or written briefs. 3. The arbitrator must issue the awardwithin a very short period of time (normallywithin five days). 4. The awardis written in one page or less. 5. The arbitrator mayhear morethan one case in a single day. 6. Costs are low, and shared by the parties. Expeditedarbitration differs fromconventionalgrievancearbitration in its informal nonjudicial atmosphere, the lack of precedent setting, and the more timely nature of the proceedings.In somejurisdictions arbitrators mayevenissue their decisions immediatelyafter hearing a case. Expeditedarbitration is not intended to replace regular arbitration, but rather to be used in conjunctionwith it for quickly resolving less important or minorgrievances. A large accumulationof minordisciplinary cases persuadedthe U.S. Postal Service and four major unions to implementexpedited arbitration on an experimental basis in 1973. Within two years the backlog had been reduced substantially (Frost 1978:468).Today,expeditedarbitration in the Postal Service begins with a national screening committeethat assigns grievancesto expeditedor regular arbitration. Cases to be expeditedare listed with the FMCS or AAA for assignmentby those organizations to individual arbitrators. Decisions maybe issued either orally or in a one-pagewritten formrequired within 48 hours of the completion of the hearing. Awardsmaynot be used as precedent for subsequentcases. Althoughexpeditedarbitration in the Postal Service has recordedtime and cost savings, somedifficulties havearisen. Initially there wasa highrate of resignations by arbitrators whofelt overburdenedby the pressure of hearing up to three cases per day, althoughthe dropoutrate decreasedconsiderablyas arbitrators becamemoreaccustomedto the procedure. In addition, like other grievance procedures, expedited arbitration suffers a shortage of trained personnel. However, the Postal Service instituted a training programin conjunction with the AAA that has helped alleviate this problem. Massachusettstried expeditedarbitration, then halted the experiment.Critics arguedthat althoughexpeditedarbitration mightincrease the quantity of grievance awards, it might also decrease the quality of the decision-makingprocess by providingless time for the arbitrator to study and deliberate the case (Seitz 1975). Others have chargedthat expeditedarbitration discouragesjoint problemsolving betweenthe parties, and that the lack of precedentand written decisions discouragesuniformity in arbitration awards.

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Still, expeditedarbitration offers importantadvantages.When routine, relatively uncomplicatedcomplaintsare processed, there should be little or no loss of decision quality. Grievancesconcerning job reinstatement or back pay are especially suited for expeditedarbitration becausethe rapid decision diminishes the financial liability of the employerwhile ensuring that a wrongedemployee receives what is comingforthwith. Expeditedarbitration has been demonstrated to cut costs and reduce delays in settling grievances. A popular adage holds that "justice delayedis justice denied." Aslong as its limitations and proper applications are understood,expeditedarbitration can help ensure that public employees receive a fair and timely hearing of their grievances. B. Alternative Dispute Resolution The seeminglynatural path for labor-managementconflict concerning the contract is escalation. Conflict maygrowdirectly, such as throughincreasinglyvitriolic confrontations, or indirectly, throughignoring the conflict until the problem inflates into significant proportions. As noted above, the conventionalgrievance process, court actions, and regulatory proceduresare time-consuming,expensive, and frustrating. In these adversarial processes, for every winnerthere is a loser. The basic premise of alternative dispute resolution (ADR)is that labor and managementrepresentatives can constructively confront issues and mutually explore their resolution. Conflict is viewednot as warfare, but as an opportunity to develop positive outcomesthat reasonably satisfy both parties (Faerman 1996). ADRincludes a variety of processes and mechanismsthat involve joint decision makingin whichthe parties, with the assistance of a facilitator or mediator, workthrough their problemsuntil they find a settlement with whichthey can live. Hence, grievances are resolved before they moveto arbitration. The relationship betweenthe parties does not suffer fromadversarial engagement and, ideally, it evenimproves. C.

Grievance Mediation

Grievancemediationinvolves intervention by a neutral mediatorinto a potential or actual impasseover the application or interpretation of contract terms. The goal of grievancemediation,like mediationof interest disputes, is for the neutral to help the parties resolve their differences voluntarily. Themediatorsact much as they wouldin an interest dispute, meetingindividually and jointly with the parties and trying to devise a mutually acceptable settlement. Grievancemediators mayuse their knowledgeof the facts to convincethe party with the weaker position to settle instead of goingto arbitration (Caraway1989:496). Grievancemediationoffers cost savings because it avoids arbitrator fees, attorneys’ fees, travel, and related legal costs. Cost advantagesalso accrue be-


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cause grievance mediationis a muchfaster process than arbitration. The mediator operates in a relatively informal and highly flexible atmospherefree from the proceduralconstraints placed on an arbitrator. The mediator’sproposedsolution, for instance, normallydoes not have to be reducedto writing, and case preparation is muchless thorough.Monetarysavings are particularly significant for federal sector grievance mediation, where the FMCS will furnish a mediator to the parties without charge, and in state and local jurisdictions that avail themselves of FMCS services or free mediation aid from the state labor relations agency. Evenwhenmediators must be paid, savings over arbitration mayeasily run into thousandsof dollars. Anadditional advantageof grievancemediationis that it sets no precedents for future contract interpretation. If, for example,a grievancearises over an issue that has not fully developed,such as AIDS-relateddiscrimination, it maybe more advisable to mediate a settlement than arbitrate it because the binding feature of arbitration maycause future problems. Thus, grievance mediation allows a newissue or problemto develop morefully before a precedent-setting ruling addressesit. Users of grievance mediation (both grievants and management)report greater satisfaction with the final resolution of the disputethan do those whogo to arbitration. Theprocessis muchless adversarial and combativethan arbitration. It relies on joint problem-solving by the parties, whomayexplore a variety of options without risking anythingevenif arbitration must ultimately be employed. The mediator helps the parties sort out the key issues from the less important ones and to discover wheretheir true interests reside. Then, the mediator helps developa solution that satisfies the interests of both parties (Kriesky1994:243). Favorable results have been reported from California (Caraway1989), Massachusetts (Bonner 1992), Michigan (Gregory and Rooney1980), Ohio (Nelson Uddin1995:208), Washington(Skratek 1987), the U.S. Postal Service, and several federal agencies. The U.S. Postal Service (USPS)has been a leader in grievance mediation, implementinga numberof pilot projects during the 1990s. For example,under the REDRESS program (Resolve EmploymentDisputes Reach Equitable Solutions Swiftly), membersof bargaining units are offered an alternative to the conventional EEOcomplaint process. Within two weeksof receiving a request, USPS schedules mediation. The Justice Center of Atlanta selects and sends an experienced neutral to the USPSfacility. The employeemaychoose to be represented by a private attorney, a unionrepresentative, or a coworker.The mediatorapplies interest-based techniquesto help resolve the dispute. If mediationfails, the employee mayreturn to the conventional EEOprocess. A 71 percent settlement rate was reported (Bingham1997). REDRESS users reported satisfaction with outcomes,as well as with their ability "to control the process, present one’s views and participate in the process, and receive respect and fair treatment from

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the mediator" (Bingham1997:291). By 1997, REDRESS had been expanded 27 cities (Anderson and Bingham1997). Reports from grievance mediation experiences in state and local governmentalso indicate substantial savings in time and money,remarkablyhigh rates of settlement, and overall satisfaction with the process on the part of both unions and management(Kriesky 1994:244-245). Are the much-toutedbenefits of grievance mediationas great as reported? Feuille (1992) has raised questions about the accuracyof reported time and monetary savings. Hesuggests that a large proportionof the grievancessent to mediation wouldnot have been arbitrated anywaybecause of being droppedor settled before arbitration. Moreover,he suggests that the existence of mediationmight keep grievances "alive" longer and thereby increase total costs. Thus, the purported benefits of grievance mediationcould be illusory (Feuille 1992:137-139). There are other disadvantages to grievance mediation. There is a shortage of trained neutrals. Arbitrators appear to be unsuitable for grievance mediation chores because of a basic professional conflict of interest: if grievancescan be settled at a low cost throughmediation, fewer cases will pass on to arbitration and as a consequencethe incomeof arbitrators will atrophy. Also, the lack of a written record and formal procedures makesgrievance mediation inappropriate for seminal, precedent-setting cases or cases that can be litigated beyondthe contractual procedures(e.g., "mixedcases"). Other ADRmethods include the ombudsmanand peer review. The ombudsman is a neutral third party designatedby an organizationto assist a grievant in resolving a conflict. The ombudsman mayprovide counseling, help develop factual information,and attempt to reconcile the disputing parties throughhis or her powersof persuasion. Usually, the ombudsman is hired by the organization to workfull time at resolving conflicts. In peer review, a panel of employees(or employeesand managers)listens to the parties’ argumentsand reviews evidenceto decide an issue in dispute. The decision of panel members,whoreceive training in handling sensitive issues, mayor maynot be binding on the parties (U.S. General AccountingOffice 1997). VI.

CONCLUSION

Labor and management alike share important responsibilities in ensuring that they and their constituencies live with the contract in a reasonablyefficacious fashion. In a healthy cooperative relationship, they eschew"brinkmanship,"constantly pushing grievance proceduresto the final step in an effort to makethe other side blink. Bothparties strive to ensure that their representatives in labormanagement relations, especially supervisors and union stewards, are well trained in grievance handling and intimately familiar with the terms and conditions of the agreement. Both explicitly seek to keep communicationschannels open and


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clear, and resolve grievancesat the lowest level possible. Finally, both strive to keep time and monetarycosts low. Eachparty has its ownspecial responsibilities in effectively administering the agreementand handling grievances. For its part, management should monitor the behavior of supervisors in administering the contract to ensure negotiated grievanceproceduresare functioning properly and grievants receive a fair hearing. Management also should be willing to admit whenit is wrong. Union representatives should carefully screen employeecomplaints and drop those that are petty, and at the sametimetake great care to ensurethat valid grievancesreceive a fair heating. The union mustalso take caution to represent each memberof the bargaining unit with the sameenergy and dedication, whether a member of the unionor not. Conflict on the terms and conditions of the contract is both inevitable and healthy. The goal is to managethat conflict productively and avoid damagingthe long-term relationship betweenthe parties. CASE STUDY10.1:

CHAIN OF CUSTODY

OnMarch1, the city of GardenWayhired ThelmaWoodall,age 23, as an administrative assistant in the office of the mayor.Thelmawasthe top candidateamong those interviewed for the job and she appeared to be a bright, energetic, and personable employee. GardenWaybegana drug-testing programlast June in which all essential and confidential employeesare randomlyscreened for illegal drug use. Thelma was tested on May3, and her urine samplewas positive for marijuana. At first Thelmadenied using marijuana, but finally she admitted taking two puffs on a reefer at a party on February10. She said it was the only occasionshe had ever used any prohibited substance. Thelmawas dischargedboth for the positive drug test results and for initially lying about her drug use. She appealed through the grievance procedure and was represented by her local AFSCME unit. In arbitration, management introduced as evidence the two reasons for Thelma’sdischarge along with the fact that she was still a probationary employee.The union introduced evidence that a significant chain of custodyproblemexisted with the urine sample,and asserted that the sample could not be traced conclusively to Thelma.Additionally, the union stated that Thelma’sdrug use occurred before she was hired, that it took place off the job, and that her performanceon the job to date had beenexcellent. Questions 1. 2.

If youwere the arbitrator hearing this case, explain what your ruling wouldbe and the reasons you wouldgive for your decision. Is it fair and reasonable to discharge Thelma,given the circumstances of the case?


11 Public EmployeeUnions in the Future

Unionsin the United States seem to be perpetually "at a crossroads." Private sector labor organizations have been buffeted by manyforces during the past half century and, as noted in ChapterOne,if there is to be a "final" crossroads, they maybe poised at that very intersection today. Public employeeunions are not immuneto the ailments of their private sector counterparts and they face special challengesof their own.Followinga brief discussionof the steady decline of private sector unions and hints of a recent resurgence,this concludingchapter examinesthe challenges and opportunities for unions in government.

I,

THE DECLINE OF PRIVATE SECTOR UNIONS

For some45 years labor union membershipin the private sector workplacehas beenfalling. At the apex of uniondensity, one-third of the nation’s nonagricultural workers were membersof unions. The proportion had fallen to about 12 percent by 1990, and hovers around 10 percent today. Despite excitement in the labor communityand the promiseof morevigorous national leadership that accompaniedthe election of John J. Sweeneyin 1995 as president of the AFLCIO, the labor movement continues to struggle. As we observedin ChapterOne, the fading fortunes of private sector unions have brought forth an abundanceof discussion, debate, and scholarly research. Membership decline is attributed to far-reaching economicchangesin the United States and abroad that have both shifted jobs from high-wage,union-friendly locations to low-wage,union-hostile areas of the country and altered the composition of the labor force and the very nature of workitself. Unionleaders and sympathizerslay the blameon an unfavorablelegal environmentthat constrains organizing and encourages bias against unions, and on aggressive management opposition and corporate "union busting." It is also suggested that old-style, self-serving unionleaders havefailed to steer their organizationssuccessfullyin 325

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the neweconomicclimate, faltered badly at organizing new members,and, at times, have been their ownworst enemieswhenit comesto cultivating public support for organizedlabor. If one thinks of organizations as living organisms, they must maintain or even growtheir resources and strategically adapt to the inevitable and unceasing changes and turbulence in their environment. Thosethat do adapt successfully will grow and prosper. Those that fail to do so will follow the dinosaurs into eventual extinction. Theforces aligned against effective adaptation tend to produce organizations that are "prisoners of inertia" (Raskin 1986:4). There are intemai constraints against upsetting prevailing economicand political relationships. There are exchangerelationships that benefit organizational leaders and internal groups, but whichcan contribute to the displacementof primary organizational goals. Andthere are external forces that influence an organization towardsinertia and staleness, such as public policy barriers, economiclimitations, and constraints of legitimacy (Hannanand Freeman, 1977). All of these and more have combinedto hamperprivate sector unions. Structural shifts in the nature, location, and technologyof employment have an impact on a union’s ability to recruit new membersand maintain membership strength. Today,a growingnumberof jobs are not linked to the traditional workplace, but rather to informationtechnologyand the "virtual office." It is rapidly becoming a "world where anything can be made anywhere on the face of the earth and sold everywhere else on the face of the earth" (Thurow1996:9). Changesin social and political values haveelevated individualismand the pursuit of wealthover the values of social equity and collective action that havenurtured unionization. Andpublic policy under the NLRA is less than conduciveto unionization and collective bargaining in the corporate sector (Forbath 1991; Dunlop Commission 1994). Yet the likelihood of congressionalaction to "level the playing field" for unions and management is extremelyslim. Ultimately, the bulk of the responsibility for the failure of private sector unionsto adapt to their changing environmentmust be laid at the feet of unimaginative, reactive, and in some situations, self-interested and corrupt unionleadership. Labor, "neck deepin its ownfailures and betrayals, corruptions, and bad faith" (Fraser 1998) has poisonedits ownwell, as illustrated by the frequent involvementof the International Brotherhoodof Teamsters, the International Longshoreman’s Union, and others in assorted scandals and entanglementswith organized crime. The revitalization of the AFL-CIO under the leadership of John Sweeney showspromise of boosting the fortunes of unions. Organizing successes have beenrecordedin the health care and textile sectors, amongothers, and the profile of private sector unions has been elevated through the national political arena. Still, the political strength of Republicansand conservative Democratsin Congress mitigates the possibility of significant unionbreakthroughsin public policy.

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Unions have risen above more severe constraints in the past than those they confront today, such as the repression of unionization under the criminal conspiracydoctrine in the early 1800sand the violent suppressionof strikers by company-hiredgoonsquads during the 1870s. If private sector unions can truly rise abovetheir doldrumsand shake off the bureaucratic and other rigidities that constrict them, and demonstratetheir continuingrelevance to the newworkforce, membershipand resource growthwill follow (Shostak 1991). Morebroadly, labor must define its mission as one that movesbeyond"more"and towards equating the goals and purposesof the union with those of a broader range of prospective members.Organizedlabor must, in short, offer coherent alternatives to the nonunion workplace to a muchlarger segmentof the workforce. II. CHALLENGESFOR PUBLIC EMPLOYEE UNIONS Like their counterparts in the world of business, unions in governmentare also poised at somethingof a crossroads. Althoughthey have not yet experienced the downward spiral suffered by private sector organizations, public employeeunions reached a growth plateau during the early 1980s. They have also been encountering an uncomfortablyhigh level of public and legislative attacks throughcalls for privatization of public services, citizen resistance to payingtaxes and fees, negative public opinion, and legislative rollbacks of longstandingcollective bargaining arrangements.For purposes of discussion, the principal challenges confronting public employeeunions today maybe categorized as fiscal, structural, public policy, and strategic. A. The Continuing Fiscal Squeeze Followingdecades of steadily rising revenues, spending, and employment,governments at all levels experienced lengthy periods of retrenchmentin the mid1970s, early 1980s, and early 1990s. Even during periods of strong national economicprosperity, governmentgrowth was very moderate. The federal government, struggling with a budget deficit of monumentalproportions, terminated general revenue sharing, eliminated somegrant-in-aid programsand cut back on others, and steadily shifted the financial and programmatic burdensfor providing services to the state and local governments.The federal budgetwas finally balanced in 1998-1999. However,powerful pressures for tax cuts, the financial weaknessof Social Security, and the persistent policy problemsof illegal drugs, public education, environmentalprotection, criminal justice, Medicaidand Medicare, and manyothers continued to constrain the amountof federal dollars passed throughto the states and localities and competingfor a share of the public purse. Raising newstate and local revenues to fund programsto relieve these policy

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problemshas beenextremelydifficult within the context of taxation and expenditure limitations and fervent anti-tax sentiment. The taxpayer revolt that commencedin California in 1978with Proposition 13 kicked off a national movement to slash taxing andspending,as well as the size of government, that still resonates today in city halls and state capitals and depresses public employment and compensation. The implications for public employeeunions are anything but positive. Compensationgains have been modestdespite manyrecent years of strong economicgrowth. State and local employmenthas been rising only marginally--if at all--in mostjurisdictions despite record-setting state budgetsurpluses in the late 1990s, limiting opportunities for union membership gains. Contracting out governmentservices to private and nonprofit providers has displaced somepublic employees’ jobs. Reinventing governmentreforms have victimized public employees in the federal government, which downsizedby more than a quartermillion jobs in the 1990s. As unwilling pawnsin political conflicts between elected officials, top administrators, and angry taxpayers, public workershave learned the hard waythat the job security that oncecharacterized public employmentis little morethan a fond memory today. Downsizing,decentralization, and privatization efforts brought forward under the Reinventionbanner have damaged moralein manysettings and placed public employeesin difficult and uncertain situations (Kearneyand Hays 1998). For the unions, these trends have someimportant outcomes.First, membership rolls havestabilized or declined in mostjurisdictions, with a corresponding loss of unionfinancial resourcesand bargainingpower.Second,fiscal constraints meanthat unions are able to do less for the membersof their bargaining units in terms of wagesand benefits, no matter howfiercely they engagein collective bargaining. Ironically, public employeesmayperceive the need for collective representation most strongly during times of governmentfiscal stress, but they mayalso see unions as less able to deliver the goodsfor them. B. Structural Challenges Like the business sector, the U.S. public sector is being "buffeted by economic, political, and social forces that are worldwidein scope" (Perry 1994). Among the mostcritical of these forces for public employeesand their unionsare technological change, the attractions of a marketeconomythat has produceda resource shift from governmentto the private sector, and the changing demographicsof the workforce. Public employeeunions enjoyed sometheir greatest early success in organizing blue-collar and clerical workerswhodischarged job tasks that essentially replicated those in the private sector. Gradually, however,technological innovations have madeit increasingly feasible to replace such employeeswith


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machinesor software. The character of muchgovernmentwork (e.g., police and fire protection, classroomteaching, social service casework)makestechnological substitution for labor very difficult. Nevertheless,newtechnologyhas supplanted somepublic employees, such as the personal computerfor typists and clerical workers, the scanner for data entry personnel, and the single operator sanitation truck for the three-membercrew. There are manyother examplesof technologically driven attrition today, and additional ones are certain to emerge.For unions to maintain their present levels of membershipand financial resources, every memberdisplaced by technology must in turn be replaced by the union’s signing up of new membersor establishing newbargaining units for previously nonrepresented workers. A secondstructural threat to unions is the shift in resources from governmentto the private economy.A multiplicity of forces and agents, including tax resistance, negative public opinion toward government,widespread citizen affection for the private marketplace, and the Reinventing Governmentmovement, are conspiring to transfer governmentfunctions and activities to the private and nonprofit sectors. These powerful forces, augmentedby the common perspective that, at least in theory, nearly all of the workof governmentcould be accomplished by private and nonprofit service providers, probablyrepresent the greatest threat to public employeeunions since the negative spillover of the BostonPolice Strike of 1919. The effects of privatization are both subtle and overt. The subtle effects include privatization’s generally depressing influence on public employment, pay, and benefits. Mostof the jobs being privatized are those of direct service providers such as counselors, caseworkers,and laborers. One result is that the proportion of predominantlynonunionprofessional and administrative positions is growing(Kettl 1998). Privatization’s overt effects are those associated with every public job lost to a private or nonprofit provider. So far, privatization’s frightful reputation has exceededthe empirical reality of jobs lost (Perry 1995), but that could changerelatively quickly. For example,several states have been actively considering turning over various componentsof welfare programadministration to private contractors, placing "at risk" an estimatedquarter of a million governmentsocial service jobs (Kosterlitz 1997). In the embattledpublic education community,hundredsof thousands of teaching jobs could be lost to private schools if voucher plans are implementednationwide. A third structural problemconcerns the changing nature and composition of the workforce. By nowit is common knowledgethat the U.S. labor force is becomingincreasingly female, older, Hispanic, African American, Asian, and foreign-bornand these trends are projected to extend into the foreseeable future. Someof these new workers require special accommodationsby employers and unions. The culture of workis undergoingdramaticchange, with important implications for interpersonal and supervisory-subordinaterelations.

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Unionshaveyet to clearly define their role in attracting and representing the socially diverse workforceof the newcentury. Their organizational health and well being dependsgreatly on howeffectively they respond to the newemploymentissues associated with demographicand sociocultural changes in the labor force. To remainviable organizations, unions must convincethe newworkforce that it can effectively represent their interests and concernsand serve their job-related needs. As demonstratedby their less than successful efforts to organize Southern workers and recruit new membersfrom the expanding service and information technologysectors, the unions’ past record does not offer encouragement regarding their ability to adapt to the complicationsof a changingworkplace.In general, out of necessity, public sector unions have chalked up a muchbetter record of incorporating women and minorities into union affairs and leadership positions than private sector unions. AFSCME, for instance, claims more than 600,000 female members.The NEA,AFT,and SEIUalso report substantial numbersof womenin their ranks. AFSCME has aggressively pursued discrimination complaints and filed lawsuits to force employersto adopt comparableworthpolicies. Public employeeunions have also promotedand bargained for moreflexible and family-friendly benefits for dual career and single-parent families. Research indicates that nonunionworkersin governmenttend to exhibit a strong affinity for unions, and mostwouldjoin one if they could. This pro-union feeling is most pronounced amongAfrican-American and Hispanic workers; women’sdesire for unionization is approximately equal to that of men(Hills 1985; Leigh and Hills 1987). It wouldseem, then, that in those unorganized public jurisdictions in which the legal environmentpermits union recognition and collective bargaining, women and minorities are waiting for unions to provide themwith appropriate, and tangible, incentives to join. Among the possible avenues for unions to demonstratetheir relevance to these workersis throughnegotiated benefits such as medical and wellness programs, discounted prescription drugs, specialized training and education opportunities, mortgageassistance programs, purchase discounts, and favorable rates on union-sponsoredcredit cards. C. Public Policy Challenges Whetherone subscribes to the theory that comprehensivebargaining laws generate high levels of union membership or to the competingtheory that high levels of unionization impel such laws, there is a strong positive relationship between the two variables. Public employeesin comprehensivebargaining states are in a highly favorable policy environment,as reflected by strong membership figures. As is true of distributive and redistributive policies everywhere,what is once grantedis difficult to take away.Public managersand elected officials havelittle incentive to take on public employeeunions in jurisdictions in whichbargaining


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rights are strong and widelyapplied. Managersdo not want to sacrifice valuable time and humanresourcesto a losing assault on unions. For their part, politicians must take into account public employeevotes and union campaigncontributions. There have been no instances of comprehensivebargaining laws being revoked by state legislative bodies(attacks on the political use of uniondues are another matter). But the legal status quo is very difficult to modifywhenit comesto expandingbargaining rights as well. Anynewupsurge in public employeeunionization will require (1) an amendmentof federal law to expandthe scope of bargaining for federal employeesto union security and compensationissues and (2) a parade of new bargaining laws in the noncomprehensivebargaining states. Given the political tenor since President Reagandestroyed PATCO in 1981, congressional or state legislative actions to throwopenthe legislative doors to the unions must be considered extremely unlikely. Narrowstate legislative actions mayoccur, as well as expansion of bargaining rights through executive orders or court decisions, but these wouldproduceonly incremental increases in membership levels and newcollective bargainingrelationships. Without new members,unions in government risk the same stagnation, followedperhapsby absolute membership losses, that have afflicted their counterparts in the corporate world. The work environmenthas becomevery turbulent throughoutthe U. S. economy.If public sector unions cannot at least maintain the existing level of their most critical asset--members--theymaystep on the stone slippery slope towards a bad fall and possible death that private sector unions are experiencing. Evenif unions succeed in meetingtheir public policy challenges, privatization looms large. Whetherunder the guise of Reinvention, reengineering, right sizing, or whateverthe next management fad is called, privatization has the countenanceof a long-lived phenomenon that could significantly deplete union membership and resources and keep public sector unions in a reactive and defensive posture. Federal employeeunions have experienced the brunt of privatization so far, losing at least 165,000membersto the National Performance Review reforms ("Downsizing Hits Unions" 1997). The body count for state and local unions is likely to rise as well becauseof persistent pressures to contain labor costs and the size of government. D. Strategic Challenges The strategic choices to be madeby public employeeunions are daunting. Like their private sector counterparts, they are caught in a webof global and national forces that threaten to deplete their political and economicresources and reduce membership levels. Theredistribution of service-provision activities and jobs to the private and nonprofit sectors represents a prodigious challenge for public sector unions, as does the decline in support for public service on the part of

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citizens and elected officials (Perry 1994). However,in comparisonto private sector unions, those representing governmentemployeesgenerally function in a muchless hostile political environment.And,in general, their strategic choices and actions have been more astute and their national leadership moreadept at coping with emergingchallenges and issues than has been the case with unions in the private sector. Thepolitical proclivities of public employeeunions attract themlike a powerful magnettowardthe DemocraticParty, but, especially at the local level, union leaders have learned howto workall sides of the table. Symbioticrelationships betweenunions and elected and appointed officials of all political persuasions are common.The mutuality of interests ranges from fighting patronage-based hiring decisions to seeking jurisdiction-wide improvements in pay and benefits for all public servants. The opportunityfor multilateral bargainingwith elected officials provides public employeeunions with multiple paths to political influence during contract negotiations. Despite these positive situations and relationships, the decline in public esteem for government, public employees, and unions has pushed management into a more aggressive posture with respect to organized employees. Teacher unions, for example,have received morethan their fair share of blamefor the perceivedshortcomingsof public education. As potentially threatening education reform proposals encounter union opposition, the teacher organizations have cometo be perceived as a major obstacle to change through, for instance, protecting teacher tenure rules (Engvall1995). Oneof the first notable elected officials to take on the teacher unions was MichiganGovernor John Engler, who demonstratedthat instead of being an act of unthinkingpolitical suicide, attacking teacher unions as defendersof the increasingly unacceptableeducationstatus quo could actually be politically advantageous(Mahtesian1995:36). Teacher unions were soonunder assault by elected officials in a growingnumberof states. Yet, from a practical perspective, management has only one possible nonlegislative meansof ridding itself of unions--privatization. Decertification of an existing unionor dissolution of a bargaining unit is extremelyproblematic, and unlike a firm, the public jurisdiction cannot moveits operations to NorthCarolina or Virginia to escape organizedlabor. Nonetheless, unions must be concerned about the relatively low esteem they are held in by the general public. Approvalof unions has waxedand waned since the public wasfirst queried on the topic in the mid-1930s.Approvalratings peakedin 1957in the GallupPoll at 72 percent, then declined significantly into the 1970sto an all-time lowof 55 percent in 1979. In 1991, unions had recovered somelost ground,registering approvalratings of 60 percent. Accordingto a September1999 Gallup Poll, union approval ratings had risen to 65 percent. Other positive opinion data from the late 1990sshowthat 62 percent of respondents

Public Employee UnionsIn the Future

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believe that unions have a strong record in negotiating good wageand benefit increases, 70 percent agree that unions negotiate goodhealth care and pension benefits, and 72 percent believe unions have a strong record in defending the rights of individual workers. Seventypercent also agree that unions "are necessary to protect the workingpeople" (Center for Survey Research 2000). Anotherwayof looking at public opinion of unions is through "confidence ratings." Eachyear various polling organizationsask respondentsto express their level of confidencein various institutions in U.S. society, including medicine, educational institutions, the military, Congress,and the press. Unionshave consistently rankedat or near the bottomof a list of 13 institutions since 1966. Since 1990, the percentage of respondents expressing a "great deal of confidence"in labor organizations has llngered around 11 to 12 percent, someof the lowest levels on record (slightly morethan 50 p6rcent report having "only some"confidence in labor organizations). Not surprisingly, union leaders do not inspire great deal of eonfid~oee,either. ALi3ui~ Harris poll fromFebruary, 1999found that only 15 percent of the respondents had a "great deal of confidence" in "people in ch~ge of running organized labor" comparedto more than twice as manywith a ve~ lowt)l~ |ow opiflii31a (C~fitet f6r Stirvey Research2000). This, too, rep~sentSa vet~ lowfigure h~storically. Thtls~ a ~ajol~it~, of the U.S. public appear to approveof labor unions in ptincipie, arid ttniofi~ ~i~ valued by the public in termsof whatthey do for their member~ bt~t oti|y a ~|~ltively small proportion of citizens have muchconfidence in th~t~ oi’ th~ii ~ l~ad~i-s. ~Jndoubtedly,the scandals, corruption, and felonious b~ha~iOta~gOclatedwith several high-profile private sector unions have contributed tO thig |t~ ~t~em.F~ ~h~lSl~, g~i~ySitldicated that the Americanpublic strongly supportedUPSworkersin the|i" s~rik~ ~i~i~ifi~[ ~di~tedPostal Servicein 1997. But whena follow-up question ident]f]Ei:] th~ ~tr]kers as membersof the Teamstersunion, public support evaporated. Unfortunately, the surveys do not isolate public opiniontow~d~i~ubii~~llSi6~’e~ ~ifii6fisspecifically. Byinference and anecdotal|tiforr~atit~fi~ h~i:~ t~hf~t~ii~t ~i~iJih~that ~5~iBiits~6[brunions are not unscathedby pttb|i~ ts~’6briufi5 6~" ali ]~tbiS~orgariizations, especially whenconsidered in the ~orite~t 15f ~t~gt~i- t6~stance towards government. Withina di~e-uit arid e~,~h~tfi~ifi~~66fii31fiic and political environment, publicsector ttnion~have~enefai|y dfiiht~hsti:~i~fid~i r~tnarkabledegreeof adaptability, Forenamp|e~ they hiiv~~tii~fid t~tii~hbett’~r f~gial[sfi:bfii their brgan~zlng activities than private ~eet~r ufii~fi~: ~ii~6e t~6 b6ginningof the modernera of public sector eol|e~tlv~ bai~tiiiiii~; h~arly all unionsin government have, perhaps as muchot~t o~ l~.~-e~iLy a~ b~ ~hoice, madespecial efforts to organize women and minorities arid teo e|evat~~heminto leadershippositions. (Exceptionsare police and firefi~hte~ ~gatli~tlons which, until recently, resisted memberswho were not whitet~a|e~i ~e~ ~.l~i~i i990). Successful unions have sought out

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dissatisfied workers of all demographiccharacteristics in any setting. Mixed unions, particularly SEIU,have demonstrated that they have learned this key principle about leveraging public employeeworkdissatisfaction into membership gains (Johnston1994). Payinequity is an exampleof an issue causing dissatisfaction amongwomenworkers that unions have successfully exploited. Lowpay, minimalbenefits, and poor workingconditions for custodial, nursing home,and health care workersare others. But in more instances than the unions wouldcare to admit, their locals have acted selfishly, irresponsibly, and stupidly in assiduously protecting their perceived rights and contract provisions. Featherbedding,workingto the rule, insisting that volunteers not be permitted to performneededunion-related work, calling ill-advised work stoppages, and aggressively defendingfelonious or incompetent membersare some examples. But on the whole, public employee union leadership at the national level has been far superior to and muchmore statesmanlike than that of private sector organizations. Unionpresidents such as Shanker and Feldman (AFF), Chase (NEA), Wurf and McEntee (AFSCME), Stern (SEIU), and Sweeney(SEIU, AFL-CIO) have helped their respective organizations strategically adapt and respond to enormouschangesin their environments, finding waysto float with the social, economic,and political currents rather than trying to tread water or swimupstream. Suchadaptive behavior will continue to be critical to public employeeunions as they marshaltheir resources to confront the challenges ahead. A critical test of unionadaptability and leadership is presentedby the crescendoof criticism of governmentthat beganwith the unraveling of public support for the Viet NamWarand the revelations of Watergate, then rose to what appears to have becomea high plateau. Tocriticize government is to attack public workers. Unions have been exposed to special opprobriumby taxpayer and conservative political groups (see Walters 1993). For embattled and hypersensitive public employees,it does not take an active imaginationto perceive Reinvention or related management initiatives as "stealth attacks" on their unions and themselves. Astute national leadership is critically importantto the future success of unionsin the public sector, but so, too, is the quality of leadershipin the thousands of local throughoutthe federal, state, and local governments. Strategic errors and public relations miscuesat the lowest levels can reboundinto issues of national visibility, confirmingthe beliefs of those whodislike unions and causing a negative bias of the viewsof previously neutral observers. It is impossible to know with any degree of empirical precision just howadept local leadership is, but it is known that a large proportionof local unionpresidents are part-time representatives whohave risen through the ranks with little or no specialized training or preparation other than on-the-job experience (Sulzner 1997:168-169).The poten-


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tial benefits of training and educationfor these individuals should be obviousto national organizations. III. OPPORTUNITIES The profound structural, technological, economic,and related changes that are affecting public employeeunions pose various knownand unknowndangers, but they also present opportunities. To survive, let alone prosper, public employee organizations must adapt to these critical changesin their environmentthrough innovative strategies and actions. There are firm indications that manyare doing so. Althoughthere is very little if anythingthat unionscan do about the fiscal squeeze that is strangling units of governmentand constraining public employee pay and benefits, they can help management search for productivity and efficiency improvementsthat enhance organizational performance. Recognizing--if not fully accepting--that employeefinancial gains are seldomgoing to exceed the annualrise in the cost of living index, manyunionsare focusingat the bargaining table on workingconditions, nonmonetarybenefits, and various humanresource policies. Manyprospective bargaining gains do not havesignificant financial impacts. Examplesinclude flexible workinghours, telecommuting,and flexible benefits packages. The structural challenges to unions also present opportunities. Reinvention poses a numberof challenges to unions, but it is simply not going to happenin organized jurisdictions without union cooperation. Management recognizes that employeeorganizations must be deeply involved in reengineering, job redesign, privatization, and other initiatives if they are to get off the ground,let alone succeed. Instead of the typical knee-jerk opposition to contracting out work, for example, a growingnumberof public officials provide unions with opportunities to demonstrate howthey can help cut costs and enhance efficiencies through participation and collaboration in workdesign (Gerhart 1994:125-129).Unions in Cleveland,Indianapolis, Phoenix,and other cities have insisted on submitting their ownbids to win back contracted work, and in manyinstances they have been successful. Whenpublic officials are determinedto fully shift a service to a private or nonprofit provider, unions can concentrateon ensuring that no current union memberswill lose their jobs. A potentially useful tactic is to commitresources to organize those nongovernmentworkers whoare performing the contract work. The rapidly expanding ranks of telecommuters amonggovernmentemployees offer an interesting but still unknown opportunity to unions. Powerful,inexpensive portable and desktop computers and increasingly rapid telecommunications technology have movedthe "virtual office" from concept to reality. A

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growing numberof jobs can be performed almost anywhereand do not require fixed office space and standard workhours. Federal and state governmentemployees are increasingly telecommutingpart-time or full-time from homeor suburbansatellite workcenters. Some"madwarriors" operate from a portable office as they travel from location to location. In 2000, an estimated 8 to 10 percent of the nation’s workforce were involved in telecommuting. Telecommutingis recognized as being good for the environment (fewer cars on the road), goodfor employees’stress levels (no long morningand afternooncommutes),and goodfor the organizational budget (reduced need for physical office space). But is telecommutinggoodfor unions? The virtual office removes employees from much daily interaction with their coworkers and effectively makesthem free agents, workingon their ownwith minimal daily supervision. The tendency is toward worker autonomy,not collective action through an employeeorganization. On the other hand, even the stay-at-home employeemayperceive a need for representation on such issues as the type of electronic equipmentneeded and whoshould provide and service it, ergonomic and health and safety considerations, and the need for an organization to look out for employeeinterests whenthey cannot be on the job (physically) every day. Despite the stagnation in public employeeunion membershippercentages for the past two decadesor so, several potentially rich organizingopportunities are available. One of themis rather conventional in that it involves low-wage workers in tough working environments, the traditional mother-lode for union organizing in private employment.Sometimesneglected in the scholarly and media attention paid to globalization, informationtechnology,governmentreinvention, and other macrotrends, is the lot of the low-paidbut very importantpublic workerswhoclean office buildings, emptybed pans, and attend to those in institutions whocannot help themselves. Paul Johnston (1994) has described the organizing possibilities presented by "social movement unionism," in which the interests of custodial workers, nurses, and others converge with social causes involving womenand minority groups in low-wagepublic jobs. According to Johnston, whenunions frame their demandsfor these workers in such as manner as to makethemcongruent with public policy in the public interest, they have the potential for great success. Examplesinclude improvedpay and benefits and favorable workrulechanges in the context of union demandsfor racial, social, gender, and economicjustice. Anearly success was the Justice for Janitors movement, which tied together demandsfor improving the compensationand working conditions of custodial workers with a call for an end to economicand social bias against predominantlyblack and Hispanic workers. But the most important target today is the burgeoninghealth care industry, whichlies at the nexus of the public and private sectors in hospitals, clinics, nursing homes,and related entities. If SEIUand other health care unions can link increasedpay and benefits


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for health care employeeswith broader public interest issues such as the quality and availability of health care, they stand to benefit in any numberof ways.As a general principle, then, "Unionsneed to demonstratethat they do not exist solely to enhancethe private interests of their members"(Sulzner 1997:166). Onthe political front, wherepublic sector unions have historically been moreactive than their private sector counterparts,there are possibilities for direct representation of unioninterests within a newpolitical party coalition. Aninteresting exampleis the alliance of ACORN (Association of Community Organizations for Reform Now)with the CommunicationsWorkers of America, SEIU, and other unions in NewYork State to form the WorkingFamilies Party. In 1999 the WorkingFamilies Party claimed 125,000 membersin 500 neighborhood chapters, mostly amonglow-wageworkers and communityactivists. The Party has wonballot lines for mayoral and city council seats in NewYork City and actively lobbies for low-incomehousing, a living wage, jobs, and environmental justice (see www.acorn.org).Local union activists also founded a new Labor Party in Clevelandin 1996, encouragingunion membersto run for political ofrices at all levels (Delaneyet al. 1999:277). Moregenerally, public employeeunions have rampedup their electoral activities in efforts to influence the views of candidates and the outcomesof elections. Unionmembersare morelikely to vote than nonmembers and they are most likely to vote for candidates endorsed by unions (Delaney et al. 1988). Duringthe last several general elections, unions haveshownincreased sophistication in mobilizing their membersand their families. As the 2000elections approachedwith significant implications for the presidency, Congress,and redistricting of congressionaland state election districts, national labor organizations were committingsubstantial humanand financial resources to campaign-related activities. Clearly, unions need to do a better job of promotingmorepositive public opinion. AFSCME, NEA,AFT, and other public employeeunions periodically run local, regional, and national publicity campaignsto influence opinionon specific issues as well as to engenderwarmerfeelings towards the organization and its membership.This is a long-range strategy that mayhave payoffs, but any positive outcomesare difficult to measure. Moreimmediatelyeffective are prompt, adept union responses to local or state situations that threaten to smudgethe union’s reputation in the eyes of the public. Often, whena union, one of its representatives, or membersof the bargainingunit havedonewrongin a legal or moralsense, it is best simplyto admit the error and get on with moreproductiveactivities. For instance, national leaders of AFTand NEAhave publicly admitted that blocking education innovations and adamantlyprotecting failed teachers is wrong(Chase 1997-1998).Following the self-critical analytical tradition of the late president A1Shanker,the AFT, nowled by Sandra Feldman, has reexamined manyof its former positions and

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has sought to take leadership roles in such critical areas as reducingviolencein the schools and helping develop national education standards. UnderPresident Robert Chase, the NEAhas been focusing its attention on improving teachers’ performance and enhancing teacher professionalism. The NEAhas even broken with past tradition and comeout to support and sponsorcharter schools, national standardized student testing, and peer review of classroom teachers (Stanfield 1997). The NEAhas also courted Republican membersof Congress and state legislatures, reversing a history of staunch alliance with the DemocraticParty. A.

Labor-Management Cooperation and Participative Decision Making

The movement from an adversarial to an interest-based approach to collective bargaining was discussed at somelength in Chapter 5. This and other forms of labor-managementcooperation represent a potentially profound transformation of howdecisions are madeand conflicts resolved in a union setting. There are manydifferent mechanismsfor labor-managementcooperation, including Quality Circles, Total Quality Management,Labor-Management Committees, EmployeeInvolvement Programs, and Quality of WorkLife programs. Eachinvolves regularly scheduledmeetings of labor and management representatives to discuss, analyze, and resolve problemseither arising underthe interpretation and application of the contract, or appearing in the workplacebut outside the purviewof the contract. Ideally, the core feature of each of themis participative decision making(PDM),defined as a formal operative vehicle for exercising employeevoices in organizational decision making in which employeeviews and decisions are given serious consideration by managementrepresentatives (Keameyand Hays 1994). The model envisions bottom-up authority structures and meaningfulemployeeparticipation in organizational decisions. Today, PDM programsare "quite widespread" in the private sector (Osterman 1994), with an estimated 50 percent of large firms having adoptedthemin one formor another (Delaney 1996:47). 1. Advantagesof Cooperation Anextensive literature on private sector PDM indicates positive impactson individual workerproductivity, job satisfaction, personal growth and development, and willingness to change (Kearneyand Hays 1994). PDM’sbenefits to the individual employeeare believedto contribute directly and indirectly to desired organizational outcomes.For example,whenPDMincreases workersatisfaction with, and commitment to, the job, it mayalso produceless turnover, fewer absences and sick days, lower accident rates (Schwochauet al. 1997:38l), and stronger commitmentto the organization (Verma and McKersie1987). PDM’sorganizational benefits include improvingemployees’ability to performtechnical tasks


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(Mohrmanand Lawler 1988:47), to respond effectively to a rapidly changing work environment, and to accommodatechanges in the nature of work (Gabris and Kenneth1986). There mayalso be fewer grievances, unfair labor practices, and other conflictual activities. Researchfindings are less conclusiveconcerning the effects of PDM on organizational efficiency and productivity (Wagner1994), but there is accumulatingevidence that organizational performanceis enhanced through the early identification of work problemsand related benefits (Levine 1995). Froma broader perspective, participation has civic and social value as well. It "can stimulate the developmentof civil society because it encourages individualsto developandpractice habits that are critical to self-sufficiency, selfrule, and.., individual responsibility" (Delaney 1996:46). In other words, PDM helps encourageresponsible self-government. Despite the manyadvantages associated with PDM,its application to private employmentis restricted by languageof the National LaborRelations Act. Prior to legalization of full collective bargainingrights for private sector unions by the NLRA of 1935, it was not uncommonfor employers to resist unions through "representation plans" that established committeesof workers and managers that were supposed to meet on workplace concerns. But these plans were forced on workers by management,which strictly reserved its power to make all important decisions. Unionsviewedsuch plans as subterfuges for corporate opposition to unions and collective bargaining(Kelly 1998). A related tactic was the "companyunion," created and essentially directed by the employerunder the pretense of being a legitimate labor organization. To preclude such evasions by businesses, the NLRA provided that it is an unfair labor practice for an employerto "dominateor interfere with the formation or administrationof any labor organizationor contribute financial or other support to it..." [NLRA,Section 8(a)(2)]. Federal case law and National Labor Relations Board hearings have determined that labor-managementcommittees and similar mechanismsare illegal under the NLRA if they are created and dominated by the employer. To be legal, employeeparticipation programsin the private sector must be established and operated with a substantial degree of employee independence from management.The implication is that the only legal PDM programis either one with strong employeedecision-making authority or one created and implementedwith union participation (Delaney 1996). Not surprisingly, unionizedworkersin the private sector are muchmorelikely to be involved in PDMprograms than are nonunion employees (Eaton and Voos 1992). In the public sector muchless is knownabout the PDM experience. Little systematic empirical research has been published. Yet, governmentwill probably be the playing field wheremost of the future PDM action will transpire. This is not to say that the path to PDM is all downhill in the public sector. A strong adversarial spirit still prevails in mostunionized jurisdictions. Moreover,NLRA language, principles, and proceduresare embedded in manystate bargainingstat-

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utes, and in federal employment, the severe scopeof bargainingrestrictions constrains opportunities for meaningful PDM. Despite these obstacles, experimentalparticipative approachessuch as the Labor-ManagementCommittee(LMC)date back to the early 1920s in governmentand they are gradually garnering support at all levels of government.LMCs have been used to develop day care and employeeassistance programs in New York State, with the outcomesof lower health care costs and higher employee morale and attendance rates. In Massachusetts, LMCswere established throughout state governmentto address health and safety, career ladders, child care, performanceappraisal, and other issues. In Ohio, LMCs have dealt with staffing patterns, employeesecurity, and dress codes (Moberly1988). PDM in local governmentis becominga contributor to Reinventing Government.In federal employment, "partnering" initiatives between unions and managementto solve workplaceproblemswere required of all federal agencies by President Clinton’s ExecutiveOrder12871. By1996, it was reported that almost 90 percent of federal agencies were actively partnering (Lane 1996:41). Public managersare generally receptive to labor-management cooperation. Public sector labor relations in somejurisdictions maybe replete with ugly adversarial encounters,but, in general, relationships betweenthe parties are muchmore pacific than those in the private sector. Thefierce battles that characterizedmany public jurisdictions during the early years of unionization and bargaininggradually moderatedin most cases, as union and management roles and expectations stabilized and matured. With the almost shocking exception of President Reagan’smasssacking of 12,000striking air traffic controllers in 1981, very few governmentworkers have lost their jobs during the past three decades because of unionorganizingor workstoppages.(Reinvention,of course, is a very different matter.) And, of course, public managersand those whowork for them share important characteristics and interests. Mostof themconsider themselvesto be public service professionals whoworkfor the public interest in critical fields such as health care, education, and law enforcement.Theydo not pursue profits or the short-term interests of ownersor shareholders. Programsuccess and gains in productivity can produce compensationgains for all public employeesand special recognition for managers.Laborand management also share key enemies: namely,bureaucrat bashers, spoils politicians, and hostile public opinion. This assortmentof characteristics and interests shared by public managersand workers makescooperation and PDM more feasible than in most private sector settings. 2. Conditions Necessaryfor Successful Labor-ManagementCooperation To succeed, PDMand other cooperative approaches and techniques cannot simply be imposedby a reform-minded elected official or agencyhead. Certain facilitative conditions are necessaryto create a receptive environment.Themostcriti-


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cal facilitative conditions are a foundation of trust and mutualrespect among managersand workers, a strong level of commitment by all key parties to make the programwork over the long haul, win-winexpectations, and an appropriate technique for bringing PDMto fruition. Constructing a foundation of trust and mutualrespect requires overcoming suspicions of union leaders that PDMis a new way to manipulate employees and their unions and that it is likely to weakencollective bargaining, grievance systems, and employeecommitmentto the union. Suspicions and doubt mayalso infest the ranks of mid-level managers,whofeel threatened by a potential loss of authority, or even their jobs, whenPDMprogramsare implemented(Lawler and Mohrman1985). In negative adversarial settings, trust and respect mustbe constructedfrom th.e groundup. This is a tough task, and failures have been recorded. The U.S. Postal Service’s history of confrontational labor relations within a context of an .a..u.to~cra,tic management style, rigid workrules, and difficult workingconditions h.~s ~c~re~a~e,da setting predisposedagainst meaningfulPDM (U.S. General Ac90u,nting Office 1994). Labor-management partnerships in Miami, Florida have s~.rt~gg].ed in the face of high levels of workplaceconflict, lowemployeemorale, ~nda ~ch~aoticlabor relations climate that includes serious internal divisions in t.h.e r~.0k~ 9.f both labor and city management (Brysonet al. 1999). ~,0weve.r~o.t.her jurisdictions havereported successin convertinghostile r,e,!.a.,tio~0s,~ips i~[0 a productivecooperativesituation. Forexample,the SanFran_ei~_e0]~.a..y A~r~U,0io, n Sanitation District, longburdenedby adversarialismand 10Wl¢ve]~ 9~f [~s~t ~.nd morale, engagedin a far-reaching changestrategy that op~eo¢tz!up Oi,r,e~c~t communication lines betweenmanagement and union represent~tive~, promotedless contentiouscontract negotiations, and attained impressive ~prov_e~,e_ntsin operations (Berazonet al. 1999). T~hesecond precondition for successful PDM is a strong level of commitl~e.n.t b_Y.t.op .o.fficials, managers, andemployees. Significantlevels of time, attenti0n~ a~pdreso~u.rcesmustbe invested in the programif it is to workoverthe long haul, The h¢0vj_es, t burdenrests with mid-level managersand union leaders, but virtually ~1| eLnp!9.yeesmust shoulder someresponsibility by committingthemselves to Wor.kc0.o.per~tivelywith formeradversaries. Toporganizationalofficials must exercise !ea_dersbip ~nd makeavailable sufficient financial and personnel resourcesfor train_ing, oversight, and related items. Sincere susto~oed_commitment from top-level officials is especially important. But it is difficult to secure whennewlyelected officials or their appointees fail to continue th_e ¢ol!aborotjvepolicies adoptedby their predecessors, or when financial problemslead to wo_r~forcecutbacksor reorganizations. Peoria, Illinois provides an exampleof sustain_e_d leadership commitmentto labor-management cooperation despite numerousobstacles. The city council, city administration, and union leadership displayed "a commitment of leadership, training, and neu-

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Chapter11

tral third party facilitation" that helpedthe parties rise abovethe existing adversarial atmosphereto a more positive decision-making environment(Parsons et al. 1998). The third condition for successful PDM is that the parties mustbe committed to discovering interest-based, win-winsolutions to organizational problems and conflicts. Examplesof successful win-win expectations and outcomesmay be found at all levels of government.Acting under the auspices of the National PerformanceCouncil, federal agencies have developed partnerships premised on interest-based processes that have effectively addressed contract and workplace disputes and myriad other problems. The IRS-NTEU partnership excels in the level and scope of activities included. Beginningin the early 1980sand continuing today, partnerships have dealt with EEOconcerns, grievance prevention and resolution, unfair labor practices, incentive pay systems, and a gain-sharing program (Ferris and Cooper1994). Numerousexamplesof interest-based programs havebeenreported in a variety of state and local jurisdictions, includingWisconsin state government,RamseyCounty, Missouri (Brainerd 1998), and Portland, Maine(Peightal et al. 1998). Successfulcollaborative programshavebeen operational in numerousschool districts as well. For example,site-based management, in which administrators and teachers jointly determine rules, procedures, and policy for a school through PDM,has been reported in several school systems (Rubin and Rubin 1997). Finally, PDM requires an appropriate technique for effective implementation. Many different but related tools are available to structure participative interactions. Amongthe earliest to be used were health and safety committeesand quality of worklife programs.Someof these maystill be found in various government jurisdictions. But the most commoncollaborative mechanisms today evolved from the early 1980’s Quality Circle movement. Quality Circles are small groups of workersthat meet regularly to develop suggestions for improvingwork procedures,product or service quality, or other concerns.Theyhavebeen credited with improving organizational and employeeperformance by boosting employees’ attitudes, behavior, and job effectiveness (Ouchi1981; Griffin 1988). Although widely adopted, Quality Circles faded awayin most jurisdictions by the late 1980s. Unionswere not usually involvedin Quality Circles, whichweremost widely adopted in nonunionsettings. But unions have been parties to related quality endeavorsincluding quality improvement initiatives and process improvement teams. Quality Circles were precursors of Total Quality Management, which swept across the private sector and federal, state, and local governments during the early 1990s. TQM embracesa participative strategy that concentrates on continuously improvingproducts and services, preventing errors, and satisfying customers. Through various systematic methods, employees are involved and empowered to engage as partners in decision making. Whenpresent, unions are formally


343

involved in TQM(Verma and Cutcher-Gershenfeld 1996:223-227). (By 2000, TQM,like Quality Circles, had been discontinued by most adopters.) A vehicle for PDM described in Chapter6 is gain-sharing, whichdistributes to bargaining unit membersa portion of dollars saved from makingwork rule changes, process improvements,and other efficiencies. These arrangementsare typically negotiated as part of the collective bargainingcontract. Anexampleis a 3.5 percent pay hike for Philadelphiatransit workersin exchangefor $18 million in employerhealth care cost savings (Waiters 1994). The most widely adopted participation strategy is the labor-management committee(LMC),discussed in Chapter 10. Operating to resolve issues outside the formal contract, LMCs are found at all levels of government.In the national government, the LMCapproach is found in the partnership councils mandated for all agencies by President Clinton’s Executive Order 12871. LMCsapply winwin principles and push decision makingto as low a level of the organization as possible. In sum, numeroustechniques are available for structuring and implementing meaningful employeeparticipation in makingorganizational decisions. The specific techniqueapplied is not nearly as critical to programsuccess as are the needs for mutual trust and respect, strong commitment,and win-win expectations. 3. The Future of Labor-ManagementCooperation Significant obstacles stand in the path of labor-managementcooperation. The NLRA’s outdated premise of adversarialism as the answer to all labor-management conflicts remains firmly embeddedin the legal frameworkand mentality of most unionized jurisdictions. The lengthy and emotional history of early organizing campaignsand bargaining encounters are tough to overcome.Mutual distrust and suspicion prevail amongunion and management representatives in most bargaining settings. Management’s innate discomfort with unions is amplified by a nagging fear of losing authority and control over employeesin the bargaining unit. Unionleaders, manyof whommadetheir reputations by aggressively fighting management, are fearful that consultative and participative managementproposals are Trojan horses that will unleash demandsto eliminate jobs, dilute union power, imposegivebacks and concessions, and ultimately displace the unionas the collective voice of workers.Finally, the sustained commitment of resources neededfor successful PDM is always problematicin a political system characterized by frequent turnover of elected and appointedofficials and personal political agendas. The key is to develop a comfortable and functional relationship between collective bargaining and PDM.Collective bargaining continues to serve a compelling purposein unionizedjurisdictions by jointly setting wages,benefits, and terms and conditions of employment.Unionrepresentation in grievance proce-

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dures remains important as well. But PDMopens up a new windowof joint problem-solving possibilities. Whichproblemsand issues should be addressed throughconventionalor interest-based collective bargainingand grievanceprocedures, and which should fall within the purviewof newparticipative arrangements?Clearly a rational and logical meansof separating issues into their proper spheres should be developed(Reeves1997). Role conflicts are endemic, as managementand union representatives must makethe transition back and forth from adversarial to cooperative interactions. Perhaps unions should designate "partnership stewards" for PDMactivities and "grievance stewards" for more traditional encounters with management. As an alternative form of representation, PDM is not a quick cure for all that ails labor-management relations. Years of persistent effort and hard work are required for collaborative approachesto overcomea history of adversarial clashes and negative encounters. But clearly, changesin workpractices are rapidly eroding the boundariesbetweensupervisors and subordinates, reducing the numberof supervisory levels, and promotingmore group-oriented work. Whether embodiedin sttitute or common practice, the conventional distinction between stlpePciaors and w0i’kersis blurring in practice, with significant implicationsfor ufiiotis ~tid collective bargaining.In this context, participative decision-making approaehe~aPi~ea~to be an appropriate path for unions to take into the future. IV. PUBLIC EMPLOYEEUNIONSIN THE 2000S: C-ONCLUSION ~)ESI~J~~Otti~ r~Centsigns of rejuvenation, unions in the private sector of the tOftited ~t~iteg havebeenresolutely marchingtowardoblivion for around45 years. Ofii~, ~otirid i0 percent of private sector workersbelong to unions today. This ~t~pefi~s~Obe a global phenomenon, as unions are in decline in virtually all eco~Ofniefiii~ advatieed nations, Numerous factors havecontributed to uniondecline, fhE tnOgtlttiportatlt of whichare probablythe shift frommanufacturing to service aridktio~vied~E-basedeconomiesand the globalization of labor and production. ~iOq4~pEf~ th~ EXtentof union decline is muchgreater in the UnitedStates. For itig~afi~E~o~ganl~edl~t~ot eialms morethan 40 percent of the German,Canadian, ~ii~d tdfij~d ~tl~dO~workforces, and unions remainpowerfulpolitical and ecoti~i~J~ ~Of~e-~in Westei’nE~rope. ][fi the U.S. public ~e¢tor, unionmembership has leveled off since the late |970s. The likelihood of dramatic membership drops in governmentis quite slim, as long as legal protections remainin place, Nonetheless,public employeeunions face their ownchallenges, including privatization, governmentfinancial stress, 6i~i2ehhostility, negative actions by state legislatures, and the ReinventingGov~ffiffi~flf tnove~ent.But a resurgenceof public employeeunionismis not entirely out ot~[i6 ~iOE~tiOn: Additionalstates could enact comprehensive bargaininglaws.


345

Congresscould expandthe scope of bargaining in federal labor relations, which wouldinduce membership gains. The burgeoninghealth care sector, whichstraddles public, private, and nonprofit employment, presents a potentially rich source of new members,including medical interns and physicians. All things considered, however,the political and economictea leaves do not portend a rosy scenario for public employeeunions in the 2000s. The unions need to engagein continuoussoul searching and reinvention if they are to move beyondrhetoric on key issues and maintainrelevance for the increasingly diverse public and nonprofit workforce. Traditional adversarial bargainingwill hold its place at most bargaining tables and in most grievance proceedings,but there are clear signs that zero-sumrelationships are becomingantiquated and dysfunctional for both unions and management.To do well what they do best--collectively express the voices of those whomthey represent (Freeman and Medoff1984)unions must improvetheir ability to identify workers’ needs. If the best wayto meet those needs is through cooperation with managementthrough PDMor related approaches, then unions oweit to their present and future membersto take that path. Management, for its part, shouldrespect the fight of unionsto participate in a serious and meaningfulwayin all matters affecting or potentially affecting membersof the bargaining unit. The windsof changein public sector management and labor relations have blownstrongly during the past several years. Copingeffectively with the characteristics of the dramaticallychangingworkplaceof the future is a responsibility that must be widely shared. Effective organizations of the future will be those that have the capability to respond and adapt to a rapidly shifting environment. The traditional uniondetermination to limit management discretion and authority through restrictive contract languageand grievanceproceduresappears to be increasingly out of step with the needsof competent,and particularly high-performance, organizations. Public employeeunions and managementhave madecommendableprogressin recent years, especially in the states and localities that serve so well as laboratories of innovation and democracy.In manyways, they are moreimportant today than ever. Further innovation and experimentationin labor relations structures and processes holds the promiseof gaining improvements in the efficiency and effectiveness of service delivery, while at the sametime enhancing the dignity, morale, and quality of worklife for public employees.


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Index

Aboodv. Detroit Board of Education (1977), Acquired ImmuneDeficiency Syndrome (AIDS), 213, 258, 321 Affirmative action, 147, 187-191, 197 AFSCME Local 201 v. City of Muskegon (1983), AFSCME v. State of Washington (1983), 152 Age Discrimination in EmploymentAct (1967), Alabama,8, 30, 60, 264 Alaska, 8, 30, 60, 73,233,235-236,264 Albuquerque, 249 Alexander v. Gardner-Denver(1975), 309 Alioto, Joseph L., 166 Alternative Dispute Resolution (ADR), 136, 320, 322 American AmalgamatedTransit Union (ATU), AmericanArbitration Association (AAA),262, 278, 308, 311,318, 319 AmericanAssociation of University Professors (AAUP),39-40,

American Federation of Government Employees (AFGE), 13-15, 2425, 52, 191 AmericanFederation of Labor (AFL), 5-6, 13-15, 26, 41,222-223 AmericanFederation of Labor-Congress of Industrial Organizations (AFLCIO), 6, 10-12, 23, 25, 35, 36, 37, 39, 41, 52, 68, 245, 253, 325-326, 334 Committeeon Political Equality, 126 Internal Disputes Plan, 35 Public EmployeesDivision, 36 AmericanFederation of Police (AFP), AmericanFederation of State, County, and Municipal Employees(AFSCME),12, 14-15, 22, 34, 35, 37, 43, 60, 68, 79, 88, 93, 124, 125, 126, 152, 180, 188, 197, 199, 200, 216, 243-246, 312, 322, 330, 334, 337 AmericanFederation of Teachers (AFT), 14, 19, 22, 36, 37, 39-40, 42, 47, 68, 95, 188, 330, 337 American Medical Association (AMA), 20, 42 379

380 American Nurses Association (ANA), 36, 42 American Postal Workers Union (APWU),27, 306 Americanswith Disabilities Act, 59, 188, 190, 212-213 Arbitration, 148, 262, 273-284, 317 advantages/disadvantages, 277-282 and collective bargaining, 281-282 final offer, 282-284 process, 274-277 and unions, 279-280 Arbitration Information Tracking (ARBIT), 311 Area wage surveys, 149 Arizona, 8, 29, 30, 35, 60, 63, 65, 264 Arkansas,8, 29, 30, 60, 62, 63, 264 Assembly of Government Employees (AGE), Assistant Secretary for Labor-Management Relations (ASLMR),51, Associated Professional Fire Fighters of Kentucky, 67 Association of CommunityOrganizations for Reform Now(ACORN), 337 Associations, 34-35, 141 Atkins v. City of Charlotte (1969), 47, Atlantic City, 6 Austin, 66 Baker v. Carr (1962), Bargaining zone, 134 Barrentine v. Arkansas Best Freight (1981), 309 Baton Rouge, 254 BayCity, California, 78 Bayh, Evan, 67 Benefits, 146-156, 164-167, 335 Bird, Chief Justice Rose, 238 Blackmun,Justice, 58 Blaylock, Kenneth, 25 Blount, WintonM., 228 Blue skying, 118 Bonneville PowerAdministration, 48, 174

Index Boston, 2, 14, 37, 216, 223, 230 Boston University, 40, 210 "Boulwarism," 129, 245 Bowenv. U.S. Postal Services (1983), 94, 306-307 Brennan,Justice, 57 Bridgeport, Connecticut, 82, 139, 168 Brotherhoodof Railway Clerks v. Allen (1963), Buffalo, 151 Bush, George, 54, 127, 173, 189 Business unionism, 4 Buy-outs, 169 California, 8, 30, 33, 37, 40, 44, 60, 67, 68, 73, 76, 77, 78, 79, 106, 142, 165, 183, 199, 200, 229, 235, 238, 264, 286, 321, 328 California State EmployeesAssociation (CSEA),35, 78, 129 California State University, 39 California Teachers Association (CTA), 78 Camden,NewJersey, 208 Campbell,Allan (Scotty), Carey, Ron, 12 Carofanov. City of Bridgeport (1985), 279 Carpenters union, 6 Carter, Jimmy,39, 51, 127 Celeste, Richard, 62 Chandler, Wyeth, 244-246 Charleston, South Carolina, 2 Charlotte, 210 Chase, Robert, 38, 39, 334, 338 ChathamAssn. of Ed. v. Bd. of Public Education (1974), Chelsea, Massachusetts, 210 Chicago, 13, 62, 234, 249 Chicago Teachers Union v. Hudson (1986), Cigar makers union, 5 Cincinnati, 230-231 Civil Rights Act of 1964, 59, 152, 187, 309 Civil Rights Act of 1991, 59

Index Civil Rights Movement,243 Civil Service Commission,13, 178 Civil Service Reform Act (CSRA),12, 24, 45, 48, 49, 51-54, 80, 89, 100, 175, 183, 184, 191, 192194, 201,210, 214, 229, 234, 261,307, 317 Civil service system, 179 Civil War,3, 171 Classification Acts of 1923and 1949, 171 Classified civil servants, 173-174 Cleveland, 14, 82, 139, 190, 335,337 Cleveland Boardof Education v. Loudermill (1985), Clinton, WilliamJ., 17, 28, 53, 55, 127, 189, 191, 193, 256, 340, 343 Coalition of AmericanPublic Employees (CAPE), Collective bargaining, 81-137, 259, 293-298, 343-344 agreement, 293-298 administering, 297-298 contents, 294-296 disseminating, 296-297 and budgetmaking, 140-145 certification of unit, 94 concession bargaining, 119-122 determinationof bargaining unit, 8692 consolidationof units, 89 criteria, 87-91 size considerations, 88-89 elements of, 86-107 federal employees,174-175 major provisions, 70-73 administrative agency, 70-71 employeerights, 70 employerrights, 70 impasseresolution, 72 recognition procedures,71 scope of bargaining, 52, 71-72, 200 union security, 72-73 unit determination, 71, 86-92 and merit system, 181-185 participants, 95-107

381 [Collective bargaining] politics of, 113-127 process of, 113-137, 145 preparation, 114-116 duty to bargain, 116-117 meetings, 117-119 public/private sector differences, 8186 representation election, 92-94 Colorado,4, 8, 30, 60, 63, 65,235, 264, 278-279, 286 Commonwealth v. Hunt (1842), 2, CommunicationsWorkers of America, 337 Comparableworth, 151-153 Compensation, 139-175, 200-201 328 bugdetaryprocess, 141 and cost increase responses, 167-168 and effects of public employee unions, 160-167 federal employeeunions, 171-175 monetary impacts, 154-156 political factors, 148-154 position classification, 200-201 productivity bargaining, 168-171 public/private sector differences, socioeconomicfactors, 146-148 state/local employeeunions, 140-159 Condon-WadlinAct (NewYork), 253 Congressof Industrial Organizations (CIO), 5, Connecticut,8, 30, 60, 70, 91, 100, 142, 151, 153, 184, 186, 260, 264, 280-281 Contracts, 94-107, 142-144 late settlements, 142-144 negotiations, 94-107 participants, 95-107 management (federal, local, and state), 98-105 public, 105-107 union, 95-98 CookCounty,Illinois, 47 Coolidge, Calvin, 14, 222, 230 Coordinated Federal WageSystem (CI:NV’S),172-173

382 Cornelius v. Nutt (1985), 318 Cost of living, 146, 149, 150 Council of State Government,101 CountySanitation District 2 v. Los Angeles County EmployeesAssociation, Local 660 (1985), 235, 238 Count of Washingtonv. Gunther(1981), 152 Cramp,E. H. ("Boss"), 243 Dade County ClassroomTeachers Association v. Ryan(1968), DearbornFirefighters Local 412 v. City of Dearborn(1975), 279 Delaware,8, 30, 60, 70, 184, 264 DeLury, John, 125 De novo, 310, 314 Denver, 38, 286 Departmentof Defense Directive 1354.1,234 Depression of 1873, 3 Detroit, 139, 165, 169-170, 206, 230, 234, 247, 280 Disabilities, 212 Dismissals, 204-205 District of Columbia,25, 41, 72, 123, 234 Doctrine of privilege, 47 Drug testing, 213-214 Dunlop, John, 285 Eight-hour work day, 2 Ellis v. RailwayClerks (1984), 75-76 EmployeeAssistance Program (EAP), 213 Employeediscipline, 204 EmployeeInvolvement Programs, 338 Employeeorganizations (public), 3435 Employeeselection, 196-197 Employment Relationship Policy, 52 EmploymentRetirement Income Security Act (1974), Engler, John, 332 Equal EmploymentCommission, 300, 310, 317

Index Equal EmploymentOpportunity Act of 1972, 59, 147, 187 of 1964, 187 Eugene, Oregon, 282 Executive Orders, 10988,14, 19, 23, 26, 49-50, 69, 260, 317 11491, 50-53, 229, 260, 317 11616, 51, 317 11838, 51 12871,52, 55, 191, 193, 340, 343 Fact-finding, 260, 262, 269-273 advantages/disadvantages, 272-273 process, 270-272 Fair Labor Standards Act (FLSA),5758, 59, 309 Fair share, 24 Fall River Education Association, 253 Family and Medical Leave Act (1993), 59 Farm Equipment Workers, 4 Fawley Agreement(1960), Featherbedding, 206 Federal BankruptcyCode, 122, 168 Federal Dispute Resolution Board, 300 Federal Labor Relations Authority (FLRA),52, 54, 87, 94, 100, 183, 214, 255, 260, 294, 300, 307, 310, 317-318 Federal Labor Relations Council (FLRC),50, Federal ManagersAssociation, 27 Federal Mediationand Conciliation Services (FMCS),51, 53, 260263, 268, 284, 311,313, 318, 319, 321 Federal Pay Comparability Act of 1970, 171, 173 of 1990, 173 Federal Services ImpassePanel (FSIP), 51, 53, 260 Feldman,Sandra, 39, 334, 337 Fifth Amendment,213 Firefighters v. City of Cleveland(1986), 190 First Amendment, 46, 47, 73-75, 76

Index First WorldWar,4, 6, 222 Fiscal capacity, 147 Fisherman’s Union, 4 Flextime, 203 Flint, Michigan,38, 170 Florida, 8, 30, 33, 60, 68-69, 93, 106, 107, 264, 271,272, 278, 300 Florida Public EmployeeRelations Act (1974), Fog Index, 296 Ford, Gerald, 127 Fourteenth Amendment,47, 187, 213 Fourth Amendment,213 Fraternal Orderof Police (FOP), 23, 36, 42, 68, 223 Free riders, 24, 26, 28, 54, 72, 76 Gagrules, 48-49 Gain sharing, 169-171,343 Garcia v. San Antonio Metropolitan Transit Authority (1985), Georgia, 8, 30, 60, 64, 253, 264 Gerardi, Robert J., 251 Goldberg, Arthur, 49 Golden Handshake, 167 Gompers, Samuel, 4-6 Gore, A1, 17, 55, 191 Gotbaum,Victor, 95 Gould,Jay, 5 Great Depression,3, 6, 168 Grievances, 203-204, 302-317, 339 arbitration, 51, 53, 260, 302, 307317 arbitrability, 308-309 arbitrator, 310-312 binding, 304 court review, 309-310 problems, 312-314 standards, 314-317 causes, 300 expedited arbitration, 318-319 in federal employment,300, 317 mediation, 320-322 procedures, 298-300 fair representation, 306 steward, 305

383 Harpoon, The, 13 Hartford, Connecticut, 124, 205, 312 Hatch Act, 127 Hawaii, 8, 30, 60, 68-69, 71, 100, 142, 235-236, 247, 264 Hawaii Public EmployeeRelations Act (1970), Hawaii United Public WorkersUnion, 253 Health issues, 211 Hell on Wheel/NewDirections, 97 Hill, Joe, 4 HIV, 212-213 Hines v. Anchor Motor Freight (1976), 306 Hoffa, JamesP., Jr., 12 Holmes,Justice, 45 Hutcheson,William L., 6 Idaho, 4, 8, 30, 61, 106, 235,264 Illinois, 8, 9, 30, 40, 44, 61, 62, 70, 184, 229, 235-236, 239, 264, 278 Illinois State EmployeesAssociation, 35 Impasse Resolution, 259-292 Indiana, 8, 30, 40, 61, 67, 80, 264, 278, 285 Indianapolis, 210, 335 Indianapolis EducationAssn. v. Lewallen (1969), Industrial Workersof the World(IWW) ("Wobblies"), 3-4 Injunctions, 251-252 permanentinjunction, 251 preliminary injunction, 251 temporaryrestraining order, 251 Intergovernmental Personnel Act of 1970, 179 International Associationof Firefighters (IAFF), 14, 34, 36, 41, 88, 190, 223, 244 International Association of Machinists (IAM), 7, International Association of Machinists and Airspace Workers, 25 International Association of Machinists v. Street (1961),

384 International Brotherhoodof Electrical Workers, 7 International Brotherhoodof Police Offleers (IBPO), International Brotherhoodof Teamsters (IBT), 7, 19, 34, 35, 36, 37, 41, 247, 326 International Federation of Professional and Technical Engineers, 25 International Longshoremen’sand Warehousemen’sUnion, 4, 326 International TypographiealUnion (ITU), International Unionof Police Associations (IUPA), Iowa, 8, 30, 61, 90, 106, 142, 148, 153. 264, 284, 288, 289, 301 Iowa’s Public EmployeeRelations Board, 105 Iron law of oligarchy, 96 Jackson, Andrew, 12 Jefferson County, Kentucky, 67 Johnson, LyndonB., 13, 17, 50 J. P. Stevens Company,32 "Justice for Janitors," 22, 336 Kansas, 8, 30, 61, 106, 264 Karahalios v. NFFE(1989), 307 Keiss Act, 171 Kennedy,John F., 14, 19, 49, 317 Kentucky, 8, 30, 61, 67-68, 80, 264 KentuckyNurses Association, 68 Keyeshian v. Board of Regents (1967), 46 King, Dr. Martin Luther, Jr., 244 Knights of Labor, 5-6, 13 Knoxville, 223 Korean War, 240 Labor ManagementCommittee, 285286, 338, 340, 343 Labor ManagementRelations Act (1947) (Taft-Hartley Act), 9-10, 48, 49, 72, 73, 89-90, 224, 233, 234, 294, 307

Index Labor ManagementReporting an0 Disclosure Act (1959) (Lan~l~m: Griffin Act), 9, LaborersInternational Union,7, 3,6, Lakewood,Colorado, 286 Layoffs, 183, 189, 197, 204-20:5 Lehnertv, FernsFaculty As.so~i.ation (1991), Lewis, Drew, 255 Lewis, John L., 6 Lindsey, John, 96 Lloyd-Lafollette Act (1912), 13, 48, 228 Local 189, United Papermakersand CrownZellerback Corp. v. United States (1969), 189 Loeb, Henry, 243 LongIsland, 118 Los Angeles, 22 Los An~gelesUnited.Schoo!Distn.’9~, 199 Louisiana,8, 30, 61, 62, 66, 235, _264 Louisville, Kentucky,67 MacKay Doctrine, 10, 2_25 Maier, Henry, 139 Maine, 8, 30, 61, 67, 106, 119~151, 199, 264, 273, 300 Malek Doctrine, 180 Maryland,8, 30, 61, 80, 229-230, 253, 264, 278-279 Marylandv. Wirtz (1968), Massachusetts,2, 8, 14, 30, 61, 70, 106, 142, 153, 183, 184, 253, 264, 275, 284, 285, 291,319, 321, 340 Massachusetts Labor ManagementCommittee for MunicipalPolice and Fire, 285 Massachusetts State EmployeesAssociation, 35 McAuliffe v, City of NewBedford (1982), 45-46 McEntree,Gerald, 12, 36, 152, 334 McLaughlinv, Tilendis (1967), Meany, George, 6

Index Mediation, 262-269, 320-322 advantages/disadvantages, 268-269 grievance, 320-322 process, 263-265 strategies, 266-268 Mediation and Arbitration (Med-Arb), 284-285 "Meet and confer," 67, 69, 116 Memphis, 189, 243-246 MemphisFirefighters Local Union No. 1784v. Stotts (1984), 189 MemphisFormula, 64 MemphisPolice Association (MPA), 244-246 Merit pay, 151 Merit principle, 178, 185-192 Merit systems, 16, 178-185, 198, 201, 299 Merit Systems Protection Board (MSPB),173, 179, 300, 317-318 Metal Trades Council (MTC),25, Miami,Florida, 341 Michigan,8, 9, 30, 40, 59, 61, 70169, 183, 229, 234, 251-252, 253, 264, 270, 276, 277, 282-283, 289, 292, 321,332 Middletown,Connecticut, 216 MidwestCenter for Public Sector Labor Relations, 285 Milwaukee, 139 Minneapolis, 38 Minnesota,8, 30, 61, 76, 142, 153, 183, 216, 235-236, 239, 264, 278, 281,309 Mirandav. Arizona (1966), Mississippi,8, 29, 30, 35, 61, 62, 63, 264 Missouri, 8, 31, 61,234, 264 Moffett, Kenneth, 254 Molly Maguires, 3 Monopsony, 147-148 Montana,8, 31, 61, 153, 235-237, 264 Moscone, George, 166 Multiemployerbargaining, 91-92 National Academyof Arbi~ators (NAA),262, 308, 311

385 NationalAir Traffic Controllers’ Association (NATCO),25, 27, 175, 256 National Alliance of Postal and Federal Employees (NAPFE), National Association of Collectors of Internal Revenue,26 National Association of Government Employees(NAGE),13, 25, 27, 35, 42 National Association of Letter Carriers (NALC),13, 27, 124 National Association of Police Officers (NAPO), National Association of Social Workers (NASW), National Center for Dispute Settlement, 262 National Education Association (NEA), 14, 19, 22, 36, 38, 39-40, 66, 68, 154, 188, 330, 334, 337-338 National Federation of Federal Employees (NFFE),13, 25-26, 52, 191 National Federation of Post Office Clerks, 13 National Governor’s (Conference) Association, 57 National Health and HumanServices Union, 42 National Labor Relations Act (NLRA) (WagnerAct), 13, 28, 33, 40, 42, 47, 49, 52, 55, 64, 71-72, 76, 79, 90, 116, 174, 224, 234, 260, 326, 339, 343 National Labor Relations Board (NLRB),10, 27, 32, 48, 87, 92, 94, 294, 339 National Leagueof Cities v. Usury (1976), 57-58, National Partnership Council, 191, 342 National Performance Review (NPR), 191 National Postal Mail Handlers, 27 National Productivity Council (NPC), 191 National Public EmployeeRelations Act (Clay-PerkinsBill),

386 National Public Employment Relations Commission (NPERC), National Rural Letters Carriers Association, 27 National Teachers Association (NTA), 14 National Trades Union, 2 National Treasury EmployeesUnion (NTEU),25-26, 36, National Unionof Police Officers (NUPO), National WagePolicy Committee, 172 Nebraska, 8, 30, 61, 183, 234, 264, 278 Nevada,8, 30, 61, 91, 106, 253, 264, 282 NewHampshire,8, 30, 61, 70, 142, 183, 210, 264 NewHaven, Connecticut, 151 NewJersey, 8, 30, 61, 76, 106, 165, 210, 214, 264, 280-281,282, 284, 288, 292, 300 NewMexico, 8, 30, 33, 44, 61, 70, 264 NewOrleans, 13, 39 NewYork, 8, 9, 13, 30, 35, 38, 61, 70, 71, 100, 125, 151, 165, 183, 234, 263, 264, 272, 275, 277, 280, 282, 287, 289, 291,300, 337, 340 NewYork City, 2, 82, 89, 91, 119, 139, 150, 165, 181, 186, 194, 200, 223, 249, 291,292, 337, 194 NewYork City’s Office of Collective Bargaining (OCB),105 NewYork City’s Sanitation Unit, 125 NewYork City Social Service Employees Union, 215 NewYork City Transit Authority, 118, 199 New York City Transit Worker’s Union, 97 New York City UniformedFirefighters Association, 197 New York City United Federation of Teachers, 38 NewYork Taylor Law, 253

Index Nixon, Richard, 52, 214, 228, 261 NLRBv. Health Care and Retirement Corporation of America (1994), 43 NLRBv. Mackay Radio and Telegraph (1989), 225 NLRBv. Yeshiva (1980), 40, Nonprofit organizations, 79 Norris-LaGuardia Act (1932), 251 North Carolina, 8, 9, 14, 29, 31, 35, 47, 59, 61, 62, 63, 65, 66, 264, 332 North Dakota,8, 31, 59, 61, 106, 263, 264 NTEUv. Van Raab (1989), 214 Oakland,California, 78 Occupational Safety and Health Act of 1970 (OSHA),59, 211 Office of Labor ManagementRelations, 52 Office of Managementand Budget (OMB),173, 210 Office of Personnel Management (OPM),52, 172, 173, 179, 200 Ohio, 8, 31, 35, 44, 61, 62, 70, 71, 184, 229, 234, 235-237, 239, 264, 271-272, 277, 279, 282, 284, 289, 321,340 Ohio State EmploymentRelations Board, 102, 272 Oklahoma,8, 29, 30, 61,264 OklahomaCity Police Department, 277 OklahomaFirefighters’ and Policemen’s Arbitration Act, 277 Omaha,8, 13 OMB Circular A-76, 210 Opportunity wage, 147 Orange, California, 169-170 Oregon, 8, 31, 61, 91, 153, 237, 264 Organizational development,136 Parity, 149-151 Participative Decision Making(PDM), 338-344 Pawtucket, RhodeIsland, 251

Index Pendleton Act (1883), 48, 51, 127, 178 Pennsylvania,3, 8, 9, 31, 61, 183, 223, 229, 234, 235-237, 238-239, 264, 281-284, 289 Peoria, Illinois, 341 Personnel, 177-218 managementrights, 192-195 managementstructure, 195-196 policies, 206-217 processes, 196-206 Personnel Act of 1970, 179 Philadelphia, 2, 5, 82, 210, 234, 343 Phoenix, 210, 335 Pickering v. Boardof Education, (1963), 47 Poli, Robert, 254 Political action committees(PAC), 124 Portland, Maine, 342 Portsmouth,Virginia, 41 Position classification, 200-202 Postal ReorganizationAct (1970), 27, 52, 55, 194, 229, 262, 273 Post Office Womenfor Equal Rights (POWER), Powderly, Terence V., 5 Prevailing wage, 149, 171-172 Privatization, 209-211 Productivity bargaining, 168-171 buyouts, 169 gainsharing, 169-171 Professional Air Traffic Controller’s Organization (PATCO),27, 175, 331,340 Promotions, 198-199 Propositions 13 &226, 78-79, 328 Public EmployeeOrganization to PromoteLegislative Equality (PEOPLE), 36-37, 126 Public EmployeeRelations Board (PERB), 262, 269 Public Law330, 234 Quality Circles, 338, 342 Quality of WorkLife program, 338 Quill, Mike, 96, 118

387 Railway Employee Department, IAMv. Hanson (1956), 75-76 Railway Labor Act of 1926, 47-48, 75 RamseyCounty, Missouri, 342 Reagon,Ronald, 173, 180, 189, 214, 225, 255-256, 331,340 Recruitment, 151, 158, 180, 183, 196198 Reductions in force, 167, 205-206 Referendums, 286-287 Rehabilitation Act of 1973, 212-213 Rehnquist, Justice, 57-58 Reinventing government, 185, 191-192, 328, 329, 331,334, 335, 340, 344 Revolutionary War, 1 Reynolds v. Simms(1964), RhodeIsland, 9, 30, 61, 70, 119, 183, 264 Rhodes, James, 62 Rhodes-JohnsonBill, 49 Right-to-work laws, 10, 28, 73-74 Rochester, NewYork, 202 Roosevelt, Franklin D., 52, 260 Roosevelt, Theodore,13, 48, 228, 260 Rutgers University, 39 Salt Lake City, 208, 234 San Antonio, 14 San Diego, 22, 78, 223 San Francisco, 151, 166, 286 San Francisco Bay Area United Sanitation District, 341 San Francisco Boardof Supervisors, 166 San Jose, 122, 152 San Rafael, 286-287 Santa Barbara, 78 Scheduling, 202-204 School District for the City of Holland et al. v. HollandEducationAssociation (1968), 251-252 Schultz, GeorgeP., 50, 228 Scope of bargaining, 192-196, 203, 210, 302, 309, 331 Senior Executive Service (SES), 27, 172 Seniority, 184-187, 189, 197-198

388 Service E~nployeesInternational Union (SEIU), 7, 11, 19, 23, 27, 34, 36, 37, 41, 42, 79, 129, 188, 200, 243, 330, 334, 336, 337 Shanker, Albert, 39, 334, 337 Stcinner v, RailwayLaborExecutives’ Association (1989), 214 Smith v, Arkansas HighwayCommission Employees Local 1315 (1979), Srooking, 211-212 Soc_ial Security Act of 1935, 59 Social Security Act of 1940, 179 Society of Master Cordwainers, 2 $9~t~ Cam~!ina,9, 29, 30, 35, 61, 62, 63, 65, 66, 148, 214, 264 South Carolina EducationAssociation, 66 South Dakota, 9, 31, 61,265, 278-279 Sovereignty, Doctrine of, 15-16, 46, 65, 81,230-257 Stare decisis, 314, 316 State University of NewYork, 39 Steelworkers Trilogy, 307, 309-310 Strikes, 221-258 1886Knights of Labor Strike, 5 alternatives to, 259-292 baseball, 242-243 Bay Area Rapid Transit (BART) strike, (1997), 243, 247 BostonPolice Strike (1919), 14, 16, 222-223, 234, 249, 329 Charleston, South Carolina Hospital Workers’Strike (1969), Connecticutlegislators strike (1911), 221 contingency planning, 250-251 definition, 223-224 frequency, 224-230 general strikes, 230 Government Prir~t.i_ng Office (1863), 221 graduatedst~ke., 248 legislation, 234-238 KansasCity, MissouriFirefighters strike, (1979), 256 managementinvolvement, 249-251 Massachusetts Moth Workers, 221

Index MemphisSanitation Strike (1968), 65, 243-246 naval shipyard strike in 1836, 1,221 NewOrleans Police Strike (1979), 247-248 NewYork City Transit Strike (1966), 96, 247 NewYork City welfare caseworkers strike, 203 nonstoppagestrike, 248 penalties, 252-257 Postal WorkersStrike of 1970, 24, 52, 228-229 Postal WorkersStrike of 1990, 247 Professional Air Traffic Controllers Strike of 1981, 225, 253-256, 258, 340 public policy, 238-239 reasons for, 239-247 right to, 230-247 San Francisco Police &Fire Fighter Strike (1975), 166 San Francisco Probation Officers strike, 203 tactics, 247-257 United Postal Service Strike (Teamsters) of 1997, 333 Watertown (New York) Arsenal s~rike, 221 Sturdivant, John, 25 Sunshine laws, 106-107 Sutherlin EducationAssociation v. Sutherlin School District No. 130 (1976), 215 Surveys, 149-150 Sweeney, John J., 10-11,325-326, 334 SweeneyRevolution, 22 Tacoma, Washington, 152, 169-170 Taft, William Howard,48, 228 Taft-Hartley Act (1947) (see Labor Management Relations Act) Tampa, 206 Task Force on Employee-Management Relations, 317 Taylor, Frederick W., 6

Index Teasdale, Joseph, 256 Technology, 154, 183, 206-207, 326, 328-330, 335 Ten-hour work day, 2 Tennessee, 9, 29, 31, 61,265 TennesseeValley Authority, 48, 52, 101, 171-172, 174, 201 Tenth Amendment,57-58 Texas,9, 29, 31, 61, 66, 214, 234, 265, 286 Thornton, John, 256 Tobaccoand Allied Workers, 4 Total Quality Management(TQM), 338, 342 Training/development, 199-200 Transport Workers Union (TWU),43, 96, 118 Truman, Harry, 260 Trurnka, Richard, 12 Unfair Labor Practices (ULP), 54, 7677, 93, 123, 260, 287, 295, 338 Unions, and budgetmaking, 140-145 challenges, 327-335 fiscal, 327-328 public policy, 330-331 strategic, 331-335 structural, 328-330, 335 decline in, 10-12, 325-327 duty of fair representation, 306 employee commitment, 341 federal government,23-28, 43, 48-55 free riders, 24, 26, 28, 54, 72, 76 functionally specific, 37-43 education, 37-41 health care, 42-43 protective services, 41-42 general purpose, 35-37, 41 growth, 16-20 history, 45-79, 88, 122 impact on personnel functions and policies, 177-218 membership,2, 3, 6-11, 20-23, 28, 33, 35, 36, 43, 97, 325-326, 328, 336, 344

389 IUnions] minorities, 7, 11, 16, 19, 21, 25, 28, 37, 178, 188-191,329-330 mixed, 34-35, 37, 334 opportunities, 335-344 private sector, 18-19 resistance tactics, 10-11, 32 security, 184, 185 state/local government,14, 28-44, 55 -79 union-busting, 3, 10, 33, 44, 325 women,7, 11, 21, 97, 153, 178, 188191,329-330 United Auto Workers, 7 United Civil Service Commissionv. Letter Carriers (1973), 127 United Electrical, Radio, and Machine Workers, 4 United Federation of CommercialWorkers, 7 United Mine Workers, 6 United Nurses of America (UNA), United Office and Professional Workers, 4 United Steel Workersof America, 7, 309, 319 United Transportation Union (UTU), 43 University of Connecticut, 39 University of Massachusettsat Amherst, 200 University of Pittsburgh, 40 Urban, A. Walter, 13 Urban MassTransit Act (1964), 59, 64 Usery, WilliamJ., Jr., 228, 243 Utah, 4, 9, 31, 61,265, 278-279 VACAv. Sipes (1967), 94, 306 Vallejo, Cafifornia, 151 Vanguards, 190 Velazco, Shelia K., 26 Vermont, 9, 31, 61,183, 234-237, 239, 263, 265 Vernon, Connecticut, 216 Viet NamWar, 17, 50, 240, 334

390 Virginia, 9, 29, 31, 61, 63, 64, 234, 265, 332 Virginia v. Arlington CountyBoard of Education (1977), Wage-boardemployees, 172- i73 Wages, 162-164 WagnerAct (see National Labor Relations Act) Waron Poverty, 17 Washington,9, 31, 61, 67, 90, 152, 153, 183, 234, 265, 321 Washington County, Oregon, i52 Waters v. WashingtonSteelworks (1974), 189 Watkins v. Steelworkers Local 2369 (1975), 189 WestVirginia, 9, 31, 61, 63, 265 Westchester County, NewYork, 14 Wheatleyv. City of Covington(1972), 168 Wilson, William, L., 13 Wilson, Woodrow,260 Wisconsin,9, 31, 60, 61, 72, 76, 91, 100, 153, 169, 235-237, 265,

Index [Wisconsin] 281-282, 284-285, 288, 289, 292, 309, 342 WisconsinBureau of Collective Bargaining, 101 Wisconsin Employee Relations Commission, 102, 105 Wisconsin State EmployeesAssociation, 14 Workers’ Compensation, 214-21’3 Workfare, 198-199 WorkingFamily Party, 337 "Workingto the rule," 248 WorldWarII, 59, 234, 240, 307 Wurf, Jerry, 15, 36, 56, 180, 334 Wygantv. Jackson Board of Education (1986), 189 Wyoming,9, 31, 59, 61,265, 273 Yale University, 40 Yellowdog contracts, 6 Young, Coleman, 280 Zander, Arnold, 15 Zebulon, North Carolina, 169

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