Category Archives: Collective Bargaining – Public Sector

The Paradox of Public Sector Labor Law

Source: Martin H. Malin, Indiana Law Journal, Vol. 84, No. 4, 2009

From the abstract:
Although the percentage of employees represented in collective bargaining in the public sector is more than five times the percentage in the private sector, collective bargaining for public employees remains very controversial The two most powerful arguments against public employee collective bargaining is that it is antidemocratic and that it impedes effective government. Concern with the antidemocratic effects of public sector collective bargaining leads courts and labor boards to narrow the scope of what must be negotiated. Concerns with collective bargaining impeding effective government leads to backlash by the legislative and executive branches against public employee unions.

This article contends that the narrowness of the scope of bargaining that results from concerns over the antidemocratic nature of public employee bargaining leads to public employee bargaining impeding effective government. The law of negotiability channels channels employees and their unions away from participation in and responsibility for decisions affecting the risks of the public sector enterprise and into negotiating contract provisions that protect them from those risks. Public employee unions have performed that role very effectively, so effectively that the results can impede effective government. The article examines numerous cases where, in spite of the law, public employers have involved employees and their unions in decisions affecting the risks of the enterprise with very positive results. The article urges that jurisdictions break away from the private sector model which classifies every subject as either one on which collective bargaining is mandated or which is left to the unilateral control of management and develop alternative vehicles of employee-union voice in public sector decision-making.

The Challenges of Negotiating Labor Agreements in Uncertain Times

Source: Amanda Cuba, HR News, Vol. 75 no. 4, April 2009
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There is no arguing that these are difficult times for everyone. With the economic crisis still in full force, employers find themselves facing a wide variety of challenges that could deeply affect their organizations and their employees.

Some might have to cut staff, freeze hiring for open positions, put off creating new positions and delay purchasing new equipment. And, of course, there is the major issue of how the economic crisis will affect employees.

One area where public sector employers might face some huge hurdles is in negotiating labor agreements through their unions. When there is little money to go around, higher-ups are less likely to be able to provide unions with everything they request. In some cases, employers may even pressure unions to accept decreases in compensation for their members and to make other concessions regarding work rules.

Reclaiming the First Amendment Through Union Dues Restrictions?

Source: Harry G. Hutchison, University of Pennsylvania Journal of Business Law, Spring 2008
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… In view of the fact that labor unions and labor advocates increasingly see unions and the labor movement as a fighting force for class-based justice and societal transformation, it is possible that virtually all union expenditures (including collective-bargaining expenses) have freedom of expression implications that are adverse to the interests of dissenters. … In Beck, the Supreme Court had to decide whether an exclusive bargaining agreement within the meaning of section 8(a)(3) of the NLRA “permits a union, over the objections of dues-paying nonmember employees, to expend funds so collected on activities unrelated to collective bargaining, contract administration, or grievance adjustment, and, if so, whether such expenditures violate the union’s duty of fair representation or the objecting employees’ First Amendment rights.” … First, labor unions are made up of diverse workers with disparate interests and preferences, and therefore, consistent with the parameters of postmodern discourse and Madisonian assumptions, it is impossible to believe that workers necessarily share a common interest. … Since self-interest implicates both economic and ideological goals, engaging in an inadequate search enables courts to overlook self-interested benefits (private externalities) that disproportionately accrue to union hierarchs and union outsiders that may have captured the union, its policymaking and its revenues. … Accepting the allegation that it is well settled that a union, which is obliged to act on behalf of all employees in the bargaining unit, may charge nonunion employees to bear their “fair share” of the costs of representation and basking in the assertion that Washington has a long and proud history of being a pioneer in the protection of employee rights, the Washington State Supreme Court approved agency shop provisions that require the deduction from nonmembers’ salary of fees equivalent to union dues. … Though grounds for skepticism may engulf the capacity of the Davenport case to empower dues objectors to reclaim First Amendment values, grounds for optimism can be found in the Court resolution of two issues: (A) that the state of Washington could constitutionally eliminate agency fees entirely in order to protect workers’ rights to their own money and (B) that the citizens of Washington are not bound by the allegation that dissent within labor unions cannot be presumed. … Taken together, this analysis clarified by John Nowak and Ronald Rotunda’s observations, implicates the following question: May a union, consistent with workers’ rights of freedom of association and speech, use union dues to advance causes or interests not favored by all of the dues payers? … An inspection of the evidence provided by Professor Troy, a careful survey of labor union websites, a detailed inspection of available union accounts, and an examination of the pronouncements of John Sweeney, Dennis Rivera and other labor leaders, reveals that the union movement has transformed itself into an anti-market fighting force for social justice. … The Davenport Court complements Hanson’s language by subordinating dues objections to the following proposition: Public-sector unions are only prohibited from using the fees of objecting nonmembers for ideological purposes that are not germane to the union’s collective-bargaining duties.

Taylor Made: The Cost and Consequences of New York’s Public-Sector Labor Laws

Source: Terry O’Neil and E.J. McMahon, Empire Center, October 17, 2007

From the overview:
The Empire State was a scene of growing public-sector labor unrest in the mid 1960s. Government employees from Long Island to Buffalo were lobbying for the same organizational and collective bargaining rights as private-sector workers. Municipal unions in New York City had been negotiating contracts since the late 1950s, yet essential city services had been repeatedly interrupted by strikes or threats of strikes-culminating in a disastrous walkout by transit workers in January 1966.

Congress Proposes Collective Bargaining for Public Safety Workers

Source: Charles Wheatley, Local Government Law News, Spring 2008

A bill in the current Congress, the Public Safety Employer-Employee Cooperation Act of 2007 (H.R. 980), would provide collective bargaining rights for law enforcement officers, firefighters, and emergency medical services personnel in state and local governments that do not already provide such rights. The legislation has three primary objectives: it requires public safety employers to recognize public safety employee labor organizations freely chosen by a majority of the employees; it compels public employers to bargain with the labor organization once recognized; and it requires that, if any agreements are made, they be committed to a contract or memorandum of understanding.

Mexican Government Cites US over Public Sector Bargaining in North Carolina State

Source: International Federation of Chemical, Energy, Mine and General Workers’ Unions, In Brief, November 5, 2007

The National Administrative Office (NAO) of Mexico’s trade pact enforcement agency in the Labour Ministry has issued an immediate call for answers to questions on the progress in gaining collective bargaining rights for public sector workers in the US state of North Carolina.
Related articles:
Unions Charge North Carolina Violating NAFTA Labor Rules
Source: United Electrical, Radio and Machine Workers of America, October 26, 2006

Charter Schools and Collective Bargaining: Compatible Marriage or Illegitimate Relationship?

Source: Martin H. Malin and Charles Kerchner, Harvard Journal of Law and Public Policy, Vol. 30 no. 3, Summer 2007

From the abstract:
The rapid increase in charter schools has been fueled by the view that traditional public schools have failed because of their monopoly on public education. Charter schools, freed from the bureaucratic regulation that dominates traditional public schools, are viewed as agents of change that will shock traditional public schools out of their complacency. Among the features of the failed status quo are teacher tenure, uniform salary grids and strict work rules, matters that teacher unions hold dear. Yet unions have begun organizing teachers in charter schools. This development prompts the question whether unionization and charter schools are compatible.

A Word (or Two) About Public Sector Collective Bargaining

Source: Joseph Adler, Public Personnel Management, Winter 2006, Volume 35, no. 4

Public Sector Collective Bargaining is a relatively recent phenomenon—its lifecycle can be traced to and indeed may be a lasting legacy of the “baby boomers” entering the public sector workforce in record numbers. Outside of a few traditionally union-friendly or politically progressive jurisdictions, union activity among government employees was virtually unknown and unheard of in the 1950s. During the next two-plus decades, however, union membership rates saw explosive growth so that by 1979 about 38 percent of public employees were either members of or represented by unions. Despite an occasional setback, public sector unions managed to stay close to this rate for the next 27 years. Ironically, the ascendancy of public sector unions almost mirrors the decline of private sector unions; at one time they represented more than one-third of America’s workers; today they represent less than nine percent.

At the initial stages of public sector union organizing there was a robust discussion among practitioners, researchers, and others concerning the changes unionization might cause to the body politic over resource allocation, the determination of public policy, the use of political pressure at the bargaining table and the role of the “public” in bargaining, plus the potential shift in power favoring unionized employees. Acceptance of collective bargaining in government has indeed resulted in changes both at the macro public policy/administration level, and the micro human resource administration level. It is hoped that this special issue rekindles the inquiry and debate both from an academic as well as a practitioner perspective.

Bringing the State’s Workers in: Time to Rectify an Imbalanced US Labor Historiography by Joseph A. McCArtin

This article considers the reasons why labor historians have continued to neglect the history of workers and unions in the US public sector. It argues that the most compelling explanation for hisotrians’ failure to examine the history of public sector unions is that conducting such an examination would challenge a number of deeply rooted preconceptions regarding the history of American labor since World War II. The article goes on to suggest what we might learn if US labor historians began to probe the experience of public sector workers more fully.

Labor History
Vol. 47, No. 1, February 2006