The Constitutional Dimension of Unilateral Change in Public Sector Collective Bargaining

Source: Stephen F. Befort, ABA Journal of Labor & Employment Law, Vol. 27, 2012

From the abstract:
During cycles of public sector budgetary crises, governmental entities frequently undertake efforts to reduce workforce costs. Sometimes these efforts have gone beyond layoffs and furloughs to include modifications to the terms of existing collective bargaining agreements. In the private sector, such a unilateral alteration would be an unlawful breach of contract and an unfair labor practice. But, unilateral change is more prevalent in the public sector, particularly due to the constitutional structure of state government. This article examines two of these constitutional dimensions. The article first discusses diffused management authority resulting from the separation of powers with particular reference to legislative authority over appropriations. The article then goes on to explore the legality of governmental lawmaking that modifies previously negotiated labor agreements. In both instances, a state legislature that is not defined as an “employer” under the pertinent state labor-management statute may have authority to undo a contract negotiated by the jurisdiction’s executive branch. The article concludes with suggestions for limiting the potential for such mid-term unilateral modifications and for providing the same level of certainty to collective agreements as is afforded to other governmental contracts.

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