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

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.

History and Background

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

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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

History andBackground

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

12

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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.

History andBackground

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

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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

History and Background

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

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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).

History andBackground

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

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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.

History and Background

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

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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.

History and Background

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

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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

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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.

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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.

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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

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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

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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

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The Unions Today

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Chapter2

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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

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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

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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

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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

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(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

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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

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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

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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-

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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-

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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

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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-

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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

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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-

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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

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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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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-

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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

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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 i