Issue 46-69 "Public Employees and the Law: Part 1"

And we are the national educational radio network presents

special of the week from Yale University from its

series called Yale reports.

All of us expect the government to provide certain services to US public schools police

protection and rubbish removal are three of the many city state and national services we

count on and pay for our taxes support these services and the men and

women the public labor force who make them work. Through the years we have come to expect

Labor's right to strike private industry for better wages and better working conditions in

public service however strikes by employees hired by any level of government are expressly

forbidden by law. Other public and private sectors of our economy really so different.

Are we coming to a time when we will recognize a teachers right to strike is the effect on the

economy different when steel workers strike then refuse collectors walk out.

This is the first of two programs on public employees and the strike weapon. Harry H

Wellington Edward J Phelps professor of law and Ralph K. winter Jr.

professor of law. See the question of strikes against government as one that affects not only the rights

of a particular group but one where different economic pressures applied to the public and

private sectors.

Mr. Wellington It is a fact that public employment has increased

dramatically and particularly in state and local government. Over the past several

years for example in 1947 there

were some five and a half million people employed by federal

state and local government in 1067. The figure was close

to 12 million. And the really substantial increase was in

state and local employment rather than in federal employment

accompanying this increase and employment has been a even more

dramatic increase in municipal state and

federal unionism in percentage figures. For

example the total increase in the AFL CIO membership

between 1956 and 1967 was 7

percent whereas the American Federation of Government Employees

increased by two hundred fifty percent. The American Federation of State County and

Municipal Employees by a hundred and two percent and the American Federation of Teachers by

a hundred 60 percent.

So it's fair to say that in fact the principal increase in unionism in the last

decade has been in public employment rather than.

While employment very definitely and one of the important questions is I

suppose a lie this is more I should think that the increase in the song

lies in numbers and the government bureaucracies would be one of the reasons with the

increase in the size of the chain of command in employment its links and the feeling

of being governed by impersonal forces not really knowing the person that is

making the rules under which you have to work and setting the wages on that which you have to work.

That the creation of that kind of feeling it naturally creates a great incentive to unionize there's not

really the very fact of growth is as an important contributing factor to

the increase in unionism.

Sure because there's a correlation between a feeling of powerlessness in employment

and the size of the enterprise in which one is working out all of the literature on unionism.

He said that the increasing size of corporate structure and the increase in the size of the economic

units as a result of the Industrial Revolution tended to create a lot of forces driving

towards unionism.

All right. Another reason I would suppose is the fact that in 1962

collective bargaining was legitimated in public employment by

President Kennedy and his famous executive order 10 9 8 8

which provided for collective negotiation in the federal government

between federal agencies and and unions. It didn't of course provide for the

strike. We have to make that very clear. That's outlawed explicitly by

legislation.

So I would say that there are a number of other factors also. There's the increasing

respectability and conservatism of unions. Unions are not thought of as being

institutions designed solely for very poor people. Many a

relatively well-to-do middle class people belong to unions. One of the great

attractions of government employment in earlier days was job security and fringe benefits

such as pensions. This created a contrast between public employment and private

employment that made public employment seem quite attractive. There has however partly as a

result of collective bargaining partly as a result of other forces but a tremendous increase in

jobs and job protection and in things like pensions in the private sector.

Yes it's also probably drove around.

Let the union movement in the private area has become more respectable.

It's a conservative force rather than a radical force. Since

1935 it has had the stamp of federal legitimacy the

Wagner Act was enacted then putting the government behind collective bargaining as a

method of ordering labor management relations so that there are a number

of forces but one of the interesting things is the lack of success

of the unions in the private area

in organizing white collar workers and so many of so many employees in the public

area would be designated as white collar workers. Now I wonder why that might

be.

Well I would think that. A greater number of those who

go into white collar public employment such as social work school teaching are

ideologically inclined persons than those who go into private employment I would think a

person who chooses to go into advertising would be less of an idealogue than that a

person who decides to become a social worker. And I think the kind of ideology they

bring to their job is an ideology quite favorable to unionism they have. They have long regarded

unionism as a very good thing as a something that has

done a lot for the country. This of course will have a tremendous impact on the attitude

and behavior of some public employee use them he may be far more militant in form or

ideological as a result.

All of these factors and certainly must combine. Exactly how

much weight would be attributed to each it's hard to know and there are other factors and one of them that of course

comes to mind. Both of us being lawyers is the role of law.

It's awfully hard to know whether the law is a cause or effect of

social change and unquestionably it's both. In the whole area of

public employment and collective bargaining in the states and

municipalities the experience has been that the

problems have come to courts first and that really is the experience of most.

Public change most

developments reached the courts before they reach the legislature. Well

social change and we had a body of

law and still have it in a lot of places of common law for

banning collective bargaining by public employee.

That's right not only forbidding the strike. The issue which is of such importance that I

look for a betting organization by the employees for bidding recognition by the government

employer forbidding the execution of a collective agreement preventing any form

of unionization and toward a huge tour of the Dr ins that were

mounted by the chords and their attack and beating back collective

bargaining of public employees where the doctrine of sovereignty.

That is the sovereign doesn't negotiate with its employees

as it applied here and the doctrine of delegation what employees should work for

what their conditions of employment ought to be these were decisions that were to be made by the legislature

and not by employees. And these doctrines were widely

held. But there has been a change in the common law. Quite apart from

statutory change and interestingly enough the state of Connecticut

took a leadership role in that and its supreme court of errors in

151 and Norwalk teacher's case held

by it was permissible for a school board to

bargain collectively with a Union of Teachers not

required. As I recall. That's right and not that the

teachers had a right to strike but that the school board could without violating any principle

of delegation of its powers and or into a collective bargaining agreement

with a teacher's union.

It did not have to recognize the teachers you know. I got the decision but

it was permitted to write. And when you say that I was just as a matter of prediction that

there is a greater likelihood that a court would today follow the

doctrine of the Norwalk teacher's case than the doctrine of sovereignty or delegation

of power which is an earlier time. What was thought to prevent collective bargaining.

I think that's right although there have been some notable exceptions and traditional things but

but most of the cases that have come up in court without statutes raising this issue.

Have tended to use as their model the Norwalk teacher's case for example there was a case in Iowa

just last year where Norwalk teachers was followed. Now there has also been a

rapid growth of statutory law the statutory

development really began in 1959.

Interesting we end up with a comprehensive statute and acted by

the state of Wisconsin.

There are a number of statutes Connecticut has one which was an act in

1066 there's a Taylor Law in New York which is very no

solution as principal in a highly industrialized highly unionized states.

That's right.

And it varies and it's and it ought to be said that some states through

since Alabama still have standards prohibiting unionization by employees

entirely.

Now these statutes do take many different forms but but what they

provide in the broadest of terms is a peaceful method for recognition that is

if a majority of employees want to organize.

They're entitled to do so. It deals really with the with the establishment of

collective bargaining in the model. Pretty generally is the model employed under

federal legislation in the private area the National Labor Relations Act.

Not all starships provide that the governmental employer has to

recognize the union. Some places recognition is not obligatory but is

permitted under the statute where it is obligatory however. It really isn't

possible now to have a strike for recognition. There will be a procedure for determining the percentage

of employees that are want to have the union and if the percentage is

sufficiently high the statute commands the government along for it to recognize and bargain with the union

if the union does not attain the required percentage usually 50 percent. Then I

presume it would be illegal for that the minority Union to strike to attempt to compel recognition by

the employer.

The other important feature of the state legislation that has been

enacted since 59 that mainly in the last couple of years is that it. It

attempts to provide procedures for resolving collective

bargaining disputes that the parties can't resolve themselves that is collective bargaining as a

stablished. That the parties sit down and negotiate a

union is chosen by the employees in that union and then negotiate with the relevant

agency of government. Frequently I take a contract law

governing wages hours and terms and conditions of employment when it doesn't when an

impasse is reached. What usually happens in the private

area is that the parties use self help. The strike

or the lockout as I said all states bar the use of economic

force in the public area and attempt to provide

alternatives to it for resolving these impasses.

For example mediation is readily available if you have a public

board a public agency. It will provide mediation

services. Fact finding procedures are frequently available

with recommendations so that the tendency is to try

to find substitutes for the strike. And in all of these cases the strike itself is

legally barred.

It would seem fairly clear though.

Given the direction in which these dancers are moving let the next step will be to provide

for arbitration of disputes wouldn't you think oh well I mean there is

some movement along that line and that has its advocates and in my recollection is the

George Meany himself has endorsed compulsory

arbitration as a method of solving the impasse

problem in the public area.

On the other hand Rob one of the things that one finds in the literature

and on the part of commentators is an increasing acceptance

of of the strike as the method of solving impasse that

is what one sees in this whole area is

an accelerated acceptance of the private model

in the public area. One can trace the position of various

students of this shifting over time. Governor Schaefer of Pennsylvania established a committee

last year to make recommendations about a public employment

law in Pennsylvania and that committee

which was manned by distinguished people in the area recommended that

the strike be permitted after certain procedures had been exhausted and in

limited areas I don't think anyone has suggested that the police ought to be able to strike or

the firemen ought to be able to strike except some police and some firemen.

Well. I don't know I think what you're saying is right that on the first

creature of these laws the recognitions procedure we are we already have what is essentially the same

system as now exists in the private sector. As far as impasse procedure is concerned we are

now in a transitional period we are relying on devices such as mediation and fact

finding which actually don't provide a final resolution of a dispute.

I think we'll move to compulsory arbitration as a means of solving I think we are very likely

to move if the present trend keeps up to the

full private model that is we will permit strikes by public employees in non-emergency

situations.

So the question that is. I would think of most interest. An

analysis of whether this embracing of the private model

really is a sensible thing to do.

One of the things that strikes one reading the literature is the

lack of theoretical examination of this of this movement to the private model the Knology

with the private model is accepted almost automatically without any

really thoughtful discussion as to what the similarities and

differences between collective bargaining in the private sector and the public health sector really

exist.

Maybe something to the would be sort of to ask

about the justification of collective bargaining in the private area and

then see to what extent the rationality developed their fit of

collective bargaining by public employees.

Certainly one reason that the nation turned to collective bargaining as a means of ordering

labor markets was the dot desire to achieve industrial peace.

And I mean industrial peace really in two senses one is in a way

an overview of a sense of class wars that is that a collective

collective bargaining was thought of as an institution which might mediate between what was

thought to be a rigid economic classes and would not leave

any particular class feeling completely left out that is that that it would feel that

everyone was participating but in a second sense industrial peace means the lack of

long and bitter labor disputes.

And the argument was made that if in fact the union was recognized and the

parties were to sit down and bargain they would then have a

wider understanding of each problem

and would be able to peacefully resolve the dispute rather than to

resolve it through industrial warfare and of course this is in the preamble to a major

label is that at the Wagner Act as amended might have partly you know graphic.

It was also the feeling rather anxious not only that we would have a less noisy

society through collective bargaining but we would also have a more

able or more independent kind of person out in the society if if we were to

take the employment relationship and give the employee a

greater sense of participation the fact that collective bargaining

was a means of providing the employee with

a say in the establishment of his terms and conditions of employment

that as industry became expanded

he tended to be a cob in the machine he was emasculated

he worked on a production line. He didn't see the end result of what he was working

on. He thought as if he were a machine. This was the moralising and

it made for less good citizens and he had less of a stake in the

political society than he and his government was

more susceptible to revolutionary movements as a result of this. So

that this was a very important feature. And again the

statutes respond to this and speak in these terms

provide for government by the

employees through their union the union serving as a representative and the employee that has a say

in the establishment of his wages hours terms and conditions of employment.

Now I suppose to say that both of these arguments which were used to justify collective

bargaining in the private sector the industrial peace argument and then the

industrial democracy where argument would seem to me to have a lottery

in the public sector.

Right and I think in the beginning when we were talking about the factors that led to

the enormous increase in unionization in these areas we mention these

factors.

The feeling of powerlessness the desire to have some say over one the

creation and execution of one of the terms and conditions of employment.

So the analogy seems to hold up so far but there is another very important point

and this is where you know what you may begin to break down. One of the

arguments that one finds in the rhetoric of the union movement in

this country and they are dealing mainly with the private area is the argument that.

The individual is at an enormous disadvantage when he

deals with the corporate giant. That's an economic disadvantage or an economic

disadvantage that he he can't really have a say in the

setting of his terms and conditions of employment or his wages that it's

dictated by the the corporate giant and the corporate giant is likely

to take advantage of him and have and give him an unfair contract of employment.

And we can't tolerate this kind of

unfairness. Wages are depressed unduly profits increase

unduly and so forth and this is kind of an unsophisticated economic argument.

It certainly is true that in the long run and on the

average over time the market disciplines the

employer when he deals with the individual employee. He doesn't

have freedom to exploit but in some situations he may.

Oh yes I think it ought to be pointed out that many of the great

examples of the sweatshop for instance did not involve any kind of a corporate giant that involved an

employer who was constantly on the verge of bankruptcy very often worked along with the

employees suffered the same kinds of. Disadvantages the

same kinds of bad working conditions and that. In fact

the real cause of the sweatshop which was more the free market the competitive

economy than it was any kind of employer advantage in the labor market.

But there was this sense of unfairness and how often justified or not it's

very difficult to know that in some situations justified in others.

But collective bargaining is an attractive alternative to that if the individual employee doesn't have enough

information doesn't have enough economic muscle. Maybe if he gets

together and bargain collectively the union will have information necessary to make the

market work anough muscle. And

so as a response to the notion of unfair

individual contracts one has collective bargaining Now the important thing to point out is.

That the market.

Plainly disciplines or restraints the collective entities.

Well what you're saying now is that even if the argument that the employee is at a

disadvantage in the marketplace is wrong even if that argument is old enough that they're

overstated. Nevertheless there may be restraints on collective bargaining which

make the cost of that institution not very great.

I do not clearly so that way.

That's right so that one does not risk as much as one might think he is by turning to collective

bargaining.

Now I suppose the question is What are these market restraints.

How do they operate in the in the private area and

it's fairly plain isn't it in the private area. There is a

product that is being produced and consumers who buy the product

at a certain price and don't buy the product at another price but buy something else

if the price of the product that they wanted initially is to are that

is they respond to the price of the product through the railroad workers for us this may be able

to force the railroad to pay an extremely high wage but they can't force people to

ride on the wrong side of the era.

And if they can't force people to ride on the railroad. The tradeoff that

they face in obtaining the higher wages may be a substantial degree of unemployment

unemployment which we can confidently expect the union will not permit to be to become

too high so that the union in the demands that it makes and the positions that it

takes in collective bargaining is faced with the problem of.

Pushing as hard as it can but recognizing if it goes too far prices will

have to go up if prices go up. There is likely to be a cutback in

the demand for the product. If there's a cutback in the man for the product it's likely to be

unemployment. And they don't want unemployment if they can avoid unemployment

because. It means that their power is

reduced and their power is reduced because they have less members and less dues

money. That's right and there is also of course the political pressure within the union to avoid

unemployment so that this is a very real and substantial restraint on the union's use

of their collective power.

So that in fact and in the private sector the employer is a strong

countervailing force to unionism not just because he's trying to protect his

profits which he surely is but that in trying to protect those profits the employer in fact

represents the consumer is the one that gauges the effect against the

higher prices will have on the sale of the product. But.

And from his point of view what he's interested in is maximizing profit.

That's right and he can do that only by satisfying certain desires of the consumers.

So what we have very clearly in the private area is the restraint of the

market imposed on the parties. We have an economic model and the economic model

works economic laws restrain the parties. In some situations

perhaps the employer is capable of some

exploitation in some situations perhaps the unions are capable of some

exploitation they have some monopoly power. I

think most economists believe that there is at least some monopoly power the question really

becomes whether it's liquidated or an liquidated but still

relatively minor. It's not terribly important. It's within

tolerable limits. The society is quite able to accept collective bargaining because of these

other virtues.

The industrial democracy the industrial piece the stake in the community. These are very very

important to the society and we can say that within within the

limits of tolerance the collective bargaining contract is fair

as between the parties and fair to the public. I think we also ought to point out.

A union in going to an employer and making certain demands has

to take into account the fact that unions often have great difficulty winning long

strikes for one thing the employer may go out of business if they shut him down long enough.

Secondly the pressure on the union to settle in the midst of a long long strike

increases geometrically as the is the hardship on the individual union members increases a

strike benefits get smaller as savings are used up the pressure on the

union increases very dramatically whereas As for the employer the pressure the

subtle increases rather more steadily over time so that in fact in the private sector the

threat of a long strike just by existing in place is a very

severe constraint on union demands and union power.

Right and the going out of business is a point that really I suppose ought to be emphasized. What it means is

in some cases I suppose the threat of bankruptcy which is a deterrent.

Or are that he takes his capital and he goes elsewhere he puts it elsewhere.

And that is an alternative that's available to him when in fact no one begins to think about the

problem of the employer going out of business. A very critical difference between the public

sector and the private sector becomes apparent. Certainly the New

York school teachers are not afraid that New York City will go out of business. It may come to a

standstill. That's right. The public employer does not

face a competitive market the way the private employer does. One expects short of the collapse

of the society that the public employee will continue to exist and that the employment relationship

will continue to exist.

Next week professors Wellington and winter explore the complexity of the employer union relationship in the

public sector. The different interest groups operating there and the difficulty in applying the

conventions of collective bargaining to the public area. The scripts for these programs are

available without charge by writing your reports 1773 Yale station in New

Haven Connecticut 0 6 5 2 0. This is Charles Dillingham for you no

reports which originates in the audio visual center of Yale University.

Any RS special of the week. Thanks Yale University for this edition of Yale

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