Special of the week; Issue 47-69 "Public Employees and the Law: Part 2"

And we are the national educational radio network presents special album week from Yale University from its series called Yale report. It's Labour's right to strike private industry is accepted as part of our economy. But a strike by employees working at any level of government is expressly forbidden by law either public and private sectors of the economy really so different in the second 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 explore the complexity of the employer union relationship in the public sector. The different groups operating there and the difficulty of applying the conventions of collective bargaining to the public area. Mr. Wellington. Last week we discussed the growth during the past decade of public employment particularly at the state and municipal level and the enormous increase in unionism in this sector of our economy.

Responsive to and assisting in this increase in unionism has been the enactment of laws in many of our states permitting and in some cases encouraging the establishment of collective bargaining by workers and their governmental employer. While none of these laws permits a union legally to strike in support of its bargaining demands we noted a trend on the part of many commentators to embrace the proper model for collective bargaining in the public sector collective bargaining as it exists in the private sector and particularly to approve the occasional use of the strike when the strike does not clearly threaten the public's health and safety. In order to judge whether such a development would be desirable we began last week a comparison between public and private

collective bargaining. We noted first that in both the private and public sectors collective bargaining was a method through which employer and employee could peacefully resolve disputes disputes that in the absence of such a mechanism could and indeed had led to disruption. We observed. Secondly that through collective bargaining in both public and private sectors the employee could participate through a democratic process in establishing the rules under which he worked. Finally we examine the restraints imposed by the market upon employers and unions in the private sector during collective bargaining restraints that ensure that the public cost of collective bargaining will be tolerable. We observed that if labor costs make a business unprofitable the private employer unlike the public

can take his money and energy and go elsewhere. And we noted. Because the demand for a product generally decreases as its price increased. That a union in the private sector must trade off employment for all its members against higher profits for some. Now Ralph in the public area doesn't want to see the sign trade off from the point of view of the union between point and benefits the way one does in any private area. We're now trying to contrast our way with the public and private area with respect to this notion of no I don't think the bargaining I don't think that the trade off necessarily does exist for one thing. We've got to take into account the complexity of the employer union relationship in the public sector there is no one monolithic employer. Government is divided into various branches at all levels even at the municipal level there is

usually an executive and a legislature and courts. Then there is the existence of state and local levels. The money that goes to pay the union members may come from several of these levels and for instance if a municipality increases the wages of the school teachers and gets the money from the state if there is going to be unemployment it may be at the state level or it may be in the withdrawal of some kind of service that the state extends the people in addition to that I think we have to point out another critical difference. In the private sector the employer tends to speak in a far more unified manner I think in the public sector. There is usually the single minded goal of the prophets the the and there are sophisticated means of finding out the cost of things in the public sector. There are these different branches and different levels of government all of which a few a labor dispute from a different perspective. The interest of the executive and settling a labor dispute may be quite different from the interests of legislators. The

interests of the governor in settling a labor dispute may be different than that of a mayor. The Rockefeller Lindsey maneuvering which occurred during the garbage strike in New York I think is a good example of a situation in which both left. Were in a sense the employer of certain employees on strike but each level sought to deal with the problem in a radically different way. We want also to mention that within each level within each group there are people whose political interests may be served in different ways by exploiting or by settling a labor dispute and there may well be groups who don't want to see a labor dispute settled because they hope it will work to their ultimate political gain. So one sees if one looks at the employer and a public area that the considerations that motivate him are much more political than economic and not that the economic motivations are not there of course. There are

long run economic problems. But the short run problems are very very importantly political in nature and he has to respond to those political pressure well that that it seems to me is a critical point. The corporate executive is by and large insulated from any kind of immediate political upheaval. He can look to the long run he will not be thrown out of office at the next directors meeting because he made a bad settlement in a strike Iraq one doesn't want to one doesn't want to view the corporation as a political entity. There are political pressures of course with it with and a lot but organizational But relative to a municipality they become unimportant and the economic considerations become critical. They're an entirely different order you know when you have to face an organized opposition seeking to unseat you at a bi annual election. Now

you're bound to take a much shorter run view of the effect of what you're doing short of Iran in the sense that you're looking to see what the effect in the next election will be rather than the long run effect on the on the political entity or so we don't have we can't have the same kind of confidence in a market mechanism disciplining the positions taken by the employer. Now if we look at the Union side in public employment. The same thing is true and can we see the union disciplined by this same market force. I take it the answer is No I would think not. The Union for instance need not fear the long strike in public employment nearly as much as it does in private employment. I think we ought to distinguish between disputes over monetary issues and disputes over non monetary issues. It was a dispute over a monetary issue. The consumer because there is usually no substitute for the particular government service being offered to be faced with great hardship and great inconvenience of

teachers garbageman social workers transit workers strike. There are large numbers of people within the municipality who are seriously inconvenienced and the pressure on the political leader is not to look to the long run balance sheet of the municipality it is to look to this electorate which is clamoring for a settlement. When I want to add as far as monetary issues are concerned there is often a very easy to hide the cost of a settlement in a governmental budget. Government budgets has two functions one is to let. Those who want to know know how the money is being spent where it's coming from and the other function is to present something that looks good to the to the people it's the kind of budget in which things can be hidden very easily so there's an enormous pressure to sell a monetary issue a non monetary issues I think the pressure is somewhat less. When as in the school decentralization dispute there's an organized political group within the community that opposes the union's

demands at this point there is a a pressure on the political leaders not to reach a settlement which LNH that particular group. On the other hand again the public at large is being seriously inconvenienced and facing hardship through the dispute and over time and it may not be a terribly long time. This this group will become organized the group that is inconvenience and politically overwhelm the group that wanted to oppose the you know than if we were to sum up the difference between public and private. One concern about private collective bargaining and the employment of the strike as a method of making the deal of making the bargain. One can say that we can have a certain amount of confidence that the ultimate way terms and conditions of employment do not depart too much from the wage that would be established

by competitive market factors. It departs somewhat but not too much and therefore we can say that the deals that are struck tend to be fair. Because I would suppose that that's a definition of fairness. On the other hand when we're dealing with the public area we can't have that confidence at all because of the economic forces are subordinate to the political forces and we really can't say with any kind of an assurance that the strike. In the aggregate or in the general situation is likely to lead to a fair bargain. A fair result but we may end up having in a number of situations is really a subsidy. Or a subsidy brought about by the use of economic force or to put it another way exploitation because we've departed from the

kind of result that we would get if we were operating in a market structure so that the tools really are very dissimilar. And the problem then is the problem of the strike in public employment. It's a problem that doesn't really have to do solely with the essential reality of the services that are rendered or the fact that if we have a strike it would constitute an emergency situation or threaten the health and welfare of the public. There is some of that to be sure. There also is some of that in the private sector and where that exists I suppose no one really opts for the strike is the method of making the bargain. But in addition to that throughout wherever the government bargains with its employees where the strike is used to reach the agreement you have the problem of a lack of faith in the bargain that is struck being a fair bargain because you have a political model. Political factors at play rather

than economic factors at play the economic factors are there but they are very much removed and Ordinarily we don't think about the political process working through the use of economic force but rather through other channels. Well I think what you're saying is very well illustrated by the discussion of the problem of subjects of bargaining in the private sector one of the hotly debated legal problems is whether a union can compel an employer to discuss questions such as sub contracting pensions number of people that have to work on a job. All of all of this sort of thing. And in the private sector I think you and I would agree that there probably ought to be no restrictions on what is discussed that that is that. We ought not to permit an employer to go to court and stop a union from from insisting on a clause over sub contracting. The reasons are two fold first. All these factors and in terms of the social impact resolve into a matter of economic cost that is a

clause limiting the extent to which an employer may subcontract out work within his plant. But laws restricting the employer has a right to discipline the workers at laws imposing a pension plan. All have one thing in common. That is they impose a dollar cost on the employer then that is what we're concerned with. The union however could take the cost out in wages. I could take the course on a lot of other ways there is no economic line to be drawn between the types of things unions demand economic efficiency is essentially a matter of cost and there's a second reason that being freedom of contract. We really don't want the government to be writing the contracts established between private parties. We feel that the parties know their own problems the best and know how to know how to trade off the different kinds of costs and the best way in the public sector however to permit bargaining over the for a range of subjects in which any union might be interested. What I think give too much political power to that particular group which is the Union Club take.

Take for example the question of decentralization of perfect. On the question of the publishers were good board. These are issues where interest groups all over the community have a stake in the school situation. Parents of the public generally the Board of Education a whole range of people. Of course the teachers in the review board the police to be sure but but certainly many many segments of the public. One ought to point out the ordinary while the ordinary method of of of resolving an issue in the public sector where a lot of interest groups have a concern is through the device of bringing pressure to bear on an elected representatives. The whole notion of pressure groups and interest groups. That is the structure of the American government now if you take one of these groups even the one that has the most central issue and you open up not just the political channels

for them but also an economic channel they can withhold their services they can bring pressure to bear that way. The strike don't you distort the whole process. Don't you really terribly undermine the interest of all of these other groups. I don't think there's any question about it and the analogy that I saw three made between the private and public sector completely fails here in both cases the public review board and school decentralization the critical issue is nothing more than the power to discharge or the power to discipline employees. And that can be handled quite readily under a system of collective bargaining in the private sector and we know the results will almost always be within tolerable range in the public sector if it goes to the whole notion of how we make essentially political decisions. That goes to a restructuring of the political process it goes to the question of democracy itself and I must say the arguments used by common law courts about sovereignty when stated in this way when delegation and delegation when one talks about sovereignty as being in the political process its a very

powerful argument indeed for that is that that is what collective bargaining by public employees threatens. So that another way of coming at all of this would have been to take that. Concept of sovereignty doctrine of delegation and unpack it and one would find that there was considerable wisdom in the common law. One often finds that not not so much with respect to collective bargaining but with respect to the employment of the strike. All right this is all wrong and good but we have a dilemma don't we. We have the strike banned everywhere we have for example in the Taylor Law a very subtle and sophisticated procedures for dealing with the breakdown of collective bargaining impasse point as a substitute for the employment of economic pressure by the parties that is the strike or a lockout. And that's true in most places.

These these procedures could be improved. One has no doubt there are a number of very sophisticated and interesting suggestion for improvement but the fact of the matter is that the tailor was a pretty good piece of legislation and responsive to all of the things that we've been talking about. It is not however obeyed. It is not about right. So the dilemma is this may be all well and good. But we're having strikes and public employment I want to think about I want to be said at the outset is that New York City distorts the whole picture. People read the New York Times everywhere and listen in the east to New York television stations and they tend to think that what's going on New York goes on everywhere else except perhaps where they're living. But that isn't the case. New York is New York City is much worse than other places but still we've had teacher strikes in Florida we've had teachers and I went out this morning already wondering does your garbage was

not collected this morning my garbage was not collected this morning and I know that it wasn't collected last week gave it. So the question really is how do we explain this. And what what might be done about it or or what. What is the cost that we're paying for it. Why isn't the one thing that ought to be pointed out I think is that there may be some hope one finds that that wherever you suddenly establish collective bargaining where you have this this better than 100 percent increase in unionism. In a very short period of time you're likely to have very inexperienced people doing the bargaining both on the employer's side and on the union side and you also have have very large pressures on the part of the Union to prove itself so that I think that it's fair to say that we're at a point in time where the strike is most likely to occur. But that may be a long period of time because collective bargaining still is growing by leaps and

bounds in the public area so that we can have some expectation as the skills of the negotiators increase as the parties learn to live with collective bargaining that the employment of the strike disobeying of law will diminish but I think there are other reasons others the general public attitude towards what seems to be moving in the direction of well it seems that that failure to comply with law is becoming more prevalent I think though that there are reasons peculiar to the public employee also. Laura Roby disobeyed most was not perceived to be even handed. And whether you and I may believe that the analogy between the private and the public sector doesn't fit. Certainly public employees don't feel that way on the one hurry that if they are more ideological than they have grown up steeped in the rhetoric of the strike and the value of the strike and it comes to them as being the most natural thing to do with the deprivation almost of a constitutional right to them but that's not the

hand I taught our folklore that the strike has constitutional overtones in the in the foothills of the Constitution if not directly protected by the Constitution it's very difficult to explain. Even though there is an explanation and we've tried hard to give it. But it's very difficult to find the rhetoric to support the proposition that employees of a private transit company can strike while employees of a public transit company cannot strike. Yes you know it ought to be said that the gist of our argument as we've presented is not that the right to strike ought to be preserved in the private sector because it's so important for it but because it is not that important. It doesn't do that much damage and that is not true of the public sector. One I also want to say that many people must pursue if the private sector they think there is an unlimited right to strike when in fact we would not tolerate the nationwide railroads right reading like that and have

not what we've had. Considerable amount of ad hoc legislation dealing with railroad strikes by Congress so that in fact in the private sector the the right to strike there itself is quite limited although not so as explicitly as in the public sector. Well it's limited at least in some situations. That's right where they services are essential but there is this feeling of of unfairness. The feeling that I that why not me. If the other guy can do it and that certainly is a real problem one of the things that may suggest Ralph is that with respect to a great many areas it might be desirable for the government to get out. That is why should the government run hospitals just from the labor relations point of view when there are I would suspect a high. Have other points of view. Wouldn't it be better if these were not owned by the government. Why should the government collect garbage or want to transfer authority to the extent that you have contract ing out of these kinds of

functions. Of course you can't do it with police and of course you do it with firemen. And of course there are a lot of other areas where you can't do it. But with respect to some areas where in some situations private parties contract with the government then you move the government back you bring in a market mechanism and you can have somewhat more confidence in the fairness of deals that get struck. And to some extent tolerate from time to time at least the strike that some of these services are too essential to tolerate it very much but at least the political pressure is somewhat removed ended when the government comes in to help resolve the dispute it comes in not as a direct party but as someone representing the interests of the people. It comes in more as a neutral than it does where it is also the employer and the representative of the certainly the one can think of a mayor who having to deal with garbage as employees may develop a relationship with them in which a great deal of hostility develops whereas in the situation in which in which he

can restrict his interventions the times in which he appears as a neutral and as a representative of a third party can have some effect. No I however think one of the great costs of. Collective bargaining by public employees if we permit the strike would be a lack of flexibility in my personal bushing in executing governmental policy that in fact those who look to the government to perform a great many functions and they generally are liberals will probably be the first to be quite disappointed with collective bargaining by public employees because it will make the government much less efficient. It feeds the costs are costs that exacerbate the urban crisis are for one thing less flexibility as you mention but for another thing the whole question of attracting good people into a politically exposed positions in municipal government. How about pay the cost in terms of the movement out of the city. If in fact there is in the potential for a subsidy

what does that mean ultimately it means it's going to be reflected in taxes. There's also the inconvenience of the strike when it happens you know living in a city in which getting to your job is very doubtful or having your garbage collected is very doubtful. And in which the taxes are extremely high. Of course it will accelerate the movement to the suburbs I should think. And also it doesn't contribute to the to the sense of confrontation politics. One must be concerned about that surely. What if the strike is viewed as a confrontation and very often it is in the interests of both parties to a strike. To use the language of confrontation in the context of the public sector particularly where highly emotional and political issues are involved such as school decentralization or public review board I would think that the the group in the public that wants to resist the union would almost automatically begin to think of ways in which it could bring about a confrontation. What ways in which it could

gain what it wanted through breaking the law. I would think that frequent strikes by public employees particularly where political issues are involved would heighten the sense of crisis and and heighten the temptation to turn to confrontation. And I suppose finally one ought to think about the amount of energy and time. Very busy meant that it diverted into that set away from other problems that confront us about. Well the point is not that there ought not to be collective bargaining in public employment. But the point is that the ease with which we embrace. The private model the movement towards the endorsement of the strike is a method of making a bargain. It's probably wrong and counterproductive. It's probably against the best interests of most of the people who need the support of city government. Public employees and the strike weapon examined by Harry H Wellington and Edward

J Phelps professor of law and Ralph K. winter Jr. professor of law NEC scripts for these programs are available without charge by writing to Yale reports 1773 Yale station New Haven Connecticut 0 6 5 2 0. The editor of Yale reports is David Walker producer of the series is Nyssa Girdwood with technical productions supervised by Hyatt Lemoine and tape editing by Edwin Robinson. This is Charles Dillingham for Yale reports which originates in the audio visual center of Yale University. NPR's special of the week finds Yale University for this edition of Yale reports. This is an E.R. of the National Education already own artwork.