Special of the week; 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 reports. This is an easy R. of the National Education already own network.