Draft-draft-draft 6-29-2011

Professor Lorraine Schmall Northern Illinois University College of Law DeKalb, Il USA lschmall@niu.edu 07 July 2011 Changes in Public Sector Labor Laws Legislatures in all fifty US states are considering more than 820 new laws that attempt to regulate, and in some cases, illegalize public sector unions.1 At a time when American unemployment is double its typical level, when early retirement is not by choice, and when fewer than 5% of all US workers have a defined benefit pension, there is some considerable antipathy toward government workers unions. This legislative profusion is the latest example of an historic pattern of altering the rights of public employees during periods of financial crises.2 During or after each economic downturn, federal and state legislators have directed attention to the high cost of public employment. 3 Without
1

http://www.hcsl.org/defaut.aspx?tabid=22275 (last visited 6-29-2011).

The most recent crisis constitutes the fourth such period in the last 30 years. In 1982, 1991, 2003-04, and now in 2009-10, states and local government units faced similar budget problems. If the states employ the same methods to close their budget deficits that they have used historically, employment costs will continue to be targeted when times get tough for state and local governments. Stephen Befort, Unilateral Alteration of Public Sector Collective Bargaining Agreements and the Contract Clause (September 25, 2010). Buffalo Law Review, Forthcoming; Minnesota Legal Studies Research Paper No. 10-54. Available at SSRN: http://ssrn.com/abstract=1682609
3

After two decades of statutory successes, public employees again faced staunch opposition as the political pendulum swung back in the other direction. "[B]eginning with President Ronald Reagan in the 1980s and continuing into the Republican revolution of 1996, public outcries for smaller government and less aid to cities forced [government officials] to reduce spending. Unions also began to take some of the blame" for

empirical evidence that proposed changes might help balance the budget, these statutory modifications arguably reflect historic American anti-union animus and political man overusing. Arriving only in the 1970s and 1980s, public sector bargaining extended the rights of government employees, but certainly did not create them. Unionizing predated the laws by a half century, and existing customs and codes supplanted at-will employment with procedural and substantial guarantees. 4 Even if collective rights are modified or eliminated, public servants will still be protected both substantively and procedurally by civil service laws5 and both state and the federal constitutions. The only legislative changes with predictable cost savings are those that would illegalize collective bargaining and establish all terms and conditions by legislation. 6 All other change is nuance. American labor laws mandate procedure and leave substance to the contracting parties. In the face of financial challenges, unions have negotiated important concessions.7

the financial crises that shook the economy. Vijay Kapoor, Public Sector Labor Relations: Why it Should Matter to the Public and to Academia, 5 U. Pa. J. Lab. & Emp. L. 401, 401 (2003). In 2011, in Ohio, a state with a relatively strong public bargaining law, proponents of a bill eviscerating collective bargaining "gives power back to the taxpayer and restores flexibility to the management of their hard-earned dollars." Senator Shannon Jones, S. 5, 129th Leg., Reg. Sess. (Oh. 2011).
4

Clyde Summers, Public Sector Bargaining Problems of Governmental Decisionmakers, 44 U. Cinn. L. Rev. 669 (1975); Harry Edwards, The Developing Labor Relations Law in The Public Sector, 10 Duquesne L. Rev. 357 (1972).
5

Lewin Most valuable government perquisites like pension plans predate collective bargaining, exist in states without collective bargaining, and cover union and non-union employees, managers, college professors, judges and public officials alike. Similarly, procedural protections for public workers existed a half century before public unions.
6

Walker Signs Wisconin Union Bill into Law , 3/11/11 @ http://www.huffingtonpost.com/2011/03/11/scott-walker-signs-wiscon_n_834508.html (last visited 6-2911). 7 Historic cuts have already been made. At least 42 states have cut their state workforces by imposing layoffs, furloughs, pay and benefit cuts, or other measures. Public service job cuts have been so severe that employment in state and local government has fallen by 400,000 since mid-2008. In addition, 45 states have cut services to residents, including health care, care for the elderly and disabled, and K-12 and higher

Difference Between Public and Private Employees Were the nature of public labor law to change, and assuming arguendo that public employees cost more than their private industry counterparts, equalizing pay and benefits for the two cohorts would save little for the commonwealth. There are five times as many private sector employees as there government workers, although a higher percentage of public sector employees belong to, or are represented by a union than in the private sector. In 2010, the union membership ratethe percent of wage and salary workers who were members of a union was 11.9 percent, down from 12.3 percent a year earlier. The number of wage and salary workers belonging to unions declined by 612,000 to14.7 million. In 1983, when the Bureau of Labor Statistics started counting, union membership rate was 20.1 percent, and there were 17.7 million union workers. In 2010, there are still 16.3 million wage and salary workers represented by a union but that number is less than half the percentage of workers in unions 30 years earlier. This group includes both union members (14.7 million) and workers who report no union affiliation but whose jobs are covered by a union contract (1.6 million). Government employees (783,000) comprised about half of the 1.6 million workers who were covered by a union contract but were not members of a union.8 Finance and Political Reasons for Change

education. @ http://www.afscme.org/issues/state-local-budgets/resources/document/AFSCMEFactSheet_StateLocalBudget.pdf (last visited 5-26-11).

8

www.bls.gov/news.release/union2.nr0.htm.

Serious budget problems plague the several states. State tax revenue data from 1962 to 2009 illustrates an unprecedented five consecutive quarters of state tax revenue decline between late 2008 and 2009.9 State tax collections are now 12 percent below prerecession levels, and state general fund expenditures declined in real dollars in both FY 2009 and FY 2010. Personnel costs are the largest share of municipal and school boards expenses,10 for example, and front line labor costs intuitively appear to be an easy way to balance the budget. Changing collective bargaining laws has not stemmed the flow of red ink to any significant extent.11 The most organized public employees do not earn high wages. Teachers represented by unions have weekly earnings of $839. Non-union teachers make $698.12 An average police officer earns $26.74 an hour.13 Firefighters average $22.95.14 But such data has not deterred states from introducing legislation to weaken unions and narrow the scope of public employer bargaining.

.. @ http://www.afscme.org/issues/state-local-budgets/resources/document/AFSCMEFactSheet_StateLocalBudget.pdf (last visited 5-26-11) See also The Fiscal Survey of the States. National Association of State Budget Officers. December 2010.

The focus on personnel costs is not surprising since employee wages and benefits constitute more than 60% of most public sector budgets. See D. Stanley, Managing Local Government Under Union Pressure 120 (1972) (payroll costs constitute 60-70% of municipal budgets). The nations public schools employ more than 6 million workers, and instructional staff receive about $295 billion in salary and benefits, according to federal estimates. And all told, personnel costs consume about 80 percent of school districts budgets, according to the Educational Research Service, an Alexandria, Va., nonprofit that examines K-12 data and policy. Sean Cavanagh, Personnel Costs Prove Tough to Contain, @http://www.edweek.org/ew/articles/2011/01/13/16personnel.h30.html?tkn=RLBFPhP20qEkP7dETbm9t3 NjRzXeZ2KwMXt3&cmp=clp-ecseclips (last visited 5-31-11).
12 11

10

http://www.bls.gov/oes/current/oes332011.htm (last visited: 5-29-2011). http://www.bls.gov/oes/current/oes333051.htm (last visited: 5-29-2011). http://www.bls.gov/oes/current/oes332011.htm (last visited: 5-29-2011).

13

14

Nearly all the new laws fit within a few major categories: mandating certain key contract terms by statute, for example ceilings for wages and benefits; prohibiting dues check-off and union security agreements;15 excluding classes of employees from collective bargaining; limiting or prohibiting union picketing, political speech and the right to strike; and making performance evaluations a management prerogative. Some states hope to illegalize collective bargaining entirely, or at least illegalize collective bargaining agreements, limiting union representatives to grievance and other representational duties. These types of collective activities predated the passage of public sector labor laws and exist in states where collective bargaining is prohibited by state law or constitution.16

Some lawmakers propose to amend their more pro-union laws to mirror those of sister states with existing limitations. The 42 states that recognize a right to engage in collective activities have unique approaches. Some states give all public servants the right to unionize and bargain over all terms and conditions of employment, while other states limit that right to only a select group of employees, for example, teachers, police, firefighters or mass transit workers. Only ten states allow any kind of strike by public employees. Many legislatures establish contract terms. Almost all mandate impasse resolution mechanisms like interest arbitration, and require neutral arbitration of disputes.17 Subjects over which public unions can demand bargaining have always been

Twenty-one states have laws or constitutional provisions that illegalize compulsory union membership and contract provisions calling for union security. @http://www.nrtw.org/rtws.htm (last visited 5-25-2011). Ann C. Hodges, Lessons from the Laboratory: The Polar Opposites on the Public Sector Labor Law Spectrum, 18 Cornell L.J. & Pub. Poly 75 (2009).
17 16

15

Public Sector Labor & Employment Law Fundamentals

considerably more narrow than the range of collective bargaining in private workplaces.18 A graph illustrates the situation:

According to the U.S. Government Accountability Office, twelve states grant collective bargaining rights only to certain groups of workers, such as teachers or firefighters. Another dozen have no public sector bargaining laws. Of the remaining 26 states, more

@http://apps.americanbar.org/labor/annualconference/2007/materials/data/papers/v2/067.pdf (last visited 3-28-11) (the largest groups of unionized workers in the public sector are, in descending order: teachers, police, and fire personnel). Stephen F. Befort, Public Sector Bargaining: Fiscal Crisis and Unilateral Change, 69 Minn. L. Rev. 1221, 1256-1257 (1985).
18

than another dozen legislatures are considering laws that would restrict collective bargaining.19 Wisconsin was one of the first states to allow public unions, and it is also the first in this cyle to pass a law eliminating collective bargaining over a broad range of topics, and imposing statutory terms and conditions of employment, such as increased pension contributions by employees and eliminating automatic wage increases. The unions and the State of Wisconsin had previously bargained over wages, pensions and health insurance. These matters are historically considered appropriate for negotiation, and represent the sea change that collective bargaining brings to the workplace. The U.S. pro-capitalist political posture allows for broad management prerogatives and creates a free marketplace for the exchange of labor for pay, except where union labor laws mandate bargaining over those issues. Eighty-five thousand union supporters protested for weeks at the state capital, and made Wisconsin the center of a national debate on union rights.20

Central to establishing the rationality of statutory limits on collective bargaining is data about potential cost-savings. What data exists confuses and confounds. There is a plethora of numbers, but a wide disparity in how they are read. Reports on salaries and compensation comparing public and private sectors show widely different results. One set of scholars conclude that public employees receive total compensation that is equal
19

Many States Already Restrict Collective Bargaining @ http://www.lexisnexis.com/community/ucccommerciallaw/blogs/labor-employment-commentary/archive/2011/03/08/many-states-already-restrictcollective-bargaining.aspx (last visited 6-1-11). SCOTT BAUER, TODD RICHMOND Judge voids Wisconsin collective bargaining law updated /26/2011 1:17:20 PM ET http://www.msnbc.msn.com/id/43182524/ns/politics-more_politics/
20

to or less than that of private-sector employees. 21 Others cite a very significant public wage and benefits advantage.22 The US Department of Labor chronicles a $10 per hour difference, whatever the reasons. Employer average hourly cost for employee compensation, in private industry, for all occupations, was $23.29 in 2004. In 2010, the hourly cost to the private employer was $27.75. For public employers, the figures are higher: in 2004 the average cost per hour was 34.21 and in 2010 rose to $40.28.23 Interesting comparisons between public and private occupations and wages show that 180 jobs paid better average salaries in the federal government; 36 paid better in the private sector.24 There are statutory wage ceilings for many public positions.25

The private sector paid more on average in a select group of high-skill occupations, including lawyers, veterinarians and airline pilots. The government's 5,200 computer research scientists made an average of $95,190, about $10,000 less than the average in the corporate world. State government employees had an average salary of $47,231 in 2008, about 5% less than comparable jobs in the private sector. City and county workers

David Lewin, Thomas Kochan, Joel Cutcher-Gershenfeld, Teresa Ghilarducci, Harry Katz, Jeff Keefe, Daniel J.B. Mtchell, Craig Olson, Saul Rubinstein and Christian Weller ,Getting It Right: Empirical Evidence and Policy Implications from Research on Public-Sector Unionism and Collective Bargaining (March 16, 2011) @http://ssrn.com/abstract=1792942 (last visited 5-31-11).
22

21

Chris Edwards, Public Sector Unions and Compensation @http://www.cato.org/pubs/journal/cj30n1/cj30n1-5.pdf (The public sector advantage in average wages was 34 percent, while the advantage in benefits was a huge 70 percent.)(last visited 5-31-11).
23

US Dept of Labor, Bureau of Labor Statistics, Employment Cost Index @http://data.bls.gov/timeseries/CIS2010000000000Q. Data extracted on: May 30, 2011 (9:02:28 AM). The average salary for a US attorney is $117, 879. @http://www.glassdoor.com/Salary/US-Departmentof-Justice-Assistant-United-States-Attorney-Salaries-E41301_D_KO25,57.htm The total pay for private lawyers ranges from $45,585 - $173,244. http://www.payscale.com/research/US/Job=Attorney_%2f_Lawyer/Salary (last visited 6-1-11).
25 24

http://www.hcsl.org/defaut.aspx?tabid=22275 (last visited 6-29-2011).

earned an average of $43,589, about 2% more than private workers in similar jobs.26 The general impression is that public employees earn less but enjoy greater benefits and job protections.27

Wage differentials are attributable to a myriad of factors. Overwhelmingly, public employees are better-educated and have longer tenure.28 They are also more likely to be non-white, and female, and both groups fare better financially in public service than in private workplaces. 29 Public union wages and working conditions are set through negotiations with elected local and state officials, making politics part of the bottom line. Profit is no motive (and typically impossible). Even without collective bargaining public employment matures into a constitutionally-protected property right, modifying the American rule of employment-at-will.30 Lock-step salaries and prohibitions against discrimination that began with civil service laws and evolved into collective bargaining provisions preclude
26

Bureau of Labor Statistics, USA TODAY analysis @http://www.usatoday.com/news/nation/2010-0304-federal-pay_N.htm#chart (last visited 6-1-11). In John Schmitt, The Benefits of State and Local Government Employees, May 2010 @ http://www.cepr.net/documents/publications/benefits-state-local-2010-04.pdf (last visited 6-29-11). Lewin, et al, n.3.( State and local governments typically employ a much higher percentage of college graduates than private-sector employers do because of the many specialized state services that involve the work of social workers, public health experts, environmental biologists, economists, agricultural experts, and others.[N]ationally, public employees earn 11.5 percent lower base pay (i.e., wages and salaries) than their private-sector counterparts, once education and other relevant human-capital variables (such as age) are taken into account.). See also Bureau of Labor Statistics, USA TODAY analysis @http://www.usatoday.com/news/nation/2010-03-04-federal-pay_N.htm#chart (last visited 6-1-11). In California, [for example], there are important differences between state and local government workers compared to those in the private sector. On average, government workers are: more experienced (22 years versus 20 years): more likely to be female (55% to 40%); work more hours (37 to 39); more likely to be Black (11% to 6%); less likely to be Asian (12% to 14%); and less likely to be Hispanic (25% to 35%).@ http://www.irle.berkeley.edu/cwed/wp/2010-03.pdf (last visited 3-26-11)
30 29 28 27

Board of Regents v. Roth, 408 U.S. 564 (1972).

most merit increases as incentives.31 Although private employers might have some market misinformation or irrational biases that make their decision-making less economically efficient, real cost-benefit analysis and competition animates most private business decisions. Invidious discrimination and political patronage account for some part of the inefficiencies of government employment.32

Governments operate differently.33 There are no competitors for most government products (spacecraft, dams, museums,) or services (training and keeping armies; maintaining schools and hospitals and prisons that consistently cost more; insuring banks and pensions; lending money to Wall Street). No state or local government employer can threaten to relocate or move work.34 All wages are public information. Seniority is almost directly proportional to pay scale. But price increases that affect the private employer reach across to public employers: raw materials, natural resources, utilities, goods. Bad investments with public funds bring the same poor returns. The only real
See D. Lewin, Incentive Compensation in the Public Sector: Evidence and Potential. 24 J. of Labor Res. 597 (2003)(incentive compensation through merit pay, bonuses, and equity ownership constituted approximately 6.5 percent of public employees pay compared to approximately 19 percent of private employees pay).
32 31

See e.g., http://www.cookcountygov.com/taxonomy/Human%20Resources/Public%20Information/cc_HR_Shakman Training.pdf The City of Chicago was sued in Shakman v and a court found widespread corruption in city hiring and jobs awarded to political connections. See also http://shakmanmonitor.com/(date visited 6-1-11). Budgetary and taxing decisions by legislatures -- which are products of public policy, rather than market forces -- are the dominant factors, at least in the short run, in determining the level of public employee compensation. Bernard D. Meltzer and Cass R. Sunstein, 50 U. Chi. L. Rev. 731 at 739, Public Employee Strikes, Executive Discretion, and the Air Traffic Controllers (1983).
33

However, privatizing certain services like trash collection, or subcontracting government work to an operator whose contract price is lower than the governments operating costs, for example, with schools and prisons, has become more common; the threat of such actions has increased union bargaining concessions.

34

10

difference is that the worse the economy the more demands are placed on a public employer- each employing entity competing in the zero sum game of a public budget.

History of Unions and Bargaining and the Public

As a nation dedicated to individual initiative and personal accomplishments, the U.S. did not foster collective bargaining. After a century and a half of Yankee opposition to trade unions, considered foreign or European, the US began to move toward recognizing collective bargaining rights. Although most organized labor was judicially enjoined as either tortious or criminal, an important dissent by Oliver Wendell Holmes, who would later be credited with creating business unionism inspired the first national legislation protecting labor.35

The US stated its policy of encouraging collective bargaining in the National Labor Relations Act (NLRA), a 1935 law passed in response to the liberal Franklin D. Roosevelts presidential exhortation to do everything possible to end the Great Depression. The law specifically addressed [t]he inequality of bargaining power between employees who do not possess full freedom of association or actual liberty of contract, and employers Congress concluded such disparity tends to aggravate recurrent business depressions, by depressing wage rates and the purchasing power of wage earners in industry. The new law encourage[ed] practices fundamental to the

One of the eternal conflicts out of which life is made up is that between the effort of every man to get the most he can for his services, and that of society, disguised under the name of capital, to get his services for the least possible return. Combination on the one side is patent and powerful. Combination on the other is the necessary and desirable counterpart, if the battle is to be carried on in a fair and equal way. Vegelahn V. Guntner, 35 L.R.A. 722, 57 Am.St.Rep. 443, (Mass 189). (Holmes, J. (dissenting).

35

11

friendly adjustment of industrial disputes arising out of differences as to wages, hours, or other working conditions.36.

U.S. labor relations were dramatically altered in 1935. Instead of unilateral decisionmaking by the employer, the law brought the potential of having to negotiate every detail of every employees hire and work. The NLRA guaranteed employees the right to try to organize a union, free from employer domination or influence. Organizing drives and union election campaigns coexist with employer unfair labor practices. This chart shows how prevalent certain types of employer resistance has been.

37

If a union can prove the company is motivated by anti-union animus, and it lost an election, it might get a second chance. The federal law was eventually interpreted to allow employers to permanently replace those who go on strike to bolster their economic demands. 38 This right was little used in either sector until after the President of the

36 37

National Labor Relations Act of 1935, 29 USC Section 151 Illegal union firing increased during the Reagan administration and has continued since. In 1981, thenPresident Ronald Reagan threatened air traffic controllers who were striking over safety demand with immediate discharge. As public safety employees, the traffickers strike was illegal. The 40,000 who did not return to work the next day were fired. PATCO strike, See President's Statement Concerning Air Traffic Controllers Strike, 17 WEEKLY COMP. PRES. DOC. 845 (Aug. 3, 1981).
38

NLRB v McKay Radio, 304 US 333 (1938).

12

United States fired 12,000 professional air traffic controllers, members of a federal employees union, for striking over hours, wages and safety concerns.39

The NLRA proscribed other behaviors that interfered with employees in the exercise of their right to bargain collectively or to hold unions elections; to discriminate in hiring or firing because of an employee's union membership; to discriminate against an employee who avails himself or herself of legal rights; or to refuse to bargain over terms of work with any lawful representative of the employees.40 But the benefit to the workers inures only when they elect a union that is a strong enough market player to negotiate a collective bargaining agreement with generous terms and good working conditions.

The law does not establish industry-wide or national bargaining and lacks some of the kinds of structural benefits enjoyed in countries throughout the world. Less union animus within the institutional environments leads to stronger and wider unionization. For example, the presence of a Ghent system (where unions are responsible for the distribution of unemployment insurance) and of centralized collective bargaining

Prior to PATCO, it was not acceptable for employers to replace workers on strike, even though the law gave employers the right to do so, he says. The PATCO strike eased those inhibitions. Major strikes plummeted from an average of 300 each year in the decades before to fewer than 30 today. "Any kind of worker, it seemed, was vulnerable to replacement if they went out on strike, and the psychological impact of that, I think, was huge," McCartin says. "The loss of the strike as a weapon for American workers has some rather profound, long-range consequences." Kathleen Schalch, 1981 Strike Leaves Legacy for American Workers @ http://www.npr.org/templates/story/story.php?storyId=5604656 (last visited 6-1-2011).

39

http://www.npr.org/templates/story/story.php?storyId=5604656. The victim is required to litigate the employers illegal acts before an administrative agency that has only limited remedial authority. Many theorists argue that difficulties of proof and enforcement lead to opportunistic employer noncompliance.
40

13

(organized at a national or industry level as opposed to local or firm level) have both been shown to give unions more bargaining power and to correlate positively to higher rates of union density.41 Unions are more successful where they have greater access to the workplace as an organizing space (as determined both by law and by employer acceptance), and where they benefit from a corporatist relationship to the state and are thus allowed to participate more directly in the official governance structure.42 Politics play an expected role in determining union strength, with leftist governments generally, but not always promoting greater union density. As narrow as is the political spectrum within US parties, there is still a tilt toward expansion of employee rights under democrats and contraction under republicans. More than any other industrialized nation, the US stood to lose more with the emergence of new international market players. Before globalism many US industries enjoyed a near international monopoly.43 Richard Freeman also points to the role of repressive employer strategies in reducing unionization, and highlights the way in which a state ideology of anti-unionism tacitly accepted these strategies.44 The threats of production shifts, relocation, and reductions in force reduces unions bargaining power even if it does not eliminate them. Beginning in the 1980s the US returned to its stasis of neoliberalism: laisez fairre capitalism and the trickle-down theory. Practical results of this philosphy include deregulation and

41

Id.

Sano, Joelle and John B. Williamson. (2008) Factors Affecting Union Decline and their Implications for Labor Reform. International Journal of Comparative Sociology. 49: 479-500. 43 Bronfenbrenner, Kate. Organizing to Win: New Research on Union Strategies. Ithaca, N.Y.: ILR Press, 1998. See generally Richard Freeman What Workers Want, with Joel Rogers. Ithaca : ILR Press ; New York : Russell Sage Foundation, 1999, 2006 updated edition.)
44

42

14

privatization of some industries, and accepted increased employer flexibility in labor markets. After 1935, instead of following Congress lead, a number of states reacted negatively to these legal changes by enacting laws that sought to restrict and lessen the power of unions. There was a general union backlash after World War II, when strikes against the automobile industry and other large corporations reached record numbers. By that time, organized crime had muscled into the union business and the labor law was changedlimiting union strength even more. 45 Dissenters were given a statutory right to refrain from union activities, and unions were now prohibited from engaging in more types of strikes and coercive activities against dissenters and employers both. Membership and power grew during World War II and reached its height around 1970. Private sector union membership then began a steady decline that continues, but the membership of public sector unions grew steadily.46 In 1956, only 915,000 federal, state, and local employees were union members.47 Public unions officially began in 1958, when New York City mayor Robert Wagner signed an executive order to allowing city workers to organize.48 When President John F. Kennedy allowed federal employees to unionize in 1962, it was seen as a similar effort to appeal to

45

Taft-Hartley Act (29 U.S.C.A. 141 et seq.). Melvyn Dubofsky, and Foster Rhea Dulles, Labor in America: A History (2004).

46

Bureau Of Labor Statistics, U.S. Dep't Of Labor, Bull. 1865, Handbook Of Labor Statistics 1975, 382 Table 155 (1975). Roger Lowenstein, While America Aged: How Pension Debts Ruined General Motors, Stopped the NYC Subways, Bankrupted San Diego, and Loom as the Next Financial Crisis (2009).
48

47

15

voting blocs.49 Public sector unions and bargaining laws followed the slow and crabbed development of private sector law, but not for nearly a half century. By 1980, the number of state and local employees that belonged to employee organizations had risen to 5,030,564, or 48.8% of all state and local workers.50

In 1959, Wisconsin's early and liberal collective bargaining law was referred to as "the Magna Carta for public employees, and predated most other laws by more than a decade or two.51 Most public sector bargaining laws were enacted in the 1970s, which many commentators attribute to a strong national economy and federal block grants to state and local governments.52 Of course, like the Arab Spring, the 1960s and 70s in the US gave birth to many organizations for social change, including associations of public employees (first responders: school teachers, nurses, firefighters,and police officers). Slightly fewer than half the states have endorsed collective bargaining rights now.

Public sector bargaining in the US may not afford unions great latitude, and it was developed under and will continue to be subject to serious constraints. But it also advances another popular approach: it institutionalizes mediation and other alternative dispute resolution mechanisms. The US Supreme Court has heartily and repeatedly endorsed friendly and out of court resolutions, and bargained-over terms of

49

Id.

Bureau Of The Census, U.S. Dep't Of Commerce & Labor-Management Servs. Admin., No. 102, LaborManagement Relations In State And Local Governments: 1980, 1 Table B (1981). 51 Joseph Slater, Public Workers: Government Employee Unions, the Law, and the State, 1900-1962 (2004).
52 Stephen Befort, Unilateral Alteration of Public Sector Collective Bargaining Agreements and the Contract Clause (September 25, 2010). Buffalo Law Review, Forthcoming; Minnesota Legal Studies Research Paper No. 10-54. Available at SSRN: http://ssrn.com/abstract=1682609.

50

16

employment, both within and outside of the union sphere.53 It has endorsed mandatory arbitration for non-union individual workers and blessed and enforced negotiated contract arbitration. 54 It allows public employees a voice in the management of their own tax dollars, and it may have afforded them the dignity that legislative changes try to take away. Others claim it gives voice to employees, and ostensibly increases their job satisfaction and performance.55 It may improve political action on the part of employees, and it definitely is a counter to the enormous power of employers, generally. Attempts to limit the rights afforded government workers may neither save money in the short run, nor improve public workplaces. Moreover, it may be simply an effort to justify the arbitrariness of US private sector employment relations.

(There are real benefits to arbitration in the employment context, including avoidance of litigation costs. CIRCUIT CITY STORES, INC. V. ADAMS (99-1379) 532 U.S. 105 (2001); 14 PENN PLAZA LLC ET AL. v. PYETT (2009). A provision in a collective-bargaining agreement that clearly and unmistakably requires union members to arbitrate ADEA claims is enforceable as a matter of federal law; 09-497 Rent-A-Center, West, Inc. v. Jackson (06/21/10) Parties may have to resort to arbitration to determine if the arbitrabion contract clause is fair and not unconscionable. "questions of arbitrability must be addressed with a healthy regard for the federal policy favoring arbitration." ; (out-of-court dispute resolution, such as arbitration, is consistent with the statutory scheme established by Congress for {employment discrimination cases].). Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991). William B Gould IV, The Steelworkers Trilogy at 50. Arbitration 2010, Proceedings of the 63rd Annual Meeting of the National Academy of Arbitrators (2011). Richard Freedman, The National Labor Relations Act at 75: Its Legacy and Its Future (10-28-10) @http://www.law.harvard.edu/programs//wp. (last visited 6-29-11).
55 54

53

17

18