MD 063 655

TITLE

INSTITUTIONPUB DATENOTEAVATL7BL2 FROM

EDRS PRICEDESCRIPTORS

DOCUMENT RESUME

EA 004 336

Readings in Public School Collective Bargaining.

Volume 1.Educational Service Bureau, Inc., Washington, D.C.

7192p.Educational Service Bureau, Inc., 1835 "K9 Street, N.

W., Washington, D.C. 20006 ($5095)

MF-$0.65 FIC Not Available from EDRS.*Boards of Education; *Collective Negotiation;

Grievance Procedures; *Industrial Relations; *Labor

Legislation; Public Schools; *Teacher Associations;

Teachers; Teacher Strikes

ABSTRACTThis report contains a variety of selected materials

relat(A to different aspects of collective negotiations in public

education. Special reports written by leading experts in the field

comprise the first section. The second section contains three

chapters that are complete texts of a commission report and the

proposed statutes covering educational negotiations. For additional

readings on collective negotiations see EA 004 337, Volume II of this

study. (Author/JF)

II

U.S. DEPARTMENT OF HEALTH,EDUCATION & WELFAREOFFICE OF EDUCATION

THIS DOCUMENT HAS BEEN REPRO.CUM EXACTLY AS RECEIVED FROMTHE PERSON on ORGANIZATION ORIGINATING IT POINTS OF VIEW OR OPINIONS STA.= DO NOT NECESSARILYREPRESENT OFFICIAL OFFICE OF EDU.CATION POSITION OR POLICY

Readin s

in

Public School Collective Bargaining

Voiume 1

EDUCATIONAL SERVICE BUREAU, INC.

1835 K Street, NW, Washington, D, C, 20006

"PERMISSION TO REPRODUCE THIS COPY.RIGHTED MATERIAL BY MICROPICHE ONLYOAS BEEN (WANTED BYt ..e2

TO ERIC AND 0 GANIFATIONS OPER4TINGuNDER AGREEMENTS WITH THE L...OF EOLICATION. FURTHER REPRoDUCTIONOUTSIDE THE ERIC SYSTEM REQUIRES PER.MISSION OF THt COPYRIGHT OWNER."

Copyright 1971 by Educational Service Bureau, Inc. Pricefor individual copies, $56956 No part may be reproducedwithout the written consent of the publisher. Copiea maybe ordered from Educational Service Bureau, Inc., 1835 XStruet, N.W., Washington, D.C. 200066

TABLE OF CONTENTS

INTRODUCTION. . IP 6 6 IP IP 6 6 IP 6 IP IP

COLLECTIVE BARGAINING AND UBLIC EMPLOYEES. 6 6 6 6

DETEOIT'S BLUEPRINT FOR LABOR RELATIONS 6 6 6 6 . 6

UNIONISM AND PUBLIC EMPLOYEES 6 6 0 0 6 0 0 0 0 0 0

THE IMPOTENT SCHOOL BOARD 0 S S S S S S IP 6 6

BOARD AUTHORITY AND NEGOTIATIONS AN ANALYSIS.

THE AGENCY SHOP . .6666

II

0 0 6 0 0 0 6

6

6 . . 3

6 6 . 9

0 6 1 9

, 3 1

ADVISORY COMMISSION'S CONCLUSIONS ON LABOR RELATIONS. 6 55

PROPOSED NATIONAL PUBLIC EMPLOYEE RELATIONS ACT 6 6 6 6 77

NEA'S PROPOSED BILL OP TEACHER RIGHTS 6 6 6 6 6 6 6 85

Introduction

This volume contains a variety of carefully chosen ma-

terials related to different aspects of collective negotia-

tions in public education. The first section is comprised

of special reports written by leading experts in this field,

and the second section contains three chapters which are

complete texts of a commission report and proposed statutes

covering educational negotiations. All these documents are

basic reading for anyone who would profess knowledgeability

in Oucational negotiations.

References in certain chapters to "ENS" denote Educa-

tors Elspliating Service, a division nf Educational Service

Bureau. Most references to dates and locations are left as

they originally appeared.

1

Collective BargainingAnd Public Employees

This chapter is an address by Arvid Anderson, Chairman,

0.''fice of Collective Bargaining, New York City, Mr. Ander-

son spoke before the Second Annual Conference on Law and

Public Education at the University of Georgia, Athens,

Georgia.

6

What can a Yankee from New York City, withall its problems, possibly say about collectivebargaining thai:, has any meaning for GeorgiaSchool Board members, administrators andteachers?

The growth of public employee collectivebargaining one of the must signifioant sooJaland political developments of our time, In time,I believe it will have as great an impact onour political struoture and educational poli-cies as the one..manone-vote decision and thedesegregation of the public schools, The di-rect involvement of teachers through collectivenegotiations in the management of our schoolshas been 4araoterized as a revolutionary de-velopment,J.

I want to make olear that my current du-ties do not now inclUde jurisdiction overteachers in New York City, That is the respon.sibility of the New York State Public Employ-mant Relations Board. The results of agree-ments negotiated this year by the New York CityBoard of Education and the Teachers Union, andbetween the Board of Higher Education and theLegislative Conference, has had, and will con-tinue to have, a profound effect upon the en-tire school scene. The major improvements ne-gotiated in salary schedules for teachers atthe elementary, high sohool and college levelsare a milestone in the struggle to elevateteachers' pay to professional levels.

In New York City schools, the B.A. hiringrate for this fall is $7,950 and goes to a maxi-mum of $12,150 on an eight-year schedule, TheM.A. hiring rate is now $9,450 and goes to amaximum of $13,650, In October 1971, tho B.A.hiring rate will be $9,400 and the maximum$13,950. In Ootober 1971, the M.A. hlring ratewill be $10,900 and the maximum $15,450. Forinstructors at the City University the hiringrate this year is $11,005 with a maximum of04,855. In 1971, the hiring rate will be$12,700 with a maximum of $170150. The begin.ning salary rate for full professors this fallis $19,620 with a maximt.m of $27,900. In thefall of 1971, the beginning rate will be $220500and the maximum $31,275.

For some five years, prior to going toNew York, I was directly involved as ar !,1mini-strator of a Wisconsin collet,tive bargainingstatute which included bargeining rights forteachers. During this perid I received aneducation in the problems of teachers and ad.ministrators,

One of the lessons / iverned in Wisconsinwas that there was a semant:- barrier in educa.tion to understanding what the oollective bar .gaining business was all about. We learned touse the term "professional negotiation" to de .scribe collective bargaining. The term "union"was anathema to some administrators, but theterm "professional associations" was accepted,The term "seniority" was unfamiliar, but theterm "length of service" was in the lexicon ofschool administrators, The term "grievance"was nct accepted, but the term "complaint pro.cedure" was accepted. Union shops were illegal,

4

bvt compulsory attendance at teaoherel conven-tions as a condition of employment, as a basisof payment for the days involved, was not con-sidered illegal, Eventually we learned that,whether we called it negotiations or bargaining,we were really talking about a prooedure inwhich teachers had something to say about howour public resources for education were alloca..ted, In essence, what the bargaining businessis all about ist Who Gets How Much, and When?

The decade of the 1960's has Laen a periodof debate over whether there should be colleot-ive bargaining for public employees. While thedebate is not yet over, partioularly over thequestion of whether cublio employees should havethe protected right to strike, the evidence isthat collective bargaining is here to stay inmost parte of the nation. At least thirtystates presently have levs which in some degreeendorse and protect the right of some or allstate and local employees to bargain collective-ly.

At least twenty states have2statutes cover..ing teacher...school negotiations. More than onemillion teaohers in public school systems nowhave teaoher.school board agreements, accordingto a recent NEA survey,2 Bargaining Is not .mited to the st4tes which have employment rela.tions statutes for public employees. There areonly fivz. states Alabama, Georgiap Hawaii,Louisiana and Mississippi - which have no rePor.-bed negotiation agreements in any school system.In Hawaii Oa situation is expeoted to changesoon, because the new Constitution protects theright of public employees to bargain,

In North Carolina and South Carolina, lessthan 5% of the teachers are4in sohool systemswith negotiated agreements. While the sixsouthern states mentioned, which do not haveteacher agreements, may indicate that teacherbargaining or the absence of bargaining is a re-gional phenomenon, the record in education andtther occupations speaks otherwise, Virtually(a-tory state has had some public employee dis-putes, whether it is firemen in Atlanta, Aos-pital employees in Charleston, or sanitationworkers in Louisiana. Those of you who believeit can't happen here, or that it only occurs inbig cities, may be right, but I wouldn't countcp. it. Bargaining vas largely unknown in publicemployment a decade ago. It is moving rapidlyand I suggest it can happen here,

The record of public employee unrest alsotells us that the absence of statutes protectingthe negotiating and bargaining process has notmeant the absence of public employee disputes,but only the absence of orderly procedures todeal with suoh problems, Thus, I feel it isfair to say that for most of the nation, albeitwith exceptions including the state of Georgia,the debate is really aver whether there ought tobe collective bargaining for public employees,including teachers, There is such bargainingde jure and de facto throughout the land.

State or Federal Law?

The real question as we enter the 1970'swill be whether state and local governments willdevelop orderly procedures to deal with publicemployment collective bargaining, or whetherthis task will be taken over by the federalgovernment. The United States Supreme Court inMa 1 d vs. xj.s.u.,2 reaffirmed broad federalauthority under the omnerce clause to regulatethe conditions of employment in state and localschools and hospitals. As a result, the twolargest public employee organizations have thisyear advocated federal legislation to fill thevacuum now existing in state and local laws.The National Education Association and theAmerican Federation of State, County and Munic-ipal Employees have urged the Congress to createa federal regulatory scheme for state and local 6laws if such laws met minimum federal standards,-,

The Education Commission of the States,which is the spokesman for State Education Com-missioners, ham drafted a model bargaining lawwhich can be adopted by the various states.2

We have witnessed the intervention of theDepartwent of Labor and the Federal Mediation& Conciliation Service in several local publicemployee disputes where no state or local media-tion services were available to fill the need.Federal courts are upholding the constitutionalright of public employees to organize and haveeven ordered the reinstatement of a teacherfired because of union activity,I

The Advisory Commission on IntergovernmentalRelations, under the Chairmanship-of formerFlorida Governor Bryant, has just completed itsyear long study of "Labor Management Relationsin the State and Local Public Serv1ce".2. Itsreport recommends that state governments shouldrequire all state and local agencies to pass"meet and confer" legislation which provide forthe use of specific procedures, including factfinding, mediation and advisory arbitration, toresolve impasses in public employee disputes.

All of these developments say loud andclear . the hour for state action is late, andthat if the states fail to act, Uncle Sam willdo the job for you. The handwriting is on thewall, and I think most states -tould want to actpositively to create their own orderly proceduresfor r(lolving disputes with their own employees.

I'm not trying to paint the federal govern.mint as any kind of an ogre. I'm persuaded thata federal law for state and local bargainingcould work. There are many able professionalpeople in the Federal Mediation 86 ConciliationService, Ole Department of Labor and the Nation.al Labor Relations Board who can do the job.My point is that I prefer state action, and Ithink is is time for those who talk about statesrights to step up their responsibilities. Inshort, the states should enact collective bar.gaining laws for their public employees, includ.ing teachers, with appropriate safeguards forthe rights of school administrators and thepublic,

3

The acceptance of the idea of oolleotivebargaining, or collective negotiations, if youprefer, does not have to await the enaotment ofa state or federal negotiating statute, Nor-mally, ncegotiations can be conducted withoutexpress statutory authority as long as thereis not express prohibition of such bargaining.

But is bargaining a good idea? The recordis that teachers have obtained more benefitsfrom collective negotiations than teachers with-out bargaining rights have reoeived unilaterallyfrom echool boards, The "more" oonsists of moresalary, improved working oonditions and theright to co-determine certain education poli-cies,10 Whether this is good for school boards,administrators and the public may be debated.However, improved salary levels have clearlyhelped in recruiting and retaining qualifiedteachers and have also helped push up the sala-ries of prinoipals and administrators,

In New York City tor the first time inyears there is a waiting list for teachers, afact which is largely attributed to the substan-tially improved minimum hiring rate. The NewYork City contract eontains the first modifioa-tion of the tenure system by providing for thepossibility of dismissal of teachera for incom-petence even after tenure has been granted.The agreement calls for developing "objectivecriteria of professional accountability". Howeffective the improved salaries, the "more elf.fective school program" and the removal pro=cedures will be in improving the quality of edu-cation will have to await the passage of time.

During my twenty years experience as anadministrator and mediator of labor disputes,X have noticed a marked difference in how pri=vate and public employers react to the collect.ive bargaining process. The privata employerfeels he is free to take any action he wants toin employment relations unless the law specifi-cally prohibits him from acting. Whether hewants to take a particular action is anothermatter, but the right to act is there. Thepublic official, school superintendent, mayor,or corporation counsel is all too .often in-clined to believe that he can only take actionin employment relations if he is expressly au=thorized to do so.

For example, the City of Memphis this yearconcluded a three-year collective bargainingagreement for 1400 sanitationmen. It is la=beled a "Memorandum of Understanding", aftd con.tains a savings clause, which seeks to validatethe remainder of the agreement, if any partthereof should be held to be invalA,11 Whata difference a year makes! I'm sure you recallthe statements the previous aar that bargain.ing wasn't legal. What a sequel to the tragicevents which took the life of Dr. Martin LutherKing.

The City of Charleston, after repeatedlydeclaring that it could not legally negotiatewith a hospital union, did so. My point isthat events are likely to supplant traditionallegal obstacles to necessary social changes.What I urge my lawyer colleagues and public of-

fioialm to realiwe and aooept is that the factof colleotive bargaining for public employeesis going to require the public oaicial to

think anew, and to act anew, to meet the chal-lenges of adapting publio employee bargainingto our existing legal framework, or to reoom-mend the necessary changes in our laws to bringthis about, I do not argue for a moment thatserious legal obstaoles do not exist in manyjurisdictions to acoomodating collective bar-gaining concepts to state and municipal laws.Obviously many such oonstraints exist; but law-yers and public officials can figure out how toget things done as well as how not to take ac-tion. I understand that the Attorney Generalof Georgia has issued an opinion under whichsohool boards may bargain with teachers andanother that the state highway department can-not prevent its employees from joining a union,14

Acceptanoe of the concept of collectivebargaining doas not obligate the public employ-er to accept any and every legislative or con-tract proposal advanced by public employee or-ganizetions, But careful consideration andparticipation in the legislative and bargainingproceas will afford the public employer an op-portunity to participate oreatively and positive-ly in the development of policies, rather thanrisking the imposition of terms and provisionswhich later prove onerous.

Some of the critical questions posed bythe fact of collective bargaining are:

Should public employees, including teach- .

ers, have the right to strike?

Whether strikes are prohibited entirely ornot0 what penalties should be provided for vio-lations?

Should there be a state law, local law, orfederal statute?

Should there be a regulatory agency to de-termine questions of representation, includingthe question of exclusive bargaining units?

Should there be a separate agency for edud.cation?

What is the appropriate bargaining unit?Should principals be extended bargaining right's?

Who should represent the school board inbargaining the superintendent, members of theboard, and outside oouneel?

What should be the scope of targaining,and how should disputes over the subject matterof bargaining be determined?

What should be the relationship betweenthe education law and oeleotive bargaining?

Whet should be the relationehip betweenbudget dates and the bargaining prooess?

What ehould be the method of resolving im.passes? 0 fact finding with reoommendations, orbinding arbitration, or strikes?

6

These are some of the more fundamental clues.tions with legal, fisoal and politioal implioa-tions which need to be answered, Time willpermit consideration of only a few in this paper.

The Strike Question

The continuing debate over whether publicemployees should or should not have the rightto strike has been an obstacle to the oonsidera-tion of constructive proposals in some jurisdior .tions to deal with the causes of strikes, suchas strikes for recognition, Which are virtuallyunknown in the private seotor, While I believea persuasive argument can be.made for or againstthe right of public employee° to strike, I donot accept the argument that it is impossibleto have collective bargaining in public employ.ment without the right to strike. I can't buythe argument that the strike or strike threat,legal or illegal, is the only equalizer, theAu a ava to make bargaining work in publicemployment. Of course, the strike threat existsin numerous public employee negotiations eventhough the strike is prohibited, and it wouldbe foolish to ignore it. Neither do I endorsethe idea that stiff, fixed, unworkable penaliaesare the easy answer to public employmentstrikes.

My argument is that there are hundreds ofcollective bargaining agreements being rer,ohedin the public employment today, including edu-cation, without the right to strike and moreimportantly, without any meaningful threat of astrikeea, How and why? Where strikes have beenprohibited by law, fact finding with public re.commendations has been provided as an alternatedispute settlement procedure. Nearly 300 factfinding proceedings have been studied in theotates of Connecticut, Michigan, Massachusetts,New York and Wisconsin and the results show thatthe reooMmendations have been acoepted or con=tributed to a settlement in the vast majority ofinstanoes,14

Fact Finding

The fact finding process ia one of adjudi-oation as well as adjustment, It is concernedwith the equities as well as the acceptabilityof the recommendations, The fact finding proacess rests on the promise that the decisionscovering the terms and conditions of employmentare essent!tally political rather than eoonomiodecisions anat therefore, a sybliem of impasserosolution based on informed persuasion, a conacept that should have appeal to educatorst ismore appropriate than the strike weapon, whiohis primarily an economic weapon,

Of course, there are shortcominge to thafact finding processt and I donft claim it tobe the ultimate panacea for public% employee die.pute resolution, but I do claim that the recordto date demonstrates that reason can be as erafective a tool as mUssio in dispute solvinglthat the power of permuasion can be as effectiveas the persuasion of power.

Administrative Agencies employees and not for teaching should not be in .oluded in the same bargaining unit as employeeswho may supervise, Whether or not supervisorsshould be allowed to bargain separately in anyunit or exoluded from bargaining altogether isBxperienoe to date in both the private anda question to be eoided in each jurisdiotionpublin seotor labor relations demonstaates that d

ed dgood laws ably administered oan be of immense bas upon the size of the istriot and other

atith ego ti ooess 0'faotors, The reason ie that someone must rep.value in aiding e nng pr. .

t l t t th bviously bad laws or poor administration can harm resen sohoo managemen a e argainingtable and in the administration of the contraot.the process. As one who has had experience in

b I have often heard educators dobate the role ofthe administration of both a private and a pu*the ith g tn thelio sector statute, I make no argument that one superintendent, w some arguin at

superintendent should take a middle road be.system is vastly superior to the other. I rea-t:a3en the sohool board and teachers, I wouldlize that there are many who believe the prob. find this a m

of nnique requi ost unsatisfaotory poeitior, Peo.lems eduoation are and re a

le in the middle of the road get runseparat e administrative agency to deal w p who stayithover, The determination of employment polioies

taaoher*sohool board relatione, While as a gen.and the eatisfaotory oonolusion of teaoher ne.

an understandingeral proposition T do not share that view, it gotiations, in mv view, is a major responsibili.would be presumptive without ty of sohool Administration and properly belongeaf local political and legal faotors to make an

th Office of the Sohool Superintendent,argument for or against a separate negotiating

inWhetheer or not the superintendent should person.

law ror teaohers. ally negotiate is another matter; but the re.sponsibility should be in his offioe.

I do respeotfully urge that considerationbe aiven, by any state or locality oontemplating

f', Ntia public employment statute, whether dealing Seep o ego ati ononly with education or with all publio employees,to the tripartite procedures in Now York City. What subjects are negotiable? The majorThe Office of Collective Bargaining 14 Now York issue at the oolleotive hargeinable table inCity is a tripartite agenoy oreated by law as the public sector is the sam. as it has been ina result of an agreement between the City and private employment tor yeara, It is "more":approximately 70 unions representing ite em* more wagee * and. More fringe benefits. But theployees. It is a seven.meMber board oomposed advent of oellective bargaining.in publio'em.of two labor representatives ohosen by the vari. ployment, and particularly in eduoation, hasous labor organizations; two city members brought a demand °for ooedetermination of somedesi&aated by the Mayor an0 three neutral mem- matters of educational policy, whether desoribedbers. The City and the two labor meMbere, in 44 4 ',more effective 8011001 program" or underturn, unanimously elect the three neutral Mem. some other label. Teaohers want to have some.bers. The salaries and expenses of the new. thiAg to 60 aboUt their profession and educa.trals aro paid one-half by the unions and 0440 'aortal polioy. This 04A relate to iseues oon.half by the City. Tripartite system applies to corning class size, the school 6alendar, ourri.the selection of mediators, arbitrators, and oulum and other matters which involve education.impasse panel members who aro fact finders. al policy as well 46 conditione of employment,Only persons unanimously approved by the Cityand labor members have served on the panels.The parties share the cost of their servioes.The right of the employee organization to par.ticipate in the dispute settling meohanism hasbeer: a major factor in contributing to the etc.ceptance of the decisions of our tripartiteagency, and ot the recommendations of both theemployer and employee organizations.

In the absence of statutory procedures,the American Arbitration Association's NationalCenter for Dispute Settlement has been helpfuland effective in conducting elections and re.solving public employee and community disputes,

Unit Determinations

Wise administrators consult with theirteachers as to whether the:new =till, the newscience courses, or the music program are meet.ing the needs of the etudente; but consultationis different fro1. negotiations. It is impor-tent that School beards'and teacher groups havea MOM; of resolving disputes over what is ne.gotiable as well as the issues in negotiations.This can be done by giving to an administrativeagency, to arbitrators, or a 'court, the reepon.sibility of determining whether a particulardemand falls within tha scope of bargaining.In New York City, it is the responsibility ofthe bargaining, prior to the disputed issuesbeing submitted to an impasse panel for theirrecommendations,

The determinatior of the appropriate ne. Authority to Bargainatiating unit is a critical issue in educationas it is in any area of public employment, Per One of the most.difficulb problems to re.example, I believe that an appropriate bargain- solve in public employment is the authority ofing unit would consist of ell of the schools in the public employer to bargain, What is neededa school district, not just the elementary is a representative of the public employer whoschools or only the high schools. The question can say, "I will or I won't," rather than, " Iarises as to whether or not principals or assis. oan't," at the bargaining table, The statementtant superintendents should be in the bargain. of "will or won't" refers to an effective roseing unit, It is my own view that those persons commendation to the ultimate authority, wheth6,who are paid primarily for supervising other that be the school beard, city council, or some

10

other public) agency, If the public negotiatoris not clothed with suoh authority, public em .ployee organizations will persist in their bar.gaining efforts, until such time as they find aplace where the buok stops, be that the school

oity 'council, the Mayor's office, thestate legislature, or the governor's office,As stated earlier, it is my feeling that theauthority to bargain ought to be in the Officeof the Superintendent, but speoial laws and po.litioal circumstances may make suoh designationimpractical. That is a problem to be resolvedat the local level or by state law.

Education Law v. Bargaining Law

A new negotiating procedure is likely todevelop some conflicts between existing sta-tutes and regulations. It would be wise itlegislation could establish the relationship..,tween an educational law and a negotiatingstatute, between a merit system and a oolitic).tive bargaining system as a means of resolvingdisputes in public employment. In the absenceof such procedures, efforts will have to bemade to a000mmodate one set of prooedures to theother.

Summary

I have attempted to outline some of thedevelopments which have taken place in publicemployment and especially in education as itrelates to putlic employee bargaining, Whathae happened in more then 40 states is likelyto happen in Georgia. The education communityhate a choice to make as to how it will meetthe demand for bargaining. There are those whowill resist suoh change as undesirable, Toothers, public) employment collective bargain.ing will present an opportunity to develop pro.cedures for orderly social change, and with it,an improved educational system.

I hope that the educators in this audiencewill ohoose the opportunity to play a construo-tive role in the creative struggle to makepublic employment bargaining work in the inter.est of all of our citizens,

1 Donald H. Wollett, The Coming Revolution inPublic School Management, 67 Mioh L, Review,1017 (1969)

2 Educators NagotiatinA Service, August 1,1969, Page 3

2 Ibid Page 4, and ENS Sept, 15, 1969, Page 2

4 Ibid Page 5

2 Maryland v. Wirtz, 88 Sup, Ot, 2017

6 Educators NeRctiating Service, May 15, 1969

/ Educators NeRotiating Service, Feb, 1, 1969,text

8 Alum, v. Citv_er,Ottarlot,ta West Dist. N.Carolina, 2B6-GERR-N1, March 3, 19691McLaughlin M. Tilendis, 398 P (2d) 287 7th

Oircuit 1968; Arm* v. Woodwardouit 1969 281 GERR-P.1.

2 GERR . No, )15, 8.9, Sept, 22, 1969

10 Edqoatva Nemotiating Service, Sept, 15,19694- Page 2

11 GERR No, 305 P, 125

12 GERR No. 315 B-15

gel Cir.

12 Robert L. Stutz, The Resolution of Impassesin the Public Sector, Proceedings of the ABA.Section on Local Government Law, 1969

14 Edward Krinsky, unpublished doctoral dia.sertation on fact finding, mediation andstrikes, University of Wisconsin, Departmentof Economics (1969)

Detroit's Blueprint for Labor Relations

The labor relations guide which follows has been pre-

pared by Al Leggat and Joseph P. McNamara, Labor Relations

Bureau, City of Detroit. Although it is designed to aid

management in city employment, it is most applicable to

public school classified employment.

The Union contract is an instrument bywhich the City guarantees, beyond the oondi.Vons spelled out by the Charter, Ordinances,and Exeoutive Orders, the over.all conditionsof the Oity employment, In order that thisguarantee be a real one and not merely a state .ment on a piece of paper, it is important that1/1gx management representative, at All times,rnakos sure that the conditions of emf)Riymentguaranteed by the Oity are carried out fairlyand honestly; that practice ooinoides withpromise,

Written into the Union contract are guar-antees to the management against encroachmentupon its rights and ability to manage properly,

These guarantees against diminishing man-agement rights are one of the most valuableessets of ugh iiy4 emPlloyeel becausethey are essential to the employeele presentand future job security.

Any proposal to weaken management's rightto manage undermines the proteotion uf eaohemployee's job. Only management oreates andcontinues employment and opportmitieo for payraises and advancement,

Each Supervisor has, as his responsibili-ty, the task of making sure that the rights ofthe Oity are preserved in practice, as well asin the language of the contract, Every actionthat a Supervisor takes establishes a precedent,either good or bad, right or wrong. It is thehope and expeetation of the City that each ofits management representatives will take thecorrect action at all times.

In order that each management representa-tive be properly equipped to take the correctaction at In times, this memorandum has beenprepared to give each Supervisor the benefit ofmany years of experience of a large number ofSupervisors in dealing with the Union. ManySupervisors will recognize in the situationsoutlined experiences which they themselves havehad. If by utilizing the experience of otherswe can avoid making mistakes, each of our jobtwill be made that much easier and more effec.tive,

The Management Represeummtive

The most important relationship in anyorganization is that of the employee and hisimmediate Supervisor, In many oases, the Su.pervisor io the only member of the City manage.ment with whom the average employee has any.direct contact, The Supervisor in the eyes ofmany employees, is the management; therefore,the actions of the Supervisor represent theactions of the management to that employee.Tho importance of this relationship cannot beoveremphasized. No set of conditions shotAd inany way impair or dilute that relationship,

The City really represents 111, of the em.ployees. As a representative ofthe employees,the City (among other things);

(a) invests money in facilities, equip.merit, machinery, tooling, raw matsri.also supplies,

(b) maintains a large and expensive stafffor research, development, enAineer-ing, operations, and scores of otherspecialities,

iliof which bring work 12,2oloyees and createe seourity for emplayees,

The Oity's actions on behalf of all of itsemployees give each employee his own opportu.nity for job satisfaotion, for insurance andother desirable benefits, for job advancement,for true job seourity and ultimately for thatretirement security which he earns by his day.to-day efforts over the years.

It is the Supervisor who must outline tothe employee what his job is and keep the em-ployee currently informed of all conditionssurrounding his job. It is the Supervisor whomust show the employee how to do his job or toarrange for the employee to be shown how to doit, It is the Supervisor who should keep theemployee currently informed on the variousquestions that come to the employee's mind, Agood Supervisor knows at all times the needsof all his employees. He does hie best to Mathose needs, He acts as their spokesman andadvocete with management, He knows what theemployees think and Why they think that way,He provides constructive leadership to the em.Pleyees in his area of responsibility in or.der to guide their thinking alma construotivelines.

The Supervisor is a genuine friend of hisemployees, He should not be inflmidated intoacting otherwise!

Greatest Cause of Grievances

Laok of understanding between the Super-visor and the employees reporting to him isthe greatest single 040A8 of grievances; inmost oases these grievances are the unneces.sary ones-wthe ones that never should havearisen in the first place.

A capable Supervisor will keep his em.ployees currently informed at all times, and,he will keep alert for the legitimate needs ofall his employees. In order to do this, hemust get to know his employees and everythingabout them that has any relation to their jobs,

He must know and analyze fairly theirabilities and their capacities. He must knowwhat their experience has been, not only withthis Company, but also with other companies,He must recognize that each employee is anindividual . and has individual needs anddesires. He must also recognize that a groupof employees, or more specifically the groupof employees who report to him, should consti.tuts a proper working team.

He should attempt to know their problems.analyze them and be of genuine assistance inmeeting them 0 all in a friendly and construe.tive manner,

At the same time, each Supervisor mustknow )he rules that apply to hiS entire groupof emyloyees, both individually and collectively.

10

13

These rules must be applied uniformly and im .partially at all times in order for the team-work to be properly preserved within the de.partment,

The over.all policies of the City must beapplied fairly and uniformly, The Union con.tract itself constitutes a set of rules whichthe City has agreed to administer fairly, hon.estly and impartially with respect to all em-ployees in the bargaining unit.

Igg are the one who is entrusted withkeeping the City's promises. Don't fail theemployees or the City.

Favoritism toward one employee might re.sult in discrimination against another employee.Resolve to be fair at all times.

Each Supervisor, therefore, should becomethorough_y familiar with all of the City poli.cies that are to be applied in his department,and he should have a thorough, active, workingknowledge of all the provisions of the Unioncontract whioh he is remponsible for applyingin his area. He should know what the contraotsays, what the contract actually means, andhow the contract oan be applied fairly to theemployees, and fairly to the City,

All of these things are necessary prere.quisites to any actual dealing with the Union.They oonstitutathe foundation on which dealingwith the Union must rest. Failures to estab.lish this solid foundation in advance of anydealing with the Union makes. the Job much moredifficult and frequently ineffective.

Steward is Employees' Agent

When the employees elect a Steward to re.present them 401 their agent in the oolleotivebargaining process, that faot in no way shouldresult in a breakdown in the relationship ofthe employee with his immediate Supervisor.Surveys of workers reveal that they believethat Union and Company representatives shouldget along well together* They deplore laborstrife (which usually hurts them) and desiremore and more cooperation,

Efforts may be made by some Stewards toplace themselves beJ_Weerk the, employees andtheir Supervisor, Wit the fact that the effortis made should not alter the fundamental prin.oiple that the most important employer-employeerelationship . and the one most produotive ofgood to the individual worker . is that of theemployee and his immediate Supervisor,

Continue to be the true friend and counsel.or to the members of your orew or work force,

In questions arising out of grievancescoming within the scope of the Union contract,the Union Steward oan be an effective link be.tween the employee and his Supervisor a ratherthan a barrier, Whether the Steward becomes alink or a barrier is dependent to a large de.gree on the intelligence with which the Pore=man handles the multitude of situations whiohdo arise,

Being a human being, the Steward might beone of eeveral different types. He might bes

1. intelligent, sincereQ. not so intelligent, but sincere3. intelligent, but not entirely sincere4, not so intelligent, and not particu.

larly sincere

W%th these four basically different typesof inividuals, we will get four entirelydifferent types of responses, It is important,however, that we proceed on the basis and as.gumption that the Steward is intelligent andsincere, If by his aotions in the later pha-ses of the bargaining, he proves that he isnot intelligent or not sincere, then it willbe he who has made the mistake.

No management representative should evercommit the error of assuming that a Stewardwas not sincere in bringing a grievance. Itis essential that all management representa-tives be utterly sincere and honest in all oftheir dealings with the Union Stewards.

The attitude of the management representa-tive normally is reflected in the attitude ofthe Union Steward. In other words, if a Supeo.visor constantly expresses suspicion and dis.trust of the Union Steward, the Union Stewardin turn will express suspicion and distrustof the Supervisor,

Ibis does not mean that a Supervisor mustaccept as true everything that a Steward hasto say. It does mean, however, that the Su.pervisor must avoid discrediting the Stewardby letting the Steward know that he does notbelieve what he has to say. The Supervisor'sattitude should be basically thiss ',My ordersare to see that the Union odntract is lived upto fairly and honestly and impartially. Youhave a grievance . let's look into it carefullyand see what should be done about

We must remember that the Steward himselfis a City employee and that he has been AA*letJed by his fellow workers to represenTthemin their bargaining on grievances, In theory,and we presume in practice, the employees se-leot as a Steward the one among them who theyfeel will do the most competent job of repre.senting them in handling grievances. Itmight be that the Steward selected is the mostcompetent one who is willing to serve as aSteward, but we must keep in mind that theselection of the Steward is the selection ofthe employees . not of the management, Whe.ther or not we agree with the employees inthat group that the Steward is the best quali.fied among them to serve in that capacity isof no importance whatsoever.

It is important, however, that we acceptthe Steward in good faith as the choice ofthe employees within the district he repre.gents,

We must always assume that Le is usuallysincere from his point of view, There may beexceptions. However, it ia our desire . andour Job . to give Stewards the sincere andcareful consideration to which they and OA

11

'14

are entitled. To as-sume a e ou se a a Steward is not sineoere might result in either one of two errors*First, it might result in misjudging the Stew-ard entirely, or it might result in deprivingthe employees whom the Steward represents of afair and unprejudioed hearing of their requector grievance.

Keep in mind that the Steward is instruct-ed that a good Steward will always handle theoast) and try his best to win . even when he isnot suro the grievanoe is sound. By the sametoken, the Steward a/so is instructed not totry to win a grievance when he is sure to lose,It is where there is an area of doubt that thesteward is committed to the principle that heis obliged to get for the employee that forwhich the employee asks, if it is humanly pos-sible to do so,

-11

The Union Steward is wrk n for t1eat all times, There are many ac vi ies n be.half of the Union that a Union Steward mustcarry on. He may not be wholeheartedly in ago,cord with the Union objectives, but his posi.tion is one in which he is obliged to "followthe leaders." It is only natural that hecarries those activities into his bargainingon grievances.

It is not the position of the managementrepresentative to do anything with respect tothese activities other than to reoognize themas legitimate activity and to make sure thatsuch aotivity engaged in is not in violation ofany provision of the contract or other regula-tions, and further, does not affect adverselythe interests of the operations andttherefore,of all the employees.

Summarising your dealings with the UnionStewards, it is important that these fivethings be_kent in mind at_all times*

1, The Steward is a human being.2. The Steward is an employee of the

Oompany,3. The Steward is sincere and tries to

represent the emPloyee who has broughta. grievance.

4, A go-,d Steward will always handle theease and try his best to win, evenwhen he is not sure that the grievanceis sound,

5, The Steward at all times is working forthe Union.

Grievance Elintdling

When a Union Steward brings in a grievance,the Supervisor must do the following things*

1, He must lieten attentively as the griev.ance is presented,

2, He must find out, from the Steward, thesection of the contract the Stewardalleges has been breached.

3, He should question the Steward to de .velope a full set of lull.

46 He should develop additianal facts andverify assertions made by the Steward.

5, He must keep adequate records to showthat he has investigated the grievance

12

thoroughly,6. He must apply sound bargaining prin.

ciples.

In eaoh of these steps, there are a numberof useful techniques which can make a job moreeffective and easier, In following thesepoints, it is advisable for each Supervisor toprooeed in a perfectly natural manner. If theSupervisor's normal manner is incorrect, it isreoommended that he practice the followingsuggested in order that he may oarrythem out pftelaturally.

isten attentivel as the rievanoee_presen e,

It should be borne in mind that the Super-visor must not only actually listen carefully,but also must_i ic t to th Ste r t he

it: fU__mie,, any imes, .he answer

e become perfectly apparentit the one presenting the grievanoe is givenfull opportunity to present of the storyand all of his arguments for e oase.

The way a grievance is received is impor.tant because the way a man is treated when hefirst comes in to make a complaint may have alot to do with the eaee or difficulty of set-tling the problem.

When you receive the grievance, give theman a good hearing. Give him your entire at-tention. Remain calm, Even if the man isboiling mad, keep your temper. Let him tellhis full story without interruption.

The next step is to calmly ask the man torepeat his story, To get the story accuratelyand to impress the man with the idea you aretaking his complaint seriously, take a fewnotes while he is speaking.

At this point in the procedure,.it is im.portant that the Supervisor avoill (1) makingany statements or (2) taking any position onthe grievance. It is advisable for him to askmany questions about grievance, It is recoM.mended that, after the Steward has completedhis presentation of the grievance, the Super.visor as :e t o s similar to the following*"Now is that t -e complete pioture as far asthis grievanoa ia conoerned?" . "What else isthere that I should know about this grievance?"

The Supervisor should then restate thegrievance in his own words to the Steward, andhaVe, the StaWknk confirm whether or not thereetatement of the grievahoe is basically cor.rect, By doing this, both the City and theUnion are sure that the Steward and the Super .visor have the same understanding of what thealleged grievance actually is, This is mostimportant,

e u rte toare t e moot 0giiirif,AAArlot_t_ _ tewar. _ok guits_ go koq_Ai-040k

The second point is to have the Stewardt y thiaoj 4 qmaILJJasulmanial which he

egos as een viia/a4TO1F-1-ifieTehid, While

this is beinw done, one question will be an .swered by a oareful analysis of the Steward'sresponse to the question, If the Stewardpoints to a speoific paragraph in the contractwhioh obviously covers the alleged grievanceaccurately, the proven facts in the oase willautomatioally give the answer to the grievance.

If, on the other hand, the Steward goesinto generalities in order to support his griev-ance and is unable to find a specific oontraotprovision which clearly covers the ()use,extreme caution should be taken in each of thesucceeding steps, If that should be the case,it probably is one of the marginal grievancesthat might cr might not be covered under theoontraot and, therefore, might or might not re.quire corrective action. If the Steward relieson the provision which gives the Union bargain.ing rights on a number of things, including"other conditions of employment", it is morethan likely that the Steward is groping forsome justification for his grievance. Grieveances on general conditions, safety, sanitation,and the like might come under this category.

Any condition which might be used as a ba.sis tor a grievance on these matters is a con.dition tor which the Supervisor normally isheld responsible in the normal execution of hisjob, If eaoh Supervisor does his job properlyin this respect, there will be little, if any,occasion for a grievance to be tiled on any ofthese matters.

In pinning the Steward down to the specific)section of the contraot which he alleges hasbeen violated, it_is_Atell_to_rely_pa.skueatinnsrather than stateMents. Thia- nute-the bUrdehof proof on the Steward, In asking questions,be sure to aek them in a manner that requiresmore than a "yes" or "no" answer$ questionssuch as "Why do you think so?" or "How do youthink that this would apply?" or "In what waywould this seotion be applioable?" or "Wasthat exaotly what was meant when the contractwas negotiated?" or "How do you know that thisis what is meant?" It is possible that if thisquestioning technique is carried out properlyat this point, the Steward himself will reachthe conclusion that he does not have a case,If it is an actual case and if there is a realgrievance involved, this technique will givethe Supervisor a part of the information heneeds to reach a proper conclusion on it,

St an .1 ueation_the_Rteward_to_davolon_a_fullAat_o_f_fante

The third point of developing a full setof facts is an important one, In a cleareoutcase, it is_tha0o1A,Attellselmas tbat daaida

In other than a clear-but case,Werlftbii-Ar4 no less important because theygive to the Supervisor the information he needsto reaoh a proper conclusion in the matter.The development of the full set of facts alsocan be most effectively accomplished by usingthe questioning technique,

Remember, only the /Asia . all the facts .suggest the correct answer,

Again, we must make sure that the quese

1 3

tions, whenever possible, are asked in a mannerthat requires more than a "yes" or "no" answer,The purpose of developing a full set of faotsis to get the full, complete and correct story,This is somewhat different from an attorney'sapproaoh in questioning, where the purpose ofthe questioning is to develop a set of factswhich will prove or disprove a specific point.

Also of importance are questions which oanbe answered by observation . that is, observa .tion on the part of the Supervisor himself oron the part of other people. In asking ques .tions of other people as to their observationson any situation, again be sure to ask ques.time that cannot be answered by "yes" or "no".

Frequently, tha facts presented at the out.set by the Steward are a selected set of factsdesigned to bolster the grievance and to provethe points for a settlement of the grievancein favor of the employee, In order to developthis full set of facts, there are a few ques.tions which might be used constructively atthis point, Start first with the basic ques-tions revolving around . Who? What? When?

MIMI? 3111X? and Ea?

A dangerous area of exploration is the in.elusion of opinions of various people on a spe-nific subject. A teohnioal opinion from atechnically qualified person frequently hassome value. A teohnical opinion from a tech.nioally unqualified person not only has novalue at all, but also can be extremely den&gerous. A personal opinion On a nonetechnioalmatter is of little value. Keep in mind atall times that you must bargain on facts, rath-er than on opinions,

"01)-4 Davaion-adallital.ldl.A11=Ltalassartiona_Made by theawar.

The facts a Steward brings in, and thefaots a Steward will admit knowledge of, usu-ally are a selected set of facts, plus someunsupported assertions, plus a few opinions.The Supervisor must check with his own normalsources of information and records, a completeset of all the supported facts and evidencethat are pertinent to the grievance.

StenA e Racord_all_portinent_intormation

Ask questions which will develop informmation which might be contained in productionrecords, employment records, or any other kindof records normally maintained by the Depart.ment, These are of basic importance,

Make notes of this information, includingnames, dates, times, and all other basic facts,

St_en - AnolY_Anund_hargaining_nrinoiniaa

After the Supervisor has taken each one ofthese five preliminary steps, the Supervisorthen is in a position to start to apply soundbargaining principles, /t must be emphasizedthat the steps previously outlined must becovered before the actual bargaining on thegrievance starts, You will note that, at notime during the first steps covered here, doesthe Supervisor take any position on the grieve

16

(mile, present any arguments with respect tothe grievance, or in any other way give any in .dioation as to his eventual decision on thegrievance. He has been gathering facts and in-formation which will permit him to use soundbargaining principles most offeotivelY.

This attitude must be expressed in words,in actions and in the very manner of bargaining.Keep these two things in mind at all timess

a. The purpose of bargaining is to reachr m t satisfactory to both sides,o-e sa isfaotory to both sides, the

agreement must be a fair, honest and in).partial application of the appropriatecontract of rules provisions,

b. Actions or words or attitudes thatxsai mutual agreement are not sound-bargaining.,.they are arguing instead.The City has agreed to follow a policyof collective bargaining, not collectivearguing.

When a Steward presents a grievance, thefollowing general principles should guide youractionst

1, Le1L the Steward take_the bur4en of pivot,When a StoWard-OoMee in ih a griev4ribi-,-hiii-iaasking the Supervisor to do either one of twothingss (a) to take a speoific action, or (b)to change a specific action already taken. Hais the one who is asking that some sort of a-6=tion be taken, so ha, therefore, should carrythe burden of proof, Some of the better train-ed Stewarde will attempt to let the Supervisortake the burden of proof; You should get hiMto state what he thinks you did that was wrengsand then ask him to prove it.

26 Continuallv supportApd_advoeata_thoEadh Supervisor is a part

Of Management, The actions, recommendationsand orinions of all the Supervisors oombinedare the basis for management's policies andpractices,

You hurt yourself whenever you disassociateyourself from the management, or the managementposition. Don't belittle yourself . and neverdo so in this crucial manner,

Pap_OOnAMliation etIf you see a-situa ion which you believe

may lead to grievances and which you can't doanything about yourself, bring it to the atten.tion of someone who Dan do something about it.Outline all the facts. Then, when you feelthat the proper person (usually your Supervi.sor) has the complete story, check again to becertain that all the details are correct, Re.port back, to your men if a complaint has beenmade to you about the situation. This willshow them that their complaint is not beingignored and something is being done about it.That's good business . your buminess, That'sgood management . your management,

iseetetila_ps.. If aSteward-iiih4f-eietralete:ififfiliiiiiIily at.tempts to carry on the discussion into unre .lated matters, the Steward's attention should

4

114

be called to the main point at issue, and thediscussion should be restricted to the basicfaots surrounding that main point, Whether theprievance is one that will require action orone that must be denied, keeping the converse.tion to the point will bring the grievance toa suooesoful conclusion sooner.

3. L3e_kr, Most grievancesare a sindividual concern..ed, so it is important at all times that eachSupervisor be utterly serious and perfectlysincere in each step of handling the grievance.If you attempt to block or if you misrepresentanything in connection with the grievance, youare apt to be setting "a trap" for yoweelf.If you try to make a Joke out of a grieVanoe,you lose in a great many respects.

Kaell the_negetiations sieving, an4 ketptirm movinuat a apead=whiDh Will do both of-the fblIewingthinget

(a) Assure an early agreement with a min.imum of time being consumed and, at thesame time,

(b) Permit proper and thorough considera.tion of all of the factors involved inthe grievance,

7. 0 eel; the x arienc of ot re andcha9k t_ preoe_en_tba_ airea4y _OA_ een es.tabliahedlin:ZidilarLeaSeD,- Mtioh tiMe and ef.,fort-canbe-aliVed it eaoh Supervisor geto thebenefit of the experience of other Supervisorswho have already been through a similar typoof grievance. Records should be maintained ofall satisfaotory grievanoe settlements, andthey should be crossindexed so that the settle-ment on any specific type of Otts..4 can be foundreadily. The smart Supervisor checks these re-cords to gain the benefit of the successfulexperience of others.

8. Sattla_the_grieVancealt_the_earlioAt

:hist ai the salesman learns to know the propertime for getting the signature to an order, anintelligent Supervisor learns to recognize theproper time for bringing a grievance to itsproper conclusion.

9. anglizujiaSZIPIC,2r(LIZ. Before you ever reached your de .oisien in the case, you made a careful study,investigation and analysis of the case; andyou sought the advice and help of others in themanagement group whenever you were in doubt.As a result, you know your position is sound.You know you are on solid ground. You willcommand the respect of the employees, the Ste.ward, and the mahagement group only as long asyou STICK TO IT.

With your decision on a solid base, youcan be confident of the correctness of yourdecision, You can afford to be firm and at thesame time aall the reasonableness of your posaition to thi-gteward and employee involved,

But it is important that the decision besold, Merely telling a Steward what the de.cision is does not give him what he needs tosell the employee on the idea that the griev.

anoe must be denied or that the settlement mustbe different than the employee originally expec-ted or hoped.

If the language of the contract gives aclear answer to the grievance, sail it and re-gal it as many times as may be necessary toL6Pre88 the point.

In addition to quoting the contract, quotethe common sense of the situation. Your objec-tive ie to sell all those concerned on the factthat your decision is right and reasonable, soemphasize the oommon sense of your decision.

In a clear cut case the facts themselvesdecide on the grievance. A clear statement ofthe pertinent facts is essential in selling yourdecision.

If other oases have been decided on thesame basis as the one you have just decided,quote them, They prove that your decision isnot an arbitrary one and that a similar deci-sion has been accepted as satisfactory.

10. Give the Steward a chance to_retreatfrom his original position,. In re-Stating theCentra6t provision, the- oommon eense involved,the facts in the case, and the precedent whichproves your point, pick out those points whiohthe Steward did not originally present or whichwere not originally given to the Steward by theemployee as important factors in your decision,assuming that the Steward would have reaohed thesame decisi.on lf he hLd had those facts at thebeCnning.

It is important to the Steward that theemployees feel that he has done an aggressivejob in presenting their case to the management.Your future relations with the Steward will beimproved if you help him in this regard. Youmight make a statement something like this:"You did a good job, Joe, of trying to sell meon this oases and if I hadn't been careful, youmight have had me convinced. But the facts inthe case can't be changed, so I made the onlydecision I could under the circumstances,"

11. Renfbarter-i-o_lesdecieion,ia dilangsd in Ois_la:bgr stene Of_tha.ickr-J.Liire. Occasionally your deoi0Wo5iitd-400;b-haAkid as the grievanoe is al,.pealed through the test of the steps of thegrievanoe procedure, If it is, be sure thatyou realize that there was a reason for it. Itmight be for one of the following reasons:

(a) Additional faots might have been devel.aped that were not available to you.

(b) You might have slipped up in colleetingyour facts or in weighing them.

(o) The neoessity of changing a previouslyestablished policy might have becomeapparent just at the time your easecame up for review,

(d) If the evidenc:1 is not sufficient toconvince an arbitrator, the decisionmight be changed, even though it wasright, to avoid an adverse ruling bythe arbitrator,

The final settlement of a grievance is a

15

precedent which can be used as the settlingfactor in another grievance. Unless a Super-visor checks thoroughly the experience of oth-ers as represented in the preoedent already es.tablished, he is apt to be making additionaland unnecessary work for himself; and, at thesame time, he is apt in his own settlement toestablish a precedent which is different fromthat already esteblished, The intelligent Un-ion Steward, before he brings in a grievance,will have checked the precedent which has al.ready been established to sustain the positionthat he 4 4kking.

In . organization, there are precedentson kai .44 of many of the questions whicharise. lt is impc.rtant that .1 of the pre-cedents be reviewed and that fhi preoedentwhich supports the proper conclusion in theourrent grievance be-qui:Aid authoritatively.

Management ihsity

Whtmever a person accepts a Supervisoryposition, he accepts with it the responsibil-ity for supporting and advocating the manage-ment position at all times. That's the job.Management policies and practices are designedto be fair and workable and to promote con-structively the future of the City and its em.ployees, Any SUpervisor who oannot honestly,sincerely, and actively support the managementpolicies and practices wholeheartedly shouldelect to take the type of job which does notrequire automatic support of the managementposition.

There are times, of course, when you willhave an opinion different from that which hasbeen formulated into either City policy orCity practice. If that opinion is sincere andsound, it ahoUld be passed on to your Super-visor, so Warrt may be given due and properconsideration in any revision or extension ofCity policy or practice.

Caro should be takeno however, to discussthe matter 2alx among the management group,and not to disouss private opinions, whichmight temporarily be contrary to those of theCity, with any representatives of the Union,The reason for this caution is to prevent theUnion Stewards from applying the "divide andconquer" theory to anyone in the managementgroup. Management policy and procedure is afabric which holds the City together and keepsit aimed toward a constructive goal. Any diV..ision among the management prevents, at leastto some extent, the full accomplishment ofthat goal.

Management.Labor HarmonyHere are a few points for eaoh Supervisor

to use as he carries on his dealing with theUnion:

1 tri e t 1 bst d :i_ th. of 0 0 4 1 n any sosa.icon wi h e n on con usion starts to ariseit would be well to make a direct effort toeliminate confusion by asking questions suohassoLotts see exactly What we are talking ambout, 'Is this what we really mean/0

18

"What is the main point we are trying to de-aide?"

2,tion we

.2. V.

e toa ay e conscorrect action we have taken in the past.Likewise, any words we say mIst be consistentwith our actions, and our er:tions must be con-sistent with our words. This even goes to thepoint of having the exprfssion on our face con-sistent with the words we are saying and theactions we are taking. We all have seen ex.amples of where a person says the word "yes",but, by his facial expression and attitude,we know that what he actually meant was "no".

t Any etc-ent with the

what3, ex 121e401a

them an u. veryuperVisor s expec e ere o the provi-sions of the Union contract; to conduct hisdepartment in a proper fashion; and to conducthimself in a mtAnner which will demonstrate thathe is a good Supervisor. We should expect theUnion Steward to represent the interests of thepeople in his area effectively and properly.We must expect him to conduct himself in a sin.cere and honest manner, and we must let himknow What we expect of him in this connection.

4. Remo ber we usually get i re urn ex-ctly what we _ . . _ves have given, If we "tryto pu: some hing over" on a Steward, we canexpect him to "try to put something over" onus. If we misrepresent a situation to a Stew-ard, we can expect him to misrepresent a situ-ation to us, If we start indulging in person-alities or abuse or name calling, we can expectthat the Steward will likewise resort to per-sonalities or abuse or name calling toward us.If we start shouting or getting excited, we

--cairexpeot the Steward to shout back and alsoget excited. By the same token, it we makesure that we are honest, sincere, fair and:calm in our dealings with the Steward, we canexpect that usually he will be honest, sincere,fair and calm in his dealings with us,

a

5, Liveta..urci. For example, ifwe make-i1-26-1ra7-64loyee or to a Stew.ard that something will be done, that promisemust be faithfully carried out. If we promieea review of classification, for example, weshould follow through to make sure that the re-view of classification takes place. If wepromise that an employee will be disciplinedthe next time he commits an infraction of therules, we have to make sure that the dizoiplineis invoked, If we should overlook the carryingout of our promises, we will find that whateverwe say has no real meaning because we did notlive up to our word,

6 ;leizeewar 8 are in.

div duals just as are a the rest of our ern=ployees, If we are to succeed in dealing withthe Stewards (or in dealing with our individualemployees), we must reoognime them as individ=Uals and lot them know that we do so recognizethem, The first step in this process is toget to know their names and to call them byname. We must get to know something abouttheir personal interests and their families sowe can show reoognition of the things that are

personal to them,

16

7, L rn to e ions Weprevious y eve no y as ques onewhich cannot be answered by either "yes" or

we can develop a line of thought or tostimulate a person to some speoifio action,

8. Talk i Ian:page tliat theAlther,ReEssntuiezzitteLila. -Me i4ortint-thing in any die-Oussion is what the other person understandsfrom that disoussion, Our objective is to helphim understand, We can help him by making surethat we use language and illustrations that areeasy for him to understand.

9. IbulliLmilhu9iasm toward the otlier,person,particulavin thirigs-in-whiah hesin-terested or in which he should be interested.If we are to have a Steward work with us in-stead of against us, we can gain ETractivecooperation-by dhowing an active enthusiasm to-ward the things in which he is interested,This does not mean that we have to endorse orsupport all of the causes in which he might beinterested, but if he achieves any recognition,we should show enthusiasm toward the fact thathe has gained recognition,

10, Learn_to_show appreciatA0n. If weactually da apPreaiata-an- attitude that a Stew-ard has taken, an action that he has taken, oranything else, we can gain a lot by letting himknow that we appreciate it. Nobody likes to be"taken tor granted." Many times a casual wordof appreciation will do much toward building aproper working relationship between a Super-visor and a Steward.

11. Porsonwlize_ the things_tharare gondde-personalize There

are situations arising Ocintinually throughoutthe plant where employees and Stewards are in-volveds some of the situations are good orfavorable ones, and some are bad ones, When=ever a good situation arises, it would be wellto find an oocasion to mention to the partiOipants their identification with the situation.Statements like these could be used; "I seethat you did a good job on such and such"; "/see that your department accomplished such andso."

This is an important rule of conductsgmagalal the things that are goodi .

Yi.oduen:es

x22 give it a ohancef

eibere the si:uation was a bad one, gag

I t 6 Forexample, h souse ng a ad situation, itwould be well to point out that "this happened"or "that happened', which was not good, ratherthan saying "you did this" or "you did that",Try this approach for yourself, and see theresponse you will get,

12. To influenc_e_awithar_Dersons

ga-a.sa_a_LAReone,

Usually, when a Steward comes in with agrievance, he already has formed an opinion thatthe grievance oan be "won" by him. If the factsin the case indicate that the grievaLoe must bedenied, the Sivervisorls objective is to havethe Steward change his original opinion,

If we start out by oharging the Stewardwith stupidity or ignorance or insincerity be.cause he had that opinion originally, tho Stew.ard automatically will go whatever lengths arenecessary to prove that his original opinionwas correct. He will do everything he can todefend his opinion.

On the other hand, it we recognize whathis original opinion was and let him know thatwe can see how he might have reached that opin-ion originally, he does not have to defend it,and he can retreat_ from _it_gralefully, if WOgive him the Means to do se. Thia 0411 be donesomewhat in the following fashion! "/ OEM 000that from the information you had when you camein, you might feel that this would apply, butthat was before you found out or notioedso and so, With these added facts, of oourse,the conclusion would have to be . such andsuch, Be sure to stress that the additionalinformation 1:17!!obably W40 not available to him,rather than amserting that he made a mistake orwas stupid for not having thought of it in thefirst place,

13. Elail_a2nstruotive ideas,_Jand_heinis-ose_idta:r0-,-, There are many ocaasionswhen a Stewardus aCtive cooperation is neededto implement a proposed action or a changedpolicy. In order to get the Steward's thinkingprepared so that he will willingly give the co..operation needed, it is necessary from time totime to plant ideas with him and give thoseideas a chance to develop in his mind. Inplanting these ideas, it is necessary to giveto the Steward, a little bit at a time, the con.structive points which will be the basis forfuture action.

140 4arn the430wer and_danger of sillApPA.Silence can be powerful where words would beoonfusing. Silence can be dangerous if wordsare necessary,

15, HeLeostc30salrito..tive t ings,There are-ffif.hy-fibili'trUesiiVi-7things that Manyemployees, including the Union Steward, fremquently do, If we are to get their wholeheart.ed 000peration, we should help them in everyway we oan to a000mplish those oonstruotivethings.

A Short Grievance Formula

1, the rovbc_ p.: ;=:1 -1.11Aff 4.2L111H49 we aoquane

w h e gr evance proceoAres and City policies,These are your special tools, They will helpyou do the job only if you become skillful inusing them,

2, OW r ow r to ad u t rieva .s.You are ron ne o managemen .0 youremployees and make your own determinations,A supervisor who openly relies on the judgmentof others - or who says he is making a decimsion because someone else told him to do so -quickly loses the respect of those he super-vises, Of course, in many oases you will wantto discuss the matter with your immediate su-pervisor, You are entitled to this advice..often you must have it!

3+ G t 1 af_the fthen sett

restate_ tham_and

Be promp n making whatever settlements yoUare able to make. If you need advice, get itas quickly as possible.

4. Be_ainoet_Nmp4thetici falr. an4in,-saidiii, You WiL--enjOy-thii reSPeot a

a I your work foroe if your impartiality andunprejudiced thinking is obvious. Your con.duct should always merit the approval of theworkers,

5. :)arustn_lonotH1:)_nts.Be a factgettor, a deiiiibit-daknegotiator, Judge each case on its individualmerits.

66 Avoid_ the_usa_e; undernanded_im 141-tteaE,.jti_e'"_-ito_Jiot!iiVant.A. Be abOve anY rie--

ery. You are going to live a lifetime andyour long.-range reputation means a lot morethan e!!IP temporary adjustment which smacks ofdeceit. Don't adopt questionable expedien+..to appease grievants,

It is your responsib iy toasCartain all the facts and to review all rel.avant records. Usually this oan't be donewithout asking questions, Remember, the ag.grieved employee and the Steward want to airtheir diffioulties. You should ask questionafter question to help do so and to get allthe facts. Then, ask questions concerning therecords and concerning the way in which tohandle this kind of case of your sUperVisur,Don't hesitate to ask for advice When oiroumstances require, Ask for advice based uponthe faots you have developed,

8, Your deo o ma n ustdefinitek, e actul, espeoial y in the evenof a grievance denial, /t is natural to re.sent the denial of an alleged rIght or to betold that one is wrong, Personalize the thingsthat are good . deaapersonaliMe those that arebad,

8 t adm t

4! =

4. o. A 06 T is at ude enoourages employees to

Reoommendation! AAAantUat_a_thl_aospixel 5ffif their own errors, Also, don't blame

17

go

others for your own mistakes,

ga e ..9te:10 8 0 ow.up sposesof _he imme iate grievance and often preventsthe eruption of future grievances.

11, dutal eve es 13 Unen

n9 Prejurepresen a ves a rresponsible, Union offiacials can be, and often are, of genuine assis.tance in adjusting troublesome grievanceproblems.

120 oe wel i1 rmed a the utcome i rea e acqua n ed w

grievance 4iSpOS tion at all leVels. Keep in.formed* Remember, at all times that the Indus.trial Relations Bureau and your immediate su.pervisor are anxious to help you; but, they maynot know what tools you need unless you ask forthem.

Take notes, KEEP RECORDS.

Ask the man to repeat his story,

Then repeat the essentials in your ownwords.

2. Get the facts all the raote available*

Learn the section of the oontraot allegedlyioe against Un1.on breached.

No "Last Chapter"

There is no "last chapter" because neitherindustrial relations nor yOUr selfaimprovementwill ever reach a terminal point. This thoughtshould be solace to yoU. Ver. both are as inter.estiA8 as sports. Your striving to Master 'themoffers the type of challAnge and ultimate re-ward in satisfaction thLt adds zest to lite,

There is . and there will always be a "anext chapter". And the next chapter is theonelou,will_write_far_v_oursolfl

You Will write it first a and most imporatantly by the manner in which yot put intodaillf_Lus.e. the ideas contained in O., foregoingpageS-6 Remember that good habits are the hUmanroutes to atioeties. TO learn them calls :orcontinuing attention,: Don't Axpeot some magicdust to arise fro* these Pages to Solve Yourhuman engineering problems* yoU Must Apply theideas not once, not twiee a but over and everagain. Mastery will be yours it you recallthat aequiring and holding fast to bAbits thatmean success is like riding ,a bicycle, lf youstop pedaling, you fall off,

A Checklist to Use

16 Receive the grievance welli

Give the man a good hearing.

Listen a don't interrUpt.

When he has finished, ask question**,but take no position,

Check the Union contract.

Ask questions requiring more than a "yes"Or "nc" answer.

Ask advice it necessary,

Check Department policy and practices.

Oheok previous grievance settlements forprecedent.

Check the experience of others In similarcases?

Reach a preliminary decision in the oasebut temporarily keep it to yourself.

:5. Take the,neeessary action*

Avoid eonfusion.

Settle the grievance at the earliest momentthat 4 proper settlement can be reached.

Explain your position.

Once it is made, stiok to your deoision.

Make the corrections required by your de.cision if possible.

If necessary, pass all the facts to thenext step or level.

4# Pollow ups

Make sure the action was carried out.

be alert to situations which might bringgrievanoes.

Correct such situations before a grievanceis filed,

Know your employees and their interests.

Maintain an atmosphere promoting the high,.GMMt morale.

Censtantly support management . your man-agement (the management of which you arean important part.)

3

Unionism and Public Employees

The following special report by David B. Wilson of the

Boston Globe appeared in recent issues of the Globe as a

seven-part series, and is being reprinted by permission.

The beginnilw of each of Mr. Wilson's seven installments is

indicated by a Roman numeral.

If government is everybody's business,then the labor movement in government is every-body's revolution.

Every teaoher with a new idea, every tax-payer with a drawerful of bills, every select-man who misses his family, every offioe holderwith an eleotion in prospect--in a word, every-one--is involved. And the revolution is onlybeginning.

Should public employees strike? Why not?Who should decide what is taught? Who shouldrun police stations? MentAl hospitals? Wel-fare agenoies? How much is a good policemanworth to sooiety? Who's really in charge? Whoought to be?

The answers are not easy when governmentis less and less an exercise of authority andmore and more a service industry whose employ-ees do the same kinds of things done in theprivate seotor,

Public employee organization is the labormovement's success story of the 6018, and it isgrowing. In Massachusetts, by conservative es-timate, some 325,000 persons--more alan one-fifth of the working forceearn their livingsin public employment. More than 230,000 drawtheir pay 74'vom state or local government.

Not all of theAe are members of unions orprofessional associt.tions which barger, col-leotively with government employers. But mostare either members or work in jobs oovered byunion contracts. Their numbers, militancy andpolitical effectiveness are increasing oteadily.

For government, and society as a whole,this is a totally new phenomenon, not unrulatedto the ciAil rights movement, student and fac-ulty demands for power in education at all ley-als and the burgeoning movement for citizenparticipation in politics.

Symptomatio of government's unreadiness,unwillingness or, perhaps, incapacity to dealwith its labor relations is this reporter'sfallure in a diligent searoh of concerned pub-iio and private agencies and labor organiza-tions to oome up with an informed estimate oftotal union memberehip in public servioe.

The revolution is too new and is movingtoo fast to develop precise, over-all statis-tios for Maseaohusetts. Hundreds of publioemployers and thoueands of bargaining unitsare involved, and nobody is oounting all theheads.

Nationally, according to the most recentestimate by the Advisory Commission on Inter-governmental Relations, more than a quarter ofthe approximately 9 million state and localemployees are union members. Massachusetts'relatively liberal statutes in the field andthe faot that only 31 states permit public em..ployees to organize, indioates the proportionhere to be considerably more than twioe thenational average,

It may even be greater, Robert J. M,O'Hare, direotol of the Boston College Bureauof Publio Affairs, writing in the a

Rfllit iilliiiftid AligjgHt4 and town em-'al lapull n oto

pleyees soon would be covered by colleotive bar-gaining contracts,

"Thero seems to be nothing on the horizonthat will stop or slow down this movement untilevery eligible employee is oovered," O'Haresaid, noting that, in union certification elec-tions, votes of less than 90 percent eor theunion are rare, He said he knew of no instanoein whioh a Massaohusetts munioipa... employer hadopposed recognition as such,

"The era of unquestioned authority of theMas,sachusetts public employer to deoide thehours, wages and working conditions of its em-ployees unilaterally is overt" , he concluded.

The implications, viewed in the light ofemployee militancy and skyrocketing publio pay-rolls, are enough to make the average taxpayerreflect on the advantages of the hippie oommune.

In the laet 10 years, according to theMassachusetts Taxpayers Foundation, looal realestate taxes have increased statewide from $662million to $1,397,000,000--more than 100 percent.At the state level, in lees than four years,some $400 million in new taxation has been laidon the Commonwealth.

114,000,000 Per !Month

MTP Executi4-0 Secretary Prank J. Zeo oitesfigures to show the state payroll alone, run-ning at a half-billion...dollar annual clip, isincreasing by an average of $4 million a month.

The U,S Bureau of the Census' latest re-port shows a national inorease in state andlocal employmem of 424,000 between 1967 and1968, with an annual rate of increase averaging4,5 percent sinoe World War I/.

In the 17 years preoeding October 1968,the date of the moet recent federal figures,state and local employment in numbers of work-ers increased 107 percent and their payrollsrose by 371 peroent.

In Massachusetts, State employment hasrison from 40,352 in 1959 to a ourrent oonser-vative estimate of 60,000 . almost exactly 30percent. The payroll in dollars at the statelevel has tripled in the same period,

The Census Bureau oounted 138,621 oity,town and county employees in 19591 and 183,603in October 1968. A realistic projeotion fortoday would push the figure past 2000000,Their compensation in the 10 years has gone upby a factor of 133 percent,

It would be a mistake to infer from thedocumentation of growth in the public sectorof the economy that state and looal employeesin Masmaohusetts are overpaid. They are not,

It is true that average monthly compensa-tion ham increased from $375 in 1959 tn $623

20

" 443

in 1968, with 1969's state employae pay raiseand munioipal bargaining settlements assuring asubstantial increase this year.

But the 1968 figure for this state is farfrom generous when oompared with other majorindustrial states, well below, for example,California's $771, New York's $703, Michigan's$702, New Jersey's $660, Illinois' $664 andMississippi's $414,

What appears to have happened since theLegislature granted collective bargaining rightsto municipal employees in 1965 and 1966 and tostate employees in 1967 is that these employeeshave used their newfound militanoe, muscle andorganization to bring their pay up to nationalstandard,

It is important to remember that the col-lective bargaining law for city, town and cloun.try employees permits negotiation of wages andhours, in contrast to the state employees' law,which leaves the setting of pay scales to theLegislature.

The Thrust For Nolwor

But the unions and professional associa.tions representing public employees are underpressure from increasingly aotive and politi-cally sophisticated memberships to increasetheir influelzoe, affluence, scope of negotia-tions and ability to get things done for themembers--in a single word, their power.

Involved is the ideal of increased parti-cipation in public decision making by teachers,policemen, nurses, social workers and otherslong frustrated by the dusty-musty processesof conventional bureaucracy.

This impulse coinoides raatly with theemployees' fight for better economic conditions,and eventually collides with the budget.

Traditional democratic theory jealouslyvests in the Congress at the national level andthe Legislature at the state level the rightto authorize the expenditure of publio morwyand to make policy for the expenditure.

At the local level, generally speaking,this power is exereised by tho mayor and citycouncil, the school committee and the townmeeting, representative or otherwise.

It is difficult to argue that true col-lective bargaining covering wages, hours andthat ultimate and subtle concept "conditionsof employment" (Must a police officer wear aname tag'? To how many coffee breaks is ateacher entitled? More that a social worker/Who shall choose what textbooks and how manyteaching machines at what cost?) is compatiblewith the traditional concept of public controlof public purse and policy through elected rep-resintatives.

To the union activists, this in outmodedhogwash, mere rhetoric designed to keep payscales down and to preserve a discredited sta.tile quo.

21

,

The more oonservative believe they see athreat to the ultimate American Revolutionaryprinoiple of "no taxation without representa.tion," with the public employee unions oast asbad King George,

In fact, the principle is only technicallyhonored in municipal bargaining as town meetingsand oity councils grudgingly, reluctantly andhelplessly vote the funds to honor the contractsnegotiated by their employees in an inflation-ary economy,

What proportion of the escalating cost oflocal government is attributable to collectivebargaining?

The question can be, and is, argued indef-initely by the parties in interest. Most leg-islators with whom you discuss it rank collec-tive bargaining and welfare as the two mostsignificant contributors to the rising cost ofgovernment.

At the same time, there is widespreadrecognition of the fact that, at least untilrecently, public employees have lagged behindtheir counterparts in private industry in com-pensatin.

What is virtually unchallenged from anyquarter is that unions are in government tostay. rne municipal law is a four-year-oldinfant; his little brother at the state levelis only two. What they will be like at matur.ity nobody knows. But most will agree withBC's O'Hare that collective bargaining is Ilaninstrument effecting social changes in areasfar removed from the domain of employee rela-tions."

IIA 1955 Federal law makes it a felony for

a U.S. government employee to strike cr evenassert that right.

Massachusetts law regards t strike againstthe state or any of its political subdivisionsas a misdemeanor punishable by a $100 fine.Forty...nine states specifically ban strikes inpublic service. In California, which does not,they probably are illegal.

A poll tahen for the Pennsylvania Legis-lature last summer found public opinion inthat state overftelmingly opposed to extendingthe right to strike to public employees. Forty-four percent responded that no public employeeshould be permitted to strike, 61 percent op-posed it for teachers and about three out offour opposed it for police, firemen and mentalhospital employees.

Most people, it is reasonable to suspect,tend to believe with Calvin Coolidge that;"There is no right to strike against the publicsafety by anybody, anywhere, anytime,"

Statute, tradition and public opinion tothe contrary, public employees do strike, andwith increasing frequency. Shortly before NewYork cityls garbage collectors and (later)teachers conjured crisis in the streets,

Governor Nelson Rockefeller was quoted as say-ings "A strike or threat of a strike by publicemployees is wrong in principle and utterly in-consistent with their special responsibilitiesas public servants,"

Militants in the public sector union move.ment regard this statement as about as relevantas Franklin D. Roosevelt's 1937 assertion that"the process of collective bargaining, rs usu-ally understood, oannot be tranoplanted intothe public service" and that "militant tacticshave no place in the functions of any organiza-tion of government employees."

To the activists, this is ancient history.

Howard V. Doyle, president of MassachusettsPublic Employees' Council No. 41, American Fed-eration of State, County and Municipal Employ.ees, AFL-CIO, is no bomb-thrower. But this yearhe will file legislation extending the right tostrike to all public employees with the excep.tion of police, firemen and correction officers.

As to critioisms "It does not bother me.If people try to hide behind the statute, peo-ple are going to do it (strike) anyway.

"If the situation is such that the employ-ees believe they're right and the other guy'swrong, I honestly believe they'll otrike andsuffer any consequences necessary.

"Sure, thie is civil disobedience. I don'tbelieve people should be forced to violate the.law in order to settle disputes."

Doyle's right-to-strike bill was summarilykilled in the House last year, and he has nohigh hopes for its passage in the coming ses-sion. But he believes the day is coming.

The state, he says, came within a hair'sbreadth of a major work stoppage on the daythe Senate finally overrode Governor Sargent'sveto to enact the $20 or 12 percent pay raiselast summer.

Had the veto stuck, "we t.puld have had awalkout, there's no doubt in my mind that wewould have had a strike," he says.

The 42,000 member Massachusetts TeachersAssociaticn (MTA), which still prefers not tobe called a union, also filed a strike ban re-pealer in the last session and will again for1970.

The MTA legislation would authorize a pub-lic employee strike after exhaustion of all ad.ministrative iemediest specifically, if noaction had been taken by either party 14 daysafter submission of a fact.finder's report ina labor dispute. No category of employee wouldbe exempted.

In addition, the MTA, with new fire in itseye since the nine-day New Bedford teachers'strike, is going to court to have the Massachu-setts public employee strike ban ruled uncon.stitutional under the First and FourteenthAmendments.

22

The argument advanoed by MTA General Coun.sel Haskell C, Freedman, with support fromRobert N, Chanin, general counsel of the Nation-al Educatien Association, is that the right tostrike is enjoyed by employees in the privatesector, protected by the First Amendment guar-antee of freedom of assembly and petition andcannot, under the Fourteenth Amendment be de-nied public, employees.

The suit, if successful, would invalidateall public employee strike bans, includingthose applying to police and firemen,

Massachusetts has been relatively free ofwork stoppages in the public sector. The nationhas not.

Globe writer Robert D, Walsh's definitivebook on the subject, "Sorry . No Govern-ment Today," reports that between 1938 and1967, when most public employees did not evenenjoy collective bargaining rights, there were567 work stoppages. In the first 10 months of1968, Walsh reports, police and firemen acrossthe nation were involved in at leaet 25 workstoppages or slowdowns.

The year-long study by the distinguishedAdvisory Commission on Intergovernmental Rela.tions, released two months ago, counted 254work stoppages in 1968 alone and reported that"between 1966 and 1968 the number strikesinvolving government employees nearly doubled,with teachers accounting for more work stop-pages than any other group."

All of these were illegal, a fact that ap-parently carried little weight with the parti-cipants.

Advocates of repealing the ban say collec-tive bargaining without the right to strike isa sham that leaves all the trump cards in thepublic employer's hand. They suggest that theright to strike would in practice result infewer strikes inasmuch as employers would beforced to bargain realistically on the issuesand come to agreement.

Pew on the management side, if any, agreepublicly. But a poll taken at a recent NewYork conference of labor mlations experts inthe field favored some dilution of the out-right ban.

The outcome is unpredictable. The outlook,most observers agree, is for more, bigger andlonger public employee strikes with seriousimplications for fUture domestic tranquility.

IllIf public employee unionism is a revolu.

tion, collective bargaining by teachers is afervent crusade to wrest the educational Jeru.salmis from the infidel grasp of civic penny.pinchers.

No organized group of public employees ismore militant than teachers. None has greaterinfluence on our lives.

With sohool oosts amounting to 50.60 per.cent of local spending and salaries taking 80percent of school costs, teaoher contract set.tlements tend inoreasingly to be the most sig-nificant factor in local finance.

The teachers don't mind a bit. Convincedthat eduoation in general and themselves inpartioular have been handed the dirty end ofthe economic stick for years, they are usingtheir new organizational strength to elevateeducational standards..which, of course, in.elude teachers' pay and wolicing conditions.

But dollars and their distribution are on-ly a part of what it's all about for the 1.6million pupils, students, teachers, administra-tors, supporting staff and others involveddirectly in education at all levels in thisstate,

field and Pittsfield. There are others,

To oomplete the picture, the two big edu-cators' organizatons are deeply involved in

merger talks at the state and national levels,Everyone in the field antioipates that soon,probably next yeas', there will be one, nation-wide association (Hebert and most teaohersstill are a bit uneasy about the word "union")in education at every level from pre-primaryto post-doctoral.

This swelling accretion of power tran-scends the educational institutions in whichits members are employed. Teachers vote, And

they pay dues, The MTA collects $34 apiecefrom its members for an annual dues income of

around $1.5 million.

Senate President Maurice A, Donahue, moreaware than most of this emerging power struce

Organized educators assert and are press- ture, on November 5 took his campaign for the

ing the right to bargain on curriculum, text. Democratic nomination for governor to the an-

books, equipment, buildings, "paraprofessional nual convention of the Bristol County Teachers

personnel" like teacher aides and student assis- Association at Somerset High School.

tents, and that vaguely defined and potentiallyillimitable area called "aoademic freedom," Speaking as "a former public school teach-

er who long ago retired to the more serenelite of the elected public offioial," Donahuedelivered a Harry Truman-style, give-'em hellfight talk in praise of what he called "theincreased militancy of the teaching profes-sion, ..."

What, then, is left as the proper rolefor the school committee?

Dr. William H. Hebert, executive seore-tary-treasurer of the 43,000-member Massachu-etts Teachers Association (MTA), has this

reply:

"The proper role of the school committeeis to make policy decisions locally not coveredby standards set by the Legislature or the De-partment of Education. I am unalterably op-posed to school committees becoming involvedin administration.

"The committees' important functions arethe employment of administrators and teachers,recruiting, seeing that statutory requirementsare met and approving football schedules."

His reference to football was only halffacetioue, Hebert sincerely believes the sal-vation of the public schooie is to be found intne extension of teacher participation and pow-er. In 1970, for the fourth consecutive year,he will ask the Legislature to furnish themwith the strike weapon to get it.

Seven years ago the association formallyoppomed collective bargaining as unprofessional.Before rebruary 15, 1966, when collective baregaining became legal for teachers and the MTAhad mAly 30,000 members, there were, of course,no contracts in effect.

Sixty were negotiated in 1966, 160 thefollowing year and today, in virtually everyone of the state's 351 cities and towns, acaedemic personnel are represented or are aboutto be represented either by MTA or by localsof the APLeCIO Massachusetts Pederation ofTeachers (MPT).

The MPT has bargaining rights in Boston,Lawrence, Lynn, Peabody and Salem, and activeunits in Everett, Methuen, Somerville, Spring..

23

"In the old days, teachers were weak, com-pliant and submissive," he said,

"Casper Milquetoast seemed to be the idolof the profession unobtrusive, unassertive,unwilling ever to make a stand for his legiti-

mate rights.

"Teachers were isolated. Teachers wereunorganized. Teachers were never accorded therespect they justly deserved because they wereunwilling or unable io demand the respect prop-erly due their higt rofessional calling.

"But all that is gone now -- and /, forone, am glad that we shall never see those sor-

ry days again.

"Today teachers at long last are begin-ning to come into their own. You are ho longeralone, You have begun to organize efficientlyand effectively.

"You have begun to assert your economicand political power in the new piocess of col-lective bargaining -e a new process whichgives every indication of transforming thevery nature of public education in Massachuesetts and, in my judgment, decidedly forthe better."

Donahue said the state's present collec-tive bargaining law puts teachers at a disad-vantage in negotiations with their municipalemployers.

He praised MTA's drive for a professionalrights fund, which he termed "a self-help mea.sure which in the future will be available toteachers caught in exceptionally adverse

.n ellitirtitN4

economic conditions as the result of the insis-tence upon their rights in difficult collectivebargaining situations,"

The teachers, still savoring their victoryin the nine-day New Bedford teachers' strikeand recaning the $50,000 oontempt fine imposedon their association, had no difficulty grasp-ing Donahue's point,

(MTA is appealing the fine in an actionwhich, if suooessful, would nullify laws ban.nine publio employee strikes in the 49 statesthat have them.)

Pine or no fine, the New Bedford strikeworked from the teachers' point of view, con-quering in less than two weeks what had been22 months of intransigent resistance by theboard.

The other day, Boston's 5,400 teacherswere reported preparing to demand $10,300 as astarting salary in an agreement that would giveteachers with doctorates $26,800 atter eightyears, The package is estimated at $60 million,or $36 on the tax rate,

Boston teaohers are presently among thebest paid in the state, Their current salariesrange from $7,000 for bachelor's degree begin-ners to $13,100 for veterans with doctorates,

.

But this scale lags substantially behind MTA'sminimum salary policy, which calls for a $7,500-$15,000 range. The National Education Associ-ation, MTA's national affiliate, was callingfor $10,500421,000 a year ago.

The teachers' new militanoy, advocacy ofthe right to strike by their leadership and thecoincidence of an election year, in which Bos-ton Mayor Kevin H. White will be battling Don-ahue for the right to try to oust GovernorSargent from office -- these ara observationsadding up to a otormy forecast for 1970.

At the same time, property tax rates arerising at a 14 percent annual clip statewide,with Boston's rate at $144.40, City and towndebt structures are shaking, money is tight,state government is strapped to pay its 60,000employees their new raise, and federal dollaraid to cities is dwindling and generally ear.marked for purposes nther than teachers' pay,

Through September of 1969, Massachusettshad counted only five) brief work stoppages inthe field of education. Many observers believeNew Bedford's experience signaled the beginningof a new and disturbing trend in what has be-come the most unruly and problem-ridden sectorof an uptight society,

IvMassachusetts law attempts to limit the

collective bargaining rights of public employ-ees.

The employees' leaders say this is dim.crimination, unconstitutional, undemocraticand unfair,

24

Critics bold enough to risk the wrath of325,000 politically attuned, potential blocvoters disa6ree, They say publio employees ex-eroise more than enough power to offset anydisabilities they may suffer at the bargainingtable,

The collective bargaining issues are il-luminated in the legislative program of theMassaohusetts Public Uployees Council No, 41,American Federation nf State, County and Munic.ipal Employees, AFL-CIO, Howard V. Doyle, pres-ident,

Doyle leads the biggest union in stateseciice, a statewide organization whose member.ship has grown from 9,000 to 20,000 since 1961.AFSCME units have bargaining rights for 22,000state employees -- more than a third of thetotal, When he speaks, legislators, governorsand even bankers listen,

Arnie in 1970 will ask the legislaturetos

- Repeal the ban on public employeestrikes, save for those affecting police, fire.men and correction officers.

- Require that provisions of collectivebargaining agreements shall prevail in any con-flict with municipal charters, Civil Servicerules, local ordinances, rules and regulationsand general statutes. The opposite is now thecase.

- Grant public employee unions the rightto negotiate agenoy shop contracts under whichemployees refusing to join unions would be re-quired to pay, usually by checkoff, the equiva-lent of union dues.

Defenders of the strike-ban repealer in-clude Attorney Alexander J. Cella, assistantto Senate President Maurice A. Donahue, Twoyears ago, Celia, in an article in "The Munic.ipal Voice", published by the MassachusettsLeague of Cities and Towns, warned that "Mass-aohusetts citizens would be dangerously delud-ing themselves if they were to believe that theproblems of public employee strikes have beenirrevocably eliminated by statutorily definingthem away."

Cella calls "the right of municipal em-ployees to strike 6 a fundamental prere-quisite to peaceful and responsible collectivebargaining" and believes that it would resultin fewer work atoppages in public service,

ASPOMEls second goal would vastly increasethe scope of negotiations, that is, what theunion could ask for and bargain on, More andmore civil service, once regarded as the em.ployees' shield, is regarded, in the words ofone AFSCME leader, as "nothing more nor lessthan the personnel arm of the public employer..."

The union also would like to be able tobargain with the state on wages, hours, mileage,overtime, differentials, pensions and fringesnow being set by statute by the Legislature.

Advantages of the agenoy shop to the unionscan be deduced from the sd;atistio that AFSCMEhas 12,000 dues-paying members in units repre-senting 22,000 employees in the state. Thebill would virtually double the unions' dueo in-come and eliminate "tree riders,"

The goals seem not unreasonable if thestandard of judgment is comparison with unionrights in the private sector. The unions' orit.-ios insist that suoh a oomparison is decept4v,

In the first place it reckons without themembership's political power at the ballot box.A standard rule of thumb has for years beenthat one job equals five votes.

Perhaps no monolithic bloc of 1.5 millionvoters exists. But it is not unreasonable tosuggest that public employees already exercisean offeotive veto on political ambition in thisstate if they choose to exercise it. Except,perhaps, in such places as Duxbury and Boxford,

Second, labor conducts an effective con-tinuing lobby in the Legislature and withinstate service. Its influence can be applied orwithheld at such pressure points as civil son.vice, the bureau of personnel, the committeeson ways and means, the governor's office andelsewhere in the structure.

Third, the statute banning strikee is afiction, and everybody knows it -- althoughlabor has, under extreme provocation at times,generally observed it. Massachusetts came tothe brink of statewide work stoppages last yearin the legislative fight over the state payraise.

The penalty for violation of the ban is a$100 fine. Nobody can remember when it wasimposed, and it probably never has been andnever will be,

A "Credible Deterrent"As a result, in bargaining situations,

both sides know that a strike is a possibility,given increasing militanoy on the part of em-ployees. It is, as the Pentagon jargon goes,a "credible deterrent."

City and town officials are finding it in..

creasingly difficult to hide behind the lang-uage of charter, statute, rule or ordinance intheir dealings with their employees. Increasi.,

ingly in negotiations, the practice is to ig-nore the rules and the law, reaching agreementsthat are probably unenforceable at law.

It is expensive and annoying to go tocourt, and far easier for government employersto agree tacitly with unions not to avail them-

selves of their right to sue,

There els', is the delicate question ofmoney. Public employee unions have lots of itand they are free to spend it as they see fit.

Public employee unions are exempted fromthe audit, reporting and disclosure require..ments of the U. S. Labor Management Reportingand Disclosure Act of 1959. The reason is an

25

odd one. At the time, the drafters of the actdid not even suspeot that unions would wincollective bargaining rights in government ear-vice. The very idea was repugnant to congress-men who regarded it as an unacceptable invasionof the ancient concept of sovereignty.

Only three years later, however, on the urg-rift of then-Labor Secretary'Arthur J. Goldberg,President John F. Kennedy issued Exeoutive Or-der 10988, authorizing collective bargainingin the Federal service, No other document hashad such far-reaching influence on public em-ployee unionism.

All public employee unions remained exemptfrom the audit, reporting and disclosure re-cruitments, whioh make other unions' financialrecords public records. In 1969, however,President Nixon issued an executive order re-quiring, among other ',hinge, disclosure at thefederal level.

Unions of state, county, oity and town em-ployees, whoee dues inoome in Massachusettsalone must be reckoned in the millions annuallyand could skyrocket if the agency shop billshould pass, are still not required to accountto anyone, not even their own members, tor whatthey do with their funds.

For 3,450 state employees, to cite a smallexample, the state treasurer's office deductsfrom their pay checks and turns over to theirUnions a total of $14,000 per month. An agencyshop would boost this figure by a factor ofseven, to $100,000 a month.

Because of Massachusetts' traditional fis-cal autonomy for school committees, their nego-tiators, who in effect deal direetly with thetaxpayers' money contracts, are subject neitherto review nor to revocation by the appropriat-ing authority, be it city .uncil or town meet-ing. In practice, other municipal negotiationsprove similarly binding.

Finally, public employee unions and theirofficers make campaign contributions. Thereis nothing illegal or even improper about this.If nursing homes, tool-and-die mai,ers, textileworkers and bridge-builders can attempt to usemoney to influence legislation, then whyshouldn't public employees, whose bread andbutter is more directly involved?

Even a cursory examination of campaign ex-pense returns yields abundant evidence of thiskind of generosity. For exa.:Tle, Howard V.Doyle, for Arson, contributed $1,003 to theCommittee to Retain a Democratic Senate en No-vember 15, 19886 The oommittee also reportedreceiving $200 from the Massachusetts PoliceAssociation, $300 from various firemen organize.tions and $300 more from William 146 Hebert, nototherwise identfied but presumably the execu.tive secretery..treasurer of the MassachusettsTeachers' Association. A Mike Bothelo ofAPSCME added $200, according to the records onfile with the Supervisor of Public Records,

The Committee to Retain a Democratic Housealso got $200 from the police group, $300 fromHebert, $100 from the Department of PublicWorks Engineers Union and $1,000 from one

fr',0

Louis Poirier fur APSCME,

Hebert, with a flair for bipartisanship,deposited $200 with the "Fighters for a Repub-lican Senate," a gesture which seems quixoticin retrospect, inasmuoh as the "Fighters" elec.ted only 13 senators to the Democrats' 27.

The records also show S. nate PresidentMaurice A. Donahue receiving in 1968, $500 fromSalvatore J Oamelio, state AFL-CIO president.Camelio's son, Augustus J. Camelio, is AFSOMEcounsel and represents the union before theState Labor Relations Commission. Donahue alsogot $300 from the Building Service EmployeesUnion and $300 from Jerry Wurf of Washington,D,C., then international APSOME president andone of the nation's leading advocates of publicemployees' right to strike.

Again, it should be emphasized that thosecontributions are perfectly legal.

But unhindered by the audit, reporting anddisclosure requirements imposed on other labororganizations, public employee unions are in aposition to mnke covert cash contributions tooandidates without leaving a trace on the pub/.lic record, or to act as a channel for suchcontributions from other sources. Perhaps theydo not. It would be nice to think so.

Public sector collective bargaining hitMassachusetts in 1966 the way the 1938 hurricanehit Cape Cod. Nothing quite like it had everhappened before and the inhabitants were woe-fully unprepared. Almost four years later, thesituation is not much better.

When the tidal wave started swirling aroundthe front porch of the Sargent administrationlast summer; the governor did the appropriatethings he appointed a committee of distin-guished experts.

At this writing, the committee, formallythe Governor's Advisory Counoil on Labor-Management Relations, has held two meetings,requeated an agenda and asked for an executivedirector and staff, There isn't a light-weightin the group, and they are all busy men.

Blame, if any, for the state's defense-lessness in lhe rough-and-tumble of collectivebargaining must be laid at the doorstep of theVolpe administration, which did little if any-thing to prepare for the onslaught.

Most of those familiar with the situationbelieve that the then-governor, now Secretaryof Transportation, was reluctant to risk polit-ical retribution by any action that might beinterpreted as antialabor.

Meanwhile, the 160000 members of the Mae..sachusetts State Employees Association, the120000 state employee members of the APL-CIOAmerictn Federation of State, County and Mum..icipal Employees and the thousands of otherdues.epayers of other unions in state service,newly militant, were after their leaders to getsome things done for them,

26

Their numbers are growing daily, along withthe unreoolved problems in the situation. Theywant better pay and more influence in deoision-making. The state, newly cast in the role ofemployer, has not, it seems, quite made up itsmind what it does want.

In terms of professional labor relationsexpertise -- with which the unions are well sup-plied -- the state is virtually bankrupt.

Ratio: Two Pot 60,000

No criticism is intended of Edward E, Kuyp-ers, newly installed supervisor of labor relations, who, with a single assistant and, untilrecently, no secretarial or telephone-answeringattar, operated out of a small room on theState House's fifth floor. The point is thatKUypers, who used to handle 'labor matters forFirst National Stores, and the assistant, Jos-eph Harraghey, are all the 60,000-employeestate government enterprise has to call on interms of professional help in a technical field.

Kuypers estimates that 30,000 employees arenow in certified bargaining units involving 24different employee organizations, He says15,756 employees are currently covered by 32contracts and almost as' many, 14,244 by hiscount, are in 114 units still conducting nego-tiations with agenoy heads.

The agency heads, men like Dr. MiltonGreenblatt, a psychiatrist who is commissionerof mental health, and Dr. Alfred L. Prechette,an obstetrician and gynecologist who is commis-sioner of public health, would be the first toadmit, perhaps even plead, that they are notlabor relations specialists.

Yet the law requires them to bargain withany labor organization that wins certificationfrom the state Labor Relations Commission. Andmost of what they have to bargain with (sincepay, hours and fringes are set by the Legisla-ture) is their own authority,

Administration Commissioner Donald R.Dwight calls labor-management relations "thegreat hidden crisis of state government," LastApril, he ordered all agency heads to submitcontracts to Kuypers for approval before theyare signed.

In fact, however, Dwight haa only impliedauthority to require such approval. At the timeKuypers was merely a consultant to the state.Under the law the department head is the con-tracting authority and in the politically super-charged atmosphere of Beacon Hill, some depart-ment heads prefer to deal with unions indepen-dently of Dwight's office,

The other side of this oein is that thevast majority of department heads are novicesat dealing with unions and welcome and eagerlysolicit Kuypers' help, The problem ie thatthere is just so much that one man and an asiisiatant can do.

The unions, for their part, suspect thatthe state's apparent naivete in the fieldamounts to deliberate stalling,

.29

Kuypers and the unions, or most of them,would like to see a separate collective bargain.ing division set up in the office of Adminis-tration and Finance, with expert labor rela-tions people directly assigned to the major de-partments, This proposal is currently underdiscussion with the Joint Ways and Means Com-mittee of the Legislature, whioh is believed tobe reoeptive.

Kuypers envisions a director of collectivebargaining, a deputy, full-time attorney spe-cializing in labor relations, perhaps a half.dozen experienced professional negotiators, menwho in the private sector would have jobs ascorporate personnel directors, with supportingsecretarial and clerical help.

This does not seem unreasonable, even tothe most cynical oonvert to Parkinsonism, whenyou consider the size of the state governmententerprise and its growing half.billion-dollarannual payroll. It would be totally inadequateif, in some future year, state employees shouldwin the right to bargain on wages, hours andfringes, as is far from unlikely under the pro-gram budgeting that will come in under the newcabinet-style reorganization act, due to becomeeffective in 1971.

At the municipal level, the situation moredirectly touches the tax rate and ways cities

and towns do business. It is complicated bythe voting power of city employees in municipalelections and at, often, sparsely attended town

meetings.

Education Commissioner Neil V. Sullivan,a strong believer in teacher collective bar-gaining, took a headcount last summer and dis-covered that more than 350 school committeemembers had resigned since the first of theyear, most of them because of the new pressuresbrought about by collective bargaining.

The average school committee member knowsnothing about labor relations or collective bai .gaining law. Indeed, a school committee memberis not supposed to be either an expert in suchmatters or a professional educator.

Sullivan says he is disturbed that in manyoases, those new members moving into vacanciesare less qualified and dediaated to students'welfare than those who have retigned.

Meanwhile, organized teachers, nationallyand locally the most militant of public employ-ees with the possible exception of police offi-cers, appear at the bargaining table clothed inpolitical power and advised and counseled byprofessional experts. Municipal corporationsparticularly small towns -- have no such re-sources available to them and probably can'tafford them.

In Boston, attorney Allan W. Drachman hasbeen chief negotiator for the city under Mayors

Collins and White, The city deals with 22unions representing its 15,000 employees. Allof them vote and most of them live in Boston.

27

Patrolmen Want $12,000

The city and the Boston Police Patrolmen'sAssociation, representing some 2,600 policemen,were still trying to settle their differenoesin December, following a faot-finder's recom-mendation of a $10,300 salary, The patrolmenwant $12,000, and they have been waiting sinoeMarch 1969, The currently get $8,320 base payand are very unhappy about it, Their contractexpires in Maroh 1970,

Daniel P. Sweeney, chairman of the associ-ation, prefers not to talk about the possibil-ity of a strike, The association's constitu-tion, in fact, forbids such action.

"I hope we're never driven to such ex-tremes," he said the other day. "But Iom deal-ing for 2)600 men who have minds of their own.The city can be very abusive, too,"

Meanwhile, Boston's contracts with elec-trical inspectors, nurses, printers and, indollar terms most significantly, teachers arerunning out next year.

The possibility that next fall Boston'smilitant teachers might follow New Bedford'ssuccessful example and stay away from classeswhile police officers suffer a mass epidemicof the "blue flu" gives the oity fathers recur-rent headaches, although the threat is a yearaway and may never come to pass.

But the unions know that Mayor White willbe running for governor and that the Democraticprimary will be held in September. Under thecircumstances, it is perhaps fortunate thatBoston firefighters have a contract that doesnot expire until March 1971.

VIAdministration Commissioner Donald R.

Tidght, who runs the state goverment for Gov-.ernor Sargent, or tries to, was unusually out-spoken last October 15 when he addressed thefirst meeting of the Governor's Labor-Manage.ment Advisory Council.

Speaking of the collective bargainingproblems arising with increasing frequency andurgency at the state and local levels, he toldthe assembled experts that the problems "arejust now beginning to emerge.

"While I may curse the day the law wasenacted," he said, "it is absurd to run awayfrom ita implications.

4,1ust as certain as we sit here today, theultimate breakdown in employee relations, astrikel'is going to be faced by the governor

"If we had sound labor structures withinthe executive branch, the need for this councilwould be obviated. But we don't,

"The Department of Labor and Industriesand its subordinate divisions and boards, aredismal.

ao

"They have been the dumping ground forlabor hacks, and the quality of their effortsreflects thik, condition, Republican governorshave been the worst offenders in making appoint-ments ,,,"

Dwight asked the council to review thestruoture of the existing agencies in the de.partment, Presumably it will.

Now Dwight is a newspaper publisher, aformer Department of Public Works commissionerand a Republican politician as well as "deputygovernor." He is not a man who treads on toesby accident,

Tne fact is that his opinion of the depart-ment, and, one infers, its subsidiary Labor Re-lations Commission and Beard of Conciliationand Arbitration, is widely shared,

Chairman ot the board of Conciliation andArbitration is George M. Romanies Jr,, a Bostonreal estate operator and Republican politicianwith many enemies in his own party whose ap-pointment is regarded as a reward from formerGovernor Volpe for services rendered in the1966 campaign.

The board's professional staff tries tohead off strikes by mediating labor disputes,Many of these career employees are highly re-garded,

The board also appoints $125-a-day fact-finders in public sector collective bargainingsituations, and has done so 78 times Sin00 themunicipal collectivebargaining statute tookeffect February 15, 1966,

The Labor Relations Commission has a dif-ferent role. The three-member commission con-ducts elections and cevtifies bargaining agentsin the private and public sector, rules on ap-propriate bargaining units and hears chargesof unfair labor practices.

Chairman of the commission is Mrs. Made-line H. Miceli, a hard-working and conscien-tious woman whose appointment also is generallyconsidered to be the payment of an old politi-cal debt by Volpe, in whose campaigns she. worked enthusiastically.

Most recent Volpe appointee is Henry C,Alarie, a longtime member of the Worcester Lic-ensing board and furniture dealer in that city.His previous experience in the field of laborlaw and collectivebargaining, like Mrs. Mi-celi's, ia negligible.

The third member of the board, Stephen E.MeCloskey, is a longtime labor figure appointedby former Governor Furcolo,McCloskey's origi-nal appointment was regarded as a reward forhis support of the sales tax,

The commissions members do not get on verywell with each other and with the commission'scareer staff.

Labor organizations and munioipal employersalike oomplain of long delays in deoision-making,inoonsistenoies in decisions and a laok of pro-fessional sophistication on the oommission,

"A joke" was the description given by oneprominent statewide figure in the labor move-ment when aaked his opinion of the board, Atop negotiator for a major city guardedly ex-pressed the opinion that the commission "is notregarded as very professional at City Hall,"

The reluctance of these critics and othersto be quoted by name is perfectly understand.able inasmuch as they and theorganizations towhich they owe loyalty are likely to appear be...fore the commission at any time.

A month ago, the commission had no figurescovering the number of certification electionsit had held in state service in the year endedlast June 30. It was working on them, an offi*.cial said.

Salaries in the agenoy are depressinglylow, with corresponding morale. Procedures arecumbersome and time-consuming, leading munici-pal employers and unions alike to suspect,rightly or wrongly, that delays are politicallymotivated.

Nevertheless, in the fiscal year .411dedJune 30, thecommission handled 149 cases andconducted 108 collective bargaining electionscovering 11,64 municipal employees, aocordingto Alfonso D'Apuzz, executive secretary.

In the previous fiscal ycar, electionswere covering 10,900 state employees end 9,865municipal employees in 148 city and tom casesand nine affecting etate agencies. By contrapt,the certification load in the private sectorwas negligible.

Past attempts to abolish the board andreorganize it have foundered.in the Legislature.A new attempt is likely to win some attentionthis year.

It calls for an administrator co-terminouswith the governor, a five-membercommission toreplace the current three-member panel and ade-quate examiner, stenographic and legal staff,preserving the rights of present employees.

It would set up rigid standards for boththe administrator and the commissionersstandards which would exclude Mrs. Miceli andAlarie from serving on the new panel. Singlemembers could hear and decide cases. Commis-sioners terms would be staggered.

That there is partisan political motivaotion behind the reorganization attempts is, ofcourse, obvious. It would create a $21,000job as administrator and increase commissioners'pay from $9,000 ($10,000for the chairman) to$20,000 ($21,000 for the chairman),

Should a Democrat win the governorship in1970, the reorganization would pave the wayfor partisan takeover of the commission thefollowing year. For this reason the reorganitmeation, which will have the support of organized28

labor, is likely to have a good chance of pas-

sage in the forthcoming session.

And if Commissioner Dwight's views are anyguide to Sargent's thinking, the governor will

probably sign it.

VIIAdvocates of full collective bargaining

rights for public employees -- including the

right to strike and the primacy of contractterms over Civil Service rules and legislativeenactments -- base their argument on the anal-

ogy between the government worker's job and thesame job done by an employee in private indus-try.

What difference does it make, ask the mil-itants, whether a dishwasher handles the gov-ernment's dish or some restaurant's? He getsthe same dishpan hands and the same sore feet.

The position is summed up more formallyin the Massachusetts Teachers' Adsociation'slawsuit to overthrow the law barring publicemployee strikes on constitutional grounds.

Public serviees do not go away when demandfor them ceases (if it ever existed), Statutes

remain on the books, job descriptions remain intables of organization and jobs remain filled,

Demand Unimportant

Indeed, some students of the current pie-ture trace the anger and frustration behindmuoh militancy to the very uselessness, trivi-ality and monotony of the tasks performed,

The "service" provided by the public sec-tor is provided regardless of whether govern-ment finds new things to do, More and moreindividuals find self-perpetuating roles inpublic service -- roles which must, by law, beplayed and paid for.

As organized public employees grow in num-bers, political solidarity and power to exactcompensation from the general weal, it is dif-ficult to predict where and how limits can beset to their aspirations,

Management in the public sector in a demo-cratic society is delegated in theory to theelected representatives of the people, This

Citing the First and Fourteenth Amendments,MTA says in effect that to deny the public em-

system has not been working very well.

ployee a right (to strike) enjoyed by his pri-vate counterpart is unjust and unfair, a denial,

More candidly than most, teachers are tak-

in fact, of a civil right.ing the position that such management of publicbusiness is olumsy and obsolete, They see in

The same argument would presumably applycollective bargaining a means for achieving

to other limitations on public employee collec- professionalism in government work -- concepts

tive bargaining. And the argument that author- difficult but perhaps not impossible to recon-cile.ization of strikes would in practice produce

fewer work stoppages and more effective bar-gaining is persuasively made.

In other fields, too, the notion of em-ployee participation, usually described in

There is another view, however, a view few terms hitherto reserved for the medical, legal

in politics care to advance lest they face or- and scientific professions, is g-ining wide

ganized retribution at the polls. acceptance always to the disadvantage ofexecutive, legislative and budgetary control.

If government has become a service indus-try, which it largely has, it differs fromother service industries in that its productmust be provided by law, whether or not thereis a market for it. And, whether by contractor by statute, the employees providing the ser-vice must be paid.

Government employees do not provide ser-vice in the same way that, say, cleansing shopsdo. They forbid, regulate, inspect, require,prevent, seize, investigate and sometimes har-ass. Often their services are resented, op-posed in the courts, circumvented and ignoredby a public that wants no part of them.

On the day this was written, the AmericanFederation of Teachers, from Washington, an-nounced a 00,000 starting salary and a four-day week as collective bargaining goals, Andit seems unlikely, in view of recent experience,that a policeman will put on a uniform for lessthan 02,000 after 1970,

The Massachusetts State Employees Association is bucking for a 35-hour week, with over..time after seven hours. Its APh-CIO competitorcan twe expected to raise this bid as the twoorganizations battli. for members and dues,

If a cleansing shop's employees raise theGoing Along

operator's cost of doing business beyond thethis new mobilization of power,

where. If cleansing itself becomes prohibi-going rate, people will take their clothes else- Paced with

government in Massachusetts has tended to ig-

tively expensive, people will go slovenly or nore the problems at the state level while thecdress in wash-and-wear. And the cleansing shop ities and towns flounder, fuss and holler for

will go out of business, more aid from Beacon Hill,

This is not the case with government, Where a conventional employer would take

whose customers, not excluding public employees, measures to do battle with unions, the public

are also capitalists, employers, and, through employer ftft who needs not competc in the market.

legislatures, entrepreneurs and boards of di- place ft- finds it simpler and politically more

rectors,judicious to go along,

29

"el,44o

Meanwhile, leapfrogging, whipsawing anddouble.deoking, flexing their politioal muscles,endorsing and bauking oandidates with word anddollar, the people's servants move steadily to-ward becoming their masters,

This is admittedly an extreme view, Butgiven the youth and rate of growth of the labormovement in public service, it in not so fan-tastic as it seems.

Certainly it would not be too much to askof public employee unions that they tell theirmembers and the general public what they dowith the dues they collect. New York has sucha requirement.

Certainly it would not be too much to askof the Legislature that it debate fully andcourageously the key issue of whether the CivilService system, as the state has come to knowit, is to survive or be replaced in pragmaticessentials by collective bargaining.

Certainly it would not he too much to askof the executive branch of the governmentincluding department heads at all levels -whotend to be more loyal to their subordinatesthan to the taxpayers -- that they adopt 4 man-agement attitude in collective bargaining sit-uations.

And it does not seem, at least to thewriter, unreasonable to consider whether ornot, as a contractual condition of employment,government workers should be required to waive

3330

the right to strike on penalty of losing rightslike seniority, accumulated leave, insuranoe,pensions or other preoious fringes,

Such a suggestion sounds radically con-servative, And yet, in the future, it the peo-ple's writ is to continue to run, the govern-ment must be able to govern itself and controlits own growth and cost. Lacking the built-incontrols of the market, government as employermore and more seems weaponless against its ad-versaries, After all, no one is required towork for the government,

In the light of recent experience in NewYork, and, perhaps more instructively? in Italyand Canada and earlier in France, an enlight-ened government would do well to consider howmuch additional power it can afford to cede toits employees,

If it does not, city, state and nationface the unrestricted proliferation of a self-perpetuating bureaucracy, determining its ownpay and powers, an arrogant and irremovableelite, insnoceptible to popular control andresponsible to no one.

Better perhaps, the amiable and incompe-tent hack than the civil servant on the Prus-sian or Austrian model, an authoritarian, bomb*proof official secure in his status, dispensinggovernment as it suits him at a cost wholly un-related to benefit conferred.

Franz Kafka would understand GovernmentCenter,

The Impotent School Board

The chapter which follows was written by Robert

Bendiner, a member of the editorial board of the New York

Times. It was adapted from "The Politics of Schools: A

Crisis in Self-Government", which was scheduled to be pub-

lished by Harper & Row, Inc.

Of all the agenoies devised by Amerioansto guide their publio affairs, few are asvague in funotlon as the sohool board and fewtake oi,ioe in an atmosphere of swat resound-ing indifferenoe. Yet, ironioally, probablyno other unit of government is oapable ofstirring oommunity passions to so fine a froth.

This strange effect, often disproportion-ate to the board's aotual impaot on events, isat least partly explained by its unique rolein the prooesses of government. For theschool board is really neither legislative noradmiuistrative in funotion, and only Jn themost limited way, judioial. Almost entirelyoutside these normal categories, it has homierand ler' precise functions not usually foundin oivios textbooks at all; it is local phil-osopher, it is watohdog, and it is whippingboy.

For at least a century before the currenteducational revolution began, American schoolboards led reasonably tranquil official lives,addressing themselves for the most part tosuch matters as building plans, voucher-sign-ing, plumbing repairs, and the eternal raisingof funds. But they left educational policyand the day-to-day operation of the schools tothe superintendent - no self-respecting super-intendent would have had it otherwise. Moreimportant, the boards generally managed tokeep their commitments within the bounds oftheir resources.

The urban or suburban school board of to-day, by contrast, must frequently commit it-self to actions that it may not be able tocarry out, that cost money it does not haveand may not be able to raise. It has beenpushed into that most hopeless of all posi-tions for a unit of government - an incongrui-ty between responsibility and power. From theconsequent strife on several fronts - equalityof opportunity, finances, and the new militan-cy of teachers - the question that inevitablyarises is whether the local American schoolboard, at least in its present form, can - orshould - survive,

It is the last of these that I would dealwith here. For within the past decade thelong and genteel tradition of the school boardhas been most drastically shaken up by theswift development of collective bargaining andthe introduction of the omnibus contract. Itis oommon now for a board to be engaged formonths in haggling with canny negotiatorsbrought in from distant headquarters of theNational Education Association or the AmericanFederation of Teachers. And it must not onlypass on such large issues as salary schedulesand grievance machinery, but in many cases ne-gotiate the minutest aspects of the schoolday, (Will all teachers be exempt from lunch .

time cafeteria duty? Will the school systemreimburh teachers for dentures lost in lineof dutyl etc.)

The result, often enough, is that a boardfinds itself desperately trying witti one handto resolve conflioting interests JA the 00Milltiednity . in the matter of racial ba.kance, forexample . while trying with the other to sat .

isfy its faoulty on a proposed contract run-ning to several hundred items. And failure tosatisfy the teachers on some of these pointsmay moan an 000urrenoe unimagined until thisdeoades a protraoted teaohers' strike, oom.plete with shouting piokets, oourt orders andoounter-orders.

So fast and feverish has been the trendtoward teacher militancy that it is hard toappreoiate bow fresh a phenomenon it reallyis. As recently as 1961 the National Bduoa.tion Association took the restrained viewthat; "The seeking of oonsensus and mutualagreement on a professional basis should pre-elude the arbitrary exeroise of unilateral au-thority by boards of education and the use ofthe strike by teachers as a means for enforo-ing eoonomio demands," And the American Fed-oration of Teachers, whose affiliates were andare essentially trade unions, was hardly moremilitant than the NBA, which prided itself onbeing a professional rather than a labor orga.nization.

Since then all such academic inhibitionshave gone up in the smoke of battle. Twoteachers' strikes occurred in 1963, sendingshock waves through the fraternity, In 1966,there were 33. In 1967, the lid blew off,with more than 80. In the spring of 1968,when most eyes focused on Morningside Heights,30,000 teaohers throughout Florida partici-pated in a "mass resignation," described byDr, Sam M. Lambert, executive secretary of theNBA, as "one of the biggest show-and-tell dem-onstrations in the history of education." TheAPT's chief contribution to teacher militancythat spring was a two-week strike by thePittsburgh Federation of Teachers to back de-mands for a collective-bargaining election.

By last fall the teacher rebellion hadreached the point where 170,000 men and women- ten percent of the nation's teaching force -were on the pioket line when schools reopenedafter the summer vacation, Although strikesof varying duration punctuated the fall sea-son, all of them paled beside the three mam-moth strikes called by New York's United Ped-oration of Teachers, which kept some 30,000teachers and a million pupils out of classesfor 36 of the first 48 school days of theterm,

It is not a simple matter to explain thissudden turn to aggressive trade-union tacticsby people whose professional association hadnece stated!

The teacher's situation is completelyunlike that of an industrial employee, Aboard of education is not a private em-ployer, and a teacher is not a private em.ployee. Both are public servants.

There had to be reasons for the shift.In any case of labor unrest, the source oftrouble is reasonably certain to be insuffi.cient money or dissatisfaction in the work, orboth, the two factors often operating in asomewhat reciprooal fashion, Teaohers used tobe satisfied with low pay, or at least theyware not acutely dissatisfied with it, They

32

85

either shared a general view of their inads-quacy that amounted almost to a national trot-dition, or they gained enough personal rewardfrom their efforts to oompensate for theirmarginal salaries, But society ohanges fortoaohers, as it does for the rest of us. Amarried man working in a Manhattan school in1969 oannot be expeoted to have the same viewof the world (and his place in it) as that ofan Iowa sohoolmarm of the 19th oentury, Hisschool is not the intimate, personal haventhat gave her a feeling of warmth and a senseof belonging. On the contrary, it is huge,meohanically administered, organized from thetop down, and usually distant from his owncommunity,

At the same time that the modern teach-er's alienation grows in intensity, the de-mands on him grow likewise. He is expeoted tomake up in the classroom for all the tragical-ly damaging elements in his students' environ-ment: bad housing, undernourishment, lack ofstiwulation at home, and self-images warped bythe gross injustioes of society, In the corecities, moreover, he is likely to face disci-plinary problems undreamed of 20 years ago.

Academically, he must be far better pre-pared than his early predecessors, not onlybecause subject matter is vastly more compre-hensive, but beoause longer preparation for ateaching career is a oondition of his hiring.The typical classroom teaoher today has nearlyfive years of education beyond the high-schooldiploma, where, not so long ago, two years ofnormal sohool suffioed.

True, the training of teachers is lessdemanding than that of other professionals,and eduoation majors are generally rated lowin academic) proficiency among undergraduategroups. Yet there oan be no doubt that byskill and preparation a teacher deserves bet-ter treatment than he gets from a society thatmore than adequately rewards its footballplayers, television repairmen, and swimming-pool salesmen,

Teachers' salaries have gone up everyyear in the past deoade - 61,6 percent fromthe school year 1957-58 in dollars, 38 percentin purchasing power, based on the ConsumerPrice Index, In 1957.58, 59,1 peroent ofclassroom teaohers were getting less than0,500 a year: today not more than 2.3 percentare below that level, und about 21 percent aremaking more than 118,500.

Even so, neither ov the great teacher or.ganizations is prepared lo oonnedo that theupward movement has more than iiotten up a headof steam, A probable factor in the growingmilitanoy is the inorease in the number of menteachers, whose finanoial needs are likely,sooner or later, to be greater than those ofwomen (and whose urge to aot on those needs iscorrespondingly sharper), While the number ofwomen teachers increased by 38,4 percent inthe past decade, the number of men went up73.9 percent, And many of themospeoially theyounger ones, are fresh from campuses whererevolt is fast becoming an aoademic way oflife,

33

UFT Shows the WayIt is unlikely, however, that teaeher

militancy would have oome to much if New YorkCity's United Federation of Teachers, a localaffiliate of the AFT, hud not demonstratedthat teaohers 22311,11 strike, whether or not thelaw prohibited-iiidE action, and that it couldwin its demands in precisely the same way thatsimilar demands are won by coal miners, team-sters, packingmhouse workers, and newspaperreporters,

In 1960, the Federation, just formed outof a merger between the NewYorkTeachers Guildand the High School Teachers Association, re-vealed the vacillation of the city's Board ofEduoation and the corresponding effectivenessof a walkout, The issue was over the princi-ple of collective bargaining and the Federa-tion's demand tor an election to determine theohoioe of a bargaining agent, The Board read.ily assented, but the union, oharging unduedelay, exhibited its youthful musole by call-ing for a one-day work stoppage. Less than5,000 of the city's 37,000 teachers responded,but when the Board yielded without a hint ofdisciplinary action, the shape of things tooome was clearly disoernible.

In the ensuing election, the UM' made ashowing of some 20,000 supporters, which wasabout four times the number of its dues-payingmembers. When bargaining negotiations brokedown in the spring of 1962, the UM' was readyfor action. Here was no "professional holi-day," or "withdrawal of services," but a full-,fledged strike by 20,000 teaohers. By the endof the first day, both the Mayor and the Gov-ernor felt oompelled to bring about an agree.ment on salaries, though tl,q full terms of theoontraot were to require maay more weeks ofdetailed negotiation.

The New York suooess had an electric) ef-foot on teachers throughout the oountry . inthe NEA as well as the A. Both organiza-tions hastened toward militant action, andcompetition beteeen them, the need to outdoeach other in the gains promised to teaohers,has since become a prime source of difficultyfor school boards,

In 19670 the NBA sharply revised itsstand on the strike as a weapon for teaohers,At its oonvention that year it sounded thistrumpet calls "The NEA reoognizes that underoonditions of severe stress, oausing deteriomration of the eduoational program, and whengood-fsith attempts at resolution have been re-jeoted, strikes have 000urred and may 000ur inthe future, In such instanoes the NEA willoffer all of the services at its command tothe affiliate oonoerned to help resolve theimpasse," If the statement fell short oftrade-union purity, it was still a far cryfrom that "seeking of consensus and mutualagreement on a professional basis" which hadformerly been the Association's closest ap-proach to class warfare, By 19680 it is worthnoting, a poll showed that the preoentage ofpublio-sohool teaohers endorsing recourse tothe strike rose to 68,20 up 15 percentagepoints from 1965.

06

The result is that the atmosphere sur-rounding publio education is undergoing a

marked and aorid change. Without desiring it

or expecting it, the school board finds itself

in an adversary position, The "old buddy" at.mosphere that once characterized a board's re-

lations4.43 with employee groups has largelygiven way to a wary suspiciousness. One su-perintendent, Dr, John Blackhall Smith, ofBirmingham, Michigan, provides this glimpse of

that atmospheres

The docile, timid teaohers' committeeof three years ago has been replaced by aknowledgeable, hungry negotiation team,

extremely well-trained, and headed by an

aggressive, well-rehearsed, full-time ex-eoutive of the local Association or Feder-

ation,

Boards of Eduoation find themselvesunprepared, uncertain, disorganized, unor-ganized, and badgered from all sides withsuggestions, directions, and ample criti-

cism. In the middle of it is the superin-tendent of schools who finds himself notonly thrust into a role demanding greatskill and training, but divorced from con-tacts and associations with his teaohingstaff and in some instances, even with his

administrators,

Dr. Smith's description goes to the heart

of the board's plight. Teacher organizationshave at their disposal all the data and allthe sophisticated equipment that their nation-al organizations oan buy, And anyone whodoubts the scope of the NEA's operations inthis respect need only visit the elaborateWashington headquarters of this "largest pro-fessional organization in the world," with itsproliferation of 35 departments, 17 divisions,and 25 commissions and committees . all sup.ported by some ten million members (dues are$15 a year), not to mention the income frompublication sales and membership in the vari-ous specialized departments.

In contrast to this mammoth output of de-

ta and assistance, the individual school boardrelies largely on its local sources of informmation and the meager help it may get from its

own National School Boards Association, Thisloose and sparsely financed federation of

state boards is primarily a lobbying organiza .

tion; it is in no position to give a board introuble the kind of support that a localteaohers' association can count on from itsparent organizations, both state and national,Beyond these sources, the board must rely oninformation put out by those same teaoher or.ganizations with which they find themselvesembroiled.

The hapless members of a school board,moreover, are by no means free to sit at thebargaining table all hours of the day andnight. Engaged full.time in earning a livingor raising their families, they cannot devotethemselves exclusively to negotiations untilfatigue sets in or a settlement is reached,And most trying of all their difficulties,rarely has experience equipped them for the

subtleties and "gamesmanship" of collective

311

bargaining. Unfamiliar with the jargon andstrategems of the game, they often misread the

signs of their opponents, mistaking a "maybe"for a "no" and a "no" for a "never,"' As Dr,Wesley Wilcb»an of the University of Chicagoremarked, it is a field in whioh "the ouree of

amateurism is rampant,"

To be sure, the bargaining power is notentirelyon one side; if it were, there could be

no negotiations at all, Teachers in many dis-tricts, especially those far removed from thebig cities, still regard the strike as unpro.fessional, illegal, or both, and this feelingmay be turned to a board's advantage, Then,too, boards are coming to recognize that bar-gaining may not be their forte; they are rely-ing more and more on hired negotiators whoseskills match those of the teachers hired pro-

fessionals,

Yet there is little doubt that the bal-

ance is swinging sharply in the teachers' di.recti'm or that it might have done so muchsooner if the teachers had perceived . andchosen to make use of . their naturalstrenvh. For the simple fact is that aschool board l'aced with a strike has nothingof comparable strength with which to counter

it. And what sometimes makes a board's posi-tion completely impossible is that it may bejust as powerless to satisfy the teachwrs' de-mends as it is to oppose their ultimate sanc-

tion,

Even when a board technically has the re-sources to pay teachers what they ask (or toreach a reasonable compromise of those de-mands), it may feel tha it ought not to do soat the expense of other claims on its funds -such as introducing foreign language in theelementary grades, expanding the remedialreading program, hiring ekdditional personnel,giving closed-cirouit television a tryout, orperhaps revising the curriculum to give a more

profound view of Negro contributions to Ameri-

can society, The Board may be right or wrongin its choice of expenditures, but the choiceis legally the boards' to make, and it cannotsurrender it for the sake of good labor rela-tions without abandoning its plain obligation,

To all of which the teaohers put forth the

plausible counter-arguments if they are en.titled to more money, they should not be askedto forego a raise in pay in order to subsidizeother improvements that the community is un.willing to pay for.

While some nostalgically inclined boardsmay long for the days before teachers had tobe dealt with as a highly organized and hard-headed group, no one expects those days to re.

turn, But more acceptance of collective bar .gaining as fact of life is not enough, When aschool board decides that negotiating withteaohers i$ henoeforth to be a regular and ma.jor part of its job, it may &law a deepbreath, as one does upon making a decisionlong resisted. But the breath should not betoo deep, for the board will soon discoverthat its troubles have only begun,

Two stark truths oonfront a school boardat the outset of its relationship with ateachers' organization;

.. Public-school teaohers enjoy a naturalmonopoly; am a body, they cannot be replaced,Thus tney are assured forgiveness even whenthe taotios they resort to aro illegal orcrippling.

-. As individuals, teachers are usuallyseoure in their jobs by virtue of tenure,Therefore, if a board yields to teacher de.mends for the power to make policy, the teach-ers can exeroise that power without assumingany of the board's aocnuntability to the pub-lic,

Although these facts and the implicationsthat flow from them clearly diminish a schoolboard's bargaining power, a oommunity's educa-tional policy is still the responsibility of

board; indeed, it is a principal reason.4r its existence, The extent to which, forbetter or worse, thav policy is modified orchanged as part of the bargaining prooess isthe extent to which the already diminished au-thority of the board is further eroded,

It is also apparent that the leaders ofthe two main teachers' organizations . the NBAand the APT - have just this erosion in mindand that they consider it a fair subject atthe bargaining table. In her inauguralspeech, Mrs. Koontz stated the case bluntly:"In policy determination and in shaping theeducational institutions, professional negoti-ation is not a luxury, it is a necessity,"Teachers, she said, would no longer allow "de-cisions on educational issues, philosophy, andprinciples" to be made unilaterally by "self-styled experts and well-intentioned and oft-times uninformed persons who are far removedfrom the realities of the schoolroom" - wheth-er or not, it would seem, such persons wereentrusted with that function by law,

The APT's position has become equallysweeping, although, in the trade-union tradi-tion, it concerns itself more with bread-and.butter issues than with educational theory,When I asked President David Selden where hewould draw the line between what was negotia.ble and what was not, his answer was blunt anduncomplicated, "There is no line. Anythingthe two parties can agree on is negotiable,"

That position might sound reasonable ifif were not for the hard fact that a board,pressed by a hundred demands and the threat ofa strike, might well agree to negotiate onmatters that ought not be negotiated, in ex-change for concessions in matters that should.

Boards do not as a rule balk at negotiate.ing procedural issues that go beyond salariesand hours, so long as they clearly bear on ateacher's working conditions, They haveyielded, for example, on such minor demands asa "mumps clause" (teaohers who catch themumps, measles, or chicken pox from their stu.dents will have only half of the school Umethey miss charged against their sick leave);twioe.a.day eoffee breaks; reserved parkingspace; and even a warning sign ("beep.beep")to notify teachers when their classrooms areabout to be monitored from the principal's of.floe,

35

38

But many board members find it an alto.gether different matter, and a violation ofconsoience, to yield to demands that teaohersbe allowed to elect their principals, or thatthey be given the decisive voice in curriculumor textbook selection, or in the reoruitment,assignment, and disciplining of their col.leagues,

A good case can be made that teachers, asprofessional educators, should have somevoice in these matters, But should that voicebe that of teachers as individual profession.als, or of teachers as a trade union represen

hy an agent sent out from headquarters?Should the voioe be advisory, or should itcome in the form of demands? And if presentedas demands, should they be argued and settledon their merits or put forward as chips on thebargaining table, possibly to be withdrawn inexchange for higher salaries, shorter hours,nr improved fringe benefits?

One authority on the subject, Dr, MyronLieberman, Director of Educational Researchand Development at Rhode Island College, ob-jects to teacher participation in policy-mak.ing primarily because the tenure they have in-sisted upon serves to exempt them from respon-sibility to the public, "If teachers want tobe equal partners in formulating educationalpolicy, then they should give up any right toteacher tenure because in a democratic societywe ought to have the right to change our poli-cy-makers,"

The profession, however, shows no inten-tion of pursuing this line of thought, In-

deed, the NBA president's oomment on the sub-ject at plot year's convention tended stronglyin the other direotion, "We must have a se-cure profession," Mrs. Koontz exhorted hercolleagues, nenure laws must be developed inevery state and strengthened to cope withchange, Such tenure laws should be proposedor enacted in every state by 1970,"

Beyond the demands of militant teachers,the school board, faced with a population ex-plosion, all combining to send costs skyrock-eting, finds itself still trying to meet thosecosts largely out of local property taxes, afast fading source of revenue. Prom all ofwhich it may well appear to the reader thatthere is little reason for the local schoolboard to continue at all but for the fact thatno good alternative is in sight. This wouldbe a discouraging conclusion indeed, but hap-pily one that is hardly justified.

An alternative 11 emerging - slowly, withvariations and difficulty, but with promise,too, because it corresponds in school govern-ment to the evolutionary change that is evenmore slowly and painfully emerging on the po.litical front, I refer to that still gropingmovement in the country's great metropolitanareas toward some sort of internal cooperation. between city and county, between city andsuburb . a cooperation ranging from the loos.est agreements on specific matters all the wayto consolidation, federation, and metropolitanarea government, that new politioal entitythat has been cropping up here and there underthe name of Metre,

Giving an air of inevitability to the de .velopment in ono form or another is the starkfact, becoming starker daily, that without itgovernment will ultimately be impossible inthe urban complexes where 70 percent of theAmerioan people already live, The AdvisoryCommission on Inter-Governmental Relations ob .served, as early as 1961, this consequence ofthe trek to the suburbss "The resultant con-gestion and sprawl of the urban population andthe interdependence of communities within themetropolitan areas have made it increasinglydifficult for local governments to deal withmany functions on less than an area-wide ba-sis," The functions that ev;.ght be metropoli-tan would vary from place to place, the com-mission reported, but "a oonoern tor equalityof educational opportunity and the most effi-cient planning for the provision of education-al services (is) a major motivating force" inthe trend. A succeeding commission, made upof high officials from all three levels ofgovernment, subsequently urged that schooltaxation in metropolitan areas be assessed re-gionally and that school-financing distriotsspanning oity and suburb be promoted by stateand federal action,

It takes no stretch of the imagination tosee how such a uniform regional tax - the rev-enue from which would be distributed with fullallowance for speqial needs - would go far tosolve the problems of Buffalo and Baltimore,of Boston, Chicago, and Philadelphia. For ev-erywhere the picture is the same, with themetropolitan area constituting, in Robert J.Havighurst's phrase, "a middle-class suburbandoughnut surrounding a central city slum ghet-to." Referring specifically to Boston, PeterSchrag has written, "There will be no genuinepublic education in the city it suburban popu-lations remain perpetually exempt from the ob-ligation to support it,"

Not least among the virtues of a metro-politan area school system - before we come toits difficulties - is the comparative freedomit would provide from those extreme localpressures and inhibitions which are to be dis-tinguished from the perfectly legitimatepressures that are part of the democratic pro.cess. Here the essence of the matter is eon-tained in Madison's famous dictums "Extendthe sphere, and you take in a greater varietyof parties and interests," thereby reducingthe dangers of factional control, whether by amilitant minority or an insensitive majority.

In a small district, the pressure fromparents and less altruistically interestedparties may operate to keep a school systemtied up in a provincial straitjaoket. Com-plaints about sex education, particular ap.proaches to reading, or the morality of booksassigned in literature courses - all affectlocal school policy without necessarily re.fleeting in the least the sentiment of peopleeven ten miles down the road,

Myron Lieberman stated the propositionboldly in arguing that it is not the profes-sionals who are responsible for introducingtrivia into the currioulum, as some of theircritics oontends "No diagnosis oould be more

stupid. Subjeots whioh have no real oontentor professional justification do not get in .oluded beoause school personnel lama publicopinion, but because they follrPublio opin-ion, The oriticism that schoo administratorstry to engineer public opinJon to put overtheir own curriculum ideas 4s absurd; this isprecisely what they ought to be doing, ard arenot," He saw academic freadom assured only inthat largest of all districts - the entire na.tion.

The idea that a federal system, subjectat any time to the intervention of remote of-ficials, not to mention Congressional commit-tees, would be totally free of pressure seemsnaive, but lieberman's point concerning pro.vincial tyrannies is surely well taken, espe.cially in the light of his further observa-tions

"It is a striking fact that in Englandwhich has a national system of education,teachers are opposed to local oontrol precise-ly because they fear that such control wouldundermine ace..;.emic freedom, Meanwhile, teach-ers in the United States continue to act as iflocal control must be maintained inviolatelest academic freedom (which they do not pos-sess) be imperiled,"

Not least among the pressure groups withwhich local boards are often unable to cope,although on a different level entirely, are,of course, the teaohers themselves. Would ametropolitan area board do better on thisscore than a dozen contiguous butwholly sepa-rate districts? From the experience we haveto go on, it would certainly seem so.

With the scope of influence greatly ex-tended on both sides of the bargaining tableand the stakes greatly increased, it is like-ly, to begin with, that professionals wouldtake over on both sides. The teachers, more-over, would not be able to whipsaw one littledistrict against another in an endless game ofraising the ante - while the board, for itspart, would presumably feel the weight of ne-gotiating not for a restricted locality butfor a major area. Bigness has its drawbacks,but the experience of industry suggests thatin labor relations bigness may also be a fac-tor for stability (although too cozy a workingrelationship between giants could admittedlylead to stagnation).

Finally, teachers are likely to bepleased in the long run by the steady rise instandards that a financially more secure met-ropolitan arrangement can assure. And boards,in turn, should feel a bit safer for the re-duced mobility of teachers no longer free tomove to an adjoining district half a mile awayif they are less than completely satisfied,

What possible drawbacks can there be to aschool system which could deal far more effec.tively than the present localism with the re-quirements of integration, collective bargain-ing, academic freedom, and the adequate andequitable financing of public education?First, there is the admitted difficulty ofmaking itself acceptable to those who don't

339

want their taxes to help pay for the educationof other people's children. That is a ques-tion of tactics, which will be considered pre-sently, Substantively, the Metro idea ischarged with one major sins it is big, andtherefore presumably bureaucratic and remotefrom the people,

At a time when "community control" is thecry in ate cities and hardly an urban politi-cian rwls for office without paying lip seri.vice to decentralization in some form or an-other, why invite the dangers of an even larg-er district than the (lit ? How oan the smallbe protected within the large? How can local-ism be retained within metropolitanism? For aview of that art in practioe, one can turn on-ly to the city of Toronto and its environs,where the emphasis is not so much on bignessand supergovernment as it is on the warmer andmore attraotive concept of federation,

The Toronto Story

For 15 years a great urban complex inCanada has been experimenting with, and con-stantly improving, a system of urban govern-ment that political scientists in the UnitedStates have only talked wishfully about, asthough it were a utopian scheme suitable forpleasant speculation. I refer to the Munici-pality of Metropolitan Toronto, a politicalentity covering 240 square miles and embrac-ing, besides the city itself, the five bor-oughs of North York, Scarboro, Etobicoke,York, and East York,

How Metro came into being may be sketchedbriefly. In the decade that followed WorldWar XI, the Toronto area jumped in populationfrom 942,762 to roughly 1000,000, an increaseof some 38 percnnt. But while the city propergained fewer than 200 souls in that time, thesuburbs rocketecl up by 137 percent. The im-pact of this explosive growth staggered theindependent municipalities that ringed thecity. Most of them were financially unable tomaintain anything like adequate municipalstandards, and all of them suffered acutelyfor lack of unified services. Within the sin-gle county that contained them there were nofewer than 113 administrative bodies and 30separate transportation lines. Every suburbanpolice force had its own short-wave length, sothat a general alarm from Toronto had to betelephoned to each local police department,which in turn sent out a warning to its owncruiser cars. Water supply was so meager inNorth York that thickly settled areas wereobliged to use septic tanks intended for ruralareas, and the inadequacy of sewage disposalin general had alre dy polluted two rivers andthe shorefront of Lake Ontario,

As the crisis deepened, the Ontario gov-ernment warned that unless some form of coop-erative govermuent were developed between cityand suburbs, the province would step in and doit for them. After much wrangling, once sobitter that Toronto threatened to out off asuburb's water supply if it did not take backits slurs on the city, the Provincial govern-ment acted, The Ontario parliament passedBill 80, which ham served since 1934 as thecharter for the Metro system,

Under the new arrangement, each of thequarreling communities retained its local gov-ernment anfl. continued to guard its identity asjealuusly as a Georgian defending states'rights, But Metro taxes, based on propertyassessments made uniform for the entire area,were paid to the new unit of government, whiohin turn took over area.wide municipal services. transit, water supply, sewago disposal, someroads and at least the capital financing andlocation of new schools.

Since then, finding more advantage in thearrangement than it had evidently expected,Ontario authollties and legislators have con.siderably extended Metro's hand in the opera-tion of the schools, Yet the control is notthat of a remote centralized bureau, autocrat-ic in its decisions, Rather, the system isone of autonomy within a federation, withwell-defined limitations on each.

Avoiding both the extremes of centraliza-tion and decentralization, the school systemis a two-tiered arrangement in the sense thatall members of the Metro school board serve ontwo levels. Each of the six local boardssends its chairman plus, in the case of Etobi-coke and Soarboro, one additional trustee ap-pointed by his fellows, Two such additionaltrustees ar, allowed from North York, in pro-portion to its population, and five from Tow.ronto. Three members representing the sepa-rate, or non-public, schools round out theMetro board, which elects one of its number aschairman.

Originally the Metro school board bor-rowed money centrally to meet capital costs,collected taxes from the constituent communi-ties through the Metro Council, and distrib-uted funds to the local boards in the form of"maintenance assistance payments" based on thenumber of pupils in attendance - not too dif-ferent from state aid in the United States,except that it averaged 60 percent of a localboard's revenues, considerably more than mostof our states are willing to pay to equalizethe load.

Nevertheless, the plan did not work wellenough. It achieved a rough dollar equalitybut fell considerably short of the kind ofdistribution that real equality of opportunityrequirea. Under a revised scheme adopted twoyears ago, the role of the Metro board is to afar greater extend one of judgment. In thewords of W. 3. McCordic, its dynamic executivesecretary and chief administrator, the board'sfunction is "to secure the funds to finance aneducational program, to apportion these fundsfairly and equitably in relation to need, andto carry out these numerous responsibilitiesin such a way as to strengthen rather thanweaken the autonomy and viability of the sixcomponent school systems,"

In practice each of these local systemsdraws up its own operating budget, includingwhatever new approaches, experiments, or addi-tions it may see fit to initiate. The budgetis passed on to the Metro board and defendedthere by the local's member-representatives,The board as a Whole, sitting as a kind of ju.dioial body, tries to reconoile the local

district's budget with the needs of the otherarea boards, eventually putting them all to-gether in a Metro school budget designed tomeet special needs and still strike a fairbalance, This it passes on to the Metro Coun-cil, which is charged with raising the re.quired revt,nue. No doubt some logrolling oc-ours - a tacit understanding, say, that therepresentatives of Soarsboro will support aspecial request in the Etobicoke budget in re-turn for reciprocal consideration the follow-ing year, But, as MoCordio says, "What'swrong with that?" It is at least give-and.take, rather than demand-and-reject,

Should a looal board feel genuinely ag.grieved, two courses are open to it. It maycarry the matter to the Ontario MunioipalBoard, a quasi-judicial body which acts as akind of ombudsman, or it can impose an addi.tional tax of up to 2,5 mills on its own localcitizenry for some special purpose denied byMetro.

There is flexibility in the Toronto an-rangement which allows a balancing of appro.priations that is politically refreshing."Some would have us apportion the funds by asimple formula method of so much per pupil foreach area board," explains Barry G. Lowestchairman of the Metro school board. "Such aformula would be clear dereliotion of our dutyand, furthermore, it simply could not do thejob of sharing funds equitably." After theinitial agitation for per capita allocations,he says, "the districts learned to yield tothe special needs of other areas;" whether itwas additional teachers for fast-growing NorthYork or junior kindergarten classes for non-English-speaking children of the inner city,

Technically, collective bargaining isstill carried on between the teachers andtheir local boards. But in the name of coor-dination there has been a steady drift towcrdconducting negotiations at Metro headquarterswith the assistance of Metro's Salary Commit-tee. Slowing up this trend, no doubt, was thefantastic division of the teachers themselvesinto numerous groups - elementary school men,elemenatry school women, secondary teachers ofboth sexes, English Catholic school men, En-glish Catholic school women, French Catholicschool men, French Catholic school women, etc.Fragmented, they found it easier and more per-sonal to deal with the local employers. "Wewere comfortable with our own little boards,"said Robert Brooks, president of the Torontodistrict of the Ontario Secondary SchoolTeachers Federation. "They were close to lo.cal problems, and we were afraid of losingcontact with the trustees," Besides, althoughthey are not nearly as militant and aggressiveas their opposite numbers south of the border,the teachers could hardly avoid seeing a cer.tain usefulness in pitting one districtagainst another to their own advantage.

For its part, the Metro staff soon sawthe extreme difficulty of passing judgment onbudgets featlaring wide variations for teach.ere' salaries. "I cannot imagine the boroughboards maintaining a satisfactory relationshipwith each other if they remain in competition

in the matter of teachers salaries," MoCor.dio said in a public speech, with a oertainamount of gentle prodding, the teaohers weregradually persuaded to move toward standardscales for the area, Under no legal compul-sion, they began holding joint talks withtheir own school superintendents and membersof the Metro board, In 1968 secondary and el-ementary school teachers, onoe characterized,respectively, as "Brahmins and untouchables,"shared a common bargaining table for the firsttime,

In the end negotiating with Metro seemedthe sensible and practical thing to do. Afterall, as Brooks conceded, "That's where themoney is." The result is that elementaryschools, through wholly voluntary action, nowhave virtually the same salary schedulesthroughout the area, and secondary schools areclose to achieving the same result.

If Metro is vigorously promoting equalityof opportunity, if Metro is in effect nego-tiating with the teachers, and if Metro ispassing on budgets and fixing finanoial prior-ities on the basis of its own value judgments,what is left to the autonomous boards?

Ask a Metro official that question and hewill tell you, as Maordic told me, "It is amatter of starting the process from the groundup rather than imposing it from above. Bud-gets originate locally, based on the localboards' philosophy and sense of their own com-munities. Their representatives on the Metroboard have to defend those budgets and theymay not get all they want but the color andflavor of their respective systems are pre-served." Variations, innovations, and compe-tition are not only possible but encouraged."We need this friendly, stimulating rivalry,"Barry Lowes said. "For if a grey smog of uni-formity gradually settles over Metro, then weshall have failed."

Certainly Metro has had its critics andprophets of doom. City politicians were fromthe first given to rousing the electorate withreminders that Toronto contributed more inMetro school taxes than it ever received fromthe Metro board. Other critics argued that,unless a local board left a good deal of fatin its proposed budget, it would almost surelyfind itself shortchanged after the Metro boardhad done its job of paring. And there werealways those who saw in any degree of central.ization a forewarning of more to come.

The criticisms were hardly basic. Ofcourse some districts give more than they get.That was the essence of the plan. An unequaldistribution of dollars for the sake of realequality was one of its fundamental purposes.Yet, for all the complaining by city politi.oians, the fact is that few communities in theUnited States have done a better job than Met.ro of rebuilding and renewing the schools oftheir inner city. Parts of metropolitan To.ronto would not have survived without it.

Add to these basic achievements the factthat Metro has succeeded in outting down classsize throughout the area, more or less

38

41

satisfied the teaohers, provided considerableimprovement in facilities for handioapped pu-pils, and developed original and economic) con-cepts for school oonstruotion; add furtherthat in the first full year of the new Metrosystem not one local board was required to re.duce its original budget, and it becomes ap-parent why such fears and oritioisms as ex-isted at the outset have grown fairly dim -dim enough for the reasonably oautious BarryLowes to take office in 1969 with the wordes"At the inEum5tuul meeting two years ago I

asked the question that was on all our mindss'Will Metro work?' A year ago I said that westill did not know! Tonight I would like topreface my remarks by saying that, on the ba.sis of evidence generated in 1968, the que8 .tion is no longer relevant. The answer is ob-viously yes . a resounding yes!"

More subdued, but just as convincing, wasthe comment of Barry Zwicker, education writerof the Toronto Stars "Metro has worked out sowell that not much is written about it."

Will it Work Here?How applicable is the Toronto experience,

and the concept of federation, to the problemsof the American school board? There are dif-ferences, to be sure, between the situation ofToronto and that of our own cities. The Cana.dian metropolis does not have quite the exten-sive poverty-in-the-midst-of-plenty that marksour greatest urban osnters, nor has it thelarge Negro enclaves that pose for us the tre-mendously difficult problems of a damaging ra-cial segregation. And, finally, Toronto'ssuburbs prior to Metro were more in need ofrelief than the inner city, whose sources ofrevenue were not yet as inadequate as our tokeep pace with its mounting social needs.

But to state these differences is merelyto say that Toronto was at an earlier stage inthe same process that afflicts our own bigcities and that Metro may well have served toarrest its downward course. What is more, thebalance in the United States is beginning toshift - with the suburbs, especially thoseclosest to the line, beginning to show thesymptoms of distress that have afflicted theinner city. The growth ail of the non-whitepopulation in the suburbs is already greaterthan it is in the central cities, producingthe usual pattern of a white middle class fat-uously fleeing to outer suburbia, with segre.gation, loss of local revenue, and decay re.sulting,

Meanwhile, even in outer suburbia itself,rejection of the school budget has almost be-come a rite of spring. And collective bar..gaining, under threat of a teaohers' strike,is rapidly reducing school boards to a condi.tion of chronic hysteria, Peter Schrag issurely right in his prediction that "suburbanisolation is but a temporary luxury; ultimate.ly the agony of the city will make itself feltin the periphery as well," In any case, it isacademic, to debate Whether public eduoation isin greater ultimate danger on the inner orouter side of the oity line, when it faoeson both sides . grave problems that can onlybe solved in cooperation,

49

To approach in a more positive way thequestion of Metro's applicability, one needonly picture to himself the workings of thetwo-tiered system in any of our !pities . letus say Philadelphia, to ohoose one where weknow there is a wide gap between what is spenton pupils in the central oity and in the opu-lent areas surrounding it,

A Metro school board, if it had enoughsuburban representatives to balance those ofPhiladelphia proper, would have at its dispos.al tax money, assessed at a uniform rate, fromthe entire distriot . central city, Main Line,and all. And these it would distribute withan eye to equality of eduoational opportunity,which is not the same thing at all as guaran .teeing to turn out equally educated Philadel-phians, but only a step in the direotion ofsocial justice long deferred. Between corecity and suburbs there would have to be thatgive-and.take which is a tempering force aswell as a modus oDerandi in representative de.mocrary rather than the anarchic individualismthat passes often enough nowadays as "partici_patory democracy."

New York City might well present specialproblems that would defy the Toronto ellution.As a single district within a metropolitansoheme it would still have difficulty in goy-erning its own far-flung system or even inrepresenting it adequately on a common region-al board. But the very existence of such aboard would make it far more reasonable tobreak the city system into a number of autono-mous districts, each of which would belong to

the Metro system as a whole and be representedon its board. Decentralization under a cen-tralized but representatir authority would bethe formula, with ree,ona wealth and talentsto draw on and regional spaoe for maneuvering.Harlem would get some of Scarsdale's money, butScarsdale's member would have a check of whatHarlem did with it. And vice versa.

Granted all the advantages of metropoli-tanism and the good sense of federation, thereis no doubt that it would be somewhat lopsidedin its benefits, at least for a while. Itwould profit the poor district at the expenseof the rich, the city at the expense of thesuburb, Chicago at the expense of Winnetka,Boston at the expense of Newton, Detroit atthe expense of Grosse Point, The questionarising from this circumstance is not a moralone . the only immorality is to continue al-lowing, as we do now, the accident of geogra.phy and available taxable wealth to determinea child's educational possibilities. Thequestion is the hard practical one of how theWinnetkas, Newtons, and Grosse Points are tobe persuaded to enter into arrangements thatwould so obviously reduce their present advan-tage,

It is in the power of the states, subjectto their vt!...eious oonstitutional limitations,to do what needs to be done in the way ofschool redistricting, just as it fell. to theOntario government to force the metropolitanarea system on the less than enthusiastic au.thorities of Toronto. But it is the legisla-tures that would have to act, and they are not

inclined to coerce suburbia for the sake ofthe cities, even when their state constitu-tions permit,

What may foroe them to act, among otherfactors, is a possible ruling by the courts,in a pending Detroit case or some other suit,that present inequalities are a violation ofthe federal Constitution, In that event theycould establish motropolitan area school dis-tricts without going so far as to impose corm.plete Metro government, Indeed, Vermont andNew Hampshire recently persuaded the UnitedStates Senate to pass a bill allowing them tomerge school systems now separated by thestate line, In most oasea, no constitutionalchange would be required to introduce the car-rot-and-stick technique invoked successfullyby California's Unruh Act, which not only per-mits but encourages the merging of separatesci.00l districts by referendum. What can beused to bring town and town together could beused, so far as schools are concerned, tomerge city and suburb.

Alan K. Campbell suggests that the nitiesthemselves might do a iittle trading towardthis end, agreeing to drop or defer a commutertax, for example, or to let suburbs tap theirwater lines and make other such concessions inreturn for a coalition of some sort in thefield of education. Even a decision to spendmore money on schools than the suburbs do, ifthe money can be had, would make federationmore inviting. In any such effort the cityshould be able to count on the powerful sup-port of its bankers, realtors, and industrial-ists, all of whom, as heavy taxpayers, have alively interest in drawing suburban dollarsinto the school system in order to lightentheir own load. Finally, there is the federalgovernment, with an ample store of carrots to

Ito

spend, through the Department of Health, Edw.cation and Welfare or the Department of Hous-ing and Ur'an Development, on oommunities thatstrive in any imaginative way to improve thequality of city life - suoh as accepting a rel.,tional, in the end an inevitable, regionaldistrict for the improvement of their publicschools.

In the end, however, it must be the peo .pie of the outlying areas themselves who cometo grips with the problem . perhaps becausethey see the spreading blight of the citiesenoroaching on their places of suburban ref-uge. Or because they realize their dependenoeon, and their debt to, the oity where theywork and play but where they neither sleep norpay taxes. Or even because they have awakenedat long last to the moral wrong and imminentdanger of allowing the children of the citiesto grow up hurt and embittered.

If for these reasons, or any other, theyaccept their responsibilities as citizens of ametropolis, they may do more than solve theimmediate problems of schools and schoolboards. It is more than just possible thatthey will have saved the city - and the suburband the country with it, For the politicalentity of the city no longer coincides withthe true locale of its people, the place wherethey both work and live. When that happens,government must gradually lose its grip and,in time, cease to govern.

Looking at our worn and seething centersof frustration, no one can doubt that we havealready moved into this downward spiral orthat the saving of our schools is only one as-pect of the larger and more desperate need tosave our cities,

43

Board Authority andNegotiations An Analysis

The report which follows was written by Reynolds C.

Seitz, editor-in-chief of School Law Reporter, a publication

of the National Organization on Legal Problems of Education

(NOLPE). It first appeared in the Vanderbilt Law Review

under the title, "School Board Authority and the Right of

Public School Teachers to Negotiate - A Legal Analysis".

Mr. Seitz is a professor of law at Marquette University

Law School, Milwaukee, Wisconsin; prior to this he served as

assistant superintendent in the public schools of Omaha,

Nebraska, and St. Louis, Missouri.

44

Since 1935 with the passage of the Na-tional Labor Relations Aot (Wagner Aot) creat-ing the National Labor Relations Board, mil-lions oV workers in the private sector of em-ployment have been given the right to organizeand to bargain or negotiate collectively withtheir employers on "wages, hours and otherterms and ooaditions of employment," Today theright is widely exeroised in the field of pri-vate employment. The opportunity for publicemployees to negotiate with their employerswas not demanded too frequently until afterWorld War II, At that time public employees,inoluding teachers, began to press for theright, and the pressure has been increasinggreatly year by year, The demand is identicalto that made by employees in the privatesphere, which maated in the Wagner Act, Thepressure is for the right to join organiza-ions, including unions, and through such or-

ganizations to negotiate on wages, hours andother terms and conditions of employment.

Realistically, the hurdle erected at one'time by some courtel and legislative bodies2to prevent public employees from joining em-ployee organizations, including unions, nolonger exists. Today it seems certain thatthe first amendment, through its protection offreedom to assemble, insures the right to joinan employee organization.

The issue with which this article dealsstill remains: whether there is an infringementon the legislative power of the school board ifit is required to negotiate with teachersthrough representatives of their choosing.

A logical approach to a discussion of theright of teachers to negotiate versus schoolboard authority requires.an effort to give somemeaning to the term "negotiation". If the termcarried only a connotation that teachersthrough their representatives can present certain requests to a school board or its repre-sentatives and both seta of representativesmay talk about the requests to the extent theschool board permitted and for such length oftime as the board made available, there wouldbe no need for this article. The law cannotprohibit any individual or group from making arequest of an employer - even if the employeris a public employer. The law cannot keep thepublic employer from discussing the matterpresented if it elects to do so, There isnothing new about representatives of teachersand school boards carrying on talks promptedby requests made by teachers. Indeed, in cora.tain school districts this has occurred sincethe formation of the district,

If, however, "negotiation" means imposinga procedure which (1) removes from a schoolboard the sole discretion as to whether to dis-cuss with teachers their requests and howmuch time to make available for such talks and(2) dictates to the board certain responsibili-ties by way of responses, it becomes necessaryto determine the legality of such imposition;that is, whether the procedure results in aninfringement upon school board authority.Certainly, if the imposed procedure takes awayfrom the school board the ultimate authority tofix hours, wages and conditions of work, it oan

42

validly bfi argued that there is an illegal in-fringement upon the legislative power of theschool board.

The issue of infringement on school boardauthority oan arise realistically only when astate has passed a statute which reflects theintent of requiring a sehool board to negotiateor bargain collectively-) in good faith onwages, hours and other conditions of employ-ment with a union or association that properlyrepresents the teachers. Statutes which mere-ly give the right to teacher organizations to"meet and confer" or to engage in "conferencesand negotiations" with school boards on hours,wages and working conditions are easily suscep-tible to the construction that they lack anintent to require professional negotiations orcollective bargaining.4 Terms such as "meetand confer" and "conferences and negotiations"do not necessarily connote any particular tech-nique. Therefore, it can be argued logicallythat such terms do not give rights to teacherswhich infringe upon school board authority,

The chief justice of the Wisconsin SupremeCourt in writing the majority opinion in JointSchool District No, 8 v. Wisconsin EmploymentRelations Boare shows clearly that such is hisbelief. It would require a very clear legis-lative history to import into "meet and confer"or "conferences and negotiations" the imposi-tion of any particular bargaining or negotiat-ing technique.

The type of statute which clearly showsa legislative intent to prescribe a certainnegotiating technique for the school board isone which requires the parties to negotiate orbargain in good faith on wages, hours or otherterms and conditions of employment. It is theterm "good faith" which imparts intent intosuch a statute. These statutes do not requirebargaining with individual employees; rather,they require exclusive bargaining either withthe association or union selected by a majorityvote or with a council comprised according tosome proportional formula of individuals fromthe various organizations which tegchers haveselected as their representatives.0 Suchstatutes avoid the constitutional attack thatevery individual has a right to present agrievance or demand to his governmental employ-er by reserving specifically such a right.The public employer is not, however, obli-gated to bargain with the individual, Theright given to the individual employee is,nevertheless, a valuable one because the publicemployer can have the attitude of the individ-ual in mind when it carries on negotiationswith the representatives of the employees,

The National Labor Relations Board, thelower federal courts and the United StatesSupreme Court have given meaning to the goodfaith requirement in collective bargaining,which was dictated by Congress in the Labor ,

Management Relations Act (Taft-Hartley Act),'

It appears improbable that the state la-bor boards and oourta will require any more byway of negotiating techniques than what is re..quired by the federal courts and the Nation-al Labor Relations Board in construing the

requirement for good faith bargaining.

It becomes necessary, therefore, to lookat the NLRB and federal court deoisions de-lineating the techniques required by the dio-

tate of good faith bargaining in order to pre-dict tho probable judicial construction of astate statute whioh orders good faith negoti-ating in the field of public employment. Thisstudy should permit a conolusion as to whetherthe requirements of suoh statutes oonstitutean infringement on school board authority.

Initially, the cruOal question is wheth-er the direct,ion of a st.,tvete to bargain ingood faith on wages, houre and working condi-tions imposes upon the school board a duty to

make concessions. If the statute were todictate to the school board a bargaining tech-nique wilioh required capltulation or comes-slons on certain demands of the representativeof the teachers, it would be difficult to de-fend against the charge of infringement uponthe legislative power of school boards.

Statutes are likely to speak out specifi-cally against the making of concessions. Thepattern followed by the statute may be thatenunciated by the Taft-Hartley Aot, whichpointedly states that the obligation to bargainin good faith "does not compel either party to

agree to a proposal or require the making of a

concession."

There is no decision on record which holds

that good faith bargaining requires the makingof a concession. This was, indeed, the atti-tude of courts even under the Wagner Act,which did not contain the specific pronounce-ment that good faith bargaining did not compeleither party to make a concession, The UnitedStates Supreme Court in the J01100 a4 LaughlinSteel Corporation case which upheld the con-stitutionality of the Wagner Act, stateds

The Act does not compel any agreementwhatever . The theory of the Act isthat free opportunity for negotiations withaccredited representatives of t%e employ-ees is likely to promote industrial peaceand max bring about the adjustments andagreements which ttse Act itself doee noteaten= to oompai,.

The NLRB and the courts did, however,tussle with another question which arose byreason of the directive of good faith bar-gaining in the Wagner Act. The question waswhether the employer was obligated to make acoutterproposal when it received the demandsfrom the representative of the employees.Could counterproposale equated to oonces-sions, or were they s,m ,ting different?

In early oases interpreting the WagnerAct, the NLRB and the courts indicated an tin.willingness to state flatly that counterproeposals were not required, /n enforcing anNLRB order whioh required the employer to

bargain with the union and in reaoting to theemployer's refusal to make a ootnterproposalfollowing rejection of the union's proposals,the United States Court of Appeals for theFifth Circuit stated:

A oounter proposal is not indispensable toa bargaining, when from the disoussion itis apparent Olat what the one party wouldthus offer is wholly unacceptable to theother, Still when a counter proposal isdirectly asked for, it ought to be made,for the resistanoo in discussion may havebeen only strategy and not a fixed finaltntentionolv

The United States Court of Appeals fur theThird Circuit commented:

There must be common willingness among theparties to discuss freely and fully theirrespective claims and demands, and whenthey are opposed, to justify them on reason.When the prof.Vered support fails to per.suade, or if, for any cause, resistance tothe claim remains, it is then that compro-mise comes into play. But, agreement byway of compromise oannot be expected unlessthe one rejecting a claim or demand is will-ing to make a counter suggestion. Refusalof an employer to make oounter proposalson inyitation of the union after rejectingthe union's proposals max go to support awant of good faith on the part of the em-ployer and hence a rtfusal to bargain un-der the Act. 11

The United States Court of Appeals for theNinth Circuit uttered quite the saw: philoso-phy relative to counterproposals." At thetime the Taft-Hartley Amendments to the Wag-ner Act were being discussed, the chairmanof the NLRB made it clear that he did notwant to remove from the possibility of an un-fair labor practice the failure to make acounterproposa", He argued that the failure tomake such a proposal may be evidence of badfaith, whereas a failure to make a concessiorsis not such evidenoe.13

The appearance of the provision in theTaft-Hartley Amendments specifically indicatingthat the obligation to bargain in good faith"does not compel either party to agree to aproposal or require the making of a conces-sion"14 did not directly answer the questionas to whether the failure to make counterpro-posals was evidence of a failure to bargain in

good faith. In Landis Toal Co.,15 the NLRBwas oonoerned about employer unwillingness tocomply with a request for a counterpropuealwhen the ttnion indicated it was willing toconsider "any,counterpropossal the employermight make."1° A close analysis of all of thecases speaking of the failure to make counter-proposals as evidence of bad faith bargaining,both under the Wagner Act and later, revealsthat the failure to make a oounterproposhl is

just one piece of evidence in the totality ofemployer conduct which may point to the faotthat the employer did not come to thn bargain-ing table with an open mind and a sincere de-sire to reach an agreement - which is thefundaTental requirement of good faith bargain-ing.li

It is necessary now to relate the state ofthe law on the need to make counterproposals 4.o

our basic interest as to whethe.e the statutorydirective of good faith bargmining invades the

legislative power of the school board, Ifstate courts were to be influenced by certainbroad laps:age of decisions facing up to theneed to maks counterproposals in response todemands of the representatives of teachersand were to hold that a counterproposal mustbe made to presented demands, it would be dif-ficult not to agree that a technique is beingrequired that does infringe ue n the legisla-tive authority of the school beArd, If, how-ever, independent evidence reveals that theschool board has no intention of negotiatingan, agreement, it would not be improper for astate employment relations board or a court tofind that a refusal to offer a counterproposalbolsters the evidence which adds up to a re-fusel to bargain in good faith. Such a hold-ing would not seem to invade school board au-thority.

In most cases, of course, it should berecognized that if parties approach the bar-gaining caplet counterproposals will be madevoluntarily, The United States Supreme Courtin speaking of collective bargaining has said:"(A)lthough it is not possible to may whethel.a satisfactory solution could be reached, na-tional labor policy is founded upon the con-gressional determination that the chances aregood enough to warrant subjecting such issuesto the prooess of collective necotiation."10Similar philosophy prompts the prediction thatif the school board enters the negotiationswith, an attitude of good faith, it will veryfrequently voluntarily make counterproposals.Since compulsion is not involved, there canbe no issue of infringement on school boardauthority.

The dictates of good faith bargaining willalways impose upon the sohool board, withoutany possibility of infringing upon authority,the duty to explain its positlon and give rea-sons. for the stand it takes.1

A problem closely allied to the problemof counterproposals is raised by a faot situ-ation which makes it possible to conclIde thatthe representative of the employees comes awayfrom the nagotiating table with little of val-ue. Can an employment relations board or acourt in such circumstances infer bad faith inbargaining? The Fifth Circuit responded tothis question in ie In that casethe court said: e may assume that theBoard could find that the terms co' the con-tract insisted upon by the company 6 wouldin fact have left the union in no Otter posi-tion than if it had ne contraot,"2u The courtwas unwilling to find bad faith just beoauseof suoh outcome. It quoted with approval thecomment of the United States Supreme Courtthat "Congress provided expressly that theBoard shouloi not peas upon the desirability ofthe substantial terms of labor agreements."21The Fifth Circuit was careful, however, toqualify its position by stating that it did"not hold that under no possible oircumstaneescan the mere content of the various proposalsand counter proposals of management and unionbe suffioient evidence of a want of geld faithto justify a holding to that effect."44 Itcontinued: "(W)e oan conceive of one party tosuch bargaining procedure suggesting proposals

of suoh a nature or type or couched in suchobjectionable language that they would be oal-oulated to disrupt any serious negotiations,"23It is important to understand that the factsin the Euil case revealed that the oompanyshowed a willingness to discuss all union pro-posals and explain its position on all points.The one dissenting judge in Mal cautionedagainst the need to protect against merelygoing through the motions of collective bar-gaining. He felt that the NLRB must take cog-nizance of the reasonableness of positionstaken by the employer.

If the state courts follow the philosophyof the Fifth Circuit, it is apparent that goodfaith bargaining does not infringe upon schoolboard legislative authority. This is so evenif the courts acknowledge that EWA is rightwhen it recognizes that there may be "possiblecircumstances" which would induce a board orcourt to find bad faith after looking at thecontent of proposals. If those "possible air-cumstances" are confined to the extreme situa-tions where the demands can be said to be in-sulting, there surely could be no realisticclaim of infringement upon school board author-ity. Of course, if a decision as to bad faithwas made on the basis of the philosophy of thedissenter in White, it appears clear that therewould be an infringement upon the legislativepower of the school board.

The basic test to determine if the tech-niques required by the dictate of good faithnegotiating constitute an infringement upon thelegislative authority of the school board iswhether the board is required to capitulate ormake conoessions to demands. It cannot be de-nied that the ultimate responsibility for adecision mast be solely that of the schoolboard. It seems unrealistic, however, to con-clude, as nwested by the Supreme Court ofWisoonsin,g4 that if good faith bargaining isdecreed by statute25 in the conventional sensein which that term is used in industrial rela-tions, then there is a certain restraint orpersaasion, and therefore, an invasion of theboard's legislative authority.

It is eubmitted that if the "rules" ofbargaining in fr. faith do not force theschool board to ve up its ultimate responsi-bility for making a decision, there is no in-fringementon legislative author:..y just be-cause good faith bargaining dintatts that acertain technique of procedure is to be used,It cannot be gainsaid thee; such rules of pro-cedure do put a oertain type of compulsion uponthe board which does not exist if tne board can"meet and confer" as it pl sos. It! does, how-ever, seem unrealistic to .3entend that *he im-position of suoh rules of procedure intriagesupon legislative authority, unless the rulescause the school board to capitulate to ea-mends,

This article has already cautioned aboutthe danger of infringement upon fise legielativeauthority of the school board if a state rN.bor

relations board or state court should arrive aterroneous conclusions as to the necessity ofmaking concessions, offering counterproposalsor looking into the reasonableness of

negotiated termm, It is now necessary to setforth other negotiating techniques which theNLRB and the federal courts have stated aredictated by the oonoept of good faith bargain-ing so that it might be determined whetherthese techniques require the school board tosurrender its ultimate deoision-making powerand thus infringe upon the board's legislativeauthority,

An employer cannot oome to the bargainingtable and assume the position that he willlisten attentively to all proposals, and if hehears anything to which he can agree, he willso indioate,2° Furthermore, a party oannotenter negotiations with the announcement: "Wedon't want to waste time, so we will tell youin advance that we will never sign Nat contractwhich does pot contain the terms which we willnow name,"21 Por instance, if this rule wereapplied to a school board bargaining technique,the board could not open negotiations with aproposal that the contract must contain a()louse giving sole control over class loadand size of the board. The technique is notgood faith bargaining, since it oagstitutesa "take it or leave it" approach.'° It indi-cates to the other party that it cannot haveany agreement unless it consents to the inolu-aion of a significant term in the contractebout whioh the proposer Ella Lat pargain,7he United States Supreme Court has pointedout that parties must evidence a willingnessto agree.0 The "take it or leave it" approachdoes not harmonize with such philosophy.

On the other hand, if an employee repre-sentative demanded a binding arbitration clauseand the school board responded that "we willtell you now that we will reserve sole controlover class load and size," suoh a responsewould not seem to constitute a violation ofthe concept of good faith negotiations. Firm-ness on one or more issues when the wholerecord reveals no intent to dodge the obliga-tion to bargain in good faith is no violationof the requirement.

It is possible that employment relationsboards or courts could apply the prohibitionagainst a "take it or leave it" technique toa situation in such a way as to suggest thatsome counterproposal in the form of a conces-sion i3 necessary. The philosophy of thenor.t pl otria31 case, decided by the NLRB,

may illustrate such an applimaon. In thatcase the union presented its demands, Thecompany asked for time to study thm. Aftera reasonable time fo., study, the company re-turned to negotiations. It announced that ithad s polioy of continuing year-round researchand elways did the beat it could for employ-ees, It then stated its oounterproposal andannainoed it would not depart from this pro-bossl unless the union could demonstrate thatthe oompany had made an error or that therehad been some intervening ohango in ciroufte.stances, The NLRB maw in this an approachakin to a "take it or leave it" attitude andseemed to sound a warning of violation of goodfaith if at an early stage in negotiationsa party asValizets a wide range of oounterpro-post:C.9634

There is no doubt whatever than an em-ployer oan in due course, after good faith bar-gaining, put forth a flnal offer and carry itthrough to an impasse,A Parties do not haveto engage in fruitless marathon sessions at theexpense of,a frank statement and support ofposition,34 The unilateral granting of a bene-fit before an impasse is a circumvention of theduty to bargain and held to be as bad as aflat refusal,35

If an impasse does develop, certain actshave been held to violate the diotates ofgood faith negotiating. Unilateral aotion onthe part of an employer may violate the con-cept. If an employer grants benefits that havenever been disoussed at the bargaining table,this constitt4es a violation of the good faithrequirement.30 A number of decisions have foundno violation after an impasse, however, if theemployer granted something whioh had been dis-cussed during negotiations and which the em-ployer gt suoh time had indioated he wouldgrant.31 The courts recognized that such ac-tion would not seriously discourage membershipin employee organizations. Many unilateralactions are condemned as evidencing bad faithin negotiations because they tend to oonvey toemployees that the employee organization didnot play a major role in securing a benefitfrom the employer. If an impasse is broken bya party submitting a realistically new propos-al, there is a duty to resume negotiations,

When a contract is finally negotiated,the duty to bargain on modification of termsis suspended until a reasonable time beforetermination or until a re-opaning date if thecontract contains such date.J° A negotiatedcontract is likely to spell out procedure forhandling grievances that arise under its terms,The last step in such procedure may call forfinal decision by an impartial arbitrator.

An effort may be made by one of the partiesduring the term of the contract to add to theagreement instead of modifying or changingterms. The conoept of good faith in bargainingdbes not require negotictions in such a situa-tion if the matter which the party wishes toadd was discuaaed at the time of contractnegotiations, Negotiations, however, aredeJreed by the conoept vf good faith bargainingif a party wishes to add to the agreement duringits life a provision which falls within themandatory subjeot matter area and was neverdisougaed at the time of negotiating the agree-ment,4u It is possible for the parties to useclear language in a negotiated agreement so asto avoid any need to bargain on adding termsduring the span of an existing contract. In-dustry refera to this kind of provision as"zipper clause", Tha following is an exampleof such a clause: the employer and the asso-oiation, for the life of this agreement, eaohvoluntarily and unqualifiedly waives the rights,and eaoh agrees that the other shall not beobligated, to bargain colleotively with respectto any subjeot or matter referred to, or cov-ered in this agreement, or with respect to anysubjeot or matter not specifically referred toor oovered in this agreement even though suchsubjeot or matter may not have been within the

knowledge or contemplation of either or both ofthe parties at the time that they negotiatedor signed the agreement,

Good faith bargaining demands a realistiointerchange of reasons, information and data.Partips are not expected to bargain in thedark,41

It is submited now that none of thosetechniques of good faith bargaining, with onepossible exception, are of the sort that in-fringe upon the ultimate authority of theschool board. The presoribed procedures doput a certain type of compulsion upon theboard, but not to the extent of infringingupon legislative authority, The one possibleexception oan be found in the NLRB's condem-nation of the General. pec,41242 approach asa "take it or leave it"-attitude. In this re-speot it should be remembered that GeneralElectric was entirely willing to give reasonsfor the positions it took in its proposal.

It was suggested in a previous paragraphthat a negotiated contract micht provide aprocedure for settling grievances which cul-minates in binding arbitration. The insue asto whether binding arbitration for such purposeconstituted an infringement upon the legisla-tive authority of a minioipality was 4oed di-rectly by the Wisconsin Supreme Court,43 Thecourt stated emphatically that there was noinfringement. It pointed out that in all itsarguments the city made the mistake of assum-ing that arbitration to dictate the terms ofa collective bargaining agreement was involved.The court stressed that a provision to arbi-trate disputes that arise under the terms ofa contract which the parties have veluntariiynegotiated is something entirely different.The court took cognizance of the fact that bothparties may desire to provide for arbitrationrather than to be forced to litigate throughthe judicial system.

Attention now needs to be given to a fewremaining matters. Early in this article itwas indicated that discussion would center ona statute which would previde for "good faithnegotiating on wages, hours and other condi-tions of employment". Since the term "condi-tions of employment" is broad, the NLRB and thefederal courts have focused on the issue as towhat subjects fall within the term so that itcan be said that bargaining about them ismandatory. The landmark case in the area is

W loste of o Wporgion,

0 deo de by t e 1n ted Statespreme Court, The Court divided the subjectsinto those which are illegal and oannot be bar-gained about, those who are voluntary and canbe bargained about, and those which are manda-tory and must be bargained about,

The concept that it is illegal to bar-gain about some subject matter is very impor .tent in the area of public employment. Thisidea reoegnises that bargaining often collideswith exng statutes and cannot disregardthem, Dein When inis collision takes plaoe,however, there May be considerable opportunityfor intermediate nototiOirms, ror example,a state statute may Now:0y ifle reasons for

11 6

dismissal of a tenure her. Although bar-gaining could not be used to change those rola.sons, it could be used to set up some interme-diate grievance procedure if the state statutedid not prohibit suola bargaining.

In the industrial field the trend of courtdecisions has been constantly to expand the ar-ea of mandatory negotiatens, It is still reo-ognized, however, that there are some funda-mental management rights which need not benegotiated, Justice Stewart in his concurringopinion 00 b ode C r r ionxtikm,4';) the upreme Court beat ex-p a ns why it supports the legality of collec-tive bargaining, takes special pains to setforth some examples. One illustration is theright to determine the scope of the businessenterprise. Stewart admits that decisions inthis field would have some relationship tooonditions of employment, but he asserts thatthey lie at the "core of entrepreneurial con-trol", and therefore, the employer does nothave to bargain about them.

Similar decisions will be made in thefield of public employer-employee bargaining.It oan be expected that many state courts willfollow the trend of the federal courts in work-ing with fact situations in the industrial fieldand bring more and more subjeots within the area,of mandatory negotiations. The struggle willbe in the area of the right of teachers tobargain for a role in the hiring, promotingand transfer process. Another field for de-bate will be the right to bargain about choiceof textbooks, curriculum and other aspects ofthe instructional program. Since teaohersare trained professionals, it is entirelyprobable that administrative boards and courtsoan be influenced to feel that decisions rela-tive to the instructional program should betreated as falling within a concept such as"conditions of employment". Indeed, a similarargument may succeed in respect to permittingteachers to bargain for a role in connectionwith hiring and promotion. Since the questionof "board right" is likely to be somewhat un-certain, it is predictable that some stateswill specify the right by statute in a morespecific way than the mere use of the generaldirection that negotiations are to be on"wages, hours and other terms and conditionsof employment".

Even if the employment relations boardsand the courts become very liberal in definingthe mandatory subjects for bargaining, it doesnot seem logical to Assert that this would in-fringe upon the legislative authority of theschool board. The direotion will be only tobargain, and as previously indicated, the schoolboard will not be forced to capitulate to de-mands,

When statutes deoree good faith bargainsing in the public employment sector, theyusually provide for mediation and faotfindingif an impasse is reached, They also orderfaotfinding if an administrative board findsa refusal to bargain in good faith, It can-not be said that provisions for mediation andfactfinding infringe upon school board authori-ty. Neither the mediator nor the faotfinder

419

is given power to order the board to writsterms into a contract. The type of faotfind-ing provision found in statutes calls foronly an advisory opinion,

Oinclutdon

The assumption has been that state em-ployment relations boards and oourts will notrequire any more by way of good faith profes-sional negotiation on wages, hours and condi-tions of employment than have the NationalLabor Relations Board, tho federal courts andthe United States Suprele Court in interpret.ing the requirement for good faith bargainingunder the Labor Management Relations Aot. Ifthis is so and if state agencies and courtsare not misled to believe that the concept ofgood faith in negotiations diotates conces-sions, counterproposals to every demand, anda review of the reasonableness of negotiatedterms, it is submitted that statutes orderingschool boards to negotiate in good faith onwages, hours and oonditions of employment donot infringe upon school board authority and,therefore, should withstand any constitutionaltest.

The trend is running in favor of givingpublic employees etatutory protection for theright to negotiate in good faith. Schoolboards ought to be suffioiently enlightened tosee that it would be unwise to try to blockthe progress of legislation by asserting aninvasion of their authority. A statute couchedin the terms indicated will not take awayfrom school boards the ultimate power to makedecisions. The 'ooards can well afford toremember the phliosophy of the United StatesSupreme Court relative to the merit of collec-tive bargaining: although it is not possibleto say whether a satisfaotory solution couldbe reached, national labor policy is foundedupon congressional determination that thechances are good enough to warrant subject-ing issues

4the process of collective ne-

gotiations. °

Were school boards to understand thatbargaining does not require capitulation butis calculated to bring about harmony and buildmorale, they would seldom rejeot a proposedsubject on the ground that it is not withinthe mandatory area of bargaining.

It may be said that good faith oollectivenegotiations require recognition by both par-ties, not mereay formal but real, that bar-gaining is a sharO process in which eaohparty has a right to play an active role.U.,oh party balatcee what is desired againstknown costs of unresolved disagreement. Thesecosts on the one side may be such things asloss of competent employees and the fosteringof a general low morale, and on the other sidethe loss of community support if unreasonabledemands are made. There is nothing inherentin the teohnique of good faith collective ne-gotiations which mitigaces against producinga climate that will insure better educationfor children.

In conclusion, it seems appropriate topoint out that if statutes require good faith

/17

collective negotiations, they also must oon-tain realistic enforcement provisions which oanbe employed againet a party showing bad faith.A discussion of appropriate provisions is be.yond the scope of this article.

1 Perez v. Board of Police Comm'rs, 78 Cal.App. 2d 638, 178 P.2d 537 (1947); PeopleIA Fursman v. City of Chicago, 278 ill.318, 116 N.E. 158 (1917); King v. Priest,357 Mo. 68, 206 S.W.2d 547 (1947).

2 ALA. CODE tit. 55, MN 317(1)-(4) Supp, 1937);GA, CODE ANN. gg 54-909, 54.9923 1961); N.C.GEN. STATE. SS 95-97 to 95-100 (Supp, 1959)1VA, CODE ANN. mm 40.65 to 40.67 (1950).

3

4

Educators would prefer to have a statute usethe term "professional negotiations". Ifinstead the term ueed is "collective bargain-ing" or just "negotiations", the legislationis using synonymous terms, The insertion ofthe word "professional" does not legallydictate any different approach to negotia-tions or bargaining, If the representativesare men of integrity, it will not direct anydifferent ethical approach.

Such was the interpretation of WIS. SW.111.70 (1961) (whioh uses the words "con-

ferences and negotiations") by the 2 to 1

majority of the Wisconsin Employment Rela-tions Board in Moew v, City of New Berlin,Case IV, Doc. #7293 (1966).

5 37 Wis. 2d 483, 155 N.W.2d 78 (1967).

6 The California statute presents an example ofa proportional representation scheme. CAL.GOV'T CODE m 3501 (1966), as ams4404, Supp.1968) and CAL. EDUC. CODE gg 13080-88 Supp,1968).

7 National Labor Relations Aot 8(d), 29U.S.C. m 158(d) (1964).

8Id

9 301 U.S. 1, 45 (1937) (emphasis added).

10Globe Cotton Mills v. NLRB. 103 P.2d 91, 94(4th Cir.1939),

NLRB v. George P. Pilling & Son Co., 119 P.2d 32.37 (3d Cir. 1941) (emphasis added).

11

12NLRB v. Montgomery Ward & Co., 133 F.2d 676(9th Cir. 1943),

13Paul Herzog at i

12141-234-19" f191-1-114-1111242

1 6PaIllic Welfare, 00th Cnng. 1st eels.

47).

14National Labor Relationi 1.tg 8(d), 29 U.S.C.158(d) (1964).

1589 N.L.R.B. 303 (1950).

16The Third Cirouit read the facts differentlyand felt that counterproposals had beenmade, NLRB v. Landis Tool t:o., 193 P,2d279 (3d Oir, 1932).

17Highland Park Mtg. Co., 12 N.L.R,B. 1238(1939), enforced, 110 P,2d 632 (4th Cir.1940).

18Fibreboard Paper Prods, Corp. v. NLRB, 379U.S. 203, 214 (1964).

19 Capital Aviation, Inc., 152 N.L,R,B. 74565); Dierks Poresto, Inc., 148 N.L,R,B.

923 (1964).

20255 F.2d 564, 566 (5th Cir. 1958).

21NLRB v. American Nat'l Ins. Co., 343 U.S.395, 408-09 (1952).

22255 F.2d at 569.

231d.ITP.ON

24Joint School Dist. No. 8 v. Wisconsin Employ-ment Relations Bd., 37 Wis, 2d 483, 494, 155N.W.2d 78, 83 (1967).

25Instead of the "conferences and negotiations"requirement of g 111,70 of the Wisconsinstatute.

26NLRB v. Montgomery Ward & Co, 133 P. 2d 676(9th Cir. 1943).

27NLRB v. American Nat'l Ins, Co., 343 U.S.395 (1952).

28In the early case of Highland Mfg. Co., 12N.L.R.B. 1238 (1939), lauslud, 110 F,2d 632(4th Cir. 1940), collective argaining wasinterpreted to include an obligation to enterinto discussion or negotiations with an openand fair mind and with a sincere purpose tofind a basis for agreement concerning issuesraised.

29NLRB v. Insurance Agents Union, 361 U.S. 477(1960).

However, board member Jenkins, in a concur-ring opinion, stated flatly that he felt theNLRB would have oondemned the oounterapproaohas an indioation of bad faith in negotiationseven if other elements had not been involvedin the oase. The oase was appealed, but nodecision has been rendered because of in-volvement in certain procedural difficulties.

33Philip Carey Mfg. Co. v, NLRB, 331 r.2d720 (6th Cir. 1964).

34NLRB v, American Nat'l Ins. Co., 343 U.S.395 (1952).

)3Nix8 v. Katz, 369 U.S. 736 (1962).

36NLRB V. Crompton-Highland Mills, Ino., 337U.S. 217 (1949).

37NLRB v. United States Sonios Corp., 312 F.2d610 (1st Cir. 1963); NLRB v. IntracoastalTerminal, Inc. 286 r.2d 954 (5th Cir. 1961);Pacific Gamble Robinson Co. v. NLRB, 186F. 2d 106 (6th Cir. 1950).

38National Labor Relations Act 8(d), 29 U.S.C.g 158(4) (1964), prescribes rules in respectto negotiations prior to efforts to modify orterminate an existing contract. A otatestatute could very wisely do so in the fieldof public employment.

"NLRB v. Union Carbide & Carbon Corp., 100N.L.R.B, 689 (1952).

40NLRB v. Jacobs Mfg. Co., 94 N.L.R.B. 1214(1951), enforced, 196 F.2d 680 (2d Cir. 1952).

41For an expression of this philosophy, seeTruitt Mfg. Co., 110 N.L.R.B. 856 (1954),enforce5ent denied, 224 F.2d 869 (4th Cir.1955), revld, 351 U.S. 149 (1956).

42150 N.L.R.B. 192 (1964).

30NLRB v. American Nat'l Ins. Co., 343 U.S.395 (1952).

31150 N.L.R.B. 192 (1964).

32There were other things that General Electricdid which would make it possible to explainthe outcome on the basis of totality of con-duct adding up to bad faith in negotiations,

"Local 1226, Rhinelander City Employees v. Cityof Rhinelander, 35 WiS. 2d 209, 151 N.W.2d 30(1967).

44356 U.S. 342 (1958).

45379 U.S. 203 (1964).

46IA.

48

Jj

The Agency Shop

This chapter was prepared by Educational Service Bureau

staff editors with the assistance of the National Right To

Work Committee.

. 52

The NatJinal Right to Work Committee is acoalition of thousands of employees, both unionand non-union, as well as business firms,house.wives, clergymen and educators, which was or.ganized in 1933 to protect tho right of oiti-zens to get and hold jobs, whether they belongto labor unions or not.

Ie public education, the "agenoy shop" ispart of a negotiated agreement that requiresteachers to either pay a "service fee"--usu.ally an amount (quivalent to monthly dues--tothe local teachor organization within a spec.ified period of time, or be fired by the schoolboard.

Here is how the agency shop works in prao-tioe! The Livonia (Michigan) Eduoation Associ-ation negotiated an agency shop contraot withthe Livonia School board in the fall of 1968,Mrs. Ruth E. Williams, a 57-year old elemen.tary school teacher, refused to pay dues to theLEA throughout the 1968-1969 school year. Com-menting that Mrs. Williams was a "fine teaoherwhose professional qualifications were neverin question," LEA Executive Secretary RogerStephon insisted she be fired for refusing topay forced dues to his organization. TheLivonia School Board complied and fired Mrs.Williams this past June.

To date there has been no final court de-cision which has ruled the agency shop illegalin public education.

School boards faoe a host of new problemswhen they grant exclusive reoognition rightsto a teacher organization.

The organization must then represent allteachers in the distriotoregardless of whetherthey are members of the organization or regard-less of whether they benefit from the unsolic-ited representation. The board cannot discrim-inate against non-members in negotiations or inprocessing grievances. Any salary increases orimprovements in working conditions negotiatedby the organization must apply to members andnon-members alike.

These organizational obligations to re-present all members of the negotiating unitraise several important questions concerningthe relationship between the individual teach-er and the representative organization.

What obligations, if any, does the indiv-idual teacher have to the organization desig.nated exclusive representative? Should theteacher be required to join the organization?Should the teacher be required to pay "servicefees" to it under the agency shop plan? Thesequestions, which underlie the Right to Workcontroversy in private employment, are rapidlybecoming controversial issues in public educa-tion.

Forms of "Organisational Security"Unions in the private sector have deve1 .

oped the following forms of "union security"provisions in their oontracts!

Closed Shop--Employees must join the union

30

Union Shop..

Agency Shop..

before they cern begin workingfol the company (made illegalby the 1947 Taft-Hartley Act.)

Employees must join the unionwithin a speoified period oftime after being hired. Periodis usually 30 days, although 7days is more prevalent in theconstruction industry.

Employees are not required tojoin the union, but they areforced to pay a "service fee"that is usually equal to duesane initiation fee.

Maintenance of Employees are not required tojoin the union, but if they

Membership-- join they must maintain mem-bership for the life of thecontract.

School administrators are facing more andmore demands for some form of organizationalsecurity in negotiations with teacher organ-izations. Organizational needs often requiresome financial support from nonmembers if thelatter are to be effectively represented.Salaries for full time union professionals,office and overhead expenses, publications,advertisements, and attorney and consultantfees often place great strains on the budgetof the teacher organization.

Furthermore, some union officials com-plain, the organization's duty to representeveryone fairly creates an incentive for teach-ers to not join the organization, because non-members are guaranteed the same benefits asmembers.

On the other hand, existing federal lawin the private sector grants to a certifiedlabor union the privilege of representing allemployees in a company's bargaining unit--in.eluding union members and non-union members.Although as many as 49% of the affected work-ers may have opposed certification of the un.ion, they are required, by law to accept it astheir legal bargaining representative. Thisprivilege accorded unions by the 1933 WagnerAct is called "exclusive bargaining rights".

It was described as an "extraordinaryprivilege" by a three-judge district court,whose opinion was subsequently affirmed by theU.S. Supreme Court (jNational Maritime :Union ofAMeriaa v, Ueraog, 334 U.S. 60-, 1948).

It was union officials who insisted thatCongress grant them this "extraordinary priv-ilege", But today union spokesmen complainthey are unjustly "burdened" by the "legal ob-ligation" to represent non-union workers.

How do union officials propose to remedythis problem of their own creation? They are

Wadvocating a law that would authorizeons to be bargaining representatives for

r.112.121-1.. Rather, they are demand.ing authority to collect money.-by compulsion-.from employees who do not wish to be repre .sented by the union.

53

A unique approach to this problem wastaken by the state of Vermont in April 1969,when the legislature enacted a statute author-izing collective bargaining for state employees.While shielding state employees from all formsof foroed unionism, including the agency shop,the law requires that an employee in the bar.gaining unit who has elected to refrain fromjoining the union and who wishes to be repre.sented by the union in a grievanoe prooeeding,can do so only upon the payment of a fee equalto one year's membership dues,

The solution advanoed by some local andstate NEA affiliates is to support legisla-tion authorizing local organizations to ne-gotiate an agency shop contract requiringteachers to pay dues to the organization or befired. This is especially true now that theNEA has endorsed the agency shop in its re-oently proposed federal law mandating collec-tive bargaining in publio education.

Says the law, "It is . . the policy ofthe United States to recognize the rights ofprofessional employees of such boards of edu-cation to form, join and/or assist employeeorganizations " In the absence of anylanguage protecting the right of teachers notto "form, join and assist" employee organiza-tions, the term "assist" is universally con-strued to mean the agency shop would be bothlegal and negotiable.

The Michigan Education Association, spec-ifically, has urged its local affiliates tonegotiate agency shop clauses. Other state as-sociations are likely to follow suit in thenear future.

On the other hand, AFT affiliates may beless likely to introduce agency shop provi-sions into negotiations. Nationally, the APTis reluctant to urge its local affiliates toadopt the agency shop. The reason for this re-luctance is that a local organization wouldprobably solidify its position as exclusive re-presentative if it won an agency sllop.

On this basis, the AFT nationally wouldhave more to lose than the NEA, since manymore NEA local associations are serving as ex-olusive representatives than are APT affiliatesIt is likely, however, that some local APTleaders, confronted by relatively low member-ship in school districts where the APT localsare obligated to represent large numbers ofnonmembers, will deviate from national policy.

School administrators will undoubtedly befaoed with organizational security demandsfrom noncertifioated employees as well, TheWilmington, Delaware, Board of Education (amongothers) has agreed to an agency shop for agroup of bus drivers and custodians. It seemsobvious, therefore, that school administratorswill have to be prepared to adopt a consistentposition on this issue,

Analysis NeededSchool administrators should carefully

analyze the disadvantages of the agency shopbefore formulating a definite position on this

51

54

issue, An agenoy shop onuses many changes ina typioal negotiating relationship, It hasimplications that go far beyond the ourrentround of negotiations; hence long-range con-siderations must be weighed carefully.

The legality of various forms of organi-zational security is one of the first problemsto be considered. Two oourts have issued oon-tradiotory opinions on the legality of relatedforms of organizational security in public ed.ucetion, (Sees DAXIMILII-ASPWJWL:ri t o1$iverboo.t2d 11 10 tana 1 9 andof E uc ti D stri t ardens,

7 .ssoUr p

very ew

No CQr, however, has ruled speoificallyon the ega _ty of the agency shop in eduoa--tion, As a result, boards of eduoation andteacher organizations will continue to nego-tiate agency shop clauses. A lawsuit will bealmost guaranteed if there is an opposingteacher organization in the school district,Even if there is no rival organization toraise the issue of legalitypan individualteacher may do so. Such a case now exists inDetroit, Michigan. It is impossible to pre-dict accurately the outcome of such a case.

The agency shop is usually a high prior-ity goal for the teacher organization. Thismight appear to place the school administratorin an advantageous negotiating position. Hemight be tempted to use the agency shop to ob-tain some important oonceesions in negotia-tions.

Even though the agency shop may be an im-portant goal for the teacher organizationotheorganization may have difficulty obtainingmembership support for it. In the short run,the agency shop benefits the organizationmore than its members. Also, it is much eas-ier to obtain public support for salary in-creases and reductions in class size than foran organizational security clause. Por thesereasons, the organization is not likely topublicize its demand for an agency shop.

Organisational PitfallsIt is possible for an agency shop to

backfire on organizational leaders. Onoe ateacher is required to support an organiza-tion, he may beoome more interested in itsactivities. This could result in increasedpressures on the leaders and give rise torival candidates fur elected positions in theorganization.

Do teachers alw4Ye benefit from being re-presented by a union? The experience ofstates which now permit compulsory unionismmakes it clear that some teachers are helped,others are hurt by union representation.

The teacher who pays the due's, some say,is the only person qualified to decide whetheror not a union is worthy of his support. Theteacher's freedom to choose would be strippedfrom him by the agency shop and would becomethe subject of bargaining between the schoolboard and a union official, both of whom will

naturally be tempted to put their own personalinterests ahead of that of the employee,

If the agenoy shop were adopted, teacherscould be required to pay money to a union, eventhough they know its salaries officials mightbel

1. Dishonest, corrupt, lazy or inoom-potent;

2, Pursuing polioies which would hurtthe schools and destroy job security;

3. Making "sweetheart" deals with un-scrupulous or weak-kneed school boards andadministrators; or

4. Spending union money to elect polit-icians who are more interested in increasingthe power of union officials than in the wel-fare of the school system.

An "agency shop" agreement negotiated byofficials of a teachers organizati.in can eas-ily become a deal in which ths incumbent of-fice-holders obtain union campaign support inexchange for requiring all employees to paydues to union treasuries.

Former assistant counsel for the UnitedAuto Workers Kurt L. Hanslowe, now a Cornellfaculty member, has observed: ". theunion shop in public employment has the poten-tial of becoming a neat mutual back-seratch.ing mechanism, whereby public employee repre-sentatives and politicians each reinforce theothers' interest and domain, with the indiv-idual public employee and the individual citi-zen left to look on, while his employment con-ditions and his tax rate and public policiesgenerally are being decided by entrenched andmutually supportive government officials andcollective bargaining representatives overwhom the public has diminishing control."

Professor Hanslowe's observations mightalso be applied to the agency shop. Said theFlorida's Supreme Court (Schermerhornvs_Rotail_Cterksj: ". the agency shopTillUse is repugnant to the Constitution inthat it requires the non-union employee topurchase from the labor union a right whichthe Constitution has given him. The Constitu-tion grants a free choice in the matter of be-longing to a labor union. The agency shopclause . purports to acknowledge thatright, butt in fact, abrgates it by requir-ing the non-union worker to pay the union forthe exercise of that right or, in the alter-native, to be discharged from his employment."

Political SettingThere exists the opportunity for union

resouroes in enormous amounts...made up mostlyof forced dues netted by compulsory union shopand agency shop agreementsto be used to in-fluence the political judgments of the memb-bership.

The official magazine of the AFL4I0,reported on decisions made at

Ihii-e-oUpfa convention in December 1967 with

these words: "The convention called for toppriority for political cation , , all unionswere urged to assign as many full-time staffmembers as possible for full-time politioaleducation work as early as possible in 1968,"

As Joseph Rauh, then attorney for theUAW, told the U. S. Supreme Court in 19561"When a union member pays his dues, he haspaid for his political action."

According to authoritative reports, theAFL-CIO last year spent more than sixty mil-lion dollars on the campaign of a presidentialcandidate who ultimately received the vote ofonly 56% of union families. Add to that thecampaigns for public officials at every level,and union political upending last year probablytotaled 200 to 300 million dollars.

Dut the fact that the Presidential can-didate who was backed by union money was op-poh:ed by some 44% of union families is reallynot the issue. The issue is the agency shop:Are workers compelled, as a condition of em-ployment, to pay money to a union which usesit for candidates to whom that worker is op-posed?

In the area of politics, certain funda-mental civil rights are generally held inviol-able,no matter how small the minority involved.As the U. S. Supreme Court said in Barnette v.West VirKinia Board of Bs:h.:cation, "The verypurpose of the Bill of Rights was to withdrawcertain subjects from the vicissitudes of po-litical controversy, to place them beyond thereach of majorities. One's right to life,liberty and property, to free speech, a freepress, freedom of worship and assembly, andother fundamental rights may not be submittedto vote; they depend on the outcome of noelection."

The situation of the captive teacherbeing forced to pay compulsory agency fees isprecisely the situation described by ThomasJefferson when he sald, "To compel a man tofurnish contributions of mo",ey for the propa-gation of opinions Which he disbelieves andabhors is sinful and tyrannical,"

Justice Hugo Black, in 1961, commentedon the same principle in a contemporary set-ting. He wrote: "There can be no doubt thatthe federally-sanctioned union shop contract'here, as it actually works, takes a part ofthe earnings of some men and turns it over toothers, who spend a substantial part of thefunds so received in efforts to thwart thepolitical, economic and ideological hopes ofthose whose money has been forced from themunder authority of law. ThIA injects federalcompulsion into the political and ideoloLicalprocesses, a result wh.l.ch / have supposed ev-eryone would agree the First Amendment wasparticularly intended to prevent. And itmakes no difference if% as is urged, politicaland legislative activities are helpful adjunctsof collective bargaining. Doubtless employerscould make the same arguments in favor of com-pulsory contributions to an association of Gm.ployers for use in political and economic pro-grama calculated to help oollective bargaining

52

55

on their side, But the argument is equallyunappealing whoever makes it, The stark factis that this Aot of Congress is being used asa means to extract money from these employeesto help get votes to win elections for partiesand candidates and to support doctrine theyare against."

Action in Michigan

The main thrust of the drive to establishagency shop contracts is centered in Miohigan.The state law governing collective bargainingin the public sector--and therefore publiceducation--is silent on the permissibility ofnegotiating the fgenoy shop. A number ofstates, (most recently, Wisconsin), however,have excluded reference to the agency shop inproposed legislation.

The silence is being interpreted by teach-er association/union leaders as permitting theagency shop, an interpretation that has beenbolstered by a number of favorable fact-find-ing reports in the state. Consequently, a num-ber of school boards have agreed to permittheir teachers to pay agency fees to associa-tions/unions. Although the exact number ofagency shop agreements in public education isnot known at this time, the editors estimatethe number to be at least a dozen.

This trend in Michigan will probably beaccelerated by the recent ruling of the Michi-

33

56

gan State Tenure Commission, of the MichiganState Board of Education, which stated that theagenoy shop is not contrary to the state's ten-ure law, The agency shop issue has yet toreach the statels supreme courtbut it inev-itably will, as court challenges are alreadyunder way.

There are strong forces in every statewhich oppose the agenoy shop, Michigan is noexception, In considering the agency shopmatter, that state's powerful Michigan Munici-pal League has taken this positions

"The League membership is opposed to anychange in our law which would compel nonunionmembers, at the risk of losing their jobs, tojoin a union or to pay union dues. Such a re-quirement would force thousands of public em-ployees who have freely elected not to joinunions, to pay union dues. We do not believesuch a requirement is necessary or desirable."

Future Uncertain

In the fall of 1969 the Advisory Commit-tee on Intergovernmental Relationships releaseda report encouraging all states to adopt col-lective bargaining laws for public employees.This committee recomended as a part of itsreport that agency shops be prohibited. Whatimpact this report will have on the future ofthe agency shop remains to be seen.

Part II

Advisory Commission's ConclusionsOn Labor Relations

The long-awaited blue ribbon report onlabor relations in government by the AdvisoryCommission on Intergovernmental helations hasnow been released. Undoubtedly, the Commis-sion's report will have great impact upon thefuture of collective bargaining for public em-ployees, including teaohers, at all levels ofgovernment.

Following are the Commission's majorfindings, conclueions, and recomrandations.

In this report, the factors reeponsiblefor the mushrooming of public employee oraani-zatione have been bighlighted, the provi.sionsof state labor-management relations legisla-ion for the public sector examined, the our-

rent status of publio employor-employee relaetions at the local level explored, and the ma-jor policy problems and issues raised by theseand related developments analyzed in depth.The Commission now sets forth its major find-ings and conclusions, as well as proposals forplacing labor.management relations in stateand local employment on a stable, equitable,and workable Jasis.

Summary of Major Findings

- Government today, especially at thestate and local levels where there are morethan nine million employees, has become aprime source of employment in the UnitedStates, The growth in membership of publioemployee organizations, however, has not keptpace with the rapid rise in governmental hir-ing, although it has far outdistanced therates of other sectors of the labor market,climbing from juut over five percent of theae-regate union membership in 1935 to nearly10 percent of the current total,

- In 1966, nearly eight percent (6440o0)of all state and local employees were membersof various APL-CX0 affiliates and of indepen-dent state and local employee associations.When the relevant figures for the National Ed-ucation Association, American Nurses Assooia-tion, Fraternal Order of Police, and Assemblyof Government Employees are combinod withthose for the unionized sector, tha overallHorganited" portion of the state and localpublic) service comprises at least one quarterof tho total, Yet, this sector clearly is notmonolithically organizedl cleavages, competi-tion, and conflicting goals are as character-

istio of the relations among public employeeorganizations as are eooperation and oollabo-ration.

- Survey rasults indicate that most munici-palities have some type of public employee or-ganization, and nearly all of those over500,000 population, in the northest and north-central regions, classed as central cities,and having a mayor-council form of government,have at least three unions. On the otherhand, the fastest organizational growth ratein recent years has occurred in southern, sub.urban, non-SMSA, as well as counoil-managormunicipalities - most of which not long agowere generally considered as being hostile orindifferent bo unions or other employee orga-nizations. More than one.half of the urbancount4.ss surveyed had at least two public em-ployee organizations, with jurisdirtions over250,000 and those located in the western re-gion showing the most significant strength.

- National union affiliates alone werefound in about half of the municipalities sur-veyed and especially in large jurisdictions,suburbs, and non.SMSA cities. Local associa-tions only predominate in the west and gener-ally in those organized munioipalities below1000000. A mixture of nationals and localswas reported by approximately one-third of thetotal and most frequently by northeastern cen-tral cities, The ACTR-NACO survey shows coun-ties over 250,000 in the west with a strongtendency to have both national affiliates andlocal associations. Local associations exclu-sively are most common in counties with a pop-ulation between 250e4 and 50,000 and in thosein the northeast regardless of size, while na-tionals alone predomenate in the seuth,

e /n terms of the extent elf elembere'Ap,nearly half of all cities surveyed indicatedless than 25 percent of their work feeroe be .longed to employee organizations. Nearlythreeefourths of the public labor force of muenioipalities over 100,000 is organized asagainst only one-fourth of that of cities un-der 25,000. Fire, police, and publ.ic welfarepersonnel are the most heavily organized localoccupational groups,

. In )3 stateA, the right of state and loecal employees to organize has been sanctionedby statute, court deoislan, attorneys generalopinion, or executive or' :; in two others theright is acooroed to st,,. personnel only and

5 F?

in throe others to local employees solely.Fourteen of thesm states during the past de-cade have enacted oomprehensive labor-manage-ment relations legislatisn which mandates col-leotive negotiations for state employees, lo.cal personnel, or bosh. Two other states havepassed laws permitting management to negotiateoolleobively with public employee representa-tives. Five states have enacted statutes re.quirsng publio employers to "meet and oonfe.s"with individual employees or with employee or-ganizations. States have exhibited a somewhatgreater willingness to authorize collectivenegotiat...ons at the local level than for theirown employees. Twelve states provide no gen-eral administrative or statutory authorizationfor the right to organize, but three recentlower federal court decisions have held thatbelongini, to a public employee organization isa constitutionally protected right and oannotserve as a basis for dismissal or other formsof punishment.

- Nearly two-thirds of thy., municipalitiesand more than one-half of the counties sur-veyed have 4 laws for formal policies dealingwith the right of general or public safetypersonnel to organize; with punisherant fortheir organizational activities; with arbitra-tion of employer-employee disputes; or withmanagement's power to sign negotiated agree-ments, In some instanoes, state legislationoovering one or more of these areas may ex-plain the lack of local laws or :Thrmal poli-cies. Moreover, in certain states and locali-ties whore collective negotiations have notbeen either explicitly authorized or prohibitsed, de Lagla negotiations have taken place inorder to keep public employer-employee rela-tions on an even keel.

- While no state permits strikes by publiecmployees, 254 "work stoppages" occurred in1968 - 17 times the 1958 figure. Between 1966and 1968, the number of strikes involving gov-ernment employees almost doubled. Teacherswere engaged in more stoppages than any otherpublic sector occupational category. Gut eco-nomic or professional issues were the primeonuses of strikes, but union recognition andsecurity wore the second most signifioant rea-sons, The concept of a "limited right tostrike" is now being debated in some quartersas evidenced by ite endorsement in two recentstate study commission reports, its support bycertain "experts" in the field, and its incorsporation in legislation now pending before atleast one legislature. At the same time, arecent Gallup poll indicated that nearly two .thirds of the general public continues to fa-vor anti-strike provisione and safeguards, butsanctions the right or public employees ineeluding teachers, policemen, and firemen - tobelong to unions,

- With reference to the oontent of compreehensive public laborassanagement relationslaws, wide diversity exists as to whether andwhere tha "meet and confer" or "collective neegotiations" approach is used and whether thepreferred approaoh is permitted or mandated.Diversity also oharaoteriees the kind of adeministrative agency assigned responsibilitiesunder the act (other than a preference to use

5 6

59

an existing instrumentality); the extent ofthe authority conferred explicitly or implio-itly upon the agenoy to handle grievances andto mettle disputes; the definition of unfairlabor praotices (other than a simple noninter-forerun provision and the requirement to bar-gain, negotiate, or meet and confer "in goodfaith"); the types of matters amenable to ne-gotiations or discussions; and efforts to gearcollective negotiations with budgeting time-tables. Some uniformity, however, emerges inthe right to union membership, strike prohibi-tions, hearing procedures on charges of unfairpractices, and the absence of provisions forunion security suoh as the agency sbep. Ingeneral, it is stl.. too early to assess aocu.rately the merits and Urawbaoks of the variousprovisions of comprehensive state public lmborrelations laws, Superficial evidenoe wouldsuggest that jurisdictions having such legis-lation experience as much - if not more - em-ployee turmoil as those having none, At thesame time, some data exist to document thehunch that a considerable number of impasseshave been resolved and stoppages averted as aresult of the availability of statutory dip-puts settlement procedures.

- Nearly two-thirds of the states have man-dated some terms and conditions of local pub-lic employment, with worhing conditions andfringe benefits the most prominent type forboth cities and counties followed by hours ofwork. City and county public safety personnelare the most common occupational focal pointof these requirements. Only a handful ofstates have provided any fiscal support whenmandated conditions have caused a hike in lo-cal personnel outlays.

- Thus far, federal mandating of personnelstandards for state and local governments hastaken two forms; requiring, under 30 grantprograms, the establishment of personnel sys-tems based on the meris principle by adminis-tering state and local agencies as a conditionof receipt of federal funds; and entending thePair Labor Standards Act to cover certainstate and local hospitals and educational per-sonnel. In the case of the formero.federalfunds from these grant programs have beep usedto hel) cover the cost of administering meritsystem requirements. Moreover, training fundsin certain functional areas have indirectlyassisted states in meeting mandated require=ments, Extension of the Pair Labor StandardsAct to certain categories of state and localeducation and hospital personnel was upheld in1967 by the Supreme Court in. Mullsal.24liago While most states are in variousstages of compliance with this decision, cerstain observers detect a feeling among somestate and local officials that this precedentmay well serve as the basis for later federal"encroachments,"

The Commission now sets favth 16 recomemandations for intergovernmental action to imsprove employereemployee relations at the stateand local levels. These recommendations fallunder three major headinget

A. The Rights and Privileges of PublicEmployees

IL The Essentials of Proper Public) Em-ployer - Employee Relations

C, State and Federal Mandating of Em-ployment Conditions

The Comission does not purport to haveany final or ideal unswers in this turbulentarea of public policy. What the Commiasionhas done is to render some Wleotive Judg-ments (not all of them unanimous) as t.o whatappears to be the most desirable direotions inwhich to move, It has set forth in this re-port as clearly and as fully as possible thealternative courses of action facing state andlocal legislative bodies and the reasons forthe preferences at which the Commission final-ly arrived,

Rights and Privileges

A major factor leading to uncertaintyand, in, some instances, to unrest in publiclabor-management relations is the failure todefine the scope of basic rights and privi-leges of public employees, to clarify the po-sition of supervisory personnel, and to assurea responsive and responsible relationship be-tween the membership and leadership or publicemployee associations and unions, The Commis-sion is convinoed that these basio questionsinvolving the freedoms of the individual work-er and of employee orgAnizations, as well asthe necessary limits on these freedoms, shouldbe treated in state legislation and should notbe left to administrative or judioial determi-nation or to the exigencies of a meet and con-fer or bargaining process. The time has longsince passed wnen the argument could be madethat public employees have no rights - yet,the tenor of the times clearly indicates thatan irrefutable case can aa be made that therie.ts and privileges of public personnel are,in all major respects, comparable to and asoomprehensive as those of their counterpartsin the private sector, A balance then must besteuck between the legitimate needs and unde-nieble rights of the employees on the onehand, and the public service responsibilitiesand politioal accountability of the governmen-tal employer, on the other. The reoommenda-tions advanced in this and subsequent sectionsseek to strike tnis balance.

RecommendationAe.....-4146m11512aUlLiatigiUMUUMtfillla

The Commission recommends that the statesenact legislation requiring local governmentsand agencies of the state to recognize theright of their employees freely to join or notto join and be represented by an employee or-ganization,

Sharp increases in the number and typesof public, employee unions and associations andin the willingness of sueh organizations toresort to aggressive tactics to secure theirobjectives have caught many state and localgovernments oy surprise, For the most part,however, the demands now being made by publicemployees merely echo those voiced in the1930's by private industryls labor force,Perhaps the most basic objective is freedom of

37

individual workers to organize and to be rep-resented by an employee organization,

From tne viewpoint of government, thesedemands raise some basio questions, Will notthe soverign authority of the people be com-promised by recognizing organizational free-doms? Will not greater labor strife be a by-product of such an aotion? Will not the orit-ioal differences between public and privateemployment be blurred by conceding thoserights?

The public employee, on the other hand,views formation of unions and assooiations inthe public service as basically an extensionof the citizen's constitutional right to peti*tion bLs government, Sometimes it is arguedthat sloh organizational aotivity is merely anextens4en of tbe constitutional right or freeassociation.

The Commission believes that the sameright of employees in the private seater tojoin unions of their own choosing should beextended to state and local employees by statelegislation, While statutory recognition ofpublic employee organizational rights is notalways necessary, state legislative policyshould be explicit in a matter so vital to thepublio interest and to peaoeful, productivepersonnel relations. Membership in public em-ployee organizations should be recognized bythe states as an extension of the basio con-stitutional rights of freedom of associationand petition.

Oldstyle opponents of the right to unionmembership fear that in the absence of statu-tory safeguards, the political and economicpower of employee organizations would bestrengthened to the detriment of the publicinterest, and that large unions and assooia-tions would use their numbers along with thestrike weapon to win from public managementagreement to unjustifiable demands. Otherssharing this traditional view contend that,based on the sovereignty doctrine, public em-ployees have no inherent right of unioniza-tion. Membership in employee organizations,then, is a privilege that conceivably can berevoked by a legislative body. Some "goodgovernment" critics argue that the goals andtactics of employee organizations are incom-patible with both the merit principle and themerit system. As a result, full-scale organi-zation of the public service should be op-posed. Finally, still other observers believethat since no constitutional right to govern-mental employment exists, public employers mayproperly require nonmembership in employee oreganizations as a condition of employment inorder to ensure public services are providedwithout interruption.

Despite these contrary views, the rightof an employee to join n union or associationas distinguished from the right of an orgas

nimation to be recognized has been upheld bythe U. S. Supreme Court under the First Amend..ment, made applicable to the states under theFourteenth Amendment. Although most statespreviously had not expressly banned membershipin public employee organizations or authorized

management to punish workers for their organi-zational activities, a few states either hadforbidden such affiliation to some or all pub-

lio employees or had imposed conditions whichmade membership unfeasible, The Commissionfeels that these self-defeating state actionsand attitudes do little to engender sound and

stable public employer-employee relations atthis point in ti.ae. Moreover, they run therisk of adverse court action.

While recognition of the right to member-ship is fundamental, of equal importance is

the principle that no public employee shouldbe required or coerced into joining an organi-

zation as a condition of employment. At least14 states recognize that the right to refrainis just as basic and precious as the right to

join, and the Commission supports thim posi-

tion.

Some authorities contend that state leg-islation should not include language thatgives employees the option of not joining an

employee organization. They point out thatthe states should not mandate the "choice"provision since it would preclude employer andemployee representatives from negotiatingunion and closed shop agreements. The prefer-able approach, aocording to this argument, is

for state laws to remain Milent on this mat-ter, thereby providing a greater degree offlexibility for public agencies and employeeorganizations to arrive at agreements tailoredto fit their own special circumstances.

The Commission believes these contentionsignore the fact that in the public service the

right tc join an employee organization must be

aocompanied by the right not to join. Whenthe right to join becomes a duty, obviouslyfreedom of choice becomes merely a catchword.The Union shop and the closed shop may or maynot be appropriate for verious craft and tradeportions of private industry. But given thesize of many governmental juriedictions andagencies, the diversity of employee skills,

and the intense competition between and amongpublic employee organizations, this arrange-ment is wholly unsuitable in the public ser-vice.

The right to refrain from organizationalmembership, however, is conditioned by hand-ling of the representation question. Whilethis right may be expressed in an employee'svote not be be represented by a union or asso-ciation, in practical terms when a majority ofthe employees in an appropriate unit choose anagent to act on their behalf, the individual

i

employee canno refuse to be represented.While the fund

mental right not to join is

still preserve f the employee is virtuallyrepresented by the majority organization. Us.1

der an "agenoy shop" arrangement, he may berequired to pay fees for its "representationalservices," At the same time, the desirabilityof individual employees and minority organize-bions having access to the public employermust be recognized.

The legal right of a public employee tojoin a union or association is meaningless unmllss it is coupled with the right of recognim

38

tion, The fact that recognition is still thesecond highest cause of strikes in the publioservioe indicates the continuing failure of aoonsiderable sector of management to acknowl-edge the right of workers to be represented byan organization of their choice, Given thesize and specialization of the public laborforce, the need today for establishing andsustaining an on-going dialogue between publicemployees and employers is indisputable. Em-ployer recognition of the representationalstatus of employee organizations is clearly aprime prerequisite for any meaningful discus-

sion process.

In the weke of a 1951 Connectiout courtdecision, many cities, counties, and schooldistricts proceeded within their discretionaryauthority to recognize public employee organi.zations in states where suoh practices weronot expressly authorized or prohibited bystatute. Yet, the Commission believes thatstates should not leave the recognition ques-tion to court decisions, attorneys generalopinions, or administrative orders. Statutoryauthorization would resolve any doubts on the

part of the public officials concerning thelegality of their actions, and would prod re-calcitrant officials to recognize organize-tions represerting their employees. Such leg-islative action also would eliminate a basiccause of strikes in the public sector, andwould help inject an element of trust and dig-nity to what formerly, in many instances, wasa suspicious or sparring relationship.

lag.t._0,0u.s. No . 2

Ekclu io- _ef Su ervisor and Certain OtherPersonnel

The Commission recommends that in orderto protect the position of public employers,employee rights and privileges conferred bystate public labor relations laws should be

denied tos (a) managerial and supervisorypersonnel who have authority to act or recommend action in the interest of the employer insuch matters as hiring, transferring, suspend-ing, laying-off, recalling, promoting, dis-charging, assigning, rewarding, or disciplin-ing other employees; who have authority to as-sign; end/or who direct work or who adjustgrievances; (b) elected and top managementappointive officials; and (e) certain catego-ries of "confidential" employees includingthose who have responsibility for administer-ing the public labor relapions law as a partof their official duties./

Supervisors have traditionally been eli-gible for membership in public employee asso-ciations, even though union membership hasbeen denieU to them. The issue of inclusionor exclusion of supervi.sory personnel is par.ticularly controversial in education, thelargest field of local government employment,where the National Education Association andthe American Federation of Teachers have takendiffering positions. NEA favors supervisoryemployee membership while the An, with but fewexceptions, is for exclusion, This problemalso involves middlemlevel supervisors infields other than teaching, where common

professional goals and program objectivesclosely link with management and employees.

Whether to accord supervisory and othermanagement personnel the rights granted regu-lar public employees is a basic issue thatmust be decided by policy makers grapplingwith proposed public labor-management rela-tions legislation. This subject usually ismore complioated in the public than in theprivate sector, due to the probability thatthe latter's traditional definitions of "man-agement" and "employee" may not be applicableto the more complex personnel systems of manystates and localities. Yet, whether to ex-clude or to include such personnel is a ques-tion on which state statutes cannot be silentor vague.

Many supervisors and key professionals -such se teachers, policemen, firemen, and so-cial workers - have a strong community of in-terest with the rank-and-file workers they su-pervise. Hence, frequently no conventionaldistinctions are apparent betwven managementand employee functions.

The sensitive question of the status ofsupervisory and other key personnel in publicemployee organizations must be dealt withforthrightly tn state public lebor-managementrelations legislation, The Commission be-Moves that while such statutes ehould notprohibit supervisors and managerial personnelfrom membership in a union or association,they should not be allowed to hold office inor to be represented by an employee organiza-tion to which rank-and-file employees belong.Elected officials, key appointive people, andcertain "confidential"2 employees also shouldnot be accorded these employee rights. Partic-ipation of any of these personnel in union orassociational activities would sharply limitmanagement's effectiveness at the discussiontable.

A persistent and perplexing problem isthe failure of many key middle-management andsupervisory officials to act.like "manage-ment," even when their role and public respon..sibilities clearly put them on that side ofthe discussion table. A clear legislative de,-nial of employee rights to such personnel sillprompt a clarification of this attitudinalconfusion.

Prom the viewpoint of a union or associa-tion, certain objections also can be raisedconcerning participation by supervisors andother middleahmanagers in their activities.Supervisory personnel cannot remove themselvesentirely from an identification with certainmanagement responsibilities, and this can gen..erate intra.ainion strife. Their involvementin union or associational affairs in effectplaces management on both sides of the discus-sion table. State legislation dealing withpublic labor-management relations, then,should clearly define the types of supervisoryand managerial personnel which should not beaccorded employee rights.

Some observers contend that states shouldstatutorily accord to supervisory employees

the rights to organize and to present propos-als to the omployer's representative. It isgenerally conceded, however, that this ap-proaoh is sound only if supervisors, when ex-ercising such rights, act through an organiza-tion entirely independent of any whioh repre-sents non-supervisory employees. Michigan'sPublic Employment Relations Aot for city,county, and district employees, for example,permits supervisors to form their own bargain-ing units. Establishment of separate unitspresumably ensures that supervisors will continue to uphold their responsibilities as rep-resentatives of management when dealing withrank-and-file employeee.

Another body of opinion holds that nostate law oan deal comprehensively with thestatus of all supervisors, given the diversityof public eMployers and their varying supervi-sory structures. It is difficult if not im-possible, so the argument rune, to deal equi-tably with this problem by statutory defini-tion. This position is taken in New YorkState's "Taylor Law," which does not attemptto define "supervisory employee" precisely,but empowers the state public employee rela-tions unit to promulgate this definition byrule or decide it On a oase-by-case basis andthen apply it to such occupational categoriesas the agency deems appropriate.

The Commission finds both of these ap-proaehes defective. Allowing supervisors toorganize and to present proposals perpetuatesthe vocational ambivalence the: this group haslong exhibited. The need at the present timeis for management to identify its members andto develop a healthy community of interest.This, in the long run, will benefit employeesmore than any short-term gains which mightcome from supervisors continuing to act aspart-time advocates for the rank-and-file.

Leaving the supervisory status questionopen for administrative determination willproduce widely varying interpretations of or-ganizational rights, and this will do littleto engender cohesion within management ranks.Consistency between and among state and localjurisdictions in the definition of the rightsof supervisory and managerial personnel canonly be realized through legislative action.Experience to date indicates that administra..tive units have encountered severe difficul-ties in coping with this question when legisuslative guidelines are conflicting, uncertain,or non-existent.

The Commission believes, however, thatsupervisory and managerial personnel shouldenjoy certain basic organizational rights.They should.be permitted to join and to berepresented by an organization that does notinclude rank-and-file employees on its member-ship roster. They or their representativesshould be authorized to meet on an informalbasis with their employer's agent for the purepose of consultation in connection with theterms and conditions of employment or on suchother matters as may be determined by theagenoy head. Yet, regardless of their top ormiddle echelon status, because they are stillmembers of the management team, supervisors or

59

62'

their representatives should not participatein formal discussions, nor should they be par-

ties to memoranda of understanding with the

employer.

lig,wamazai_212,./194.2,Proh.11:ttns

The Commission recommends that state la-

bor relations laws prohibit all public employ-ees from engaging in strikes. Such lawsshould mandate the use of specific procedures(e4,, fact-finding, mediation, advisory arbi-tration) to Kesolve impasses in public employ-ee disputes.)

The rash of work stoppages in the public

sector in recent years has precipitated heateddebate over the issue of whether the right tostrike should be extended to public employeesand, if not, how effectively to preventstrikes in the public service. The implica-tions of this dlfficult question are numerousand complex. If public employeee are prohib-ited from striking, for example, win thisreally make them "second-class citiwens" incomparison with their private sector counter-

parts? Will strike bans obstruct meaningfuldiscussions with public employers? Will suchprohibitions actually deter public employeeSfrom resorting to this tactic?

On the other side of the coin, if publicemployees are not prohibited from striking,will this ensure parity with their counter-

parts in private enterprise? Will removal ofa strike ban guarantee a meaningful employer-employee dialogue in arriving at the terms andconditions of public employment? Or will au-thorization of the right to strike generatemore and more work disruptions?

The Commission believes compelling rea-sons exist for prohibiting any public employ-eee from engaging in strikes. Neither legis-lative bodies, courts, or the general publichave been persuaded to move in this direction.None of the 23 states having comprehensivepublic labor-management relations etatuteshave seen fit to lift this ban wholly or par-

tially. Moreover, opinion polls indicate thatpublic patience with striking state and localemployees han begun to ebb rapidly.

To condone strikes is to facilitate dis-ruption of essential public services which ul-timately could bring government to a stand-

still, To condone strikes is to sanction put-

ting the government employer, who lacks theweapons of his private counterparts at themercy of his organized workers, To condonesrikes is to permit undermining the authorityof government at a time when a growing majori-ty of the American electorate feels that thesymbols of governmental authority - if not the

substance e are tattered and in need of mende

ing, To condone government employee strikesis, in the final analysis, to reduce governement to the level of just another corporateunit within our pluralistic society, and thisis not conducive to a meaningful assessment ofthe nature, purpose, and basic functions ofgovernment in a democratic, representativesystem,

The Commission disagrees with those whoargue that in this area the experience of pri-vate industry is wholly relevant. Bons onstrikes by public employees do not make thepublic worker a "second-class citizen" in com-parison with his private enteeprise counter-part; they merely recognize tno unique charac-ter and mission of government. Nor are suchprohibitions necessarily incoilpatible withproductive employer-employee discessions;meaningful dialogues are not produced bystrike threats. Instead, they are based uponprocedures which effectively guide the courseof labor-management talks and produce a peace-ful resolution of disputes. For this reason,state labor relations laws should provide s?e-cifically for an "arsenal of weapons" - suchas mediation, fact-finding, and advisory arbi-tration - in order to resolve deadlocks. Pro-cedural mechanisms and the strike ars differ-ent means to the same end - improvoment of theterms and conditions of employment, The for-mer, since they recognize the special groundrules under which government has to operate,are infinitely prei'erable to the latter.

In the private sector, the strike weaponmay be an appropriate device if only becausethe employer can counter it with his own eco-inomic power - the lockout. Moreover, the con-'sequences of most work stoppages in privateindustry usually are not injurious to largenumbers of people. But it is significant tonote that private sector strikeS endangeringthe public health, safety, and welfare have

been enjoined.

601:,

To focus narrowly on the fact that cer-tain employees in both the public and privatesectors perform identical jobs and even belongto the saMe union, and then to argue that theline between the sectors has vanished is to

tilt with windmills. When one government as-sumes a function which another government hasnot assumed or when one government divests it-self of a role that others retain, the kind ofpolitical and public support for such acquir-

ing or relinquishing places the functions gov-ernmentally performed into a special category.They are public funotions, supported by publicrevenues, and geared to a goal that has beendetermined to be in the public interest.

Because of tho essential nature of virtu-ally all public services, because political -far more than economic - criteria'are the beesis for decisions concerning the terms andconditions of public employment, and becauseof the powerlessness of the public employer tocounter strikes by his workers, work dierup-tions by any public employees simply cannot betolerated; otherwise effective government isimpossible. In this way, then, private andpublic employment are and must remain vastlydifferent,

The Commission recognizes the recent sup-port in some quarters - particularly 1968study commission reports in Pennsylvania andColorado e for a "limited right to strike" Mr"nonessential" employeee, This proposal, how-ever, contains a number of serious flaws. Obejective criteria to determine the occupationalcategories which are "essential" and "nones-

63

sential" would be difficult to develop andnext to impossible to implement, A real quan-dary would be specifying the conditions underwhich an occupation is "nonessential" and de-termining how long a strike by such employeescould be tolerated, Moreover, to extend aright to strike to the often meager and unor-ganized ranks of those oommonly thought of as"nonessential" employees woulibe virtually mean-ingless, Another important consideration isthe adverse psychological impact an employingIagency would oreate when it tells certaingroups of its employees that since they are."nonessential" they may strike, For thesereasons, the "limited right to strike" is nei-ther desirable nor feasible.

The Commission likewise can see littlejustification or rationality in an approachlthat sanctions the right to strike on the onlehand but makes enjoinable by the courts anywork stoppages which would be detrimental to.the public health, safety, or welfare - a ca-veat that could easily cover practically allemployees. Such an approach throws the wholeproblem back into the courts. One reason forthe current turmoil in the state and localpublic service is that many legislatures haveabeicated their responsibilities for irAbliclabor-management relations to the bureaucracy,the juridiciary, and pressure groups.

The Commission is aware of the feeling insome quarters that state public labor-manage-ment relations laws should remain silent onthe issue of whether public employees May ormay not strike, since this approach ostensiblywould permi', greater flexibility in copingwith delicato issues under discussion. It al-so is claimed that statutory eilence wouldplace governmevt in a neutral posture on thiscontroversial question. The Commission findsthese arguments faulty. Statutory silencewould inject uncertainty and confusion intothe one area of public employer-employee rela-tions where near unanimity prevails. It wouldexpand the already wide discretion of thecourts and the bureaucracy. Government, or atleast its political branches, simply cannotremain neutral on the strike issue, for to doso would be to erase the demarcation betweenpublic and private employment. To expect gov-ernmental neutrality on a matter that may wellencourage additional work stoppages is to bepolitically naive.

Meaningful flexibility in coping withdisputes invclves providing a range of viablemechanisms which can ultimately bring the par-ties to a mutually acceptable agreement.These procedures, not strikes, should be thereal focal point of any relevant treatment oflabor-management relations in the public ser-vice. No state statute dealing with this subejeet can afford to ignore this fundamental isesue,

Eing,matudakigatisajiInt raal e ocrac d Pis a

a_ tons

The Commission believes that the pUblicinterest and the preservation of public em-

6 1

ployee righte dictate that public employee or-ganizations should adhere to certain basicrules and practices designed to assure inter-nal union and associational democracy, There-fore, the Commission recommends that state la-bor relations laws bar recognition to any pub.lic employee organization whose governing re-quirements fail to provide for a "bill ofrights" to protect members in their relationswith the organization, standards and safe-guards tor periodic elections, regulation oftrusteeships and fiduciary responsibilities oforganizational officers, and maintenance ofaccounting and fiscal controls and regular fi-nancial reports, Such reports should be filedwith an appropriate agency of the state, andmade public upon receipt.

In considering the multi-dimensional na-ture of public employer-employee relations atthe state and local levels, the question ofunion and associational democracy and integri-ty cannot be ignored, Experience in the pri-vate sector clearly demonstrates the need toinclude this matter in state public labor-man-agement relations legislation, Yet, existingstate laws dealing with public employees donot do so either under unfair practices or ina separate section.

Those arguing against statutory treatmentof organizational democracy and fiscal integ-rity point out that existing federal legisla-tion already covers all major labor unions.Consequently, any state legislation would beduplicative and unnecessary, and would buryemployee organizations under mounds of paperwork required to comply with these state-im-posed safeguards, This line of reasoning isonly partially true, however, since no profes-eional association or independent employee or.ganizations are covered by this national legeislation. Some skeptics contend that genuine"union democracy" is a matter of proper inter-nal organizational relationships and spirit,and that external legislation can never in-still "democracy" if the essential foundationprerequisites are lacking. While there issome truth in thie claim, it is also valid tocontend that the kind of statutory provisioncalled for here can establish a legal recoursefor those seeking to secure intraeorganiza-tional democracy and a legal basis for moni-toring the fiscal activities of employeeunions and associations. Finally, still oth-ers argue that the failure of practically allstates having public labor relations laws toinclude such a proviso is indicative of itsirrelevance.

On the other side of the coin, simple eq.,uity dictates a balancing of the rights of em-ployees against those of employee organiza-tions. And meaningful discussions require or-ganizational representation which genuinelyrepresents a majority of the membership.Moreover, if a cloud of fiscal impropriety, ifthe hint of conflict of interest, or if theappearance or reality of oligarchy besmirchesthe reputation of even one employee organizaetion, the electorate's willingness to sanctionand support effective discuseione between pub-lie employers and employees will be seriouslyundermined. Given the role of public opinion

in influencing behavior in the governmentalsector, propriety, representativeness, and re-sponsiveness are even more essential as unionor association traits here than in the privatesector, The Landrum-Griffin Act and the "lit-tle Landrum-Griffin Acts" of at leamt 11states, which require all employee organize-tiuns to comply with certain reporting anddisclosure requirements, are all the more rea-son that public employee organizations shouldbe subject to like provisions designed toguarantee internal democratic procedures andpractices and to assure fiscal integrity.

Employer.E4oployee Relations

As the foregoing recommendations suggest,the Commission adheres to the view that basicpolicies with respect to public employer-em-ployee relations at the state and local levelsshould be set forth in state legielation, Em-ployee rights and limits thereon in such mat-ters as organizational membership, strikes,and supervisory personnel are proper subjectsfor statutory treatment. Similarly, statelaws should establish a viable framework forhandling public labor-management discussionsand for settling disputes between the parties.This portion of the report deals with Commis-sion proposals which, in combination, consti-tute a system geared to overcoming barriers toa candid and constructive dialogue betweenpublic employers and employee organizations.

Recommendation No.State Public Labor Relations Law

The Coeemission recommends that states en-act legislation establishing the basic rela-tionship between public employers and employ-ees and their organizations in arriving at theterms and conditions of employment; absence ofsuch legislation tends to encourage chaoticlabor-management relations, especially in lo-cal governments where the evolution of theserelationships is left to chance and to the ebband flow of political power and influence ofemployees and their organizations and to wide-ly varying administrative and judicial inter-pretations. There are two general routes suchlegislation might take; requiring public emeployees to meet and confer with employees andtheir organizations, and permitting or requireing state and local employing agencies to ne-gotiate collectively with employee representa-tives, The Commission finds a considerablenumber of variations of each of these ap-proaches. On balance, the Commiosion tends toview the meee and confer in good faith ap-proach as being mtst appropriate in a majorityof situations in the light of present andevolvIleg gonditions in state and local employ-ment.400007

Some 29 states have not enacted generallegislation setting forth broad ground rulesgoverning employereemployee relations in thepublic service. Moreover, nearly twoethirdsof the municipalities over 10,000 populationand over one-half of the urban counties sureveyed in chapter throe of this report lacklaws or formal policies on this subject.These jurisdictions not only have fee!led tocome to grips with a pressing intergovernmen..

tal Josue, they have forfeited their basic re.sponsibilities over to the courts, to the bu-reaueracy, and to the unpredictable play ofpolitical forces and the influence of employeegroups.

The Commission is firmly of the opinionthat in this critical area, as in many others,state governments must act, in order to fulfilltheir pivotal role in the federal system and toavoid being bypassed. Regardless of whetherthey choose a "conservative," "liberal," or"middle-of-the-road" policy with reepeet topublic labor-management relations, it is abso-lutely essential that state legislatures makethis decision and then implement it clearly andforthrightly in law.

Existing legislation which deals compre-hensively with public employereempleyee rela-tions takes one of two basic forms; collectivenegotiation or meet and confer. Great Inter-state differences, of course, exist in thetreatment accorded public employees under ei-ther appneach. Both types of statute may dealextensively, or sketchily, with the rights ofemployees, the strike question, and coverage bylevel of goverment or occupation. But meetand confer laws generally are less comprehen-sive than those governing collective negotia-tions. In particular, they usually treat moresuperficially the questions of representation,administrative machinery, dispute settlement,and unfairepraotices. Moreover, they usuallyaccord a different status - a superior one - tothe public employer vis-a-vis employee organi-zations.

While both systems involve continuing com-munication between the employer and employeerepresentatives, under collective negotiationsboth parties meet more as equals. The employeeorganization's position is protected by statu-tory provisions relating to organizationrights, unfair practices, third party intervenetion in disputes, and binding agreements. Thelabor and management negotiators hopefully willarrive at a mutually binding agreement which isa byproduct of bilateral decisions. If theyreach an impasse, the law generally sets fortha range of procedures t- be followed, includingsuch third-party assistance as mediation, fact-finding, and arbitration. The strike ban andthe practical diffioulties in making agreementsbinding, however, semetimes produces a systemthat is much less than bilateral.

Under a meet and confer system, the out-come of public employer-employee discussion de-pends more on management's determinations thanon bilateral decisions by "equals," In somejurisdictions, the public employer may be understatutory obligation to "endeavor" to reachagreement or to "meet and confer in good faith"with an employee organization. If an agreementis reached, it is put into writing, but it nor-mally does not become binding on the employeruntil such time as the legislative body tekesappropriate action with executive concurrence.In other jurisdictions, the meet and confersystem does not go this far, since managementretains the exclusive right to act when and howit chooses concerning procedures for enteringinto discussion with employee organisations.

62

Most meet and confer laws also give the em-ployer the final "say" in the adoption and ap-plication of rules for employee organizationrecognition and of methods for settling dis-putes and handling grievances. Legislativecriteria relating to thses matters usually arelacking.

Fourteen states have enacted mandatorycollective negotiations laws, while two havepassed legislation permitting management tonegotiate with unions and associations. Fivestates have meet and confer statutes underwhich the public) employer is required to dis-cuss the terms and conditions of employmentwith employee organizetions and authorized toenter into non-binding memoranda of under-standing with such representatives. In theabsence of an express statutory authorizationor laws to the contrary, other jurisdictionshave conferred or negotiated with their em-ployees on a de facto basis. winally, a fewstates and some local govemments have flatlyrefused to engage in either negotiations ordiscussions with employee organizations.

A major reason for these wide differencesin practice is lack of consensus on the rela-tionship between governmental sovereignty andthe public labor-management dialogue. Whilesome jurisdictions continue to cling to tradi-tional interpretations of this doctrine, oth-ers are seekiug to adapt it to, or as somewould argue, move it ahead of contemporaryconditione. A related issue ie the belief ofeome public employers that theY, as well astheir employees, have certain "rights" whichshould not be surrendered or abridged throughentering into a negotiating relationship withunions and associations. Some phrase this ar-gument in terms of the multiple responsibili-ties falling upon anyone assuming the toughassignment of political executive, at thispoint in time, and the corresponding duty ofthe public employer to balance the conflictingdemands and pressures swirling around him.

The existence of certain basic differ-ences between the private and public sectorsalso affects the extent to which public emaployers are willing and able to deal with thetheir employees and with employee orga: za-tions. The major and perhaps controlling dia.=tinction between labor-management relations inthe private sector and those in state and lo-cal governments is that neither the employernor the employee in the latter ease are reallyat liberty to bargain freely. Both partiesmust operate within the limits of applicablelaws and regulations, the full view of publicopinion, and the very real world of politivs.Both parties must recognize that essentialpublic services, especially in the fields ofhealth and safety, have to be maintained andcannot be allowed to be disrupted by slowadowns or work stoppages. Public employers, incontrast to their counterparts in the privatesector, do not have the option of shuttingdown services and facilities if they feel emaployee demands are unreasonable, Correspondaingly, employee organizations do not have theoption of striking legally. Another unique

63

dimension of the problem is the political over-tones iOlerent in onfrontations between publicmanatomeat and employee unions and associa-tions. Many services of government are wonopo-listic, mandated by law, and supported by revo-nue derived from taxation. Consumors cannotrefuse to "buy" them, nor can they lawfully re-fuse to pay taxes. Any constraints on theavailability of these services as a result ofpublic employee activities inevitably will gen-erate hostile publio attitudes and possibly po--litical retaliation, Finally, the tact thatgovernment is directly responsible to a generalelectorate, not any specific segment thereof,is a paramount factor differentiating the pub-lic and private sectors.

Those supporting the meet and confer ap-proach to public employeraemployee relationsetress the differences between public and pri-vate employment, and consequently seek to maximize managerial discretion. Those favoringcollective negotiations recognize these differ-ences, but find them no major or insuperablebarrier to meaningful bilateral relations among"equals."

The Commission is aware that a etrong casecan be made in support of th.; collective new.-tiations approach. It has heard the argumentthat equitable and workable public labor-man-agement relations can only result from rec3pro-cal and bilateral dealings. It fully recog-nizes that 16 states have enacted legislationeither requiring or permitting public employersto engage in collective negotiations with em-ployee organizations. In understands that thisprocedure generally imposes a mutual obligationon the public manager and the exclusive bar-gaining representative to meet at reasonabletimes and to negotiate in good faith, and thatthe results of negotiations over grievance pro-cedures and other personnel matters - includingwages, hours, and working conditions - must bereduced to a binding, written agreement.

The Commission has heard the argument thatthe sovereignty of government tenet should notprecludo collective negotiations in the publicservice. It accepts the fact that the tradi=tional doctrine of sovereignty has been modi-fied already through practices obviously, ifgovernment allows itself to be sued and if itsigns contracts with private contractors whichcontain provisions for the binding arbitrationof disputes, then acceptance of certain re-strictions on its discretion in dealing withpublic employees does not undermine its sover-eign status. It has considered the relatedcontention that rather than delegating or abdi=eating soveveign authority a public employeronly agrees to limit its powers in a certainarea for a given period of time when it enbersinto a contract with its employees. But it isalso cognizant of the fact that, if necessary,agreements which the public employer made on a.voluntary basis can be repudiated, and affectedemployees would lack any legal recourse. This,of course, makes a mockery of one of the disatinguishing features of collective bargainingsystems. The Commission fully understands theimplieations of the broad claim that willinganess of a government to engage in collective

negotiations with ito empleyees should be'viewed mainly as matter of enlightened per-sonnel policy designed to improve laboe-man-agement relations through bilateral - ratherthan unilateral - determination of the termsand conditions of public employment.

On balance, however, the Commission be-lieves another approach is more appropriate,given contemporary and evolving conditions instate and local employment, Twenty-ninestates have taken no general legislative ac-tion in thia controversial field, and it isthese states as well as those having unwork-able public labor-management laws to which theCommission's recommendation is addressed,What Rind of system can be established whichwill bring about real progress in ensuring em-ployee and employer rights; in promoting theposition, pay, and prestige of public employ-ees; and in preventing work disruptions?

At this point in time, the crying need ina majority of situations is for a generalstatute that balances management rightsagainst employee needs, recognizes the cruclal,and undeniable ditTerences between public andprivate employment, and establishes labor-man-agement relationships in which ehe publiceat-large and their elected representatives haveconfidence.

The Commission believes that legislationembodying the essentials of a meet and conferin good faith system constitutes this kind ofstatute. "INfeet and confer in good faith," aswe view it, means the obligation of both thepublic employer and an employee organizationto meet at reasonable times, to exchange open-ly and without fear information, views, andproposals, and to strive to reach agreement onmatters relating to wages, hours, and suchother terms and conditions of employment asPall within the statutorily defined scope ofthe discussion. The resulting memorandum ofunderstanding is submitted to a jurisdiction'sgoverning body, and it becomes effective whenthe necessary implementary actions have beenagreed to and acted on by pertinent executiveand legislative officials.

To a greater degree than collective nego-tiations, the meet and confer approach is pro-tective of public management's discretion. Toa greater extent, it seeks a reconciliationwith the merit system since agreements reachedthrough the discussional process and actionstaken as an implementary followeup cannot con-travene any existing civil service statute.To a far greater degree than collective nego-tiations, it is candid and squarely confrontsthe reality that a governmental representativecannot commit his jurisdiction to a bindingagreement or contract, and that only throughratifying and implementing legislation and ex-ecutive orders can such an agreement be efefooted, To a greater extent, it avoids de=tailed, statutorily prescribed procedures apeplicable to all situations, and this lack ofspecificity in some degree and in some areaspermits greater flexibility and adaptabilityin actual implementation. To a much greaterdegree, it recognizes e indeed, is rooted in ethe vital differences existing between private

61e

and public employment, and does not make themistake of relying heavily on the National La-bor Relations Act as a blueprint for action inthe public service.

"In good faith" has a number of importantconnotations as it applies to Ole meet and con-fer process. It obligates tho governmental em-ployer and a recognized employee organizationto approach the discussion table with an openmind. It undersoores the fact that such meet-ings should be held at mutually agreeable andoonvenient times, It recognizes that a sincereeffort should be made by both parties to reachagreement on all matters falling properly with-in the discussion's purview. It signifies thatboth sides will be represented by duly autho-rized spokesmen prepared to confer on all suchmatters. It means that reasonable time offwill be granted to appropriate agents of a rec-ognized employee organization. It calle for afree exchange to the other party, on requeet,of non-confidential data pertinent to any isesues under discussion. It implies a joint ef-fort in drafting a. non-binding memorandum ofunderstanding setting forth all agreed uponrecommendations for submission to the jurisdicetion's appropriate governing officials. Itcharges the governmental agent to etrive toachieve aecoptance and implementation of theserecommendations by such. officials. It affirmsthat failure to reach agreement or to make conecessions does not constitute bad faith whenreal differences of opinion exist. It requiresboth parties to be receptive to mediation ifbona fide differences of opinion produce an im-passe. 1inally, it means that the state publiclabor-management relations law should list asan unfair practice failure to meet and conferin good faith, thereby providing a basis forlegal recourse.

These special obligations convert the sys-tem into something broader and more balancedthan the usual "meet and confer" setup, butstill something less than the glittering andoften unfulfilled promises of a nollective bar-gaining statute.

Recommendatien_Noe 6Management Rights

To ensure proper executive and legislativeresponsibility for public activities and serevices, the Commission recommends that state laebor relations laws stipulate that agreementsresulting from public employer-employee discus-sions be governed by the provisions of any per=tinent existing or future laws and regulations,including such merit system rules and regulaetions as may be applicable. Within this frame-work, state labor relations laws should providethat public employers retain the unrestrictedright: (a) to direct the work of their employ=ees; (b) to hire, promote, demote, transfer,assign, and retain employees in pesitions with-in the public agency; (e) to suspend or &Isecharge employees for proper cause; (d) tomaintain the effieienoy of governmental operaetions; (e) to ralieve employees from dutiesbecause of lack of work or for other legitimatereasons; (f) to vake actions as may be neces-sary to carry out the mission of the agency inemergencies; and (g) to determine the methods,

means, and personnel by whioh operations areto be carried on.

The meet and oonfer in good faith systemof public labee-management relations clearlyseeks in various ways to reoognite the dis.tinotive, dependent, and exposed position ofthe governmental employer and the conoomitantneed to provide some safeguards. At the sametime, this approach reoognizee certain basicemployee rights, establishes orderly methodsof communication between employers and employ-ees, provides dispute resolutien machinery,and places certain obligations on both partieswith respect to the consultative prooese.

Management rights emerge then at a cardi-nal feature of themeet and confer system, andas the critical balance tc the rights, privieleges, and powers accorded employees, Theycan be treated statutorily as a detailed sepa-rate provision, as a general statement but-tressed by specific unfair employee praotioes,or as a restriction on the scope of discus-sions.

Management rights also present a problemin collective negotiations laws, since varia-tions of such "rights" may be included as le-gitimate subjects for employer-employee nego-tiations. At the same time, such statutes mayoontain provisions which promote aad protectmanagerlent rights, inoluding those of Connecteicut, New Hampshire, Maine, Now York, and Wiseoonsin.

The Commisseon believes statutory des.cription of management rights is necessary ifwell defiled parameters to discussions are tobe vstublished. In a democratic politicalsystem, dealings between public employers andpublic employee organizations - whether theyare called negotiations or desoussions e mustnecessarily he limited by legislatively deter-mined policies and foals. This may involvemerely a reelatement of basic managemce,b pre-rogatives and civil service precepts. Listingsuch rights in law eliminates many of theheadaches of administrative elaboration andsome of the cross pressures generated by ambieguities. Wages, hours, and other terma andconditions of employment, however, are leftfor the conference table. Hence, the frame-werk for a meaningful dialogue remains intact.

Those oppesing detailed epeoification ofmanagement rights in meet and confer laws adevance a mixed bag of arguments. Some contendthat such rights should be within the scope ofdiscussion, not bargaining, and managementmakes he ultimate decision concerning cover-age of agreements. Others contend that it isredundant, if not foolesh, to include such aprovision in a meet and confer statute, sincestoh an act is in its entirety nothing morethan a lengthy assertion of employer prerogaetives, These critics also point out that mostexisting meet and confer laws de not list man.agement rights. Finally, some of the more emeployareoriented critics cite the danger ofspeoifioity, especially the possibility ofoverlooking significant rights,

All things considered, the Commission faevors incorporation of a specific provision on

, 5

management rights, Experience in certain meetund confer states shows that as employee orga-nizations wax strong discussions can - in a AI

',Anse esoalme ro the level of negoti-ietions, It is likely that any concession madeat the conference table by the employer's rep-resentative in connection with managementrights or civil service procedures would leadto memoranda of understanding whioh subsequent-ly could only be repudiated by higher aubhore-ty. This would create serious sension betweenthe parties and possibly woule lead to workdisruptions.

It is transparent, then, that public em-ployer-employee agreements should facilitate -not impede - the conduct of public business,and that the weaknees of government in terms oeits inability to close down an operatlon mustbe acknowledged and compensated for. It isclear that oertain meet and oonfer wystems ar-gue for specificity - the federal system estab-lished by Executive Order 10e88 and its suoces.sox', for example, as well as the model ordin-ance developed by the League of California Cit-ies and adopbed by many looalitiee under theCalifornia law, Finally, it seems sensible toinclude a provision of this type especially ina system, such as is proposed in this report,that departs substantially from the regularmeet and confer mold.

,fuLt

The Commission recognizes the existence ofconsiderable diversity between and among thestates and their local governments in the con-ditions of public employment, provisions ofmerit systems, and eorstitutional and statutoryprovisions relating to the structure of localgovernment. The Commission, however, believesit desirable to establish within this diverseframework a system of public laboremanagementstandards on a statewide basis which, to thegreatest extent possible, extends the samerighte to and imposes the eame responsibilitieson both state and local employees. Therefore,the CoMMission recommends that under state la.bor relations legislation, the treatment acecorded to state government and to local govern=ment employment be generally uniform as betweenthe two, and further that such legislation becompatible with constitutionally establishedmerit system procedures.

Any state considering the need for andpossible content of public labovemanagement reelations legislation muet face the criti'al andcomplex issue of who should be covered. A einegle law, for example, might be enacted to coverall employees of the state and its politicalsubdivisions, On the other hand, two separatelaws might be enacted to cover state and localemployees respectively. Another dlmension ofthe coverage problem is whether speoeal ocloupaetional categor9es e such as teachers, polico .men, or firemen e should be excluded from acomprehensive sbatute and treated in separatelegislation.

The Commission endorses the single law apeproach, but appreciates the reasons revancedfor enactment of separate statutes, At the

time, it underscores the need for ochieve

ing generally uniform treatment of state and

local employees by a000rding them, to the

greatest extent possible, the same ri.ghts and

privileges and assigning them the same types

see responsibilities,

In states with an integrated personnel

system, with a tradition of state legislative

involvement in local empayee matters, or with

weak "home rule" provisions, a single aot

would best serve thls goal of parity of treats

ment, Looal public employee-employer rela-

tions generally, and especially in states hav-

ing these traits, are not essentially differ-

ent from those of the state whether they in-

volve representationalquestiono, the need for

dispute settlement procedures, or prohibited

practices. A single law with a single admin.

estrative system having jurisdiction over both

levels of government can provide for more eco-

nomical and uniform operation of the act.

Moreover, regardless of the distinctive char-

aoteristics of a state's overall personnel

system, the organizational features of most

public employee unions and associations as

well as their interjurisdictional tactics mean

that a labor problem that begins as a local-

ized matter ultimately can have a statewide

impact and vioesversa. For these reasons, u

single state law is essential to ensuring osi.

uity and stability in public labor-managemen

relations.

Likewise, the Commission feels the state

statute should deal with all occupational cat-

egories of pub.ic employees. Even though over

onesthird of the states have enacted spooial

legislation vetfectingparticular groups of em-

ployees, She ()omission concurs with the cone

elusions of several recent studies on this

subject to the effect that separato statutory

treatment of certain types of public employees

is incompatible with the need tor a smoothly-

functioning labor-management relations process

in the public servioe.

The special legislation approach tends to

favor only those few well-orgauSzed employee

groups which can apply political pressure free

quently and effectively at the state and local

levels. If special attention were given

teachers, firemen, and policemen, it would be

difficult to justify not extending awls treat-

ment to transit workers, sanitation weekers,

or any other types of employees with political

"muscle," The lobbying activities of nrganie

zations are focused primarily upon improvement

of employment conditions for their own mems

bore, and the divisive effects of such special

interest pleading ORft only weaken the costae-

lishment of an effective laboremangagemnt re-

lations system applicable to all public ems

ployees. A basically unifarm employee rola.

tions policy, then, should prevail irrespeos

tive of level of government or type of oocupas

tion.

A variation of the singla act approach is

statutory coverage of both the state and local

levels and all occupational categories, but

inclusion of sufficiently flexible prwvisions

to permit a sensible and relevant application

to a variety of local situations. This option

is another feasible way of implementing the

Commission's goal of providing generally equal

treatment of state and local employees while

reoognizing varying looal needs and home rule

traditions. The New York State Public Employee

Relations Aot, for example, allows looal goys

ernments to establish their own administrativemachinery or to utilize the services of an in .

dependont state agenoy. If the former alterna-

tive is chosen, assurance must be given that

state legislative polioy is being folloged,

Finally, in states with personnel and oiv.

il service systems which differ signifioanilly

from thome of their local jurisdictions orwhere home rule is strongly proteoted, a sepa.

rate aot tor eaoh level might be the orly work-

able approach. Nevertheless, substantially the

same rights and duties should still be accorded

all state and local employees and employers.

The Commission believes that state polloy

relating to management-employee relations in

the publio sector will have little significance

unless there is appropriate machinery to re-

solve recognition and representation disputes,

ensure adherence by all parties to the law, and

piovide the means of tecilitating the resolue

tion of oontrovers4-1 arising out of employer.

employee impasses. The varying and special

conditions within each state, however, must dee

termine the most suitable type of administrae

tive agenoy, including (a) the availability of

existing administrative machinery; (b) the an-

ticipated volume of caies; and (c) the relees

tive neutrality of the unit to which the public%

labor-management relations function might be

assigned.

Establishing appropriate machinery to ad.

minister public laboremanegement relations laws

is important for four basic veasons. First,

existence of some such maohinery is essential

in order to resoe disputes, arising from se-

lection of the eemloyee organization to serve

as majority representative. This problem oc-

curs frequently in the public sector, and it is

particularly troublesome when rival organize=

tions are seeking formal recognition as the ma-

jority spokesman and the special negotiatingprivileges such recognition confers. Second,

an administrative unit or board serves as a

regular and re*ognized forum for hearing come

plaints over such matters as unfair practices

and organizational membership rights, for ase

sassing their validity, and for providing nec-

essary remedies. Third, an administrative anit

can help i.esolve impasses by putting the par-ties back on the road to a settlement through

providing directly or indirectly for third-par-

ty mediation, fact-finding, or advisory arbie

tration. Finally, effective and expeditiousimplementetion of a meet and confer in good

faith, as well as a collective negotiationssystem, will require the kind of interpretaetions and rulings that aft administrative unit

can make; court dockets should not be clogged

with a heavy load of clarifying cases. Full-

fledged implementation also will require the

kind of early answers and easy access for both

parties in a deadlocked dispute that adequateadmirestrative machinery can provide.

69

To ignore the need for administratLve ma.chinery is to essume that most of the statepublic labor-management relations law is self-executing. Varying interpretations of thestatute by local jurisdictions and time.con-suming judicial proceedings, then, should netbe incompatible with establishing a viablemeet and confer framework, The Commissionstrongly rejects these naive assumptions. Iturges creation of appropriate adwinistrativemachinery in the belief that the peculiartraits of the public service, especially thestrike prohibition, and the distinctive groundrules of the "meet and confer in good faith"system diotate the presence of an administra-tive arbiter or umpire to monitor the prooe-dures designed to ensure meaningful discus-sions and to provide its geod offices when animpasse occurs.

On the question of the most suitable typeof agency for handling these functions, theCommission has a more flexible point of view.No clear pattern has emerged among the stateshaving public labor-management relations lawsin the types of administrati7e machinery usedto implement their statutes. In Alaska, Con-nectieAt, Delaware, Maine, Massachusetts,Michigan, Rhode Isla4d, Vermont (for local em-ployees), Washington (for local employees),and Wisoonsin among the collective negotia-tions states and in Minnesota, Missouri, andSouth Dakota among the meet und confer states,the public employee relations function islodged in a major functional department or aspecial office or board within an existing de-partrsent of labor and industry. The statecivil eervico agency or commission administersthe collective negotiations program for stataemployees in Massachusetts and Washington andthe meet and confer program for those in Mich-igan. Where only teachers are affected, thestate board of education often has been desig-nated as the administering unit, although insome states local school boards servo in thiscapaoity. Finally, a new independent agencyhas been created to concern itself solely withpublic sector collective negotiations in sixstates - Nevada, New Hampshire, and Vermontfor state employees; New Jersey, New York, andOregon for all public employees.

The Commission suggests that states exam.ine the availability and capability of exist-ing machinery and weigh the advantages anddisadvantages of adding the public employeerelations responsibility, One pertinent fac-tor (if the act covers both levels) is whetherthere are a large number of state and localemployees. Another consideration is Whether aheavy volume of cases can be anticipated. Inthese instances, establishment of a new admin..istrative unit to handle public sector prob.lems might well be justified,

The Commission emphasizes that the admin.istrative agency must enjoy the confidence ofboth the public employer and employee organiszations, In dealing with the problems of pubslic labor.management relations, new approachesare called for . approaches usually quite dif.ferent from those applied in private industry,

In general, administrative responsibilityshould be placed in the hands of person. thor-oughly familiar with publio employment problemsand, most importantly, those having a reputa-tion of neutrality. If an existing departmentis too closely identified with a particularbranoh of organized labor, if a civil servicecommission is viewed as an arm of management,or if an education agency is linked to schoolboards or superintendents, doubts about theagency's impartiality could be raised,

In an effort to ensure mutual confidencein collective bargaining by both employee orga-nizations and the public empleyer, New YorkOity's collective bargaining law provides forthe establishment of a tri-partite administra.tive body, Under this arrangement, an equalnumber of members are appointed by the mayorand by public employee organizato,ons, Thesemembers then select the remaining public mem-bers of the board, one of whom io designatedchairman,

Regardless of the approach taken, the or-ganizational location, composition, and mode ofappointment of the unit should all be geared tobolstering expertise, sensitivity, impartiali.ty, and common sense, The Commission does notbelieve that the record to date points to any"pat" procedures for guaranteeing these traits.Bach state must chart its own course in thissea of unknowns.

Li Lulu_Forms of R000 t ió n

The Commission recommends that the statesinclude in their public labor relations legis-lation a provision whioh requires public ern*ployere to grant full meet and confer rights byformal recognition of employee organizationswith majority support.

The legal right of a public employee tojoin a union or association is meaninglees ufv,less it also includes the right of recognition.The Commission believes this question shouldnot be left to decisions of the courts, opin.ions et the state attorney general, or adminis-trative orders. Statutory authorization would7Aesolve any eoubto of public officials concern-ing the legality of their actions and would es-tablish a uniform statewide meet and conferpolicy on the matter of employee organizationrecognition. Ignoring this issue underminesone of the basic purposes of public labor.maneagement relations legislation. How can mean-ingful discussion occur if one of the two majorparticipants is not recognized as spokesman forthe majority of employees and is not sitting atthe conference table?

The meet and confer laws of Minnesota andSouth Dakota provide for two forms of recogni.tion informal and formal. Bach meets certainneeds under this system. Informal recognitionis given to any employee organization regardsless of, the status that may have been extendedto any other union or association. This typeof recognition is simply an extension of theright of any public employee to be heard, andestablishes the right of a minority group tosubmit proposals and to explain its position.

67

70

Management offioials, however, are not obli.

gated to seek the views of minority organiza-

tions,

Formal recognition is given to an employ-

ee organization chosen by the majority of em-ployees in a unit. In its dealings with man-agement, this organization speaks for all mem.bers of the unit, and any agreement that isreaohed applies to these employees. Other or-ganizations continue to receive informal rec-ognition and may present their views to mao-agement, but only one voice may speak for allemployees in a unit,

Supporters of the two-level (informal-formal) recognition approach argue that thewillingness of public employers to listen to

the views of any public employee, union, orassociation is a necessary and distinctivetrait of the meet and confer system, This op-

enness gives individuals, minority organiza-tions, supervisory groups, as well as the ma-jority representative a chance to have their

voices heard. If an employer adopts rules formajority representation, then, certain mlnori-ty organization rights should also be recog-nized. Refusal to recognize an employee orga-nization on the basis that it failed to repre-sent a majority of those in a unit would im-pair the fundamental right of employees to

form, join, and participate in unions or asso-ciations of their own ohoice and to be repreasented by such organizations in dealings withthe public employer. Balancing the interestsof the majority representative and minoritygroups is achieved through the informal recog-nition technique. Management, from a practi-cal point of vi:A4, clearly cannot meet andconfer with a mass of small organizations.Pormal recognition circumvents thin problem,/nformal recognition, OA the other hand, pro-teota minorito organization rights and servesas a check on the potentially arbitrary viewsof the majsrity representaaive.

The Commission believes that state publiclaboramanagement relations statutes ehould re.quire public employers to accord by formalrecognition full meet ano confer rights to theorganization representing a majority of theemployees in an appropriate unit, The Commis.sion believes that this preferred treatmentaacorded the majority representative shouldcondition the approach to minority groups, andthat extension of informal recognition privi-leges to such organizations should not be reaquirea by state public labor-management relaations laws,

Legislators have basically two optionsregarding minority voups which are oompatiblewith this position. Management could be statautorily barred from extending any informalreoegnition privileges to such organisations,and thia would have the effeot of giving ex-clusive recognition rights to the majority or.ganization, It also would conserve managesmentos time and eliminate its tough task ofkeeping informal consultations from becomingda tua negotiations, especially on such nonaeconowfe issues as the agency's umiesion, Onthe other hand, public employers could be au.thorized to extend, at their own discretion,

informal reoognitien to minority organizationafor the purpose of submitting proposals, Thisvariation of the two-level approaoh meets thevarying needs of the individual public employerand the varying strengths of employee organiza-tions.

011.2.-1212LenalittiLltaa1

To assist in the resolution of public em-ployer-employee disputes the Commission recom-mends that the states in their labor relationsstatutes incorporate provisions authorizing me-diation at the request of either party. TheCommission further raoommends that public emaployers be authorized to adopt (moll additionalprocedures as may be neaessary for the resolu-tion of disputes after unsucoessful efforts toreach agreement with employee organizations,

The procedures designed by etates andtheir political subdivisions to resolve dis-putes are vital features of meaningful discus-sions between employers and employee organize-tione, Avoiding work disruptions will dependlargely on the perfection of these proceduresin the event an impasse is reached. Moreover,failure to provide effective ways to handleWsputes when a strike ban has been imposeddoes little to establish an equitable basis for

joint discussions.

The Commission endorses inclusion in statelabor-management statutes of a provision autho.rizing mediation of disputes, and sanctions as-signment of this function to the agency respon.sible for administering this law. Pollowingthe Minnesota act, the Commission recommendsuse of this procedure at the request of eitherthe public employer or the recognized majorityrepresentative. Although this approach some-what limits management's discretion, it is moreeven.handed and expeditious than if either par.ty had a veto. It Avoids the necessity of havaing both the public employer and the majorityorganization obliged to reach a joint decision .in order to submit a dispute for mediation - in

many instances an unlikely event, given thefact ['hat the parties may have reached a point

of bitter deadlock. Failure on the part of ei.ther disputant to meat with a conciliaborwould, of course, constitute evidence of badfaith and would serve as a basis for .doilrective

administrative or judicial action. ManageMent4however, still is under no obligation to make --special concessions or to agree to proposals,

Mediation only involves efforts of an imapartial third party to assist the disputants inreaching a voluntary resolution of an impassethrough suggestions, interpretations, or ad.

vice, Mediation proceedings should be closedto the public and the mediators should take nopublic stand on the issues in OOntrovirgy, In

short, mediation poses no real threat to any-one. Yet, it may well bring issues into sharpaer focus, and this can Auld to an agre(Aent,It may also constitute one of ,the moot valuableservices provided by the administrative agencyestablished by the meet and confer statute,

The Cammission also believes the differingneeds of individual jurisdictions end the varia

6$

7ja

et) of impasse situations whioh can arise re-quire statutory authorization to permit man-.mgement to adopt a range of other dispute set-tlement prooedures. The specific approachtaken here follows the California aot andwould allow the publio employer, after oonsul-tation with employee organizations, to adoptother reasonable procedures for resolving dis-putes. Mediation olearly is critically impor-tant, but it is only one of many in the arse-nal of weapons that should be made availablefor breaking deadlocks, Other proceduresmight inolude public or private fact-findingand advisory or binding arbitration. The de-cision to utilize any of these other devioesmust be retained by the employer. After all,under fact-finding and advisory arbitration,third party reoommendate.ons usually are publi-cized, and this can -Institute a form of pres-sure on both parties. Under binding arbitra-tion, management would be consciously abdicat-ing its final discretion. Even here, however,the Commission belLeves strongly that thcalities of the 1970's diotate the availabilityof binding arbitration if the local employerwishes to make use of this option in order toavoid etrikes,

Provision should be made to ensure thesedispute settlement procedures rest on a firmfinanoial basis. Some contend that the stateshould assume full or a major share of thefiscal responsibility, given the state's primeinterceA in achieving stability in its employ-ee relations and those of its politioal subdi-visions, and its basic concern with avoidingany disruption of public, services at eitherlevel. These spokesmen also note that somejurisdiotions and employee organizations, par-ticularly smaller ones, occasionally find itdifficult to pay their share of the cost ofmediation, fact-finding, and arbitration ser-vices. Based on experience in a number ofstates, others argue that the various proce-dures should be handled on a ditferent cost-sharing basis, with the state bearing all ormost of the expense and the parties to a dist.pute assuming some or all of the cost of fact.finding or arbitration. In any event, thestate law should not be silent on this munedans, but significant, problem.

hoes

The Commission recommends that the statesin their labor relations legislation enactprovisions prohibiting the restraint or coon-eion or employees in the exeroise of theirgaaranteed rights and obligating both publicemployers and employee organisations to meetand confivr ia good faith.

The question of prohibited practices is abasic differentiating factor between the "typ-ical" meet and confer and collective negotiaations statutes. A majority of the collectivebargaining laws contain a fairly detailedspecification of unfair practices for bothmanagement and employee organizations. Butnone of the (misting "meet and confer" legis.lation goes into detail on this crucial mateter. The Commission believes the "meet andconfer in good faith" formula corrects thia

defioienoy, mime it establishes orrterila forinsuring that the parties will uphold their re.sponsibilities in the discussion process.

Each approaoh includes a "non-interfer-ence" clause. The basio purpose of suoh a pro-vision, of course, is to protect employees frompunitive employer action as a consequence oftheir organizational activities. In some in-stances, its aim is to protect the individualemployee from both the employer and employeeorganizations. The latter type of safeguard isperhaps best exemplified in the California acts"Public agencies and employee organizationsshall not interfere with, inaimidate, restrain,coerce, or discriminate against public employ-ees because of their exercise of their rights."Basically, however, a non-interference clauseis an attempt to guarantee statutorily definedemployee rights and to provo.de the basis foradministrative or judicial action against bla.tant anti-union activities on the part of man-Egement. In the California case, it alsoserves as a basis for action against anti-indi-vidual aotivities on the part of public employ-ee organizations.

A second type of prohibited practice foundin two of the state statutes (California andMinnesota) deals with the refusal of eitherparty "to meet and confer in good faith."While precise definition of tho phrase "in goodfaith" iR the subjeot of some disagreement, theintent of such language is to esLablish legallythe mutual obligation of public employers andrecognized employee organizations to meet andoonfer in oraer to exchange freely information,opinions, ant' proposals, and to try to arriveat agreements on matters falling within thescope of discussion. In effect, this provisoadds a distinctive and dynamio element to theusual meet and confer system because it pro-vides a basis for administrative appeal and, ifnecessary, 1,udicial action, when basic rules ofthe game are violated by either party.

"Good faith" is partly a matter of atti.tude and partly a matter of action. As such,to some observers it seems a vague and non-via-ble basis tor establishing a mutually bindingduty to talk and to strive for understanding.Yet, the Commission believes thst insofar as apublic labor-management relations law spellsout some basio procedures, rights, and responesibilities, then grounds exist for determining"bad faith," Furthermore, since the adminisetrative agency is charged specifically with enesuring adherence by all parties concerned tothe law, immediate recourse is available forthose alleging dilatory tocties and "badfaith."

Examples of "bad faith" on the part of eiether party include chronic inability to meet atreasonable times; sustained withholding of rel .event proposals or information during thecourse of discussions; giving prime attentionto matters fully outside the bounds of discus.sion; failure to designate a duly authorizedspokesman; and delay or failure to exchangerelevant, noneconfidential data. Frequentshifting of position and heavy absenteeism dureing mediation sessions probably would provideevidence of "dilatory tactics," hence of "bad

69

72

faith." Pailure on the part of the managementrepresentative to present to his superiorsrecommendations on whioh the parties haveagreed also would fall in the same category.

The foregoing aotions, if unchecked,would undermine the integrity of the dialoguebetween the parties, Consequently, the matterof unfair pracl'ices ahould be confrontedsquarely by legislators attempting to draftpublic labor-managemellt legislation. If not,meet and confer in good faith becomes a mock-ery. If the implioatians regarding fair pro-cedures are ignored, "..n good faith" becomesmerely a slogan.

Similarly, collectWe negotiations legis-lation cannot achieve im:s basic purpose of es-tablishing a bilateral basis for public labor-management relations if unfair practices aretreated sketchily or are applied to labor on-ly. Of the sixteen collective bargainingstatutes, five fail to go beyond a simple"non-interference" provision. Bilateralism inthe bargaining process clearly is somethingless than secure when it rests on such an elu-sive basis. This aspect of collective nego.tiations differs in no major respect from thecurrent meet and confer system.

13120=Aolailla -No. 12Ekchange iif-PaliO Personnel Data

The Commission recommends that state la-bor relations laws establish procedures to as-sure the exchange of relevant public personneldata between and among employing agencies'andemployee organizations. The Commission fur-ther recommends that states and localitiestake steps to facilitate the gathering of suchdata on a metropolitan, regional, and state-wide basis.

Before labor end management can hope tocome to an agreement on a dispute, they needto reach an understanding on the facts at is-sue. It seems advisable,then, in the interestof facilitating discussions and promoting muetual trust and goci faith, that everythingpossible be done to make the same public per-sonnel data available to both parties. Whenthis is done, discussions to some extent canbe based on these facts, and arguments conacorning their reliability and availability canbe avoided.

State government has a stake in encourageing both sides to exchange relevant personneldata since it has a paramount interest in de.veloping and maintaining healthy public emeployer.omployee relations. The state throughits public labor-management relations legislaabion should require public employers and emaployee organizations to disclose fully to theother side all the facts of public record onwhich claims are based or which otherwise arepertinent to the issues under discussion,Nonefulfillment of this rsquirement should bedeemed a failure to meet 4nd confer in goodfaith and should constitute another specifiecally defined prohibited practice.

70

On a more positive note, states and theirpolitical subdivisions should make concertedefforts to collect on a regular basis the kindof data expeoted to be needed in the course ofpublic employer-employee relations, While itis often contended that employing agencies havemuch better data available than employee orga.nizations, sometimes the shoe is on the otherfoot, Regularized procedures for gathering andupdating comparative data on a metropolitan,regiorAl, statewide and, perhaps for certainspecialized potations even an a nationwide ba-sis, for example, would be helpful to bothsides at the bargaining table, The gatheringof this information mighe be assigned to a met-ropolitan (or regional) council of governmentsor to some comparable areawide body, and itthen could be used by individual jurisdictionsas a baeLs for their respective discussions,State and local organizations of public offi-oials also might collect such data.

Both councils of governments and organiza-tions repreeenting state and local officialsalso might wish to consider expanding their in-formation gathering capability to include pro-vision of teohnioal assistance and a4visoryservicee on public labor-management relations.Some components of this effort aro already partof the programs of oertain state leagues of mu-nicipalities. The California, Massachusetto,Michigan, Pennsylvania, and Wisconsin leagues,for example, provide extensive information ser-vices to their members on public employee-em-ployer relations problems. A broader endeavormight include consulting directly with localofficials, providing mediation and arbitrationservices, sponsoring workshops, and making 00A-tintang analyses of agreements. A related de-velopment involves the tentative plans of theNational League of Cities and United StatesConferenoe of Mayors to establish a joint ser-vice-oriented program on public labor-manage.ment relations for elected city officials.

Pinally, net to be overlooked in a discus-sion of the ways and means of developing upato-date and relevant data is the role of tte stateagency established to administer the meet andconfer statute. Certainly its key functionswould include serving as a clearinghouse forpublic personnel information and as a souree oftechnical assistance.

gommodatthnNn_AlCheakoft

The Commission renommends that state laborrelations laws permit public employers, on thevoluntary written authorization of the employase, to regularly withhold organizational duesfrom the employee's wages and to transmit suchfunds to the designated union or association.The Commission recommends further vhat onlythose employee organizations which have beenrecognized as representing a majority of theemployees in an appropriate unit bo eligiblefor such dues checkoffs,

Dues checkoff can assist the individualemployee who belongs to a union or associationand it can serve as a form of union securityfor the recipient organization. After weighing

the various possible approaohes to handlingthis issue, the Commiesion urges that statepublio labor rolatione stazutes should include

provieion that permits - but does not re-quire publio employers, on the written re-quest of individual employees, to deduot orga-nizational membership dues from wages. At thosame time and in keeping with its doctrine ofaccording a preferred position to publio em-ployee organizations representinr a majorityof the members in an appropriate unit, theCommission believes that only organizations ofthis type should benefit from dues cheokoffs.

While no existing meet and confer statuteauthorizes this praotioe, the proposal ad-vanced here is wholly compatible with the un-derlying theme of this form of public laborrelations system. Tne authority after all iswholly discretionary and involves no real ?.ossof management prerogatives. Moreover, whileten of the sixteen existing collective nego-tiations statutes fail to authorize speoifi-cally dues oheokoff, inclusion of such a pro-vision would be wholly compatible with the ba-sic goals of this type of legislation.

If management decided to permit withhold-ing, the resulting administrative arrange-ments, in most oases, would not impose unman-ageable burdens since procoduree already ex-ist, pursuant to the laws of many states,through which employers make deductions fromtheir employees' wages for such purposes ascharitable contributions, health and life in-suranoo payments, and savings bonds purchases.Where public emlaoyers allow a dues checkoff,regularity in such deductions would be assuredand closer working relatlonships between theemploying agenoy and formally recognized rep-resentatives of its employees would be promot-ed.

By restricting eligibility to majorityemployee organizations, a basis for strength-ening the relations between the public employ-er and such organizations is afforded, More-over, by making this practice a disoretionarymatter, management acquires an extra item onwhich it can negotiate from a position ofstrength,

While the Commission obviouely does notoppose minority organizations, deduction ofdues for members of these groups probablywould generate conflict and instability in em-ployereemployoe relationships. In addition,it might overburden the adminiabr.Aivo system,since in the absence of objective criteria fordistinguishing among minority organizations,all such groups would probably have to be ine'eluded in tho checkoff,

ReeommendationAlejAMultielluriadiational7Oeonoration

The Commission reoommenda that looal goveernments and public employee organizationswith the cooperation of the state effect apepropriate arrangements for meeting and confer-ring on a regional basis,

Experience with regional oolleotive negoetiations arrangementa in Canada and in some

71

European oountries suggests that a similar ap-proaoh might be possible in some metropolitanareas in the United States, Regional maohineryfor oolleotive negotiations is ourrently beingutilized by several jurisdiotions in the Van-oouver, British Columbia, metropolitan area,Those munioipalivies jointly gather and ex-change data on wage and salary trends and Conetract settlements as a basis for independentnegotiations by the individual jurisdictions.Three of these munioipalities have establisheda central bargaining committee which is empow-ered to oonduct negotiations in each of theoommunities.

In the United States, since 1967 the sear-en-county Minneapolis metrepolitan area has exeperimented with regional meet and confer ar-rangements paralleling somewhat the Canadianand European experienoe, A Managers' Negotiateing Committee - composed of five managers apepointed by the Metropolitan Area Managers' Ass.sociation e and representatives of Looal 49 ofthe International Union of Operating Engineers(IU0S), have acted on behalf of 90 percent ofthe municipalities in the area. The chief pur-pose of the parties ts to arrive at a mutuallyacceptable agreement that can be submitted toparticipating oities as an overall guidelinefor action. The conferees are not authorizedto make binding commitments on behalf of publicemployees or city councils.

The impetus for handlirg discussion on anareawide basis could 00310 from either publioemployee organizations, public employers, orboth. Since an increasing number of organiza-tions of looal employees are affiliated withnational unions, their basic objectives genereally do not differ greatly from Jurisdiction toJurisdiotion in metropolitan areas. Conse-quently, areawide discussions might well bepossible where a metropolitan agency exists orone could be created to represent the partici-.pating communities and empk mired to enter intodiscussions for each of the municipalities.Where a counoil of governments or other area-wide body has been estabLished, this assignmentcould be placed in its hands. In other areas,an independent joint labor relations committeeor board could be appointed to represent em-ploying agencies. Public employers might wellsupport areawide discussionel arrangements asa means of discouraging employee organizationefrom "playing off" one municipality against theother in discussing the terms and conditions ofemployment.

Skeptics feel this approach involves ,e5ogreat a departure from preaent practice, Theyargue local govornment employers and public em-ployee organieatiena would have to cede a largepart of their autonomy in public laburemanageement relations, The obstacles to oreating meteropolitan government and to aehieving cooperaetion among existing governments in urban areas,so the critics contend, all stand in the way ofefforts to establish an effective regional diseoussion prooess, They point out that wide direferenoea between central city and suburban porenormal eystema, tax bases, and service levelaare too great to overcome, at leaat for thepresent,

The difficulties which lie in the path ofcooperative action in metropolitan areasshould not be minimized, Yet, the Commissionbelieves the advantages of achieving more uni-form labor oonditions, conserving time and en-ergy in discussions, and avoiding employee or-ganizations playing off one municipalityagainst another warrant giving increased at-tention to deve)oping appropriate mechanismsfor discussions en an lnterjurisdictional ba-sis.

State and F-deral Mandates

The imposition by higher levels of gov-ernment of requirements relating to the sala-ries and wages, hours of work, working condi-tions, fringe benefits, and personnel qualifi-cations of employees of lower levels hasemerged as a touchy intergovernmental issue.With the enactment of over a score of publiclabor-management relations laws, state and, toa somewhat lesser extent. federa3 mandating ofconditions of employment for personnel of low-er levels may undermine the labor relationeprocess and, in come cases, may severely re-strict the range of subjects covered. Innearly all instances, mandating narrows thediscretion of the lower level governmental em-ployer and encourages lobbying rather than di-rect confrontations between employee organiza-tione and management. Present practices needto be reexamined by the states, as well as bythe federal government, in light of their ef-fects on labor-management relations at thestate and local levels.

Blawmendation,No. 15glalAmalialte Mandatina

Tha Commission urges the states to adopta policy of keeping to a minimum the mandatingof terms and conditions of local public em-ployment which are most properly subject tgdisoussion between employee and employers.°

In the past, most state mandating of theterms and conditions of local employment couldbe justified as an effort to upgrade the localpublic service. Mandatory educational andtraining requirements for professional andtechnical personnel in critical health andsafety fields obviously are necessary. Li-censing and certification requirements inpractically all cases are also essential meansof ensuring a reasonable level of competencein the administration of state-aided educationand welfare programs.

Other reasons exist for state involvementin local personnel matters. Employee organiezations - especially those representing teacheere, policemen, and firemen - havo been notaebly successful in securing passage of specialstate legislation requiring public employersto improve their benefits and working condietions, Lobbying at the state level, then, issubstituted for control by local public emeplovers over personnel matters affecting theiremployees.

Mandating also serves as a constraint onthe development of a fullefledged laboremaneagement relations process since various is-

72

a-es, in effect, are excluded from the range ofpossible discussion and agreement. In theshort run, local employee organizations, par-ticularly those with influence in the legislateture, may favor state mandating. Yet, in thelong run, the Commission is convinced that pub-lio employees as a whole (Den gain little fromthis approach since its goal of preforentialtreatment undermines an effective, government-wide labor-management relations system. Fromnearly any angle, local publio employers andemployee organizations have little but head-aches to gain from continuance of this ecatepractice.

The Commission believes state mandating oflocal personnel standards - st!.th the exceptionof professional and licensing requirements -violates the principles of constitutional andstatutory home rule. This practice interfereswith the ability of looal jurisdictions to es-tablish effective systems of personnel manage-ment and to develop viable and equitable rela-tionships with their employees.

The Commission supports the principle thatbasic responsibility fir local personnel ran-agement and salary determination should restwith local governing bodsas. Certain mandatedprograms exist, however, which in our opinionassist in improving the local public service ona statewide basis. In several states, for ex-ample, local public employees are covered by asingle state establiehed retirement system.Consolidation of small local systems in most ofthese states was required because they werefiscally unsound. Purthermore, it is entirelyappropriate for states to mandate traini-tg pro-grams, stipvlate standards for the licensing orcertification of certain personnel categories,and establish minimum working conditions forprofessional and technical personnel in criti-cal health and safety fields.

At the same time, the Commission opposescontinuing any indiscriminate state mandatingof the terms and eonditions of local Isiblic em-ployment. Such a policy does little or nothingby way of promoting the basic goals of a statelabor-wanagement relations policy. It encour-ages employee irganizations to make °legisla-tive end runs" when the.parties are unable toreach agreement, and this violates the spirit,if not the letter, of the "in good faith" eth-ic, Mandating also can be fiscally irresponsi-ble if the enactment of state legislation bene-fiting certain local employees is not accompa-nied by provision of state funds or authoriza-tion o additional revenue sources in order tomeet the increased costs. Finally, suon astate policy usually does little to help localpersonnel across the boards instead, individualoccupations are given preferential treatmentand this can sow the seeds of labor unrest,

125 r19AIlle2j1.014212.141111.01kili

The Commission recommends that Congressdesist from any further mandating of require-manta affecting the working conditions of emeployees of etate and local governments or theauthority of such jurisdiutions to deal freelyor to refrain from dealing with their respec-tive personnel.Y

75

Like state mandating of personnel re-quirements for local government employees,free-wheeling federal mandating of conditionsof employment for state and local personnelalso may undermine effective laboremanagementrelations at these levels, Congress, threughthe Pair Labor Standards Act of 1966, the pro-posed amendments to the Civil Rights Act of1964, and the merit system requirements ingrant-in-aid legislation, and the ExecutiveBranch, through regulations implementing theseand other provisions in certain federally aid-ed programs, have imposed personnel require-ments on looal governments which may restrictthe scope of discuseions or collective bar-gaining between public employees and employ-ers.

The 1966 amendments to the Fair LaborS4ndards Act extended the requirement that,employers must pay employees engaged in inter-state commerce a specified minimum hourly wageand a higher rate for work exceeding a certainmaximum number of hours a week to oover publicand private profit or nonprofit making hospi-tals, schools, higher educational instutions,and special training and rehabilitative insti-tutions, Congress also expanded the defini-tion of employer to include states and theirpolitical subdivisions, As a oonsequerce,over one-halfofthe states Joined with Marylandin bringing action against the Secretary ofLabor to enjoin enforcement of the Act's pro-visions applying to state and looal operatedschools and hospitals. The plaintiff's fail-ure to secure an injunction has raised seriousquestions concerning the extent to whieh thefederal government underthe commerce power canand should mandate internal personnel policiesof state and local governments. In particu-lar, the degree to which the regulated activi-ties relate to interstate commerce and thedistinction between the governmental and pro-prietary functions of a state have been focalpoints of this controversy.

Elimination of discrimination in publicemployment is a possible future form of teder-al mandating. The tremendous recent growth ofpublic employee rolls has been accompanied bysignificant increases in the number of minori-ty group workers. The recently released reeport by the U.S, Commission on Civil Rights,entitled For 411 the People_._, ,AfitLAll_thekeeelel demonstrates, however, that members ofminority groups do not enjoy equal access toemployment in state and local governments. Asa result, the Civil Rights Commission hascalled upon Congress to extend the coverage ofthe Civil Rights Act of 1964 to protect minority group members from discrimination in theemployment practices of states and localities.

Other possible bases tor future mandatingexist. One kind of further intervention mightbe justified on grounds bhat the personnel in-volved are vital to the Implementation ofcritical, federally aided programs. Anotherrationale would be that the employees affectedperform functions which in no major respectdiffer ftom those of private sector workers.Still another argument could be that the per,-

sonnel involved are worlang for agenoies or in-stitutions operated by state or local govern-ments aoting in proprietorial oapaoity.

Having assessed thele various facets ofpresent and potential federal mandating andrecognizing that further intervention is quitepossible, the Commission adopts the general po-sition that Congress should refrain from anyadditional mandating of requirements relatingto the working conditions of state and loeal em-ployees or the authority of these governmentsto deal with their personnel in hatever fash-ion they see fit.

The Commission accepts the judgment of theSupreme Court in upholding extension of theFair Labor Standards Act to certain educationand hospital employees of state and local gov-ernments. The feet that the extension coveredthe same occupational oategories in both theprivate and public sectors, coupled with thewidespread state and local acceptance of thisdecision, suggests that any other course of ac-tion at this time would be unwise, if not fool-ish.

At the same time, the Administration andCongress should abstain from any further man-dating of requirements affecting the workingconditions of state and local personnel, eitherby additional amendments of the Pair LaborStandards Act or by other statutory routes.The arguments for the Commission's positionhere parallel those developed by Mr. JusticeDouglas in his dissent to Marvland_v.yi0o.Intrusions o2 the kind involving extension ofthe Pair Labor Standards Act tend to blur evenmore the already hazy distinction between in-terstate and intrastate commerce and to compro-mise severely the police powers of the sliates.Moreover, any additional mandating of salaries,wages, and working conditions can only be in-terpreted as an unconscionable federal reorder-ing of the fiscal priorities of state and localgovernments. If such an action were to be tak-en, then Congress in all fairness should simul-taneously enact legislation providing the fundsrequired for adherence to the standards stipu-lated.

In a like fashion, the Commission opposesany federal effort to mandate a collective bar-gaiAing, meet and confer, or any other labor-relations system for the employees of state andlocal jurisdictions or for any sector thereof.Little would be left of the federal prineilgeof divided powers were such legislation enact-ed. No interpretation of the commerce power,of the state as proprietor, or of the "generalwelfare" clause can, in our opinion, serve as alegitimate constitutional basis for this kindof drastic infringement on the basic authorityof the states and localities as governments ina federal system.

A major contemporary example of this formof possible usurpation is the "Professional Newgotiations Act for Public Educations' (S, 1951),introduced by Senator Metcalf of Montana inApril 1969. This bill would establish an int-partial Professional Education Employee Rola=tions Commission (NERO within the Departmentof Health, Education, and Welfare to szttle

73

76

disputes involving teacher organizations andboards of education in public school systemsoperating under state laws. Based on the eo-sition that teacher-sohcol board relations af-fect interstate commerce, the propoeed Actrecognizes the rights of professional employ-ees of school boards to membership in employeeorganizations and to representation by se.%o.ganizations in negotiations over the termsand conditions of employment culminating in aweAten agreement, The PBERC could petitionany federal district oourt to enjoin unlawfulacts - such as refusal by boards of educationto negotiate in good faith. With respect todispute settlement procedures, either party,or PBERC on its own volition, could declare animpasse in negotiations and the Commissionthen could appoint a mediator, who would servewithout cost to the parties. The parties alsocould establish their own mediation procedure.If mediation is unsuccessful after 15 dayshave passed, either party could request sub-mission of the dispute to advicor:r - or, ifmutually agreed upon, to binding - arbitra-tion, and an arbitrator could be appointed byeither PBERC or the parties themselves. Allarbitration expenses would be shared equallyby the parties. The arbitrator's findings andrecommendatione would be made public if andgreement was not reached within 10 days fol-lowing their pzesentation to the parties. An-other key provision of this bill would repealall strike bans on professional employees inthe public sector, although work stoppagescould be enjoined if they presented a clearand present danger to public health or safety,or if the employees representative failed tomake a reasonable attempt to Use the impasseresolution procedures contained in the Act.The only exceptions to the applicability ofS. 1951 would be stete laws which PEBRO deter-mines to be substantially equivalent to thesystem of teacher-school board relations pre-scribed by the Aot.

This legislation is based on the tenuousposition that teachtr-school board relationsare proper matters for federal regulation be-cause they affect interstate commerce. TheCommission does not agree with the sponsors ofthis bill that the failure of some boards ofeducation to accord teachers full association-al freedom and collective discussion rightshas placed substantial burdens on the flow ofcommerce, at least to tht extent of justifyingfederal preemption of this important area ofstate and local activity. As.a matter offact, at least 24 states have enacted eithercomprehensive labor relations statutes or spe-ci.al laws doaling with laboremanagement rela-tions in public 'tduoation. It would be iron-ic, to say bhe 1 it, to mandate in federallegislation negotJaAting procedures and employeee rights for the teaching sector of the stateand local public service when such rights havenot been accorded to any employed by the fed,.eral government. Pederal statutory require-ments providing for across-the-board collec-tive negotiations between public school teach.ors and hoards of education, establishing fed-oral diboute settlement machinery, and remov.ing strike bans . regardless of the provisionsof state public labor-management relationslegislation or local laws and policies - not

74

only would disrupt the public education systemat the tate and local levels; they would seri-ously undermine the viability of the federalsystem. In the absence of overwhelming evi-dence of the unwillingness cr inability ofstate and lo:al governments to act, the federalguvernment should refra:qn from preemptive ac-tion, Such evidence clearly is lacking atpresent. States and localities have developedand are developing their own response to thechallenge of employee militancy, especiallyteacher militancy. Given the nature of thischallenge, experimentation and flexibility areneeded, not a standardized, federal, preemptiveapproach.

To sum %Ip, effective public employee-em-ployer relat.J.ons at the state and local levelscan only emerge from an unfettered process in-volving, basically, the employers, employees,and their representatives as well as the elec.torates of the various jurisdictions, The fed-eral government elearly has an interest in thedevelopment of stable and equitable labor-man-agement relations at the other levels. Thisinterest can be best served, however, by avoid-ing actions that would exacerbate these rela-tions and by focusing on ways and means of di-rectly encouraging the establishment of strong,innovative personnel systems, as in the case ofthe proposed Intergovernmental Personnel Act of1969 (S. 11, 91st Congress).

Concluding ObservationsThe major recommendations in this report

provide the essentials of a realistic, non-rhe-torical approach to a new look at public labor-management relations in the state and localpublic service. Moreover, this approach issuitable in most instances for a majority ofthe states and thoir localities.

Its realism is reflected clearly in thestress planed on the distinctive features ofpublic employment . the strike ban, the relieance on impasse procedures, the question of es-sential services, the role of public opinionand politics, and the impact of merit princi-ples and systems.

Its non-rhetorinal tone is reflected inthe absence of traditlonal terms, procedures,and references drawn from private sector co,,-lective b4rgaining, which when applied to thepublic sector become mythical and misleading.Logic dais not support, for example, the claimthat pri.,tate and public sector collective baregaining are similar, when strikes universallyare outlawed in the latter. It is self-delud-ing to Oace a private sector contract in thesame oat,4ory as a binding agreement in thepublic sector, given the fragmented approvalauthority of most public employers. The ap-proach proposed by the Commission in this reeport avoids these illusions and the false hopesthey generate.

Finally, the Commission's proposals comeprise a reform program that recognizes basicemployee rights, penalizes obstructionist emeployers, grants a preferred position to majoriety organizations, and establishes clear crite.ria for meeting and conferring "in good faith,"

These oriteria lay down basic ground rules fora candid dialogue and seek to extend even-handed treatment to both parties at the bar-gaining table.

The approach proposed obviously goes wellbeyond most of.the existing meet and conferstatutes by avoiding the oneemsidedness ofthese laws. On the other hand, unlike certaincollective bargaining legislation, it stopJshort of prescribing an employer-employee re.lations system which ignores the hard reali-ties of politioal, governmental, and publiclife, It is, then, a mean between these ex-isting statutory extremes, Ae such, itstrikes a balance between the public interestand employee interests, between managementneeds and the concerns of the majority repre-sentative, between political realism and pro-cedural imovation. The Advisory Commissionon Intergovernmental Relations commends thisapproach and this system to legislators, laborleaders, and public managers as they strive toreconcile those vital goals and seek a morestable, more salutory system of public labor-management relations to meet the severe chal.lenge of the 19701s and beyond,

1Mayor Lugar dissents from this recom-

merdation and statee: "I feel that publiclabor relations laws should recognize as ageneral principle that supervisory employeesshould have certain opportunities to organizebecause of the wide variety of public employerswithin a state and the diversity of theirsupervisory personnel structures. In the pub-lic sector, many supervisors and professionalworkers -- such as teachers, police, firemen,and social workers .. now have and exercise astrong community of interest with the rank andfile workers they supervise. To ignore er toattempt to eliminate this relationship wouldbe difficult and potentially disruptive in thesphere of public labor relations."

2The term "confidential employee" refersto one whose functional responsibilities orknowledge in connection with the public labor-management issues involved in the meet and con.fer in good faith process would make his mem.bership in the same organization as rank.and.file employees incompatible with his officialduties,

3Additional views of State Senator Arringeton, Congressman Pountain, State SenatorKnowles, County Exeoutive Michaelian, andSupervisor Roost "We feel this recommendationdoes not go far enough. To deter public em.ployee work stoppages, state public employeerelations statutes should prLvide penaltiesfor violation of no.strike provisions."

3State Senator Knowles, County executiveMichaelian, and Governor Shafer dissent fromthis recommendation and state: "We believe theCommission did not give adequate considerationto the fact that a large majority of statesenacting public employee labor relations lawsin the last decade have turned to the collec.tive negotiations avproach, While not opposuing the meet and confer concept, we do not

73

believe it goes far enough toward effecting ameaningful and enlightened personnel policy,It is our view that public labor-managementrelations should be based more on the mutualdetermination of the terms and conditions ofpublic employment by management and employeeorganizations, with equal protection ensuredby the law for both parties to the negotiatingprocess,"

3Senator Muskie joins with Senator Knowles,County Exeoutive Michaelian, and GovernorShafer in their dissent and states:

"On such a vital matter of policy as inthe case of labor-management relations in thepublic service, the recommendations of theAdvisory Commission 4hould reflect more thanthe belief that they strike a happy medium be.tween the rights of employee organizations onthe one hand and public managements' need forgreater discretion than that given its privatecounterTart on the other.

Such recommendations will bear heavily onthe evolution of public policy in this area,Hence, they should clearly come to grips withthe basic issues t be resolved. It is ques-tionable whether recommended adoption of aImeet and confer approach to such negotiationsis sufficient to meet the requirements of effec-tive public policy dealt with by the report.Nor is it clear that the "meet and confer" con-cept is part of a normal progression toward thatrequirement.

Por these reasons, I must enter my dissentfrom the central recommendation adopted by thosewho attended the SepteMber 19 Commission meet.ing,"

6Dudget Director Mayo takes exception tothis recommendatf.on and states: "While I donot wish to dissent this recommendation, itseems to me that the 'meet and confer' approach,when taken in the context of the other recom.mendations will be unsatisfactory if continuedfor more than a very short time*"

"The present state of labor.managementrelations at all levels of government clearlyindicates the need for a definitive structureauthorized by legislation which will clarifythe role and responsibility of both managementalid employee organizations. In most publicjurisdictions legislation controls wages, hoursof work, and major supplemental benefits, thussharply restricting the areas available forcollective bargaining, Nevertheless, there isroom for, and great benefit to be derived fromformal negotiations about such matters asi (a)focus and extent of recognition of employeeorganizations: (b) agreements on working condi.

(e) resolution of negotiation impasseelland (d) agreements with respect to handlingappeals from adverse personnel actions andemployee grievances, On the ',dais of federalexperience, prompt movement toward authorize.tion for collective negotiations seems bothdesirable and sound public policy,"

700vernor Rockefeller dissents from thisrecommendation and statesi "It is recognizedthat individual circumstances in some statesand their outlook as to how they desire to ex.

tend to public employees a role in arriving atterms and oonditions of employment may call foran approach somewhat short of collective nego.tiations, However, a growing number of statesare turning toward 'collective negotiations,'In my judgment the Commission's preferenceshould be the loollective negotiations' ap.proach, while offering 'meet and confer in goodfaith' as an alternativo to those states whichfelt that they were not quite prepared to moveinto collective negotiations immediately,"

76

8Mayor Walsh dissents from this reoommen.dation and statess "I am oppoeed in principleto any state mandating whioh imposes inoreasedcosts on local government unless the state as .sumee the total cost of such increases,"

9Additional view of State Senator Arring.tons "While I do not oppose this recommenda.tion, I do not feel it has a place in a reportwhich deals with the public employes relationsof state and local governments."

Proposed National PuNic Employee.Relations Act

Pollowing is a proposed federal law pro=pared by the American rederation of State,County, and Municipal Uployoes, This modellegiolMion is MUM)) recommendation tor aneeded comprehensive bargaining law coveringstate, county and municipal employees. Itwas introduced in Co4gress this past spring asHat, 1738, by Representative Jacob H. Gilber(D-N.Y.).

Tbis model legislation is being distrib=uted by ENS because many APSOME affiliate0 '404Wrepresent school board employees in collantivebargaining.

NATIONAL PUBLIC EMPLOYEERELATIONS ACT

Be it enacted by the Senate and House ofRepresentatives of the United states 'et.AMeriw04 in Congress assembled, That this Aot MO becited as the National Public Employee 1e1atiO0CAot, 1970.

SECTION 1. Policv

It is the declared policy of the UnitedStates that public employees be afforded therights to which all employees working in 4.free, democratic society are entitled, '

The denial by some public employerS of theright of employees to organize and the retuaWby some employers to accept the procodurCif'.2collective bargaining, deprives public. 0.09.1*Aees of the effective exercise of tight0 &OAantvW under the Constitution of thi Uni0d7States. S'.!.ch refusal also leads ta striA6Sand other forms of strife and unrest, with 01.0consequent effect of obstructing the flail Ofcommerce, denying the right of ditizens at the'United States to exercise rights prOtected bYthe Constitution thereof, and interferes with'the normal and necessary operations of govorni!

Experience in private and publia employ .mant ht) proved that protection by law of theright of employees to organize and bargain col-lectively safeguards the public and commerm0from injury, impairmelat or interruption, in.eluding interruption of commerce among thestates and safeguards rights guaranteed by theUnited States Constitutions and promotes theflow of commerce by removing certain recognimedsources of strife and unrest. Protection ofthese employee rights encourages practicesfundamental to the peaceful adjustment of dialogputos arising out of differences as to wages,hours or other working conditions, and restores

equality of bargaining power between employoreand eMployeelie

tb is hereby declared to be the policy ofthe Ignited States to eliminate the 04U448 ofcertain substantial ebstruptiens ye the treetiOW Ot 0.011i0r00 alY008 00 00001 to WOOthe Wee** ikorcise et righte luevanve04the United Statee 0enitit0190 n, and ino MttiWO' VW eliminate these ,dbe KOWOhe when thet9,00-*V10:eA40.04104 Ore 00$464'04 OePedot e00,10,000# Availk*Ath i*loroteount''exe'cie by public employoe 011,rull fteA4PMet association, sel-or,iiiiton, ihd deetiOn :0,f 1414 616-0$ 440 e eVh''Ohtio _

fOr the Wrpeea '4441-egotwutt the -torm6coitattiohCet thelr eMpleyment or other mUtitaid or protectien.

Nitiratibts:

oleo'

obiOU-reeWetor 0040001

'aet kr40404'1 ''

.filtrUptcy4....

4-.:0Yer *MO AilY'Stateer-anyPcliV tilAr

hlr beei, ard-ot re.',with*4 -eignlY!

044f 'taafa $00viog Or wetter* o Olen publiCinVelititeto00110. 510004tigN IllsAANAK 'k-Othorig°tY Ker4Utheti 'or LOOt10,ggete 600li4hAd bY 106 .110 4ny Person or Persons des*ithatati by tho ofoloviwto des tA its intorostIn dealing VOn 6M1510Yeeel

. ,

, ,

110.140040".00.4h1 anfcMployee of AftOW 4411 TO be limited t6 the OM=

plCyfec-Of tP4fticUl4P empltler, and,shialinclude 411yedsplisiyee of at employer' whetheror haillA the classOied SerVide 'of the'em4.Player' new officials appointed or electedpursuant to a statute to a policyssuking position0 and Chall include ahy isdividual whoseWork hal ceased as a donsequence 00 or inconnection with, any unfair labor practice orconcerted omployoo action;

(41 Iflabor erganimationil MOMS any or-gatisat on ef any kind in which employeesparticipate and which (mists for tho primarypurposo of dealing with employers concerninggrievances' labor disputes* Wes, rates ofpay, hewn of employment or conditions ofemployments

(5) "Commission" means the National PublioEmployeo Relations Commission provided for in

Section 9 of this Ant;

(6) "exclusive representative" means thelabor organization which ht., been (a) certi-fied for the purposes of th.s Act by the Com-mission as the exclusive representative of theemployees in an appropriate unit, or (b) rec.ognized by an employer prior to the enactmentof this Act as the exclusive representativeof the employees in an appropriate unit.

(7) "affecting commerce" means in com-merce, or burdening or obstructing commerce orthe free flow of commerce, or having led ortending to lead to a labor diepute burdening orobstruoting comer() )r the free flow of com-

merce;

(8) "unfair labor praotice" means anyunfair labor practice listed in Section 51

(9) "labor dispute" includes any contro-versy concerning terms, tenure or conditionsof employment, or concerning the association orrepresentation of persons in negotiating, fix-inc, maintaining, changing, or seeking to ar-range terms or conditions of employment, re-gardless of whether the disputants stand inthe proximate relation of employer and employ.ee;

(10) "supervisor" means any individualhaving authority, in the interest of the em-ployer, to hire, transfer, suspend, lay off,recall, promote, discharge, assign, reward,or discipline other employees, or responsiblyto direct them, or to adjust their grievances,nr effectively to recommend such aotion, ifin connection with the foregoing the exerciseof such authority is not of a merely routine orclerical nature, but requires the use of in-dependent judgment.

(11) /n determining whether any personis acting as an "agent" of another person soas to make such other person responsible forhis acts, the question of whether the specificacte performed were actually authorized or sub-sequontly ratified shall not be controlling.

SECTIONJ,, Rights_af_Emeloveso

Employees shall have the right of self-oronization, to form, join, or assist anylabor organim,4 .ons, to bargain collectivelythrough reprostultatives of their own choosingon queseinne of wages, hours and other condi.tions of employment, and to engage in otherconcerted aotivities for the purpose of col.lective bargaining or other mutual aid orprotection, free from interference, restraintor coercion, and shall also have the right toroxrain from any or all of such activitiesexcept to the extent that much right may beaffected by an agreement requiring membershipin a labor organization as a condition of om.ployment as authorized in Section 5(a)(3).

110.211.1.

The employer shall, on receipt of writtenauthorivlion of an employee, deduct from the

78

pay of suoh employee money in payment of member-ship dues in a labor orconisation, and shall re.mit such money to said labor organization; 212.

That if an exolusive representative giibieff-designated, the employer may not entertaina written or oral authorization on behalf of anyother labor organization from an employee insaid bargaining unit; Pvde rthe, Thatany such assignment shilI-tiiri-ireVaOable fora period of not more than one year or beyovdthe termination date of the applicable oollec.tive agreement, whichever occurs sooner.

pmenom 5,. altar Laboy practices

(a) It shall be an unfair labor practioefor an employer--

(1) to interfere with, restrain or coerceemployees in the exercise of the rights guar-anteed in Section 31

(2) to dominate, interfere or assist inthe formation or administration of any labororganization, or contribute financial or othersupport to it; prgyiala, That subject to rulesand regulationaiide-and published by the Com.mission pursuant to section 9(j), an employershall not be prohibited from permitting tom.ployees to confer with him during working hourswithout loss of time or pay;

(3) by discrimination in regard to hire ortenure of employment or any term or conditionof employment to encourage or discourage member-ship in any labor organization;

prnvidtd, That nothing in this Aot or inany other statute of the United States shallpreclude an employer from making an agreementwith an exclusive representative (not estab-lished, maintained or assisted by any actiondefined in Section 5(a) of this Act as an un-fair labor praotice) to require as a conditionof employment membership therein, on or afterthe thirtieth day following the beginning ofsuch employment or on the effeotiNe date ofsuch agreement, whichever is the later; gm.vi4odurr, That no employer shall justifyany discr-wnation against an employee for non..membership in a labor organization (a) if hehas reasonable grounds for believing that suchmembership WO not available to the employse onthe same terms and conditions generally appli.cable to other member's, or (b) it he hasreasonable grounds for believing that member-ship was denied or terminated for reasoncotherthan the failure of the employee to tender theperiodic dues and the initiation fees unifortayrequired as a condition of acquiring or retain.ing membership;

(4) to discharge or othersiise discriminateag inst an employee because he has filed acomplaint, affidavit, petition, or given anyinformation or testimony under this Acti

5) to refuse to bargain collectively ingood Llith with an exclusive representative.

(6) to fail to comply with any provisionof this Act,

(b) It shall be an unfair labor practicefor a labor organization or its agents

(1) to restrain or coerce (A) employees inthe exercise of the rights guaranteed in Sec-tion 3 of this Act;

y1çL, That this paragraph shall notimpair Tiii1ght of a labor organization toprescribe its own rules with respect to theacquisition or retention of membership therein;or (3) an employer in the selection of hisrepresentative for the purpose of collectivebargaining or the adjustment of grievanoes;

(2) to cause or attempt to cause an em-ployer to discriminate against an employee inviolation of subsection (4)(3) or to disorimi-nate against an employee with respect to whommembership in such organization has been deniedor terminated on some ground other than hisfailure to tender the periodic dues and theinitiation fees uniformly required as oonditionof acquiring or retaining membership;

(3) to refuse to bargain collectively ingood faith with an employer, provided it is theexolusive representative,

(c) For the purposes of this Act, tobargain oollectively is the performanoe of themutual obliAtion of the employer through itschief exee.utive officer or his designee and thedesignees of the exclusive representative tomeet at rdasonable times, including meetingsin advance of the budget-making process, andnegotiate in good faith with respect to wages,hours and other terms and conditions of emeployment, or any question arising thereunder,and the execution of e written contract incor-porating any at7eement reached if requested byeither party, but such obligation does not com-pel either party to agree to a proposal orrequire the making of a concession. The dutyto bargain includes the duty to negotiateabout matters which are or may be the subjectof a regulation promulgated by any employer'sagency or other organ of a state or subdivisionthereof or of a statute, ordinance, or otherpublic law enacted by any state or subdivi-sion thereof, and to submit any agreementreached on these matters to the appropriatelegislature.

ABOTIONA.. Renresentativos_and_Bleationa

(a) Whenever, in accordance with suchregulations as may be prescribed by the Com-mission, a petition has been filed

(1) by a labor organization alleging that30 percent of the employees in an appropriateunit (A) wish to be represented for oolleetivebargaining by an exclusive representative, or(1) assert that the designated exclusive rep-resentative is no longer the representative ofthe majority of employees in the unit; or

(2) by the employer alleging that one ormore labor organizations has presented to it aclaim to be recognized as the exclusive repro-sentative of the majority ot employees in theunit; or

(3) by an employee or group of employlesalleging that 30 percent of the employeesassert that the designated exclusive repro.

7 9

82

sentative is no longer the representative ofthe majority of employees in the theCommission shall investigate such petition, andif it has reasonable cause to believe thatquestion of representation exists, it shallprovide for an appropriate hearing upon duenotice, If the Commission finds upon the rec.ord of such hearine that suoh a question ofrepresentation exists, it shall direct anelection by ceoret ballot and shall certifythe results thereof, The Commission maycertify a labor organization as an exclusiverepresentative it it determines that a freeand untrammelled election cannot be couduotedbecause of the employer's unfair labor praso-oices. The Commission may also certify alabor organization, upon the joint requestof the employer and such labor organization,if, after investigation, the Commission issatisfied that the labor organization repre-sents an uncoerced majority of employees in anappropriate unit and, that such majority sta.tus was achieved without the benefit of un-lawful employer assistance as defined inSection 5(4)(2),

(b) Only those labor organizations whichhave been designated by more than 10 percentof.the employees in the unit found to be appro-priate shall be placed on the ballot. Nothingin this section shall be construed to pro-hibit the waiving of hearings by stipulationfor the purpose of a consent election, in con-formity with the rules and regulations of theCommission.

(c) In order to assure to emploves thefullest freedom in exercising the rights guar-anteed by this Aot, the Commission shall deoidein each case the unit appropriate for thepurposes of collective bargaining, and shallconsider such factors as community of interest,wages, hours and other working conditions ofthe employees involved, the history of col-lective bargaining, and the desires of theempleeeesi Pited, That, except in the causeof units of irefighters, supervisors shallnot be placed in a bargaining unit which in-cludes nonsupervisory employees; Proj4eçI,further, That a unit may be found to be theappropriate unit in a particular ease, eventhough some other unit might also be appro-priate, or might be more appropriate,

(d) An election shall not be directed inany bargaining unit or in any .subdivisio4,thereof within which, in the preceding 12-month period, a valid election has been held.The Commission shall determine who is eligibleto vote in the election and shall establishrules governing the election. In any electionwhere none of the choices on the ballot re-ceives a majority, but a majority of all votesoast are for representation by some labororganization, a runoff election shall beconducted, A labor organization which re.waves the majority of the votes cast in anelection shall be certified by the Commissionas the exclusive representative,

(e) The determination by tho Commission,

that a labor organisation ham been chosen bya majoritvof the employees in an appropriateunit shall not be subject to Court review.

SECTIOr 7,. RattirJuditaEttalielWatlatt

(a) Whenever a complaint is filed allegingthat any person has engaged in or is engagingin any unfair labor practice (listed in Section5) affecting commerce, the Commission or anyagent or agency designated by the Commissionfor sueh purposes, shall issue and cause to beserved upon suet; person a copy of the complaintand a notice of hearing before the Commissionor a member thereof, or before a designatedagent or agency, at a place therein fixed, notless th6n :five days after the serving of saidcomplaint,

(1) Any such complaint may be amended bythe complainant at any time prior to the insu-elle(' of an order based thereon; Eg Thatthe charged party is not unfairly pijiiaicedthereby.

The person so complained of shall be re-quired to file an answer to the original oramended complaint. The complainant and theperson charged shall be parties and shall havethe right to appear in person or otherwieegive testimony at the place and time fixedin the notice of hearing. In the discretionof the member, agent or agency conducting thehearing, or the Commission, any other inter-ested person may be allowed to intervene in thesaid proceeding and to present testimony. Inany hearing the Commission shall not be boundby the rules of evidence prevailing in thecourts.

(2) The testimony taken by such member,agent or agency or the Commission shall bereduced to writing and filed with the COMMie..sion. Thereafter in its discretion the Oftwmission upon notice may take further testimonyor hear argument. If upon the preponderanceof the testimony taken the Commission shall beof the opinion that any person named in thecomplaint has engaged in or is engaging in anrsuch unfair labor practice, then the Commis.sion shall state its findings of fact and shaltissue and cause to be served on suoh person anorder requiring that he cease and desist fromthese unfair labor practices, and take suchaffirmative action, including reinstatement ofemployees with or without back pay, as will ef-fectuate the policies of this Aoti oido,That were an order directs reinstatement of anemployee, back pay may be required of the em-ployer or labor organisation, as the ease maybe, responoible for the discrimination sufferedby him. Such order may further require suchperson to make reports from time te time show.ing the extent to which he has complied withthe order.

(3) If upon the preponderance of thetestimony taken the Commission shall not be ofthe opinion that the person named in the ow.plaint has engaged in or is engaging in anysuch unfair labor practice, than it shall stateits findings of fact and shall issue an orderdismissing the maid complaint. No notice ofhearing shall issue based upon any unfair laborpractice occurring more than mix months priorto the filing of the charge with the Commissionunless the person aggrieved thereby was promvented from filing the charge by reason of mor.

S

viee in the armed forces, in whieh event thesJx-month period shall be computed from theday of his discharge. No order of the Com.mission shall require the reinstatement ofany individual as an employee who has beensuspended or discharged, or the payment to himof any back pay, it such individual was sus-pended or diseharged for cause. In case theevidenee is presented t,ifore a member of theCommission, or before an examiner, or examiners,thereof, such member, or suoh examiner orexaminers, as the ease may be, shall issue andcause to be served on the parties to Ow pro-eeeding a proposed decision, together with arecommended order, which shall boated withthe Commission, and it no exceptions are filedwithin twenty day, after service thereof uponsuch parties, or within such further period asthe Commission may authorize, such recommendorder shall become the order of the Commissionand become effective as therein presoribed.

(4) If exeeptions are filed to the pro-p000d report, tbs Commission shall determinewhether such exeeptions raise substatial issuesof fact or law, and shall grant review if itbelieves substantial issues have been raised.If the COMMisSiOn determines that the excep-tions do not raise subetantial issues of factorlaw, it MAY refuse to grant review, and therecommended order shall beoome the order ofthe Commiseion, and beeome effective as thereinprescribed.

(b) The Commission shall have power, uponissuance of a complaint as provided in sub-section (a) charging that any person has OW,gaged in or is engaging in an unfair laborpractice, to petition any dietriet court ofthe United States (including the DistrictCourt of the United States for the Distriet ofColumbia), within any district wherein theunfair labor practice in question is allegedto hove occurred or wherein such person re*sides or transacts business, for appropriatetemporary relief or restraining order. Uponthe filing of any such petition the court shallcause notice thereof to be served upon suchperson, and thereupon shall have jurisdiotionto grant to the Commission such temporary relief or restraining order as it deems just andproper.

(o) Until the record in a case has beenfiled in a court, as hereinafter provided, theCommission may at any time upon reasonablenotice and in such manner as it shall deemproper, modify or set aside, in whole or inpart, any finding or order made or issued byit,

(d) The Commission or tha complainingparty shall have power to petition any courtof appeals at the United States, or if all thecourts of appeals to which application may bemade are in vacation, any district court ofthe 'United States, within any circuit or dim.trictirespeotively, wherein the unfair laborpractice in question occurred, or wherein suchcharged person resides or transacts business,for the enforcement of such order and for ap.propriate temporary relief or restraining or.der and shall file in the Court the record inthe proceedings as provided in Sea. 2112 of

83

Title 28, United States Code. Upon the filingof suoh petition, the court shall oause noticethereof to be served upon such person and there-upon shall have jurisdiction of the proceedingand of the question determined therein and shallhave power to grant such temporary relief orpermanent relief or restraining order as itdeems just and proper, and to make and entera decree enforcing, modifying, enforoing asmodified, or setting aside in whole or partthe order of the Commission.

(e) No objeotion that has not been urgedbefore the Commission, its member, or agent oragency shall be coneidered by' the court, Utiless the failure or neglect to urge such ob-jection shall be excused because of extraordi-nary circumstances.

The findings of the Commission with re-spect to questions of faot, if supported bysubstantial evidence on the reoord oonsideredas 4 Whole, shall be conclusive.

(f) If either party shall apply to thecourt for leave to adduce additional evidenceand shall show to the satisfaction of the oourtthat such additional evidence is material andthat there were reasonable grounds for thefailure to adduce such evidence in the hearingbefore the Commission, its member or agent oragency, the court may order such additionalevidence to be taken before the Commission, itsmember or agent or agency, and to be made apart of the record, The Commission may modifyits findings as to the faots, or make newfindings, by reason of additional evidence sotaken and filed, and it shall file such modifiedor new findings, which findings with respectto questions of fact if supported by substam-tial evidence on the record considered as awhole shall be conclusive, and shall file itsrecommendations, if any, for the modificationor setting aside of its original order. Uponthe filing of the record with it, the juris-diction of the court shall be exclusive and itsjudgment and decree shall be final, exceptthat the same shall be subject to review bythe appropriate United States court of appealsif application was made to the district courtas hereinabove provided, and by the UnitedStates Supreme Court upon writ of certiorarior certification as provided in accordancewith Section 1234 of Title 286

(g) Any person aggrieved by a final orderof the Commission granting or denying in wholeor in part the relief sought may obtain a re.view of such order in any circuit court ofappeals of the United States in the circuitwherein the unfair labor practice in questionwas alleged to have been engaged in, or where.in much person resides or transacts business,or in the United States Court of Appeals forthe District of Columbia, by filing in suchcourt, as set forth in sub-section (d) above,within sixty days, a written petition prayingthat the order of the Commission be modifiedor set aside. A copy of such petition shallbe forthwith tranemitted to the Commission andthereupon, the aggrieved party shall file inthe court the record in the proeeeding, certi.fied by the Commission ae provided in SectiOn2112 of Title 280 United States Code. Upon

81

the filing of such petitic6.0 the court shallproceed in the same manner au under sub.sec.tion (d), and shall grant such temporary reliefor restraining order as it deems just aad prop-er, and in like manner make and enter a de-cree enforoing, modifying, enforcing as modi-fied, or setting aside in whole or in part theorder of the Commissionl the findings of theCommission with respect to questions of faotif supported by substantial evidence on therecord considered as a whole shall in likemanner be conclusive, and the certification bythe Commission that a labor organization isthe exclusive representative shall not besubject to review by the Court.

(h) The commencement of proceedings undersubseotion (d) or (g) of this section shallnot, unless specifically ordered by the court,operate as a stay of the Commission's order,

(i) In any proceeding for enforcement orreview, of a Commission order held pursuant toseotion 7(d) or (g), evidence adduced duringthe repreeentation proceeding pursuant tosection 6 shall not be included in the tran-script of the reoord required to be filed un-der section 7(d) or (g) f nor shall the courtoousider the record of suoh proceeding.

(j) Petitions filed under this Aot shallbe heard expeditiously, and, if possible, with-in 60 days after they have been docketed, bythe court to which presented, and shall takeprecedence over all other civil matters ex-cept earlier matters of the same character.

(k) ln the event no petition to reviewof enforce the order of the Commission is filedwithin 60 days from the date of the Commission'sorder pursuant to Section i(d) or (g), theorder shall be final and no review thereofmay be had. The Commission shall thereuponfile a petition with the Court to enforcethe order.

SECTION 36 Vritten_Agraementli_AnnrooriationaTO_InnilemetiA Enforeiment

A collective bargaining agreement maycontain a grievance procedure culminating infinal and binding arbitration of unresolvedgrievances and disputed interpretations ofagreements. Said agreement shall be validand enforced by its terms when entered intoin accordance with the provisions of thisAct.

(a) Suits for violation of contracts be-tween an employer and a labor organizationmay be brought in any district court of theUnited States having jurisdiction of the par-ties, without respect to the amount in con-troversy or without regard to the citizenshipof the parties.

(b) Any labor organization and any est-player shall be bound by the acts of itsagents. Any such labor organization maysue or be sued as an entity and in behalfof the employees whom it represents in thecourts of the United States. Any money

84

judgment against a labor organization in adistrict nourt of the United States shall beenforceable only against the organization asan entity and against its assets, and shallnot be enforceable against any individual mem-ber or his assets.

(c) For the purposes of actions and pro-ceedings by or against labor organizations inthe distriot courts of the United States, die-trict courts shall be deemed to have Jurisdic-tion of a labor organization (1) in the dis-triot in which such organization maintains itsprincipal offices, or (2) in any district inwhich its duly authorized atfioers or agentsare engaged in representing or acting for em-ployee members.

(d) The service of summons, subpoenas, orother legal process of any court of the UnitedStates upon an officer or agent of e labororganization, in his capacity as such, shallconstitute servioe upon the labor organization.

(e) For the purposes of this section, indetermining whether any person is acting asan "agent" of another person so as to makesuch other person responsible for his acts,the question of whether the specific acts per-formed were actually authorized or subsequentlyratified shall not be controlling.

Natinnal_Publit_Emolovee RelationsCommiailon

(a) There is hereby created the NationalPublic Employee Relations Commission, whichshall be composed al: five members appointed bythe President, by end with the advice and con-sent of the Senate. The members shall not en-gage in any other business, vocation or em-ployment. Each of the original members of theCommission shall be appointed for differentterms, of one, two, three, tour and five years,but their successors shall be appointed forterms of five years each, excepting that anyindividual chosen to fill a vacancy shall beappointed,only for the unexpired term of themember to serve as ChairMan of the Commission.Any member of the Commission may be removedby the President, upon notice and hearing forneglect of duty or malfeasance in office, butfor no other cause,

(b) A vacancy in the office of any membershall not impair the right of the remainingmembers to exercise all the powers of theCommission, provided, however, that throe memibars shall at all times constitute a quorum ofthe Commission. A vacancy shall be filled inthe same manner as herein provided for ap-pointment,

(c) The Commission may hire employees whomit may find necessary for the proper perfor-mance of its duties,

(d) The Commission is authorized to dole-gate to any group of three or more membersany or all of the powers which it may itselfexercise, in which came, two members shallconstitute a quorum, The Commiseion is alsoauthorized to delegate to its regional dim:0tors its powers under Section 6 to determine

82

the unit appropriate for the purpose of ool-leotive bargaining, to investigate and pro-vide for hearings, and determine whether aquestion of representation exists, and todirect an election, oonduot a seoret ballotelection, and certify the results thereof,except that upon filing of a revest thereforewith the Commission by any interested person,the Commission may review any action of % re-gional director delegated to him under thisparagraph, but such a review shall not, un.less specifically ordered by the Commission,operate as a stay of any action taken by theregional director, The Commission is alsoauthorized to delegate to a Trial Examinerits powers under Section 7 hereof to determinewhether any person has engaged in an unfairlabor practice. In the event the Commissionexeroisem the power conferred by this subsec-tion (d) to delegate its powers to a TrialExaminer or regional director, it may, uponapplication made to it, review, and upon muchreview, modify, affirm, or reverse, the deci-sion,oertification, or order or its Trial Ex-aminer or regional director, as the case maybe. In the event that the Commission doesnot undertake to grant review within 30 daysafter a requeat for review is filed, the de-cision of the regional director or Trial Ex-aminer shall become the decision of the Com-mission.

each kscal year make a report in writing toe) The Commission shall at the close of

Congress and to the President stating the oasesit has heard, the decisions it has rendered,the names, salaries, and duties of all em-ployees and officers in the employ or underthe supervision of the Commission, and anaccount of all moneys it has disbursed.

(f) There shall be a General Counsel ofthe Commission who shall be appointed by thePresident, by and with the advice and consentof the Senate, for a term of four years. Heshall be authorized to investigate allegedviolations of the Aot, to file and prosecutecomplaints, and to intervene before the Com-miseion in appropriate unfair labor practiceproceedings, in accordance with Section 7,The General Counsel shall exercise such otherpowers as the Commission may prescribe. Incase of a vacancy in the office of the GeneralCounsel, the President is authorized to desig.nate the officer or employee who shall act asGeneral Counsel during such vacancy, but noperson or persons so designated shall so act(1) for more than 40 days when the Congress isin session unlees a nomination to fill suchvacancy shall have been submitted to theSenate, or (2) after the adjournment sine dieof the session of the Senate in which suchnomination was submitted.

(g) All of the expenses of the Commis-sion, including all necessary traveling andsubsistence) expenses outside the Dieirict ofColumbia incurred by the members or employeesof the Commission under its orders, shall beallowed and paid on the presentation ofitemized vouchers therefore approved by theCommission or by a designated individual,

(h) The principal offioe of the Commission

85

shall be in the District of Columbia, but itmay meet and exercise any of all or its powersat any other plaoe. The Commission may, byone or more of its members or by suoh agents oragenoies as it may designate, prosecute anyinquiry necessary to its functions in any partof the United States, A member who partici-pates in such an inquiry shall not be diequali-fied from subsequently participating in adecieion of the Commission in the same case,

(i) Per the purpose of all hearings andinvestigations, which, in the opinion of theCommission, are necessary and proper for theexercise of the powers vested in it by section7 and section 9 ..

(1) The Commission, or its duly authorizedagents or agencies, shall at all reasonabletimes have access to, for the purpose of ex-amination, and the right to copy any evidencein the possession or control of any person be-ing investigated or proceeded against thatrelates to any matter under investigation orin question. The Commission, or any memberthereof, shall upon application of any partyto such proceedings, forthwith issue to suchparty subpoenas requiring the attendance andtestimony of witnesses or the produotion ofany evidence in such proceeding or investiga-tion requested in such application. Withinfive daye after the oervice of a subpoena onany person reqUiring the production of anyevidenoe in his possession or under his con.trol, such person may petition the Commissionto revoke and the Commission shall revoke, suchsubpoena if in its opinion the evidence whoseproduction !,s required does not relate to anymatter under investigation, or any matter inquestion in such proceedings, or if in itsopinion such subpoena does not describe withsufficient particularity the evidence whoseproduction is required. Any person may appealthe Commission's revocation of a subpoena toany distriot court of the United States or theU.S. courts of any territory or possession, orthe District Court of the U.S. for the Districtof Columbia, within the jurisdiction of whichthe inquiry is carried on. Any member ofthe Commission, or any agent or agency desig-nated by the Commission for such purposes,may administer oaths and affirmations, examinewitnesses, and receive evidence. Such &Atonedance of witnesses and the production of suchevidence may be required from any place in theUnited States or any territory or possessionthereof, at any designated place of hearing,

(2) In case of contumacy or refusal toobey a subpoena issued to any person, any dis-trict court of the United States or courts ofany Territory or posmession, or the DistrictCourt of the United States for the Districtof Columbia, within the jurisdiction of whichthe inquiry is carried on or within the juris.diction of which said person guilty of oantu-maey or refusal to obey is found or resides ortransacts business, upon application by theCommission or any party to a rroceeding here.under shall have jurisdiction to issue to suchperson an order requiring much person to appeabefore the Commission, its member, agent oragency, there to produce vidence if so orderedor there to give teetimony touching the matter

under investigation or in question; and anyfailure to obey such order of the court may bepunished by said court as a contempt thereof,

(3) No person shall be excused from at-tending and testifying or from producingbooks, records, correspondence, documents, orother evidence in obedience to the subpoena ofthe Commission, on the ground that the testi-mony or evidence required of him may tend boincriminate him or st..bject him to a penalty offorfeiture; but no individual shall be prose-cuted or subjected to any penalty or forfeituretor or on account of any transation, matter,or thing concerning which he is compelled,after having claimed his privilege winst self-incrimination, to testify or produce evidence,except that such individual so testifying shallnot be exempt from prosecution and punishmentfor perjury committed in so testifying'

(4) Complaints, orders, and other pro-coos and papers of the Commission, its member,agent or agency may be served either personal-ly or be regintered or oertified mail or bytelegraph or by leaving a copy thereof at theprincipal office or place of business of theperson required to be served. The verifiedreturn by the individual so serving the samesetting forth the manner of such service shallbe proof of the same, and the return post of-fice receipt or telegraph receipt thereforwhen registered and mailed or telegraphed asaforesaid shall be proof of service of thesame. Witnesses summoned before Cie CoMMis-sion, its member, agent, or agency, shall bepaid the same fees and mileage that are paidwitnesses in the oourts of the United States,and witnesses whose depositions are taken andthe persons taking the same shall seerallybe entitled to the same fees as are paid forlike services in the courts of the UnitedStates,

(e) All process of any court to which ap-plication may be made under this Act may beserved in the judicial district wherein thedefendant or other person required to beserved resides or may be found.

(6) The several departnients and agenciesof employers shall furnish the Commission,upon its request, all records, papers, andinformation in their poesession relating toany matter before the Commission.

(7) Any person who shall willfully resist,prevent, impede, or interfere with any memberof the Commission or any of its agents oragencies in the performance of duties pursuantto this Act shall, upon conviction, be punishedby a fine of not more than $5,000 or by impris.onment for not more than one year, or both,

(j) The Commission shall adopt, promul.gate, amend or rescind such rules and regulaetions as it deems necessary and administrative-ly feasible to carry out the provisions ofthis Act, Public hearings shall be held bythe Commission on any proposed rules or regu-lations of general applicability designed toimplement, interpret or prescribe policy,procedure or practice requirements under theprovisions of this Aot and on any proposed

83

ohange to such existing rule or regulation,Reasonable notice shall be given prior tosuch hearings, which shall include time, placeand nature of suoh hearing and also the termsor substance of the proposed rule or regulation,

SECTION 10, Mediation_apd Factfinding

(a) The party desiring to modify or ter-minate a collective bargaining agreement, orotherwise modify terms and conditions of em-ployment, shall notify the other party andthe Federal Mediation and Conciliation Ser-vice, hereinafter called "Service", 60 daysprior to the time it is proposed to make suchmodification,

Ttm Service shall assign a mediator uponrequest of either party or upon its own motion,

(b) If upon expiration of an existing col-lective bargaining agreement, or 30 days fol-lowing certification of an exclusive repre-sentative, a dispute concerning the collectivebargaining agreement exists between the employ-er and the exclusive representative, eitherparty may petition the Service to initiate fact-finding. If no request for factfinding is madeby either party prior to the expiration ofthe agreement, or 30 days following certifica..tion of an exclusive representative, the Ser.-vice may initiate factfinding, as provided forin subsection (0) hereof.

(c) Within three days of receipt of suchpetition, or on its own motion, the Serviceshall submit to the parties a list of sevenqualified, disinterested persons, from whichlist each party shall alternately strike threenames, with the order of striking determinedby lot, and the remaining person shall bedesignated "factfinder", This process shallbe completed within five days of receipt ofthis list. The parties shall notify the Ser-vice of the designated faotfinder.

(d) The factfinder shall immediately es-tablish dates and place of hearings. Upon re-quest c: either party or the facttinder, theService shall issue subpoenas. The facttindermay administer oaths and shall afford allparties full opportunity to examine and cross,-examine all witnesses and to present any evidonee pertinent to the issues in dispute, Up.on completion of the hearings, but no laterthan twenty days from the date of appointment,the factfinder shall make written findings offacts and recommendations for resolution ofthe dispute and shall serve such findings onthe employer and the exclusive representative.The factfinder may make thia report publicfive days after it has been submitted to theparties. If the dispute is not resolveififteendays after the report is submitted to the par=ties, the report shall be made public. Theparties shall continue the status quo for aperiod of 60 days from the date either partyrequests faotfinding or the Service initiatesfact finding on its:own motion, During this

60-day period, in order to permit the success-ful resolution of the dispute, the employermay not unilaterally change any terms or 'con-ditions of employment, .ad the employeesshall not engage in a strike,

(e) The employer and the exclusive repre-sentative shall be the only parties to fact-finding proceedingo,

(f) Nothing in this section shall be con-strued to prohibit the factfinder from en.deavoring to mediate or resolve tlle dispute, orfrom prohibiting the parties to substitute forthese purposes any other governmental or otheragency or party in lieu of the Service,

(g) Nothing in this section shall be con-strued to prohibit the parties from voluntari-ly agreeing to submit any or all of the issuesin dispute to final and binding arbitration,and it such agreement is reached said arbi-tration shall supersede the factfinding proce-dures set forth in this Section.

SECTION 1,1,. Effective State or Looal Laws

This Act shall be the exclusive methodfor regulating the relationship between employ-ers and the employees in regard to all matterscovered heroin; Provided, That if any of theseveral states or political subdivisionsor any territory or possession of the UnitedStates shall by law establish a system forregulating the relationship between employersand their employees Which is substantiallyequivalent to the system established by thisAct, said state, or political subdivision,territory or possession is substantially equiva-lent to the system established herein, itshall grant the requested exemption, to takeeffect on a date fixed by the Commission.

SECTION 12, Severabilit

If any provision of this Act, or the tip.plication of such provision to any person orcircumstance is held invalid, the remainderof this Act, or the application of such provi-sion to pqrsons or circumstances other thanthose as to which it is held invalid, shallnot be affected thereby,

ABOTIONAl. Aot Takes Pracedence

This Act shall supersede all previousstatutes concerning this subject matter'andshill preempt all contrary local ordinanceo,executive orders, legislation, rules or regu-lations adopted by any State or any of itspolitical subdivisions or agents such as apersonnel board or civil service commission,

Efteetive_Date_and_Tormination

This Act shall be effective(immediately upon enactment or

;;;;;From date),

NEA's Proposed Bill of Teacher Rights

INTRODUCTION

By George D, Fischer, President, NEAAt 1970 Convention

At our convention last year, I proposedthe writing of the Bill of Teacher Rights. Atthis convention, I am happy to oubmit to youthe first draft of a proposed Bill of TeacherRights.

A considerable effort has gone into thisdraft. More than 400 statements of rights havebeen secured, studied and incorporated intothis document. It now needs the criticalreview by you, the teachers of America.

Diatribution oe the first draft and an openhearing take place at this convention. Noofficial action will be requested.

The document will undergo continuingrefinement during the summer. Next fall itwill be sent to all state and local associa-tions for critical analysis. A national work-shop will be held next spring and 4 seconddraft will be submitted to delegates at the1971 convention.

This work is being done under the super.vision of a working committee appointed by theCommission on Professional Rights and Respon,sibilities. The committee is chaired by Mr.Lewis T. Clchan, California. Serving on thecemmittee are Mr. Hudson L. Barksdale, SouthCarolina, Miss Muriel Kendrick, New Hampshire,Mr, Joseph Wilson Westbrook, Tennessee and Mr.Dick Vander Woude, Nevada. Mr. William P.Haubner, Senior Staff Associate and ChazlotteB. Hallam, Staff Associate, PR to Roare staffcontacts for the committee.

This first draft is the initial effort toenumerate the unspoken and often unknowns tocodify that which may not yet exist in legit!.lation or statutess to declare for teachersrights and privileges which have long beenreserved to government bodies cr their autho.rized agents. The Bill of Teacher Rightsultimately will establish the rights of allteachers at all educational levels.

This bill must be a major instrument inforever dispelling the denial of teacherrights. All engaged in the educational pro.0008es must be made aware of the rights of theother teacher. Governmental authorities andschool administrators must not, either throughaccident or design, abridge or deny these

ES

rights, Parents and citizens must not; througheconomic or political pressure, self interestor prejudice, abridge or deny the rights ofteachers, And lastly, teachers must not,through ignorance or fear, acquiesce when theirrights are abridged, abrogated or denied.

Just as the Bill of Righto was added tothe Constitution of the United States to fur-ther protect all citizens, we will write thisBill of Teacher Rights to prevent arbitrary,capricious, discriminatory, unfair or inequi0,table acts against teachers regardless of thesource. Only through personal freedom can wehope to attain the academic and intelleotualfreedom which is our inheritance 40 citizensin a democratic system. To teach freedom,teachers must be truly free to teach. To learnfreedom, students must be truly free to learn.

OVERVIEW

A bill is defined as a written document.A right is interpreted as something that onemay properly claim as due. The Bill of TeacherRights will be a promulgation of that to whichall teachers are entitled and what no just per-son should refuse or deny.

The Bill will provide standards which maybe adopted in legislation, negotiated agree .ments or in any other documents which woulddesignate prohibited acts and provide for theready identification of violations of teacherrights.

PREAMBLE

The teachers of the United States ofAmerica, ever aware that the general welfareof a free society is dependent upon the edu-cation afforded its citizens, affirm that theright of the student tG learn is paramouft inthe advancement of society.

In order to promote intellactual freedom,to fully encourage the pursuit of truth ,andknowledge, to provide a climate to developmethods of acting as a consequence of thinking,to develop and preserve respect for the worthand dignity of man, we further affirm thatteachers must be free to contribute full tothe evolution of the process and the environ.ment which encourages and promot4 the free.dom to teach and the freedom to learn.

The teacher recognizes this unique leadersship role and responsibility to promote an edu.cational community which reflects values andprinciples contributive to improving the

quality of educatim in the United States today.

Believing that teachers who teach freecitizens must likewise be free in all aspectsof their life and being desirous of enunciateing these principles and rights and the fun-damental freedoms derived from them in a Billof Rights, we do hereby declare the followingrights for all persons engaged in the teachingprofession.

The enumeration herein 0; certain rightsshall not be construed to deny or disparageother rights retained or accruing to teachers,and references to specific situations areintended as illustrative and not by way oflimitation.

ARTICLE I

RIGHTS AS AN INDIVIDUAL AND CITIZEN

As a person engaged in the professionthat depends upon freedom to assure qualityteaching and learning, the teacher must betree to fully exercise rights as an individualand as a citizen. In the exercise of allrights, privileges or immunities, the teachermust be free publicly and privately from OM-.straints that are not mitposed on other indi-viduals or citizens.

As an individua4 the teacher must be freeto exercise those fundamental rights accordedto all persons. Such rights include dignity,life, liberty and the pursuit of happiness.

As a citizen the teacher enjoys thoserights created and protected in the variousconsitutions a laws. Teachers cannot bedenied their rights solely because they arepublic employees.

The teac!ter enjoys the same rights asdoes every other person in society, withouta ehowinc that the exercise of individual andcitizenship vtghts has a demonstrably detriemental effeot on the education process.

As a member of a profession encouragingthe full development of the person as an indi-vidual nd as a citizen, the teacher must beafforded every opportunity outside the academiceetting to maintain dignity, privacy, self-reepect, full self-development and all rightst) citizenship.

haft the_right to e

SECTION 1, Exercise religious freedom inthought and expression, subject to nodictation from outside the mind of theholder, being at all times his spokeseman,

SECTION 2. Exercise all rights of citizenshipincludingt political freedom in thoughtand expression, registering and voting,performing jury duty, participating inparty organization, campaigning for canedidates, contributing to campaigns of canecandidates, lobbying and organizing politeical action groups, and running far andserving in public office in the absence

of an overriding conflict of interest.S4CTION 3. Advocate, seek and actively par-

ticipate in the 1:%entification and solu-tion of social and economic problems.

SECTION 4. Poroefully and publicly dissent,criticize, and to express, communicate,and advocate change.

P4OTION 5. Be free to read, write, discuss andadvance any beliefs individually or inassociation with others.

SECTION 6. Be in a minority and to collectivelyoppose the majority by expressing andespousing unpopular causes and conclusionswhether they be right or wrong.

SECTION 7. Have equal protection of all lawsfree from discrimination or any basis,including race, color, creed, age, sex,marital status, religion, political, na-tional or social origin, or economic con-ditition.

SECTION 8# Have equal opportunity and fairtreatment in all matters as accorded allother eimilarly situated persons.

SECTION 9. Be free in his employment frompunitive actions based upon private, per-sonal conduct unless there is a showingof an adverse effect such conduct has up-on the educational process.

SECTION 10. Be afforded a decent standard ofliving for himself and his family comemeAsurate with his background, trainingand experience.

ARTICLE II

RIGHTS AS A PROFESSIONAL

The teacher as a member of a professionpossesses special knowledge and ability for'providing the fullest possible educationalopportunity relevant to the student arid society.The full application of his special knowledgewithin his profession and the exercise ofmethods which contribute to the intellectualinterests of the student further the objectivesof education. HO is a person obligated byethical responsibilities to those he teaches,to the public and to his colleagues. To pro-tect society, the teacher's aoademio freedommust be guaranteed, for its absence restrictsthe freedom of the people to learn. Accord.inglyt the teacher in the academic settingmust be free from unreasonable coercion in hisexpression of knowledge and ideas and must befree from judgements of his professional comepetency by persons other than qualified andobligated professionals.

e#

The freedom to learn requires vigorous,bold and independent thought in the search fortruth And knowledge, Freedom in the education-al setting is dependent on all the rightsaccorded the teacher in every aspect of hislife.

The freedom to teach requires the time toteach and an appropriate place to teach. Itgives the teacher the right to be free fromnoneprofessional duties which are not reasoneably related to teaching responsibilities or.which unreasonably interfere with his capacityto perform professionally. It gives him theright to be provided with appropriate learningmaterials, supervisory and administrative

86

assistance, equipment and facilities,

h ce he i As ottea, int

_ . . . _ _ _ _ _ _teac er as

SECTION 1. Exercise all of his rights withinthe educational system as long as theexercise does not have an adverse effecton the learning process or the health andwelfare of the student.

SECTION 2, Be free from coercion, intimidationor repression except whon his conduct vio-lates accepted standards of professionalethics and competency.

SECTION 3. Advise the public of his judgmentof matters affecting the educationalprocess.

SECTION 4. Attend and be afforded access to theminutes of any meeting of any public bodyat which offioial action is to be takenwhich affeots the educational process.

SECTION 5, Present and interpret informationwithin his area of competenoy and toevaluate and criticize ideas presented inany textbook or other materials.

SECTION 6. Have access to any knowledge and totranslate and transfer these findings andteachings into learning situations withinhis area of assignment.

SECTION 7. Teach controversial issues withinhis area of assignment presenting differ.ing points of vIeW, including his own.

SECTION 8. Encourage critical thinking bypresenting and discussing any opinion orconclusion, distinguishing among thosebased on theory, evidence, conjecture,widely-accepted ideas, emotional adherence,prejudicial'acceptanee or any other formsof support.

SECTION 9. Be considered for employment solelyon the basis of educational and profes-eional criteria.

SECTION 10. Teach in a system which has finan-cial support sufficient to provide qualityeducation for all students.

SECTION 11. Have safeguards, facilities, andconditions which protect the life andproperty of those involved in the teach...ing environment.

SECTION 12, Make an effective contribution tothe solution of professional problemstincluding participation in the research,development and adoption of new courses,textbooks, teaching aids and methods ofinstruction, and participation in theplanning of new schools.

SECT/ON 13, Obtain copyrights or patents onpublications, materials, teaching aids,instruments, processes, or methods he hasdeveloped or discovered, when their uti.,litation is contemplated outsidecontractual responsibilities.

SECTION 14. Keep professional skills up-tomdate.

SECTION 15, Have his competency evaluatedbased upon professional standards asdefined, established and accepted with theparticipation of the teacher or his rep-resentative.

SECTION 16, Have access to any written evalu-ations of his competency or performanceand the right to appeal from any evalu.ation to a clearly designated impartialagency.

87

4

1

SECTION 17, Have documents placed in nispersonnel file to rebut any negative evalu-ations of his performance in a professionalcapacity.

SECTION 16, Have access to all items in hispersonnel file except privileged communi-cations related to his initial employment,and to have removed from his personnelfile any letters or other documents whichcast doubt upon his performance as ateacher upon determination that such let-ters or documents are without foundation.

SECTION 19. Be advised, in writing, of allthe particulars of any complaint againsthim which might affect him or his teach-ing status,

SECTION 20, Deoltne, without penalty, anyparticipation in an evaluation of his per-sonality requiring submission to a pop,chiatric or psychological examination, inthe atsence of substantial evidence show-ing t - 'Lecessity for such examination.

SECTION V Refuse to reveal evaluative orother confidential information aboutstudents to any person within the schoolsystem who will not Utie such informationfor professional purposes or for purposesconsistent with the best interests of thestudent involvedl and to refuse to give400080 to any student records to any per-son outside the school system withoutwritten permission from the student andhis parents.

SECTION 22. Secure students' opinions of andparticipation in academic planning andevaluation,

SECTION 23. Refrain from recording or dis-closing students's political, social orreligious activities or attitudes.

SECTION 24. Use any reasonable means tomaintain discipline.

SECTION 25. Exclude (A student when hisbehavior is such as to seriovily dis-rupt the learning process.

SECTION 26. Use any reasonable force toproteet the health and safety of himselfor others.

SECTION. 27. Refuse his services under con-ditions or terms which interfere with orimpair the free and complete exercise ofhis professional judgment and skill orwhich have a harmful effect on the learn.ing process, health or welfare of hisstudents.

ARTICLE II/

RIGHTS AS AN EMPLOYEE

Conditions which interfere with efficientteaching and learning can be avoided or sub-stantially minimised when all interestedpartiae recogni2e the legitimate rights ofteachers in their relations with the employ.ing agency. Pollowing his entrance into theprofession, the teacher has the right to theexpectancy of continuing employment in theabsence of a showing of good cause for hisdismissal or nonrenewal. The conditions andterms of employment should be no less thanthe same rights, considerations, and privi.loges as are accorded all other equally quali.tied and situated employees.

The public interest and quality educationrequire high standards of teaching performanceand the continuous development and implementa-tion of modern and progressive work prLoticesand conditions. Exoellence of performance isobtained from teaohers who have been provideda working environment conducive to the mainte-:lance of constructive and cooperative rela-tionship between employing agencies and teachersaoting individually or collectively.

Such employment rights as are acoorded theteacher promote the aims of education.

A a em loyee the teacher has the

SECTION 1. Choose, seek and accept work com-mensurate with his qualifications andability without regard to his race, color,creed, marital status, sex, age, religion,national or social origin or economicoondition, with consideration and privi-leges as are accorded to all other equallyqualified and situated persons.

SECTION 2. Expect continuing employment up tothe official age of retirement, in theabsence of A anowing f goOd 0411$0 throughfair and equitable 4/roceedings.

SECTTON 1. Be fully informed, in writing, ofall rules, regulations, terms or condi-.tions of employment.

SECTION 4. Be assigned and advanced throughsalary increments at regular intervals,based on continuing satisfactory service,academic training, experience, and 'senior-ity when all other factors are equals andto be paid a salary designed to attractand retain qualified and competent per-sonnel.

SECT/ON 3. Be afforded an annual vacation withpaY, reloased time for professionalimprovement without loes of pay, freeservice education, leave without impair.ment of economic or professional statusfor purposes inoludings service in pnblicoffice, study, travel, maternity, pater.nity, sabbatical, and military service.

SECTION 6. Be provided retirement pay whichwill permit a deoento dignified andrespectable standard of liVing.

SECTION 7. Be provided all public services andbenefits, as are provid4d other similarlysituated persons, including health care,unemployment and workmen's compensation,and social security.

SECTION 8, Seek and obtain supplemental employ.ment as lone as it does not interfere withteaching obligations.

SECTION 9. Have his class size and work loadestablished on a basis commensurate withinstructional objeetivea and procedures.

SECTION 10. Be afforded professionally compe.potent administration and supervisiondesigned to improve educational services,

SECTION ii. BS free to form, join or assistorganisations without ooeroion, and toengage in activities for the purpose ofcollective negotiation or other Mutualaid or protection.

SECTION 12, Have good faith collective nego.tiations, through representation of theirown choice, on the terms and conditionsof professional service, including

88

instructional policy and other matters ofmutual concern.SECTION 13, Use school facilities for asso-

elation activities when such use doesnot unduly interfere with instructionalactivities.

SECTION 14, Have recourse to conciliation,fact-finding, and mediation as a meansof resolving negotiation impasse.

SECTION 15, Collectively refuse services insituations where established proceduresfor resolution of differences have failedand where the public health, safety, orwelfare is not unreasonably endangered.

SECTION lb, Have recourse to fair andequitable procedures, to seek redresfor adverse treatment, including theright to. .A. Be immediately apprised of any of

his conduct which has boon determinedto be deficient by the administration,and to be given an opportunity tocorrect any such deficiencies beforecharges are made.

B. Be informed in writing of any chargesagainst him and the grounds andevidence in support thereof when anyadverre action is contemplated.

C. Be afforded an open hearing, or atthe request of the charged party aolosed hearing, before an impartialtribUnal within a reaSOnal40 time,allowing sufficient time to preparea defense, when charges are placedagainst him.

D. Be provided full access to ull evi-dence in his case.

E. ReqUire all testimony of witnessesby oath or affirmation.

r. Crossexamino all witnesses againsthim and to present witnesses andother evidence on his own behalf.

O. Retain counsel of his own choosingor to defend himself.

H. Be afforded compulsory proces0 forobtaining witnesses within theschool system and other evidencewithin the control of the Schoolsystem.

I. Have evidence restricted to thecharges.

3. Be provided findings of fact and lawby the hearing tribunal.

X, Have a stenographic record of thehearing, findings, and deciSion,

L. Appeal to a clearly designatedimpartial authority or body.

M, Seek redress in court.N, Be free from coercion or intimida-

tion when hJ seeks redress or whenhe testifies or in any way particiapates in any proceeding, investiga-tion, or hearing on his own behalfor on behalf of others,

SECT/ON 17, Have recourse to binding arbi-tration as a means of resolving grievancedisputes,

ARTICLE /V

RIGHTS IN AN ASSOCIATION

Free association with other personsprovides teachers a recognised means to raise

Si

the status of the profession and to establisha meaningful relationship with colleagues,administrators, other professionals, student4and the publio. In achieving and maintainiman influential and effeetive position tofurther the interests of the professionalorganization, the members adhere to the bigheststandards or responsibility and ethical con.duct in administering organizational affairs,

Teachers encourage the free and full par.ticipation of the members in the affairs oftheir association, To e representative of,responsible and responsive to the membership,the organization provides all members withequal rights and privileges for self.governmentand the ability to influence decisions affect.ing the membership,

a mber of an or a zat on formedfor pro ess Dna _an e na res .sons the teacher has the right to-=

_ _ ePww. _ _

SECTION 1. Acquire and retain membership,being eonsidered cqually and withoutdiscrimination on the basis or race,oolor, creed, marital status, sex, age,religion, national or social origin, oreconomic, condition.

SECTION 2. Withdraw from membership free fromany punitive aotion.

SECTION 3. Participate freely, fully and

equally with every other member in theaffairs and prooesets of the organization,

SECTION 4, Express Fae views on organizationalmatters at meetings, subject to establishedany reasonable rules,

SECTION Meet with other members, outsidethe organizational setting to express anyviews, arguments or opinions,

SECTION 6. Vote for oreanizational officers,either directly or through delegatebodies, in fair elections,

SECTION 7. Stand for and hold office subjectonly to fair qualifications uniformlyimposed,

SECTION 8. Be provided periodic reports ofthe affairs and oonduct of business of theorganization,

SECTION 9. Be provided detailed and accuratefinancial records, audited and reportedat least annually, and available to allmembers.

SECTION 101 Be free from unreasonable punitiveaction, coercion or restraint by theorganization for the exercise of onyrights to which the member is entitled.

SECTION 11. Soek redress through fair andequitable procedures, including the rightof appeal, fors4, any adverse action taken against the

individual members and,b, any alleged viOlation of organiza7.

tional rules, practices, and procedures.

89

92