John Burton of the University of Birmingham in Britain explains that while in both, the United States and Britain, public sector unions have enjoyed spectacular growth in membership and have emerged as new giants in their respective trade union movements, standard contemporary economic texts seldom mention, let alone seek to analyze, the nature and activity of public sector unionism.
Dr. Charles Baird compares the strike by the Professional Air Traffic Controllers Organization (PATCO) with the Polish trade union Solidarity. He concludes: "To support the goals and actions of Polish Solidarity is merely to support the goals and actions of the American Founding Fathers. To support the goals and actions of PATCO, on the other hand, is to support a retreat from the values of the American Founders. Supporting Solidarity and opposing PATCO is not only logically consistent, it is what anyone who is dedicated to the principles of democracy and limited government must do."
Discusses the general legal aspects of reduction-in-force (RIFs) which have emerged from case law, especially RIFs due to financial, enrollment and program reasons.
Based on a survey of Illinois, Michigan and Wisconsin school board members to determine whether their perceived ability to perform legislatively prescribed duties is impacted by the type of collective bargaining legislation enacted within their state.
According to the results of the study, state laws governing collective bargaining significantly influence the perceived ability of school board members to carry out legislatively prescribed duties. Board members from states with mandatory bargaining felt a greater impact on their ability to govern than individuals representing boards from a non-mandatory state.
Edwin Vieira Jr. points out that litigation concerning problems of constitutional law and policy surrounding compulsory public sector bargaining is commplace in national and state courts today.
Discusses the reason for Kentucky School Boards Association's opposition to collective bargaining legislation for teachers. Dr. Scott maintains that the KSBA has consistently opposed bargaining for school employees because: the public is opposed to it, it is expensive, it diminishes local control of education, and, in the final analysis, it is detrimental to the educaitonal process.
Dr. Sylvester Petro's study, " Sovereignty and Compulsory Public Sector Bargaining," published in 1974 in the Wake Forest Law Review, was perhaps the first definitive work on public sector collective bargaining. Now, 18 years later, he has updated his thoughts on the subject with another article, Public-Sector Bargaining: An Assessment. He writes:
"This survey of developments during the last fifteen years in public sector collective bargaining suggests two conclusions:
- Bad as our labor policies have proven to be in the private sector, where they originated, they may be producing even worse results in the public sector, where they have been transferred on the basis of a misleading analogy.
- The states and localities which have adopted public-sector collective bargaining (psb), despite its incompatibility with both effective government and the ideal of faction-free representative government which animated the founding of this country, find themselves in conditions less satisfactory than those which prevail in the states which have rejected collective bargaining in the public sector."
In "Constitutional Limitations on the Assessment of Agency Fees in Public Sector Employment," Dr. Edwin Vieira explores one of the most controversial issues in contemporary public sector labor relations: the extent to which a union selected as the exclusive representative of public employees should have authority to charge non-members "agency shop" fees for activities in contract negotiations and administration. For those who question the premise of "agency shop" arrangements, Dr. Vieira's article is enlightening and will be of interest to public sector labor relations academics and experts.
Dr. Arthur Shenfield in discussing "Union Power and Party Politics: The Case of Public Service Unions" says, "[m]ore and more the American two-party system (apart from the conservative Southerners) is becoming a mirror of the British system. More and more under the impress of public service unions, the Democratic Party is acquiring the characteristics of the British Labor Party as it was a decade or two ago. It is a fate which no friend of the American people would wish upon them."
Associate Professor of Political Science at Idaho State University, Anne Merline McCulloch, critically analysizes the popular belief that the passage of pro-labor legislation on the state level depends on Democratic control of a legislature. This is a particularly timely piece because of organized labor's move toward supporting Democratic candidates exclusively, in the belief that labor demands will only be met by them. Dr. McCulloch indicates that other factors are responsible for passing pro-labor legislation, but party identification is not one of them. "[U]nions should not rely heavily on electing Democratics to state government in order to further their interests, as a Democratic state government in and of itself will not significantly improve the chances over those of a Republican controlled government in passing favorable legislation," she says of her findings.
Justices Holmes' and Brandeis' influence on the shaping of labor law is studied by Arthur Shenfield. Governmental intervention and union power have grown, he says, and found expression in the various types of labor legislation. Much of this development can be traced to labor decisions authored by Holmes and Brandeis, he writes.
We saw in a preceding article that the legislatures of more than half the states have embraced public sector bargaining on the ostensible ground that it would promote orderly and effective government.1 Reason predicted and experience has confirmed a contrary result. Logically public sector bargaining is incompatible with orderly and efficient government and the concept of popular sovereignty upon which the political institutions and the constitutions of this country were based.2Moreover on any honest empirical assessment the experience of those jurisdictions which have adopted public sector bargaining must be described as disastrous. 3
There was a time when the courts of this country could have been counted upon to check at least the more flagrantly unconstitutional acts of the legislatures including legislative abdication to public sector unions. That time seems to be going. Of the state supreme courts which have ruled recently on the constitutionality of compulsory public sector arbitration, a few have ruled against it, but most have ruled in its favor. This diversity is of some significance, but it seems far less sign significant than the fact that all courts which have passed recently on the validity of compulsory public sector bargaining have held it constitutional.
I THE WAY THINGS USED TO BE
Only a few years ago, American Courts were much more cautious in assessing public sector collective bargaining, including its adjuncts, interest and grievance arbitration.4 They considered public employment to be in a class by itself, and held that practices appropriate in private sector labor relations would be anomalous in the public sector. A right to strike in public employment, they felt, could not be squared with the then-ruling conceptions of sovereignty and representative government. Some courts went so far as to hold all collective bargaining unconstitutional in the public sector, but even the less doctrinaire courts were disinclined to endorse in the public sector the kind of majority-rule, exclusive-representation type of bargaining that prevailed in the private sector.
In 1947, in City of Springfield v. Clouse,5 the Missouri Supreme Court held a collective agreement between a municipality and a union representing some of its employees unenforceable as an unconstitutional betrayal of power delegated by the people to their government. This delegated power was not delegable, the court said, hence it could not be bargained away to a union. In what may have been something of an overstatement of a fundamentally clear principle of American constitutional law, the court said:
Under our form of government, public office or employment never has been and cannot become a matter of bargaining and contract. [Citing cases] This is true because the whole matter of qualifications, tenure, compensation and working conditions for any public service, involves the exercise of legislative powers. Except to the extent that all the people have themselves settled any of these matters by writing them into the Constitution, they must be determined by their chosen representatives who constitute the legislative body. It is a familiar principle of constitutional law that the legislature cannot delegate its legislative powers and any attempted delegation thereof is void. [Citing authorities]. If such powers cannot be delegated, they surely cannot be bargained or contracted away; and certainly not by any administrative or executive officers who cannot have any legislative powers. Although executive and administrative officers may be vested with a certain amount of discretion and may be authorized to act or make regulations in accordance with certain fixed standards, nevertheless the matter of fixing such standards involves the exercise of legislative powers. Thus qualifications, tenure, compensation and working conditions of public officers and employees are wholly matters of law-making and cannot be the subject of bargaining contract.6
If pushed on the subject, the Missouri court would probably have backtracked somewhat from its assertion that government employment "cannot be the subject of bargaining contract." For, while it is true that our federal government is conceded the constitutional authority to draft the citizenry into the armed forces and other forms of public service, and that the generally conceded power to tax is in fact a form of compulsory service, the fact remains that, contrary to the Missouri court's assertion, the civilian public service has virtually always been a matter of bargain and contract. Even police officers are normally employed on a voluntary, contractual, offer-and-acceptance basis. A power to deputize in certain cases is common in this country, but it is rarely asserted. And no one, to my knowledge, has ever contended that the voluntary system of engaging even peacekeeping officers is a violation of the constitution.
In the Norwalk Teachers case,7 decided just four years later in 1951, the Connecticut Supreme Court took essentially the same position the Missouri court had taken-indeed citing the Clouse case favorably-but at the same time corrected some of the overstatements. The Norwalk Teachers Union had asked the Connecticut court for a declaratory judgment on all the fundamental issues raised by public sector collective bargaining:
(a) Is it permitted to the plaintiff [Teachers' Union] under our laws to organize itself as a labor union for the purpose of demanding and receiving recognition and collective bargaining?
(b) Is it permitted to the plaintiff organized as a labor union to demand recognition as such and collective bargaining?
(c) Is it permissible under Connecticut law for the defendant to recognize the plaintiff for the purpose of collective bargaining?
(d) Is collective bargaining to establish salaries and working conditions permissible between the plaintiff and the defendant?
(e) May the plaintiff engage in concerted action such as strike, work stoppage, or collective refusal to enter upon duties?
(f) Is arbitration a permissible method under Connecticut law to settle or adjust disputes between the plaintiff and the defendant?
(g) Is mediation a permissible method under Connecticut law to settle or adjust disputes between the plaintiff and the defendant?
(h) If the answer to the previous questions is yes, are the State's established administrative facilities, such as the State Board of Mediation and Arbitration and the State Labor Relations Board, available, as they are available in industrial disputes, to the plaintiff and the defendant?
(i) Does the continuing contract law, so-called, create a status of employment within which the plaintiff may claim employment subject to the right to bargain salaries and working conditions?
(j) Has the plaintiff the right to establish rules, working conditions and grievance resolution procedures by collective bargaining?5
To summarize the decision, the court gave a qualified "yes" answer to questions (a), (b), (c), (d), and (f); a positive "no" to (e), (h), and (j); and a clear "yes" to (g). The court declined to answer (i), saying that "the meaning of this is not clear and the briefs do not clarify it"10
The court's affirmative answer to questions (a)-(d) and (f) would appear, if unqualified, to endorse compulsory public sector bargaining and arbitration as we now know them. However, the court's qualifications make all the difference; with them, the "yes" amounted only to recognition of the fact that there is and always has been a certain amount of freedom of contract in all civilian public employment in this country. And, in fact, it endorsed collective bargaining in the public sector only to the extent that it was compatible with such freedom of contract.
Indeed, the court's decision amounted actually to a ruling against the kind of compulsory collective bargaining on the exclusive representation principle which now prevails in the federal government and in about half the states. In a word, the court took the position that, since individual public employees voluntarily take public employment on the basis of individual negotiations within the general terms and conditions of employment offered by the government, they may lawfully and constitutionally appoint agents to negotiate within those terms for them. But that is all, said the court: no majority rule, no compulsory unionism, no exclusive representation, and no general arbitration-only arbitration compatible with the strictly limited "collective bargaining" which the court approved.
The court did not even categorically accept a right for public employees to join outside unions. It said only that "[i]n the absence of prohibitory statute or regulation, no good reason appears why public employees should not organize as a labor union."11 However, while conceding such a tentative right to organize, the court clearly denied such a union any right to force itself upon either dissenting employees or the public employer. 12 Furthermore, a union of public employees could not bargain on the wide range of subjects open to unions in the private sector, but only "for the pay and working conditions which it may be in the power of the [public employer] to grant."13
What the court had in mind seems compatible with a rigorously conceived and implemented conception of the nondelegability of legislative power. Even the most narrowly defined and legislated terms and conditions of employment must leave at least a little discretion in the actual employing agent or agency. A statute or ordinance may state in detail what the wages and hours of a position shall be, but it cannot identify the person who will occupy the position; for example, it cannot determine which of a number of applicants shall be awarded the position when they all seem equally qualified. There are no automatic mechanisms available, either, to settle disputes among individual employees over this or that variety of preferment or fault. Ultimately, it is impossible to conceive of any purely "ministerial" acts accomplished by human agents. When a human being acts he makes choices, and choices involve discretion. Only machines perform purely ministerial acts.
To the extent that the appropriate legislature leaves discretion with the public employer, said the court, that employer may if it wishes-and in the absence of legislative prohibition-deal with the voluntarily chosen representatives of the employees, but strictly on a members-only basis.
It would seem to make no difference theoretically whether the negotiations are with a committee of the whole [employee] association or with individuals or small related groups, so long as any agreement made . . . is confined to members of the association...
The qualified "Yes" [to (d)]. . . should not be construed as authority to negotiate a contract which involves the surrender of the board's legal discretion, is contrary to law or is otherwise ultra vires. For example, an agreement by the board to hire only union members would clearly be an illegal discrimination.14
As to the permissibility of arbitration, the courts made no distinction between "grievance" and "interest" arbitration. Both were impermissible as incompatible with the delegation principle, except to the extent that they involved specific issues which fell within the public employer's discretionary area. According to the Connecticut court, the public employer might-if it chose- agree to submit such specific issues to arbitration, just as it might, again if it chose, negotiate on these narrow subjects. Scrutiny of what the court had to say on this subject will reveal that it in no sense endorsed or approved "interest" arbitration and that only the narrowest kind of "grievance" arbitration was envisioned:
If it is borne in mind that arbitration is the result of mutual agreement, there is no reason to deny the power of the [public employer] to enter voluntarily into a contract to arbitrate a specific dispute. On a proposal for a submission the [public employer] would have the opportunity of deciding whether it would arbitrate as to any question within its power. Its power to submit to arbitration would not extend to questions of policy but might extend to questions of liability. Arbitration as a method of settling disputes is growing in importance and, in a proper case, "deserves the enthusiastic support of the courts." International Brotherhood of Teamsters v. Shapiro, 138 Conn. 57, 69, 82 A2d 345. Agreements to submit all disputes to arbitration, commonly found in ordinary union contracts, are in a different category. If the [public employer] entered into a general agreement of that kind, it might find itself committed to surrender the broad discretion and responsibility reposed in it by law. For example, it could not commit to an arbitrator that decision of a proceeding to discharge a teacher for cause. So, the matter of certification of teachers is committed to the state board of education. [Italics supplied]15
Despite the reserved tone of the opinion, the Connecticut court's decision strongly affirmed the sovereignty principle. This affirmation was especially evident in the court's definitive rejection of the idea that public employees had any kind of a right to strike. A strike by public employees, it said, could not co-exist with the fundamental principle of American society, popular sovereignty:
In the American system, sovereignty is inherent in the people. They can delegate it to a government which they create and operate by laws. They can give to that government the power and authority to perform duties and furnish certain services. The government so created and empowered must employ people to carry on its task. These people are agents of the government.
They exercise some part of the sovereignty entrusted to it. They occupy a status entirely different from those who carry on a private enterprise. They serve the public welfare and not a private purpose. To say that they can strike is the equivalent of saying that they can deny the authority of government and contravene the public welfare. The answer to question (e) is "No."16
In emphasizing the fact that public employees, as "agents of the government . . . exercise some part of the sovereignty entrusted to it," the Connecticut court in the middle of this century demonstrated the undiminished power of John Locke's seventeenth century analysis of government. It has become fashionable in latter days, even among persons occupying judicial office, to question the continued relevance of Locke's thinking. But no sane and intelligent person observing the effects of public employee strikes on good government can dispute Locke's fundamental perception that:
Where the laws cannot be executed, it is all one as if there were no laws; and a government without laws is, I suppose, a mystery in politics, inconceivable to human capacity and inconsistent with human society.17
II THE WAY THINGS ARE
In the thirty-odd years since the Clouse and Norwalk Teachers cases, there has been a considerable shift in opinion among American judges in favor of both public sector bargaining and arbitration. While the traditional sovereignty notions remain alive in a few jurisdictions, in most courts which have passed on the issues, both public sector bargaining and arbitration, whether of grievances or of bargaining impasses, have been upheld.
A. Decisions on the Constitutionality of PERAs
One must not exaggerate the degree to which the old ideas, traditions, and principles have been abandoned. As the preceding article has shown, public sector bargaining is by no means universal in this country. It is concentrated in the Northeast Tier and the Pacific Coast states. The states of the South and of most of the West do not have public sector bargaining laws, and their courts, therefore, have little occasion to express themselves on the issues of popular sovereignty which we have been discussing. When issues arise in such states, as they have in Alabama,18 Arkansas,19 South Carolina,20 Virginia,21 and West Virginia22 in recent years, the stand against public sector bargaining has been maintained by the relevant authorities. There appears to be no interest in abandoning the anti-public sector bargaining stand in North Carolina, one of the most steadfast of such states.
As a matter of fact, public sector bargaining laws have been struck down or reduced to impotence in two states, Indiana23 and Oklahoma.24 The Indiana Supreme Court, however, did not invalidate the state's PERA on delegation or popular sovereignty grounds. It found the Indiana statute unconstitutional as an infringement of judicial power, on separation-of-powers analysis. The statute had made unit determinations by the Indiana PERB final, even without elections, allowing no judicial review. The court said:
The prohibitions on judicial review of such crucial agency actions, although procedural, are nevertheless integral parts of the statute, evincing the Legislature's intention to give the Board absolute power over the size and makeup of the bargaining unit and over the determination of whether the union represents a majority within that unit.
Because the objectionable prohibitions on judicial review and the concomitant power given the Board are so unique and shape the fundamental character of Indiana's public employee bargaining statute, they are not severable from the remainder of the Act, and the entire statute must be voided.2
It is to be regretted that the Indiana court did not consider the state's public sector bargaining law from the point of view of delegability principles. And the same must be said of the decision by the Oklahoma Supreme Court in City of Midwest City v. Cravens.26 The court there held that the state's bargaining law for police and firemen did not contravene home-rule provisions of the state's constitution. Nevertheless, it in effect invalidated the statute by holding the local PERB without jurisdiction to exercise the undefined judicial powers granted it by the legislation:
Although [the] Board is granted the power to subpoena witnesses, issue subpoenas, etc . . . , there are absolutely no Legislative standards or guidelines prescribing what the Board may do if an individual or entity is charged with unfair labor practices. It appears the Legislature delegated to the Board absolute discretion to determine what authority it may or would exercise in case of unfair labor practices. The Legislature has, in effect, delegated to the Board, legislative powers which it alone could exercise.
The [PERB] . . . is attempting to hear and adjudicate a charge that [the] City has engaged in unfair labor practices. Since there are no legislative standards or guidelines prescribing what authority the Board may exercise in adjudicating the charge against [the] City, [the] City is entitled to a writ prohibiting the Board from exercising further jurisdiction in the cause.27
One of the more interesting aspects of the ground on which both the Indiana and the Oklahoma courts invalidated the respective statutes, is that it would apply to private-sector labor relations acts, as well as the public-sector acts. For the private-sector acts are all administered by administrative tribunals with large areas of unreviewable power. For example, the National Labor Relations Act vests in the NLRB General Counsel absolute power over what may be the single most important aspect of the legislation, namely, whether or not a complaint of unfair labor practices should issue. A number of federal courts of appeals have confirmed this power in the General Counsel,28 but the Supreme Court of the United States has thus far refused to pass upon its constitutionality.
In the vast majority of the attacks upon the constitutionality of public sector bargaining (psb) acts, the courts have found them valid exercises of legislative power. The attacks have been launched from several different angles-delegation, conflict with constitutional grants of power to such agencies as civil service commissions, and infringement of judicial power, to mention only the most prominent grounds of attack.
The most recent and perhaps most significant of the decisions favorable to state psb laws is that of the California Supreme Court in Pacific Legal Foundation v. Brown.29 There is a certain amount of significance in the fact that the challenge to the California psb law, usually called the "SEERA" (State Employer-Employee Relations Act), was brought, not by a government agency, but by a public interest group. Apparently all California state agencies are manned by persons loyal to the defendant, the Governor of the State, even, indeed, the persons appointed to the State Personnel Board, California's version of the normal civil service commission.
The Pacific Legal Foundation argued mainly that SEERA infringed on the powers of the State Personnel Board, which was established by the California Constitution to administer the state's civil service statutes, its merit system, and civil service employee classifications. The California Court of Appeals upheld the challenge on the ground that SEERA's compulsory collective bargaining features, in providing for the usual open-ended subjects of mandatory bargaining between the governor and public sector unions, made a mockery of the powers and duties of the State Personnel Board. In the first place, the court held, the duty to bargain over wages, hours, and other terms and conditions of employment conflicted on its face with the constitutional power of the Board to set salaries. In the second place, the authority granted by SEERA to the Public Employment Relations Board to reinstate employees found to be victims of unfair practices emptied of any significance the Personnel Board's authority over discipline of employees. In the third place, the SEERA's emphasis on collective bargaining as the method of establishing wages, hours, and other terms and conditions of employment so dominated every feature of the Act as to make its serverance impossible, so that the whole act had to be held void. 30
In a 4-2 decision, the California Supreme Court reversed the decision below. The majority held that the SEERA did not conflict with the "constitutionally enshrined merit principle" but was "carefully crafted to preserve it and to minimize [sic] conflict with it." 31 Indeed, the majority observed, the SEERA in its preamble went so far as to reaffirm the merit principle32-thus illustrating how ready some judges have become to credit pious legislative avowals.
The majority also held that the setting of wages, hours, and other terms and conditions of employment by collective bargaining did not usurp the State Personnel Board's constitutional authority because the California Constitution did not in so many words grant the Personnel Board the authority to set wages.33
Finally, the majority saw no unconstitutional invasion of the Personnel Board's authority in the SEERA's grant of power to the PERB to pass upon unfair practice charges. This grant of what the majority called "initial jurisdiction" over unfair practices did not unconstitutionally infringe the Personnel Board's authority to "review disciplinary actions" against civil service employees because [t]here is a substantial area in which PERB's unfair practices jurisdiction does not overlap with the Personnel Board's jurisdiction at all. Accordingly, for that reason alone [sic] the statutory provision could not properly be invalidated on its face in this proceeding."34
The inadequacies of the majority's reasoning produced a strong dissent by Justice Richardson, in which then-Justice Clark joined. According to Justice Richardson, the SEERA "is plainly unconstitutional as a gross infringement upon the powers of the State Personnel Board." 35 The Personnel Board's constitutional authority to "proscribe probationary periods and classifications [and] adopt other rules authorized by statute, and review disciplinary actions," he said, "without control over the salaries for the affected positions within the classification would constitute a meaningless act." For, he went on, "[w]ithout exercising such power to prescribe salary classifications, the SPB could not possibly assure that the constitutionally mandated merit principle is respected and enforced."36
In striking down the statute, the court below had said that it was the product of a "politically sensitive legislature" (and it might have added, "responding to the pressures exerted by a politically sensitive governor"). Justice Richardson saw in the raw political control of the civil service that SEERA decreed its main constitutional defect. Leaving wages, hours, and other terms and conditions of employment to bargaining between public sector unions and the governor, he thought, was incompatible with the merit system enshrined in the California Constitution. He said:
What neither the Governor nor the majority can explain is how it can reasonably be said that such a bargaining process, inevitably tainted by the familiar pressures of political give-and-take, can possibly comply with the mandate which the sovereign people of California in their Constitution have imposed upon the SPB to enforce a civil service system "based on merit" and removed from politics. [Italics in original.]37
The dissenters' essential concern, then, was the core of the sovereignty issue. The psb law was defective because it brought about a condition known as the "Hanslowe Effect" - the condition in which politicians, ostensibly elected to promote and defend the public interest, actually join with public sector unions to mulct the public. 38 Like the old spoils system it envisions government as the tool of politicians-as a means of self-aggrandizement, power, and lucre-rather than as the servant of the people.
For whatever else it may imply about the quality of judging that prevails in many of the courts, the California majority opinion represents pretty much what the courts have been doing with constitutional challenges to their respective PERAs. The Alaska Supreme Court has accepted the state PERA without any significant objection.39 Despite its earlier objection to public sector bargaining40 and its current rejection of compulsory public sector interest arbitration,41 the Colorado Supreme Court sees nothing unconstitutional in public sector bargaining, so long as the bargaining sessions are open to the public.42 Similarly, the adjacent Kansas Supreme Court has held that the state's PERA does not violate the separation of powers, home rule, or judicial-power features of the Kansas Constitution.43 The Maine courts have rejected similar challenges to the Maine PERA.44 The Maryland courts have gone the same way. 45
In a case in which the chaos ensuing from superimposing political collective bargaining on the state's merit system was evident, Town of Dedham v. Labor Relations Commission,46 the Massachusetts Supreme Judicial Court rejected the municipality's challenge of the Massachusetts PERA. Caught in the cross-fire of the competing jurisdictions of the state's civil service commission and its public employee relations commission, both of which insisted upon determining the legality of the local fire chief's attempt to discipline an insubordinate fireman, the town asked the court for relief from the jurisdiction of the PERC. Even though the state PERA declared that nothing therein "should diminish the authority and power of the Civil Service Commission,"47 an undivided Supreme Judicial Court told the town that it should grin and bear the dual jurisdiction, just as private-sector employers have been told to accept the control over their operations granted to unions and labor relations boards by private-sector labor relations acts. Writing for the court, Justice Kaplan urged the civil service commission and the labor relations commission to "get together." However, he observed, if the labor relations commission is not satisfied that the question of anti-union bias was sufficiently explored by the civil service commission, there is no constitutional reason for it to shirk jurisdiction or to decline to grant relief denied by the civil service commission. Justice Kaplan and his brethren on the bench apparently saw no great embarrassment to government or to the public interest in efficient municipal operations in the confusion of authority which they endorsed. Their magisterial disinterestedness gives new meaning and vitality to one of John Locke's comments:
[Those who dilute the authority of the established government] are highly guilty of the greatest crime I think a man is capable of-being to answer for all those mischiefs of blood, rapine, and desolation, which the breaking to pieces of governments bring on a country. And he who does it is justly to be esteemed as the common enemy and pest of mankind, and is to be treated accordingly.45
The constitutionality of state PERAs has been upheld in a similarly casual way by the courts of Nebraska,49 New York,50 and Wisconsin.51 And a decision by an Oregon inferior court invalidating the state PERA was reversed by the Oregon Supreme Court on the ground that the court below had decided the issue prematurely.52
B. Arbitration and Representative Government
If authority over wages, hours, and other terms and conditions of employment of public servants is, by reason and tradition, a legislative function participating in the essence of sovereign authority, then, as the Connecticut and Missouri courts held thirty years ago, legislatures may not constitutionally delegate that authority to or share it with anyone. A government betrays its trust a fortiori if it allows any private person or organization to take over or even to share the authority delegated to it by the citizenry.
On this reasoning all public sector collective bargaining as well as grievance and interest arbitration must be regarded as ultra vires and unconstitutional in any society based on the ideas of popular sovereignty and representative government. "[T]he delegation doctrine," Justice Levin has said, "flows from, inter alia, the constitutional sections which vest the legislative power in the Legislature, provide for separation of powers, and state that all political power is inherent in the people."53 Despite the clarity and force of this analysis the courts are far from accepting it universally.
The same kind of split of opinion we have observed among judges on the constitutionality of public sector bargaining exists also with respect to compulsory arbitration of public sector collective bargaining impasses (interest arbitration). No court, however, seems to have passed on the constitutionality of public sector grievance arbitration.
Indeed, while some state courts are limiting the scope of grievance arbitration, usually on sovereignty and delegation grounds, none thus far has viewed grievance arbitration with the kind of caution and even suspicion which some courts exercise with respect to interest arbitration. This seems unfortunate and unperceptive, on the part of litigants, if they have been failing to challenge grievance arbitration in the same way they have challenged interest arbitration; or on the part of the courts, if they have been ignoring such challenges.
A mere glance at the cases will demonstrate that compelling arbitration of a grievance, pursuant to a broad collective agreement, can invade sovereign power, authority, and responsibility in exactly the same way that compelling arbitration of a collective bargaining impasse does.54 If a school board or a police or fire department refuses to make a hiring concession sought by a union, and the refusal creates an impasse subject to compulsory arbitration, the arbitrator's decision clearly involves a governmental decision of the kind traditionally called legislative. The same is true, however, if, under a collective agreement, a teacher, a policeman, or a fireman challenges a departmental decision to fire him, to refuse to reinstate him, or to discipline him in some other way. 55 In brief, the essence of sovereign power lies in the exercise of such managerial decisions. If a collective agreement makes such decisions subject to arbitration, it is no less a forfeiture of sovereignty than yielding to arbitration of a bargaining impasse is.
The problem with this view of grievance arbitration is that it calls into question the whole of public sector bargaining. Perhaps because of this, courts do not wish to be reminded of the dubious constitutional character
of public sector grievance arbitration. The whole rickety house of cards known as public sector collective bargaining might topple.
In contrast to the absence of constitutional assessment of grievance arbitration, there has been a fair number of decisions on the constitutionality of interest arbitration. Such decisions are confined of course to the states which have arbitration statutes, and most have upheld the constitutionality of the statutes. Not very much should be made of this fact, however. There are only 24 states with compulsory interest arbitration statutes; and they, along with compulsory collective bargaining statutes, are mainly in the pro-union states of the Northeast and the Pacific Coast.56 It is not a matter of great surprise that the courts of those states should have upheld compulsory public sector interest arbitration. Indeed, it would be more surprising if they were to go the other way, as the courts in a few states have done.
The stronger opinions against compulsory public sector arbitration were all handed down some years ago by the Missouri court in Clouse,57 the Connecticut court in Norwalk Teachers,58 the Pennsylvania court in Erie Firefighters,59 and the Washington State Supreme Court in Everett Firefighters.60 These opinions were unequivocally against any arbitration that might conflict with the delegation doctrine. As we shall see in a moment, the situation has changed in Connecticut, Pennsylvania, and Washington, so that as of 1982, there are very few unequivocal rejections of compulsory interest arbitration in the law reports of the kind expressed by Justice Crockett, concurring in Salt Lake City v. Firefighters.61He said there that no government may constitutionally "surrender the public interest to?a commission . . . which is impervious to accountability to the public."62 A similar holding by the Colorado Supreme Court is weakened by that court's insistence that its stand against public sector interest arbitration does not extend to public sector collective bargaining.63
Decisions in other states against public sector arbitration are weak, both in their holdings and in their reasoning. Thus, two California decisions are, really not against compulsory interest arbitration as such, but rather against improper local modes of adopting it 64For example, the Bagley case holds only that a city cannot adopt compulsory arbitration of disputes over public employee wages when its authority in such matters was delegated to it by the state legislature. At that, Justice Mosk dissented on the ground that there was no good reason for preventing the city from further delegation of its delegated power. He said that "it is heroic and unprecedented to conclude that grants of power to one body absolutely preclude any appropriate referral of aspects of that power to another entity."65 Apparently Justice Mosk has never heard that there is something questionable whenever anyone delegates a legal duty. What would he think, one wonders, of a public utility's delegating to the Mine Workers Union the duty of supplying electric power to a city?
Similarly weak decisions against public sector interest arbitration have been handed down in Maryland and Texas. As in California, the Maryland court held that a county could not by an ordinance delegate to an arbitrator authority delegated to it by the state legislature.66 The Texas courts have refused to permit the legislature to delegate to them the duty of arbitrating public sector bargaining impasses, but they have seen nothing wrong in the provision for delegating such a function to private persons.67
A strong lower court opinion in Connecticut against arbitration by politically unaccountable private persons has had its authority vitiated by a curious reversal in the Connecticut Supreme Court.68 The latter court held in effect that no one in the world has standing to challenge the Connecticut compulsory arbitration act-not the governmental agency affected and no private party unless he can demonstrate how he, uniquely, was affected by the statute! This method of avoiding direct consideration of the point of view expressed by the Connecticut Supreme Court only thirty years ago in the Norwalk Teachers case69 will not commend itself to persons of intelligence and integrity.
A similarly strong earlier opinion against compulsory public sector arbitration has been overridden in Pennsylvania by a constitutional amendment authorizing such arbitration.70 Naturally, no constitutional objection can be made to the arbitration in such a case; only the good sense and political maturity of the Pennsylvania citizenry can be called into question.
One of the most dubious reversals of opinion has occurred in Washington state. Although endowed with one of the better decisions against compulsory public sector arbitration;71 the Washington Supreme Court of 1976 reversed itself and upheld a compulsory arbitration statute. 72 The best it could do in explaining this reversal was to say, in effect, that "times have changed." This weak rationale may be one of the most discouraging of all the discouraging current features of legal education and legal administration. Times may change, but basic truths about man and government remain the same, notwithstanding the frivolities of many law teachers and, now, many judges. For that is what makes them truths.
By a recent count, compulsory interest arbitration statutes have been held constitutional in fifteen of the 50 states: California, Iowa, Maine, Massachusetts, Michigan, Minnesota, Nebraska, New Jersey, New York, Oregon, Pennsylvania (decision based on constitutional amendment), Rhode Island, Washington, Wisconsin, and Wyoming.73 From first to last,
from a relatively early decision in Wyoming, through intervening ones in Maine, Massachusetts, Oregon, Rhode Island, and Washington-to the latest by the Michigan Supreme Court-all these decisions share one prominent characteristic: they are either not reasoned at all, or they are reasoned so badly and superficially that they raise doubts about the good faith and capacities of the judges who wrote and participated in the opinions. 74 One may at times observe small boys arguing over a basketball rule more vigorously and intelligently than anything in evidence in the opinions upholding compulsory arbitration of public sector bargaining impasses.
Consider the "reasoning" on the basis of which the Wyoming court upheld a local statute providing for compulsory arbitration of firefighter bargaining impasses. The statute did not constitute an invalid delegation of power, the court said, because the legislature did not delegate legislative powers to the arbitrator; it delegated executive power! 75 This implies that in the learned opinion of the Wyoming Supreme Court it would be wrong for the legislature to delegate, say, to the courts, legislative power which the people have delegated to the legislature; but it would be constitutionally valid for the legislature to delegate to private persons executive or judicial power and authority which the people have delegated to the executive or judicial branch of government.
Hard as it may be to take such an opinion seriously, the gravity of the subject compels us to do so. In the first place, by reason and tradition, the establishing of wages, hours, and other terms and conditions of public employment has always been considered a legislative function, basically, and only ministerially an executive function. But even if it should be considered entirely an executive function, on what reason or authority could the court hold the Wyoming legislature constitutionally authorized to delegate it to a private person? In the second place, then, the court was flagrantly wrong in holding that the Wyoming legislature had the authority to repeal the constitutional restrictions of executive power to duly elected or appointed persons. Legislative delegation of legislative power to private persons is bad enough. Legislative delegation of executive power to private persons is even worse. What would the Wyoming court say if the legislature should take into its head the idea of removing from the courts their jurisdiction over the administration of Wyoming's laws, common and statutory, and delegating it to the local branch of the American Arbitration Association-or, still better, to the local AFL-CIO council?
A year after the Wyoming Supreme Court fashioned this travesty of judicial responsibility, the Rhode Island Supreme Court did what it could to produce an even worse one. It held that the Connecticut legislature had
providing for arbitration of labor disputes involving public employment," 68 A.L.R. 3d 885 (1976).
not acted unconstitutionally in providing for arbitration of collective bargaining impasses by private persons because the statutes contained adequate standards and because the persons selected as arbitrators became, ipso facto, politically responsible public officials. According to the Rhode Island court, the mere fact that the legislature had delegated to private persons the authority to perform a public function was sufficient to make those persons public officials.76
Like all truly outrageous abuses of logic, this one is hard to grapple with. It is like trying to prove to a five-year-old that two plus two does not equal five. One has to start with first principles, axioms, and postulates.
The meaning of constitutional government is that only duly constituted persons are authorized to exercise the brute power of the community in what we call the government. They exercise community power because the community has given it to them, and given it to them in a certain way for a certain purpose. The machinery of written constitutions, their elaborate procedures for elections, qualifications of both candidates and voters, oaths of office, detailed statutes passed in due form according to set legislative practices-all these characteristics of orderly representative government are designed to the end that government act for the people and the general interest, not for special interests.
Founders and proponents of representative government are aware that scoundrels are never in short supply and that a fair proportion of the supply finds its way into political office, including legislative office. The expression, "nobody's purse is safe when the legislature is in session," is based on experience which is renewed every year. Constitutions with all their procedures and limitations are the only devices which the founders of civil order have been able to excogitate as means, however ineffective, of attempting to induce governments to serve the people and the general interest rather than to abuse and exploit them in favor of special interests.
Only constitutions and their limitations distinguish government from organized crime, for government is rule by force. When courts play fast with such constitutional limitations as the anti-delegation principle, when they engage in such perversions of reason as we have seen the Wyoming and Rhode Island courts do, they reduce to a considerable degree the distinction between government and the Mafia. Compulsory public sector arbitration statutes give private persons the power to take money from taxpayers and to give it to union leaders and some union members. If the anti-delegation principle were correctly applied to this grant of the power of government to private persons, the delegation would be revealed as distinguishable from what thieves, embezzlers, and confidence men do only in name. A number of years ago, the significant questions were posed by a person who was himself part of a panel arbitrating a public sector bargaining impasse in Marquette, Wisconsin:
These were his queries:
Who elected the arbitration panel of which I am a part? To whom is this panel responsible or responsive? What pressures can the citizens of the City of Marquette bring to bear on the panel? How do they express their satisfaction or dissatisfaction with the panel's decisions?77
Implicit in these questions and their obvious answers are the reasons establishing the incompatibility of public sector bargaining and particularly of public sector interest arbitration with constitutional government. Nothing, in fact, more devastatingly perverts constitutional government than for the governing body, in which the populace has reposed all its most vital interests, to turn those interests over to someone beholden, not to the general public, but to a body of men who wish to mulct the public. As Justice Levin of the Michigan Supreme Court, one of the most valiant opponents of this corrupt process on the bench today, has persistently pointed out, none of the state supreme courts upholding arbitration statutes has been able to show how the grant of legislative power over public employee wages can be squared with the fundamental requirement of representative government and of all state and federal constitutions: political accountability. 78The best that those courts have been able to do is cite alleged authorities to the effect that the anti-delegation principle is no longer entitled to scrupulous respect.79 This is very much like saying that the law of gravity has been around so long that it is becoming tiresome and it is about time that we become "bold" and "inventive" enough to renounce it and to try to ignore it.
In the end, that childish, or sophomoric, point of view is what the similar decisions by the courts of California, Iowa, Maine, Massachusetts, Minnesota, New York, Oregon, Rhode Island, Washington, Wisconsin, and Wyoming amount to. I exclude Pennsylvania because of its constitutional amendment permitting compulsory interest arbitration. As I said earlier, the fault there lies mainly in the people of the state, not so much in the courts or legislature.
To review all the decisions would be tedious, however-especially since their essential features are all present in the recent decision by a majority of the Michigan Supreme Court, upholding that state's compulsory public
sector arbitration statute.80 The majority opinions in that case are in fact museum pieces for all the worst features of contemporary judging.
The City of Detroit, suffering badly from the defects of current private sector labor policy, suffers additionally one of the worst structures of public sector labor policy in the country. All its other troubles were exacerbated by the decision of a private arbitrator, acting under Michigan's "last-offer" arbitration system, to prefer a police union's bargaining demand over the City's offer. Not surprisingly, the union demanded about twice as much as the City offered. To disinterested observers, the arbitrator's decision to force the City to allocate to its police twice as much as its political process had decided to pay will appear to be a shocking frustration of the democratic process and denial of the principle of popular sovereignty.81 A private person, with the consent of the Michigan legislature, decided to force Detroit taxpayers to hand out millions of dollars which their representatives thought they were unwilling or unable or both unwilling and unable to pay. Minds free of prejudice and illusion will see the situation as one of larceny on a scale easily rivaling the activities of organized crime. But of course there is nothing of this in the law reports or, for that matter, in the legal literature.
On the contrary, the tone of the long main opinion of the majority in the Detroit Police case is one of smug righteousness.82 Justice Williams followed the practice of such judges as Justice Brennan of the U.S. Supreme Court.83 He wrote an extensively documented but completely one-sided lawyer's brief, citing only authorities favorable to his opinion.84 He made no reference to a writer who disagreed with him, or to any court which had had a kind word to say for the fundamental political philosophy upon which this country was founded.85
Michigan's last-offer compulsory interest arbitration statute is constitutional, he said, because it contains detailed standards to guide the arbitrator's choice; because the standards are as "reasonably precise" as the subject matter required or permitted; and because it satisfies the "political accountability" requirement so vigorously emphasized by dissenting Justice Levin inasmuch as the arbitrators are chosen from a panel established by the Michigan Employment Relations Commission.
As Justice Levin pointed out in his dissent, each of Justice William's contentions is defective; it is either false, or misleading, or irrelevant.86 In the first place, the so-called "standards" are not standards at all.87 At one point Williams says that the statute "trenchantly circumscribes"88 and at another that it "narrowly channels"89 the [arbitration] panel's scope of decisional authority to eight specific [sic] factors in its review of last-offer economic issues." These are the eight statutory "factors" or "standards" which supposedly control the arbitration panel's choices as between the employer's last offer and the union's last demand:90
Where there is no agreement between the parties, or where there is an agreement but the parties have begun negotiations or discussions looking to a new agreement or amendment of the existing agreement, and wage rates or other conditions of employment under the proposed new or amended agreement are in dispute, the arbitration panel shall base its findings, opinions and order upon the following factors, as applicable:
(a) The lawful authority of the employer.
(b) Stipulations of the parties.
(c) The interests and welfare of the public and the financial ability of the unit of government to meet those costs.
(d) Comparison of the wages, hours and conditions of employment of the employees involved in the arbitration proceeding with the wages, hours and conditions of employment of other employees performing similar services and with other employees generally:
(i) In public employment in comparable communities.
(ii) In private employment in comparable communities.
(e) The average consumer prices for goods and services, commonly known as the cost of living.
(fi The overall compensation presently received by the employees, including direct wage compensation, vacations, holidays and other excused time, insurance and pensions, medical and hospitalization benefits, the continuity and stability of employment, and all other benefits received.
(g) Changes in any of the foregoing circumstances during the pendency of the arbitration proceedings.
(h) Such other factors, not confined to the foregoing, which are normally or traditionally taken into consideration in the determination of wages, hours and conditions of employment through voluntary collective bargaining, mediation, fact-finding, arbitration or otherwise between the parties, in the public service or in private employment. 91
A moment's reflection will convince the disinterested reader that Justice Levin was correct, but overly restrained, in saying of these "standards":
The statutorily prescribed standards are so general that any reasonable decision can be justified. In the ten years that Act 312 has been operative, not one decision of an Act 312 arbitrator has been reversed by the Court of Appeals or this Court on a substantive question.92
What the foregoing "standards" do, in a word, is delegate to the arbitration panel all the authority that the Michigan legislature had in setting the wages, hours, and other terms and conditions of employment of Michigan police and firemen. Even that, however, is not an adequate statement of the effect of Act 312. For it is doubtful that the Michigan legislature has the constitutional authority to say to the Michigan cities that they must pay their police and firemen what their unions demand. But as subdivision (h) of the statute clearly shows, that is what the panel of arbitrators is authorized to do. They may, at their option, take into consideration "such other factors, not confined to the foregoing," as are "normally or traditionally taken into consideration" in either private sector or public sector collective bargaining. This is the same as saying to the arbitrators, "resolve this dispute in any way you think proper."
The mandatory "shall" in the introductory clause of the statute is characteristically disingenuous, for the statute as a whole leaves the arbitrators with full discretion and therefore might more honestly have used "may" instead of "shall" in the introductory clause. If a man says to his son, "You shall do your homework each night-if you think it proper and if nothing else seems more important, in your judgment," the man has not commanded the son to do anything other than what he wishes to do. And that is what the whole of Act 312, as amended, "directs" the arbitrators to do.
Justice Williams was correct in saying that the statute was as "reasonably precise" as the subject matter required or permitted.93 That is to say, the legislature could not have achieved its real objective if it had told the arbitrators, say, that they had to confine their awards within the budgetary constraints established by a city's democratic processes. Such a concrete and definite direction would preserve popular sovereignty. However, it would not serve the political ends of legislators anxious to curry favor with public sector union leaders and members.
Justice Williams' opinion is even more defective in holding that the limitation of arbitrators to persons listed by the Michigan Employment Relations Commission established adequate political accountability.94 Such a listing has nothing to do with political accountability. How does a person become politically accountable merely because he is on a bureaucracy's list? What kind of reprisal is the electorate able to visit upon a person who holds no political office? Who is not even appointed by a political office holder but by persons named partly by union leaders who hold no political office?
Perhaps because Williams' opinion was so manifestly defective on this point, concurring Justice Fitzgerald would hold that political accountability was not required of the arbitrators in view of the legislature's "careful definition" of the factors controlling their awards. It is enough, he said, that the legislature, which created the compulsory arbitration plan, is "politically accountable" and that the municipality engaged in the bargaining is also "politically accountable":
Must the arbitrators themselves also be directly "politically accountable"? I think not. Such a system might make for politically expedient arbitration awards but it would hardly be consonant with the spirit of having an impartial forum for binding arbitration.95
It may be difficult for some to believe that a justice of a state supreme court could so thoroughly misapprehend the nature of American government and the nature of the authority granted him in the functioning of that system. Justice Fitzgerald apparently does not approve or perhaps even understand that the allocation of the resources of the tax-paying community is an essentially political activity in a representative government. He reveals a dismaying lack of comprehension when he says that legislatures do well in insulating wages, hours, and other terms and conditions of public employment from political constraints. Such insulation, in any event impossible in representative government, does not exist under the Michigan Act. That Act insulates arbitration awards from some political constraints but exposes them to others. It insulates them against political restraints imposed by the electorate, but it exposes them to the political power of public sector unions and their members.
As important as it may be, however, the political unaccountability of arbitrators is not the fundamental vice or problem of public sector bargaining laws and arbitration. The real problem was exposed when Justice Fitzgerald said that as long as the legislature is politically accountable a delegation of its authority to private arbitrators creates no constitutional debility.
Contrary to the implication of Justice Fitzgerald's position, American legislatures, though politically accountable, do not-constitutionally-possess unlimited power. Implicit in all American constitutions, and explicit in some, is the Lockian principle that the legislatures to which the people have delegated their sovereign natural rights and powers may not delegate those powers to anyone else. Thus a legislature which passed a statute delegating all its legislative powers, say, to the duly elected governor of the state or to the duly appointed judges of the state, even if it embodied the delegation in an elaborate congeries of self-cancelling provisions like those of Act 312, would be guilty of an unconstitutional act. And this would be true even though the legislature was, as Justice Fitzgerald would have it, "politically accountable."
If it is unconstitutional for a legislature to delegate its powers to the governor or to the courts, it is unconstitutional a fortiori for it to delegate its power, or to share it, with unions or with private arbitrators. Justice Fitzgerald merely begged the real question when he said that the "political accountability" requirement was satisfied by the political accountability of the state legislature and the city authorities. For the real question is not whether the legislature is politically accountable. The question is whether or not the legislature has been faithful to its constitutional duty.
There can be no doubt that it was not in the case of Michigan. Indeed, it is hard to imagine a legislative act more faithless than that of turning over the allocation and administration of public resources to that dubious syndicate of public-exploiting gentry known as union leaders and arbitrators.
The diverse costs of the public sector bargaining legislation endorsed by the courts of Michigan and at least fourteen other states are devastating. The material, economic, costs are bad enough. But these are less significant than the political corruption which public sector bargaining and arbitration create. Representative government is the most complex and most difficult form of government. It is also the only form that provides viably for a peaceful method of changing a country's rulers. Perhaps even more important, it seems the system most compatible with that much more serviceable variety of democracy, the economic democracy which the free enterprise system, alone, provides.
No threat to which representative government has hitherto been exposed in this country comes near to that contained in the corruption of legislative responsibility implicit in public sector bargaining and arbitration. For years academic and other commentators have railed against the allegedly vast political powers which the great entrepreneurs were supposed to swing and lamented the degeneration and corruption of democracy which those powers were supposed to be working in the nineteenth century. It is hard to imagine a more perverse misreading of American history. In fact, the main problem throughout American history has been the electorate's persisting populist hatred of "big business" and the consequent political sterility of the American business community. During all the years in which "big business" was supposed to have been in control of the state governments and the federal government practically all legislation was of an essentially anti-business character. (Actually, it was more anti-consumer, but this was not its aim.)
The anti-business cast of the bulk of American legislation reveals the shortcomings of the belief in the political power of American business in the "bad old days." Dominant opinion in the American academic community has been wrong about that, and it has been asleep to the real threat to democracy in America, the threat posed by public sector bargaining and arbitration.
Never have the anti-democratic impulses found so fecund a method of undermining democracy at all levels of government-state, federal, and local-as the method implicit in public sector bargaining and arbitration. Like Pilate, all duly elected and appointed public officials in public sector bargaining communities can wash their hands of responsibility for the stupendous waste of public resources that the system entails. They can even put on a show of resisting union demands now and then, knowing that private arbitrators, who make their living by pleasing unions, will grant what the politicians have denied.
We saw in the previous article that public sector bargaining occurs mainly in the states and localities which have been doing badly and that its heavy costs have failed to bring "labor peace," despite the frequent legislative declarations that the public sector bargaining laws are aimed at producing orderly, harmonious, efficient government. We could sum up the first article as a demonstration of legislative faithlessness and blundering.96
We have seen in this article an equally sorry picture of judicial inadequacy. From the point of view of the Lockian tradition of constitutional representative government, the courts of the fifteen and more states which have upheld public sector bargaining and arbitration statutes reveal themselves-with honorable exceptions for the dissenting judges-as fit political companions to the legislators who passed the statutes in the first place. There are numerous halls of fame. I propose a hall of legislative and judicial infamy. The first group of candidates might be the legislators who pass public sector bargaining and arbitration laws and the second for the judges who uphold them.
*Director, The Institute for Law and Policy Analysis, Winston-Salem, N. C. Formerly professor of law at various universities. A.B., J.D., University of Chicago; LL.M., University of Michigan. The opinions expressed in this article are personal to Mr. Petro and do not necessarily reflect those of the Institute for Law and Policy Analysis.
**Dr. Petro was mistakenly identified as the director of the Wake Forest Institute for Labor Policy Analysis in the Winter l982 issue of the Government Union Review (Volume 3, Number 1), which featured his article. "Public Sector Bargaining: An Assessment." The Review regrets the error.
1"Public Sector Bargaining: An Assessment," 3 Gov. Union Rev. 1 (Winter 1982).
2For an effort to evaluate public Sector bargaining logically, legally, philosophically, and historically, see Petro, "Sovereignty and Compulsory Public-Sector Bargaining," 10 Wake Forest Law Review 25 (1974).
3For varying assessments, see R. Horton, Municipal Labor Relations in New York City: Lessons of the Lindsay-Wagner Years (N.Y.: Praeger, 1973) (public sector bargaining in New York City held "disastrous"); Arvid Anderson in a 1981 speech in Hawaii reported in 913 G. E. R. R. 33-38 (5/18/81) (public sector bargaining and interest arbitration have eliminated public sector strikes in New York City without turning the public treasury over to unions). Arvid Anderson is a public sector bargaining professional. Mr. Horton is not.
4See generally, D. Feilman, "Constitutional Rights of Association," in Kurland, ed., Free Speech and Association: The Supreme Court and the First Amendment (1975); Dunlop and Chamberlain, edd., Frontiers of Collective Bargaining (N.Y.: Harper & Row, 1967).
5356 Mo. 1239, 206 S.W.2d 539 (1947).
6206 S.W.2d 539 at 545.
7Norwalk Teachers Ass'n v. Board of Education of the City of Norwalk, Conn. 83 A.2d 482, 20 CCH Lab. Gas. ¶66543 (1951).
820 CCH Lab. Cas. ¶66543 at p. 80,164.
9Id. at p. 80,162 n. 1.
10Id. at p.80,166.
11Id. at p.80,164.
12Id. at p.80,164-65.
13Id. at p.80,165.
16Id. at p.80,164. The Court had a number of other interesting things to say about the incompatibility of public sector strikes with popular sovereignty, but too extensive for quotation here. See id. at pp.80,163-64.
17The Second Treatise of Government, Ch. XIXI, §219. Consider public-sector strikes in the light of George Washington's dictum to the effect that "The very idea of the right and power of the people to establish government presupposes the duty of every individual to obey the established government." Farewell Address, Sept.19, 1796. What kind of government is it that cannot count on the undivided loyalty of the persons who man it?
18International Union of Operating Engineers Local 321 v. Water Works Board, 276 Ala. 462, 163 S.2d 619 (1964).
19Cf Smith v. Arkansas Highway Employees Local 1315, 441 U.S. 463 (1979) (upholding right of state agency to refuse to recognize union).
20Fire(ighters Local 2106 v. City of Rock Hill, S.C.,
108 L.R.R.M. 2383 (4th Cir. 1981).
21Commonwealth of Virginia v. Board of Supervisors of Arlington County, Va., 232 S.E.2d 30 (1977) (general authority of school boards to make contracts "does not necessarily include the right to deal with the labor relations of employees in any manner the boards might choose, unfettered by legislative restriction").
22Opinion of Attorney General of West Virginia, June 26, 1974, 571 G.E.R.R. B-9-11 (9/9/74) (for a public employer to abide by a binding third party decision "would constitute an illegal and unlawful delegation of authority and responsibility imposed by law solely upon the public employer").
23Indiana Education Employment Relations Board v. Benton Community School Corp., Ind., 365 N.E.2d 752, 95 L.R.R.M. 3084 (1977).
24City of Midwest City v. Cravens, Okla., 532 P.2d 829, 88 L.R.R.M. 3367, 76 CCH Lab. Gas. ¶53600 (1975).
25L.R.R.M. at 3092.
26Cited supra note 24.
27CCH Lab. Gas. ¶53600 at p. 71,065.
28For a typical avoidance of this fundamental issue, see Haleston Drug Stores, Inc. v. NLRB, 187 F.2d 418 (9th Cir. 1951), cert. denied, 342 U.S. 815 (1951).
29172 Cal. 487, 624 P.2d 1215 (1981), rehearing denied April 22, 1981.
30 103 Cal. App. 3d 80 (1980).
31 624 P.2d at 1217, 1218. 321d.
35Id. at 1235.
36Id. at 1236.
38See Petro, supra note 2 at pp. I25-30.
39Kenai Peninsula Borough School District v. Kenai Peninsula Education Ass'n, Alaska, 97 L.R.R.M. 2153 (1977).
40Fellows v. Latronica, 151 Colo. 300, 377 P.2d 547 (1962).
41City of Aurora v. Fire Fighters, Colo, 96 L.R.R.M. 2252 (1977).
42Id. and see Littleton Education Ass'n v. Arapahoe County School District No.6, Colo. 93 L. R.R.M. 2378 (1976).
43National Education Ass'n v. Board of Education, Kan., 101 L.R.R.M. 2827 (1979); Behrmann v. Public Employees Relations Board, Kan., 101 L.R.R.M. 2822 (1979).
44Camphell v. Town of Freeport, 93 L.R.R.M. 252 (Me. Super. Ct. 1976). Cf Biddeford v. Biddeford Teachers Ass'n, Me., 304 A.2d 387 (Me. Sup. Ct. 1973) (upholding Maine's compulsory interest arbitration statute).
45State, County and Municipal Employees v. Mayor and City Council of Baltimore, 96 L.R.R.M. 2881, 3404 (Md. Ct. of App. 1977); see also 96 L.R.R.M. 2639 (Baltimore City Ct. 1977).
46Mass., 312 N.E.2d 548 (1974).
47Mass. Code c. 149 §178N.
48Second Treatise of Government §227.
49State, County and Municipal Employees v. Dept. of Public Institutions, Neb., 91 L.R.R.M. 2641(1976).
50E.g., Civil Service Employees Ass'n v. Milowe, App. Div., 101 L.R.R.M. 2184 (1979). Cf City of Amsterdam v. Helsby, 37 N.Y.2d 19, 332 N.E.2d 290 (1975) (upholding the constitutionality of compulsory public sector arbitration in summary fashion, much to the dismay of Judge Fuchsherg, who nevertheless concurred in the holding).
51Layton School of Art and Design v. Wisconsin Employment Relations Comm.,Wis. 62 N.W.2d 218, 97 L.R.R.M. 2784 (1977); City of Madison Joint School Dist. # 8 v. W.E.R.B., 37 Wis. 2d 483,155 N.W.2d 78 (1967). Cf Teachers Local 252 (Milwaukee) v. WER.C., 92 L.R.R.M. 2836 (Wis. Cir. Ct. 1976).
52Oregon Employment Relations Board v. City of Hermiston, Ore, 570 P.2d 663 (1977).
53"City of Detroit v. Detroit Police Officers Ass'n, Mich., N.W.2d, 105 L.R.R.M. 3083, 3132 n. 89 (1980).
54The point is perhaps best illustrated by some Illinois decisions on the scope of collective bargaining in that state, in the absence of any statute either compelling, permitting, or prohibiting collective bargaining. See Confederation of Police v. City of Chicago, 382 F. Supp. 624 (N.D. I11. 1974) (city's refusal to bargain at all with police held constitutional despite bargaining with other unions); Illinois Education Ass 'n v. Board of Education of School District 218, 62 I11. 2d 127, 340 N.E.2d 7 (1975) (termination of employment of temporary teachers was within statutorily granted power of school board, hence could not be bargained away); Board of Trustees of Junior College District No.508 v. Cook County College Teachers Union, Local 1600, 62 I11. 2d 470, 343 N.E.2d 473 (1976) (arbitration award reinstating teachers discharged in violation of collective agreement vacated as in conflict with school board's nondelegable authority).
55See the case's cited in the preceding footnote.
56See the article cited supra note 1 at 4-15, especially Tables 2-4.
57Supra note 5 and accompanying text.
58Supranote 7 and accompanying text.
59Erie Firefighters Local 293 v. Gardner, 406 Pa. 395, 178 A.2d 691(1962) (adopting verbatim the decision of the court below to the effect that compulsory arbitration is an unconstitutional delegation of legislative power). This excellent opinion should be compared with the meretricious evasions characteristic of most court decision's on compulsory arbitration in the last twenty years, especially the decision's from Michigan, Rhode Island, and Wyoming noted in the text. But of course the decision was overruled by constitutional amendment in Pennsylvania. Cf Harney v. Russo, Pa., 255 A.2d 560 (1969).
63Greeley Police v. City Council of Greeley, Colo. 93 LR.R.M. 2382 (1976); City of Aurora v. Aurora Firefighters, Colo. 96 L.R.R.M. 2252 (1977). Compare Fellows v. Latronica, 151 Colo. 300, 377 P.2d 547 (1962).
64Barry Bagley v. City of Manhattan Beach, 18 Cal. 3d 22, 553 P.2d 1140 (1976); San Francisco Firefighters Local 798 v. City and County of San Francisco, Cal. App.P.2d, 95 L.R.R.M. 2835 (1977) (though city could have amended it's charter to provide for compulsory arbitration, mayor was without constitutional authority to agree to arbitrate in the absence of such charter amendment).
6593 L.R.R.M. at 2438.
66Maryland Classified Employees Ass'n Inc. v. Anderson, Md., 97 L.R.R.M. 2179 (Md. Ct. App. 1977).
67Firefighters Local 2390 v. City of Kingsville, 568 S.W.2d 391, 98 L.R.R.M. 2512 (Tex. Civ. App. 1978); see also same case at 568 S.W.2d 397, 99 L.R.R.M. 2933 (Tex. Civ. App. 1978) (election repealing PERA held void for untimeliness).
68Town of Berlin v. Santaguida, Conn., 435 A.2d 980 (1980), reversing, 98 L.R.R.M. 3259 (Conn. Super. Ct. 1978). Compare, on the standing of a municipality to sue for declaratory relief in such a case, the South Dakota and Utah cases cited supra note 61.
69See text accompanying note 7 supra.
70Note 59 supra.
71State (Washington) ex rel. Everett Firefighters Local 350 v. Johnson, 46 Wash. 2d 114, 278 P.2d 662 (1955).
72City of Spokane v. Spokane Police Guild, Wash., 533 P.2d 1316 (1976). The court seemed to believe that the Washington legislature had the authority to amend the Washington Constitution. See 93 L.R.R.M. 2373 at 2377.
73The cases upholding compulsory arbitration, in alphabetical order by state: Firefighters Local 1186 v. City of Vallejo, 12 Cal. 3d 608, P.2d, 87 L.R.R.M. 2453 (1974); Maquoketa Valley Community School District v. Maquoketa Valley Education Ass'n, Iowa, 102 L.R.R.M. 2056 (1979); Des Moines v. Public Employment Relations Board, ,Iowa, 101 L.R.R.M. 2026 (1979); see also Op. of Iowa Attorney General, 630 G.E.R.R. B-1(11/3/75); Biddeford v. Biddeford Teachers Ass'n, Me., 304 A.2d 387 (1973); Arlington v. Board of Conciliation and Arbitration, Mass., 352 N.E.2d 914 (1976); Detroit v. Detroit Police Officers Ass'n, Mich., 105 L.R.R.M. 3083 (1980), app. dism. U.S.,106 L.R.R.M. 2512 (1981); Richfield v. Firefighters Local l2l5, Minn. , 105 L.R.R.M. 3076 (1979); School District of Seward Education Ass'n v. School District of Seward, 188 Neb. 772, 199 N.W.2d 752 (1972); Orleans Education Ass 'n v. School District of Orleans, Neb., 609 G.E.R.R. B-I5 (6/9/75); Division 540 Amalgamated Transit Union v. Mercer County Improvement Authority, 76 NJ. 245, 386 A.2d 1290 (1978); City of Amsterdam v. Helshy, 37 N.Y.2d 19, 332 N.E.2d 290 (1975); Firefighters Local 1437 v. City of Medford, 40 Ore. App. 519, 595 P.2d 1268 (1979); Harney v. Russo, 435 Pa. 183, 255 A.2d 560 (1969); City of Warwick v. Firemen's Ass'n, 106 R.l. 109, 256 A.2d 206 (1969); City of Spokane v. Spokane Police Guild, 87 Wash. 2d 457,
553 P.2d 1316 (1976); City of Manitowoc v. Manitowoc Police Dept., Wis., 236 N.W.2d 231(1975); State of Wyoming ex rel. Firefighters v. City of Laramie, Wyo. 443 P.2d 295 (1968). Most of these case's are reviewed and criticized injustice Levin's dissent in the Detroit Police case, supra. See also Annotation, "Validity and Construction of 'statutes or ordinance's."
74Thus in City of Amsterdam v. Helsby, supro note 73, Justice Mo'sk lamented the "summary" character of the New York Court of Appeals' upholding of the compulsory arbitration statute. Nevertheless he joined in the holding.
75Firefighters v. City of Loramie, supra note 73.
76City of Warwick, supra note 73.
77As quoted by McAvoy, "Binding Arbitration of Contract Terms: A New Approach to the Resolution of Disputes in the Public Sector," 72 Colum. L. Rev. 1192, 1208 n. 100 (1972).
78See his massive dissent in the Detroit Police case, supra note 73. Justice Levin's position may be weak in some respects, e.g., his belief that public sector bargaining is constitutionally valid and that the compulsory arbitration statute could pass muster if the arbitrators had a somewhat more formal public status. Nevertheless he at least treats the issues with the gravity and sincerity which they deserve.
79A favorite citation is to Davis on administrative law. See, e.g., the references to Davis by Justice Williams in the Detroit Police case, supra note 73.
80Cited supra note 73. Succeeding references herein to the case will be to the report in 105 L.R.R.M. 3083.
81For an even worse example of judicial callousness in a similar "budget-busting" case, see New Jersey State Policemen's Benevolent Ass'n v. Town of Irvington, 80 NJ. 271 A.2d, 102 L.R.R.M. 2169 (1979) (arbitration award to police union upheld despite its ruinous effect on the city's budgeting).
82The same is true of the opinion in the New Jersey case, supra note 81
83For a typical example of Justice Brennan's meretricious "scholarship," in all its one-sided glory, see his opinion for a bare majority of the U.S. Supreme Court in National Woodwork Mfrs. Ass'n v. NLRB, 386 U.S. 612 (1969). Relevant authorities and legislative history ignored in the Brennan opinion are brought out in S. Petro, How the NLRB Repealed Taft-Hartley (Washington, D.C.: Labor Policy Association, 1958); Petro, "Unions, Housing Costs, and the National Labor Policy," 32 Law and Contemporary Problems 319, 335-48 (1967).
84See, e.g., 105 L.R.R.M. 3083, 3086. Like Justice Brennan's [(and Felix Frankfurter before both, see Frankfurter and Greene, The Labor Injunction (N.Y.: Macmillan, 1930)], Justice Williams' opinion gives a judicious impression by the sheer mass of the footnotes and the ostensible respect paid to "scholarly opinion." Id. On inspection, however, the impression is dissipated by the failure of these people to consider any source which disagrees with the position they are arguing. See the next footnote.
85Many scholars of substance have written against compulsory arbitration of public sector bargaining impasses. See, e.g., the writer's in Dunlop and Chamberlain, cited supra note 4, especially Professor Hildebrand, "The Public Sector," id. at 125. It would be too much toexpect a sophisticated person such as Justice William's to take seriously so minor a historical figure as John Locke, but he (and his law clerk or clerks) might have encountered some of the many recent studies demonstrating the antisocial and antidemocratic results of compulsory public sector arbitration, e.g., Kochan and Baderschneider, "Dependence on Impasse Procedures," 31 I.L.R. Rev. 431 (1978); P.C. Somers, "An Evaluation of Final-Offer Arbitration in Massachusetts," 6 J. Collective Negotiations in the Public Sector 193 (1977); J. Glasser, "Some Suggested Impasse Resolution Procedures," S J. Collective Negotiations 209 (1979); Farber and Katz, "Interest Arbitration, Outcomes, and the Incentive to Bargain," 33 I.L.R. Rev. 55 (1979). But the Williams opinion cites only such "authorities" as Arvid Anderson, who, whatever his merits as a scholar may be, has long been a professional in the public sector bargaining field, meaning that he has a vested interest in the abandonment of sovereignty which has been going on there. See, e.g., notes 2, 4, 29, 31, 56, 57 of the Williams opinion in the Detroit Police case.
86105 L.R.R.M. 3111-3136.
87Id. at 3121 Ct seq.
88Id. at 3092.
89Id. at 3094.
90Utilizing the same duplicitous and misleading euphemism found in the statute and in much of the literature, Williams refers to the union's demands as "offers." Possibly the Michigan legislature, some commentators, and Justice Williams would prefer to call the highwayman's historic ultimatum, "your money or your life," an offer!
91'Policemen's and Firemen's Arbitration Act, P.A. 312, as amended by Act 303, L. 1977 (Michigan).
92105 L.R.R.M. at 3123
93Id. at 3093-96.
94Id. at 3096-3102.
95Id. at 3111.
963 Government Union Rev. 1 (Winter 1982).
Section 13(c) of the Urban Mass Transportation Act (UMTA) is blamed for much of the nation's expensive and hard-to-manage mass transit systems. In 1982, the U.S. Supreme Court ruled in favor of the Jackson (Tennessee) Transit Authority in a case where the transit union claimed that section imposed federal labor laws on local transit systems that had received federal grants. John C. Armor discusses at length the implications of the decision and offers his advice on how local authorities should proceed in taking over failing private transit systems. This is essential reading for city, county, state and regional transportation authorities.
Dr. Myron Lieberman, long-time member of the National Education Association and the American Federation of Teachers and a major critic of collective bargaining in the public sector, in his acerbic style now attacks the leading academic centers on labor relations in the United States. In "Academic Bias in Public Sector Labor Relation," Dr. Lieberman charges the centers with a pronounced bias in favor of public sector bargaining.
By "bias," he means these centers do not raise questions or conduct research which would challenge the major assumptions of, or the rationale for, public sector bargaining. Me says they generally avoid critical issues concerning the implementation of state bargaining laws. Dr. Lieberman says: "In my opinion, the major reason for this situation is the fact that the professors who teach and conduct research on public sector labor relations frequently have strong professional financial incentives for avoiding such issues."