A glimpse of the dispute resolution mechanism of interest arbitration.
Brian R. Johnson is currently an instructor with the School of Criminal Justice at Grand Valley State University, Grand Rapids, MI. Johnson holds an MS in Criminal Justice and an MLIR from Michigan State University. Currently, he is completing his Ph.D. in Criminal Justice at Michigan State University, concentrating in police-labor relations. Johnson is a former police officer who worked for the Combined Locks, Wisconsin Police Department.
Greg L. Warchol is an Assistant Professor in the Department of Criminal Justice at Bemidji State University in Bemidji, Minnesota. Prior to his academic career, he was on the staff of the U.S. Attorney's Office in Chicago, Illinois where he was supervisor of the Asset Forfeiture Support Unit.
During the last twenty-five years, researchers and authors interested in police labor relations have provided policy makers and administrators a greater understanding of police compulsory arbitration. Although this research provided a sound foundation for police compulsory arbitration, much of it is now dated; it has not kept pace with methodological developments in labor relations.
This creates a disturbing situation for the labor relations professional. How effective are contemporary police compulsion arbitration policies if they are based on dated, limited and statistically questionable research methods?
In an attempt to correct this deficiency in labor arbitration research, we will review and classify the methods used in police compulsory arbitration research. Through this review of the strengths and weaknesses of each method, the authors hope to expand and enhance the existing theoretical foundation for police compulsory arbitration, and thus assist the labor relations professional in developing sound policies.
To gain a complete understanding of the different methods and classifications, we performed content analyses on all documents related to police compulsory arbitration (including published articles, research notes and texts). Content analysis, according to Hagan (1982),* is the systematic analysis and classification that is used for comparative and historical studies. Likewise, Fitzgerald and Cox (1987) indicate that it is a research method that "systematizes the use of documents by providing a predetermined coding scheme and categories for tabulating the contents of the documents" (p. 110).
In the context of this research, we selected three primary categories and their subgroups as the classification schema. They are as follows:
- descriptive, and
* The Bibliography at the end of this article contains the full citation for each study referred to in the text.
Although these classifications are not mutually exclusive and exhaustive (many researchers combined classifications), we classified the data according to the most powerful or advanced method used.
Introduction to Exploratory/Descriptive Research
One of the most basic methods used by researchers is to explore and describe an existing condition, phenomenon or event. Much of the compulsory arbitration literature contains both exploratory and descriptive research techniques or methodologies. There are, however, differences between these research methodologies. Babbie and Maxfield (1994) write that "descriptive studies are often concerned with counting or documenting observations while exploratory studies focus more on developing a preliminary understanding about a new or unusual problem" (p.71). Although these categories or approaches are not mutually exclusive and exhaustive, it is possible to differentiate between them in the existing literature.
Exploratory research explores the nature or frequency of a problem; it is used when a practitioner knows little about a subject or policy, or when there is a policy change (Babbie and Maxfield, 1994). In the context of this article, exploratory research is best illustrated by the research that explored the underlying influences and dynamics that led to the passage of compulsory arbitration statutes. As exploratory research is the beginning of social inquiry, it may also be conducted to develop robust research methods for future research and statistical analysis (Babbie and Maxfield, 1994). Most of the existing exploratory research explains the arbitration processes in various states in the United States, and will be classified as Site-Specific Exploratory research.
DiTolla (1993) provided a historical analysis of compulsory interest arbitration in the state of New Jersey by examining the hearings, commission reports, judicial reviews and public hearings that led to the eventual passage of the state's compulsory arbitration law. Similar to DiTolla, Gilbert (1987) examined factors that influenced mediation, fact-finding and interest arbitration in Ohio. Also, Chvala and Fox (1979) investigated the use of mediation-arbitration in Wisconsin by providing a historical review of the legislation, negotiation and mediation procedures used, and the scope of bargaining under final offer arbitration. Other authors, such as Kochan (1978), examined the history of New York's Taylor Law in the context of political influences that led to the passage of compulsory arbitration; and Anderson and Krause (1987) discussed New York's system as an alternative to the strike. Howlett (1984) examined the processes and procedures, standards and history of interest arbitration in Michigan. Other research examined specific municipalities, as illustrated by Fyfe's (1985) analysis of six municipalities in California that had compulsory arbitration clauses in their city charters.
As compulsory arbitration became a more common phenomena, researchers developed new Multi-State Exploratory classifications. One of the earliest multi-state studies was conducted by Wortman and Overton (1973), who explored and compared all state arbitration statutes that existed in 1970. Bent and Reeves (1978) also researched which states had arbitration, what their statutes covered, and the type and scope of arbitration. Then in 1981, Kruger and Jones reviewed all existing arbitration legislation in the United States, as well as constitutional issues, and provided recommendations for improving the existing dispute resolution techniques.
Other research can be classified as Historical-Exploratory, which emphasizes the social, political and legislative processes that lead to the creation of compulsory arbitration statutes. Nolan and Abrams (1983a, 1983b) conducted one of the most comprehensive reviews of the evolution of arbitration. They provided an extensive historical analysis of the development States by examining the factors that eventually led to both private and public sector arbitration. Similarly, LaRue provided an historical review of interest as it pertained to legislation, Governmental intervention in the private and public sectors, and controversies in public sector labor arbitration.
Other authors examined and classified Legal/Constitutional issues pertaining to police labor arbitration. The William and Mary Law Review (1977) provided an extensive multi-state review of constitutional issues. Hyman (1983) and Staudohar (1976) provided a review of compulsory arbitration legislation and court decisions in various states. Kanowitz (1987) also provided a legal/constitutional analysis of interest arbitration; he examined the implementation of arbitration legislation to see if it served the public interest. Other research (see Craver 1980) was more specific, concentrating on post-arbitration judicial enforcement and review of awards by courts within various states that have arbitration statutes.
Process classifications pertain to various arbitration mechanisms and operations. Some early examples include Olmos (1974), Feuille (1979) and Murray (1982), who discussed general issues involving the benefits and controversies in arbitration. More recently, McGinnis (1989) discussed types of arbitration, and Samavati, Haber and Dilts, (1991) studied the uses and limitations of comparing economic issues. Also, DiLauro (1991) provided an overview of types of arbitration, arguments related to its chilling effect, and constitutional issues; while LaVan (1990) examined arbitration in the context of police and teachers, including a description of the effects of various state statutes on the arbitration process. Years before LaVan's study, Grodin (1976), citing case law related to arbitration, provided an analysis of the political aspects of interest arbitration as they relate to salary and non-salary issues, and of the use of tribunal panels in arbitration hearings. Gallagher (1982) also presented the strengths and weaknesses of compulsory arbitration, including its effectiveness and alternatives to it.
Some organizations have researched and written about the strengths and weaknesses of compulsory arbitration. The Police Officers Association of Michigan (POAM, 1980) wrote an evaluation of, and made recommendations regarding, arbitration in Michigan. The Public Service Research Council (1978) analyzed the impact of different types of impasse procedures, strikes, and attitudes toward compulsory arbitration (1980). In addition, the Contract Research Corporation (1975) evaluated the existing literature and the effectiveness of different arbitration methods on police labor relations.
Accompanying and closely related to exploratory analyses are other research efforts that have quantified and investigated police compulsory arbitration through a variety of basic statistical analysis techniques. This approach, and its subsequent methodologies, can best be generalized as Descriptiveclassifications. As Simon (1969) said, "in the beginning, there is description" (p.52). Like exploratory research, when someone does not know anything about a problem or variable, it must be understood in a general context. But unlike exploratory research, when researchers attempt to gain an understanding through descriptive analyses they begin by "standardizing the data and separating it into convenient or interesting categories" (Simon, 1969, p.52).
According to Tabachnick (1989), descriptive research "describes samples of subjects in terms of variables or combinations of variables" (p.9). Kachigan (1986) stated that descriptive analysis is concerned with exhaustively measuring the characteristics of a population or collection of objects. Simon (1969) indicated that descriptive research is often in the form of case studies, and is the starting point for research in new areas. Research of this nature generally applies fundamental descriptive or summary statistics that include frequency analyses and measures of central tendency. This type of research usually does not create laws or draw conclusions; instead, it provides suggestions for subsequent research.
Regardless of the variables under analysis, much of the existing descriptive research is inferential in nature. Inferential statistical analysis "is concerned with measuring the characteristics of only a sample from the population; and then making inferences, or estimates, about the corresponding value of the characteristics in the population" (Tabachnick, 1989, p.9). Rowntree (1981) stated that inferential statistics are used to generalize from a sample or to make inferences about a wider population. Thus, inferential analysis requires the sampling of subsets of populations. This sample is then used to draw conclusions about the population.
Much of the descriptive research has analyzed arbitration in specific locations over a fixed period of time. These research efforts may be classified as Longitudinal. Examples include the following research done in New Jersey:
- Tener (1982) analyzed the first four years of New Jersey's Police and Fire Arbitration Act, and reported the number of petitions filed, arbitrators assigned, and number of awards issued per year;
- Weitzman and Stochaj' (1982) reviewed the impact of arbitration in New Jersey from 1977 to 1979; and
- Liebeskind (1987) examined the use of compulsory arbitration in New Jersey by examining the economic and non-economic factors of bargaining outcomes.
In the State of Michigan, Stem researched arbitration from 1970-1974 to develop summary statistics on the parties involved with Act 312 arbitration. Also, in Florida, Magnusen and Renovitch (1992) examined public sector impasse procedures from 1980 to 1987.
A large number of descriptive research efforts were conducted in Ohio. Graham (1988) analyzed the following factors pertaining to the frequency of arbitration from 1986 to 1988:
- region of state,
- public safety organizations,
- unions involved,
- issues involved, and
- results of interest arbitration
- (e.g., win/loss; wage increases).
In a 1987 Ohio study conducted by Graham (1987), he examined 60 agencies in Cuyohoga County to measure how often the following matters were raised:
- fact finding,
- arbitration, and
- particular contract issues.
Then in a 1993 study, Graham used a frequency analysis to examine the narcotic effect in Ohio.
Other states that have been examined include Iowa, where Gallagher and Pegnetter (1979) studied the arbitration process to discover the frequency that procedural steps were used in the public sector, for the periods from 1975-1976 and from 1976-1977. In Massachusetts, Somers (1977) examined final-offer arbitration where information on the petitioning parties included the following:
- an analysis of median percentage increases from 1973-1976
- petitions for mediation and rates of change from 1970-1976, and
- the rate of police and fire fighter negotiations from 1970-1976.
Greer and Sink (1982) provided a review of Oklahoma's interest arbitration legislation from 1972 to 1981 by examining the stages in the process that settlements occur. They also conducted interviews with union and city officials in seven cities, asking them to assess their attitudes toward the existing procedures. In Michigan, Austermiller and Fremont (1985) studied factors related to arbitration from 1971 to 1984; Berrodin and Kurbal (1979) analyzed them from 1973 to 1979; and Kruger (1985) analyzed them from 1976 to 1983, and did a case analysis and history of arbitration in Detroit.
Longitudinal classifications also took on a national perspective. Petro (1992) researched the extent and distribution of public sector unionization and collective bargaining legislation throughout the United States, from its origins to 1982. Hirlinger and Sylvia (1988) investigated the frequency of work stoppages and the effectiveness of impasse procedures in all 50 states, from 1979 to 1980, to determine which procedures were most effective in avoiding work stoppages. Delaney and Feuille (1984), in their study of over 300 municipalities, reported on issues, changes in salary, and numbers of awards per state.
Other researchers investigated specific municipalities. Pursell and Torrence (1983) examined the impact of arbitration in Omaha, Nebraska, to measure increases or decreases in municipal expenditures within various departments of the City, including public safety, from 1968 to 1979. Anderson (1982), to measure the success of the New York City Bargaining Law, conducted a 10-year review of the use, history, and procedures of the law and of interest arbitration in the City.
Attitudinal-Descriptive studies and classifications that rely upon descriptive statistics have also been conducted. Portaro (1986), who provided a review of compulsory arbitration statutes in the United States, conducted a survey of respondents in Ohio to find out how they would modify that state's compulsory arbitration law. Also, Herrick (1983) conducted an attitudinal survey involving arbitrators registered with the FMCS to measure their attitudes on 24 lickert-scaled questions related to the arbitration process. In addition, Helbsy et al. (1988) conducted 28 case interviews to provide an analysis of the attitudes of union and management representatives in Florida toward fact-finding. Prior to these studies, Kressel (1972) researched labor mediation by interviewing 13 labor mediators on processes, strategies, and whether mediation should be considered a profession.
Comparative classifications were used by other researchers to explore differences in compulsory arbitration between two or more groups. Comparative classifications are developed using statistical methods and procedures such as t-tests, analysis of variance, and other probability-based measures.
The t-test is one of the best known and widely used methods to determine differences between two population samples. Levin and Rubin (1991) write that the student "t" distribution is a family of probability distributions, used to measure the differences between two independent sample means to determine if there are statistically significant differences between the two groups. To determine differences between groups, researchers construct an interval of values (which may be estimates) that can state with a certain degree of confidence that the characteristics of the population fall (or are likely to fall) within that interval (Levin & Rubin, 1991; Kachigan, 1988).
Although the t-test is an effective measurement device for small samples (of less than 30), and its accuracy can be maintained even if (within limits) some of the assumptions of the t-statistic are violated (see Kolstoe, 1969; and Cohen, 1977 for other conditions), it has not been widely used in compulsory arbitration research.
There are, however, some examples of its use. Rueschoff (1988) tested public workers, public managers, the general public and legislators to discover their most frequent responses to statements about the following:
- participation in decision-making;
- bargaining for wages, hours and conditions of employment;
- whether public work was perceived to be essential; and
- whether employees should be allowed to strike.
Wheeler (1978) also performed t-tests to determine if there were differences between the management and union officials. He examined their positions before they reached an impasse and at the point of impasse. (In compulsory arbitration, the point of impasse is the gap between the union demand and the management offer.) In addition, Chelius and Extejt (1983) used t-tests to discover if attitudes could be generalized between groups of subjects in various studies.
Making generalizations from the existing research on arbitration may be limited because the structure and methods of arbitration vary from state to statewhich raises further issues related to the external validity of the research findings. Anderson (1981) addressed this problem when he found it was difficult to generalize because jurisdictions didn't have identical arbitration schemes.
Another possible drawback to the existing research is the difficulty in making valid inferences from the various data because the analysis procedures are "far too simplistic ... If we are to... develop adequate tests of our theories, we shall need to improve the quality of our data analyses" (Namboodiri, 1975, p.2).
Most of the authors used only categorical variables, whereas contingency tables or cross tabulations were the most powerful research methods used. Although they reported degrees of association between variables, the frequency, magnitude or strength of the relationship could not be measured. Hence, certain aspects of the data are summarized at the expense of others, and some data may mistakenly be misrepresented.
There is another drawback to this type of research: it uses methodologies and statistical techniques that examine only one variable at a timecalled a "univariate" method. But variables are often interrelated in complex ways. Thus, if a researcher simply examines one variable at a time, his research method may not be sensitive or robust enough to detect and measure the complex relationship or inter-relationships that exist between the variables (Tabachnick, 1989). As a result, these limited statistical techniques only report the following information on the variables examined:
- frequency distributions,
- measures of central tendency,
- measures of dispersion, and
- range and standard deviations.
Another problem with the use of descriptive research is that no conclusions about causality can be safely made (Kachigan, 1986). Researchers using descriptive research techniques and statistics generally cannot manipulate the levels of a variable to obtain changes in the other variables (or variables of analysis) because the arbitration process lacks the interaction of multiple variables.
As a result of such limitations, and to find explanations for various dynamics in the compulsory arbitration process, other research efforts have used multivariate statistical techniques. Unlike univariate analyses (explained above), multivariate analyses are used to investigate the relationships and interactions of two or more variables over a set of objects (Kachigan, 1988). In measuring these objects, researchers construct theoretical models, and then test the strength of these models (and the variables) through advanced statistical techniques. Two techniques used in police compulsory arbitration research are regression analysis and logistic regression.
Regression analysis, or Ordinary Least Squares (OLS), is the investigation or analysis of relationships among variables. Although it is related to correlational analysis because it tests the strength of association between variables, it also reports the nature of the relationship if there is a decrease or increase in the relationship between the variables (Levin & Fox, 1988). In doing so, the relationship is expressed as an equation between a dependent variable and one or more independent variables. Hanushek and Jackson (1977) defined regression as a model that simplifies reality because it identifies key variables while making a specific prediction about the interaction of those variables.
A simple regression equation has one dependent variable and one independent variable. A multiple regression equation has a dependent variable and multiple independent variables (Chattejee, 1991).
Like those who have done descriptive and exploratory research, researchers using multiple regression have also conducted multi-state studies. The largest research effort employing multiple regression was conducted by Feuille, Hendricks and Delaney (1983). They studied collective bargaining and interest arbitration in approximately 1,015 cities and 16 states, for the years 1971 to 1981. This study, which contains a large amount of exploratory and descriptive research, is one of the most comprehensive studies to date of the impact that interest arbitration statutes have on police collective bargaining. Using the same data set, these authors subsequently published research findings that examined the following:
- the salary leveling effect of arbitration (Delaney, Feuille & Hendricks, 1984);
- the association between interest arbitration and labor
- contracts that are more favorable for unions (Feuille, Delaney & Hendricks, 1985); and the impact of arbitration on police salaries (Feuille & Delaney, 1986).
Other researchers using smaller samples have also used OLS to examine compulsory arbitration. Connolly (1986) did a multi-state study of the impact of arbitration on wages in the states of lllinois and Michigan. Bloom (1981) measured the effect of final offer arbitration on the salaries of police officers in the State of New Jerseyin the fiscal year 1978 to 1979. Benjamin (1978) conducted similar research into Michigan's Act 312 arbitration law. Schwochau and Feuille (1988) used regression analysis to investigate interest arbitrators and their decision-making behavior. Olson, Dell'Omo and Jarley (1992) sought to discover any differences in the decision-making abilities of arbitrators by comparing their decisions in laboratory or hypothetical settings with actual decisions they made in field settings.
Strengths and Weaknesses of Multiple Regression
One of the primary benefits of regression analysis is that it enables the effects of various factors to be evaluated from the experimental dataeven when the experiment does not follow a simple pattern, or the variables affecting the results cannot be controlled (Williams, 1959). Another strength of multiple regression is that the interaction of multiple variables can be observed at one time. Unlike univariate techniques that measure one variable at a time, multivariate techniques (e.g., multiple regression) allow the researcher to measure correlations and pooled standard errors between the variables in the model (see Kennedy, 1992). In doing so, the interactions of all of the variables can be analyzed.
There are, however, some drawbacks. One drawback to regression analysis is that the variables that comprise a model may not have consistent or accurate specifications. For example, to compare variables, the variables in the models must be linear. Unfortunately, many regression models under analysis are not linear, and may have a curvilinear relationship (defined below under Logistic Regression) or some other non-linear form. Likewise, the reliability of a regression line (or the overall strength of the model) is determined by the coefficient of multiple determination (i.e., the R2). This coefficient, however, can be quite misleading, as a high R2 does not necessarily mean a strong model. The R2 is influenced by the number of independent variables in the model, and more variables always create a higher R2 value (see Lewis-Beck, 1980).
Other drawbacks related to the accuracy or usefulness of model specifications include multi-colinearity, which occurs when the researcher uses two independent variables that are highly correlated with each other. This situation subsequently results in high correlations among variables which in turn affect the R2. As indicated by Hanushek and Jackson (1977), these problems in multiple regression cause the model to not be BLUEthe Best Linear Unbiased Estimate. Such problems can be corrected through proper model specification and a comprehensive understanding of the principles of multiple regression; or by the application of other types of multiple regression techniques, including hierarchical and stepwise multiple regression (Tabachnick & Fidell, 1989).
One statistical tool used very little in compulsory arbitration research is the logistic regression model. Like multiple regression, the logistic regression equation relies upon theoretical models constructed by the researcher. There are, however, some fundamental differences between the two procedures.
One of the basic differences between linear and logistic regression is the parameter estimate. In linear regression, OLS is used to select the parameter estimates that minimize the errors (i.e., the sum of squared errors) to create the most suitable fit (the regression line) between the data and the model (Aldrich & Nelson, 1984). With an OLS model, it is assumed that the dependent and independent variables are linear-related, but the OLS estimates will only be accurate within the range of the data in the sample. The curvilinear (i.e., bound by curved lines, not straight lines; includes more because of broader parameters) model is not subject to the same limitations because it uses the Maximum Likelihood Estimation (MLE). The MLE determines values for unknown parameters; it provides those parameters that would most likely have created the observed data, but which cannot be found in the actual data (Hanushek & Jackson, 1977). This, according to Kennedy (1992), is "based on the idea that the sample of data at hand is more likely to have come from a 'real world' characterized by any other set of parameter values" (pp.20-21).
For the formulation of an analysis, unlike the multiple regression model that assumes a continuous scaled dependent variable, the logistic regression model uses a nominal level dependent variable that is dichotomousit has two opposing parts (Morgan & Teachman, 1988). In traditional linear regression, the dependent variable is assumed to be continuous and linear in nature. The logistic model, however, assumes that the dependent variable is not continuous but is dichotomous, or bound between the values of 0 and 1 (Aldrich & Nelson, 1984). Thus, linearity cannot be assumed. Further, Aldrich and Nelson (1984) indicated that if linearity is violated, none of the distribution properties associated with OLS hold. Because the values of the dependent variable are bound between the values of 0 and 1, a curvilinear relationship now exists between the explanatory variables and the dependent variable (Osgood & Rowe, 1994). Also, if OLS was applied in this situation, meaningless and unreliable values could result, for OLS does not constrain observed values to remain between 0 and 1. Thus, there is no guarantee that the expected values from the fitted least squares equation will always get numbers between 0 and 1 (Namboodiri et al., 1975).
Logistic regression is also necessary because of error term
the deviation from the conditional mean. In OLS or linear regression, the most common assumption is that the error term follows a normal distribution with a constant variance (Hosmer & Lemeshow, 1989). Other assumptions also include:
- that the model has been properly specified,
- there is no measurement error, and
- the error terms have an expected value of zeros, and are not correlated, constant or normally distributed (Lewis-Beck, 1980).
In logistic regression, however, the error term can only take one of two values. As a result, the expected value of the error term is not independent of the values of the explanatory or independent variable, which causes the variance estimates to be biased (Hanushek and Jackson, 1977). Thus, linear regression techniques are inappropriate where there is a dichotomous dependent variable, since the model will no longer generate the best linear unbiased estimate.
There is some research in police compulsory arbitration that has used the logistic regression model. Ichniowski (1982) studied 600 municipalities, from the years 1972 to 1978, using logistic regression to determine if arbitration statutes reduced the propensity of strikes. Later, Ichniowski (1988) researched police strike activities and unionization rates for municipalities in states with and without unionization rights, to investigate which municipalities experienced recognition strikes more often. Kochan and Baderschneider (1978) also used logistic regression in their analysis of police and firefighter negotiations, from 1974 to 1976, to determine if arbitration increased the probability of impasse or affected the settlement.
Strengths and Weaknesses of Logistic Regression
As previously indicated, logistic regression is a preferred method of statistical research when the research question involves a dichotomous dependent variable. In addition, logistic regression is extremely flexible and can use simpler mathematical functions; other methods, such as Probit models, require more sophisticated mathematical equations (see Kennedy, 1992). It is also considered a more general procedure because it allows for both categorical and continuous independent variables (Tabachnick & Fidell, 1989). In addition, it is easier to interpret than other models which use dichotomous or polytomous dependent variables (Cox, 1970; SPSS, 1994).
There are some drawbacks to logistic regression. Logistic regression measures the probability of an event occurring or not occurring; or it analyzes how the dichotomous dependent variable influences the underlying probabilities (Hanushek Jackson, 1977). The probability of a dichotomous event is calculated using the odds-ratio, which determines the relationship between the dependent and independent variables, and defines the unit of change for the independent variable. This process, at times, may be difficult to calculate, especially when the researcher is using categorical data (Hosmer & Lemeshow, 1989).
Other Multivariate Methods
Although the field of police labor relations has not used them, there are other multivariate statistical procedures. For example, researchers could use factor analysis. Unlike multiple and logistic regression, factor analysis is used to develop and test theories where the researcher is interested in finding variables; that is, variables that form subsets of variables and that are independent of one another (Tabachnick & Fidell, 1989). To illustrate this concept in police compulsory arbitration, one could take a large sample of police and municipality representatives with the following information:
- personality characteristics,
- education history,
- experience in collective bargaining, and other variables.
Each of the areas would be assessed by other variables, and then be entered into the factor analysis one at a time to study correlations among them. This analysis could reveal patterns of correlation and underlying factors that affect the collective bargaining and compulsory arbitration processes. This multivariate technique could be used to generate additional hypotheses and subsequent theories about the underlying process of compulsory arbitration.
Other multivariate methods that arbitration researchers may consider are Cononical Correlations, which analyze relationships between two sets of variables to determine the highest correlation between them. The sets of variables are combined on one side of the equation to produce a predicted value that has the highest correlation with the predicted value on the other side of the equation (see Tabachnick & Fidell, 1989). Other suitable multivariate techniques may include a time series analysis that looks for trends and fluctuations over a designated period of time (see Kennedy, 1992). These and other techniques may prove to be suitable for determining relationships among variables, thus enabling researchers to construct more effective compulsory arbitration models.
This classification review of police labor arbitration reveals that a great deal of research has been conducted in police compulsory arbitration, providing the labor researcher a firm foundation on which to use advanced methods in police-compulsory arbitration research. The vast majority of the existing research, however, has been exploratory and descriptive in nature. Compounded by the fact that arbitration legislation, processes and procedures vary among states, these research classifications have done very little to explain why arbitration occurs or what specific factors contribute to (or impede) the arbitration process.
Consequently, without the application of sound statistical methods, the compulsory arbitration process may not be clearly understood, and there may be risks in relying upon these research findings to develop social policy. Because of the societal implications, it is vital to fully understand the police labor compulsory arbitration process. By examining the classifications already applied, labor practitioners can gain understanding and develop their own research agendas, basing such agendas on sound theoretical models and advanced statistical applications.
It is imperative that labor arbitration research takes on a new paradigm and develops better constructed theoretical modelsmodels that can be used to investigate factors involved in police labor arbitration. One alternative is for researchers to use multivariate research techniques. As illustrated earlier, there are a large number of multivariate research techniques that can be applied to compulsory arbitration research. Depending upon the research agenda, available data, and theoretical model constructs, there are a host of powerful multivariate research methods for the labor relations researcher.
Addresses the ethical, as well as pragmatic, question concerning the degree to which government employers can regulate their workers' off-duty behavior.
Examines Michigan's Act 312, the procedure used to resolve collective bargaining impasses between the state's local governments and their police and fire fighter unions. Using probability concepts to analyze its efficacy, the author concludes that the act shows signs of having failed to achieve the intent of state lawmakers. Indeed, Detroit Mayor Coleman Young (D), who as a legislator had advocated passage of the act, has lately called for its revision or outright repeal.
The abundance of literature on fact-finding has only served to create a troublesome source of error for practitioners in the field who require precise definitions of concepts. The authors of Fact-finding in Perspectiveattempt to clarify this arbitration device's many definitions, while surveying past research on its related effectiveness measures.
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).