by Robert S. Summers
The conflict between political democracy and public sector collective bargaining manifests itself in a variety of important dimensions. First, laws providing for such bargaining divide governmental authority to make and administer law and budgets, and redistribute a share of this authority to private entities--mainly unions--who are not elected by or accountable to the public. This diminishes democracy, for it curtails the extent to which the public, through its elective and appointive representatives, determines the nature and manner of conferral of such government benefits as public school education, police and fire protection, and the like. Second, bargaining statutes restructure processes for the exercise of public authority. They substitute collective bargaining for democratic procedures securing the public an opportunity to participate in ongoing public law making and budget constructing processes. This, too diminishes democracy, for it eliminates or reduces opportunities for public participation in government activity, and denies those members of the public who turn out to be on the losing side a fair chance to be heard on matters of vital importance to them. Third, bargaining laws (with and without the right to strike) alter the outcomes of public processes for making and administering laws and budgets. This, too, curtails democratic self determination insofar as these outcomes vary from what the public otherwise would have chosen through its elective and appointive representatives. Fourth, public sector bargaining eliminates or reduces public accountability of participants for their share in the foregoing processes and outcomes. Unions cannot be voted out of office. Nor can collective bargaining agreements be "repealed" under these laws (without union concurrence). Further, bargaining blurs the lines of accountability of public officials who share the exercise of public authority with unions. All this decreases democracy, too, for public accountability of officials is one of the primary features of a democratic order.
The essentially non democratic and anti democratic character of public sector bargaining is, in substantial measure, inherent. It can be seen merely by reflecting on the various conflicts between the requirements of political democracy and the intrinsic demands of public sector collective bargaining. Yet bargaining is objectionable on still other grounds, too. In sum, public sector bargaining laws are not good for society.
My thesis is that public sector collective bargaining (even without the right of union members to strike) substantially diminishes democracy. My aim is to demonstrate the validity of this thesis. I will also show that empirical studies of the actual social effects of public sector bargaining are not required to establish the validity of my thesis.
The conflict between political democracy and public sector collective bargaining manifests itself in a variety of important dimensions. Thus, public sector bargaining divides public authority and redistributes a share of it to private entities--mainly unions--who are not elected by or accountable to the public; restructures processes for the exercise of that authority to enable these unions to participate in its exercise according to the traditional mode of union functioning, namely collective bargaining--itself an adversarial process; alters in varying degrees the outcomes of these processes for the exercise of governmental authority and thereby modifies the benefits conferred (and their costs) and brings some discontinuation of benefits (strikes); eliminates or reduces public accountability of participants for their share in these processes and outcomes; and undermines the general conditions for healthy democratic governance within society at large.
Democracy is a high priority value in our society primarily because it secures the realization of important "process values."2 Such values are realized in the course of the workings of democracy, and are prizeable even where the outcomes of democratic processes are bad. These values include (1) determination by the public through elected representatives and their appointees of the nature and manner of conferral of public benefits, (2) direct public participation in ongoing governmental processes of lawmaking and law administration, (3) fairness of those processes, especially to the losing side, and (4) accountability to the public of participants in those processes. The various conflicts between political democracy and public sector collective bargaining entail significant sacrifices of all the foregoing process values. To develop my thesis in concrete and meaningful terms, it will be necessary to focus on a specific context. Thus, my illustrations will be drawn from the conflict between democracy and collective bargaining at the local level in the field of public school education. My thesis, however, also applies (mutatis mutandis) to public benefit conferral at the state and federal levels as well, and to benefits other than education.
II. Authority To Make Public Law (and Policy), to Create Public Budgets, and to Interpret and Administer Law and Budgets
Statutes establishing public sector collective bargaining redistribute governmental authority from elected officials and their appointees to private, non-elected and non-accountable entities called unions (and to various arbitrators and other third parties). This redistribution of political authority inherently diminishes democracy. Of course, such statutes do not in so many words recite that they are redistributing formal governmental authority. If a "truth in legislating" law had required such candor, the public sector bargaining statutes would probably never have been enacted. These statutes disguise the redistribution of public authority in the language of collective bargaining.3
Few would deny that the authority to make public law and policy, to create public budgets, and to interpret and administer the resultant law and budgets is governmental authority. Moreover, few would deny that in a political democracy this kind of authority is characteristically conferred upon publicly elected officials and their appointees, not upon private parties or entities who are neither representatives of nor accountable to the public. Yet public sector collective bargaining statutes carve out a vast portion of this authority and require that elected officials and their appointees share its exercise with private, non-elected entities--unions (and various third parties).
In the absence of bargaining statutes, public officials and their appointees are not required to share governmental authority with private entities in order to make and administer public laws and budgets. Rather, their authority is sole and exclusive. Under bargaining laws, however, elected officials and their appointees are required to share governmental authority with unions and other private entities who do not in any way represent the will of the public. This, in itself, substantially diminishes democracy. The basic democratic process value that is thereby sacrificed is simply that of public self determination of the nature and costs of governmental goods and services. It will be recalled that a "process value" is prizeable regardless of the nature of the outcomes of governmental processes for the exercise of authority. Even when these outcomes are not good, it remains a virtue of these processes that their outcomes are arrived at by the public rather than by a dictator or private syndicates.
Public sector bargaining statutes sacrifice the democratic process value of self determination with respect to the making of public law and policy, the creation of public budgets, and the interpretation and administration of these laws and budgets. The budgetary facet of the sacrifice is especially noteworthy. Would our founding fathers, who vigorously opposed "taxation without representation," today endorse the creation of public budgets partly by parties not themselves elected by the people (or appointed by elected personnel)? It is most unlikely. And would unions themselves be quick to oppose the conferral of public law making authority on private interest groups such as agricultural organizations in matters of agricultural policy or, at the local level, churches in matters touching the church-state relation, or textbook companies in regard to facets of the public school curriculum? It is almost certain that unions themselves would oppose such actions, and precisely on the ground that they would dramatically diminish democracy.
The redistribution of governmental authority pursuant to statutes establishing collective bargaining inherently diminishes democracy. That is, empirical studies are not required to confirm this. Of course, the diminution is not something that occurs merely upon formal enactment of such statutes. It occurs only when unions are formed and they step into the role of joint makers and administrators of public laws and budgets. But no one denies either that the relevant unions have been formed or that they have occupied the role spelled out for them in the statutes.
Observe also that the validity of this conclusion that public sector bargaining diminishes democracy does not depend on any showing that after the introduction of bargaining, public participation fell off from some previously high level.4
It is now important to anticipate and respond to several objections. To lend concreteness to the objections it will be well to illustrate them with examples from the public school context.
First, proponents of public sector bargaining may respond that when, for example, a school board engages in collective bargaining with a teachers' union the two are not making public law or creating public budgets. Nor are they interpreting and administering public law and budgets when negotiating with respect to the application of school policy to an individual teacher or when engaged in "grievance" arbitration. Rather, so the argument goes, they are merely bargaining over "terms and conditions of employment" to be embodied in a "collective bargaining agreement," or merely interpreting and applying the existing agreement, just as do employees in the private sector. Hence, the authority being exercised is not, on this view, essentially governmental authority anyway, and thus poses no threat of any kind to democracy.
The foregoing argument trades in labels and ignores reality. A public employee collective bargaining statute typically carves out a large portion of formerly exclusive legislative and budgetary jurisdiction and requires that the agency share that jurisdiction with unions in the guise of "bargaining over terms and conditions of employment." In the educational field, such matters as the length of the school day, class size, teacher recruitment and retention policies, wages and fringe benefits, and much else is taken to fall within the phrase "bargaining over terms and conditions of employment." Yet decisions on such matters are decisions of public law and policy. Indeed, collectively they go far to determine the very nature and quality of the benefit the government unit exists to provide. The fact they are not embodied in school board bylaws or regulations but in a stack of stapled paper called a collective bargaining agreement does not alter this fundamental fact. In public employment it simply is not possible to divide authority up in the way pro bargainists advocate without substantially diminishing democracy. What are, to bargainists, merely "terms and conditions of employment" to be bargained over in truth comprise the very subject matter of public law and policy. Public employment is fundamentally different from private sector employment. The "employer" is a public democratic agency representing the will of the public. The job of that agency is to confer a public benefit. It cannot do this without employees. Yet that agency cannot be required to forfeit to employees acting through their union basic authority over the nature and quality of the benefit to be conferred without substantially diminishing democracy.
The foregoing analysis is equally applicable to the budgetary side of democratic public benefit conferral. No teachers' union would be happy to learn that a process akin to collective bargaining had been instituted to determine the price of books supplied to the district with the district obligated to bargain in good faith and engage in impasse resolution with a previously screened panel of, say, three book companies. At this point, those teachers who are taxpayer citizens living in the district would be almost certain to rise up and say: "The book companies have no right to co-determine in this way how public money is to be spent. There can be no taxation without representation, and the book companies do not represent the public."
By the same token, teachers' unions do not represent and are not accountable to the public, yet when they bargain over wages or other economic items pursuant to a public employee collective bargaining statute they co-determine important items in the school district budget. This is not to say that what they thus co-determine will always be final. Some school districts put the entire budget up to a vote for approval or rejection. When this occurs, the public may have the last word (and even then it cannot discriminate within that last word between particular aspects of the budget). But in many districts, public votes on the budget are not taken, or when they are, salaries and other like items in any collective bargaining agreement are not reviewed because they are not yet agreed upon via collective bargaining at voting time.
Similarly, the interpretation and administration of public law and public budgets is characteristically a governmental function in a democracy. Yet union negotiation and outside arbitration have usurped this function to a considerable degree, not only in the public school field but in other fields of local governmental activity, too. Many interpretational and administrative issues of significance are now resolved not by public school administrators or school boards but through negotiation or arbitration pursuant to collective bargaining agreements calling for maintenance of standards and for "grievance" arbitration. Note that when an outside arbitrator decides school policy in the course of arbitrating a dispute, the relevant public officials--the school board and its appointees--do not even exercise authority to co-determine the outcome (except insofar as they present their case).
Second, proponents of bargaining may also claim that the public employee union--a teachers' association, for example--merely shares public authority under a bargaining statute and that the public officials involved--school board members, for example--are not forced by a collective bargaining statute to agree to any particular "term or condition of employment," or to any particular public law or policy. Hence, on this view, the essentials of democratic functioning are preserved.
In truth, the essentials are not preserved. It is little consolation to a school board that it need not agree to a proposal when failure to do so leaves it with no significant freedom of action anyway. Yet commonly a board will not be entitled to alter the status quo at all without securing union concurrence, for the existing contract will bind the board to the status quo. To move away from that position, bargaining norms require that the board give up something in return; hence the board may be induced to do something that it would not otherwise do. The board thus has to "buy" freedom of action. The democratic voice must pay a price to hold sway.
Furthermore, that the union merely shares authority must not be allowed to obscure the fact that the union nonetheless remains a private entity not elected by the public or appointed by public officials and not accountable to the public. The union, even when public spirited, sees its primary role to be that of an arms length negotiator on behalf of its own employee-members' interests. And on many issues--especially economic ones--there will be a genuine conflict of interest between the employees and the government unit. Indeed, the concept of "sharing" authority obscures the highly adversarial nature of much public sector bargaining. It is not too much to say that bargaining statutes set up countervailing power in the form of unions with various legal rights. But unlike in the private sector where this power exists to countervail private corporations seeking profit, public sector bargaining laws set up private power centers to countervail public democratic functionaries such as school boards and city councils.
Third, it may be said that the union is not really a private non-elective and non-appointive body. Rather, the individuals who make up a teacher's union, for example, are all public employees appointed by the board. On this view, when teachers engage in bargaining one public arm merely deals with another public arm. But this analysis is faulty. The individual teacher is not appointed as a prospective co-determiner of school policy and budgets who is accountable to the public. The individual teacher is appointed as a teacher. As such, the teacher cannot be viewed as even indirectly representing the public when exercising through bargaining various legislative, budgetary, and administrative jurisdiction. Moreover, it is not the individual teacher who engages in bargaining. Under the statutes, the employee bargaining representatives are union designates, and may even include persons who are not teachers employed by the district. Further, it is the task of union officials to represent the teachers in a genuine adversarial fashion under public sector bargaining statutes. Union officials are not elected, even indirectly, by the public, yet under such statutes they have joint authority to co-determine the law and the budget in relevant respects.
Fourth, it may be contended that unions in public employment should be viewed merely as pressure groups of the kind that traditionally figure in the American political process. Collective bargaining statutes merely recognize and regularize the pressure group status of unions. Democracy is thus facilitated, not frustrated. This line of argument also ignores the truth that a collective bargaining statute catapults the union into a unique position within the political process. In the educational field, the union ends up well ahead of the P.T.A., taxpayer groups, textbook companies, and all other "pressure groups" vying for influence upon educational decision making. Unlike these other groups, the union is by law entitled to have the governmental agency--the board--negotiate in good faith solely with the union on all issues falling within the scope of bargaining. Moreover, the union has close proximity to the board and thus is strategically situated to exploit the special advantage it has under the statute. Further, the union has a unique cluster of sanctions, including the threat (or actuality) of a strike. To a school board, a "strike" by a nonteacher organization is likely to cause little alarm. But a strike by the teachers is altogether different. The same is true of teacher "slow downs" or even teacher picketing. The union may also come to have significant local political power, too, and this may be brought into play.
III. Processes for Exercise of Governmental Authority
It is one thing to distribute political authority within a system of government and another to specify how--by what processes--it is to be exercised. The processes for exercise of authority, like the distribution of that authority, may be more, or less, democratic in character.
Statutes providing for public sector collective bargaining do not merely diminish democracy by redistributing political authority--the public's right of representational self-determination--to private, non-elected entities called unions (and to arbitrators). These statutes additionally diminish democracy by instituting nondemocratic processes for the exercise of governmental authority. The statutes generally modify preexisting democratic processes (1) to enable private, non-elected entities--unions--to participate in the exercise of governmental authority in accordance with the traditional mode of union functioning, namely, collective bargaining and its corollaries, and (2) to require elected public officials and their appointees to exercise much of their governmental authority only via these modes of union functioning. Again, virtually all would agree that the making and administering of public law (and policy) and public budgets constitutes the exercise of governmental authority. It follows that the processes for the exercise of such authority are essentially governmental, too. Furthermore, in the absence of collective bargaining statutes, these processes would themselves be (and by law) democratic in character.
Thus, in the absence of collective bargaining, governmental units such as school boards would usually be required by law to exercise their public authority to make laws, policy, and budgets in accord with procedures (often legally prescribed) generally having the following features:
- only duly elected officials could vote
- issues to be voted on would be defined (with or without discussion) by administrators, board members, or some member of the public
- the public would often (though not always) have advance notice of at least important issues to be voted on
- there would usually be considerable opportunity for interested members of the public and for board members to gather information and hear opinions prior to voting
- as to important matters, some form of parliamentary procedure would be followed with its provisions for amendment of and deliberation on proposals
- at least on important issues, there would usually be opportunity for opponents and proponents to use publicity, media, and other means to rally public support
- final votes by board members would be taken, with the principle of majority rule controlling
- resulting rules and policy would be embodied in minutes, board rules and regulations, policy statements, or the like
With respect to budgetary matters, important issues would also at least be subject to procedures of the foregoing kind, and in many places the law would provide as well for a public vote on the budget. With respect to the interpretation and administration of law and budgets thus made, the story is somewhat different. Generally, interpretation and administration would be left entirely in the hands of administrators appointed by the board, subject to some review by the full board in "policy" related matters. Of course, administrators might consult in advance with board members and with informal teacher groups. But there is scope for great variety here, and most generalizations are hazardous.
We may justly focus on procedures of the foregoing kinds for creating public law and policy (including budgets, to some extent). The values such procedures are designed to protect are important democratic values--"process" values. One of these values has already been introduced: self determination of the public through its elected representatives (rather than autocratic determination by a dictator or a private syndicate). Note that the democratic law making procedures outlined above provide for voting only by those who are elected by the public. Thus, any departure from this norm puts the process value of public self determination in jeopardy.
But the departures from the foregoing democratic law and policy making procedures (including budgetary ones) wrought by bargaining statutes put other vital democratic process values at risk, too. The two most important of these are public participation and fairness to those who lose on an issue of importance to them. The various procedures outlined earlier generally afford the public notice and an opportunity to be heard. This opportunity and its actual exercise are prizeable regardless of outcome. The potential and actual involvement of the public in this way in the functioning of its governmental processes is one of the hallmarks of a healthy democracy. Beyond the process value of participation there is also the process value of fairness to the losing side. This value, too, is independent of outcome. If a bad outcome is reached by a process in which the losers are not accorded a fair opportunity to be heard on a matter of genuine significance, then we have a double, not a single, vice: a bad outcome and a process that is, in democratic terms, unfair.
To be sure, when legislators passed public sector bargaining statutes they were not asked also to abolish democratic procedures applicable to the functioning of governmental units such as school boards. Such procedures (insofar as they were themselves embodied in statutory or local law) were not explicitly modified. Indeed, if advocates of public sector bargaining had openly asked legislators explicitly to modify these procedures in all the ways required fully to accommodate the intrinsic demands of collective bargaining, it is almost certain that far fewer public sector bargaining statutes would have been adopted.
It will be recalled that public sector bargaining statutes merely state that with respect to "terms and conditions of employment" of public employees, the order of the day would now be collective bargaining and its corollaries. Proponents of bargaining thus claimed that unions would not be engaged in making or administering public laws and budgets. They would only be engaging in collective bargaining over terms and conditions of employment, just as do employees in the private sector. Again, this "argument" trades in labels and ignores reality.
We have already seen that the bargaining statutes carve out vast segments of the legislative, budgetary, and administrative jurisdiction of democratic governmental units and subject the issues thus carved out to a process of co-determination through bargaining with private unions. We may now look more closely at the process of collective bargaining itself and consider how it and its intrinsic demands inherently conflict with the process values of public participation and fairness, and thus further diminish democracy.
The public sector bargaining statutes require that the relevant governmental units bargain with the union involved. Thus, for example, in the school setting, the statutes require that such vital matters as length of school year, length of school day, class size, teacher recruitment policies, and salaries be decided upon through negotiations with private unions. This requirement implicitly excludes third parties, including the general public, yet the democratic process values relevant here--participation and fairness--are ones to be realized by the public. Of course, it might seem possible to have "multilateral" (school board--union--public) rather than merely "bilateral" (school board--union) collective bargaining. This, however, would be inconsistent with the inner logic of union negotiations in which two-sided trading with respect to proposals is called for and would very likely be unworkable.
Although relatively few statutes (or court decisions so far) state that collective bargaining must take place in secret behind closed doors, this is in fact the usual practice. Moreover, leading labor experts insist that this is the only way the process can really work effectively, given its nature.5 (It remains to be seen how the process will work in the tiny handful of states that have recently required public sector negotiations to take place in public.) The secret making of public laws, policies, and budgets, ipso factothwarts the public, and thus drastically delimits the opportunity for members of the public to realize such process values as participation and fairness. It is no answer to say that board members are kept informed of the course of negotiations between the board's chief negotiator and union leaders. The relevant process values are those of the general public, not the board. Without notice and an opportunity to be heard, the public cannot realize these values.
Also, collective bargaining is often prolonged. Whether this is to some extent intrinsic to the process is not wholly clear. Certainly there are numerous features of the process that tend to prolong it, not least of which are (1) the tendency for the negotiators to "test" and "retest" each other, (2) the tendency of participants to review and reconsider various aspects of what is, of course, an inter-related agreement during each negotiating session, and (3) the common tactic of one side trying to wear the other down. Whatever the degree to which delay is intrinsic, the fact is the process is ordinarily drawn out and this wears down those members of the public who try to "follow it." Changes of mind on the part of the negotiators may also cause these members of the public to lose heart. There simply are limits on the extent to which members of the public can be expected to give of their time and attention even when significant process values are at stake. It is hardly an answer to say that the public is without right to complain when members of the public choose not to persevere. Alternative modes of making public law and budgets in the absence of bargaining do not similarly wear the public down.
For an opportunity to appear and be heard to be meaningful, the public participants must feel, too, that what they say will be seriously considered by those before whom they appear. Yet, if what they are saying to a board or at an open bargaining session conflicts with union interests or proposals, it is not likely to be taken seriously at the bargaining table unless there is a showing of support for what the public participants are saying. Although the school board may take what public members say seriously, the board also knows that the union has special legal status in the negotiations and, that even without the right to strike, the union ultimately has and may resort to that weapon on an issue of sufficient importance. (Many labor experts also claim that genuine collective bargaining cannot work without the right to strike.) A realization that unions have such leverage is almost certain to leave some members of the public with a diminished sense of the value of an opportunity to participate in a public meeting devoted to negotiations.
Impasse resolution procedures provided in bargaining statutes also reveal deep tension between collective bargaining and the realization of democratic process values. These procedures are designed to come into play when negotiations falter and call for mediators, fact finders, and even arbitrators to come into action. Some such procedures are intrinsic to collective bargaining, at least if it be assumed that bilateral negotiations alone will not always produce agreements. Yet, not only are these procedures normally conducted behind closed doors and without publicity; the governmental unit is not entitled to act on its own until these procedures have run their course. That the necessity (under the statutes) of following these procedures can seriously interfere with all relevant democratic values may be seen from the following simple illustration. Assume that all voting members of a small school district gather in the gymnasium during a fuel crisis and vote to instruct the school board (which also unanimously concurs) to change the hours of the school day to conserve fuel. If the teachers, union insists on its rights under the usual impasse resolution statutes, the union would be entitled to delay and thus frustrate this public decision, at least until the impasse resolution procedures have run their course.
In some states, impasse resolution procedures call, with respect to certain groups, for compulsory arbitration.6 This is the very antithesis of democratic self determination. Issues formerly resolved entirely by publicly elected bodies or their appointees are resolved instead by functionaries who are neither elected by nor in any way accountable to the public.
Observe that the conflict between the processes of collective bargaining and the realization of democratic process values of community self determination, public participation, and fairness to the losing side, is, in substantial measure, an inherent conflict. No empirical studies are required to confirm this conflict. It can be seen merely by comparing the nature of the procedures required for the realization of these values with the more or less intrinsic demands of collective bargaining as a process. As we have seen, these demands impinge, at a variety of points and in varying degrees, on the procedures required to secure the realization of democratic process values. Further, the conflict is demonstrable without comparing levels of public participation prior to the advent of collective bargaining with levels thereafter.
Again, it is important to anticipate and respond to several likely counter arguments. First, proponents of collective bargaining may reply that the general public will always get an adequate opportunity to be heard at the very end of the process when the school board is called upon to review and vote on the entire proposed collective bargaining agreement that the board's chief negotiator has negotiated over the preceding months. In truth, however, if the chief negotiator has been doing his job as he should, he will have secured board approval of significant concessions piecemeal over the course of the negotiations, and the entire agreement will, at this final meeting, be in no sense "up for grabs." Thus, the final meeting will usually not be one in which a majority of the board will be in a posture of open-minded willingness to hear argument directed for or against just any part of the package. Indeed, often the board chairman will be highly concerned that no one from the public say or do anything that will upset the "long fought out package deal." Of course, there are and will be exceptional cases.
Second, bargainists may argue that since the public's position on a major issue sometimes prevails (with the result that even a strike may be "broken") it follows that democracy remains sufficiently healthy.7Admittedly, when such an event occurs, this does, in the circumstances involved, demonstrate that, as to the issue (or issues) involved, the democratic process value of representational self determination is not only to some extent realized but also vindicated. Yet it does not follow from this that the other basic democratic process values of public participation and fairness have been similarly realized and vindicated, even as to the issues involved. The public may have all along been effectively excluded from the decision making pursuant to collective bargaining norms and corollary impasse resolution norms. Moreover, we should not make too much of the partial realization and vindication of the public's democratic right of representational self determination in such cases. For every such case, there are numerous others in which this right of the public is greatly watered down by virtue of the necessity of negotiated co-determination of issues, or sometimes even superseded by union predominance in the bargaining process.
It is sometimes said that public sector collective bargaining does not and has not significantly altered outcomes compared to what they otherwise would have been or are. Those who take this view may hold that democracy has therefore not been significantly curtailed. We now turn to this topic.
IV. Outcomes of Processes for The Exercise of Governmental Authority
Does public sector collective bargaining alter the outcomes of exercises of government authority? And what, if any, bearing does the answer to this question have on whether public sector bargaining substantially diminishes democracy?
There is now considerable evidence (some of it necessarily inconclusive) that bargaining changes outcomes from what they would have been in the absence of bargaining.8 In the school setting, for example, there is evidence of substantial impact on the content of relevant public law and policy. There is evidence of budgetary impact, too. The influence of bargaining on the interpretation and administration of relevant law and budgets is undeniable. Maintenance of standards provisions, and grievance procedures provided in collective bargaining agreements have become vehicles for substituting collective negotiations and arbitration for much of what was formerly administrative interpretation and application of relevant law and budgets.
That collective bargaining generally alters outcomes, often significantly, should surprise no one. This was the primary objective of its proponents. The introduction of public sector bargaining was designed and intended "to make a difference." Under the statutes, the governmental unit is obligated to bargain in good faith. To do this, the unit must be ready to make some trades. To make trades, the unit must move away from the status quo in some respect. Furthermore, if the governmental unit refuses to agree to union proposals within the scope of bargaining, the statutes provide, as we have seen, for "impasse resolution" procedures in which third party neutrals intervene. For this intervention to be effective--that is, for it to lead to "settlements," these third parties must work out accommodations that inevitably effectuate some union proposals. Legal or not, the threat or actuality of a strike may influence outcomes, too. When statutes mandate compulsory arbitration of unresolved issues (as they increasingly do in some areas), the outcomes commonly differ from what they otherwise would have been.
To the extent that public sector collective bargaining does alter outcomes of processes for the exercise of governmental authority, this alteration may be attributed mainly to (1) the influence of the non-democratic redistribution of authority that bargaining entails, and (2) the influence of non-democratic processes for the exercise of the authority that bargaining entails. It follows that the public, with respect to the altered outcomes, does not enjoy a full democratic right of self determination through its elected representatives and their appointees.
But, as we have seen, even if outcomes are not altered at all, public sector bargaining substantially diminishes democracy, inherently so. Bargaining requires the sharing of governmental authority with private entities. Bargaining--its intrinsic demands--excludes or restricts public access to law and budgetary processes and reduces opportunities for public influence on those processes. As a result, bargaining sacrifices vital democratic process values: public self determination through elected representatives, public participation in the exercise of governmental authority, and fairness to those members of the public who turn out to be in a minority. Recall that process values are prizeable regardless of outcomes. Even if outcomes remain as they would have been in the absence of bargaining, these process values are sacrificed under a bargaining statute.
V. Accountability for Outcomes and for The Functioning of Process
Public sector collective bargaining eliminates or diminishes the accountability of participants in governmental processes for their share of the responsibility for outcomes and for the way the processes function. Bargaining, therefore, diminishes democracy in a further fundamental way. Accountability is a vital democratic process value.9 It helps secure and is a corollary of the process value of public self determination through elected representatives.
How does public sector collective bargaining eliminate or diminish accountability? First, it redistributes governmental authority to one major participant--the union--who is not publicly accountable at all for its actions. Under a bargaining statute, the voters of a school district, for example, do not elect a union, nor can they vote a union "out of office" after it has successfully negotiated a collective bargaining agreement objectionable to the voters. This particular law making and budget creating entity is neither elected by nor accountable to the public. And even if the voters do vote out the school board or part of it, the union remains in place, and so, too, the objectionable collective agreement. Indeed, even if the voters vote in an entirely new board, the board will not have authority under the usual bargaining statute to repeal the objectionable agreement. That can only be done, term by term, via future collective negotiations with the union. This is not true, however, in the absence of collective bargaining. Where the governmental agency is not thus hamstrung, the public voice can be heard and translated into action. Existing law, policy, and budgetary matters can be amended, altered, even repealed, more or less freely, in accord with democratic will (to the extent feasible).
It may be argued that at least the publicly elected officials can be voted out and that this is sufficient. But, as already indicated, this is not sufficient to afford the public full accountability for past actions of the bargainers where "accountability" does not include relief from those actions. Furthermore, a bargaining set up significantly diminishes the extent to which the public can effectively vote out and thus hold to account even those participants in the process who are elected officials. For the bargaining process itself affords such an official a whole range of excuses for voting as he or she did--excuses which may distinctively blunt or deflect public criticism--and thus influence voting. These excuses include the following: "But if I had voted the other way, there would have been a strike or serious disruption--our alternatives were limited;" "A deal with the union had to be negotiated as a package--there were some things I liked and some I didn't, but I didn't have the choice to vote for these one at a time--I had only the choice of voting on them in the context of the parts of the package then being negotiated."
Beyond potentially credible excuses of the foregoing nature that are peculiarly attributable to the bargaining process and which may blur the lines of accountability and thus "save" an official from recall at the polls, the bargaining process undermines other conditions required for ready accountability at the polls. The public may find it difficult, given the extended and non public nature of the process, to accumulate reliable evidence of the piece-meal votes of officials over the course of the bargaining process. The public may be left only with the final general votes of approval or disapproval of the entire package embodied in the proposed collective bargaining agreement. Yet, at this stage, the demands of the bargaining process require that the entire package not be up for grabs. At least a majority of board members will at this point be more or less "committed." Although it may still be possible and justified to vote them out for having come to this position, the process itself could not work efficiently if such a state of affairs (majority board support on at least a number of matters prior to final vote) could not be achieved. It is possible that some voters perceive this predicament of the majority and decline later to vote them out partly because of it.
Lack of information, lack of clear cut issues, and the availability to officials of bargaining-generated excuses, then, all combine to diminish the accountability of public officials who are forced by statute to make and administer public law and budgets through collective bargaining (and its corollaries). Moreover, the other major partner to the process--the union itself--is not publicly accountable at all.
It may be argued, however, that as to monetary issues, the public can always hold the governmental unit accountable through public votes on the budget. This, however, is not the safeguard it is often assumed to be. First, it is a safeguard only when provided by law, and it is not generally provided for except in the field of public school education. Second, even within education, not all districts vote on the annual budget. Third, of those that do, often important monetary issues (including the salary feature) are still subject to negotiations at the time of voting. Fourth, a great deal of organized effort may be required to vote down a budget and it is at best a "blunderbuss tool."
In all the foregoing ways, then, public employee collective bargaining diminishes democracy. It is not good for society in still other respects, too.10 And we have not yet told the whole story, even with respect to democracy. The most objectionable counter-democratic feature of bargaining may be that it undermines the conditions required for healthy democratic governance throughout the society. Democracy depends on such "citizen" virtues as public spiritedness and willingness to participate in community affairs. Yet, public sector bargaining does not lead to the nurture and cultivation of these virtues. On the contrary, it stifles them, and at the grass roots. Indeed, bargaining, especially when itself solemnly enshrined in public statutes, authenticates and positively symbolizes a fundamentally nondemocratic mode of decision-making--a form of interest group syndicalism (however peaceful).
In this essay, little has been said about the strike, and it is true that most states do not legally permit public employees strikes. Before noting the bearing of strikes and strike threats on democracy; it is important to stress that in the public sector there is a more apt name for this kind of occurrence, namely public benefit discontinuation (or some form thereof). When strikes do occur (and bargaining laws have made them far more frequent) the very functions of government are terminated (or put at risk). The public is often denied governmental goods and services. This is the very antithesis of democratic self determination of peoples. The discontinuation of public benefits, whether the union ultimately achieves its ends or not, diminishes social morale and leaves citizens with a sense of powerlessness that can only erode public spirit. The strike--especially the successful one contrary to law--may also teach social lessons, especially for the young. Indeed, it may even teach that democracy is a low-priority value.
The undemocratic character of public sector collective bargaining (as well as other objectionable features) is only now being clearly perceived. Many factors account for the delay: a false analogy to private sector labor relations, an egalitarian preoccupation with according equal rights (an power of control) to all types of employees--public as well as private, a belief that just any social process can be engrafted upon almost any other social process without significant sacrifice (or structural change), and perhaps above all else, the blinding and self deluding influence of labelistic thinking.11
Whether the future holds the immediate prospect of widespread repeal of bargaining statutes is difficult to say. The very institutionalization of such a process imports its own self-sustaining norms and entrenches supporting interests--interests that include not merely union members but state wide uion lobbies and state public employment relations boards.12 Nonetheless, we may hope that the recent and continuing efforts to restore democratic authority and procedures in a few states signify the beginning of a promising trend.
Robert S. Summers has been professor of law at Cornell University School of Law for ten years and McRoberts Professor of Research in the Administration of the Law since 1976. He is the author of numerous books and articles in a variety of fields. He took his undergraduate degree in 1955 at the University of Oregon, his law degree in 1959 from Harvard University, and has done two years of advanced work at Oxford University.
Professor Summers wishes to record his indebtedness to Mr. Stephen L. Goodman, Class of 1980 at Cornell Law School, for valuable assistance in the preparation of this article.
20n the nature of process values, see generally, R. Summers. Evaluating and Improving Legal Processes--A Plea for Process Values, Cornell Law Review, 60(1974): 1.
3See, for example, the following general state public sector bargaining statutes: Cal. Gov't Code §§ 3500 et seq. (West); Mich. Comp. Laws Ann. §§ 423.201 et seq.; N.Y. Civ. Serv. Law (McKinney) §§ 200 et seq. See also note 11, infra.
40thers appear to have failed to see how this is so. See, for example, S. Cohen, Does Public Employee Unionism Diminish Democracy? Industrial and Labor Relations Review, 32 (1979): 189.
5For further discussion of the intrinsic demands of bargaining, see, in particular, the remarks of Mr. Harold R. Newman, Chairman of the New York State Public Employment Relations Board, in R. Doherty, Public Access: Citizens and Collective Bargaining in the Public Schools, Ithaca, N.Y., New York State School of Industrial & Labor Relations, Cornell University (1979): 8-10, 26-7, 52-3.
6This is true, for example, in New York. See N.Y. Civ. Serv. Law (McKinney) § 209(4).
7For this viewpoint, see, for example, S. Cohen, Does Public Employee Unionism Diminish Democracy? Industrial and Labor Relations Review, 32 (1979): 189, 192-195.
8One of the most recent studies is Charles R. Perry, Teacher Bargaining: The Experience in Nine Systems, Industrial and Labor Relatjons Review,33 (1979): 3.
9A1most all students of democracy agree on this. See, e.g., J. Lucas, Democracy, London, Penguin Books (1976); C. Cohen, Democracy, New York, Free Press (1971); R. Dahl, A Preface to Democratic Theory, Chicago, U. of Chicago Press (1956).
10For discussion of some of the other respects in which public sector unionism is not good for society, see R. Summers, Collective Bargaining and Public Benefit Conferral: A Jurisprudential Critique, Ithaca, N.Y., New York State School of Industrial and Labor Relations, Cornell University (1976): chs. 2, 3, 5.
11The illegitimate tyranny of labels is so powerful in political life that it may be instructive to set forth by means of contrasting columns the comprehensive set of labels drawn from the world of unionism and collective bargaining that cloaked and, for many, still cloak the substitution of public employee unionism for democratic governance:
Democratic GovernancePublic Employee Unionism
|Democratic Governance||Public Employee Unionism|
|legislative and budgetary jurisdiction||"terms and conditions of employment"|
|public law and policy||"the collective bargaining agreement"|
|public administration||"grievance arbitration and maintenance|
|of existing employment standards"|
|public debate and public deliberation||"collective bargaining with respect to|
|on public issues||terms and conditions of employment"|
|political decision making and public||"impasse resolution"|
12Indeed, arguments are now sometimes even made against democracy on the ground that it interferes with collective bargaining! See, for example, R. Doherty ed., Public Access: Citizens and Collective Bargaining in the Public Schools, Ithaca, N.Y., New York State School of Industrial and Labor Relations, Cornell University (1979): 8-10, 25-7, 52-3.