July 2011 issue of HR News magazine - IPMA

■ l a b o r - m a n a g e m e n t c o o p e r a t i o n & n e g o t i a t i n g w i t h u n i o n s ■
Unions: Why are they Formed?
Unions are groupings of workers formed to seek employment that is
steady and that provides continuing improvement in working and
hiring conditions. However, unions are not unique.
History of Public Sector Unionism
Although there were stirrings of public sector labor activity in the
1880s and 1890s among the fraternal benefit and craft organizations,
the unsuccessful Boston Police Strike of 1919 reversed government
labor movement momentum. Furthermore, the common law idea of
conspiracy existed for those daring enough to organize and conspire
against a public employer. Moreover, the legal concepts of sovereignty
and its delegation also impeded the labor movement. Thus,
the sovereign in a democracy are the people who cannot cede such
power unless they freely and openly participate in the process.
However, by contracting out services and purchasing consultants’
services, the idea of sovereignty lost its pristine values.
Umar and Kirk, writing in the Journal of Labor Research in 1984,
wrote that up to the Great Depression, the legal environment,
reflecting political realities, was generally hostile. In some cases, the
combination of workers to negotiate with an owner was considered
restraint of trade. The workers saw that the police did not protect
them when they struck. Indeed, they often were hurt or killed. In
some of the larger companies, the companies hired their own private
forces (goons) who fought battles with the workers without interference
from the local constabulary. However, the New Deal (a new
social and political coalition) heralding the Wagner Act (National
Labor Relations Act) creating the labor unions’ Magna Charta
happened throughout American history.
The 1960s takeoff period for state and local government unionism
was attributable to several factors. The Great Society’s programs
bespoke the new prominence of health care, recreation and housing.
Similar programs in the 1970s necessitated more governmental
employees. Second, new private sector unions lost members Accordingly,
union staff sought other increasing sectors: government
employees.
The Supreme Court ordered Congress and the 50 states to reapportion
legislative districts (Reynolds v. Sims; Baker v. Carr, 1962 and
1964). The effect of such reapportionment shifted representation
from predominantly rural to urban representation, enabling legitimization
of the public union movement.
New Jersey as an Example
Most of the unionized states are in the Rust Belt—the former industrial
states. I will follow New Jersey as a typical example, although all
agencies are unique.
The New Jersey Employer Relations Act of 1968 allowed for public
unionization in New Jersey. Except for teachers’ unions, during the
next 10 years the courts were figuring our whether unions could
represent government.
New Jersey subsequently established the Employer-Employee Relations
Act of 1979, creating the Public Employment Relations
Commission, with powers to determine appropriate bargaining
units, scope of negotiations, grievance and contract arbitration. New
Jersey also empowered its agency to conduct mediation and factfinding
modeled on the National Labor Relations Board (NLRB).
Unique to this new relationship were the concepts of:
■ Bilateralism
■ Representation
■ Unit scopes of bargaining units
■ The scope of negotiability
■ Negotiations and their remedies
■ Unfair labor and management practices and union fee limitations
■ Grievances
■ Workplace discipline
■ Labor strike
■ Alternative Dispute Resolution (interest arbitration, grievance
arbitration, mediation, mediation-arbitration, ombuds, etc.)
Indeed, Richard B. Freeman, writing in the Spring 1988 Journal of
Economic Perspectives, perceptively forecast that, by the mid-1980s,
unionization of the private sector and the public sectors were diverging:
the private sector, bleeding members; the public sector garnering
great numbers. Part of this reason was the encouragement of collective
bargaining laws in the public sector in non-right-to-work states.
(There are 22 right-to-work states.)
Legal Bases
Oftentimes, the legal justification follows political reasons. So it
was with public sector unionism. In terms of public labor relations,
a formal application of the concept of sovereignty would seem to
preclude collective bargaining. Jay Shafritz, in his 1981 text, claimed
that only the citizenry, speaking through its government, would
have the authority to establish terms and conditions of public
employment.
After the rapid rise of public unions in other states, N.J. courts
allowed public employees’ unions, unless specifically barred by
statute (McLaughlin v. Tilendis 1968). Finally, the United States
Court of Appeals for the Seventh Circuit held, in Abood v. De
(1977), that public employees can join unions, provided the state
authorizes it and non-union employees are exempted from
representation.
When the New Jersey Employer-Employee Relations Act of 1968
extended to public employees, only the states of New York and
Wisconsin had enacted similar comprehensive legislation. Because
CONTINUED ON PAGE 8
WWW.IPMA-HR.ORG JULY 2011 | 7 |