LIR 891: Lecture 10 Impasse Resolution Procedures I. Competing Ends: A. Permit public employees to negotiate their wages, hours and working conditions B. Protect public and government from excessive influence over public policy and the interruptions in services provided by public employees C. This has resulted in bans on public sector strikes and efforts at providing strike substitutes to resolve impasses 1. arbitration 2. Mediation 3. Fact finding II. Strikes in the Public Sector: Are they so bad? Are They Illegal A. Legal history of the strike in the private sector 1. Cordwainers (Philidelphia: 1806): Doctrine of Criminal Conspiracy A combination of workmen to raise their wages may be considered in a two fold point of view: one is to benefit themselves.. The other is to injure those who do not join their society. The rule of law condemns both: 2. Commonwealth v. Hunt, (Massachuetts, 1842) Illegal means or ends: Test is whether the means employed or the purpose sought was improper or illegal. Collective actions such as strikes were treated as coercive or oppressive when directed toward questionable purposes. Typically if action potentially inflicted harm on others (employer or worker) ends and/or means foudn to be illegal. Ends use of criminal conspiracy doctrine and invites, instead, consideration of the justification for particular union purposes and the propriety of the means used. Has little influence outside of Massachuetts. Emerging legal doctrine was incoherent, as noted in Holmes (Vegelahn v Guntner, 1896).
3. Rule of injunction: 1885-1932. Injunctions used to obtain temporary relief from union action where there is the potential for harm. Began in response to strikes against railroads in receivership in the 1880's and carried on from there. Does not address union motives or methods, simply bans union action. Analysed by Frankfurter and Greene, The Labor Injunction. Effectively prevents most strikes or other actions by organized employees (bans on quitting work and encouraging employees to join unions where yellow dog contracts exist). 4. Strikes become legal in the private sector through a series of federal acts. A. Acts passed in the face of extensive industrial unrest. B. Railway Labor Act (1926): follows on 1. Erdman Act (1898): allows arbitration of railway labor disputes 2. Transportation Act (1920): protects right to organize and establishes boards of adjustment. C. Norris-LaGuardia anti-injunction act (1932) D. Wagner Act (1935) III. Public Sector Strikes: Facts and Views A. Trends in public sector strikes: 1. Data problem as BLS data is only available for strikes of more than 1000 (result of Reagan cutbacks). FMCS data is comprehensive but less detailed and so less useful 2. Trends: a. Marked decline in public sector strikes in early 1980s, parallels general trend in strike activity in US (see pages 88 and 89) b. Measures of strike activity: i. Number of strikes (not clear why we care about this) ii. Number of employees involved iii. Days idle (length of strike times number of employees), also called volume c Public sector accounts for between i. 8 & 19% of number of strikes: some exceptional years ii. Between 8 and 14% of employees with some exceptional years. Public sector strikes account for a declining share of employees involved. iii. Between 3 and 7% of the volume of strike days. Note this is lower suggesting that public sector strikes tend to be shorter than private sector strikes 3. Public Sector Strikes are concentrated in Education:
a. Boards of education account for 2/3rds of public strikes nationally with universities accounting for an additional 9%. b. Teachers account for 70% of strikes. Note that these are by the number of strikes of over 1,000 employees and count the number of strikes. c. Strikes are somewhat more prevalent in states which allow public sector strikes, but there are still a significant incident of strikes in states where public sector strikes are illegal (see Hebdon Table 3). Strike rates likely refer to the number of strikes per 100 public employees. 4. Decline in public sector strikes likely related to: a. fiscal crises, taxpayer revolts, economic restructuring, the recission, the PATCO strike and specific state legal change: b. NY passes Triborough amendment: freezes eexisting conditions during negotations but allows change if a strike takes place c. California passes prop 13. 5. Public Policy and Strikes: a. Strike avoidance a central tenant of public policy i. Statutory bans cannot eliminate strikes ii. Right to strike laws do not affect the incidence of strikes iii. Moderate strike penalties are more effective in reducing strikes than are harsh penalties. iv. Compulsory interest arbitration reduces strike activity v. Fact finding and mediation do not affect strike activity b. Declines in strike activity are accompanied by increases in other forms of conflict. i. Increases in ULP and grievance activity ii. Problem of whether these approaches are able to address the source of conflict. iii. Response is new approaches to these forms of conflict (grievance mediation)
III. Is there a common law prohibition against public sector strikes? A. Presumption that there is such a prohibition absent specific legislative language B. County Sanitation District No. 2 v. Los Angeles County Employees Assn. 1. Facts: SEIU local of 500 workers operate and maintain sewage transport and treatment facility. Have a collective bargaining agreement pursuant to the Meyers- Milias-Brown Act. 75% struck after negotiations went to impasse and failed to produce a new Memorandum of Understanding (MOU). District able to maintain operations and after 11 days employees returned under the employers final offer. District proceeded with action for tort damages. Trial court found the strike to be unlawful and awarded $246,000 in compensatory damages. 2. Is there a legislative ban on public sector strikes in California? a. Public employees statute (MMBA) specifically bans firefighters from striking but is silent on all other classes of public workers. The need to put in an express prohibition for firefighters suggests that the legislature did not implicitly impose such a ban on other public employees. The lack of affirmative anti- or pro- strike language shrouds whether a public sector strike is a prohibited tort. 3. Common Law Prohibition Against Public Employee Strikes a. Policy Rationales for viewing public employee strikes as per se illegal. i. public employee strike is a denial of governmental authority ii. Terms of public employment are not subject to bilateral collective bargaining because they are set by the legislative body through unilaterial decision making. iii. Public employee would be granted excessive bargaining leverage, resulting in distortion of the political process and improper delegation of legislative authority if allowed to strike. iv. Public employees provide essential services.
b. Sovereignty concept is that government is the embodiment of the people and hence those intrusted to carry out its function may not impede it. Dates back to the King can do no wrong. i. Does not address the rapid growth of government in size and scope of services provided. Government employees are currently in the same position vis a vie the employer as their private counterparts. ii. Sovereignty concept as applied to state immunity to tort suites has been rejected by courts since the 1960s. \ c. Terms of public employment are not subject to bilateral collective bargaining because they are set by the legislative body through unilaterial decision making. Public employers are virtually powerless to respond to strike pressures, to allow response would result in government by contract rather than government by law. i In enacting a public employee bargaining framework which parallels that of the private sector, the state legislature undermined the common law ban on public employee strikes. It specifically permitted and encourage bilateralism in decision making. d. Government Services are essential and demand is inelastic, allowing public employees to wield excessive bargaining power if allowed to strike. i. Proponents assume that public sector lacks economic constraints. Public employers will make abnormally large concession which will distort political process. ii. Problems with syllogism (a) not all government services are essential Instant strike is an example of this, authority was able to maintain services for 11 days. (b) governments have the ability to stand up to strikes even when there is considerable public inconvenience (PATCO) (c) Usual reasons why employees do not have unlimited bargaining strength. C lost wages are as important to public as private employees C public s concern over tax rates prevents political decision making from dominating economic considerations C this tendency is stronger where consumers are directly charged for services (prices are clearly visible)- sewer and water C Subcontracting provides management a tool in bargaining.
iii. Assumption that public will blindly push for settlement at any cost, and is unaware of public sentiment toward the strike, is unfounded. e. Interruption of public services unacceptable because they are essential. i. Society tolerates strikes in many areas where services are very important to society and the consumer (used to tolerate airline strikes) ii. The form of ownership does not determine the amount of destruction caused by a strike. iii. Supreme Court moved from view that public employees cannot strike (United States v. Mineworkers (1947) seizure of the mines by Truman) to Transportation Union v. LIRR (1982) in which employees of a private RR acquired by the public entity are found to retain their right to strike under the RRLA. Fails to mention section 13(c) of the UMTA of 1964 labor provisions. Argues that Supreme Court is still moving away from the essential services doctrine. Accepts the need to ban strikes for essential services but does not accept that all public services are essential.
f. New Reasons to Ban Strikes: Strikes will be harmful to L-M relations in the public sector i. Issue not so clear cut to warrant judicial intervention ii. 11 states have granted most public employees the right to strike iii. Unrealistic to assume that disputes will not occur. Lacking a credible threat of a strike, employees have little strength in negotiating, which produces frustration and provokes illegal strikes. "It would be unfair to place upon the legal machinery sole responsibility for these interruptions of critical services on which the welfare of New York depends. But the fact remains that the machinery including the prohibition on strikes with attendant penalties and the fact-finding boards with their power to make recommendations did not work to settle these disputes or stop the strikes, slowdowns, or threats. In fact it is probable that the Taylor Law exacerbated these conflicts. For one thing, it made subversive a form of conduct society endorsed for private workers. It encouraged unions to threaten to strike to achieve the bargaining position participants in collective bargaining must possess. It made the march to jail a martyr's procession and a badge of honor for union leaders.... In simple point of fact, it did not and is not likely to work as a mechanism for resolving conflicts in public employment relations through joint determination, whether called collective bargaining or collective negotiations." (Kheel, Strikes and Public Employment, supra, 67 Mich.L.Rev. 931, 936.) fn. 28 [38 Cal.3d 583] Need to equalize parties bargaining strength to achieve bargaining in good faith. Credible strike threats may serve to reduce, rather than encourage, strikes. Lack of such threats may lead to longer and more acrimonious strikes. g Right to strike may be a basic civil liberty
4. Court concludes that the common law prohibition against strikes should not be recognized in California. a. Public sector strikes are neither illegal or tortious b. Retains prohibition on strikes where these present a immenant or clear and present danger to public safety or health. strikes by public employees are not unlawful at common law unless or until it is clearly demonstrated that such a strike creates a substantial and imminent threat to the health or safety of the public. This standard allows exceptions in certain essential areas of public employment (e.g., the prohibition against firefighters and law enforcement personnel) and also requires the courts to determine on a case-by-case basis whether the public interest overrides the basic right to strike. i. Although we recognize that this balancing process may impose an additional burden on the judiciary, it is neither a novel nor unmanageable task. fn. 34 Indeed, an examination of the strike in the instant case affords a good example of how this new standard should be applied. The 11-day strike did not involve public employees, such as firefighters or law enforcement personnel, [38 Cal.3d 587] whose absence from their duties would clearly endanger the public health and safety. Moreover, there was no showing by the District that the health and safety of the public was at any time imminently threatened. That is not to say that had the strike continued indefinitely, or had the availability of replacement personnel been insufficient to maintain a reasonable sanitation system, there could not have been at some point a clear showing of a substantial threat to the public health and welfare. fn. 35 However, such was not the case here, and the legality of the strike would have been upheld under our newly adopted standard. fn. 36" c. Will avoid ruling on whether strikes are constitutionally protected activity under the California Constitution. Puts off consideration to another day i. Court neither wants to investigate this in depth, but also serves as a warning to employer side that pursuing this further might result is a less acceptable outcome.
5. Other Opinions: Concurring and Dissenting: a. Common law tort against employee strike was not contemplated in the MMBA act and would be an inappropriate remedy. Injunctive, rather than tort, relief was proper approach to this issue. b. There may be a constitutional right to strike (Grodin) c. We should not pursue this constitutional issue but engage in a minimal decision to address the instant issue. d. Dissent: Public strikes may be devestating The different treatment of public and private employees with regard to the right to strike is not premised on their jobs but on differences in the employment relationship. The legislature, rather than the courts, should undertake the balancing process involved. The courts approach is hopelessly undefined and unstructured (in contrast to states which allow strikes in a comprehensive public sector statute)