Editorial
Public Sector Collective Bargaining and Industrial Democracy
By Dr. Gary K. Busch 2/10/12
Oct 3, 2012 - 2:00:36 PM

If there is any area in industrial relations more difficult for the general public to appreciate than collective bargaining in the private sector it is collective bargaining in the public sector. ­­­That is the negotiation of representation rights, wages, working conditions and benefits between a trade union and a public, state or municipal employer. Collective bargaining rights for public sector employees which include the right to strike have only been enjoyed for a relatively short period. There have been workplace agreements between public sector workers, like firemen or policemen, and states and municipalities for a long time without recognised unionisation. There was a strong resistance to early public sector unionization despite efforts to form them. Indeed the most famous of these efforts was the Boston Police Strike of 1919 which set the tone for many years.

In September 1919 the workers across America, both in the private and public sectors, urgently sought wage increases to catch up with the galloping inflation which accompanied the First World War. In Boston the police had seen their wages frozen and their prospects denied as the Police Commissioner, Curtis, refused to allow police unionisation. He suspended the leaders of the informal union in August 1919. On September 9, 1919 over 1,100 policemen in Boston went on strike. They withdrew their labour and took the police off the street (almost three-quarters of the local force). The Bostonians saw that there were no police so they rioted, looted and caused havoc. The mayor called in some elements of the National Guard which restored order. The new governor of Massachusetts, Calvin Coolidge (later Vice-President and then President of the US when Harding died in office) mobilised the entire state National Guard and ended the strike. He fired all the striking policemen and gave their jobs to returning servicemen. The strike was over. This set the pattern for many years.

It wasn’t until around 1932 that public sector unions began to take shape and get recognition. The National Federation of Federal Employees (NFFE) which represents federal and DC municipal employees has been organised in 1917 as the oldest independent union for federal and DC government workers but it wasn’t recognised for collective bargaining purposes until the early 1930s. The American Federation of Teachers (AFT) was formed in 1916 but only on state and municipal levels. This was true as well for the International Association of Fire Fighters formed in 1916. In 1932 the American Federation of Government Employees (AFGE) began to organise workers in the Federal service, followed by the American Federation of State, County, and Municipal Employees (AFSCME), the National Association of Letter Carriers (NACL) and the American Postal Workers Union (APWU). It wasn’t until 1979 that the police organised as the International Union of Police Associations, AFL-CIO (I.U.P.A.).

Until 1932 there was a blanket ban on public sector collective bargaining. It wasn’t until the Great Depression, when labour strikes in the private sector were more frequent, that the government turned its attention to collective bargaining. In 1932, Congress passed the Norris-LaGuardia Act, which declared yellow-dog contracts illegal.  A yellow-dog contract was an agreement between an employer and an employee in which the employee agreed, as a condition of employment, not to be a member of a labour union. The Act limited the power of federal courts to issue injunctions in labour disputes. The Norris-Laguardia Act was followed, in 1935, by an even more powerful piece of legislation, the Wagner Act (the National Labour Relations Act). Under the Wagner Act labour unions were given legal rights and powers under federal law. The act guaranteed the right of collective bargaining, free from employer domination or influence. It made it an unfair labour practice for an employer to interfere with employees in the exercise of their right to bargain collectively; to interfere with or to influence unions; to discriminate in hiring or firing because of an employee's union membership; to discriminate against an employee who avails himself or herself of legal rights; or to refuse to bargain collectively. The Wagner Act established the National Labour Relations Board, which has the power to investigate employees' complaints and to issue cease and desist orders. The key to the Wagner Act was section 7, which stated the public policy that workers have the right to engage in self-organization, in collective bargaining, and in concerted activities in support of self-organization and collective bargaining.

While this was empowering for most of the labour movement, public sector unions were not as empowered as the private sector. The reason for this was that despite the Norris-Laguardia and Wagner Act’s removal of hurdles to collective bargaining, individual states refused to comply with their provisions or dragged their feet so that public sector unionism fell far behind the successes of the private sector unions. The resistance of many states to the Federal law and a growth in anti-union sentiment led to a change in the Federal law in 1947 with the passage of the Taft-Hartley Act (Labour-Management Relations Act) which amended section 7 of the Wagner Act to allow workers to voluntarily opt out of the collective bargaining system and created several labour movement unfair labour practices. It created a Federal Mediation and Conciliation Service to intervene in strikes and abolished the closed shop (where all workers in a recognised bargaining unit had to be a member of the union).

The Taft-Hartley Act was modified in 1959 with the passage of the Landrum-Griffin Act (Labor Management Reporting and Disclosure Act). Although Landrum-Griffin provided for a bill of rights for union members, financial disclosure requirements for unions and their officers, and safeguards in union elections, it also made peaceful picketing for organizational or recognition illegal under certain circumstances and closed some loopholes in the provisions of Taft-Hartley that forbade secondary strikes. Unions have been able to live with the provisions of Landrum-Griffin and have also benefited from the passage of the Civil Rights Act of 1964, as expanded by the Equal Employment Opportunity Act of 1972. These made an important contributions to national labour policy. The act declared it an unfair labour practice for an employer or union to discriminate against a person by reason of race, religion, colour, sex, or national origin.

While private sector unions have been able to adjust and grow within the constraints of the US labour law and practice it has been a much harder struggle for the workers in the public sector. The prime reason for this has been the resistance of the states and municipalities to embrace the aims and aspirations of the labour legislation while maintaining segregationist, racist and neo-fascist policies in the administrations they control.

A good example of this can be found in the sanitiation workers strike in Memphis, Tennessee in 1968 where Martin Luther King lost his life. On 1 February 1968, two Memphis garbage collectors, Echol Cole and Robert Walker, were crushed to death by a malfunctioning truck. Twelve days later, frustrated by the city’s response to the latest event in a long pattern of neglect and abuse of its black employees, 1,300 black men from the Memphis Department of Public Works went on strike. These sanitation workers, led by the American Federation of State, County, and Municipal Employees (AFSCME), went on strike demanding recognition of their union, better safety standards, and a decent wage. The union, which had been granted a charter by AFSCME in 1964, had attempted a strike in 1966, but it failed. Conditions for black sanitation workers worsened when Henry Loeb became mayor in January 1968. Loeb refused to take dilapidated trucks out of service or pay overtime when men were forced to work late-night shifts. Sanitation workers earned wages so low that many were on welfare and hundreds relied on food stamps to feed their families.

In February the sanitation workers voted to strike. They began a sit-in at the municipal facilities. The following day, after police used mace and tear gas against nonviolent demonstrators marching to City Hall, Memphis’s black community was galvanised. By the beginning of March, local high school and college students, nearly a quarter of them white, were participating alongside garbage workers in daily marches; and over one hundred people, including several ministers, had been arrested. Martin Luther King arrived on 18 March to address a crowd of about 25,000 – the largest indoor gathering the civil rights movement had ever seen.  King encouraged the group to support the sanitation strike by going on a citywide work stoppage, and he pledged to return that Friday, 22 March, to lead a protest through the city.

Jim Bevel and Ralph Abernathy led a protest march. King arrived late and found a massive crowd on the brink of chaos. The state and local police were attacking everyone with sticks, clubs and dogs. Local onlookers joined in with the violence against the strikers. King quickly called off the demonstration as this violence spread.  King was whisked away to a nearby hotel.  A sixteen year-old was shot and killed by a policeman, who followed demonstrators back to the Clayborn Temple, entered the church, released tear gas inside the sanctuary, and clubbed people as they lay on the floor trying to get fresh air.

Loeb called for martial law and brought in 4,000 National Guard troops. The following day, over 200 striking workers continued their daily march, carrying signs that read, “I Am a Man”.  King returned to Memphis on 3 April and was persuaded to speak by a crowd of dedicated sanitation workers who had braved another storm to hear him. The following evening, as King was getting ready for dinner, he was shot and killed on the balcony of the Lorraine Motel. On 8 April, an estimated 42,000 people, led by Coretta Scott King, silently marched through Memphis in honour of King, demanding that Loeb give in to the union’s requests.  Lyndon Johnson sent down his Undersecretary of Labour to assist and a contract was signed.

That wasn’t the end of it. Although a contract was agreed, the city tried to weasel out of its provisions. Jerry Wurf, the head of AFSCME, contacted Walter Reuther, my boss at the UAW, and asked for our assistance. We went down to Memphis a few months later to try to force the city to honour the contract. We were amazed to see that Memphis, which had been forced to agree to pay non-white workers the same rate of pay as white employees, were insisting that there be a five-year apprenticeship program for garbage collectors which had to be completed before the full rate was paid. We took this to Lyndon Johnson who called the city and told them that there would be a blockade of all federal funds to Memphis, and potentially the State of Tennessee, if they didn’t cease their racist tactics. They finally agreed.

This example is the nub of why public sector collective bargaining is so much less well-developed than private sector unions. The employer is a state, a state agency or a city. These states and cities are political organisations. They have no product other than governance. Throughout American history these state agents worked on the ‘spoils system’ where whoever won the election controlled the jobs in the state and the city.  People like Boss Tweed of Tammany Hall in New York, Big Bill Thompson in Chicago, Jim Curley in Boston, to name but a few, ran their cities like feudal overlords. The governors were no better; especially the Southern governors like George Wallace, Orval Faubus, Lester Maddox and their fellow Klansman whose grasp of Federal laws on civil rights and labour rules were non-existent. They used the state and local police to enforce their racial and supremacist policies and ignored most of the constraints on public abuse of the collective bargaining by refusing to admit that they applied. Hard as it was to organise unions in the private sector in the ‘right-to-work’ South, the burden of organising state and local workers was several orders of magnitude higher.

In the US labour markets outside the control of party bosses, Southern racists and prairie evangelicals public sector collective bargaining unions began to build up an effective presence in the workplace. The payoff for these public sector unionists, especially the civil service, was that they would have enshrined in their workplace rules a security of tenure which was much better than in the private sector. The civil servants were often paid less than those in the private sector but had a much better condition of job security. Moreover, most government employees work in non-competitive fields where their employer has a monopoly, so their jobs are not threatened by competitors, and are not dependent on their ability to work efficiently and so keep their employer competitive. When they organise they have often become major players in politics. Public-worker unions are among the biggest political donors. Between elections, they can use that political power to influence those elected officials and the political process more generally to improve their pay, benefits, or conditions, and also to increase demand for their services through legislation that increases the size or role of their agencies or that prevents competition (especially as the teachers’ unions have done in opposing school-choice programs). In all these ways, public workers have enormous powers that private workers could not dream of, and all without successful collective bargaining structures.

The inherent problem of these public-sector unions is that their ability to raise wages or improve their fringe benefits derives from the legislated budgets for the agencies which employ them. The legislatures or the city councils set the budgets and the unions are constrained to live within these limits. A second area of impediment is that it is very difficult to measure productivity among public-sector employees. Productivity is a rise in output per unit time by an employed worker.  Is the police force more productive if there is no crime or when they have to spend a lot of time stopping crimes? Are firemen more productive when there are no fires or when they have to rush about putting them out? Are social workers more productive when the populace is happy and well-adjusted? This is not an abstract question. There are numerous cases where fire fighters have been jailed as arsonists trying to prove their jobs were necessary and crucial. Without a reliable measure of productivity it is difficult to justify wage increase above the rate of inflation.

There are several other areas which distinguish public-sector collective bargaining from that in the private sector. In 1968 the unions in Hawaii, led by the Hawaii Government Employees Association reached the conclusion that no amount of political muscle could guarantee government workers favourable treatment at the legislature without a legal empowerment. That led HGEA to strongly support collective bargaining in the public sector. HGEA led the fight to change the Hawaii State Constitution during the 1968 Constitutional Convention to give collective bargaining rights to public employees. In 1970, the state legislature passed the Hawaii Public Employment Collective Bargaining Law which created thirteen bargaining units and allowed representative elections for bargaining agent and the negotiation of collective agreements. HGEA affiliated to the AFSCME in 1971. The introduction of public-sector collective bargaining in Hawaii was a major step forward in the spread of public-sector unionism in the US.

I was appointed as a Professor at the University of Hawaii in September 1970 and Director of the Center for Labour Management Education. It was the task of our department to teach the rules of collective bargaining to both the public-sector management and the public-sector unions. We developed teaching programs in Honolulu and the neighbouring islands as well as a weekly television series on the Public Broadcasting station (HPTV), “Rice and Roses” every Monday night at 1900 hours. We worked closely with the unions, the Hawaii Public Employment Relations Board (HPERB) and the various state agencies in preparing collective agreements.

One of the first things we learned was the difficulty in establishing exactly who was covered by the agreement. In most of the thirteen unions, the workers represented included almost all of the employees in the unit. The State of Hawaii Organisation of Police Officers (SHOPO), for example, included every policeman below the rank of commander. That meant that for the police all ranks would be represented by a single union. The police were, and are, distinguished by a quasi-military structure of ranks. Under the new law all policemen were equal and SHOPO had to represent the full range of ranks.  The supervisors were in the same union as the supervised. This caused some serious difficulty as those used to giving orders now found themselves in a minority in the union. Their demands for better pensions and retirement conditions were often subsumed in the cash needs of the lower ranks. This was made even more complicated in the grievance procedure as union members often had to discipline and sanction fellow unionists of a lower rank in their police roles, but not on matters covered by the collective agreement. (I was commissioned by the Federal Intergovernental Personnel Act to write a detailed monograph of these difficulties entitled “The Supervisor in the Bargaining Unit” – US Department of Labor 1971).

We assisted most of the unions in preparing for collective bargaining and worked with the Lieutenant-Governor’s office in teaching the managers about industrial relations. Elections as bargaining agent went well as did the contracts. That is with the exception of the faculty union. Our Center stayed away from the negotiations between the university and the Hawaii Federation of Teachers (an AFT affiliate) as we had to maintain our neutrality. The negotiators for the HFT negotiated a terrible contract; one which gave away most of the rights the faculty already enjoyed. The contract was rejected by the faculty who refused to ratify it. A new bargaining team was appointed and I was drafted to head the negotiations. It was very interesting. The faculty were incapable of understanding that they were employees at a state university. One professor on the negotiating team quit because we drafted a new contract which used the words ‘employer’ and ‘employee’. He said he viewed himself as self-employed and didn’t want to be thought of as an employee. The faculty insisted that they had the right to ‘peer review’ which is a fancy word for firing fellow employees by not granting them tenure. We pointed out that hiring, firing, transferring and promoting were ’management rights’, not a right of fellow workers. The faculty did not want to represent teaching assistants as they were not ‘really’ part of the bargaining unit. Throughout the process of trying to resurrect a contract the faculty resisted anything that smacked of a structure which embraced all their fellow employees. Class solidarity was not for them. I couldn’t stand it anymore and I handed in my notice to the University that I was leaving the university at the end of the academic year, despite my tenure as a full professor, and was returning to the international labour movement in Geneva, Switzerland as Assistant General Secretary of the International Chemical and General Workers Federation. I testified at the HPERB and stated that they should hold an election for bargaining agent at the university and whoever lost should get the right to represent them.

I remembered this when I was reading about the Chicago teachers strike. Public-sector collective bargaining is difficult at the best of times and especially in times of fiscal constraint when job redundancies are inevitable in a service with diminished funds. What struck me was the fact that the basic fundamentals of collective bargaining were being ignored by arbitrarily reducing teachers’ pay. Moreover the productivity of the teachers was being determined by reference to the performance of the children they taught. That is unreasonable as the teachers are not the ones who chose the students. Using other people’s performance as guide to a teachers’ pay is putting their livelihood in the hands of the performance of others – a fundamentally-flawed idea. Teachers should be engaged in educational reforms and their views considered.  That is part of their job but management unilaterally acting to reduce pay and create competitive workplaces is not a reasoned approach and is likely to produce strife.

Public-sector unions are under attack across America; not only in Wisconsin and Ohio. The combination of tin pot autocrats in the governorships, fundamentalist fantasists among the Tea Partiers and the sustained unreasoning racism of the degenerate Southern politicians mean that this fight will continue whoever wins the election. It has always been the states and the cities that ignore the civil and industrial rights of the public-sector workers. It ill behooves anyone seeking the support of working people in Chicago, California, Wisconsin and anywhere else in the US to adopt an attitude of impartiality when the forces of the Right and the workers become locked in deadly embrace. Perhaps that is the lesson to be learned from the Chicago Strike.