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time adjust, a human resources management system. However, Congress, made it clear that any such
system should in essence be flexible, contemporary, not interfere existing statutory provisions relating to
certain personnel practices, and ensure that employees may engage in concerted activities of their own
Issue: Does the human resource management system violate the HSA provision that the Department
“ensure” collective bargaining for its employees, and did DHS overstep its boundaries in its attempt to
co–opt FLRA’s administrative machinery?
Decision: Yes. The Court held that the regulations fail in two important respects to “ensure that
employees may bargain collectively,” as the HSA requires. The Court declares that the Department’s
CASE 19.5 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO V.
ROBERT M. GATES, SECRETARY OF DEFENSE
486 F.3d 1316 (D.C. Cir. 2007)
Background: Chapter 71 of Title 5 codifies the Civil Service Reform Act of 1978 and establishes the
right of federal civilian employees, including civilian employees at the Department of Defense, “to
engage in collective-bargaining with respect to conditions of employment through representatives
chosen by employees.” The Act generally requires agency management to “meet and negotiate” in good
faith with recognized unions over conditions of employment “for the purposes of arriving at a collective–
bargaining agreement.” The Act exempts various matters from collective bargaining, such as hiring,
firing, suspending, paying, and reducing the pay of employees. Therefore, the Civil Service Reform Act
ensures collective-bargaining for federal employees, albeit more limited than the collective bargaining
rights for private employees.
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and employees.…
After Congress enacted the National Defense Authorization Act in November 2003, the DoD began
developing the National Security Personnel System. On February 14, 2005, the DoD published a
proposed system in the Federal Register. After various DoD employee representatives submitted
comments, the DoD held several meetings with employee representatives, in the spring of 2005. On
Issue: Whether the National Defense Authorization Act for Fiscal Year 2004 authorizes DoD to curtail
collective-bargaining rights that DoD’s civilian employees otherwise possess under the Civil Service
Reform Act of 1978?
Decision: Yes. The National Defense Authorization Act grants the DoD temporary authority to curtail
Note to professor: The NSPS was repealed. The transition back to Chapter 71 control was completed in
2012.
ANSWERS TO CASE QUESTIONS
1. The principal difference is that DHS is authorized to engage in limited collective bargaining, while the
DoD is entitled to abrogate bargaining altogether.
III. State Public Sector Labor Relations Legislation
A. Coverage of State Laws
1. States vary in their approach towards organizing rights and collective
bargaining by public employees.
Cihon/Castagnera, Employment and Labor Law, 9e Instructor’s Manual Chapter 19
2. The courts have generally held that there is no constitutionally protected right
to bargain collectively. Thus, the courts have upheld restrictions or
3. Since the right to organize is constitutionally protected, the courts have
consistently struck down restrictions on that right of public employees. But
B. Representation Issues
1. Most of the state statutes authorizing public sector labor relations provide for
2. Determining appropriate bargaining units is generally the function of the
PERB agency created by the particular statute. When the PERB is entrusted
C. Representation Elections
2. The union seeking representation rights petitions the PERB requesting an
D. Bargaining
1. A majority of states have provisions requiring, or at least permitting, some
form of collective bargaining.
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2. The scope of bargaining subjects may be restricted to protect the statutory
3. The public employer may also be legally prohibited from agreeing with the
union on particular subjects.
4. Public sector labor relations statutes generally have broad management-rights
5. The state PERBs generally classify subjects for bargaining as mandatory,
permissive, and illegal subjects.
E. Bargaining and Open-Meeting Laws
1. Some states have adopted open-meeting, or “sunshine,” laws*.
*Open-meeting (“sunshine”) laws: Laws that require that meetings of public bodies be open to the
public.
F. Impasse Resolution Procedure
1. Because most state laws restrict or prohibit strikes by public employees, they
Cihon/Castagnera, Employment and Labor Law, 9e Instructor’s Manual Chapter 19
G. Strikes by State Workers
1. Most state public sector labor relations statutes prohibit strikes by public
employees.
ETHICAL DILEMMA
Property Taxes Versus Public-Employee Benefits
In 2011, New Jersey residents stagger under the highest property taxes in the nation. Meanwhile,
teachers and other public employees regularly retire at 80 percent of their most recent base salaries, plus
full medical benefits. The U.S. debt clock shows state revenue at less than $80 billion, while it estimates
spending at $108 billion. Debt, it claims, equals nearly $94 billion, or about 18.5 percent of state GDP.
New Jersey Governor Chris Christie released his 2012 budget in February 2011.
CASE 19.7 CITY OF MADISON JOINT SCHOOL DISTRICT NO. 8 V.
WISCONSIN EMPLOYMENT RELATIONS COMMISSION
429 U.S. 167 (1976)
Background: The Madison Board of Education and Madison Teachers, Inc. (MTI), a labor union, were
parties to a collective-bargaining agreement during the calendar year of 1971. In January 1971
negotiations commenced for renewal of the agreement and MTI submitted several proposals. One of the
proposal was the inclusion of a “fairshare” clause, requiring all teachers, whether members of MTI or
not, to pay union dues. Another proposal was a provision requiring arbitration for all teacher dismissals.
The school board resisted both provisions resulting in an impasse.
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a prohibited labor practice by permitting Holmquist to speak at the December 6 meeting.
Issue: Whether a State may constitutionally require that an elected board of education to prohibit
teachers, other than union representatives, to speak at open meetings, at which public participation is
permitted, if such speech is addressed to the subject of pending collective-bargaining negotiations?
Decision: Holmquist did not seek to bargain or offer to enter into any bargain with the board, nor does it
appear that he was authorized by any other teachers to enter into any agreement on their behalf.
ANSWERS TO CASE QUESTIONS
1. The Wisconsin court held that Holmquist’s statements, as a position statement on matters that were
subject to collective bargaining between the teachers and school board, were negotiations based on the
2. Holmquist was addressing the board as both a concerned citizen and an employee⎯he was seeking to
3. The Court states that freedom of speech and the right to petition the government may be restricted
CASE 19.8 GARCETTI V. CEBALLOS
547 U.S. 410 (2006)
Facts: Richard Ceballos was a deputy district attorney for the Los Angeles County District Attorney’s
Office. In February 2000, a defense attorney contacted Ceballos about a pending criminal case and told
him that there were inaccuracies in an affidavit used to obtain a critical search warrant. Ceballos
reviewed the case and determined that the affidavit did contain serious misrepresentations. He wrote a
memo and presented the issue before his superiors. There was a disagreement and the supervisor decided
to proceed with the prosecution. Ceballos was called by the defense and testified about his observations
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about the affidavit. The trial court rejected the challenge to the warrant.
Ceballos claimed in the aftermath of his testimony he was subject to retaliation, including a demotion,
Issue: Does the First Amendment protect a government employee from discipline based on speech made
pursuant to the employee’s official duties?
Decision: If an employee is speaking as a citizen, the employee’s speech may be protected under the
ANSWERS TO END OF CHAPTER PROBLEMS
QUESTIONS
1. The constitution⎯either state or federal⎯regulates the way government can deal with its
citizens. Because public employees are citizens, they have rights under the constitution that must
2. FSLMRA covers federal employees who are employed by a federal agency or who have ceased to
work for an agency because of an unfair labor practice. FSLMRA excludes employees of the FBI,
3. FSLMRA requires bargaining on conditions of employment, but not on wages, which are set by the
Federal Wage System or the General Schedule. FSLMRA defines conditions of employment as
excluding policies relating to prohibited political activities, matters relating to the classification of
any position, and policies or matters that are provided for by federal statute. FSLMRA contains a
Cihon/Castagnera, Employment and Labor Law, 9e Instructor’s Manual Chapter 19
4. Union security clauses in the public sector may raise issues involving employees‘ First Amendment
rights of expression or of association. If the employee is required to join a union, the government is
5. States may not absolutely prohibit public employees from joining unions; however, reasonable
restrictions on that right may be imposed. Such reasonable restrictions include the prohibition of
CASE PROBLEMS
6. The Supreme Court has held that a public employee must be allowed to express themselves on
matters of public concern; therefore, the issue in these cases is whether the matter being addressed is
a matter of public concern. In Yoggerst, the Court held that the employee was speaking about
7. On November 8, 2011, the voters overwhelmingly defeated the measure. Pundits’ analyses of the
outcome can be accessed at:
• Michael Scott, “Issue 2 defeated: Million votes are in and 63 percent say no, AP says,” The Plain
8. The majority ducked the issue, holding that the court lacked jurisdiction to review the Federal
Labor Relations Authority order, affirming the arbitrator’s denial of the grievance, since there had
9. In May 2010 the schools and the teachers’ union reached an agreement under which the teachers were
rehired. Under the terms of the deal, the teachers would not have to reapply for their positions.
10. The court here held that the employer had not violated the employee’s constitutional rights; sexual
preference is not a constitutionally-protected interest. The employee was a untenured teacher, with
11. On July 24, 2012, the Garden State’s Supreme Court ruled in favor of the judges’ holding that the
statutory increase in their pension contributions violated the “No–Diminution” clause of the state’s
constitution. The full citation for the case is 211 N.J. 40, 47 A.3d 690 (2012).
12. The court held that the discipline matrix was a mandatory subject of bargaining and issued an
iinjunction preventing implementation. Although the collective bargaining agreement reserved
discipline as a management right, the city’s charter required the parties to bargain over terms and
13. The organizations challenged the regulations on grounds that the rules infringed their First
Amendment rights of freedom of expression. The court upheld the regulations here; it held that there
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14. The court held the defendants had the legal right to impose their last, best offer. The court first
observed that the parties were required to negotiate in goof faith. The majority then went on to say,
15. The Supreme Court held that the arbitration award violated a “well–defined and dominant public
policy.” The majority opinion found the award to be “patently unreasonable on its face.”
Additionally, it lacked “appreciation of the dominant public policy.” Third, the opinion found that
HYPOTHETICAL SCENARIOS
16. Most state public sector labor relations statutes prohibit strikes by public employees, and New
York is one of them. The teacher and teacher’s aides violated New York’s Taylor Law, which
prohibit all strikes by public employees and provides for fines and the loss of dues check-off
17. The suspension of Houseman and Harmon was not in violation of their First Amendment rights
because they were not speaking as private citizens but pursuant to their official duties. When
18. The failure to bargain over the closure of the day care center was a violation of FSLMRA. The
FSLMRA covers federal employees that are employed by a federal agency. The FSLMRA
requires that agencies and unions meet and negotiate in good-faith. It is an unfair labor practice
Cihon/Castagnera, Employment and Labor Law, 9e Instructor’s Manual Chapter 19
19. Yes. It is an unfair labor practice for a union to call or condone a strike, work slowdown, or
stoppage. When a union has been found by the FLRA to have intentionally engaged in a strike or
20. No. The task of assigning teaching loads for faculty is not subject to negotiations. The FSLMRA
contains a very strong management-rights clause, which also restricts the scope of collective