rights under civil service or merit systems where an employee can only be discharged for just
cause (i.e., a job-related reason).
b. In most cases, the negotiation of wages and fringe benefits is a private sector union’s
principal function. Public employee unions, however, often find this subject out of their reach.
4. How do “school voucher programs” threaten public-sector employees?
5. How might a public sector union use multilateral bargaining to its advantage?
6. Should some public sector employees be given the right to strike? If so, which ones? If not, what
rights might they be given to help balance the bargaining process?
7. Do you believe binding arbitration should be used to settle a public sector collective bargaining
impasse? Why or why not?
8. When if ever should a government privatize a service?
9. How does the “monopoly position” of government affect the collective bargaining process?
10. Will the taxpayer revolt that began during the Great Recession of 2008 affect labor relations in
the public sector in future years? If so, how? If not, why not?
1. How many Americans are members of labor unions?
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2. How long have public sector unions been around?
3. Who has the right to strike?
4. Which topics are subject to collective bargaining?
5. Could an employer force a private sector union to give up collective bargaining rights?
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YOU BE THE ARBITRATOR!
BEREAVEMENT LEAVE
1. As arbitrator, what would be your award and opinion in this arbitration?
The language of the CBA as to bereavement day is not, in the arbitrator’s opinion, clear and
2. Explain why the relevant provisions of the CBA as applied to the facts of this case dictate the
award.
3. What actions might the employer and/or the union have taken to avoid this conflict?
CHAPTER 3: EXTRA CASES
The Civil Service Reform Act
Facts:
This case involves interpretation of the Civil Service Reform Act of 1978, specifically the Management
Rights section. The section includes the right of management to determine the mission, budget,
organization, number of employees, and internal security practices of an agency; to hire, assign, direct,
lay off, and retain employees, or suspend, remove, reduce in grade or pay, or take other disciplinary
action against such employees; to assign work, make determinations in filling positions with properly
Decision:
The court found some items to be merely procedural and negotiable and some to be substantive and not
negotiable. The first proposal included a provision in the contract requiring that disciplinary actions
resulting in suspensions or removals would not take place prior to the exhaustion of the grievance
procedure and that the employee would continue on the payroll during such procedure. The court held
that the item was negotiable, although the agency claimed such a provision would delay to the point of
negating management’s right to fire an employee. The court said that the Act does not protect the agency
from delay. The Act protects it only from not being able to carry out the management function.
The second proposal provided that, unless the agency used competitive procedures in processing
Questions for Discussion
1. Was the court correct in deciding that a delay in management’s right to fire an employee does not
prevent management from actually exercising that right? Does the length of the delay make any
difference?
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2. The union proposal concerning the use of a seniority system in promotions if competitive
procedures were not invoked by the agency could have been interpreted as being a substantive
and not a procedural provision. Why do you think the court held that it was procedural?
3. If the union proposal concerning employee assignments based on seniority had provided that first
testing and quantifying employee qualifications be made so that a pool of qualified employees
was available for assignment and thereafter seniority would have been the determining factor, do
you think the court would have felt that it was a negotiable item?
Disciplinary Action
Facts:
The employee, a union shop steward, was on her regularly scheduled day off at home. She was called by
her supervisor and told to talk to three union members and instruct them to attend a work function called a
“Quality Interaction Committee” meeting. The Quest for Quality program was a high priority with the
employer for improving patient care at the facility and was part of a corporate program. The union had
objected to the implementation of the Quest for Quality program and had taken a position that employees
could attend the program if their jobs were threatened, but they should do so under protest and then file a
grievance afterward.
On the day in question, the union shop steward, in a three-way conversation with the three
employees, told them that she would not order them to attend the Quest for Quality meeting, although she
had been asked by her supervisor to instruct them to go to the meeting. The supervisor who had called the
union shop steward had herself refused to order the employees to attend the meeting but relied on the
union shop steward to issue the order to the employees. When the union shop steward failed to order the
Nonetheless, the union contended that the arbitrator must examine the nature of the order when
deciding whether the insubordination was grounds for discipline. As to the nature of the order in this case,
Decision:
The arbitrator pointed out that the contract between the employer and employee in this case had the
standard “just cause” provision requiring the employer to demonstrate reasonable grounds for its
disciplinary action. The employer alleged in this case that the employee disobeyed the direct orders of her
supervisor and, therefore, the employee should be disciplined for insubordination. The arbitrator found
that the employee, in refusing to issue the order that the supervisor asked her to issue, was not challenging
the supervisor’s authority to direct the workforce in the accomplishment of its corporate mission. In fact,
it was the supervisor’s duty to instruct the employees or order the employees to attend the meeting, not
the union shop steward’s. The employee was not held responsible for refusing to exercise a supervisory
function that was not within her job classification. The arbitrator recognized the long-standing dispute
between the union and the company on the implementation of the “Quest for Quality” program. The
arbitrator, in noting that, pointed out that it was his opinion that the employee was discriminated against
due solely to her status as a union shop steward and that, even if the direct order had been work related,
the evidence of antiunion animus would have been enough to have defeated the employer’s just cause
allegation. The company tried to place the individual shop steward in the middle of a larger dispute
between the company and the union.
Questions for Discussion
1. As the arbitrator, do you think the employer had just cause to discipline the employee?
2. If the union’s opposition to the “Quest for Quality” program encouraged the employees not to
participate, why shouldn’t the union be held responsible for directing the employees to attend?
3. Did the employee’s action really justify the penalty imposed by the company?
Negotiating in Open Sessions
Facts
The members of the City of Springfield Public Utilities Board were negotiating with several labor unions.
During the course of those negotiations, the Board held numerous meetings with its principal negotiator
Decision:
The court found that, although the state’s Open Meetings Act was applicable to the utility board and it
held no specific exemption for collective bargaining sessions, such sessions were not subject to the act.
The court based this decision on an interpretation of the rights allowing public employees to bargain
collectively under another state law. It was the court’s opinion that the public employees’ right to
meaningful collective bargaining would be destroyed if full publicity was accorded at each step of the
negotiations. However, the final agreement negotiated by the parties would be subject to an open session.2
Questions for Discussion
1. The Open Meetings Act in this case excluded meetings related to hiring, firing, or promotion of
the personnel of a public governmental body. Should such a section be interpreted to include
collective bargaining sessions?
2. If Collective Bargaining Negotiations in the public sector are carried on behind closed doors, at
what point can the public exert any influence over the negotiations? Moreover, should it be
allowed to?
The Right to Strike
Facts:
On the eve of Labor Day weekend, the union called a strike of its members, preventing public employees
who normally ran ferry services to a tourist island from providing such services over the holiday
weekend. The strike was called to protest the change in the wording of a contract under negotiation after
the union believed agreement had been reached on the language. The strike was held to be in breach of an
existing collective bargaining agreement and was voluntarily ended after the weekend. Members of the
Decision:
The court held that the plaintiffs, as members of the public, were not third-party beneficiaries of the
collective bargaining agreement between the union and the public employer. To create third-party
beneficiary rights, the contract between the first and second party must convey such rights to the third
party. In this instance, the purpose of the collective bargaining agreement between the union and the
Questions for Discussion
1. Because of the public employer and the work performed by the public employee, a dispute in this
area often places the public in the position of a third party who suffers injury from the actions of
the other two parties. Why did the court not find the public a third-party beneficiary to this
contract even without an expressed intent to give such third-party rights?
2. The timing of the strike on a Labor Day weekend was obviously not without recognition by the
union as to its effect on tourism in this particular case. Could the court not have found that the
timing showed intent on the part of the union to interfere with the business relationship of the
public adversely affected by the strike?
3. Would finding a new tort action by the public against a union when injuries result from illegal
strikes be a better deterrent to such public employee strikes than statutory prohibitions that are
only enforceable through contempt of court proceedings?
New Workforce Issues
Facts:
Officer Clark Fischer was ordered by his police sergeant to remove an earring (ear stud) from his left ear
while on duty. The police chief upheld the sergeant’s order. Officer Fischer complied with the order but
grieved the issue. Officer Fischer alleged there was no written prohibition to the wearing of earrings by
police officers in either the contract or the rules by which the force operates. He pointed out, in fact, that
the chief himself wore an earring in his off-duty hours.
Anticipating a “safety” argument, Fischer pointed out that officers wear clips, glasses, pins,
nametags, and any number of items that present the same kind of risks or more severe risks. The officer
also argued that wearing an earring on duty gave him an advantage in his job when dealing with
disenfranchised youth naturally hostile to a traditional police officer.
The City, in defending the “no earring” rule, argued that it was a safety issue because in a
struggle, the earring could pierce the officer’s skull, and the city believed an earring would generate more
negative than positive reactions from most of the people the officer encountered.
Decision:
The arbitrator likened police to the military and in doing so pointed out that a “uniform appearance was
concomitant with a professional police force.” Because an earring was not explicitly included in the
description of an officer’s uniform, it was excluded. Therefore, Officer Fischer’s grievance was denied.
Questions for Discussion
1. “Stereotyping” based upon physical characteristics or appearance is the basis for prejudice. Why
do you think the arbitrator in this instance decided against the officer’s right to wear an earring?
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2. Is there a need for police to have a different image from the paramilitary image uniform projects?
CHAPTER 3: EXERCISE
Students can contact their local or state officials and find out what the rules are for public sector
employees collective bargaining in their city or state. Contact labor organizations which represent public
employees and ask them for their opinion on the following:
1. During hard economic times when tax revenues are dropping for local and state governments,
what sacrifices are your members likely to take to help the local or state government?