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The Limits of Collective Bargaining in Public Employment

The Limits of Collective Bargaining in Public Employment

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The
Yale
Law
Journal
Volume
78,
Number
7,
June
1969
The
Limits
of
Collective
Bargaining
in
Public
Employmentt
Harry
H.
WellingtonandRalph
K.
Winter,
Jr."
Good
lawyers
are
good
critics.
The
nature
of
their
discipline
makes
this
skill
necessary,
and
thecontent
of
their
workbrings
it
inevitablyto
bearupon
doctrines
and
concepts
laboriously
constructed
by
their
predecessors.
In
approachingquestions
involving
collective
bargaining
andpublic
employment,
union
lawyers
and
academic
commentators
have
for
someyears
been
criticizing
the
concept
of
thesovereigntyofthe
public
employer,
and
its
offspring,
the
doctrine
of the
illegal
delegation
of
power.
These
two
lawyer-made
constructs
once
hadim-posed
formidable
obstacles
to
collective
bargaining
in
the
public
sector
t
Thispaper
was
prepared
as
part
of
a
largerprojecton
Collective
Bargaining
and
Public
Employment
which
is
being
conducted
by
the
Brookings
Institution
with
financial
support
from
theFord
Foundation.
The
views
are
the authors'
and
are
not
presented
as
those
of
the
officers,
trustees,
or
staff
members
of
the
Brookings
Institution
or
ofthe
FordFoundation.
An
earlier
draft
of
this
paper
was
read
by
several
of
our
socialscience
colleagues.
We
are
grateful
to
Professors
Ward
S.
Bowman,
Herbert
Kaufman,
StanleyLebergott.Charles
E.
Lindblom,
Peter
M.
Mieszkowski
and
MartinShubikfor
their
helpful
comments.
The
writing
on
strikes
in
public
employment
is
recent
but
extensive.
See,
e.g.,
Taylor,
Public
Employment:
Strike
or
Procedures,
20
IND.
&
LAB.
RE.L.
REv.
617(1967);
Hilde-
brand,
The Public
Sector
in
FRoNTIEOF
CoLLEcrrvE
BA
GAiNING
125
(J.
Dunlop
&
N.
Chamberlain
eds.
1967);
Anderson,
Strikes
and
Impasse
Resolution
inPublic
Employ-
ment,
67
MicE.
L.
RiEv.
943(1969);
Morris,
Public
Policy
andthe
Law
Relating
to Col-lective
Bargaining
n
the
Public
Service,
22
S.W.L.J.
585
(1963);
Kheel,
Strikes
and
Public
Employment,
67
Mic.
L.
REv.
931
(1969).
The
mostinteresting
ofthe
recent
cases
onthesubjectare,
City
of
NewYork
v. DeLury,
23
N.Y.2d
175,
243
N.E.2d
128
(1963).
appeal
dismissed,
89
S.
Ct.
1223
(1969);
School
Dist.v.
Holland
Educ.Assn,
380
.Mich.
314,
157
N.V.2d
206
(1968).
Edward
J.
Phelps
Professor
of
Law,Yale
University.Professorof
Law,Yale
University.
1107
HeinOnline -- 78 Yale L.J. 1107 1968-1969
 
The
Yale
Law
Journal
Vol.
78:
1107, 1969
of
our
economy.'
But
thiscriticism,
vastly
strengthened
by
thechang-
ing
nature
of
government
employment
and
the
ever
visible
example
of
collective
bargaining
inthe
private
sector,has
led
to
a
liberalizedcommon
law
and
a
growingbody
of
enacted
law
and
has
reduced
toa
whisperthe
counsel
of
restraint
voiced
by
these
constructs.
2
Consider
sovereignty,
that
concept
so
elusive
as
an
analytical
tool,yet
so
fundamental
toall
notions
of
government.
A
law
dictionary
advises
that
it
is
the"supreme,absolute,
anduncontrollable
power
by
which
any
independent
state
is
governed
.
.
.
."3
Since
collective
bar-
gaining
in
the
private
sector
is
believed
by
many
to
be
asystem
of
countervailing
power-a
means,
that
is,
by
whichthepower
of
em-ployees
is
increasedto
offset
that
of
employers-one
might
easilysee
its
establishment
in
thepublic
sector
as
an
infringement
ongovernmentalpower
and
the
sovereignty
of
the
state
itself.Viewingthe"supreme,absolute,
and
uncontrollable"
sovereign
in
its
role
as
anemployer,therefore,
Franklin
Roosevelt
understandably
said,
"A
strike
of
public
employees
manifests
nothing
less
thanan
intent
on
theirpart
to
ob-
struct
theoperations
of
government
until
their
demandsare
satisfied.
Such
actionlooking
towardthe
paralysis
of
government
bythose
whohave
sworn
to
support
it
is
unthinkable
andintolerable."
4
But,
to
the
lawyer-critics,
sovereignty
seems
a
weak
reedwhentheprivate
analogy
is
pressed.
It
was
1836
when
a
judge
observed
that
if
collective
bargaining
in
theprivate
sectorwere
"tolerated,the
consti-
I.
For
the
flavor
of
therhetoric,
see
Railway
Mail
Ass'n
v.
Murphy,
180
Misc.
868,
875,
44
N.Y.S.2d
601,
607
(Sup.Ct.
1943),
rev'd
on
other
grounds
sub
noa.
Railway
MallAss'n
v.
Corsi,
267
App.Div.
470,
afJ'd,
293
N.Y.
315,
56
N.E.2d
721,
afj'd,
326
U.S.
88(1946):
To
tolerate
or
recognize
any
combination
of
civil
serviceem
ployees
of
the
govern-
ment
as
a
labor
organization
orunion
is
not
only
incompatiblewith
the
spirit
of
democracy,
but
inconsistentwith
every
principle
upon
which
our
government
is
founded.
Nothing
is
moredangerous
to
public
welfare
than
to
admit
that
hired
ser-
vants
of
the
State
can
dictate
to
the
government
the
hours,the
wages
andconditions
under
whichthey
will
carry
on
essential
services
vital
to
the
welfare,safety
and
secu-
rity
of
the
citizen.
To
admit
as
true
that
government
employees
havepower
to
halt
or
check
the
functions
of
government,
unless
their
demands
are
satisfied,
is
totransferto
themall
legislative,executive
andjudicial
power.
Nothing
would
be
more
ridic-
ulous.
180
Misc.
at
875.
2.
The
most
important
ofthe
"liberal"
commonlawdecisionsis
the
earlyConnecticut
case
ofNorwalk
Teachers
Ass'n
v.
Bd.
ofEduc.,
138
Conn.
269,
83
A.2d
482
(1951).
Among
the
statesrecently
enacting
comprehensive
public
employee
relations
acts
are
Massachu-
setts,
MAss.
ANN.
LAWs
ch.
149
§§
423.201-216
(1967);
and
New
York,
N.Y.
CIVIL
SERV.
LAW
§§
200-12
(McKinney
Supp.
1967).
3.
BLAcK's
LAW
DIMcTONARY
1643
(3d
ed.
1933).
4.
Letter
from
Franklin
D.
Roosevelt
toL.
C.
Stewart,
President,National
Fcd'n
of
Fed.
Employees,
Aug.
16,1937,
cited
in
Vogel,
WhatAbout
the'
Rights
of
the
Public
Employee?,
1
LAB.
L.J.
604,
612.
1108
HeinOnline -- 78 Yale L.J. 1108 1968-1969

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