A reconsideration and Empirical Evaluation of Wellington`s and Winter`s The Unions and Cities.

Abstract

Comparative Labor Law and Policy JournalWinter 2013Public Sector Collective Bargaining and the Distortion of Democracy: Do Public SectorUnions Have “Too Much”Power?United States*251 A RECONSIDERATION AND EMPIRICAL EVALUATION OF WELLINGTON'S AND WINTER'S , THEUNIONS AND THE CITIESJeffrey H. Keefe [FNd1]Copyright (c) 2013 Comparative Labor Law and Policy Journal; Jeffrey H.KeefeUntil 1959, labor legislation in the United States largely excluded public employment from collective bargaining.One reason for this exclusion was the principle of sovereignty that a democratic government could not delegate mattersof budget to managers in the executive branch or share public authority with private external parties.[FN1] Even afterovercoming constitutional obstacles, there was still a widely shared belief that public employment was different and notthe same as private employment. This premise was thoroughly explored by Wellington and Winter in The Unions and theCities. [FN2] Their treatise critically investigated whether private sector collective bargaining policy should be extendedto public employment. In particular, their greatest concern was whether public sector collective bargaining based on theprivate sector model may result in distortions of democracy that would shift governmental resources disproportionatelytoward public employee compensation and result in the over employment of economically and politically advantaged andpowerful groups of public employees. This concern rested on their analysis that the demand for public sector workerswas inelastic because public employers provided essential services that were vulnerable to strikes and other types of jobactions. Yet while they recognized there were alternatives to strikes--arbitration, fact finding, mediation, or bargainingwithout some final resolution mechanism--these processes may prove illegitimate and ineffective and they also risked theoverdependence on third parties in shaping the outcomes of bargaining. Another concern addressed by Wellington andWinter was the scope of bargaining. What subjects could be appropriately bargained by the public employer? The relat-ively broad scope of bargaining in the private sector, they feared, that if applied to the public sector, might distort anddisrupt the democratic processes and procedures *252 established in local governments, thwarting democratically de-cided policy through a labor dispute with an organized minority. While Wellington and Winter carefully analyzed their concerns, there was little if any empirical evidence available tothem. [FN3] Instead, they largely relied on theoretical analyses, case studies, and legal decisions. In contrast, today wecan rely on fifty years of evidence to evaluate the concerns they raised and the advice they provided. The researchpresented in this Article empirically investigates some of their conjectures about alternative legislative frameworks, pro-cedures, and policies that the states adopted to address the public employee collective bargaining. This research willshow that the most important decision made by each state was whether the public employer has a duty to bargain with apublic employee labor organization and that any decisions about which dispute resolution procedure, if any, were of sec-ondary importance to whether they accepted or rejected the duty to bargain.34 CLLPJ 251 Page 134 Comp. Lab. L. & Pol'y J 251© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

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