unions and public administration

university of montana

Unions and Public Administration

Deborah L Carroll

12/1/2015

List of Tables of Contents……………………………………………………………….............1

Unions and Public Administration

Unions in Public Administration…………………..……………………………………………...2

Introduction……………………………………………………………………………......2

History of Unionization…………………………………………………………………...2

The Organizing Process…………………………………………………………………………...4

Authorization Cards………………………………………………………………….........5

Demand for Recognition………………………………………………………………......5

Petitioning the NLRB…………………………………………………………………...5-6

Bargaining Units…………………………………………………………………………..6

Union Campaign Tactics………………………………………………………………..7-8

National Labor Relations Board Elections………………………………………………………..8

Collective Bargaining…………………………………………………………………………...8-9

Contract Negotiations………………………………………………………………………….9-11

Public Collective Bargaining in Montana………………………………………………………..11

Bargaining Unit Inclusions and Exclusions…………………………………………..11-12

Differences between NLRB and NFRB and Montana Law……………………………...12

BOPA’s Appropriate Bargaining Unit Requirements………………………………..13-14

Duty to Bargain in Good Faith in Montana…………………………………………..14-15

Disputes over Contract Language………………………………………………………………..16

Conclusion……………………………………………………………………………………16-17

References………………………………………………………………………………………..18

Unions and Public Administration 1

Unions in Public Administration

Introduction

Unions differ between private and public sector as well as between federal and state

entities. Due to these differences between these entities we need to understand the differences of

unionization rules to gain a comprehensive understanding of the unionization process in the

public sector, and some of the differences seen between the different entities. To begin we need

to understand how unionization began.

History of Unionization

The history of unionization began in the late 1800’s beginning with public safety

agencies according to Battaglio. With the push toward unionization in 1902, President Theodore

implemented a “gag order” preventing federal workers from lobbying and participating in

unionizing and bargaining activities. By 1912 the Lloyd-Lafollette Act was passed which gave

federal workers the right to lobby and join unions. Under this act federal workers were still

unable to bargain or negotiate for any type of labor contract with management.

The Wagner Act of 1935, “[a]lso known as the National Labor Relations Act”

(Essentials, pg. 1) “recognized private sector workers’ rights to unionize and collectively bargain

with employers” (Battaglio, pg. 246). This act also gave workers the right to gather together to

form, join, and to select their own representatives. The Wagner Act only applied to private sector

employees during this time period. It is important to understand the Wagner Act of 1935 as

public administrators so we can better oversee the negotiation process for the agencies that we

work with. The Wagner Act gave employees the right to form a union, to strike, picket, or

participate in collective bargaining. While picketing is common in private workplaces, in public

workplaces “[s]trikes and other job actions by public employees are illegal in most jurisdictions,


although thirteen states permit work stoppages by certain nonessential workers under strictly

regulated conditions” (Bowman and Kearney, pg. 218).

In 1962 Executive Order 10988 was passed granting federal workers the right to bargain

and negotiate with management (2015). In 1969 Executive Order 11491 was passed which

expanded labor rights for federal workers even farther. This executive order provided “a more

standardized framework of collective bargaining rights for federal employees, creating the

Federal Labor Relations Council (FLRC)” (Battaglio, 2015). The FLRC is responsible for

making decisions on policies and appeal reviews. In addition FLRC investigates any allegations

of unfair labor practices or disputes in the Department of labor.

“Unionization in state and local governments developed and flourished in 1960s and

1970s, some thirty years after the heyday of private-sector unionism” (Bowman and Kearney, pg.

215), and since this time they have grown exponentially in the public sector. In 1978 the Civil

Service Reform Act was implemented which made the FLRA permanent. This agency was

responsible “for overseeing labor management relations and administering alternate dispute

resolution mechanisms to resolve grievances” (Battaglio, pg. 249).

In other areas of the world unions are very established. “In Sweden, 91 percent of the

workforce belongs to unions: in the United Kingdom, 33 percent; and in Italy, 44 percent. Asia is

less heavily unionized. Japan’s unionization rate is 24 percent, and South Korea’s is around 11

percent” (Milkovich and Newman, pg. 518). As unions become more commonplace, we as

public administrators need to develop a comprehensive understanding of Labor Relations and

Unions.

The concept behind unions is that their representation will give employees’ rights that

might otherwise be denied to them, such as fair pay and job security. In many union agreements


in the public sector there are non-strike agreements in place to prevent public employees from

striking as “strikes are never permitted by police, fire fighters, emergency room workers in

public hospitals or other workers who provide essential services” (Nigro, pg. 201). Due to this

clause it is important for public administrators to work in good faith with unions to ensure

continuance of services needed to provide public value, at a reasonable cost to the tax payers.

Most states have either a partial or comprehensive collective bargaining policy with the

exception of Arizona, Louisiana, Mississippi, South Carolina, North Carolina, and Virginia, and

“each state has its own set of laws governing the formation and activities of unions” (Battaglio,

pg. 250). In these states the government employers are not required to bargain with the

employees in regards to benefits, wages, or conditions of work (Bowman and Kearney, 2014).

According to Stillman “a whole new ball game has started since unions in the public sector have

begun to operate” (pg. 187). The union’s involvement in the public bureaucracy has increased in

such a way that unions are now involved in the shaping of the inner dynamics and power of

public agencies to make employment decisions.

As public administrators with a responsibility of operating within union environments we

must educate ourselves on the different processes of union development, and the impact those

processes have in the workplace. The different staffing issues that may be bargained within a

union are “staffing levels, location of facilities, overtime and work schedules, job descriptions

and classification, seniority provisions, promotions and transfers, layoffs and terminations, hiring

pools, KSAO requirements, grievance procedures, alternative dispute resolution procedures,

employment discrimination protections, and very important, pay and benefits” (Heneman, 2009).

The following information provides us with the knowledge and expertise to participate

and understand unions in public administration, beginning with the organizing process of


unionizing and the steps that are involved with this process. Due to the growth of unions in the

public sector it has become imperative to understand the union process, and its effect on public

administration and public programs. As public administrators we must understand the process of

union workplace, National Labor Relations Board (NLRB) elections, and collective bargaining.

By understanding the process that unions and management go through to unionize the workplace,

we will be prepared on what to expect, and how to respond to workplace changes from

unionization and the collective bargaining process.

The Organizing Process

There are several steps that first must be taken in order to begin unionization within the

workplace. These steps include signatures on authorization cards, demand of recognition,

petitioning the NLRB, NLRB elections, NLRB Conference/Preselection Hearing Issues, and

Union Campaign Tactics. Due to the differences in state and federal processes, public versus

private unionization, union and negotiation rules may be different depending on what state or

local you are in, or whether the union is representing a public or private workplace.

Authorization Cards

When a union is attempting to organize within a workplace they must first determine if

there is strong enough interests amongst the workers. This process is done by using authorization

cards, these are cards workers must sign to show their interest in unionizing. The signed

authorization cards must consist of at least 30 percent of the workers in order for an election

through the NLRB to occur.

Demand for Recognition

Once a union has enough signed authorization cards they approach management with a

demand for recognition. A demand for recognition consists of either a letter or an in-person


meeting between the union representative and management, demanding to be recognized as the

bargaining agent for the workers. (Bogardus and Reed, 2015). If management is approached with

a demand for recognition they should refer the union representative to Human Resources (HR) or

senior management. This step is the beginning to officially unionizing the workplace. The next

step in the unionization process is to petition the NLRB.

Petitioning the NLRB

The purpose for petitioning the NLRB is to file a petition for an election if management

refuses to grant voluntary recognition (Bogardus and Reed, 2015). This is an important step for

the NLRB to evaluate the documents needed to ensure that the correct level of union interest is

present within the workplace. This is done through evaluation of the authorization cards and

petition for workers signatures. The original petition is then signed by the petitioner or

authorized representative. The petition is required to include the inclusions and exclusions of

public employees versus those with titles such as elected official, someone appointed by the

Governor, supervisor or manager, member of the board.

Once the signatures and petition has been validated and a copy of the petition has been

served upon the board by the NLRB, then the next step to union organizing is for the employer

and union representative to meet and ensure that there are no issues that may warrant a formal

hearing by the NLRB. This meeting is to resolve any remaining issues between the workplace

and the union representatives. These issues may include validity of the authorization cards or

timing of the election, “community of interest, wages, hours, fringe benefits and other working

conditions, history of collective bargaining, common supervision; common personnel policies;

extent of integration of work functions and interchange among employees affect; and desire of

the employees” (Essentials, 2015). Once the validity of the petition and the timing of elections


have been established, the makeup of the bargaining unit process begins.

Union Campaign Tactics

Some of the tactics used in the private and public sector to gain union representation can

be used by both. Individuals within a workplace may group together and decide that they want

union representation and seek that representation out in order to turn a non-union entity into a

union entity, this is referred to as inside organizing. When the union itself wants to get their

representation into the workplace they use several tactics.

These tactics include salting, which is when the union hires someone to get a job within a

workplace with the intent of acting as an inside organizer. Meetings are another tactic where the

union gathers together union supporters, as well as those who are unsure about joining a union in

order to “communicate the benefits of membership and exert peer pressure” (Bogardus and Reed,

pg. 428). There is also the use of media. This is an attempt to cause individuals to boycott a

workplace based on a perceived injustice that the union blasts on the media regarding the

workplace, to encourage union representation.

Sometimes the union will use leafleting to educate workers on the expected benefit of a

union and attempt to discredit the workplace on any information that was provided to the

workers that would make remaining union free more beneficial. Private workplaces, more than

public workplaces use picketing as a tactic. Picketing is when a group of people patrol the

entrance of the building, sometimes educating the community or patrons of the business of some

perceived inequity that the workplace is inflicting on the workers. Picketing can consist of

Workplace, Recognitional, and informal or Publicity picketing. Workplace picketing occurs

when the union is attempting to attract members, Recognitional picketing occurs when the union

wants the workplace to recognize them as the representative for the workplace for collective


bargaining purposes, and Publicity picketing is just to educate the public that a workplace is

union free.

National Labor Relations Act (NLRA)

The NLRA according to Essentials states “[i]t is declared to be the policy of the United

States to eliminate the causes of certain substantial obstructions to the free flow of commerce

and to mitigate and eliminate these obstructions when they have occurred by encouraging the

practice and procedure of collective bargaining and by protecting the exercise by workers of full

freedom of association, self-workplace, and designation of representatives of their own choosing,

for the purpose of negotiating the terms and conditions of their employment or other mutual aid

or protection” (pg. 2).

Whereas with the NLRA and Montana “NLRA: Sec. 7. [§157.] Employees shall have the

right to self-workplace, to form, join, or assist labor organizations, to bargain collectively

through representatives of their own choosing, and to engage in other concerted activities for the

purpose of collective bargaining or other mutual aid or protection, and shall also have the right to

refrain from any or all such activities except to the extent that such right may be affected by an

agreement requiring membership in a labor workplace as a condition of employment as

authorized in section 8(a)(3) [section 158(a)(3) of this title].

Collective Bargaining

“Collective bargaining [is] a formal arrangement in which representatives of labor and

management negotiate wages, benefits, and working conditions” (Bowman and Kearny, pg. 215).

Before discussing collective bargaining in the public sector it is important to understand that

private and public sector collective bargaining are somewhat different. According to Kowal

“Collective bargaining in the public sector is fundamentally different than in the private sector.


Put most simply, the government is not simply another market actor, because the government

lacks the same economic incentives as private industry. Perhaps more importantly, the

government is uniquely entrusted with the political power of the people to act for the benefit of

the entire public. To provide to a special interest group unique tools and procedures to use as

leverage to wrest that power for itself is anti-democratic and tyrannical. Finally, the public

sector collective bargaining, unlike in the private sector, permits a union political leverage over

the employer, making negotiations less than arms’ length” (2011).

The public sectors first step in the collective bargaining process is to ensure the group is

eligible for union representation. To determine this there must be a community of interest,

bargaining history, union organizing history; efficiency of agency operations, unit size and

occupational characteristic; however it does excludes supervisory employees (Battaglio, 2015).

Contract Negotiations

Contract negotiations occur after union representation has been recognized. This is part

of the collective bargaining process that requires that any issue that management and labor

negotiate over falls within the scope of bargaining. Federal and state use somewhat similar

frameworks as each item up for negotiation is separated in the different areas of bargaining.

These areas are slightly different.

The federal scope of bargaining consists of items which are separated into categories that

are nonnegotiable, permissive, and mandatory. Below we go into more detail of these categories

of federal scope of bargaining. According to Battaglio each of the federal and state scope of

bargaining is classified and must be placed in the appropriate category. The categories and their

definitions are listed below.

Nonnegotiable


1. Matters established by law, such as position classifications, pay, and the Hatch

Act enforcement which was originally established to protect local and government

workers;

2. Government wide rules and regulations;

3. Rules and regulations of an agency or primary national subdivision, with some

exceptions as provide by the Federal Relations Board Act;

4. Management rights, which includes agency mission interpretation, budgeting,

organization, number of employees, security, personnel actions, contracting out,

emergency plans, and promotions.

Permissive

1. “[N]umbers, types, and grades of employees or positions assigned to an

organizational subdivision, work project, or tour of duty” (Battaglio, pg. 259);

2. Things pertaining to technology, how the workplace performs work.

Mandatory

1. Conditions that do not fall into the above mentioned categories;

2. Procedures that management uses within their rights;

3. Employee arrangements for when management “exercises its reserved rights”;

4. Any grievance procedures that provided for “conclusion by binding arbitration”.

The state scope of bargaining (in those states that participate in unions) consist of items

which are separated into categories that are mandatory, prohibited, or permissive. Below we go

into more detail of these categories of state scope of bargaining.

Mandatory

1. State bargaining is different than federal bargaining, as state mandatory scope of


bargaining typically includes “wages, hours, and other terms and conditions of

employment” (pg. 260), whereas federal workers are not allowed to bargain over

wages and hours.

Prohibited

1. Items that are prohibited in the state scope of bargaining include items such as

civil service regulation matters of organizational mission, and items set forth in

state legislation as management rights” (pg. 260).

Permissive

1. Those items that are permissive consist of the items that are not covered under the

above categories (Battaglio, 2015).

The Wagner Act of 1935 caused an increase in unions attempting to integrate into public

entities and gain benefits for employees. In 1940 NLRB rulings “freed unions to negotiate over

employee benefits” (Milkovich and Newman, pg. 406). Due to the war being in process the

ability to gain monetary increases was limited.

There are some illegal or prohibited subjects that are not allowed to be bargained on. Due

to the Taft-Harley law that was passed in 1947 closed union shops were outlawed, and soon after

right-to-work laws emerged. Other illegal or prohibited subjects are preferential treatment to

union members, or preferential treatment due to gender, creed, or race, and closed shop clauses.

Collective Bargaining in Montana

Collective bargaining in Montana has other rules that may not be present in other states

or locals. This is due to the laws that have been implemented in Montana regarding union

representation and rules surrounding the representation. When involved in the collective

bargaining process, one has to take into considerations those items that are either inclusive or


exclusive in the bargaining unit.

Bargaining Unit Inclusions and Exclusions

The items that are inclusive to define a Public worker in the bargaining unit in Montana

under 39-31-103, Montana Code Annotated (MCA) includes the public worker (except those

excluded in section 9b), and any worker who has had their work terminated due to an “unfair

labor practice or concerted employee action” (Essentials, pg. 4). Those items that are exclusive

or is not a public worker in the bargaining unit in Montana include those who are elected

officials, someone directly appointed by the governor, supervisory and management workers,

and members of any commission that serves the state, or any state board. Sometimes those who

are a school district clerk, a school administrator, registered nurse in a health care facility, and

professional and intern engineers are exclusive.

Differences between NLRB and NLRB and Montana Law

There are some differences between the language in the NLRB, and the NLRB and

Montana Law. Due to the similarities Montana courts refer to the NLRB and federal court

precedents when making decisions in Montana cases. Montana aims to reduce any conflict and

discontent by encouraging and creating a friendly disagreement process between workers and

public employers.

In 1973 Montana joined with other states to resolve the issue of labor rights in regards to

public employees. This attempt at resolution resulted in the Public Employees Collective

Bargaining Act (Candace, 1975). Montana has since expanded their bargaining laws for their

employees. The Montana Board of Personnel Appeals (BOPA) administers and enforces

Montana’s collective bargaining law. The structure of the appeals board consists of one neutral

board member, two labor, and two management personnel, and is involved with the Montana


Department of Labor and Industry. BOPA also has hearing officers whose “decisions can be

appealed to the full Board of Personnel Appeals, Montana District courts and ultimately the

Montana Supreme Court” (Essentials, pg.3).

BOPA’s Appropriate Bargaining Unit Requirements

“The Board of Personnel Appeals [(BOPA)] is a five member quasi-judicial board

charged with providing appellate level review for matters involving the Collective Bargaining

Act for Public Employees. The Board also serves as the appellate board for grievances involving

Fish, Wildlife and Parks and Department of Transportation employees as well as wage and

classification appeals by employees of the State of Montana” (Montana Department Labor and

Industries, 2015).

The bargaining unit requirements as established by BOPA for determining if a bargaining

unit is appropriate, requires the board to consider several factors regarding the bargaining unit.

The petition for a new unit has to be filed with the BOPA board by either a group of employees

or a labor organization. Proof of at least 30 percent of the workers to be represented must have

authorization cards that have been signed within the last six months, and accompany a new unit

petition (Montana Labor and Industries, 2015). Some of the factors that the board considers

when deciding on a new unit are items such as community of interest, hours, wages, fringe

benefits, supervision, personnel policies, desires of workers, and work functions (Essential,

2015).

To file a petition for a new unit also has additional requirements. When there is only one

union representation there is no question regarding representation. Parties must agree to the new

unit and must not be within 120 days of the agreement expiring, it has been over 12 months since

the new unit petition has filed for clarification, and since an election has been held with this unit


a petition may be filed. The petition must be served on the board and the bargaining union

representative. The petition for clarification is required to include:

All names and addresses of the bargaining representative involved;

All the names and addresses of the public employer involved;

The bargaining unit identification and description;

A proposed clarification of the description of the unit;

Job classifications of each employee;

Statement as to why the petitioner wants a clarification of the unit;

Statement showing that there are no other unions currently certified to represent the

workforce.

A statement of any other relevant facts that pertain to the clarification of the unit

(Essentials, 2015).

Duty to Bargain in Good Faith in Montana

During collective bargaining in Montana the representation of the workplace, typically

the Human Resource (HR) Director, will bargain with the selected representatives of the

employee union. According to Dahlem here are five basic points that need to be taken into

consideration when conducting collective bargaining in the state of Montana. These points are:

1. An employer and an exclusive representative are both required to negotiate in good faith

over mandatory subjects of bargaining;

2. Neither party is required to make a concession;

3. Both parties are required to provide each other, upon request, with relevant information

related to mandatory subjects;

4. Except as required by law, an employer must refrain from making unilateral changes in


the terms and conditions of employment in the absence of a valid impasse or a waiver of

the right to bargain by the union; and

5. An employer may bargain only with the exclusive representative (2015).

Negotiating in good faith refers to the requirements of the union and workplace

representatives to negotiate back and forth with proposals and counter proposals, and to use their

best efforts to reach an agreement. Each party has the right to stand their ground on any issue

that they feel is appropriate and fair, and has good leverage to entice the other party to agree.

When rejecting a proposal by one party, the other must counter with an alternate proposal, this

shows both parties are making a good faith effort to reach an acceptable agreement. If either

party intentionally avoids an agreement that could have been resolved without undue hardship,

this party may be found to have been involved in surface or hard bargaining. Surface bargaining

is unlawful, whereas hard bargaining is a lawful activity.

The union has the right to request information from the employer that is “relevant to

contract administrations and negotiations between a union and employer” (Dahlem, pg. 5). There

are some instances that the employer could deny furnishing information such as requests made in

bad faith. Just as the union has the right to request information from the employer, the employer

also has the right to request information form the union. The union’s duty is equivalent to that of

the employers.

As stated, an employer must refrain from making unilateral changes in the terms and

conditions of employment in the absence of a valid impasse or a waiver of the right to bargain by

the union. A valid impasse refers to a deadlock of a decision between the union and the employer

with a failure to agree. When an impasse is met it can lead to alternate dispute resolutions

(ADR). The ADR is relatively unformal and “allows for more open dialogue between the two


parties and greater flexibility in determining the parameters of the process” (Battaglio, 2015).

Disputes over Contract Language

There will be times when management and union representatives will disagree over the

language in a union contract. When this happens there are ways that the dispute can be settled

between them. These include arbitration and mediation. Arbitration and mediation are alternate

dispute resolution (ADR) procedures that resolve disagreements between management and union

representatives when an impasse occurs. Arbitration refers to the act of a neutral third party

reviewing the evidence presented by both parties and issues a decision that is binding in court to

resolve the impasse. Mediation is the process of guiding management and union representatives

to hear each other out, and to help them to listen to the other side’s point of view. This helps to

bring about an agreement or reconciliation between the two sides.

Unionization in public organizations requires that both sides act in earnest when disputes

arise when attempting to negotiate. Union negotiation in the public workplace is very different

from union negotiations in private workplaces. A public workplace provides services to the

public in which it is located, and it is financed by public taxpayer dollars. Unions in the public

sector can only survive if management and union representatives continue to work together to

create a system that meets the needs of the workers, the workplace, and the stakeholders that

fund the public programs.

Conclusion

With the growth of unionization in the public sector it is imperative that we understand

the laws that surround unionization and collective bargaining. Not only do we as public

administrators have a responsibility to learn and apply the union processes in the public

workplace, but we are also responsible to learn the individual laws that surround the state or


local workplace. With the growth of unionization of public administration beginning in the

1912’s with “the Lloyd-La Follette Act which gave federal workers the right to unionize”

(Stillman, pg. 187), it appears that unionization is a continuing norm in public workplaces, and

may be for years to come. Having a comprehensive understanding of the union process and its

function within public administration better prepares us to actively participate in the unionization

process.

One area of concern is that as unions become more and more prominent in the public

sector, and collective bargaining continually occurs addressing wage and benefit issues, how will

the public continue to fund these increasing costs? We are in an era of one of our largest

generations reaching retirement age which is creating a reduction in tax paying citizens. Not only

will there be a reduction of tax paying citizens, but there will also be an increase in Medicare,

Social Security, and pension plan expenses. Due to these changes it will be interesting to see

what the main focus will be during collective bargaining. Will states begin to follow federal

scope of bargaining, and disallow wages to be negotiated on? It will be interesting to watch the

future changes to unions, and the benefit they will be adding to those they represent.


References

Battaglio, P.R. (2015). Public Human Resource Management. Thousand Oaks, CA: CQ Press.

Bogardus and Reed. (2015) PHR/SPHR: Professional in Human Resource Certification Deluxe Study Guide. Indianapolis, IN: John Wiley & Sons Inc.

Bowman and Kearney. (2014). State and Local Government, Ninth Edition. Boston: Wadsworth.

Dahlem, M. (2015, September). Labor, Employment, Education and Government Law Update. Presented at the meeting of Labor, Employment, Education and Government Law Update. Fairmont Hot Springs, MT.

Essentials of Labor Relations: Missoula County. Retrieved from G:\Human Resources\CBA\EssentialsofLaborRelations on December 4, 2015.

Heneman, H. G. (2009). Staffing Workplaces, Sixth Edition. Middleton, WI: McGraw-Hill/Erwin.

Kowal, T. (2011). The Differences Between Public and Private Sector Unions. Retrieved from http://unionwatch.org/the-differences-between-public-and-private-sector-unions/ on November 29, 2015.

Milkovich and Newman. (2008). Compensation, Ninth Edition. New York: McGraw-Hill.

Nigro, L.G. (2014). Chapter 7, Collective Bargaining in the Public Sector. The New Public Administration Journal.175-207.

Stillman, R II. 2010. Public Administration: Concepts and Cases, Ninth Edition. Boston: Wadsworth.

Fetscher, C. C. (1975). Negotiating with the Public: Montana’s Public Employee Collective Bargaining Act. Montana Law Review Volume 36 Issue 1 Article 5. Retrieved from http://scholarship.law.umt.edu/cgi/viewcontent.cgi?article=2118&context=mlr on December 4, 2015.

Montana Department of Labor and Industries. (2015). Public Sector Collective Bargaining. Retrieved from http://erd.dli.mt.gov/labor-standards/collective-bargaining on December 4, 2015.


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