Strike Free or Strike Three?

As 2012 comes to a close, most of us are hoping the New Year brings more new opportunities than it does challenges. For some, 2012 was as challenging a year as any they have had to endure. I am not so sure I would go that far in my own case, but I for one will shed no tears regarding the passage of this particular year.

Among the things about 2012 I will not miss are the personal attacks levied against me, many suggesting I am anti-union. It comes as no surprise that in a year when unions, especially those representing public employees, came under unprecedented attack from politicians, that any sentiment less than full-throated support for organized labor would be viewed as somehow suspect if not disloyal.

To be clear about this, I unequivocally and unreservedly support the right of employees to represent themselves in negotiations with their employers and bargain collectively over pay, hours and working conditions. Admittedly, my view about what constitutes a bargainable subject is not as broad as that held by some employee representatives, but I am nevertheless open to discussions about such subjects when they do not cross into the public policy domain reserved for elected officials.

I do not favor efforts by legislatures or executive branch officials to rescind or curtail bargaining rights, especially for public employees. These efforts in Wisconsin, Ohio, Indiana, Michigan and elsewhere this past year have been unsettling to say the least. What makes them unsettling is not only what they seek to accomplish — diminishing the rights of employees to bargain collectively — but also what they seek to avoid.

It should come as no surprise that some particularly cynical politicians have exempted unions representing police officers and firefighters from their proposed enactments to limit workers’ collective bargaining rights. This should serve as an important signal as to what’s wrong with current practices on both sides of the table.

Public safety employees in states with strong collective bargaining laws have in many, if not most, instances treated these employees differently all along. Even as they extended rights to representation and collective bargaining to public employees, they limited the avenues of redress available to them by making it illegal for those performing public safety work to withhold their labor through strikes.

In place of the ability to strike, these employee groups were given an alternative means of resolving disputes: binding interest arbitration. In an ideal world, redress to disinterested third parties for the resolution of disputes by equitable means with equal and enforceable effect on both parties would seem to many to be both reasonable and efficient. But the reality suggests it is very hard to tell in practice whether it works this way.

In those instances where the scope of arbitrators’ decisions is limited by certain past decisions and practices, it could be argued that the result has been dangerous wage arbitrage, which has fueled an upward and ultimately unsustainable spiral in pay and benefits. This extra cash has fueled political activism by public employee unions, which have rights to representation and free speech that far exceed those available to management representatives. In some instances, I would agree with union critics who say these activities have produced agency capture by making some political leaders and the officials they oversee more interested in and accountable to the demands of union donors than other segments of the public.

I believe public safety employees should have the right to strike, and that binding interest arbitration should become voluntary not mandatory. Giving employees the right to strike would mean that they could withhold their labor when employers do not meet their demands. But it would also mean their demands would have to look reasonable not only to the employer but the public at large, otherwise the legitimacy of any job action would rightly be questioned and the employees would risk losing public support for their cause.

Limiting the use of interest arbitration to instances in which the parties have arrived at an intractable impasse with clearly-defined and well-articulated positions refined through negotiation and mediation would ensure the parties rely on this process only as a last resort rather than relying on it to make decisions they simply find difficult or unattractive.

Firefighters in particular place a great deal of weight behind their public image. The current arrangements do not require them to risk much of their political capital when it comes to public support of their bargaining position. Their employers on the other hand lose either way. If contract negotiations reach an impasse and go to arbitration, they can be accused of foot-dragging and bad faith bargaining. If they settle too readily, employers can be accused of ineptitude or profligate spending, especially when their agencies fall on hard fiscal times as they have in recent years.

The truth is that neither side would find close public scrutiny of the bargaining process very comfortable. In California, for instance, municipal bankruptcies, fire and police pensions reforms, the defeat of tax referendums supporting fire service and Grand Jury reports questioning fire service staffing and financial management practices are regular media staples.

Giving firefighters and police the ability to strike would once again level the playing field for public employees and employers, especially if limits remained on the ability of public employees in bargaining units that are not parties to a dispute from joining a job action and refusing to cross picket lines. Without the ability to influence the outcome of disputed employment agreements in this way, “strike-free” all too easily becomes “strike three” by leaving decisions about the best interests of parties to a dispute in the hands of someone with no particular accountability to or regard for the local public interest.

Effective bargaining requires commitment from both sides. Everyone has to have some skin in the game or no one will be willing to do the hard work necessary to come to terms acceptable to all interested parties, that’s especially true when the party with the most at stake is the general public to whom both sides in public sector labor agreements must ultimately remain accountable.

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