Working Together for Public Service:Appendix G

U.S. DEPARTMENT OF LABOR
Working Together for Public Service

Appendix G
Features of a Service-Oriented Collective Bargaining Law

This section contains a collection of principles intended to be helpful to jurisdictions which desire or intend to create or amend state collective bargaining statutes. These principles are proposed, when incorporated into a statute, to encourage the beginning or development of service-oriented collective bargaining relationships that support a high performance workplace.

General Background

Basically, all of the 36 state public sector bargaining statutes protect the right to organize and bargain collectively over wages, hours and working conditions of employment, similar to the laws governing the private sector. While 23 state laws are comprehensive in coverage, other laws vary greatly as to coverage, e.g., local but not state employees; some cover only firefighters and police; still others apply only to teachers. Virtually all of the laws provide a means of determining a majority representative in an appropriate unit with exclusions for managerial or high level supervisors. The various laws have different forms of impasse resolution, from fact finding with recommendations, e.g. Florida and New York State; to binding arbitration, e.g., Iowa and Wisconsin, the limited right to strike in Ohio or Alaska.

While the Task Force saw service-oriented workplace relationships under almost every kind of legal structure, constructive collective bargaining relationships and workplace change can more easily be achieved when certain identifiable ingredients and attitudes are in place. Experience with these more productive collective bargaining relationships and several decades of experience with a variety of public bargaining laws suggest at least the following features in a bargaining law will be of significant assistance in promoting the necessary attitudes, skills and structures.

This is not intended to be a model law or even a comprehensive guide for constructing a bargaining law. Any workable statute must provide for the basic provisions of a collective bargaining relationship, such as referred to above, and respond to the local needs and history and more specific legal considerations. Individual states will find that local circumstances offer other opportunities and problems requiring attention. This document is intended to emphasize features that would support the development of service oriented relationships encouraging employee participation.

These principles seek to make the spirit, features, and practices emanating from the bargaining law focus on the parties' mutual responsibilities for effective service delivery and improvement, on structures for effective workplace partnerships and on constructive conflict resolution. Similarly, standard provisions for ensuring the preservation of the employer's mission, fair treatment and employee protections, and for protecting and adjudicating bargaining rights should all reflect these principles.

Chapter 4 refers in detail to the range of ingredients that contribute to service-focused bargaining relationships that involve employes in workplace decisions, and interested parties are referred there for further detail or explanation. Interested parties are also referred to the model law on public sector labor-management cooperation, published by The Council of State Governments.[18]

Preamble

Many statutes contain preambles that include general statements concerning the need for harmonious relationships. Notably absent, however, are references to joint or partnership-based relationships committed to excellence. While many jurisdictions carry on certain of these activities, an effective policy statement may serve to help prevent or deter established behavior patterns more common in conflictual rather than service-oriented relationships.

The preamble to a collective bargaining law can assist in clarifying these intentions by describing the obligations of the parties to include the following:

a mutual commitment to service excellence and continuous improvement
a mutual commitment to quality of work life
a mutual commitment to constructive problem solving and conflict resolution
a mutual commitment to a cooperative workplace relationship and cooperative approaches
a mutual commitment for state level labor and management leaders and neutral officials to make the necessary investments to provide resources for local parties (i.e. officials and union leaders from state agencies, counties, schools and other independent districts and cities) to gain the necessary skills and perspectives and assistance to begin and carry on effective collective bargaining relationships, workplace partnerships and resolve conflicts that inevitably arise
a mutual recognition of obligations to citizens for a constructive labor-management relationship that supports service excellence.

Provision for Putting the Statute in Place

Recognizing the importance of beginning or reinventing the structure and relationship in a constructive service-oriented manner, key labor and management leaders, should jointly acquaint themselves with public and private sector relationships that have experience with the cooperative and participative models of workplace relationships. This will provide a means of preparing key leaders for the necessary interactions and concentration on participative practices and service issues.

An initial statewide joint labor-management advisory committee, with labor, management, community and neutral leaders should be established to facilitate resolution of problems in implementation of the statute, including responsibilities to ensure a constructive beginning to the process. All parties, particularly the administrative agency, should be mindful of the importance of the impact of the early decisions on the ultimate nature of the relationship. For example, bargaining unit determinations should be substantially based on the ability of the parties to implement a service-oriented relationship and otherwise address service problems.
The joint committee should be charged with using its good offices and prestige to ensure that problems arising during initial activities, such as elections, and first contracts are handled constructively and with an eye towards the long term stability of the relationships in communities around the state.
Under the sponsorship of this Joint Committee, offer joint training to develop the necessary problem solving skills and background for the beginning and maintenance of a constructive collective bargaining system. Training should be offered in effective collaborative bargaining and contract development for key labor and management leaders in agencies, and local jurisdictions. Eventually, the training should be available for all levels of participants in bargaining. Training such as provided by the Oregon Public Employee Relations Board would be one model to follow, although there are others. Similarly, there should be arrangements for appropriate orientation of those who will later be charged with overseeing and administering the statute. Any number of delivery systems that fit the local situation could be utilized.

Incorporating Service and Participation Considerations into Other Features of a Bargaining Statute

Conflict Resolution: Parties should be encouraged to use collaborative bargaining or similar approaches. Joint training in such techniques should be accessible for all local parties in districts, agencies, counties or cities. Local joint committees should attend to this in conjunction with appropriate administrative authorities and the statewide Public Employment Relations Boards should be a helpful resource and clearing house. In general there should be extensive use of mediation and other alternative dispute resolution (ADR) procedures available.

Impasse Resolution: Final resolution of contract issues is necessary in order to focus on joint efforts towards service improvements. Therefore, it is supportive of service improvement to have effective and trusted means of resolving bargaining impasses. Impasse procedures should rely significantly on mediation and informal problem solving, and include access to training and neutral assistance. Under current fact finding and arbitration provisions of collective bargaining laws, the arbitrator is required to take into consideration several criteria. One important criteria should be the impact of the settlement on quality and excellence of the services affected.

Whatever provisions are made for the final resolution of contract disputes, they should recognize the relationship of the final closure mechanism to the ability to address service quality issues and service improvements. Where there is a relationship between traditional bargaining issues and quality of services, any third party resolution process should be sufficiently flexible to deal with those issues. Alternative dispute resolution methods, such as various forms of enhanced mediation, show promise and should be emphasized.

In the case of binding arbitration, for example, the inclusion of service quality issues and the capacity to explore service improvements should be preserved in the steps following impasse, and in the criteria for third party resolution. A far greater degree of mediation and problem solving should be employed, including the ability to provide subsequent training and neutral assistance to parties in an effort to make more constructive habitually difficult relationships into more constructive ones, and to make a special effort to preclude resorting to external, third-party adjudication. (See the Massachusetts Joint Labor Management Committee for Municipal Police and Fire Fighters referred to in Appendix D, for one example of inserting increased problem solving into impasse resolution.)

Permissive, Mandatory and Prohibited Subjects of Bargaining: Whatever the particular scope outlined in statute, parties have the ability to discuss the range of issues necessary in order to improve service outcomes. In doing so, no party would gain or give advantage through discussion of service-related issues under cooperative arrangements. Management rights clauses should be structured to allow parties to discuss all issues affecting service delivery in a manner that permits broad-based discussion and resolution of problems, while ensuring that there is not undue interference in agency mission or in the responsibilities of elected and appointed officials.

Joint Committees: In each jurisdiction (i.e. city, county, school district, transportation or utility district, etc.) where there is a contract, a joint committee consisting of top leaders in labor and management covered by contracts in that jurisdiction normally should be established according to the needs of the local parties. Its charter will include workplace problem solving and encouragement of service quality and improvement efforts. In addition to jurisdiction-wide committees, usually departmental committees would be established for major departments or groupings to ensure that labor and management leaders who can affect service delivery can do so in the relevant context. Appropriate coordination should be established among the committees within a jurisdiction or district. Arrangements for management and employee leaders selected for such committees should permit full participation.

Members of joint committees should receive appropriate training and preparation for effective participation (see above), whether through the state board or locally identified providers.

Joint Training: Training in the necessary skills should be provided for in order to ensure that parties use effective conflict resolution and problem-solving techniques, and learn to deal effectively with the intersection of service and workplace issues in the context of a collective bargaining relationship. (See Chapter 4 for a description of skills normally required or helpful to support employee participation and effective problem solving.) Training should be jointly sponsored and developed for maximum relevance, acceptance, and effectiveness.

Relation to Civil Service Systems

When designing or modifying a bargaining law, parties should examine, perhaps through the state-wide labor-management committee, how the bargaining law and state or local civil service statutes mesh. The purposes and processes of each law should provide for accommodation as opposed to rigidities. A truly effective service-oriented system requires that each of these processes expand, rather than restrict, the abilities of the parties to address impacts on service and quality of work life. The jurisdiction-wide joint committee should periodically consult with the appropriate authorities to ensure that these systems work to further the purposes of the overall labor-management relationship.

Public Employment Relations Board (PERB)

A key ingredient is an administrative agency to determine questions of representation, to regulate unfair labor practices, to administer grievance resolution and to resolve impasses. To reflect the service emphasis, the mandate and normal services of such a body should reflect this preventive and service-supporting philosophy. Recognizing that such boards have a broad range of activities, the following issues are highlighted in connection with service and promoting cooperative relationships:

Preventive Focus: Public employment relations boards should be active and funded in preventive activities and processes, not only those that respond to conflict. These would include application of, and joint training in, appropriate ADR practices and related technical assistance to help relationships between the parties develop and evolve effectively. Agency staff should be trained in these skills.

The Board should employ and encourage the use of ADR or other preventive or rapid resolution of grievances and other conflicts close to the source. Training and technical assistance, advice, and referrals and service in conflict resolution and problems solving should be available through the PERB. Joint training and mediation assistance should be provided for all first contracts, and then generally available.

Unit Determination: Unit determinations should consider the ability to cross traditional occupational lines in order to flexibly respond to changes needed in the interest of service improvements and related impact on employees. Highly fragmented or a proliferation of bargaining units should be avoided, so that the integrated nature of service delivery can be reflected, and so that a proliferation of units doesn't place the parties in duplicative negotiations or cause other problems that interfere with a mutual focus on service and efforts at cooperation.

Enforcement Activities: All parties should be assisted and encouraged in living up to their responsibilities under the law, including attention to service delivery and rights of employees. Here, as in other areas, alternative dispute resolution practices should be used to resolve differences wherever possible. Jurisdiction-wide or statewide labor-management committees might be helpful in addressing some of these issues, especially in the early going as parties gain experience. Legal enforcement, where it becomes necessary should be simple and avoid undue time and expense to the parties and the state.