|THE STATE EMPLOYEES ASSOCIATION OF NORTH CAROLINA, INC.|
|a 55,000+ strong lobbying force protecting the rights and improving the salaries, benefits, and working conditions of all state employees|
20 QUESTIONS AND ANSWERS
|OUTLINE OF COLLECTIVE BARGAINING CONTRACTS|
|COLLECTIVE BARGAINING CONTRACT SUMMARIES|
Federal Legislation Before Congress:
NC House bill covering local fire and police is entitled
For more information about public sector collective
Q 1. WHAT IS COLLECTIVE BARGAINING?
Collective bargaining is the process of negotiation between representatives of workers and management to determine the conditions of employment. The collectively determined agreement may cover compensation, hiring practices, layoff s, promotions, working conditions and hours, worker discipline, and benefit programs.
Technically, collective bargaining by public employees is not illegal. General Statute 95-98 nullifies certain agreements and contracts. It has the intended effect of making collective bargaining pointless. It reads:
"Any agreement, or contract, between the governing authority of any city, town, county, or other municipality, or between any agency, unit, or instrumentality thereof, or between any agency, instrumentality, or institution of the State of North Carolina, and any labor union, trade union, or labor organization, as bargaining agent for any public employees of such city, town, county or other municipality, or agency or instrumentality of government, is hereby declared to be against the public policy of the State, illegal, unlawful, void and of no effect. (1959, c. 742.)"
(See Q 20 to contrast Iowa’s law.)
G.S. 95-98 was enacted in 1959. According to one law journal article, it was "the direct result of a highly publicized effort in 1958 by the International Brotherhood of Teamsters, headed nationally by Jimmy Hoffa, to organize me mbers of the Charlotte Police Department." (p. 218)
In response, the General Assembly enacted Article 12 of Chapter 95 with four provisions, 95-97 through 95-100. 95-97 prohibited law enforcement officers and firefighters from joining unions. 95-99 made any violation of these provisions a misdemeanor punishable by imprisonment of up to two years. 95-100 made the right-to-work laws inapplicable to public employees.
In 1969, a three judge panel of the United States District Court ruled 95-97 and 95-99 in violation of rights granted by the U.S. Constitution. In 1998, the General Assembly repealed 95-97 from the books. 95-99 is invalid but remains on the books.
[See: Okun, Michael G. "Public Employee Bargaining in North Carolina: From Paternalism to Confusion." North Carolina Law Review 59 (1980): 214-30.]
Q 4. WHY ISN'T GENERAL STATUTE 95-98 UNCONSTITUTIONAL?
In two separate challenges, courts have ruled that the State of North Carolina, as sovereign, has no obligation to enter into contracts, when it chooses not to.
Q 5. WHY DO ADMINISTRATORS USE THIS LAW TO REFUSE TO MEET WITH EMPLOYEE REPRESENTATIVES?
Probably because their attorneys have provided incorrect legal interpretations, or perhaps because they prefer not to deal with employee concerns or resolve workplace conflict. Again from Okun's article (see Q. 3):
"In 1969 the Attorney General advised the Guilford County School System that under the state law the school board had 'no authority to recognize professional organizations or their representatives as bargaining agents for group or colle ctive contracts,' but that this did not preclude meetings and discussion." (p. 226)
The article notes other cases where courts have ruled "meet and confer" arrangements different in principle from collective bargaining.
Two separate articles by public policy analysts have delineated the adverse consequences of not having public sector collective bargaining. Most of these points are taken from their articles:
1. Many manager-employee problems remain unresolved.
2. Some managers feel they are placed in the conflicting role of representing their employees to management.
3. Managers are sometimes drawn into small, distracting, time-consuming disputes.
4. Some managers tend to avoid direct interaction with public employee groups and lose opportunities to foster improved relations.
The Character of Negotiations
5. Negotiations take place under conditions of unbalanced power relationships.
6. Negotiations are not eliminated in public agencies. Sometimes negotiations simply proceed outside formal channels but without formal rules.
7. Failure to negotiate group grievances can result in multiple individual grievances, choking the system of dispute resolution for everyone.
8. Failure to negotiate sometimes escalates into costly class-action lawsuits.
9. Forces negotiation of salary, working conditions, and sometimes very minor matters into the General Assembly.
10. Many intermediate-level matters are never negotiated (those which affect numerous employees but which aren't suitable for an individual grievance. Matters relating to the exercise of professional judgement are often also excluded) .
11. Negotiating with the General Assembly is less focused than negotiating with one Executive Department.
12. Low-level disputes can escalate into broader problems thereby reducing morale, increasing unnecessary turnover, and lowering productivity.
13. Conflict is fostered between departments as they vie for wages, working conditions, or other perquisites.
14. Produces inequities from one department, agency, or jurisdiction to another.
15. Suppressed conflict has negative impact on individual and organization goals.
16. Encourages a system of personal retribution against those employees who attempt to speak out on behalf of their group.
17. Encourages unnecessary privatization of public services as a means of eliminating management-employee conflict.
18. In the face of privatization, doesn't protect employee rights, including the rights of managers.
19. Doesn't protect the legal and constitutional safeguards of some classes of employees, particularly women and minorities, whose jobs are often the target of privatization.
[See: Brown, Roger G. and Rhodes, Terrel L. "Public Employee Bargaining under Prohibitive Legislation: Some Unanticipated Consequences." Journal of Collective Negotiations 20(1) (1991): 23-30.
Rhodes, Terrel L. and Brown Roger G. "Divided We Fall!--Employee Perceptions of a Legal Prohibition on Collective Bargaining: A Preliminary Look." Journal of Collective Negotiations 21(1) (1992): 1-14.]
China does not permit collective bargaining. In the old Soviet Union, there were state run labor unions, but they did not permit collective bargaining either.
In fact, after the collapse of the Soviet Union, some employees in countries formerly behind the iron curtain have hired an American professor to teach them collective bargaining under their newly privatized, capitalist system.
Collective bargaining has developed its most advanced form in the capitalist democracies of the West.
Collective bargaining is about getting an honest exchange for your labor based on your occupation, years of education, and years of experience, rather than selling your labor for less than its worth to the market. It's about banding to gether to achieve that.
There's no reason a collective bargaining agreement cannot provide for production incentives and merit pay. In fact, it is more likely these can be won through a collective bargaining contract than through the year-to-year negotiation with the General Assembly.
No one is suggesting that SEANC affiliate with a union or a national organization. SEANC is nearly as large as some national organizations already!
The literature on collective bargaining sometimes distinguishes between professional associations, professional unions, and unions. Essentially, there's not much difference in the manner in which collective bargaining is carried out.
The differences are in the culture and values of these organization types. The adoption of collective bargaining does not automatically bring about a major change in organization culture.
There are many professional associations in the U.S. that engage in collective bargaining. Their members do so willingly, because they've seen the results in better salaries, better benefits, and are able to bring professional consider ations about the workplace to the bargaining table. They've seen that mediation and arbitration can work in their favor.
Most members consider SEANC a professional association. That shouldn't change.
Through the media, we have all witnessed examples of union extremism and militancy. Sometimes these are unjustified. Sometimes they are justified because employees are fed up over long term grievances or outrageous injustices. Most o f these occurrences are in the private sector. Strikes in the public sector frequently involve teachers (and who can blame them?) Strikes by state employees are rare (See Q 11). In fact, mediation and arbitration involving state employees are rare comp ared to teachers, primarily because state employee bargaining units tend to be larger.
The fact is collective bargaining by public employees is conducted on a daily basis throughout most of the U.S. and the world. It is boring and never makes the news. The media are interested in disputes, not dispute resolutions.
Hiring people to lobby legislators is a form of collective negotiation, but it is not collective bargaining in its formal sense.
The main difference is that collective bargaining results in a legally binding contract between the parties to the bargaining (the management and the workers' organization). During the life of the agreement, neither party may unilatera lly change the terms. In addition, the workers covered by the agreement generally must vote to ratify it. Currently, only the legislature gets to vote.
It must be noted that this is a slightly idealized presentation of the situation. Currently, labor law gives employers many more rights and privileges than workers enjoy under the law. In spite of that, the relationship is more nearly equal than the relationship between state employees and legislators that exists today.
When state employees contemplate the possibility of losing all of the legal protections that they enjoy under the State Personnel Act (unsatisfactory as they are, they are still better than nothing) by a single vote in the General Assem bly, the predictability of a written, negotiated contract begins to look much more attractive. [Thanks to Peter Schledorn for the above section.]
Collective bargaining is conducted with representatives of the executive branch. Negotiations are more focused than the multiple negotiations carried out with numerous members of the General Assembly simultaneously. The General Assemb ly does not meet year round and is considering legislation to limit the length of their sessions. This may reduce further the time available to negotiate. Matters never negotiated due to time constraints have a better chance of reaching the table under collective bargaining.
Finally, collective bargaining laws usually provide for mediation and arbitration when the parties cannot agree. Mediation and arbitration are relatively inexpensive and provide a neutral avenue for resolving differences.
Most states, including NC, have laws prohibiting strikes by public employees. (One state, Ohio, does not prohibit strikes by public employees, but the law regulates the method for seeking approval to strike from the courts.)
These laws do not necessarily prevent strikes. When conditions become so bad, or when there exists a situation that is an obvious and outrageous injustice, public employees will strike.
The same is true in NC. In one study conducted between January 1968 and June 1970, there were twenty-six strikes, sick outs, slowdowns or work stoppages in NC public agencies, amounting to 10,433 lost worker-days. [See citation at Q 6. Brown & Rhodes, p. 24]
Public policy analysts contend that the prohibition against collective bargaining (G.S. 95-98) actually fosters strikes and work stoppages by preventing disputes from being resolved.
About 98% of U.S. citizens have the right to bargain collectively. Like most rights, it's not a requirement that it be exercised.
Most private sector employees were given that right by Federal Law (National Labor Relations Act) in 1935. During the 50's through the 70's over two-thirds of the states gave their public employees the right to some form of collective bargaining.
The spectrum ranges from a statutory requirement for public sector bargaining to a statutory prohibition:
One state, Florida, requires public sector bargaining.
Thirty-three other states provide for bargaining through statutes, constitutional amendments, court decisions, attorney general opinions, or some combination.
Two states, New Mexico and Maryland, extended the right to collective bargaining by executive order.
Five states—Alabama, Georgia, Kentucky, Louisiana, and Texas—provide for restricted bargaining for some employees.
Eight states—Arizona, Alaska, Colorado, Mississippi, South Carolina, Utah, Virginia, and West Virginia—have no enabling legislation. Although there is no statute, bargaining may still occur. For example, the West Virginia State Suprem e Court held that, absent state legislation, municipalities still have statutory authority to contract and be contracted with.
One state, North Carolina, is the only state to prohibit collective bargaining. NC public employees are among the 2% of the citizens in this country that don't even have the right to choose whether they want to bargain collectively.
Raleigh and Tallahassee are less than 600 miles apart, but on the topic of collective bargaining, they are at least two decades apart.
When the NC law is changed, then like almost everywhere else in the U.S., public employees can vote on whether or not they want an organization to represent them in bargaining, and if so, which organization that will be. We would have the right to choose.
[Thanks to Elizabeth McLaughlin for research on this section.]
The reasons are historical. Plantation economies required large workforces, and the plantation owners acquired their workers through the system of slavery. Slavery was maintained only through the application of considerable force and intimidation. One of the greatest fears of the Southern elite was the fear of a slave uprising. They had good reason to be afraid. They were denying liberty and justice to thousands for their own economic gain. In some regions, slaves outnumber ed free persons as many as 5 to 1. Responding to their own self-induced fears, many Southern elite became experts in the use of fear and force against others.
As plantation economies gave way to other industries, the successors of the plantation owners continued to apply the methods of fear and intimidation against employees. They saw to it that anti-unionism was preached from the pulpit and taught in the schools. When this indoctrination failed to keep employees satisfied with the injustices of the workplace, business owners resorted to force, in some instances hiring goon squads. Again, fear and force were used for the economic gain of the Southern elite.
Today, Southern workers in both the private and public sectors are haunted by this past.
Southern business owners fear collective bargaining by public employees will result in higher corporate taxes and dip into their profits. This would also degrade the ability of the Southern states to attract new private sector business from other states and other countries. Many businesses are migrating to the South because of lower taxes, incentive packages, and a non-unionized workforce. Several Southern states have recently formed an alliance to help each other attract new business and minimize competitive bidding for it.
At present, Southern states enjoy a substantial economic advantage over the rest of the U.S., simply because public employees cannot engage in collective bargaining. These business owners also fear an organized public sector will under mine the anti-union culture they have fostered for decades.
The South carries on the traditions of its past, both good and bad. The elite continue to use fear, the force of law, and force for their own economic advantage. Their strategy of uninhibited growth lines their pockets while the rest of us pay for it in lower incomes and higher personal taxes.
In NC there have been five principal motives for privatization: 1) racism, 2) the irrational belief that the private sector always does it better and cheaper, 3) the resolution of employee disputes by eliminating the employees, 4) cove ring up managerial incompetence by blaming the employees, and 5) an honest desire to save taxpayers money.
Those who are motivated by racist ideology usually hide behind other reasons. Those who have an irrational belief in the superiority of the private sector will never give public employees the benefit of the doubt anyway.
Through the privatization studies on the UNC campus and elsewhere, state employees have demonstrated time and again that the public sector can do it better and cheaper than the private sector. Anyone with the honest belief that the onl y reason to privatize is to save taxpayers money and provide higher quality service will have no quarrel with the results of these studies.
It is not in administrators' interest to privatize employees when we are already serving the public good. After all, when employees are privatized, they acquire the right to collective bargaining automatically. In fact, there are some labor attorneys in NC who believe SEANC's opposition to privatization is ill-advised. Some believe we should support the full privatization of public services.
In other states, privatization has been used to oppose unions and undermine the salaries and benefits employees acquired through collective bargaining. In NC, privatization was implemented without the existence of unions during a perio d when the economy was booming and public employee salaries and benefits were already well below the private sector. If we’re going to have privatization, why not put privatization on the negotiating table?
Collective bargaining is an effective dispute resolution tool. The long-standing disputes between some groups of state employees and administrators could have been resolved long ago through collective bargaining.
Perhaps the real reason behind privatization, the opposition to collective bargaining, and the ridiculous refusal to meet with employee representatives is because some administrators don't want to lose their option on "let's blame the e mployees." These people have as their interest the continuation of disputes, not their resolution. (See also the section on "Privatization," Q 6.)
SEANC bylaws prohibit affiliation with a national, state, or local labor union. The bylaws say nothing about collective bargaining, although apparently at one time a parliamentarian interpreted this section of the bylaws as prohibiting SEANC from bargaining collectively.
It is, of course, General Statute 95-98 which makes it pointless for state employees to engage in collective bargaining, not the bylaws. It's not a parliamentarian's job to rule on hypothetical situations and put meanings to words that aren't on the page. However, should the law be changed, a future parliamentarian could easily reverse the prior ruling.
SEANC's attitude toward unions must be viewed in the larger context of anti-union sentiments in the South generally (See Q 13).
It is possible collective bargaining rights will be extended to all public employees by an amendment to the U.S. Constitution. Thirty-six states already permit public sector collective bargaining, and they may decide to eliminate the economic advantage the South has gained by denying these rights (see Q 13).
It is also possible collective bargaining rights will be granted to some portion of public employees through federal legislation. Congress frequently attaches strings to funding.
For example, in the last session of the U.S. House, there was a bill to grant collective bargaining rights to all firefighters and law enforcement officers in states without collective bargaining. The bill had over 200 co-sponsors. The federal government has a vested interest in ensuring that funds provided for specific purposes aren't being offset by cost-cutting by the states. They recognize that collective bargaining acts as a natural counterbalance. It is cost-effective for the federal government, less intrusive, and allows local circumstances to dictate outcomes.
If SEANC members in these categories are granted collective bargaining rights, will SEANC represent them? Or will SEANC say if you need a bargaining agent, you'll have to join some other organization?
Additionally, the U.S. has yet to approve Convention 151 of the International Labor Organization. This convention guarantees public employees the right to negotiate the conditions of their employment. This convention has been ratified by 33 countries, including the United Kingdom. The United States has ratified several of the ILO conventions but will be unable to sign this one, so long as some U.S. states deny collective bargaining to public employees.
Finally, consider the case of California. When collective bargaining legislation was enacted, the state employees association lost members to unions and has become a small player in an umbrella organization dominated by public sector unions.
The reason they lost members to unions was because they refused to see what was coming. They failed to learn about collective bargaining and to acquire the expertise to negotiate for their members.
SEANC still has an opportunity to get ahead of the curve, to influence the development of collective bargaining legislation, and to acquire the necessary expertise.
No. Our dues already support a good-sized staff in Raleigh. The conventional wisdom is that at present our dues are only able to support lobbying for major items, like the Comprehensive Compensation System and the Health and Retiremen t Plans.
Because the legislature is in session only a few months each year, there is not enough time to also negotiate other matters of concern to all state employees or matters of particular concern to employees of certain agencies or regions.
Collective bargaining would allow negotiations to take place through the executive branch throughout the year. This would be more efficient for SEANC's lobbyists and central office staff.
Additionally, contracts can be negotiated for periods of two years or more. For example, in the first year SEANC might negotiate an umbrella contract for all state employees, and in the second year focus on the specific needs of individual bargaining units.
Current discussions within SEANC suggest that the concerns of employees in specific agencies can only be met if those employees are willing to hire an additional lobbyist to handle just those issues. In other words, dues are more likely to go up under the current system, or employee concerns will simply not be addressed.
Legislation on collective bargaining varies from state to state. One model is to establish a board to oversee certification of bargaining units and agents or to delegate these responsibilities to an existing board. Bargaining units are usually defined by logical geographic or agency groupings.
There are rules governing petitions to the boards by organizations wishing to represent employees as bargaining agent. There are rules for conducting elections among employees to determine if they want collective bargaining, and if so, which organization will act as their agent.
Any organization winning an election becomes the bargaining agent for that bargaining unit. With some exceptions (such as political appointees), all employees in the unit are represented by that bargaining agent, whether all employees are members or not.
Under Taft-Hartley, private sector supervisors are expressly excluded from membership in collective bargaining units. In the public sector, due to the large numbers of supervisory levels and history of supervisors’ membership in employee associations, supervisors may be included in collective bargaining units.
EXCEPT: Some states do not permit supervisors to engage in collective bargaining. Some states do not permit "professional" and "non-professional" employees in the same bargaining unit, or they are permitted if a majority of each group agree.
Since NC doesn't have legislation governing collective bargaining, it's impossible to predict at this time who will be granted collective bargaining rights and how they will be grouped.
[Thanks to Elizabeth McLaughlin for research on this section.]
Last, but certainly not least, the answer is "Yes." Contrast General Statute 95-98 (see Q 2) with the Iowa statute:
"The general assembly declares that it is the public policy of the state to promote harmonious and cooperative relationships between government and its employees by permitting public employees to organize and bargain collectively; to pr otect the citizens of this state by assuring effective and orderly operations of government in providing for their health, safety, and welfare;..."
Some public policy analysts contend that the lack of collective bargaining prevents the resolution of long-term disputes within government. Thereby, government is less efficient. Taxpayers lose in dollars, lack of services, and quality of services (see Q 6).
Collective bargaining by public employees can also serve as a counter to the Southern elite's plan to profit from uninhibited growth. Granting collective bargaining rights to public employees may put a little more money in the pockets of public employees, but it will reduce growth-induced tax hikes by leveling the economic playing field between the South and the rest of the U.S. (see Q 13).