UNIT DETERMINATEON AND REPRESENTATION lflfiKIflURESHISUHEJflflfiDYMEKT mssmmon FOR mummy Ph. D; mam mfg Emmi?! EERALB M Mama * 1 975 llflllllllllzfllllllljlfllflllllllIll H“ l 3 0613 This is to certify that the thesis entitled UNIT DETERMINATION AND REPRESENTATION PROCEDURES IN STATE EMPLOYMENT presented by GERALD ALAN BALFOUR has been accepted towards fulfillment of the requirements for Ph. D. degreein Social Science , ,7 J ‘ / ‘ [In x I ' 22/ K/ x" “ (9/ Major professor .'/‘ Date March A , 1976 0-7639 —C «a :1 l f V cedures are rive negotia public 93?10: iIva‘Ortant. ' the probable rights of co; ees. This dj of applying 1 Procedures t: to Strike, i: of colleen“: ABSTRACT UNIT DETERMINATION AND REPRESENTATION PROCEDURES IN STATE EMPLOYMENT By G. Alan Balfour Unit determination and employee representation pro- cedures are underpublicized but important aspects of collec- tive negotiations. As collective bargaining spreads among public employees, these areas are becoming increasingly important. This increase is likely to be intensified by the probable passage of federal legislation requiring rights of collective bargaining for state and local employ— ees. This dissertation examines the special considerations of applying unit determination and employee representation procedures to state employees. It does not cover the right to strike, impasse procedures, or the economic consequences of collective bargaining. The method consists of a review of the literature on unit determination in all sectors, the nature of state government and state government employment, civil service and merit systems, and the legal basis of bargaining. The history of unit determination is traced from the Wagner .Act, through the federal Executive Orders, to state and local legislation. Questionnaire responses were received .from.49 states concerning the operation of their unit determine: faction wi NlSCOI‘lSln, of a cross interview ; interests. in which 6: relations ‘7 The author Comittee ; POlle for lugs to a tions Of ti”. Attorney CE relationshi and the Ch a Com 'iSSiOn VIEWQd. Th through 2 1 Balfour determination policies (if any), and their stated satis- faction with them. ‘Massachusetts, New Jersey, Pennsylvania, Wisconsin, and Oregon were visited to observe the operation of a cross section of unit determination systems and to interview practitioners and representatives of various interests. The author participated in a special colloquium in which executives from six principal public employee relations boards discussed the merits of various systems. The author's work as Research Director for a ”blue-ribbon" committee charged.with formulating a new unit determination policy for Michigan enabled him to apply his general find- ings to a specific case study for Michigan. Relevant por- tions of the state constitution were read, along with Attorney General's Opinions and all state policies, rules, regulations, and procedures dealing with the employment relationship. Members of the Department of Civil Service, state employee organizations, department personnel managers, and the Chairman of the Civil Service Commission (the Commission is the state employer in Michigan) were inter- viewed. The stated needs of the parties were solicited through 2 1/2 days of public hearings conducted by the "blue-ribbon" committee, and the parties' public reactions to the recommended changes in policy were examined. The committee report was critically analyzed. The dissertation is divided into three parts. Part I deals with the factors generally influencing state employment unit determination and employee representation procedures .“ichigan c; plan. Par1 tions for c circumstanc In tion are er the scope c zation of b desires, an and cons of visors, pro; Personnel, c explored. REpr Balfour procedures. Part II applies the general findings to the Michigan case and proposes an original unit determination plan. Part III draws conclusions and produces recommenda— tions for Optimal unit determination plans under differing circumstances among states. In Part I, six factors influencing unit determina- tion are examined: the extent of the obligation to bargain, the scope of bargainable issues, requirements of standardi- zation of benefits, state administrative structure, employee desires, and the political power of the parties. The pros and cons of providing special treatment for managers, super- visors, professionals, craftsmen, state police, security personnel, confidential and higher education employees are explored. Representation policies and unit—forming mechanisms are examined, including the merits of exclusive versus ‘multiple representation, methods of determining majority status, and the degree to which units should be specified in advance. Unit determination schemes are surveyed, and the differing procedures from the five states visited are examined in depth. Part II cites the factors influencing a policy change in Michigan, and notes the peculiarities special to the state. The stated needs of the parties are discussed, and the Advisory Employment Relations Committee recommenda- tions analyzed. A proposed alternative to the statewide occupational units recommended is analyzed. , 1 that 3 nor: sentatlon e an accepta‘: vote electi units, and 1 tion of unit Balfour A trend toward statewide occupational units is noted in Part III, while limitations on their appropriate- ness in differing situations are analyzed. It is concluded that a workable policy should meet employee needs for repre— sentation at both the local and state level and operate at an acceptable financial and convenience dost to the state. Exclusive representation based on secret ballot majority vote elections, representation for supervisors in separate units, and provisions for guarding against the fragmenta- tion of units are recommended. » 4p imp UNIT DETERMINATION AND REPRESENTATION PROCEDURES IN STATE EMPLOYMENT By Gerald Alan Balfour A DISSERTATION Submitted to Michigan State University in partial fulfillment of the requirements for the degree of DOCTOR OF PHILOSOPHY College of Social Science 1975 his time, helpful . I w C ACKNOWLEDGMENT I wish to thank particularly Dr. Jack Stieber for his time, concern, expertise, and editing. They were most helpful. LIST OF TA LIST OF P I I came: ' some“ ..\.I. 1. In! E S v 2. Hi5! Affe Pr Pu Pu Fa 3- Occu; .‘iar Su; Prd Cr; St; TABLE OF CONTENTS LIST OF TABLES . LIST OF FIGURES I. GENERAL PRINCIPLES OF UNIT DETERMINATION IN STATE GOVERNMENT 1. Introduction and Statement of the Problem Parties Affected and Their Interests Scope Method 2. History of Unit Determination and Factors Affecting State Employment Private Sector History Public Employment--Federal Public Employment—~State and Local Factors Affecting State Government Employment 3. Occupations Requiring Special Consideration Managers Supervisors Professionals Craftsmen State Police Security Personnel Confidential Employees Higher Education Summary iii vi . vii ll 37 I \y 4, Rep: Crit of U C011 Cur 4. Representation Policies, Unit Determination Criteria, and Mechanisms for the Formation of Units . . . . . . . . . . . . . . . . . . . . 57 Exclusive vs. Multiple Representation Community of Interest Criteria Standards for the Formation of Units Methods for Determining Representation Status Procedures for Forming Units 5. Survey of States and Analysis of Selected Systems . . . . . . . . . . . . . . . . . . . . 7l Questionnaire Purpose Questionnaire Results Advisory Committee Reports State Visits Wisconsin Pennsylvania New Jersey Massachusetts Oregon Conclusions and Summary II. AN APPLICATION OF THE GENERAL PRINCIPLES-- THE CASE OF MICHIGAN 6. The Michigan Situation . . . . . . . . . . . . . 109 Current Michigan Situation Nature of the Michigan Problem Procedures of the Advisory Employment Relations Committee Needs of the Parties Potential Results of Alternatives iv *r1 :1). l I". III. IV, III. IV. 7. The Michigan Response Recommendations of the Advisory Employment Relations Committee Rationale Anticipated Operations of the Recommendations Anticipated Results of the Recommendations Reception of the Recommendations Action Taken on Recommendations 8. Evaluation and Analysis of the Michigan Response . . . . . . . . . . . . Evaluation of the AERC Recommendations Proposed Alternative Virtues Operation Rationale Conclusions and Recommendations GENERAL CONCLUSIONS AND RECOMMENDATIONS 9. Conclusions and Recommendations APPENDICES Questionnaire on Unit Determination . Wisconsin and Hawaiian Units . Experts Conferred with and Practitioners Visited . . Constitution of the State Of Michigan, Article XI, Section 5 . . . . . Attendance at AERC Colloquium . . Invitation to Address AERC Public Hearings Parties Appearing at AERC Public Hearings Positions of Parties by Issue . . Major Goals of Parties by Party . Hmfl'flm U 0:75;!> BIBLIOGRAPHY . . . . . . . . . . 143 175 198 213 219 220 223 225 226 229 230 232 235 M. B. Commun in Uni Regula sentat Status State 1 Rights with Pr Guttmar Structu Michiga Recogni Strengt' MlChiga} Areas 1; the 09:35 PrediCtj Unit If Preclicti Organiza PrEdicti Ypothet RECOMmen In Each Anticipa PredictE epartme ReactiOfi tatewid PrediCte 10. ll. 12. 13. 14. 15. 16. LIST OF TABLES Community of Interest Criteria to be Considered in Unit Determination Listed in the Statutes and Regulations of the Twenty-two States with Repre— sentation Procedures for State Employees . Status of Unit Determination Procedures for State Employees by State Rights of Supervisory Representation in States ‘with Procedures Guttman Scale of Variables Affecting Unit Structure . . . . . . . . . ‘Michigan Units and Organizations with Formal Recognition Strength and Location of Representation in Michigan by Organization . Areas in Which the Commission Has Superseded the Departments Prediction of Exclusive Representatives by Unit If Current Units Are Maintained . Prediction of Exclusive Representatives by Organization If Current Units Are Maintained . Prediction of Exclusive Representatives for Hypothetical Occupational Units and Their Size Substantial Contributions by Department to Recommended Units . . . . . Recommended Units Likely to Have Representation in Each Department . . . . . . . . . . . Anticipated Representatives in Recommended Units Predicted Organizations to be Dealt with at Departmental Level by Department . Reaction of Parties to AERC Recommendation of Statewide Occupational Units Predicted Coalitions in Alternative Plan by Unit vi 60 75 78 81 114 116 127 137 139 . 141 . 154 157 163 . 164 168 195 Collec Employ Presen ment R Issues with Fl Presen1 nent Re Substar Recomre Unit E: Number Example Exanwle SEHtati< Example SEDCatic LIST OF FIGURES Collective Representation Rights for State Employees, by State Present Structure of State of Michigan Employ- ment Relations for Local Working Conditions Issues: Departmental Units and Organizations with Formal Recognition Present Structure of State of Michigan Employ- ment Relations for Compensation Issues Substantial Contribution by Department to Recommended Units Unit Employees Likely to be Found in Substantial Number in Each Department . . . . . . . Example of Discussions Involving One Central Unit Example of Compensation Advisory Board Repre- sentation . . Example of Compensation Advisory Board Repre- sentation--If Coalition Fails vii 73 121 124 155 159 185 186 187 cedures ar. emphasized Hglamorous' Yet they pr The fOI'mati management 1 tion will m have the ant demands for StandardiZed the Strength Special inte influences R Similar J'ob department, t may EVen is selemed UNIT DETERMINATION AND REPRESENTATION PROCEDURES IN STATE EMPLOYMENT CHAPTER 1 INTRODUCTION AND STATEMENT OF THE PROBLEM Unit determination and employee representation pro— cedures are significant problems which are too often under- emphasized in state employment at the expense of more "glamorous" issues such as impasse procedures and strikes. Yet they profoundly influence everyday employee relations. The formation of units influences the selection of the management representative with whom the employee organiza- tion will negotiate and whether that representative will have the authority to reply to employee organization demands for local working conditions and/or employer-wide standardized benefits. It influences both the size and the strength of employee representatives and whether special interests will be represented or suppressed. It influences whether employees are grouped with others of similar job assignments or with those employed in the same department, or even whether they may be represented at all. It may even be the controlling factor in determining who is selected to represent the employees. It may influence 1 whether the the public 1 by means of Yet, not received lack of atte‘ need for uni lective repr. inetus coul: Posed federa‘. standards of I gOvemments . . w“ 2 whether the employer can operate efficiently and whether the public interest is served or whether it is subverted by means of excessive proliferation1 Of units. Yet, despite their importance, these problems have not received extensive attention at the state level. This lack of attention is made more critical by the increasing need for unit determination caused by the increasing col- lective representation of state employees. This "natural" impetus could receive even further stimulation from pro- posed federal legislation that would require minimal standards of collective bargaining for state and local government 8 . 2 Parties Affected and Their Interests Four parties are profoundly affected by the results of unit determination: state employees, state employers, employee organizations, and the public. From the employee's point of view, the unit pre- ferred would allow representation by an effective employee organization, with the employee having an influential voice in the control of that organization. Organizational 1The term "proliferation," while technically incorrect to describe an increase in the number of units, is widely used in the field as a synonym for "fragmenta- tion" and will be used as such throughout this thesis. 2Such is the intent of H.R. 8677 currently before Congress. Observors give a bill of this type a "likely chance of passing within the next few years." See Prit- chard, "Will Uncle Sam Join You at the Bargaining Table?," p. 7. effectivenes of numbers" positions ar« are dependen organization chich his si: weight or om "the same mi: he would Oppc responsible 1 'u'fllCh the 1’8; other locatic iIlZErest" Wl‘ interact wit} The l standardized tive efficiei mationg. Small nmber tive EffiCiel 0f Standardi promote labc whether the Emit), of it. EffectiVely intereStS 3‘: it “at of the il 3 effectiveness might be promoted by either the "strength of numbers in large units, or, if particular skills or positions are possessed, in small units upon which others are dependent. To promote an effective voice in the organization, the employee might prefer smaller units in which his single vote carries a proportionally greater weight or one in which the majority of employees were of "the same mind." All other considerations being equal, he would oppose units in which representatives may be responsible to many other interest groups, or those in which the representative's headquarters is based in some other location. The employee would prefer a "community of interest" with others in the unit, and the opportunity to interact with and influence his representative. The employer wishes units that will facilitate standardized application of benefits, promote administra- tive efficiency and produce peaceful and stable employee relations. For the employer this often means that a small number of large units is preferable for administra- tive efficiency and convenience, and for the application of standardized benefits. Whether such large units will promote labor peace and stability is often dependent upon whether the employees are grouped so as to share a com: munity of interest, and whether they feel they are being effectively represented, or whether they feel their interests are being submerged under another bureaucracy-- that of their chosen representative. Small units are generally 0p; more adminis1 standardizat' too, bargain uncoordinate sary. Simp favor the la achieve thrc fied in CWO a'93-31'0priate tiCLllFir. it 4 generally opposed by state employers since they lead to more administrative effort, difficulties in maintaining standardization, and the problems of whipsawing and "me too, bargaining"--unless the units can be kept small and uncoordinated enough to make their consideration unneces- sary. Simplistically, organizations3 may be said to favor the largest unit they can win in an election or achieve through voluntary agreement. This must be modi- fied in two significant respects. One, the unit must be appropriate to provide effective representation; in par- ticular, it must be structured to provide negotiations with the manager who has authority to speak for, if not bind,4 the employer on issues within the permissible scope of negotiations. If the scope of bargaining is wide, including wages and fringe benefits, organizations will want units broad enough to reach the employer with author- ity to handle such issues. If however, negotiations are limited to local or departmental working conditions, organizations may prefer units designed to enable them to deal with the official who has control over local con- ditions, usually a department head. The second major caveat to the "largest winnable unit" theory is that the 3Unless otherwise noted, "organizations" refers to employee representative organizations. 4Because of the separation of powers, the ability to bind the employer is diffused at all levels of govern- ment. desired uni not in 11336 It should t service, ar. present a It sentation. units limit necessarily there is a I The a system whj continuatior 0f quality, aforementiOn ble employee Clency is ill Vided thEy d the Possibil The Part one Cor Pies of Unit proCedures 1 analysis Of scheme in M‘ ‘ conclusions ti 5 desired unit should be one in which the organization is not in immediate and continuing danger of decertification. It should be a unit which the organization can physically service, and one in which internal discontent does not present a major obstacle to providing effective repre- sentation. This means organizations would often favor units limited either by site and/or job duties, and not necessarily be the largest "winnable" unit, especially if there is a different "winnable" unit available. The public interest in unit determination requires a system which promotes administrative efficiency, the continuation of uninterrupted services, acceptable levels of quality, the lowest possible cost consistent with the aforementioned, and one that promotes peaceful and equita- ble employee relations. The public's interest in effi- ciency is in many ways best served by large units, pro- vided they do not create unnecessary unrest or increase the possibility of strikes. Scope The dissertation is divided into three parts. Part One consists of an examination of the general princi- ples of unit determination and employee representation procedures in state government. Part Two is an intensive analysis of the attempts to change the unit determination scheme in Michigan. Part Three consists of the author's conclusions concerning various schemes of unit determina- tion and employee representation. Tc nation it problem, a be transfe nation is beginnings under the t of state Is In each sec nmity of i- rationalize. ences betwee HOIQG, and l 993 are dis: 6 To understand the factors influencing unit determi- nation it is necessary to understand the origin of the problem, and the extent to which prior experience might be transferable. To do this, the history of unit determi- nation is traced in Chapter 2 from its private sector beginnings, through the experience of the federal sector under the presidential executive orders, to the experience of state legislation dealing with local and state employees. In each sector, the criteria used in determining a come munity of interest are noted, and differences among them rationalized. To determine transferability, the differ- ences between private and public sector employment are noted, and the needs of federal, local, and state employ- ees are distinguished. Furthermore, the factors inherent in and peculiar to state government employment, including the functions of the various branches, are identified and explored. Chapter 3 examines the reasoning behind the spe- cial treatment customarily considered for eight classi- fications of employees: managers, supervisors, profes- sionals, craftsmen, state police, security personnel, confidential and state university employees. Representation policies, unit determination cri- teria, and mechanisms for the formation of units are described in Chapter 4. Also included are the merits of exclusive vs. multiple representation, community of interest criteria, standards for the formation of units, and method Ch. tion in all tion of fix of procedur .‘lassachuset Par which detai Michigan, t Service Corr: Comission': It also trac constituted formed to re 93-131on6 re: th‘dlar HEEd AERC 7 and methods for determining representation status. Chapter 5 enumerates the status of unit determina- tion in all states, and provides an analytical investiga- tion of five states representing a partial cross section of procedures: Wisconsin, Pennsylvania, New Jersey, Massachusetts, and Oregon. Part Two of the dissertation begins with Chapter 6 which details the procedures currently (1974) in effect in Michigan, the constitutional authority granted to the Civil Service Commission to control employee relations, and the Commission's stance in opposition to collective bargaining. It also traces the creation and procedures of a specially constituted Advisory Employment Relations Committee (AERC) formed to recommend a policy of unit determination and employee representation procedures suitable for the par- ticular needs of Michigan. It also describes the Michigan parties potentially affected by the recommendations of the AERC, and reports their stated needs. The recommendations of the Committee are summarized and the parties' responses are evaluated in Chapter 7. The AERC Report is evaluated and an alternative, original plan of unit determination is presented in Chapter 8. Part Three of the dissertation consists of the author's conclusions and thoughts on some of the central issues of unit determination and employee representation procedures, including limitations on the number of units, criteria for community of interest, and the treatment of supervisors. These are reported in Chapter 9. As a literature 0 such of the eral, and mu were treatis government e the legal ba rights and n To t determine wh the merits o m and E Paper articl SPEEChes by benks traCin To trace the federal eXeC as were arti The Spread t thrOUgh artil and rePOrts I W To .| deteminatil Se. 6 Appendix 2 8 Method As a starting point, the author surveyed the entire literature on unit determination in state government and much of the literature on this matter in the private, fed- eral, and municipal sectors, and in Canada. Also reviewed 'were treatises on the nature of state government and state government employment, civil service and merit systems, the legal basis for bargaining, and the representation rights and needs of various classifications of employees. To trace the origins of unit determination, and to determine what alternatives were explored, the debates on the merits of the Wagner Act were read in the Congressional Record and Legislative History. Also consulted were news— paper articles written at that time, and records of radio speeches by the principal parties to the debate, along with books tracing the history of the act and its repercussions. To trace the spread of policy to the public sector, the federal executive orders dealing with the topic were read, as were articles evaluating their wisdom, need, and impact. The spread to state and local employment was explored through articles, "blue-ribbon committee" recommendations, and reports and legislation published in the Government Employee Relations Report (GERR).5 To determine the range and incidence of state unit determination schemes, a questionnaire6 was mailed to all 5See GERR, Reference File--State and Local. 6A copy of the questionnaire is reprinted in Appendix A. states, seek nation polic weaknesses O with those p ”.‘hese questi survey, to i select five the operatic: Spent betwee: conferred wi always inclu labor I‘Elati the duty to elployee ass askEd and ob Vere fomula aSpeCts Of a representati To f unit deters]: author atteni Lansing, M. “1C 111 State anc‘l opinions £11310): 0n 9 Who 9 states, seeking information on each state's unit determi- nation policies (if any), the perceived strengths and weaknesses of such policies, and the level of satisfaction ‘with thOse policies. Returns were received from 49 states. These questionnaires were used, along with the literature survey, to identify models of unit determination, and to select five states to visit in order to observe firsthand the operation of a cross section of systems. The author spent between two and four days in each state visited and conferred with an average of eight practitioners per visit, always including the chief executive officer of the state labor relations board, the highest management official with the duty to bargain, and the heads of principal unions and employee associations. During these visits, questions were asked and observations made on how policy and decisions were formulated and enacted in the actual operation of all aspects of a system of unit determination and employee representation. To familiarize himself with the relationship between unit determination and public employment as a whole, the author attended the Great Lakes Assembly held in East Lansing, Michigan, in spring of 1973 dealing with issues in state and local government employment. To solicit’ opinions on unit determination from expert neutrals, the author, who was research director of the AERC, participated in a special colloquium held in East Lansing in fall of 1973, at which AERC members met with the executive heads (or their board of Ni setts, Micl To the author tion and At tions of tin with all s: dealing Wit Civil Sex-vi state 9311310: needs of tht O‘t’er a three sored by the aIlCES Were 11 Finc ”9d, and t1~ Derits of VE 10 (or their delegates) of the public employment relations board of New York, New York City, Pennsylvania, Massachu- setts, Michigan, and Wisconsin. To investigate intensively the Michigan situation the author read relevant portions of the state constitu- tion and Attorney General's Opinions on the unique func- tions of the branches of Michigan state government, along with all state policies, rules, regulations, and procedures dealing with the employment relationship. Members of the Civil Service Commission, Department of Civil Service, and state employee organizations were interviewed. The stated needs of the affected parties in Michigan were solicited over a three day period by means of public hearings spon- sored by the AERC in the state capital. Twenty appear- ances were made, and nineteen briefs filed. Finally, the AERC Report was analyzed and evalu- ated, and the author drew his own conclusions about the merits of various issues. It is w practic agreeme to appl 0f the ' COllect is cond- friendl: their e: not tor: majoritj COVered ham to tions wj So I Muted State Ultimately I Acez CHAPTER 2 HISTORY OF UNIT DETERMINATION AND FACTORS AFFECTING STATE EMPLOYMENT Private Sector History It is well nigh universally recognized that it is practically impossible to apply two or more sets of agreements to one unit of workers at the same time, or to apply the terms of one agreement to only a portion of the workers in a single unit. For this reason, collective bargaining means majority rule. This rule is conducive not only to agreements, but also to friendly relations. Workers find it easier to approach their employers in a spirit of good will if they are not torn by internal dissent. And employers, wherever majority rule has been given a fair chance, have dis- covered it more profitable to deal with a single group than to be harassed by a constant series of negotia- tions with rival fractions. So testified Senator Robert B. Wagner before the United States Senate in 1935 in support of Bill 1958, ultimately to be passed as the National Labor Relations Act.2 An endorsement of majority rule requires the determination of the appropriate population, or "unit," from which the majority is to be drawn. The process for 1Congressional Record, Vol. 79, Part 7, p. 7571 (74th Congress, lst Session, May 6-June 28, 1935). 249 Stat. 449; 29 U.S.C. §§151-168; FCA 29 88151-168. ll two conceri :ajority 1'! workers in posed marine dons Board The others, by C0Tigress of CIOn of Man. Vaua Spoke arguing, But are On the ( Vtongs 1 IS rig} be enla] abor bC EmpIOYmE e iS a be repre an indi\ :QplOynK Want to the rig} bill gix Intimidé of thOse 12 making this determination has been a matter of dispute from the time the Act was proposed to the present. Opposition to the majority principle grew out of two concerns in Congress. One school of thought regarded majority rule exclusive representation as injurious to workers in the minority; the other objected to the pro- posed manner of determining units by a National Labor Rela- tions Board. The principle of majority rule was opposed, among others, by the United States Chamber of Commerce, the Congress of American Industry, and the National Associa- tion of Manufacturers.3 Representative Rich of Pennsyl— vania spoke against the principle in the House debate, arguing, But are the gentlemen gaining new rights for labor? On the contrary, I think they are inflicting new wrongs upon the worker, for, if his bill is enacted, his right of self-organization and association will not be enlarged--it will be contracted. First of all, the labor board, not himself, will determine the unit of employment which is to select representatives. Unless he is a part of the majority in that unit he will not be represented by an agent of his own selection. As an individual, whether he is in a big or little unit of employment, he cannot make his own contract and sell his own labor if a majority of his fellow employees want to sell it collectively. This is not enlarging the right of self-organization or association. This bill gives fellow employees the right to coerce and intimidate their fellows in the exercise of every one of those rights. It destroys individual bargaining, takes away the right to determine their own unit of employment, and, unless you are part of the majority, the worker will have to let someone else whom he did not select sell his labor for him. 3Congressional Record, op. cit., Part 7, p. 7571. 4Ibid., Part 8, p. 9690. Senator If t ineq grea And vidu ment deal; unsc: agair of ti times makes F was quick OPPOS ing 1; When they dominance Heir Oppo quOCEd a f< CloHS Boarc 13 This type of concern was answered on its merits by Senator Wagner: If the employer deals with workers as individuals, the inequality of bargaining power between them is so great that the liberty of contract becomes a fiction. And of course in any large plant, so-called indi- vidual treatment means simply despotic rule by manage- ment alone. A second alternative, which consists in dealing with various minority groups, gives the unscrupulous employer an opportunity to play one group against another constantly. It foments in the ranks of the workers discord, suspicion, and rivalry at all times. . . . Majority rule is thus the only rule that makes collective bargaining a reality.5 From a more political perspective, Senator Wagner was quick to point out that the very organizations then opposing majority rule had been on record as favoring it when they were in control of the situation through their dominance over a company union.6 He further asserted that their opposition was for purely self-serving reasons, and quoted a former Chairman of the "Old National Labor Rela- tions Board,"7 Lloyd K. Garrison, as saying: It seemed to me last summer, as I sat on the Board and listened to these cases, quite evident that the oppo- sition to this rule came down simply to this, that the 5Radio Address, "National Labor Relations Bill,” N.B.C., May 21, 1935. Quoted in Silverberg, The Wagner Act: After Ten Years, p. 19. 6 Record, op. cit., Part 7, p. 7571. 7President Roosevelt had established a board by executive order that bore the same name as the commission authorized by the National Labor Relations Act. It was created in 1934 to give labor the protection of Section 7 (a) of the National Industrial Recovery Act. In the transi— tion period following the passage of the N.L.R.A., it came to be known as the "Old Board." For a discussion of its activities, see Madden, J. Warren, "Birth of the Board," in Silverberg, op. cit., pp. 34-42. employl doing 4 could l he cou. then I run bac propose by reac is why As diegations ers to join these alleg effECt. and Which were reclUired ti: remain Lurch No Record \’ and Of seleCting LI Senate Bil1_ HQuse: Senate Whether aPt. th the be “hit, p ‘\\‘\\\§\\ Re 9Ib 1 . oIb llIb 14 employer who opposed the rule merely wanted to avoid doing any collective bargaining at all as long as he could keep his responsibility diffused. SO long as he could say, ”I will bargain first with this group, then I will bargain with that group, and then I will run back to the first and see what they think of the proposals," and so on ad infinitum, he would end up by reaching no collective agreement at all. And that is why majority rule is opposed.8 As a corollary argument there were also extensive allegations that the passage of the Act would require work- ers to join unions.9 Proponents of the bill argued that these allegations were misunderstandings of the bill's effect, and that the status of closed shop agreements, which were not forbidden by federal law at the time, but required the consent of both parties to the contract, would remain unchanged.10 No further mention of these matters appears in the Record, and no amendment Opposing majority rule ever reached the floor. Of a more procedural nature was the process for selecting units in which a majority would be determined. Senate Bill 1958 carried the following language to the House: Senate 9 (b): The Board shall decide in each case whether, in order to effectuate the policies of this act, the unit appropriate for the purposes of collec- tive bargaining shall be the employer unit, craft unit, plant unit, or other unit.11 8Record, op. cit., Part 7, p. 7571. 91bid., p. 7673; Ibid., Part 8, p. 9710. 10Ibid., Part 8, p. 9710. llIbid., p. 9705. Tl ness was r clause prC Senators f orovision. Consid board tain t plants with ti is not power 1 create entire} board 2 The Others,14 dictating u attemts by 91's in an I Vida agreem. r6501Ved bv Dilly for th 15 The lack of criteria for determining appropriate- ness was not nearly so vehemently opposed as was the final clause providing "or other unit." Many Representatives and Senators favoring, as well as Opposed to, labor fought this provision.12 Representative Taber testified that, Consider what this provision does--it permits the board to say that the unit shall be a group in a cer- tain territory. Perhaps in that territory will be plants in which the employees are perfectly satisfied with the conditions of employment, plants where there is not the slightest excuse for trouble, but this power to bring that plant in with other plants can create a situation where these men will be forced entirely out of their rights. I do not like to see any board given power such as that. The Taber Objections reflected the concerns Of others.14 Those who favored the possibility of the Board dictating units wider than a single employer argued that attempts by large unions to organize multiple small employ- ers in an industry would be thwarted, and that industry- wide agreements would be prevented.15 This dispute was resolved by the observation that units were established only for the purpose of selecting representatives, and there was no prohibition against representatives banding together to increase the size of the negotiating unit.16 The House proposed amendments to Senate Bill 1958 lzIbid.; Ibid., p. 9710, Ibid., p. 9728. Ibid., p. 9705. 14Ibid., p. 9710. 151818., p. 9728. 13 16Ibid. and a .1013 limit put up howeve confer. with ti "other "plant This we tions 1 electic yet not unit” c and mai The to the Boar mfit: SECCIOQ whether freedor: Act. thl ECtIVe uIllC, p As p DESpite d91€8atz tive Sta 3H8 uni+ to 3881 CiSing 1 require which t3 freedOUI. tiOn tol t0 abSt; enhanci: ruinOUS 1713 18N 16 and a Joint Committee made the following recommendations: . The amendment also added a proviso designed to limit the otherwise broad connotation that might be put upon the phrase' 'Or other unit. The proviso, however, was subject to some misconstructions and the conferees have agreed that the simplest way to deal with the matter is to strike out the undefined phrase "other unit." It was also agreed to insert after "plant unit" the phrase "or subdivision thereof." This was done because the [Old] National Labor Rela- tions Board has frequently had occasion to order an election in a unit not as broad as the "employer unit," yet not necessarily coincident with the phrases "craft unit" or "plant unit"; for example, the "production and maintenance employees" of a given plant. The language finally adopted gave little direction to the Board in determining the appropriateness of the unit: Section 9 (b). The Board shall decide in each case whether, in order to assure to employees the fullest freedom in exercising the rights guaranteed by this Act, the unit appropriate for the purposes of col- lective bargaining shall be the employer unit, craft unit, plant unit, or subdivision thereof. As John Abodeely observed in evaluating this instruction, Despite the wide latitude and the importance of this delegation, Section 9 (b) contains the only affirma- tive standard to guide the Board's choice of bargain- ing units. A strict application of this standard-- "to assure to employees the fullest freedom in exer- cising the rights guaranteed by this Act"--would require the Board to allow employees any grouping which they desired. This would promote their "fullest freedom" by allowing those who wish union representa- tion to join while permitting the remaining employees to abstain from unionization. Although certainly enhancing employee freedom, such a scheme would be ruinous to long-run industrial relations stability. 17 18N.L.R.A., op. cit., note 2. Ibid., p. 10299 The rigi trolled The provide guil mzplete di; criteria on process prc' usue that management The ring Rm: 8. d€teminati craft and i tions for 1; t0 Beard d6 Worker's CC' ing Wider tl 17 The rights of the organized would effectively be con— trolled by the actions of the unorganized. The obvious inadequacy of the statutory charge to provide guidelines for determining units left virtually complete discretion in the hands of the Board to create criteria on a case-by-case basis. The "fleshing out" process proved to be a politically and emotionally charged issue that caused the Board to incur the wrath of both management and organized labor. The splitting of the CIO from the AFL was occur- ring just as the Board began to make its initial unit determinations. The division of organized labor along craft and industrial lines had a profound effect on peti- tions for unit determinations and on the parties' reactions to Board decisions. The basic question became, "Where is a worker's community of interest? Is it with all those work- ing under the same management (a plant-wide or employer- wide unit); or with those employed at the same task (a craft unit)? This question continues to be important today, and is a central issue in public sector collective bargain- ing. In proceeding to establish unit criteria by the "case law" method, the Board first faced the question of separate recognition of craft interests in the Globe 19Abodeely, The NLRB and the Appropriate Bargain- ing Unit, p. 5. the Board wanted a I smaller cr either chc language p decided th cos, the e‘ those in t] to be inc 1'. Doctrine" 1 intere3t be has been, a Clarified t In mit' it sh. impartial 01 decide the 18 Machine and Stamping'Co.20 decision of 1937. In this case the Board was confronted with rival union claims. One wanted a plant-wide industrial unit, three others wanted smaller craft-only units. The Board determined that either choice was feasible, and there was no statutory language prescribing which choice to elect. The Board decided that where alternative units were equally meritori- ous, the employees of the craft should vote separately from those in the industrial unit to determine if they wished to be included in the wider unit. This initial "Globe Doctrine" recognition of the differences in community of interest between common occupation and common management has been, and continues to be, amplified, modified, and clarified through a series of successor cases.21 In determining the appropriateness of a petitioned unit, it should be noted that the Board's charge is not an impartial one--but rather it is its responsibility to decide the issue in the best interests of the employees.22 Under this instruction the Board has applied the following 20 21See American Can 00., 13 NLRB 1252 (1939); National Tube Co., 75 NLRB 1199 (1948); American Potash & ChemicaICorp., 107 NLRB 1418 (1954); and Mallinckrodt ghemical WOrRs, Uranium Division, 162 NLRB . Note also Taft Hartley amendments establishing priorities, usually based on bargaining history, on the rights of craft units to separate representation. 22See Beal, et al., The Practice of Collective Bargaining, p. 195. 3 NLRB 294. tests of E E) Be 1% \v. Me 516 Re O\U1c~uah)hd TE Taft-Hartl of employe 9 (b) of 1: Profession unless a m in such a ‘ Imit compo: be I"apreser to members}; Cer for purPOSe tractOrS’ exclusicm 0 IEat in the 19354947, Sentation a de" .. Line SUP (who were e 19 tests of appropriateness for community of interest:23 Extent of union representation interest Bargaining history Union organizational structure Management organizational structure Methods of wage payment Regularity of employment mM-DwNO-d The National Labor Relations Act and the subsequent Taft-Hartley amendments also determined which categories of employees were to receive special treatment. Section 9 (b) of the Taft-Hartley Act prohibits the inclusion of professional employees in a unit with nonprofessionals unless a majority of the professionals vote for inclusion in such a unit. Plant guards may be included only in a unit composed exclusively of guards, and this unit may not be represented by any organization that admits non-guards to membership. Certain other groups are not considered employees for purposes of the law. These include independent con- 24 The tractors, agricultural workers, and supervisors. exclusion of supervisors was a result of a specific amend- ment in the Taft-Hartley Act. Under NLRB decisions from 1935-1947, supervisors were permitted rights of repre- sentation and bargaining. It is possible that this result was never intended in the Wagner Act. The act did not define "supervisors" specifically, but defined "employers" (who were excluded) as "any person acting as an agent of 23Ibid., pp. 194-195. 24Labor-Management Relations Act, Section 2.(3). I “I.“ an enploye that this acting in j lite Board': some exper: creation of before the supervisor} in fact, cc said to be upport of against the VlSOI‘y repn in a unit 1 ers from em But most P6 Strong lobH "return Cori The autOmokj \ 25W 26. W and th: P. 279, l 27. 28. 29, trial Rela: A‘meriCa." * 20 an employer directly or indirectly."25 It has been alleged that this language would naturally include all personnel acting in positions at or above the supervisory level.26 The Board's failure to adopt this position did permit some experience with supervisory inclusion, and with the creation of separate units of supervisors. Testimony before the Congress argued that experience showed that supervisory units were not independent, and that they were, in fact, controlled by the subordinates' union.27 This was said to be because the supervisors allegedly needed the support of the rank-and-file to pursue their demands against the employer.28 A further argument against super- visory representation was that the presence of supervisors in a unit inhibited employee free speech, preventing work- ers from exercising their fullest rights under the act. But most persuasive of all, according to Larrowe, was the strong lobbying effort of the automobile manufacturers to "return control of the supervisors to management."29 The automobile industry had experienced substantial 25 26Rains, "Collective Bargaining in the Public Sec- tor and the Need for Exclusion of Supervisory Personnel," p. 279. N.L.R.A., Section 2 (2). 27Ibid., p. 280. 281bid., p. 280. 29See Larrowe, Charles P., "A Meteor on the Indus- trial Relations Horizon: The Foreman's Association of America." unionizatio plainly fel against the The result to exclude sions have "managerial In at least sentation c A l. '. 21 unionization of supervisors during the period and managers plainly felt it inappropriate that supervisors be organized against them and not be entirely beholden to company policy. The result of these arguments was to amend the act in 1947 to exclude supervisors.3O Since 1972, however, NLRB deci- sions have questioned whether exclusion ought apply to "managerial employees" not privy to personnel decisions. In at least two instances, the Board has permitted repre- sentation of supervisors of non-personnel projects.31 Public Employment~-Federal The emergence of collective bargaining and unit determination in public employment did not occur "cleanly" as the result of a single piece of legislation. According to Harold Davey, There is nothing new about unionism among government employees. Blue-collar craftsmen working for govern- mental agencies at various levels have been repre- sented by labor organizations for many years--in some cases quite effectively. Also, in particular circum- stances, professionals and technicians have enjoyed an approximation of collective bargaining for long periods of time. 32 The first widespread incursion of formalized unit determination into public employment, however, occurred in the federal sector with the issuance of President Kennedy's 30 31See Housemen and Helpers of America, Independent, 206 NLRB No. 85 and Bell Aerospace Co., 196 NLRB No. 127. 32Davey, Contemporary Collective Bargaining, p. 341. ‘ Labor-Management Relations Act, Section 2 (3). .‘i’rn Executive was to br federal e: radimenta of agency ordered. represent; of employe possible a tion to he a unit. I Units craft, Clear employ for pu- (1) an; in Fede Cleric; evaluat ees th emPlOye majOrit inCluSi In proCedures Issues in c \3 3. 551~556. 34 35‘ 36 37 22 33 Executive Order 10988 in 1962. The purpose of the order was to bring limited rights of collective bargaining to federal employees. The provisions of the order were very rudimentary. Unit determination was left to the discretion 34 of agency heads. True exclusive representation was not ordered. Instead, "informal," "formal," and "exclusive" representation were provided, depending on the percentage 35 of employees organized in the appropriate unit. It was possible and common for more than one employee organiza— tion to have some form of acknowledged recognition within a unit. The order further provided that, Units may be established on any plant or installation, craft, functional, or other basis which will ensure a clear and identifiable community of interest among the employees concerned, but no unit shall be established for purposes of exclusive recognition which includes (1) any managerial executive, (2) any employee engaged in Federal personnel work in other than a purely clerical capacity, (3) both supervisors who officially evaluate the performance of employees and the employ- ees whom they supervise, or (4) both professional employees and nonprofessional employees unless a majority of such professional employees vote for inclusion in such unit.3 In situations where employee organizations felt aggrieved in the determination of an appropriate unit, procedures were formulated for advisory arbitration of the issues in dispute.37 The cost of such services was borne 33 Federal Register, Vol. 27, No. 13 (1962), pp. 551—556. 343.0. 10988, Section 5.(a). 35Ibid., Section 3.(a). 36Ibid., Section 6.(a). 37Ibid., Section 11. . fl": entirely by bkfling. C determinati In gene five cr particu (1) All wor (2) All or (3) All ski (h) All int tin (5) All tic The NLRB for tr outhe stru the IEIEVa dESires of 23 entirely by the agency, but the decision reached was not binding. Charles M. Rehmus, author of several unit determinations under this provision, had stated that, In general, arbitrators have identified the following five criteria as demonstrating a community of interest, particularly when several are present: (1) All of the employees involved work at a common work site. (2) All have a common supervisor at the work site or in some reasonably proximate relationship. (3) All employees in the proposed unit have a common skill or educational requirement. (4) All of the employees involved are part of an integrated work process or contribute to a con- tinuous work flow. (5) All of3§he employees have similar working condi- tions . These criteria differ from those utilized by the NLRB for the private sector39 principally in their focus on the structure of the employee-employer relationship as the relevant unit consideration, rather than on the desires of the employees. Rehmus also concluded that although federal agen- cies have "lost" well over half the awards, the arbi- trator‘s recommendations have been accepted in all but one or two minor instances.40 He implies that this deference is due to the political exigencies of the situation, barring a clearly erroneous decision on the part of the arbitrator. 38Rehmus, Arbitration of Representation and Bargain- ing Unitguestions in’Public Employment Disputes, p. 254. 39For a listing of the NLRB private sector criteria, see p. 17, supra. 40Rehmus, p. 256. The universal a as a wortht conbinatio: tion was c1 responsibil of obligati recognitior itate the g criticized agers with together wj 24 The provisions of E.O. 10988 did not meet with universal approval,41 although they were regarded by some 42 as a worthwhile step in the right direction. The hybrid combination of informal, formal, and exclusive recogni- tion was criticized for "making difficult the fixing of responsibility, the growth of leadership, and the acceptance "43 of obligations. Ironically, these multiple forms of recognition were a pro-employee policy formulated to facil- 44 The order was also itate the growth of unionization. criticized for its failure to create units in which man- agers with sufficient authority to bargain could be brought together with the employee organizations to negotiate.45 President Nixon's Executive Order 11491,46 issued in 1969, took measures to remedy those criticisms. It 41See Berger, "The Old Order Giveth Way to the New: A Comparison of Executive Order 10988 with Executive Order 11491." 42See Macy, "Employee-Management Cooperation in the Federal Service." 43 44This is the general "building block theory" that would encourage the growth of employee organizations by permitting rights of representation (and hOpefully, demon- stration of some results) before needing to achieve major- ity status--a situation presumed difficult to attain with little prior organizing experience or tradition. The per- mitting of multiple representatives was intended to encour- age participation by employees in an organization of their choice. 45 46Federal Register, Vol. 34, No. 210 (1969), pp. 17605-17615. Berger, op. cit., p. 85. Berger, pp. 80-84. an a 811011 tia: tiOn Unit 9Xt91 25 provided for true exclusive representation based on a majority of those voting in a secret ballot election in an appropriate unit.47 Timetables for phasing out informal and formal recognition (with some provisions for "grand- 48 fathering”) were provided. A middleground provision was also provided where "national consultation rights" could be accorded to an employee organization representing a "sub- stantial" number of employees in an agency where no employee organization already held exclusive recognition rights at 49 the national level. A change in the language describing an appropriate unit was intended to create units at a high enough level to reach managers with the authority to nego- tiate.50 Specifically, under the new order, A unit may be established on a plant or installation, craft, functional or other basis which will assure a clear and identifiable community of interest among the employees concerned and will promote effective dealings and efficiency of agency operations. (Emphasis addedYSI The caveat regarding "efficiency of agency opera- tions, taken with the next sentence of the section, "A unit shall not be established solely on the basis of the extent to which employees in the proposed unit have 47 48 E.O. 11491, Section 10. Ibid., Section 24. 493.0. 11491, Section 9. so 51 Berger, op. cit., p. 83. E.O. 11491, Section 10.(b). rganize a concer tion of ezployee ees, and visors a removal as an at goals of loyalty. abolishe the Assi tions59 been cri binding instead \ 26 "52 organized, can be interpreted as a reflection of a concern for an administratively inconvenient prolifera- 53 tion of low-level units. Provisions for management employees, guards, Federal non-clerical personnel employ- 54 ees, and professionals remained unchanged, while super- visors were defined55 and specifically excluded from cover- age,56 with some "grandfathered" exceptions.57 The removal of supervisors from coverage could be construed as an attempt to bring them.more into harmony with the goals of management, and to make less ambiguous their loyalty.58 Arbitration of unit determination disputes was abolished. In its place was substituted determination by the Assistant Secretary of Labor for Labor-Management Rela- tions59 (a Presidential appointee). This provision has been criticized as failing to provide outside, neutral, binding determinations of the appropriateness of units, instead still leaving ultimate authority in the hands of 52 Ibid. 53See Shaw and Clark, "Determination of Appropri- ate Bargaining Units in the Public Sector," p. 154. 54Ibid. 55Ibid., Section 2.(c). 56Ibid., Section 2.(b). 57Ibid., Section 24. 58See Shaw and Clark, op. cit., p. 159. 593.0. 11491, Section 6.(a)(l). .IIIIFkawaumn. . a *(J the e 1 r I hxon, E out of i ' Alt fOI' Davey cl E.0. fine valu enpl Unio spec unio and empl local se In the a gaining level, w paSSed 51th Em punitive. aractel t 27 the employer.60 A further order on this matter from President 6,61 Nixon, E.O. 1161 issued in 1971, finishes the phasing out of informal and formal recognition but leaves other unit formation provisions unchanged. Despite its imperfections and narrowness of scope, Davey claims that, E.O. 10988 had a catalytic impact far beyond the con- fines of the federal establishment. It was of great value in stimulating the drive for unionization among employees of state, municipal and county agencies. Union growth in these areas has been nothing short of spectacular in the period since 1962. The ferment of union%3m.has produced a rash of state legislation. Public Employment--State and Local The spread of these formalized unit determination and employee representation policies into the state and local sectors by state legislation has been uneven.63 In the absence of enabling legislation, collective bar- gaining often arose in practice, particularly at the local 64 level, without the formal protection of law. In these 60 61Federal Register, Vol. 36, No. 168 (1971), pp. 17319-173227 62 63 64There had been a flurry of state legislation passed in the years post World War II dealing with govern- ment employee relations, but these acts were mostly of a punitive nature dealing with penalties for striking. Characteristically, these laws attempted to prevent Berger, op. cit., p. 81. Davey, op. cit., p. 342. Shaw and Clark, op. cit., pp. 152-153. instant union c provide was Wis states, regions forms, 1 to spec state e1 all pub? deterni: procedu: neutral adminis1 \ wOrkers Strike, recogni. P18 of . law, Ch tiOnS \of 28 instances, units were usually determined by whatever the union could force upon management.65 The first state to provide comprehensive procedures for municipal employees 66 was Wisconsin in 1959. Since that time, more and more states, particularly those in the East and Great Lakes regions, have passed legislation.67 The coverage of the legislation has taken many forms, both in scope and in procedure. Some apply only to special groups (police, fire, teachers, municipal, state employees, etc.), while others are comprehensive of 68 all public employees in a state. The method of unit determination varies from state to state. Some possible procedures, discussed infra (see Chapter 5), include neutral agency determination,69 legislative specification,7O 71 72 administrative hearing, or Civil Service Commission edict. workers from joining unions that asserted the right to Strike, and certainly did not prescribe means for gaining recognition and forming bargaining units. A leading exam- ple of an act of this type was New York's Condon-Wadlin Law, Ch. 391, L'47. 65Shaw and Clark, op. cit., p. 152. 66Wis. Stat. Ann. e§111.70(1)-(5) (Supp. 1971). 67 68 69 70 71See Lefkowitz, The Legal Basis of Employee Rela- tions of New York State Employees. 72 AERC Report and Recommendations, p. 18. Shaw and Clark, op. cit., p. 152. As in Pennsylvania, New Jersey, and Massachusetts. As in Wisconsin and Hawaii. As in Michigan. See Part II. ‘N ’1... .Pb #- flJ. 613$ 29 In many instances, the purpose of unit determina- tion in these acts is significantly different from the purpose of the NLRA. Instead of a legislative intention to favor the formation of unions and units in accordance 73 with the wishes of employees, a more balanced approach considering also the needs of the public and state person- nel management is often dictated. In response to these 74 interests, several states have requirements, and special committees have recommended,75 that units be large enough to be administratively feasible. Factors commonly looked at in the formation of units include: 1. Community of interest, including Similarity of duties, skills, working condi- tions, and benefits. Employer's organizational structure including supervision. Distinctiveness of the function performed. Extent to which work processes are integrated. 2. Effective dealings and efficiency of operations. 3. Extent of organization. The criteria here utilized seem to draw heavily from.both the NLRB private sector precedents77 favoring 73 74E.g., New York Civil Service Law (Taylor Act), Section 207(l)(b), and Pennsylvania Public Employee Rela- tions Act, Title 43, Section 1101.604(l)(ii)(l970). 75Report of the Twentieth Century Task Force, p. 11; California Assembly AdvisoryCouncil of Public Employee Relations Report, p. 851 NLRA Preamble and Section 9.(a). 76Shaw and Clark, op. cit., pp. 164—167. 77See p. 22, supra. employee zation), structure ciency o: witnesse: previous ously "p ing tact the two cation A ers.80 fostered in 19815 bility t 1egisla! it “ODQ‘ tiOn p0 times t' demands tEther other g \ reportE 30 employee choice (bargaining history and extent of organi- zation), and the traditional federal emphasis on job structure criteria, 8 while adding the dimension of effi- ciency of operations prescribed in E.O. 11491. The dramatic growth in public employee unionism witnessed in the 1960's occurred both among those not previously represented, and by the conversion of previ- ously "professional" organizations to collective bargain- ing tactics.79 The latter occurred most noticeably among tflne two largest teachers' organizations, the National Edu— i.l.ity to the system. ‘While the focus of much of this leazgxislation was on impasse procedures and strike penalties, it nonetheless often proposed a framework for representa- tion policies and procedures for determining units. Many times the new laws were formulated in response to the d€iIIl£ands of a particular segment of public employees, e.g., teachers and/or municipal workers, and then applied to other groups of public employees.81 This sometimes led \ 78See pp. 26, 27, supra. 79Davey, op. cit., p. 341. 801bid., pp. 366-367. 1: 81Experiences of Pennsylvania and New Jersey as ePorted in personal interviews. their ov passed 2 rights 1 and fire the legi gaining state c] includec IEgisla: terms a; the Cons and are and esp] and the reporte 51, ”St 35111 Com 127, L3 31 to the acquiring of rights by groups that had not sought, or had not been able to attain organization rights, on their own.82 In other instances,83 separate statutes were passed authorizing different forms of recognition and rights for different classes of employees, such as police and fire, teachers, municipal, and state. In Michigan, the legislature passed a statute granting collective bar- gaining rights to all public employees except those in the 84 state classified civil service. Police and firemen are :included under the act for most purposes but have their own 85 leegislation for impasse procedures. State employees' teerms and conditions of employment in Michigan are under 'tkle constitutional charge of the Civil Service Commission,86 arzci are not subject to acts of the state legislature. An examination of the various unit determination arzcfl. employee representation procedures available to states, arlcil the rationale of each, requires a specification of the Par ticular factors affecting state government employment. 82Experience of New Jersey state employees as reF>Orted in personal interview. 5 83N0te. for example, GERR Reference File, Section '1'» "State and Local." 8['Michigan Public Employment Relations Act, Michi- gan Compiled Laws, Sections 423.201-423.216. 85 . Michigan P.A. 312, L.l969 as amended by P.A. 127 . L.l972. t:" 86Michigan State Constitution, Article 11, Sec- 10n 5. of pub] tions c sector. tne lit list of that di 1. 32 Factors Affecting State Government Emplgyment State government employment is, of course, a form of public employment and is influenced by the considera- tions commonly separating the public from the private sector. the literature. These differences are well reported throughout 87 Davey offers the following "skeletal" list of features common to public collective bargaining that differentiate it from its private sector counterpart: l. 88 The collective labor agreement is being negotiated with a non-profit organization in almost all instances. The government agency or department in question is performing its service as a true monopoly in most cases, that is, the service in question is not performed by any other agency, public or private, in the particular jurisdiction. The government agency's budget goes largely for employee wages and salaries, thus making any nego- tiated increases in labor costs highly visible to the legislative appropriating body and also th the true owner of the business, that is, the taxpayers. The scope of negotiations in public sector situ- ations is generally more restricted than in the private sector because many matters covered by contract in the latter are treated by statutes or ordinances in the public sector, for example, civil service classification systems at all levels of government. The personnel makeup of many government agencies is such that it is not always easy to draw lines between "management" and the "rank and file” to be represented by the union or employee organiza- tion. Bargaining on a contract to a final solution is frequently more difficult in the public sector because the test of economic strength and bar- gaining power (ultimate resort to the strike or lockout) is not available to pressure the parties into agreement. 87 88 See Wellington and Winter; Rock; Beal, et a1. Davey, op. cit., pp. 345-346. EXEER SECEO repre SEVer ment. tem ment 1 Dific: not b( agencj ity, E ting F at lee 33 7. When negotiating a contract, difficulties fre- quently arise in determining who is the employer, partially because of the fiscally dependent status of government agencies on the "third force" (legis- lative branch) for appropriations, and also because many government agencies are funded from multiple sources and levels of government. 8. The boom in unionism and collective bargaining has underlined the severe shortage of experienced and available negotiators and neutrals, a problem of grave concern to government agencies and employee organizations alike. 9. Finally, a statutory framework for public sector labor relations is nonexistent in about half the states and those states with special legislation enacted in the 1960's are discovering that these efforts can stand improvement in many cases. These differences make it difficult to transfer the extensively detailed and evaluated experience of the private sector on the matters of unit determination and employee representation. The situation is further complicated by several. factors particularly accentuated in state govern- ment. iMany states operate under the ”weak governor” sys- tem89 wiierein many agency heads are not subject to appoint- ment or' removal. These officials almost always have sig- nificant: responsibilities for employee relations, yet are not bound to the same policies as the governor or other agency lleads. This can lead to a failure to locate author- ity, anmi to inconsistent administration of benefits permit- ting POtential "whip-sawing" by employee organizations, or at 13381: discontent among those who perceive themselves disadvantaged . \ 89See Adrian, State and Local Governments, p. 191. of benef required service I program < reduce ti or agenC) instances authority officer 0 officials vick. Th to be cov and can C 0 the gener enter int emp10y€r amendment effects 0 0f “egoti 34 Partially in order to achieve some standardization of benefits, often legislatively or constitutionally required, many states have particularly strong civil service merit systems90 that attempt to apply a consistent program of employee benefits. These systems usually reduce the amount of discretion possessed by the governor or agency head in matters of employee relations. In instances where legislation has been passed to vest greater authority (or at least to centralize it) in an executive officer or board, established civil service systems and officials may try to maintain at least part of their baili- wick. This can make the rules of negotiation, the topics to be covered, and the managers to be met with unclear, and can create the potential for buckpassing. Of particular concern to employee organizations is the general lack of authority of the management team to enter into binding negotiations. What the executive employer agrees to is often subject to ratification and amendment by the state legislature, thereby diluting the effects of direct collective bargaining. This non-finality 0f negotiations, and failure to negotiate directly with the managers with final authority, is often productive of employee organization frustration. More typically, and more ccmutilonly at local levels, the lack of finality works to the advantage of employees by allowing them to reach agreement with executive representatives, and then lobby \ 90Ibid. the leg bargain ciation noted b; sentati. ations I and mili 0n lobb§ 0f colle mellowir like.95 is the ; Process , can and t0 Obtai \ 3a“ and . 35 the legislative body for additional "sweeteners" to the bargain.91 This can allegedly discourage good faith bar- gaining efforts on the part of executive management.92 Another factor complicating the negotiating pro- cess, particularly in state employment, is the presence of strong civil service of merit principle employee asso- ciations. The organizations allegedly are sometimes pro- moted by employers' desires to avoid more militant repre- l'93 sentation by forming a "company union. These associ- ations have traditionally opposed collective bargaining and militant private sector tactics, concentrating instead 94 In recent years, with the passage on lobbying efforts. of collective bargaining legislation this stance has been mellowing and many associations are becoming more union- like.95 .A.fina1 factor of importance to state government is the I>resence of federal intervention in the bargaining PrOCESS, both actual and potential. The federal government can and.‘does sometimes impose requirements on grants that certain Iminimal standards or procedures be complied with to obtain these grants, e.g. , the establishment of a merit \ 91 92 93Personal interviews with practitioners in Michi- gan and New Jersey. 94 95 Beal, et al., op. cit., p. 485. Ibid. Beal, et al., op. cit., p. 484. Ibid., p. 485. system i Health, fizensic continuj the est; for all agerial shorteni :orial c "managea staff of states,9 e'Z'Ployee praCtice their ef \ 8677 (19 36 system in a state social service agency to administer a Health, Education, and Welfare grant.96 This adds another dimension to the bargaining process. There is also the continuing call for federal pre-emption of the field, and the establishment of minimum collective bargaining rights for all public employees.97 Reform attempts to centralize and identify man- agerial authority, often in the governor, by means of shortening the ballot, placing all agencies under guberna- torial control, reducing the number of departments to a "manageable" number, and creation of an adequately financed staff of competent aides have been instituted in several states.98 Theoretically, such procedures should make employee negotiations more functional and meaningful. In practicea, most of these reforms remain unproved as to their effectiveness . 99 96Adrian, State and Local Governments, p. 83. 97See, for instance, the Clay-Perkins Bill, H.R. 8677 (19 73). 98Adrian, State and Local Governments, p. 194. 991mm. ‘ ‘u‘ 4i eonsid superv ity pe; €63. 1 least y CHAPTER 3 OCCUPATIONS REQUIRING SPECIAL CONSIDERATION Several occupational classifications are commonly considered for special treatment. They are managers, supervisors, professionals, craftsmen, state police, secur- ity personnel, confidential, and higher education employ- ees. In all unit determination schemes these employees at least warrant special examination, if not treatment. Managers There is general agreement that there should be some group of relatively high level personnel that should definitely be excluded from bargaining and "sit on the Other side of the table" as management. Problems arise, however, in determining how low this exclusion should extend in the management hierarchy and how to identify individuals belonging in the class. In general, the state would prefer the largest exclusion possible, while employ- ees might prefer a more narrow exclusion.1 At stake is -——\ 10rganizations might have competing interests on the matlFer of managerial inclusion. On the one hand, they light Wlsh as many people as possible in the unit, par- tficflarly those in positions of power and influence. 0n aSeHOtheF hand, they might wish to keep the organization pure ' as possible and not include 'bosses" with the rank‘and~file membership. 37 Cue Sta' plan an be whol who are collect . 2 lance. tenure "manage spoils way to . manager- Perform; the abse t0 8XC11 cal powe and, as exclusic 0fficial aEerial \ S?ntatio- Vldual In this Prot 4 specify w! must be e: 38 the state's need to have a sufficient team of executives to plan and direct policy and whose loyalty may be expected to be wholly to management. Many persons in state employment who are arguably managers, however, seek the protection of collective representation, contrary to private sector exper- ience.2 Ostensibly, this is because they fear that their tenure will depend on non-performance criteria. These "managers" feel they need protection from "the evils of spoils systems," and that collective representation is one way to attain it.3 The actual effects of wide and narrow managerial exclusion on "managerial loyalty" and employee performance have not been measured in state employment. In the absence of such evidence the decision of which managers to exclude must depend upon value judgments and the politi- cal power to affect legislation and its implementation, and, as such, varies from state to state. The "bredth of exclusion" possibilities range from a handful of top elected officials all the way down to the first line supervisors. In cases where the exclusion is narrow, all man- 4 agerial positions might be specified by statute. In areas 2It has generally been regarded in the private sec- tor work ethic that managers do not seek collective repre- sentation, and that they "strive to succeed on their indi- v1dual merit." h’ 3Another significant way "managers" have sought t 1? PrOtection is through the use of civil service or merit SYstems. , 4The Rules of the Michigan Civil Service Commission Specify which department heads and which of their deputies must e excluded from the state's meet and confer pro- cedures - All other employees may be included. ~. s. 15M ‘23.? .‘H - VV—__- where it definitic saecific. rn nach more private 5 according lectively Taft-Hart Chapter 2 bargainin, decisiven. Tl \ 5. tive offil major adm: (3.8. 333 6. iStraCiVe means an irectlv j exercises assiSts a: adminiStr. e#Dartmn attorneys reSpOnsib pelicy all: been mOSt‘ Chapter V 39 where it is wide, it is common to rely on Operational definitions, ranging from the very vague5 to the quite specific.6 Supervisors Supervisory representation questions have proved much more difficult than managerial questions in both the private and public sectors. The private sector experience ‘P‘m—. "5. ii according supervisors the right to choose to bargain col- lectively, the subsequent withdrawal of the right by the Taft-Hartley Act, and recent modifications were noted in Chapter 2. The public sector experience of supervisory bargaining has provided more variety of treatment,7 less decisiveness in results, and more continuing controversy. The identification and proper treatment of 5For example, the Kansas test of, ". . . any elec- tive official and any appointed officer charged by law with major administrative and management responsibilities." (S.B. 333 L. 1971, See. 75—4322(e).) 6The Nevada municipal statute describes "admin- istrative employee" thusly: "Administrative employee" means any employee whose primary duties consist of work directly related to management policies, who customarily exercises discretion and independent judgment and regularly assists an executive. In addition, it includes the chief administrative officer, his deputy and immediate assistants, department heads, their deputies and immediate assistants, attorneys, appointed officials and others who are primarily responsible for formulating and administering management policy and programs. (Chapter 650, L. 1969, Sec. 288.025) 7The experience of the states in these matters has been most varied, and there is no "general rule." See Chapter V, "The Experience of the States" for examples of various treatments. 3art; tEcri Colle 40 supervisors is everywhere in public employment a signifi- cant problem. The private sector experience in this instance is not readily transferable. State-employed supervisors, in the author's opinion, differ fundamentally in five ways: (1) They often perceive their jobs to be dependent upon the capricious actions of their politically selected superiors,8 rather than on the individual merits of their performance; (2) Supervisory positions are not as often viewed as stepping-stones to the top of the organiza- tional hierarchy; (3) Salaries are commonly determined by a specified schedule, rather than through individual bargain- ing; (4) Many employees in state government are given supervisory titles, but their work requirements do not equate with private sector supervision; and (5) Rewards and status differentials are seldom commensurate with true supervisory responsibility. These five factors com- bine to diminish the private sector attitude that collec- tive representation of supervisors is inappropriate, and weaken private sector precedents for total exclusion. Instead, a different balancing of interests may be thought necessary, with the special aspects of public sector super- vision considered. The identification of supervisors by job title is particularly difficult. The word "supervisor" is often 8This fear is diminished to some degree by the pro- tections developed for them, including merit systems and collective negotiations. 9: l‘v 41 placed in the job title instead of giving the employee a 9 The inclusion of "supervisory duties" is very raise. common in job descriptions, despite the fact that these duties often require little discretion or independent judgment. These factors result in a large number of "straw bosses" or work leaders with little independent supervisory authority. These employees' true community of interest is more properly classified with those they purport to super- vise than in some supervisory classification that might be separated or excluded for purposes of representation. The problem of identification is further compounded by the fact that in many cases in public employment, the true supervisor also carries out the same tasks (perhaps the particularly difficult ones) as those he or she supervises. These factors combine to almost always make the identification of supervisors dependent upon a definition applied on a case-by-case basis. The definition employed will customarily be derived from a description of job duties. The definition recommended in the Report of the Michigan Advisory Employment Relations Committee is repre- sentative: [Supervisors are] Individuals who as a substantial part of their work assignment, exercise independent judgment in assigning, directing, and evaluating employees, or adjust their grievances, or to effec- tively recommend such action. 9Personal interviews with state management per- sonnel. 10Michigan Advisory Employment Relations Committee Report, p. 19. 3i 1..” 1“ Ma " 42 This language is a modification of that contained in the Taft-Hartley Act, but excludes reference to "hiring and firing" which are customarily beyond the control of individuals otherwise properly classified supervisors in state employment. Other states whose definition of super- visor is strongly based on Taft-Hartley language and reads much the same as that recommended in Michigan include Hawaii, Kansas, Minnesota, Oregon, Pennsylvania, and Wis- consin. Once supervisors are identified, the problem of what form of representation to allow them arises. There is often the desire, prompted by the private sector exper- ience, to exclude supervisors entirely from representa- tion. It is possible that inclusion could create two con- flicts of interest. One, supervisors may dominate the employee organization and rise to positions of leadership, thereby perhaps stifling internal discussion; and con- versely, two, if included, there is pressure on the super- visor not to perform vigorously his management functions of evaluation and grievance processing against members of his own organization. The actual effects of such inclu- sion have again not been measured in state employment. It is clear, however, that to the extent to which the conflicts do exist, the situation produces undesirable results--unless the state wishes to control the employee 43 11 and this organization by infiltrating and coopting it, is desirable only in a very partisan sense. Finding the two potential conflicts of interest to be controlling, along with the desire to separate "an arm of management" from the rank-and-file, the total exclusion- ists divide into two schools.12 One holds that super- visors should be excluded, but that the category should be narrowly defined, and should be more or less synonymous with "managerial”--i.e., policy-making employees. This would clearly identify on what side of the table a person belonged and might help provide management with a cadre of policy makers whose loyalties and aspirations were not synonymous with those of other employees' and employee organizations'. The other school of thought holds that the cate- gory should be defined very broadly. This would have the effect of leaving a large number of workers unrepresented-- which is precisely its goal. Some practitioners argued that exclusion should be broad and reach quite low in the hierarchy because it is precisely the true ”first line" 11It was suggested to the author in personal inter- views that states often encouraged membership of both supervisors and rank-and-file employees in state associ- ations, and encouraged supervisors to attain positions of leadership in those organizations so that they might steer the organizations in a direction compatible with the state's interest. 12"Schools" are based on comments made by the prac- titioners listed in Appendix C in confidential interviews with the author. 44 supervisors, those who write performance evaluations and are the first step in the grievance procedures, that should be excluded and placed wholly on the side of management and "out of collaboration" with their subordinates. In short, they should know "which side their bread is buttered on." Total exclusion of supervisors would, however, sub— merge several interests, such as an historical precedent of representation (usually arising out of meet-and-confer pro- cedures and state employees' association membership), free- dom of choice, the need for protection, the differences in expectations of the supervisory role and privileges from the private sector, and the possibility that supervisors might have a greater community than conflict of interest with those they supervise. Among those practitioners who recommended some form of supervisory representation there was often a desire for units separate from subordinates to help reduce the above-mentioned possible conflicts of interest. If the decision to accord representation in sep- arate units is made, it becomes necessary to determine "how separate" the units should be. Several degrees of restric- tion are possible, with the greatest restrictions presuma- bly most successfully combating the alleged tendency of the supervisors' unit to be co-opted by the subordinates' 13 unit. This attempted separation is accomplished by 13The private sector experience with this problem and the reasons therefor were cited in Chapter 2. 5 II .h'd mnnmzc L-I. '_ requirir iation v hates. left it: and dis separaf superv the St that 1 With ; Each . degre. repre: unit I thwart, Subordi wish to technicé merely l \ Minneso- W [Choc in compo he Stat 3038 cit 45 requiring the supervisors' unit to be independent of affil- iation with organizations eligible to represent subordi- nates. In this situation, the needs of supervisors may be left impaired by the weakness of their representative. Possible representation schemes range from a mini- mum distinction requiring only that supervisors be in a separate unit,14 through an intermediate stage that the supervisory unit's representative must be different from 15 the subordinates' unit representative, to the requirement that the supervisory unit representative not be affiliated with any organization eligible to represent subordinates.16 Each of these schemes is expected to decrease, in greater degrees, the alleged tendency of the supervisors' unit representative to merge interests with the subordinates' unit representative. These attempts to separate interests may be thwarted in many ways, however. If the supervisors and subordinates perceive a strong community of interest and wish to be represented by the same organization, legal technicalities trying to create different interests, merely by writing words on paper, in the author's opinion 14States with this requirement are Hawaii, Alaska, Minnesota, Pennsylvania, Nebraska, South Dakota, Vermont, and Rhode Island. Data cited in this chapter are reported in composite and analyzed in Chapter 5, "Experiences of the States," infra. 15No state is currently using this option, although some cities do. 16These states are Wisconsin and New Jersey. 46 will likely fail. Where the same organization can repre- sent both units, the possibility and probability of internally coordinated goals is apparent. Where different parent organizations are required, a "straw organization" (nominally independent) can be established to win repre- sentation rights. The leaders of this organization can then caucus with the subordinates and produce the same cooperation that would have existed had the same organiza— tion been allowed to represent both. Such attempts only make more difficult the synthesizing of subordinates' and supervisors' interest--they cannot prevent it, and they do nothing to create the desired loyalty of supervisors to management. The creation of a different community of interest for supervisors goes well beyond the representa- tion units into which they are placed. To expect more from mere changes in representation procedures is asking too much. There are two basic ways the similarity of interests can be diminished. One is to create perceived differences between the groups. This can be accomplished by rewarding supervisors for the type of efforts expected of them, both 17 in financial and status differentials. The second way is 17The state of Oregon has recognized this problem and faced it squarely. According to interviews with state practitioners, an entire program of financial, status, and privilege differentials was to be instituted at the same time rights of representation for supervisors were with- drawn by changes in the state law to take effect in Novem- ber, 1973. 47 to create a different negotiation obligation for super- visors. Wisconsin and Pennsylvania adopted this approach, limiting the scope of negotiations to salaries and fringe benefits, and the degree of obligation to meet-and-confer. One last possible solution remains. Several states with procedures have made no distinction of supervisors whatever and have not prohibited their being included in the same unit with those they supervise.18 This response may be indicative of the belief in these states that what is expected of their supervisors is sufficiently different from the private sector counterparts and sufficiently akin to the treatment of subordinates to merit treating them alike. Professionals The treatment of professionals is less a problem of conflict of interest than recognition of interest. Working conditions, methods of payment, hours of work, and ethical standards all affect professionals in a fundamentally dif- ferent way from non-professionals. If professionals are grouped with non-professionals, as in a department-wide unit, their minority status in the unit may prohibit them from pressuring the selected representative into promoting their needs to the employer--they may "get sold down the river." The possibility of this happening is enhanced by 18These states are California, New York, Delaware, New Hampshire, Massachusetts, and Michigan (under its present system). 48 the differences in goals of the groups, the apparently privileged status often desired by professionals, and by the fact that they are relatively affluent compared to other state employees. For these reasons it is often desirable to create separate units for professionals, or, 19 to permit them to 73 following the private sector example, opt out of a wider unit should they so desire. The identification of professionals, while usually i not as difficult as supervisors, generally requires an operational definition applied on a case-by-case basis. _ t The Taft-Hartley definition for this purpose20 stressing the intellectual nature of the work, the use of judgment and discretion, and the requirement of knowledge of an h 19National Labor Relations Act, as amended, Sec. 9(1)) (1). 20The term ”professional employee" means-~(a) any amp loyee engaged in work (i) predominantly intellectual 2nd Varied in character as opposed to routing mental, cant—1&1, mechanical, or physical work; (ii) involving the 01—18 istent exercise of discretion and judgment in its girformance; (iii) of such a character that the output Lnod‘uced or the result accomplished cannot be standardized kt). relation to a given period of time; (iv) requiring leowledge of an advanced type in a field of science or spa-thing customarily acquired by a prolonged course of tu:?ialized intellectual instruction and study in an insti- £13010“ of higher learning or a hospital, as distinguished $111 a general academic education or from an apprentice- maul) or from training in the performance of routine mental, (1) heel, or physical processes; or (b) any employee, who the has completed the courses of specialized intellectual gr truction and study prescribed in clause (iv) of para- Suaph (a), and (ii) is performing related work under the hep err-vision of a professional person to qualify himself to (a§°tne a professional employee as defined in paragraph ~ (National Labor Relations Act, Sec. 2(12) .) advanc tent. can b1 profe: separe gr ope Prob It PEckzd r I t 49 advanced type has been widely adopted21 in state employ- ment . There are three basic ways in which professionals can be given separate representation from non- professionals: (1) Each profession can be accorded a separate unit; (2) Families of related professions can be grouped into a more manageable number of units; or (3) All professionals can be grouped in one all-inclusive tmlt. The first solution is generally favored by the professionals themselves, but may not well serve the need of the state for efficient administration by creating more negotiations and potential whip-saw pressures. The state's interest in efficiency is, however, often in com- Pet ition with its desire to recruit professionals. Since Stat: es may have difficulty recruiting and retraining pro- fes S ionals, and professionals allegedly would be unhappy about "inappropriate representation of their interests," the state must take this matter into consideration in advo cacy of unit determination. The compromise second solution could create as many prob lems as it solves. The grouping of related professions , physical therapists and nurses) reportedly is often (e _ g o bhoxious to professional sensitivities, offending the ‘\ pecking order" that may be of particular importance to \ Ba. 21Shaw and Clark, "Determination of Appropriate T:gaining Units in the Public Sector," p. 173. 50 professionals.22 This plan is generally undesirable in that it is often not endorsed by those parties whose interests it purports to represent, and could create a large number of units. The third solution is advocated by those most con- cerned with administrative efficiency. They argue that the similarities among professions create a community of interest. Hence, it is appropriate to place all of them in one unit. This is convenient for the state and argu- ably does not severely oppose the individual interests Of professionals. Further, "pecking order" problems are r'eci‘l_:l.<:ed, according to practitioners advocating this form of representation, by the avoidance of the specification that: "doctors and nurses belong together" by allowing that, ”hi 1e there are differences among groups, an overriding cottttrunity of interest requires also the inclusion of law- Yer—S , engineers, accountants, etc., and that close compari- Sons of training and importance are not being made. An extremely fundamental problem of such a unit, however, is f’ - . . . . L'l'lciting an organization to represent and serv1ce 1t.23 \ sn 22Interviews with practitioners in Wisconsin where Q11 groupings have been instituted. seh 23To date, the only organization able to win repre- alstation rights for such an all—inclusive unit (the unit 5‘er included scientific and technical employees) is the 1&1: York Civil Service Employees Association. In New EesSey, such a potential unit of all state-employed pro- s:ionals has existed for six years with no organization De - . . . tn~1:ioning to represent the entire unit. I...- -—.‘—.‘a-_|n_ unfit” nits f- amicip their i etployn sentati represe the prc Willing council for Se; tively allowir ChaPCEr YOrk’ D6 51 Craftsmen There is much private sector precedent for separate Uni ts for craftsmen,24 and ample history at the federal,25 27 levels. The representation of municipal,26 and state their interests does not seem a difficult problem in state employment. Where craftsmen have sought separate repre- 28 The separate Sent:.at::i_on they have generally received it. representation of crafts interests is made easier than in t:he professional instance by the craftsmen's general Willingness to form a single unit (e.g., a building trades Council ) .29 The accommodation of the craftsmen's desire for separate representation is also aided by their rela- tive 1y effective lobbying power resulting in legislation allowing such units . 3O \ Vers 24The private sector craft-industrial union contro- )7 was noted in Chapter 2. 25 . . . _ Pre31dent1al Executive Orders 10988 and 11491 dete r113~1I1'1ed that units may be based on crafts. 1,33 1') 26Harold Davey, Contemjorary Collective Bargain- ' e 341. 27Interviews with practitioners in Wisconsin. crafts 28States with a separate unit encompassing all include Hawaii, Wisconsin, and Pennsylvania. (1‘8.th 29Note the Wisconsin experience (reported in flork , I: 5) and the experience of many major cities (New Detroit, Cincinnati) . 30This was the case in Wisconsin. 52 State PoliCe State police are often accorded separate repre- sen tation in recognition of their differing working con- ditions, often different fringe benefits, the para-military nature of their organization, and the potential require- ment: of enforcing laws against other state employees. Two significant problems arise in according Separa te representation: (1) Should other law enforcement officials be included in the unit?; and (2) Should restric- tions be placed on which organizations are eligible to rePres ent the units? In states employing occupational units, it is not unconnnon to find a "law enforcement" unit which includes, besides state police, prison guards, park rangers, game .31 Such a unit wardens , building security personnel, etc 13 US 1.18. 11y formed because of a supposed community of interes t among those charged with enforcement of laws. This is less tyPe of unit is often desired by the state because it proliferating than to accord separate representa- tlofi for quasi-police classifications. However, these 32 Ox 0 . m1 ed units have not always been internally harmonious be u . . . . . . ca 8 e the speCial conditions requiring separate attention f or 5 hate police. such as pensions and fringe benefits, /\ States with units of this type include New York 31 32Interviews with practitioners in states with 33? '4 a f3- 0‘) "les stat qu‘ O-k ‘e-ll Sta1 org: flag Sta ASS Duh tio- 53 Further, there may not apply equally to others in the unit. is often present an esprit de corps among state policemen giving rise to an elitist feeling that to group them with "lesser" law enforcement officials would be demeaning.33 State troopers are particularly sensitive to being grouped 34 Wi th prison guards. Restrictions on organizations eligible to repre- Sent: S tate police may arise from an intention of assuring s tate police will do their duty in carrying out orders that agains t other state employees. For example, it is presumed that they would be more willing to disperse unlawful if the police representative were not affiliated Picke t S To this end, it with the pickets' employee organization. 13 some t imes recommended that no organization representing State po lice officers be allowed to affiliate with any organiz ation representing other state employees and/or S tate police employees.35 The effect of such a require- non~ again, an empirical question on which no research ment is has Vet been done. Security‘Personnel For reasons similar to prohibitions concerning t . . . . 5 ate Do lice parent organizations, 1t 18 often felt ,____\ Testimony of Michigan State Police Troopers 33 Assoc i - at ' ' Advisor E 10 ent Relations Committee jEmbl ion in y mp ym LQ hearings, Transcript, p. 26. 34Interviews with Wisconsin and Michigan practi- fiioner S 35This is the case in Pennsylvania. 54 desirable to have guards and other security personnel in separate units from other state employees that they are and to have the representative of supposed to "police," such units be unaffiliated with any organization represent- ing non-security personnel. The effects of such rules again, empirical questions on which no research has are , Yet been done. The notion of separate representation apparently derives from "common sense" and the similar Private sector prohibitions written into the Taft-Hartley Act- 36 Confidential Employees Employees privy to information of a confidential nature concerning employee relations might be placed in a conflic t of interest if allowed any form of collective representation. To surmnarily exclude them from representa- tlon . however, would leave them without protections to Which they might otherwise be rightfully entitled. A common solution to this problem for the relatively few e““fl‘o3rees to whom it applies is to automatically tie their beneEi ts to those of specified similarly-situated non- cowhrd~et1tial employees. The identification of confidential employees is generally applied on a case-by-case basis. -_\\ 36Sec. 9(b)(3) states that, "no labor organization ShaL berg: e certified as the representative of employees in a ihing unit of guards if such organization admits to Ship, or is affiliated directly or indirectly with memb at an O rganization which admits to membership employees other the n guards . " 55 It should be noted that other employees might be privy to confidential information about client records, contracts, or any of a number of matters not related to the personnel function. The rights of representation of those employees should not be abridged because of the confidentiality of the i 31' work . Higher Education Because of the semi-autonomous status of most state 1lhixrersities and colleges, their workers have often been Cons idered for separate treatment. Blue-collar.university employees have a long his- Faculty members, where tory of collective bargaining. giVen permission to engage in collective bargaining, have been more reluctant to do so, but this trend is changing. In either instance, the special consideration given these employe es derives not so much from their tasks as from the pOh‘t icel relationship between their institution and the state employer. Because of this special relationship, a community of interest is sometimes identified, with units separate from other state employees created. The units may be £111: ther fragmented by placing faculty from different schoo . . . . . . l S in the same univerSity in different units and dif- fere n‘t universities in different units.39 \ Milton Derber, et al., Collective Bargaining by 37 St t: \E’Q\G'Overnments in the Twelve Midwestern States, p. 4?. 381bid. 39This is the case in New Hampshire. 56 Summary The recognition of special interest employment classifications requires consideration in all models of unit determination. The exclusion of managers and confi- dential employees, and the separation of craftsmen have produced comparatively little dispute. 0n the other hand, the issues of identification and treatment of supervisors bring forth very difficult policy questions concerning competing interests. This is often a truly "hot" issue. Separate representation for professionals is often thought appropriate, but is also often subjected to restraint in the interest of the state to avoid multiple negotiations and whip-saw pressures. Separate representational inter- ests for state police and various quasi-police and security personnel are also often recognized and result in separate units with restrictions on affiliation with other organiza- tions. CHAPTER 4 REPRESENTATION POLICIES, UNIT DETERMINATION CRITERIA, AND MECHANISMS FOR THE FORMATION OF UNITS Representation policies, unit determination cri— teria, and the mechanisms for the formation of units vary among states. Some states with recognition procedures have exclusive representation while others have multiple. The criteria for grouping employees into units based on "com- munity of interest” vary, and different criteria can pro- duce different unit forms. The choice of "an appropriate II II unit, the "most appropriate unit, or specified units also requires scrutiny, as do methods for determining repre- sentative status. A final issue of importance in unit determination is whether units should be formed in response to petitions as they arise, or simultaneously and exhaus- tively, thereby placing a limit on their number. Exclusive vs. Multiple Representation California1 and Michigan2 currently have "meet- and-confer" employee representation procedures providing 1Government Code, Title 1, Sections 3525 to 3536. 2Civil Service Commission Employment Relations Policy: Employee Organization Recognition. 57 58 for formal recognition of state employee organizations. Many local government units throughout the country have similar provisions, as did the Federal Civil Service under the now superseded Executive Order 10988.3 In these sys- tems, the employer is not required to negotiate in good faith to reach an agreement applying to all employees in the "meet-and-confer unit." Since an attempt to reach a single agreement is not required, it is not necessary that only one representative speak for all employees, and in those jurisdictions with only meet-and-confer requirements, representation by more than one employee organization in a unit is commonly permitted. However, in collective bargaining systems there is a requirement that the employer negotiate in good faith to reach an agreement that will bind all employees in the bar- gaining unit. The private sector experience has demon- strated that such a system requires a single employee repre- sentative to negotiate with management,4 and that that organization represent all employees in the unit whether they be members of the organization or not.5 A legal question arises as to whether provision for an exclusive representative precludes employees in the unit 3E.O. 10988, Sections 3-5. 4Jay W. Waks, "The Privilege of Exclusive Recogni- tion and Minority Union Rights in Public Employment," p. 1006. 51bid., p. 1009. 59 from forming or joining an employee organization other than the exclusive representative. Eisner has argued that exclusive representation does not, in fact, cannot, be used to prohibit governmental employees' rights to assemble and petition their employer.6 Such rights are guaranteed 7 On the by the First, Fourth, and Fourteenth Amendments. other hand, while the right of government employees to form multiple representatives despite a policy of exclusive representation cannot be abridged, it is not necessary for the governmental employer to act upon the requests of a non-exclusive representative and, in fact, the employer may legally enter into an employee relations system.in which only the exclusive representative may negotiate the terms of the work relationship.8 Communityof Interest Criteria Virtually all states with procedures require unit determination based on "community of interest." The cri- teria are largely similar, with some variety appearing among states in the priority assigned. These criteria and how often they are cited are listed in Table l. The combi- nation of factors used, and the weight given to each influ- ence whether employees will be grouped with others of 6Michael J. Eisner, "First Amendment Right of Asso- ciation for Public Employee Unions Members," pp. 438—444. 7 8 Ibid., p. 440. Ibid., p. 444. 60 TABLE 1 COMMUNITY OF INTEREST CRITERIA TO BE CONSIDERED IN UNIT DETERMINATION LISTED IN THE STATUTES AND REGULATIONS OF THE TWENTY-TWO STATES WITH REPRESENTATION PROCEDURES FOR STATE EMPLOYEES Number of Times * Factor Appearing Bargaining history 6 Similar wages, hours, and/or working conditions or classification Extent of employee organization Avoidance of fragmentation Need for efficient administration Geographical location Structure of managerial authority Recommendations of the parties Requirements of standardization Desires of the employees Minimum number of people in unit Serving the public interest l-‘H N 000000 b-l-‘J—‘b U1 *Many statutes list more than one factor. 61 similar classifications, or work sites, and whether they will cross departmental employer lines. The forms that units take in each state, and an enumeration and examina- tion of selected systems are discussed in Chapter 5, "Summary of the States,‘ infra, pp. 71-86. The non-descript term "community of interest" is also often included in lists of unit determination criteria. However, it has no operational meaning apart from the cri- teria specified to identify it. As such, it is not really a factor influencing unit determination, but rather a rubric used to rationalize a decision reached through other con- siderations. The result of the decision of which of the other of these factors to honor is then, post hoc, deter- mined to be a "community of interest." Of the factors listed in Table l, the "similar classifications" and "requirements of standardization” criteria can be expected to produce units that cross departmental lines where similar classifications exist in more than one department. "Geographical location,’ on the other hand, tends to result in units of employees working at the same site. These employees are more likely to be employed by the same department than to be in similar work classifications. The remaining criteria do not inherently influence whether employees are grouped by common occupa- tion, common worksite or agency employer, or both. The "avoidance of fragmentation, need for effi- cient administration,‘ and "minimum number of people in 62 the unit" criteria reflect the needs of the employer to have a system that is administratively feasible. The "structure of managerial authority" is tied to the scope of bargaining. When issues to be negotiated include items that must be standardized across departments (e.g., wages and benefits), units can be expected to cross departmental lines and provide for negotiations with a cen- tral manager. The "desires of the employees" and the ”extent of organization" are employee organization-centered criteria which do not prescribe the form.of the unit. "Bargaining history" also does not inherently influence form--it just perpetuates whatever form had previously arisen. The "recommendations of the parties" can be expected to be derived from consideration of the other criteria, as can "serving the public interest." Standards for Formation of Units There are three basic standards used by states in determining units: (1) an appropriate unit;9 (2) the most 10 11 appropriate unit; and (3) legislatively speCified units. The "an appropriate unit" test originated in the private sector. The NLRB has long held that, 9This standard is basically in use in Minnesota, Massachusetts, Rhode Island, Delaware, and Washington. 10States utilizing this standard include New Jer- sey, Pennsylvania, and, to some degree, New York. 11There are legislatively specified units in Hawaii and.Wisconsin. 63 There is nothing in the statute [National Labor Rela- tions Act] which requires that the unit of bargaining be the only appropriate unit, or the ultimate unit or the most appropriate unit; the Act requires only that the unit be appropriate. It must be appropriate to insure to employees, in every case, "the fullest freedom in exercising the rights guaranteed by this Act."12 (Emphasis in the original.) All states having the "an appropriate unit" stan- dard (Minnesota, Massachusetts, Rhode Island, Delaware, and Washington) have more than 100 units, while each of the "legislatively prescribed" states (Wisconsin, Hawaii, and effectively, New York13) have 16 or fewer. The states with the "most appropriate unit" criterion that have col- lective bargaining and are not "just getting under way" (Pennsylvania and New Jersey) each have fewer than 30 units. Although the "an appropriate unit" standard results in greater proliferation, it is also supposed to result in more freedom for employees in choosing their own units, the grouping of truer communities of interest, and the facili- tation of organization. All these benefits comport well with the purpose of the National Labor Relations Act--to promote the interests of employees, and to redress an historical imbalance of power in favor of employers.14 In state employment, however, more interests are commonly balanced in legislative intent and the interests and 12MOrland Brothers Beverage, 91 NLRB 409, 418 (1950). 13New York's units were determined simultaneously and exhaustively in a single agency hearing. 14National Labor Relations Act, Section 1. 64 desires of employees and their organizations must often be weighed against concerns for efficiency. This wider area of concern has resulted in some instances in states requiring that the unit be the "most "15 or "largest reasonable"16 one to represent appropriate a community of interest. These wider tests are a result of the balancing of interests between employee desires and the needs of the state employer, and a finding that the state's needs be given significant consideration. The result is likely to afford the state employer a more man- ageable number of units at some expense to employee choice in grouping, and perhaps increased difficulty for employee organizations in winning representation rights.l7 Both tests imply a choice among alternatives as O O O O. 18 requests arise. Two states, Wiscon31n and Hawaii, have created all their "appropriate" units at one time by 15For example, the New Jersey Public Employment Relations Commission has ruled that petitions for recog- nition must be for the "most appropriate unit." See State of New Jersey v. New Jersey State Nurses Association in GERR, No. 544, F-1-7 (March 4, 1974). 16Such a standard was recommended in the Final Report of the Assembly Advisory Council on Public Employee Rélations (California), p. 35. 17In New Jersey a "Professional Unit" remains unpetitioned while the New Jersey Nurses' Association's petition to represent nurses only was dismissed as "not a request for the most appropriate unit." See footnote 15 above. 18The Wisconsin and Hawaii units are listed in Appendix B. 65 19 This method of unit determi- legislative prescription. nation produces several pronounced results. It controls proliferation because there are no employees remaining unallocated to request additional units. (New classifica- tions are accreted into existing units.) Matching of units to managerial lines of authority can also be assured. The employees to be organized are known in advance and representatives can concentrate their efforts on organizing units they know will not be found "inappropriate." Bar- gaining history might be accommodated or denied, depending upon the wishes of the legislators. On the other hand, legislated units might subject meritorious unit determination arguments to unrelated poli- tical trade-offs and place decisions in the hands of a body largely inexpert in the area. The actual determination of what units result is, however, often not directly related to the language of the statute. Statutory distinctions between "an appro- priate unit" and "the most appropriate unit, while distin- guishable academically, do not provide much guidance when measured by results. For example, New Jersey's statute requires units based on "community of interest"20 but does " 19New York produced a similar result. Applying a most appropriate unit" test, the Public Employment Rela- tions Board in an agency hearing created, at one time, all the units into which state employees could be placed. 20The statute charges the Public Employment Rela- tions Commission only with ”due regard for the community of interest of the employees concerned," and that the units 66 not define the term. The units formed there have been state-wide by families of job classifications. In New 0 O I C O O O 21 York, unit determination criteria are more speCific, but certainly were not a mandate to create state-wide occupational units. Such an outcome had to be read into the law.22 In other states, such as South Dakota and Vermont, the language requiring consideration of state- wide interests (and warning against the evils of frag- 23 mentation) is stronger, but these states do not have separate supervisors, and if they so desire, professionals and craftsmen. (New Jersey Employer—Employee Relations Act, Sec. 34: l3A-5(3).) 21'The New York law reads: . the board of government, as the case may be, shall 1. define the appropriate employer-employee negoti- ating unit taking into account the following standards: (a) the definition of the unit shall correspond to community of interest among the employees to be included in the unit; (b) the officials of government shall have the power to agree . . . to the terms and conditions of employment upon which the employees wish to negotiate; and (c) the unit shall be compatible with the joint respon- sibilities of the public employer and public employees to serve the public. . . . (Sec. 207). ' 22See the Legal Basis of Emplpyee Relations of New York State Employees by Jerome Lefkowitz. 23The South Dakota law reads: . In defining the unit, the labor commissioner shall take into consideration, along with other relevant factors, the principles of efficient administration of government, the principles and coverage of uniform comprehensive posi- tion classification and compensation plans in the govern- mental agency, the history and extent of organization, occupational classification, administrative and supervisory levels of authority, geographical location, and the recom- mendations of the parties. (Sec. 3-18-4.) The Vermont statute reads: the board will not constitute an appropriate unit if recognition will result in over-fragmentation of state employee collective bargaining units. (Sec. 927.) V" 67 state-wide units. Therefore, there must be other factors which influence the type of units formed. The examination of the states, reported in Chapter 5 will attempt to determine what these factors are. Methods for Determining Representation Status Where the decision for exclusive representation has been made, it becomes necessary to determine, in addition to who is in the unit, whether those employees favor repre- sentation, and, if so, by what organization. This problem was first faced in the private sector where extensive precedents on determination of representative status have been established. These precedents are largely transfer- able to the public sector. Of course, while these prece- dents and standards are relevant, they are not controlling in state employment. The rationale for the decisions reached is, however, useful. Recognition of an employee organization most com- monly occurs in one of three ways: (1) by employer consent; (2) by a demonstration of majority status through the use of signed authorization cards; or (3) by means of a secret ballot election, usually administered by a neutral agency. Employer consent is certainly the most expeditious way of gaining recognition, but is also the most subject to abuse of individual employee interest. In employer con- sent, there is no guarantee that the organization recog- nized represents the wishes of a majority of the employees. This danger is real because an organization with enough 68 power may be able to force recognition, perhaps against the wishes of a majority of employees. The system could be further abused by the employer consensually recognizing a favored organization among competitors, again against the desires of a majority of the employees. Because of potential abuses such as these, some states have refused to sanction such recognition.24 Authorization cards are also more expeditious than elections but require the administration of safeguards. Private sector employers have complained that recognition based solely on the presentation of cards is inherently unreliable. They claimed the cards' purpose may be misun- derstood, that they may be obtained by coercion, and may not present the employer with an opportunity to rebut the representative's claims. The NLRB and Supreme Court have found these claims unpersuasive.25 They have ruled that regulations can be established requiring the intent of the cards to be absolutely unambiguous, and that coercion can be policed and controlled, and certainly should not be assumed, absent some demonstration of proof. Furthermore, they did not find it likely that an employer would not know of an organizing drive until being presented with the cards. This reasoning seems to apply equally well to state employ- ment . 24See Pennsylvania S. B. 1333, L. 1970, Sec. 602, and New Jersey Ch. 123, L. 1974, Sec. 34:13A-6(d). 25 See NLRB v. Gissel Packin Co., 395 U.S. 575, 89 Sup. Ct. 19I8, 7I LRRM 248I (I965). 69 Secret ballot elections are clearly the best mea- sure of employee preference and a safeguard to employers. They are, however, more time-consuming and costly than the alternatives, and may make it more difficult for an organi- zation to gain recognition by requiring a true majority. The holding of elections might also have a cathartic effect in the establishment of new relationships. In situations where multiple representation is per- mitted, it is usually not necessary to specify representa- tion precisely, because recognition of one organization does not eliminate recognition of another. In such a situ- ation, management often accepts claims of employee organiza- tions as to the employees they represent, and elections are not commonly required. Procedures for Forming Units There have been three procedures used in forming units in state employment. Legislation of units was described above. In California, the employer determines units unilaterally. In all other states with procedures, some form of independent agency or commission resolves dis- puted determinations. Agency determination might be expected to promote neutrality, flexibility, expertise, consistency, equity, and relative freedom from political manipulation. 26This is the case in Michigan and California, the only two states with multiple representation. 70 A case-by-case review of petitions should be expected to permit flexibility reflecting unusual circum— stances; continuing review by a permanent, neutral panel should provide consistency and expertise, and the deci- sions reached should be more equitable because the agency members are not directly beholden to special interests. CHAPTER 5 SURVEY OF STATES AND ANALYSIS OF SELECTED SYSTEMS Questionnaire Purpose To survey the experiences of states on unit deter- mination matters, a questionnaire1 was designed and sent to the administrative agency head charged with unit determina- tion in those states with such provisions, or in his absence to the Civil Service head in states where appropri- ate, or failing both of these to exist, to the state per- sonnel director. It was hoped by the author that the ques- tionnaire data would fulfill the following purposes: To provide an overview of procedures. To suggest alternative ways of determining units. To update information and resolve ambiguities and inaccuracies in other sources. To compare statutory language with actual unit determination policy. To determine state models meriting more intensive investigation. U1 4‘ DONH It should be cautioned, however, that a question- naire examination of the procedures utilized in states is useful principally for determining possible and general methods of unit determination, and is less useful for a 1A copy of the questionnaire is reprinted in Appen- dix A. The questionnaire was promulgated for the State of Michigan Advisory Employment Relations Committee for which the author was Research Director. 71 72 specific enumeration of results. A precise cataloging of methods used is made difficult and of less value because of two factors: (1) the area is very dynamic and what is true for one period of time may be significantly different sev- eral months later, and (2) the categorizing of results is difficult because procedures are non-discrete, difficult to quantify, and subject to interpretation and reporting dif- ferences. Questionnaire Results Data were received from 49 states (only New Hamp- shire failed to respond), and generally represented the state of affairs as of July, 1973. Based on these replies, the New Hampshire statute, and a survey of published infor- mation the following results for employee representation and unit determination were noted. Twenty-two states have formalized procedures for recognizing state employee organizations; 28 do not. No state in the South has procedures. Of the industrialized, urban states, only Indiana and Ohio do not. Of the states with procedures, 20 have collective bargaining for at least same of their state employees. The only exceptions are California and Michigan, which have "meet and confer" proce- dures. Only four states permit collective bargaining by local government employees while forbidding it to state eumdoyees. They are Michigan, Oklahoma, Florida, and Nevada. These data are updated and depicted in Figure l, "Collective Representation Rights for State Employees, by State." m 3 .. C n. . 5‘ 8 E I 9% fies-$1 m E q f 9 '“ - ' '::',:-._:;:.;_:.-.-, .. g .\ . - -: 3 "’ 131:.- II". ' "mum's x\\|Illll|1?lll!llll)llllt \\ \\\: umsN \x 74 In those states with recognition procedures for state employees, seven have state-wide occupational units. The remaining 15 have units of related.work classifications within a single department, or units that include entire departments.2 Wisconsin, Hawaii, and New York allocated all units at one time, thereby imposing a limit on their number. No other state has done so. The rights of representation for supervisors vary 3 In five states they are excluded ‘widely among states. from representation entirely. Eight states require units separate from subordinates. Separate units in which super- visors are represented by organizations unaffiliated with unions or associations eligible to represent subordinates, are dictated in New Jersey and Wisconsin. The remaining six4 states with representation procedures do not distin- guish supervisors for special treatment. In all instances, the definition of supervisor can vary among states.5 With the previously noted exceptions of Wisconsin, Hawaii, and New York, unit determinations are made as 2A listing of selected aspects of each state's unit determination policies and employee representation proce- dures appear in Table 2. 3These recognition rights appear in Table 3. 4Supervisory representation rights have not yet been prescribed in Illinois. 5These differences and their consequences were detailed in Chapter 4, "Work Classifications Requiring Special Treatment." 75 oz oz oz wow wow 02 mm» oz wow wow muummD£UMmmmz oz nu oz 02 un 02 oz oz oz oz pcmazumz oz un oz oz un oz oz oz 02 oz mcwmz oz nu oz 02 nu oz oz oz oz 02 mamwmwsoa oz nn oz 02 un oz oz oz 02 oz axonuamz mow oz mm» oz oz wow wow oz mm» mm» smmmamz 02 oz oz oz nu oz 02 02 oz oz mBOH oz un oz oz nu oz oz 02 oz oz mcmfich mm» oz mow oz oz wow wow oz mm» mm» *mwocHHHH oz nn oz 02 nn 02 oz oz oz oz onmpH mm» oz mow oz wow mm» mm» oz wow wow HHm3mz oz nn oz oz un oz oz oz oz oz wwwuoow oz nn oz oz nu 02 oz oz oz oz mpfiuoam oz oz oz mm» mm» oz mow oz mm» mm» mumsmaon oz nu oz oz nn oz 02 oz oz oz unowuomccoo oz nu oz oz nu 02 oz oz oz oz ovmhoaou 02 oz mBom maom mow oz oz mow oz mow mwcuomwamo oz uu oz oz nu oz oz oz 02 oz mmmcmxu< oz nu oz oz nu oz 02 oz oz oz mcouwh< oz oz mow oz oz mm» mow oz wow wow mxmwa< oz nu oz oz nn oz oz oz oz oz maman< non cowumu mugs: momma 3mg pmumau wow you coaumu woman mumum nasz nwamw Hmcowu nuumm ucmwmum nowoz ncwmw naoo namm nmoonm aw nHo noose non ou ou aowumm numm can noummz cowuwfi pong mozoaa noo no uowum used o>wu use: o>wm nwoomm need new mpH3 nuowuum zuoumwz naou nomH nDHoxm moan: ucmcw nmuwuw umm wcwcwmw nHoo neopmum muwcz numm moo m9<8m Wm mmmwogmzm MHazmcamm oz mow *ssmo» wow wow wow mm» 02 mm» mm» cowouo oz nn oz oz nn oz oz oz oz oz maoswaxo oz nn oz oz nn oz oz oz oz oz Ofino oz nn oz oz nn oz oz oz oz oz muoxma nuuoz oz nn oz oz nn oz oz oz 02 oz Manaoumo nuuoz mm» oz mm» oz mm» wow wow oz wow wow xuow 3oz oz oz oz wow mm» mm» mm» oz wow wow oowxmz 3oz oz oz mm» oz mow oz mm» oz mo» no» zowumfi 3oz oz oz oz mm» mow oz mow oz wow wow muflnmmamm 3oz oz nn oz oz nn oz oz oz 02 oz mpm>mz oz oz skwu pom: w>wm nwoomm nBHA new mpw3 nuofiuum zuoumwm uaoo noma uSHoxm mafia: unmcw nmumum umm mcwcwmw naoo naovmum mafia: numm mac A.u.ucouV m mqmHumuammmHmmu pmuomao zaamucmauummmnssx .mHanHm>m uoc cowumauomaHsk .mmma .zaph mo mm pmumouoowmm um» uoa can pmnwuonudm Coon o>mn mmfiuowmumo m>oam can on wawpuooom nmauom muwabs oz nn oz oz un oz oz oz oz oz wcwaozz mm» mm» mow oz wow wow wow oz wow wow Camcoomwz 02 n n oz oz nn oz oz oz oz oz mgwhfiw ummz oz oz oz mm» mm» oz mm» oz mm» mm» couwcwnmmz oz nn oz oz nn oz oz 02 02 oz chHwHH> oz oz mm» oz oz wow wow oz wow wow ucoahw> won cowumn mafia: muama sou pmumwu wcH Mom cowumu mmusp oumum napz nwcmw Hmaowu nunma ucmmmum nowmz ncfimw ncou ncmm nmooum CH nuo nmmso non on on cowumm numm can nmhmmm nowuwc pop“ mmzoaa use no Howum name m>wu pom: m>wm nwoomm uawq new mow? 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All have elected separate repre— sentation. Source: Hawaii Act 171, L. 1970 (as amended), Sec. 89-6. 219 APPENDIX C EXPERTS CONFERRED WITH AND PRACTITIONERS VISITED Arvid Anderson, Director, Office of Collective Bargaining, New York City Charles Rehmus, Co-Director, Institute of Labor and Indus- trial Relations, University of Michigan-Wayne State Uni- versity Morris, Slavney, Chairman, Wisconsin Employment Relations Commiss ion John Kitzkie, Chief Negotiator and Director, Division of Employment Relations, State of Wisconsin John Lawton, Lobbyist and Counsel for AFSCME and member of "Young Commission" whose report was basis for Wisconsin's legislated units Verne Knoll, Deputy Director of Bureau of Personnel, State of Wisconsin, and staff author of the ”Young Report” Harold "Babe" Rohr, State Chairman of Building Trades Nego- tiating Committee (Wisconsin) Donald Foley, Employee Relations Specialist, Department of Health and Social Services, State of Wisconsin Abe Belsky, Executive Director, Pennsylvania Labor Relations Board Christ Zervanos, Director of Labor Relations, Commonwealth of Pennsylvania Wayne Donnelly, Deputy Director of Labor Relations, Common- wealth of Pennsylvania Gerald McEntee, Executive Director, AFSCME (Pennsylvania) Dick Phelps, Assistant Director, Pennsylvania Labor Media- tion Board Maurice Nelligan, Executive Director, New Jersey Public Employment Relations Commission A1 Wurf, Executive Director, AFSCME (New Jersey) Mark Neimeiser, Executive Director, AFSCME (New Jersey) 220 221 Frank Mason, Director, Office of Employee Relations, State of New Jersey John Saracino, Deputy Director, Office of Employee Rela- tions, State of New Jersey Lawrence Arcioni, President, New Jersey State Employees Association Pat Blinn, Principal Personnel Technician, New Jersey Department of Civil Service William Druz, Chief Examiner and Secretary, New Jersey Department of Civil Service Joe Lavery, Deputy Examiner, New Jersey Department of Civil Service Melvin Cleveland, Executive Secretary, Public Employee é Relations Board, Oregon Robert Smith, Chief Budget Director, Oregon Gene Huntley, Personnel Director and Chief Negotiator for the State Highway Division, Oregon William Barrows, Deputy Fiscal Officer, Legislative Fiscal Committee, Oregon Tom Enright, Executive Secretary, Oregon State Employees Association Everett Stiles, Assistant Executive Secretary, OSEA Ed Rosenlund, Supervisor of Employee Relations, State Per- sonnel Division, Oregon John Paul Jones, Executive Secretary, AFSCME, Oregon Alexander Macmillan, Chairman, Massachusetts Labor Rela- tions Commission Senator George Mendonca, Chairman, Special Legislative Study Commission of Collective Bargaining, Massachusetts Leonard Kelley, Employee Relations Counsel, Bureau of Personnel, Massachusetts George Doyle, Examiner, Massachusetts Labor Relations Com- mission Howard Doyle, Executive Secretary, Council 41, AFSCME, Massachusetts 222 Tom Fitzgerald, Executive Secretary, Special Legislative Study Commission of Collective Bargaining, Massachu- setts Mark Dalton, Counsel, Massachusetts State Employees Associ- ation Frank Sullivan, Executive Secretary, Massachusetts State Employees Association John Keith, Executive Secretary, Service Employees Inter- national Union, Massachusetts Kevin Kelley, President, Local 780 (Public Works Engineers), .AFSCME, Massachusetts Bernice Doyle, President, Local 1293 (Public Works Clerks), AFSCME, Massachusetts Howard Bellman, Member, Wisconsin Employment Relations Com- mission Robert Howlett, Chairman, Michigan Public Employment Rela- tions Board ‘ Jerome Lefkowitz, Deputy Director, New York State Public Employee Relations Board Sidney Singer, State Personnel Director, State of Michigan John O'Connor, Director, Division of Employee Relations, VMichigan Department of Civil Service John FitCh, Employee Relations Administrator, Michigan Department of Civil Service Richard Meyers, Hearings Officer, Michigan Department of Civil Service Jim Shrier, Hearings Officer, Michigan Department of Civil Service Doil (sic) Brown, Executive Secretary, Michigan State Troop- ers Association Harold Schmidt, Executive Director, Council 7, AFSCME (Michigan) Dick Ross, Chairman, Compensation Advisory Board, Michigan Department of Civil Service John Hueni, Director, Division of Classification and Compen- sation, Michigan Department of Civil Service APPENDIX D CONSTITUTION OF THE STATE OF MICHIGAN Article XI SECTION 5 The classified state civil service shall consist of all positions in the state service except those filled by popular election, heads of principal departments, and mem- bers of boards and commissions, the principal executive officer of boards and commissions heading principal depart- ments, employees of courts of record, employees of the legislature, employees of the state institutions of higher education, all persons in the armed forces of the state, eight exempt positions in the office of the governor, and within each principal department, when requested by the department head, two other exempt positions, one of which shall be policy-making. The civil service commission may exempt three additional positions of a policy-making nature within each principal department. The civil service commission shall be non-salaried and shall consist of four persons, not more than two of whom shall be members of the same political party, appointed by the governor for terms of eight years, no two of which shall expire in the same year. The administration of the commission's powers shall be vested in a state personnel director who shall be a member of the classified service and who shall be responsible to and selected by the commission after open competitive examination. The commission shall classify all positions in the classi- fied service according to their respective duties and responsibilities, fix rates of compensation for all classes of positions, approve or disapprove disbursements for all personal services, determine by competitive examination and performance exclusively on the basis of merit, effi- ciency and fitness the qualifications of all candidates for positions in the classified service, make rules and regula- tions covering all personnel transactions, and regulate all conditions of employment in the classified service. ' No person shall be appointed to or promoted in the classi- fied service who has not been certified by the commission as qualified for such appointment or promotion. No appoint- ments, promotions, demotions or removals in the classified service shall be made for religious, racial or partisan con- siderations. 223 224 Increases in rates of compensation authorized by the com- mission may be effective only at the start of a fiscal year and shall require prior notice to the governor, who shall transmit such increases to the legislature as part of his budget. The legislature may, by a majority vote of the members elected to and serving in each house, waive the notice and permit increases in rates of compensation to be effective at a time other than the start of a fiscal year. Within 60 calendar days following such transmission, the legislature may, by a two-thirds vote of the members elected to and serving in each house, reject or reduce increases in rates of compensation authorized by the com- mission. Any reduction ordered by the legislature shall apply uniformly to all classes of employees affected by the increases and shall not adjust pay differentials already established by the civil service commission.~ The legisla- ture may not reduce rates of compensation below those in effect at the time of the transmission of increases author- ized by the commission. The appointing authorities may create or abolish positions for reasons of administrative efficiency without the approval of the commission. Positions shall not be created nor abolished except for reasons of administrative efficiency. Any employee considering himself aggrieved by the abolition or creation of a position shall have a right of appeal to the commission through established grievance procedures. The civil service commission shall recommend to the governor and to the legislature rates of compensation for all appointed positions within the executive department not a part of the classified service. To enable the commission to exercise its powers, the legis- lature shall appropriate to the commission for the ensuing fiscal year a sum not less than one percent of the aggre- gate payroll of the classified service for the preceding fiscal year, as certified by the commission. Within six months after the conclusion of each fiscal year the com- mission shall return to the state treasury all money unex- pended for that fiscal year. The commission shall furnish reports of expenditures, at least annually, to the governor and the legislature and shall be subject to annual audit as provided by the law. No payment for personal services shall be made or authorized until the provisions of this constitution pertaining to civil service have been complied with in every particular. Violation of any of the provisions hereof may be restrained or observance compelled by injunctive or mandamus proceed- ings brought by any citizen of the state. APPENDIX E ATTENDANCE AT AERC COLLOQUIUM Arvid Anderson, Director, Office of Collective Bargaining, New York City Howard Bellman, Member, Wisconsin Employment Relations Commission Abe Belsky, Executive Director, Pennsylvania Labor Rela- tions Board‘ Robert Howlett, Chairman, Michigan Public Employment Rela— tions Board Jerome Lefkowitz, Deputy Director, New York State Public Employment Relations Board Alexander Macmillan, Chairman, Massachusetts Labor Rela- tions Commission 225 TO: FROM : APPENDIX F April 2, 1973 ALL DEPARTMENT HEADS, PERSONNEL OFFICERS, EMPLOYEE ORGANIZATIONS, LABOR ORGANIZATIONS, EMPLOYEES, AND OTHERS CONCERNED The Advisory Employment Relations Committee of the Michigan Civil Service Commission SUBJECTzPublic hearings of May 8, 9 and 10, 1973 concerning employment unit and recognition determination in the Classified State Civil Service The Michigan Advisory Employment Relations Committee will hold public hearings May 8-10, 1973, in Lansing to give interested parties an opportunity to provide inputs on the formulation of a policy for determination of employee representation units in the state classified civil service. The Committee will hear presentations from employer and employee representatives (already recognized or potential), academicians, and other concerned parties expressing their views on questions of the following nature: * Should representation units be determined by insti- * tution, job classification, or other criteria? How wide (narrow) should units be? What constitutes a "community of interest"? Who should be included in the unit? Should supervisors be included in the same unit with employees they supervise? In any unit? Who is a supervisor? Should professional, craft, supervisory, security, and confidential employees have special rights or limitations on employee organization membership or participation? Should only one union or association be recognized in any employment unit? 226 227 Areas in which the AERC is not charged with recommending policy are: * Character or degree of negotiation obligation. * Subjects of negotiation. * Impasse procedures. * Strike prohibitions or sanctions. * The substitution of collective bargaining procedures for ”meet and confer". * Unfair practices. * Employee organization security. * Employee organization responsibility standards. The AERC will consider information frmm these presentations in recommending a policy to the Commission. It is possible that future public hearings with employer and employee representatives will be held to obtain more detailed inputs. At this early stage, the AERC is seeking to deter- mine what specific employer and employee needs might exist, and what employment relations models in the private and public sector might be recommended for study. The AERC derives its authority from appointment by the Civil Service Commission which is granted exclusive authority by the state constitution to establish by administrative action an employment relations system for the 50,000 clas- sified state civil service employees. It is anticipated that final recommendations by the AERC will be made by December, 1973. Members of the Committee are Barry Brown, Director of the Michigan Department of Labor; James McCormick, Attorney and Arbitrator; Charles Meyer, Secretary and Chief Examiner, Detroit Civil Service Commission; Theodore St. Antoine, Dean of the University of Michigan Law School; and Jack Stieber, Director of the School of Labor and Industrial Relations, Michigan State University. Any interested person or organization may request an appearance at the hearing, submit a written statement without appearance, or attend the hearings without making a statement. Requests for a scheduled appearance should be made by April 20, 1973, to the AERC Office, 3rd Floor, Lewis Cass Building, Lansing, Michigan 48913. Response will be made by telephone to arrange an appearance. An agenda of apperances will be furnished to any person 228 you request. Questions or requests for further informa- tion may be addressed to G. Alan Balfour, Director of Research, AERC Office. Phone 517-373-3074. APPENDIX C PARTIES APPEARING AT THE AERC PUBLIC HEARINGS (In order of appearance) Michigan State Police Troopers Association Michigan State Police Command Officers' Association Michigan Department of Civil Rights Service Employees International Union, Local 31-M Chester Bielaczyc, Genesee County Department of Social Services Professor Bob Repas, Michigan State University Michigan Nurses Association United Highway Employees Association Michigan Council of Engineers in Government Michigan Department of Civil Service Michigan Department of Social Services Michigan Society of State Highway Engineers and Professional Affiliates Professional Association, Michigan School for the Deaf Michigan Corrections Organization Association of Assistant Attorneys General Michigan Association of the Professions International Union of Civil Rights and Social Services Employees (including local affiliates, Welfare Employees Union and Civil Rights Employees Union) Michigan State Employees Association American Federation of State, County, and Municipal Employ- ees Council of Personnel Directors 229 APPENDIX H POSITIONS OF PARTIES BY ISSUE The following positions reflect the stands taken by the par- ties in their briefs and at the hearings. If an organiza- tion is not listed as being either opposed to or in favor of an issue, it did not take a stand, or its stand could not be classified. Also, not all issues are covered since not all were addressed by the parties. 1. Exclusive recognition. Favor Oppose 21-M--Personnel Directors MSEA Repas—-AFSCME MNA--Department of Civil Rights UHE Department of Social Services WEU Department of Civil Service 2. Separate units for supervisors. (No one favored exclusion) Favor Oppose Troopers WEU Command Officers MSEA Department of Civil Rights Eng. in Government 31-M Repas MNA Highway Eng. MCO Department of Civil Service Personnel Directors AFSCME 3. Preferred form of units (Note: Some organizations have eligible members in only one department. Where they have favored a statewide unit including only their own class, they have not been listed since their scheme is both departmental and occupational.) 230 231 Occupational* Departmental* MNA Department of Civil Rights MAP 31-M Department of Civil Service Repas Highway Eng. Department of Social Services Eng. in Government WEU Personnel Directors *MSEA favors an all-inclusive unit for statewide issues, while UHE argues for employee freedom of choice in determining community of interest as the basis of units. Separation of professionals. Favor Oppose All professional organiza- MSEA tions WEU AFSCME Personnel Directors Repas, Civil Service Separation of crafts. Favor Oppose Repas MSEA UHE WEU Civil Service MNA AFSCME Hwy. Eng. Personnel Directors . All parties except MSEA favored managerial and confiden- tial exclusion. . Preferred method of determining units. Continuation of Commission Outside Present Procedure Legislation Agency Command Officers - MNA Repas MSEA Hwy. Eng. UHE Civil Service WEU AFSCME APPENDIX I MAJOR GOALS OF PARTIES, BY PARTY Troopers Association Separate unit for all officers below Post Commanders (i.e., exclusive statewide occupational unit with supervisory exclu- .sion). Opposed to grouping with other classifications because "no one else has similar working conditions" and oppose supervisory inclusion as a "conflict of interest in grievance processing." State Police Command Officers' Association "Preserve the true merit system" and a separate unit from troopers so that command officers would not have to depend upon troopers to process their grievances. 'Department of Civil Rights Separate management and supervisors from subordinates. Exclusive recognition, by department. Unit for supervisors. Separation of confidential employees. 31-M, SEIU Departmental units. Supervisory separation. Exclusion of managerial and confidential employees. Exclusive repre- sentation. Chester Bielaczyc (Genesee County Department of Social Ser- vices) Supervisory inclusion. Professor Bob Repas Collective bargaining. Increased scope of bargaining. Right to strike. Exclusive representation with majority status. Supervisors in separate units. Secret ballot elections. Departmental units to correspond with managerial authority. Occupational units within departments. Michigan Nurses Association Representation elections. Occupational statewide units. Separation for professionals and supervisors. 232 233 United Highway EmplOyees AssoCiation Unit determined by employee-initiated showing of community of interest. Might be departmental or occupational, depending upon circumstances. Exclusive representation. Department of Social Services Institutional or departmental units. Opposed to occupa- tional units. Wide exclusion of confidentials. Exclusive representation. Highway Engineers Three statewide units (Supervisor-Professional; State Police; All Others). Professional Association, School for the Deaf Separate unit for self. Corrections Organization Separate unit for self, with supervisors excluded from unit. Attorneys General Separate unit for self (cannot mix with other professionals). Michigan Association of the Professions Separation of all professionals from.nonprofessionals. Pos- sibly grouping professionals under MAP. Welfare Emplgyees Union Departmental units, sometimes geographic. Representation elections for exclusive recognition. Professional inclu- sion; managerial, confidential, and security exclusion. Inclusion of all others in department in one unit. Super- visory inclusion. Department of Civil Service Statewide occupational units. Exclusive representation. Managerial and confidential exclusion. Supervisory units. Council of Personnel Directors Departmental units. Separate units for supervisors. No professional or craft separation. Exclusive representa- tion. 234 AFSCME Two units (supervisory-professional; all others). 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