The Consent of the Governed: Public Employee Unions and the Law

The major development in labor relations legislation during the past decade was the veritable eruption across the country of state statutes providing for the unionization of public employees. Wisconsin led the way in 1959 by \u27imposing the duty to bargain on municipal employers. Ten years later, by my count, 22 states had passed laws authorizing some form of collective bargaining for either state or local employees, or both. An additional ten or so states have prescribed bargaining procedures for certain specified categories of employees, such as firemen, policemen, teachers, or public transit workers. All told, over two and a half million state and local public service employees, better than a fourth of the total, are now organized. I shall deal briefly with three important problems of public employee bargaining-the subject matter of negotiations, the use of the strike weapon, and the possible role of compulsory arbitration. But first I should like to try to set these topics in a somewhat broader perspective. Some 15 years ago I heard the philosopher Hannah Arendt declare that the concept of authority had ceased to exist in Western Civilization. At the time I couldn\u27t really understand, let alone accept, what she had said. Now I think I understand. All the traditional lawgivers of our society-governments, churches, parents, and even, I must sadly acknowledge, university professors have been sharply challenged and, in part at least, discredited. From now on, it seems to me, the legal regulation of large masses of persons cannot be based upon the divine right of the lawmaker. Either it will have to be based upon raw power, exercised in a way which I feel would be incompatible with life in the good society, or else it will have to be based upon the consent of the governed. Let me be more concrete. In a period which has witnessed a nationwide flood of illegal strikes by those most docile of public servants - school teachers and postal clerks - I think we delude ourselves if we believe that traditional legislative prohibitions, backed up by court injunctions, fines, and jailings, can control the conduct of massive groups of persons who are convinced of the justice of their grievances, who have lost faith in the usual procedures for redress, and who are not ashamed to go outside the law, for example, through resort to forbidden work stoppages, in order to achieve their objectives. Law itself, of course, is one of the principal influences shaping a man\u27s or a group\u27s perception of legitimate or appropriate behavior. My point is that law is only one of those influences, and that law loses much of its effectiveness as a regulator insofar as it .loses touch with the thinking of the persons regulated. Put baldly, law loses much of its effectiveness.- insofar as the persons regulated conclude that they have more to gain by flouting the law than by obeying it. Society\u27s aim, therefore, should be to ensure that a citizen\u27s stake in having the law maintained is always greater than his interest in having it subverted. These comments may not sit well with many of you who suspect where I am headed. Indeed, I am not sure that all the implications of my comments sit well with me. In any event, it seems wiser to start with a candid view of an unsatisfactory reality than with a beguiling vision of a world that ho longer is. And as I see it, law can serve at best as a levee to channel great social movements, not as a dam to halt the tide. With that said, I shall tum to the scope of the obligation resting on public employers to bargain with their employees