Essay: THE WORKER’S RIGHTS & THE PUBLIC WEAL

RELATIONS between management and organized labor in the private sector of the U.S. economy have been maturing for decades. Out of negotiation, intermittent conflict, legislation and court decision, there has emerged a generally workable system that breaks down on some spectacular occasions but in the main serves the cause of both sides as well as the public good. Not so in the crucially important and rapidly expanding public sector, which embraces everyone who works for government at any level—federal, state, county and municipal—and embodies every conceivable skill, from schoolteaching to garbage disposal. In that area, labor relations are in a primitive stage.

Some 12 million Americans, one-sixth of the national labor force, now work in the public service. In the next seven years, this figure is expected to reach 15 million. Until relatively recent years, the widely held public point of view was that these government employees—whatever their number and whatever their classification—had no right to organize, let alone a right to strike. In 1937, Franklin D. Roosevelt called public strikes “unthinkable and intolerable.” United Auto Workers President Walter Reuther said in 1966 that “society cannot tolerate strikes that endanger the very survival of society,” and proposed finding a new “mechanism by which workers in public service can secure their equity without the need of resorting to strike action.” Half of the 50 states have laws prohibiting strikes by government employees, and in all of the others the mood is clearly against them. Yet, with increasing truculence, public employees are striking.

Last week the first statewide public-employee strike in the U.S. closed one-third of Florida’s 1,800 public schools (see EDUCATION). The stench of January’s illegal strike by New York City’s sanitation men, which heaped 100,000 tons of garbage on the streets, offended the nation’s nostrils—and was quickly followed by another strike of trash haulers in Memphis, Tenn. Detroit’s summer epidemic of “blue flu,” in which 700 policemen reported sick, deprived that city of 30% of its on-duty law-enforcement force. A 1967 walkout of firemen in Youngstown, Ohio, emptied all but one of 15 fire stations. In fact, Ohio, which has a tough law calling for the firing of every public employee who goes on strike, has had at least 30 strikes—involving police, nurses, city service employees, teachers and other government workers—in the past year.

There is every indication that the situation is growing progressively worse. The 142 work stoppages called by public employees in 1966 exceeded the total for the four previous years combined; informed estimates of the 1967 figure place it at upwards of 250. Dr. Sam M. Lambert, executive secretary of the National Education Association, which represents one million teachers and administrators, has predicted 250 strikes by teachers alone next year. Says Pennsylvania University Industry Professor George W. Taylor, principal source of New York State’s public-employee labor law: “It’s going to be a mess for generations.”

Wrong-Way Laws

What is now painfully clear is that the antistrike laws do not work. In their new attitude, public employees are weighing the results of abiding by the law against those of defying it—and they are opting for defiance. “We are beyond abstract lessons in legality,” says Albert Shanker, the onetime math instructor who led New York City teachers out of the classroom last September—and won a pay boost of 20%, largest in the city’s history. “Perhaps it is a bad lesson to be learned, but the city has convinced us that striking brings us gains we cannot get any other way.” Worsethan not preventing walkouts, the punitive laws actually appear to be provoking them.

“Knowing that we would not strike,” says William D. Buck, president of the International Association of Fire Fighters, “officials have taken advantage of us, almost daring us to strike.”

In all its aspects, public labor law at the state and local level can only be described as chaotic. A few states, notably Wisconsin, Michigan and New York, recognize public unions and some form of collective bargaining. But some recognize neither, and a few have no public-employee laws at all. Ambiguity is common. Colorado lets public workers join unions but bars them from bargaining. In what can serve as a textbook example of legal sidestepping, Ohio does not recognize the existence of public-employee unions, prohibits these nonexistent unions from striking—and yet permits the public employer to deduct union dues from paychecks.

The federal picture is clearer, though not without some fog. Employees of the national Government still prefer to exert their power through the techniques they have used for years in applying political pressure to Congress. Thus the United Federation of Postal Clerks has lobbied a cumulative 36% wage increase for its 165,000 members since 1961—without once threatening a strike. There are, however, new factors at work on the federal level. In 1962, President Kennedy issued an enlightened executive order formally recognizing the Government worker’s right to join a union—and the duty of federal agencies to bargain with unions in good faith. As an inevitable result, the pace of unionization took a dramatic spurt. Since 1961, the number of exclusive bargaining contracts signed by federal employees has risen from 26 to 600; the number of workers covered by such contracts has gone from 19,000 to more than a million.

While this suggests new areas of stress between the national Government and its employees, it is unlikely that there will soon be the kind of trouble that is now plaguing lesser government subdivisions. For one thing, all people starting to work for the Federal Government must sign a pledge not to strike, not to advocate strikes and not to join any association that does. For another, the majesty of the national Government and the office of the President continue to provide a far stronger deterrent than exists in state and local situations.

Essential Differences

One major factor in making government workers more and more restive is the obvious difference between the rewards in the private sector and those in the public. Government pay scales often run below those paid by private industry. In Detroit, for instance, the median private hourly wage was $2.04 in 1955—against $1.79 for government workers. By 1967, the gap had widened: $3.49 to $3.09. Not many employees any longer consider it a privilege to work for the government. The job security of civil service has lost considerable point in a boom economy, where the demand for labor outstrips the supply. The effect of all this is evident in one statistic. Although union membership nationally has increased only 15% since 1956, it has increased 60% in the field of government.

Once they are in a union, public employees immediately see further differences. Thus in Manhattan, drivers on the buses operated by the public Transit Authority are covered by the no-strike law, while those driving for the privately owned Avenue B and East Broadway Transit Co. are under no such restriction. Fired by the Washington Suburban Sanitation Commission after a 1966 strike, garbage men in suburban Washington savored the immense satisfaction of going back to work—at the higher wages they had demanded—for the private contractor to whom the commission had let the new refuse-collection contract. Amid such contradictions, organized public workers are increasingly taking the position that collective bargaining is meaningless without the ultimate weapon of the strike which, used or not, brings gains to private employees.

State and local laws have attempted the difficult task of defining the essential difference between the public and the private sector. Differences undeniably exist, and many of them describe the problem that is generating strikes. Governments are monopolies that do not operate in response to the profit motive and that, unlike private industry, cannot go out of business. Raising commodity prices to meet the rising costs of labor is certainly easier than raising taxes. In private industry, management and its power are readily identifiable. But this is more complicated in representative government, where both power and management develop from the citizen but are distributed down a lengthy chain of delegated command. All too often, public unions argue their case before officials who lack the authority—or the will—to negotiate solutions. Public employees are also aware that, while their opponent across the negotiation table supposedly represents the public weal, his bargaining stance is frequently determined by political expedience—and the sheer desire for political survival.

Search for Solutions

The most hopeful aspect about the rash of public strikes is that they have injected new and sorely needed urgency into the search for solutions. Investigation proceeds in a wide range. Some suggestions have been heard that existing strike penalties are not severe enough to deter strikes and should be increased. Advocates of this position refer to the example of John L. Lewis’ 1946 coal miners’ walkout, in which a $700,000 fine, imposed by the U.S. Government, effectively throttled the strike.

Labor Mediator Theodore Kheel proposes enjoining only those strikes that affect public health and safety; others, he feels, can be managed within the strategies of arbitration. Michigan State University Economist Jack Stieber would group government employees into three categories, only the first of which—possibly limited to policemen and firemen—would not be allowed to strike. Strikes instigated in less essential services would be tacitly tolerated, at least until their cumulative effect went beyond inconvenience.

The difficulty with such distinctions is that they are likely to work better on paper than in the field. A study committee headed by Pennsylvania’s George Taylor has termed them “administratively impossible.” Where do teachers fit, for example? Do strikes in the public schools imperil either the public health or safety? And where is the line drawn in the staffs of government hospitals? Are nurses more essential than, say, laboratory technicians? In any case, there are fluctuating degrees of essentiality that defy easy definition. New York City’s transit strike turned intolerable within days. But this year, residents of Rochester endured the loss of their public transportation system for nine weeks.

Compulsory arbitration is now being suggested in some quarters as a last-ditch solution. Both management and labor are generally against it in the private sector, on the grounds that it undermines the collective-bargaining process. For the public sector, A.F.L.-C.I.O. President George Meany has suggested what he calls “voluntary arbitration”—the intercession of an informed and mutually acceptable third party to engineer a settlement. One difficulty here is the genuine doubt that representative government, which receives its mandate from the public, can legally bind itself to an outside judgment.

The University of Wisconsin’s Nathan Feinsinger, who serves as a special labor consultant to Governor Warren P. Knowles, has proposed the principle of “voluntaryism,” a term he borrowed from George Taylor. “In my judgment,” says Feinsinger, “a voluntary agreement not to strike is much more apt to work than a system of fines or imprisonment. This is because a no-strike agreement is the product of negotiations and not imposed from above.” Feinsinger would introduce what he calls a “neutral,” appointed by both sides, who would audit negotiations as a detached and dispassionate observer, making nonbinding recommendations on request. In the event of a bargaining deadlock, the neutral could break it, again by common consent, with a “final and binding arbitration award.” Adds Feinsinger: “Since this procedure would be the product of mutual agreement, there would be an incentive to make it work.”

To make bargaining work and last, some experts favor bringing all unions that deal with a particular government into bargaining sessions simultaneously and as a group. The rationale is that this would tend to keep one union from trying to get a better deal than the last one, a labor tactic so familiar in private industry negotiation that it is known as “whipsawing.” At the same time, say these experts, the other side of the table should include not only government administrators but also representatives of the legislative branch, which inevitably must appropriate the money that the settlement demands.

As all this indicates, worried experts and officials are coming forward, however tentatively, with proposals that merit study. U.S. Senator Jacob Javits of New York in 1966 introduced a bill that would meet a strike threat with a 30-day “freeze,” during which, as tempers cooled, a presidential board of inquiry would examine the issues involved. George Taylor’s committee favored a law obliging the proper officials—Governors, mayors—to seek a court injunction as soon as they saw a strike coming in an essential service, rather than waiting until the actual walkout.

Nearly all of the finespun theories are still in the laboratory, of course; none of them have been tested under fire. The only significant local government forum in the U.S. that is available to the disputants in public labor controversy is New York City’s Office of Collective Bargaining, which opened this year and which the garbage men ignored. The nonacceptance of such a well-intentioned agency leads to the conclusion that solutions lie a long, troubled way ahead. “Public employees will strike unless there are acceptable alternatives,” says Arnold Weber, professor of industrial relations at the University of Chicago. “I don’t have any answers, and nobody else has any answers.” In some quarters there is cautious hope. Says Victor Gotbaum, who heads the New York District 37 of the American Federation of State, County and Municipal Employees: “Both sides are just learning how to bargain, and must be given a natural chance to grow.”

A Positive Approach

What is urgently needed is an entirely fresh approach to the problem. Until now, most government thinking and effort have been directed at prohibiting strikes and punishing the unions that violate the bans. Since it is now clear that this negative stance only makes matters worse, new efforts must be mounted on the positive side.

First, the right of the growing millions of public employees to organize and bargain collectively must be recognized. Second, urgent and continuing work should be undertaken to develop bargaining procedures and machinery aimed at preventing strikes, rather than banning them and punishing strikers. While situations will differ widely from one state and city to another, some forms of fact-finding, conciliation, mediation, arbitration and injunction to work in the public sector must be devised. Third, despite all the complications involved, it must be recognized that there are differences among various kinds of public service —that some are more essential than others. Certainly no strike of policemen, firemen or prison guards can be tolerated. But a strike of clerical workers in a state accounting office, for example, can be considered in an entirely different context.

Whatever new laws are enacted, the public will have to accept the principle that government employees should have a right to participate in the determination of their working conditions—in other words, to collective bargaining. And organized government workers, given the assurance that they will get a fair and full hearing, must be made to recognize that they have no right to jeopardize the public safety.