Collective Representation and Employee Voice in the U.S. Public Sector Workplace: Looking North for Solutions?

Abstract

The election in 2010 of conservative Republican legislative majorities and governors in many states led to a major retrenchment in public employee collective bargaining rights in the United States. Fueling the retrenchment was the view that public employee collective bargaining was bad for the public. The common aim of the legislation enacted in numerous states following the 2010 elections was to strengthen unilateral employer control and weaken employee voice. This rebalancing of power occurred in the context of state public employee labor relations acts that are largely modeled on the National Labor Relations Act, with its classification of subjects of bargaining as mandatory, permissive and prohibited. Courts and labor relations agencies have defined mandatory subjects of bargaining much more narrowly than in the private sector. This is largely due to concerns that many terms and conditions of employment also raise issues of public policy which, the authorities reason, should be resolved in the public political process rather than at a bargaining table to which only the union and employer have access. The result of such a narrow scope of bargaining is to channel unions away from having a voice on matters that can improve the quality of public services and toward bread and butter issues of wages and benefits and protecting their members from the effects of decisions unilaterally imposed by management. Unions’ efforts to protect their members from management’s unilateral action may be seen as union obstructionism to reform. The Supreme Court of Canada (SCC) has held that the Charter of Rights and Freedoms’ right of freedom of association includes a right to collective bargaining. The U.S. Supreme Court has held that the freedom of association not only does not include a right to collective bargaining, it does not include a right of individual union members to be represented by their union in their employer’s unilaterally promulgated and administered grievance procedure. Because of such diametrically opposing perspectives on freedom of association, it is tempting to dismiss summarily Canadian jurisprudence under the Charter as having nothing to offer U.S. labor law. Such dismissal would be too hasty.In Fraser v. Ontario, the SCC held that the right to collective bargaining encompassed within the right to free association does not mandate an NLRA Act model of collective bargaining. Such decoupling of the right to a voice at work from a right to an NLRA-model of collective bargaining suggests that the evolving Canadian jurisprudence concerning freedom of association should be examined as an alternative to the present model of U.S. public sector labor law reform which increases management unilateralism while weakening employee voice. This paper explores the evolving jurisprudence under the Charter as an inspiration for reforming U.S. public sector labor law to enhance worker voice in ways that can benefit the public as well as workers.