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Full text of "Collective bargaining in libraries : [proceedings of a conference sponsored by the Illinois State Library and the University of Illinois Graduate School of Library Science and University of Illinois Office of Continuing Education and Public Service]"

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L161 O-1096 



ALLERTON PARK INSTITUTE 
Number 20 



Proceedings of a Conference 

Sponsored by the 
Illinois State Library 

and the 

University of Illinois 
Graduate School of Library Science 

and 

University of Illinois 
Office of Continuing Education and Public Service 



Collective Bargaining 
in Libraries 



edited by 
FREDERICK A. SCHLIPF 



University of Illinois 

Graduate School of Library Science 

Urbana-Champaign, Illinois 



Copyright 1975 by the 

Board of Trustees of the University of Illinois 

LC Card Number: 75-25240 

ISBN: 0-87845-0424 



0/1 



~ CONTENTS 



INTRODUCTION ix 

FREDERICK A. SCHLIPF 

EMPLOYEE RELATIONS IN LIBRARIES: THE CURRENT SCENE . . (T^ 

ARCHIE KLEINGARTNER and JEAN R. KENNELLY 

UNIONIZATION OF LIBRARY PERSONNEL: 

WHERE WE STAND TODAY ( 23 

DON WASSERMAN 

THE LEGAL ENVIRONMENT ^30 

ANDREW M. KRAMER 

RECOGNITION AND BARGAINING UNITS 43 

MARTIN H. SCHNEID 

THE DUTY TO BARGAIN 54 

R. THEODORE CLARK, JR. 

GRIEVANCES 76 

MARTIN WAGNER 

IMPASSE RESOLUTION IN THE PUBLIC SECTOR 84 

JAMES L. STERN 

NEGOTIATION SIMULATION 107 

ROBERT E. BROWN 

IMPLICATIONS FOR PUBLIC LIBRARIES 117 

MILTON S. BY AM 

IMPLICATIONS FOR ACADEMIC LIBRARIES 122 ) 

MARGARET BECKMAN 

COLLECTIVE BARGAINING IN LIBRARIES: A BIBLIOGRAPHY ... 146 
MARGARET A. CHAPLAN 

GLOSSARY OF COLLECTIVE BARGAINING TERMS 165 

LABOR RELATIONS TRAINING CENTER 

INDEX 177 



vii 



INTRODUCTION 

In the past decade, collective bargaining between library employees and 
library management has emerged as a major pattern in library personnel 
administration. Although library unions have existed since early in the 
twentieth century, it is primarily in the last eight or ten years that they have 
become collective bargaining agents rather than employee associations. The 
current expectation is that within the next few years a great many public and 
academic libraries will have encountered unionization of professional, clerical 
and support staff, and will have experienced collective bargaining, often for 
the first time. 

Historically, there appear to have been two major periods of interest in 
the unionization of library employees. In his paper in this volume, 
Kleingartner suggests that the first period of high interest occurred in the late 
1930s, in reaction to the general union movement of that era and to the 
National Labor Relations Act of 1935. By 1939, however, the total member- 
ship in library unions was probably less than 1000 individuals. The second 
major era in library unionization began in the 1 960s with the unionization of 
the staffs of the Brooklyn Public Library and the Berkeley library. 

As a group, librarians have had extremely mixed reactions to the 
prospect of unionization. Most of the library literature on the subject ranges 
from apprehensive to censorious, and the American Library Association 
(unlike such other professional organizations as the National Education Asso- 
ciation and the American Federation of Teachers) has shown no signs of 
becoming directly involved in union activities. The ambivalence which 
librarians have displayed toward unions can probably be traced to several 
factors, one of which is the domination of the professional associations and 
journals by administrators rather than by rank-and-file library employees. 
Another factor is the traditional fear among librarians that professionalism and 
collective bargaining are incompatible concepts, and that the unionization of 



x FREDERICK A, SCHLIPF 

professional staffs will almost surely result in a decline in the quality of public 
service. A third factor has been the fear of librarians that unionization will 
establish a permanent adversary relationship between librarians and library 
administrators, thus splitting into hostile camps groups that have common 
professional goals and should function as colleagues. Associated with this 
factor is the concern on the part of many administrators that library clerks 
and lower-level professionals will band together for collective bargaining pur- 
poses, thus linking two groups which theoretically have vastly different 
training, ability, and dedication. A final factor is that the library profession is 
traditionally a feminine one; a profession dominated by educated, middle-class 
women is not the most likely candidate for the labor organizer. The reactions 
of librarians to the prospect of unionization are similar in many ways to those 
of school teachers, as one might expect given the somewhat comparable labor 
situations. 

A few topics are of particular interest in the area of collective bargaining 
in libraries. One is the entire area of management rights. Bargaining in the 
public sector in general has been characterized by union invasion of areas 
traditionally regarded as under the jurisdiction of management; the insistence 
of school teachers on bargaining over class size and other organizational 
matters of this type is an example. It will be interesting to see what role 
issues of this nature will eventually play in negotiations with library unions. 

A second area of particular interest is the strength of library unions 
themselves. Will library unions be able to function as separate units, or will 
they be forced to amalgamate with larger unions, sacrificing autonomy for 
necessary leverage? In most areas, librarians are a highly dispersed minority 
group fulfilling what is probably viewed as a nonessential function; amalga- 
mation with larger groups may therefore be required if any kind of leverage is 
to be developed, even though such groups may regard librarians' needs as of 
minor importance. 

The twentieth annual Allerton Park Institute, at which the papers in this 
book were originally presented, was designed to examine in an unemotional 
way the field of library unionization. Rather than to examine once again the 
good or evil inherent in collective bargaining, or to provide helpful pointers 
for fending off this development, the Institute was designed to present a 
thorough overview of the way in which collective bargaining actually functions 
in libraries. This was accomplished by reviewing the background and current 
problems of library unionization, providing participants with a basic 
knowledge of collective bargaining methods and techniques, and examining the 
impact of collective bargaining on various types of libraries. The papers 
presented at the Institute can be divided into three groups on this general 
basis. 

The first group consists of two papers on the general problems and 



INTRODUCTION xi 

current extent of library unionization. The first of these is by Archie 
Kleingartner, Professor and Associate Executive Director of the Institute of 
Industrial Relations at the University of California, Los Angeles, and Jean 
Kennelly, Assistant Professor in the School of Librarianship, University of 
Washington, Seattle. They review the current nature and extent of library 
union activity and consider such issues as the problem of professionalism, 
alternative forms of organization (professional associations and single library 
staff associations), the problems of introducing professional goals into the 
negotiation process, and the general future of library unionization. In the 
second paper, Don Wasserman, Assistant to the President for Collective Bar- 
gaining Services, American Federation of State, County, and Municipal 
Employees (AFSCME), deals with the general problems of collective bar- 
gaining in the public sector, with particular emphasis on the experience of 
AFSCME in this area. 

The second group of papers deals with specific technical issues in the 
area of collective bargaining: the legal environment, recognition, bargaining 
units, scope of negotiations, grievances and disputes. The first of these papers 
is by Andrew Kramer, Executive Director of the Office of Collective Bar- 
gaining, Springfield, Illinois, who reviews the confusing legal status of library 
unionization. Kramer places emphasis on the public sector, to which the 
National Labor Relations Act does not apply, and he reviews the great variety 
of patterns which exist in various states. In the following paper, Martin 
Schneid, Assistant to the Regional Director at the National Labor Relations 
Board (NLRB), Chicago, discusses the area of recognition and bargaining units, 
particularly as they apply to libraries in the private sector. Schneid's back- 
ground is of particular interest because of his involvement with the University 
of Chicago library case, which was concerned in part with the definition of 
supervisory personnel, an issue of particular importance in library unioni- 
zation. Schneid also discusses the problem of including professional and 
nonprofessional personnel in the same bargaining unit and devotes con- 
siderable space to the nature of unfair labor practices and the activities of the 
NLRB in this area. R. Theodore Clark, partner at Seyfarth, Shaw, Fairweather 
& Geraldson, Chicago, discusses two general areas: the obligation to negotiate 
in good faith, and the determination of the proper scope of negotiations. In 
the first area he explains what union and management representatives may and 
may not do under current labor law. In his explanation of the scope of 
negotiations, he pays particular attention to the public sector, where the 
determination of this scope is particularly difficult. Here he examines the 
impact of state management rights laws and civil service laws, as well as the 
impact of other state statutes and municipal charters and ordinances. Martin 
Wagner, Professor at the Institute of Labor and Industrial Relations, Uni- 
versity of Illinois at Urbana-Champaign, discusses the general area of 



xti FREDERICK A. SCHLIPF 

grievances, emphasizing how the problem of grievances relates to the entire 
area of unionization and the various ways grievances are handled in actual 
situations. In the final paper of this section, James L. Stern, Professor at the 
Department of Economics, University of Wisconsin at Madison, discusses and 
evaluates the various methods of impasse resolution in the public sector. 
Impasse resolution in this area is complicated by the fact that the use of 
certain tactics (such as the strike) has traditionally been legally denied to 
public employees. Stern describes each of the possible techniques including 
mediation, factfinding, arbitration, nonstoppage striking, continuous bar- 
gaining, referenda and strikes describing how they have been used and eval- 
uating their relative effectiveness in the resolution of disputes. 

At the Institute the presentation of these five papers on the particular 
issues and techniques of collective bargaining was followed by a seven-hour 
training session on negotiating a union contract. This session was organized 
with the help of Morris Sackman of the Division of Public Employee Labor 
Relations, Labor Management Services Administration, U.S. Department of 
Labor. Participants at the conference were divided into ten small negotiating 
groups, each consisting of five-person union and management negotiating 
teams, which had to resolve an elaborate hypothetical labor-management 
situation to avoid resorting to strike. This simulation session is discussed in a 
paper by Robert Brown, Assistant Director of the Graduate School of Library 
Science, University of Illinois at Urbana-Champaign. 

The final section of the volume consists of three papers concerned with 
the impact of unionization on the library world. The first of these papers is 
by Milton Byam, Director of the Queens Borough Public Library, New York 
City. Byam discusses the evolution and variety of public library unions, and 
he describes the special problems encountered in negotiating and resolving 
grievances and impasses, in coping with special legislation, and in operating 
in the public sector. The second paper in this section is by Margaret Beckman, 
Library Director at the University of Guelph, Ontario. Beckman discusses the 
implications of unionization for academic libraries and covers a wide variety 
of areas, ranging from the appropriate general approach to management and 
the various possible formalized personnel procedures to the problems of 
protecting library services and permitting future technological changes. She 
examines the impact of strikes on academic libraries and suggests methods for 
developing workable personnel relations before an impasse occurs. 

Two additional items are included as appendices to the volume. The first 
is a glossary of collective bargaining terms prepared by the Labor Relations 
Training Center, Bureau of Training, United States Civil Service Commission. 
This glossary defines more than 100 common terms encountered in collective 
bargaining and will be helpful to the reader in dealing with the papers in this 
book. The second item is a selective, annotated bibliography of publications 



INTRODUCTION xiii 

on collective bargaining in libraries, prepared for this book by Margaret 
Chaplan, Librarian at the Institute of Labor and Industrial Relations, Uni- 
versity of Illinois at Urbana-Champaign. This bibliography is in part a biblio- 
graphic essay and is structured on a subject basis. 

No published conference volume can reproduce the actual experience of 
attending an institute. The papers in this volume were all followed by 
extensive discussion when presented at the Institute, and this discussion has 
not been reproduced here. The Institute was concluded by an informal panel 
discussion on the future of unionization in libraries, led by Milton Derber, 
Professor at the Institute of Labor and Industrial Relations, University of 
Illinois at Urbana-Champaign, and including Katherine Armitage, Coordinator 
of Library Instructional Services at Sangamon State University Library in 
Springfield, Illinois; Margaret Bikonis, member of the Park Forest, Illinois, 
Library Board; and Morton Coburn, Assistant Chief Librarian, Chicago Public 
Library. This discussion also has not been included in this volume. Two of the 
papers those by Wasserman and Wagner are actually edited transcriptions of 
tape recordings, and Byam's paper, which was quite brief, has been augmented 
by the inclusion of several additional observations he made while presenting it. 
Only a brief summary can be made of the collective bargaining simulation 
session, and no volume can reproduce the experience of being isolated for 
three days on a semi-rural estate with 100 librarians concerned with collective 
bargaining. 

Any institute of this type involves the work of many individuals. In 
addition to the speakers and other authors mentioned above, the many people 
who helped to plan and organize the Institute deserve special thanks. My 
colleagues on the planning committee included Robert Brown, Assistant 
Director, Graduate School of Library Science, University of Illinois; Milton 
Derber, Professor, Institute of Labor and Industrial Relations, University of 
Illinois; and Mary Quint, Manpower Consultant, Library Development Group, 
Illinois State Library, Springfield. Herbert Goldhor, Director, Graduate School 
of Library Science, University of Illinois, served on the committee in an 
ex-officio capacity. Brandt Pry or of the University of fllinois's Office of 
Continuing Education and Public Service, Conferences and Institutes, served as 
institute supervisor and handled the many problems associated with the 
day-to-day management of the Institute. A large group devoted several days of 
their time to the preparation and management of the simulation session; in 
addition to Morris Sackman and the members of the planning committee, 
these included: Ray Gilbert, Labor Management Services Administration; Mary 
Jo Detweiler and Kathleen Kelly Rummel, Illinois State Library; Gerald 
Podesva and Jack Prilliman, Lewis and Clark Library System; Margaret 
Chaplan, Gary Frank and Daniel Gallagher, Institute of Labor and Industrial 
Relations, University of Illinois; Jean Baron, Trustee of the Evanston Public 



xiv FREDERICK A. SCHLIPF 

Library, Evanston, Illinois; and Jerry Parsons, University of Illinois Library. 
Arlynn Robertson and her staff at the Publications Office at the Graduate 
School of Library Science transcribed and typed papers, corrected errors and 
verified citations, and beat me into line when I showed signs of falling by the 
wayside. Without the efforts of all of these people, the twentieth annual 
Allerton Park Institute could never have taken place and this book would have 
been impossible. 

FREDERICK A. SCHLIPF 
Editor 



ARCHIE KLEINGARTNER 

Professor of Industrial Relations 

Graduate School of Management 

University of California, Los Angeles 

Los Angeles, California 

and 
JEAN R. KENNELLY 

Assistant Professor 

School of Librarianship 

University of Washington 

Seattle, Washington 



Employee Relations in Libraries: 
The Current Scene 



Although only a small proportion of the librarians in the country 
have actually become union members, the issue of library unionization 
has attracted attention throughout the profession, and much of the most 
active library discussion of recent years has been concerned with it. 1 

Those words were written thirty-five years ago by Bernard Berelson in 
an influential article about unionization and employee relations in American 
libraries. What Berelson described was basically the reaction to passage of the 
National Labor Relations Act (NLRA) in 1935, and to the economic and 
social conditions of the 1930s which precipitated a wave of union organi- 
zation in the mass production industries of America. Not only librarians and 
the American Library Association took note of these developments; some 
salaried professions went much farther than the librarians in responding to the 
circumstances of the 1 930s. 

During that decade and in the 1940s, a number of professional engi- 
neering societies (e.g., the American Society of Civil Engineers) sponsored 
collective bargaining programs. 2 The major motivation of these societies was, 
however, to prevent the unionization of engineers. Because the NLRA gave no 
special consideration to the problems and interests of professional employees, 
many persons during that period were concerned that professional employees 
in industry would be absorbed by bargaining units in which the majority were 



2 ARCHIE KLEINGARTNER AND JEAN R. KENNELLY 

nonprofessionals. 3 The rationale of the engineering societies to justify this 
departure from their traditional opposition to all forms of collective bar- 
gaining is described as reflecting the view that: "while unionism is unpro- 
fessional, collective bargaining, if conducted on a conservative and dignified 
plane is not, in itself, objectionable. It was therefore argued that the collective 
bargaining device be taken over . . . and the societies were urged to take on 
collective bargaining functions or to organize an all-inclusive association for 
this purpose." 4 

The engineering societies quickly lost interest in collective bargaining 
after passage of the Taft-Hartley amendments to the NLRA in 1947, which 
provide in Sections 2(12) and 9(b) that professionals are not to be included in 
a unit with nonprofessionals unless a majority of the professional employees 
vote for such inclusion. Since they were never really committed to the 
principle of collective bargaining, the professional provisions of Taft-Hartley 
and the subsequent decline in union activity among engineers served the 
societies' purposes well. One might question whether they served the interests 
of working engineers equally well. 

Unlike some of the engineering organizations, the various library asso- 
ciations tended during that period to emphasize their professional orientation 
and remained aloof from collective bargaining. Berelson estimated in 1939 
that the total number of librarians who were union members was somewhat 
over 700. 5 In a modest way, the 1930s represented an upsurge of interest by 
librarians (as distinguished from library associations) in collective bargaining. 

We have called attention to the actions of the engineering societies in 
order to emphasize the long history of efforts by professionals to devise a 
system of decision-making in the employment relationship that would protect 
personal, professional, and economic goals. A realistic appraisal of the current 
scene of employee-management relations in libraries must be viewed against 
the backdrop of this evolution. 

In 1939, Berelson correctly observed a growing interest in unionization 
and collective bargaining among librarians. The fact that the total volume of 
union activity in the post-1939 period remained extremely modest does not 
diminish the importance of that development. 

In the 1970s we are observing another period of intense interest in 
collective bargaining. The fact that the 20th Annual Allerton Park Institute is 
devoted entirely to the question of collective bargaining in libraries is strong, 
but by no means the only evidence of the resurgence of interest in this topic 
by the library profession. 

The skeptic will ask, "Is the current scene any different from what 
occurred thirty-five years ago?" That is, have we simply reached another one 
of those points in time when librarians get excited about unionism and 
overreact to developments all with little prospect for lasting impact on 



EMPLOYEE RELA TIONS IN LIBRARIES: THE CURRENT SCENE 3 

libraries, the library profession or individual librarians? In retrospect, it is not 
hard to understand why large-scale unionization of librarians did not occur in 
the 1930s. At the time, most union activity was concentrated in the private 
sector of the economy the NLRA applies only to employees in the private 
sector but most librarians are employed in public institutions. From the 
1930s until roughly 1960, relatively little union activity occurred anywhere in 
the public sector. 

We believe that the current interest among librarians in collective bar- 
gaining is justified by emerging developments. Unlike the 1930s, union growth 
and activity is now concentrated where librarians are in the public sector and 
among salaried professional occupations. The NLRA is the Magna Carta for 
manual workers providing the right to organize and bargain collectively in the 
private sector. We are witnessing in the 1970s a rapid extension of legislative 
protection for union activity in the public and nonprofit sectors. Neither 
librarians nor most other salaried professionals can escape the challenges posed 
by these developments even if they wish to do so. Thus, the question in 1974 
is not really: Are librarians interested in collective bargaining? The question is: 
hi what form will the library profession be swept up by the general growth of 
union activity in the public sector? 

However, it is not only the rapid expansion of collective bargaining 
legislation for public employees that has changed: there is also a vastly 
different atmosphere in the 1970s from that in the 1930s which affects 
librarians as much as it does other professionals. Several elements have con- 
tributed to this new climate. Union growth and collective bargaining among 
professionals have had a slow but continuous expansion since the 1930s. 
Today few professionals would argue that collective bargaining per se is 
incompatible with professionalism. There is a new appreciation of what it 
means to be a salaried professional and a concurrent change in professionals' 
expectations of what they want to derive from the employment relationship. 
Both established unions and traditional professional associations have become 
more sophisticated in effectively representing salaried professionals. Library 
administrators as well as leaders of professional organizations everywhere are 
being forced into a reappraisal of their style of leadership, their relationship to 
individual professionals, and their role in the collective bargaining process. The 
concept of participation in decision-making has for many professions become 
a slogan in promoting various methods to bring about a greater degree of 
involvement in the management of the employing organization, one of these 
methods being collective bargaining. The many concrete and visible achieve- 
ments of collective bargaining by the organized work force since the 1930s 
have not gone unnoticed by unorganized professionals. We intend in this paper 
to touch on the implications of these elements in the course of analyzing the 
current labor relations scene in libraries. 



ARCHIE KLEINGARTNER AND JEAN R. KENNELLY 



Number of Percentage of Number Involved Percentage Involved 
Type of Library Librarian?* U.S. Librarian^ 3 in Bargaining in Bargaining 



School (elementary- 


52,000 


46 


17,160 C 33 (c 


secondary) 








Academic (community 


19,500 


17 


3,900 d 20 d 



college through 
university) 



Public 
Special 


26,500 
16,000 


23 
14 


2,650e 
160 f 


10* 
if 



Total 



114,000 



100 



23,870 



20 



Table 1. Estimated Extent of Collective Bargaining among 
Librarians by Type of Library 

a The term "collective bargaining" as used here should be interpreted broadly in that it refers 
to that negotiations process entered into by librarians and employers or their representa- 
tives with the intention of bringing about bilateral determination of employment matters of 
mutual concern. Only the figures given for school librarians represent bargaining completed 
through the contract stage. 

Estimates of the numbers of U.S. librarians by type of library are those from the Bureau of 
Labor Statistics given in The Bowker Annual of Library and Book Trade Information, 19th 
ed. 6 

Negotiation Research Digest" 7 states that at the close of the 1972-73 school year, 934,000 
NBA members (two-thirds of the organization's 1,500,000 members) were covered by bar- 
gaining contracts. Assuming also a two-thirds representation by the AFT (membership 
229,000, World Almanac, 1974, p. 107), a total of 1,010,333, or approximately one-third 
of the teaching work force in the United States, are represented through collective bargain- 
ing. Presumably one-third of the school librarians are also represented, the school librarian's 
identity resting as it does with the teaching work force. The figure given here includes only 
those school librarians under bargaining contracts and does not reflect the many school 
librarians who are members of NEA or AFT but are not yet represented by bargaining 
contracts. 

A rough estimate which rests on the figures reported in the 1971 survey of bargaining in 
institutions of higher education reported by Kennelly. 8 Thirty percent of the national 
random sample surveyed reported bargaining in progress. Sixty percent of those institutions 
which reported bargaining also reported that librarians were included in the faculty bargain- 
ing unit. These precentages have been applied to the number of academic librarians given in 
The Bowker Annual. 6 

e An estimate of unionized public librarians reported by Guyton. 9 

An arbitrary estimate only; no systematic data regarding bargaining by special librarians 
have come to the authors' attention. 



EMPLOYEE RELA TIONS IN LIBRARIES: THE CURRENT SCENE 5 

EXTENT OF UNION ACTIVITY 

There are no precise figures on the number of librarians who are covered 
by collective bargaining agreements, who are union members, or who are 
engaged in bargaining under other than union auspices. Although such figures 
are not available (there is an obvious need for research in this area) the 
estimated involvement by librarians in collective bargaining is approximately 
10 percent of the public librarians, 20 percent of the academic librarians, 33 
percent of the school librarians, and a scattering of special librarians. Table 1 
provides a comparison of the extent of bargaining among librarians within 
each of the four types of libraries together with the number of librarians 
employed in each type of library, as reported by the Bureau of Labor 
Statistics. 

The aggregate of these estimated percentages of unionized librarians 
appears to be about 20 percent or approximately 23,870 of the 114,000 
American librarians. Librarians, however, represent only a little over 1 percent 
of the professional labor force. In contrast, for example, elementary level 
teachers alone represent 13 percent of the total American professional work 
force. 10 

One measure of increase in union activity which holds special import for 
academic librarians has resulted from the rapid growth of bargaining by 
college and university faculties. In its annual summary of such activity in 
two-year colleges, four-year colleges, and universities, the Chronicle of Higher 
Education in 1971 reported 81 campuses with recognized bargaining agents. 11 
By the spring of 1974, the figure had risen to 338 American campuses with 
recognized bargaining agents for faculty. 12 A 1971 survey inquiring into the 
inclusion of librarians in faculty bargaining units found that approximately 60 
percent of those campuses engaged in faculty bargaining did include librarians 
in such units. 8 More recently, John Weatherford's survey for the Council on 
Library Resources identified several schools which had specifically excluded 
librarians from faculty bargaining units, among them the sizable University of 
Delaware. 13 

Elementary and secondary school librarians are even more closely iden- 
tified with teaching faculties than are academic librarians with faculties in 
higher education. The National Education Association (NEA) and the 
American Federation of Teachers (AFT) together represent in bargaining over 
one-third of the country's teachers. It is reasonable to assume, and we have 
done so in Table 1 , that this figure includes approximately one-third of the 
country's 52,000 school librarians. 

Although the number of librarians represented by unions in a bargaining 
relationship is only about one-fifth of the potential, this figure substantially 
understates the number of librarians who are affected by bargaining activity, 
and omits entirely the number of librarians who receive some form of 



6 ARCHIE KLEINGAR TNER AND JEAN R. KENNELL Y 

representation from quasi-union professional associations and from single library 
staff organizations. 

Another measure of the fact that unionism for librarians is attracting 
wide and active discussion is the number of articles on the subject published 
and indexed in Library Literature. In the ten -year period between 1960 and 
1970, approximately eighty citations have appeared, 14 and in the first three 
and one-half years of the present decade, from 1970 through April 1974, 
more than 100 citations have been counted under the heading "library 
unions" alone. Numerous additional articles can also be found under headings 
such as "strikes" and "labor and the library." 

PROFESSIONALISM AND COLLECTIVE BARGAINING 

William Goode, in analyzing professionalism from the viewpoint of a 
sociologist, made himself unpopular with librarians by concluding that 
librarianship, along with nursery school teaching and podiatry, will never 
become a profession in the full sense. 15 Louis Vagianos, a librarian, argues 
that librarians should stop seeking the unnecessary and elusive label of pro- 
fessional in favor of skilled service worker status which would improve among 
other things their potential for unionization. 1 6 Discounting the complaints of 
the many librarians who assert that "librarians are just as professional as 
lawyers and professors and should be paid a comparable salary and be given 
the same respect," the truth probably lies somewhere between the view that 
librarianship will never become a profession and the view that librarians 
should accept their skilled worker status and do away with the wishful talk 
about professionalism. Wherever the truth may lie, however, the concept of 
professionalism is central to the many questions which surround and touch 
upon employee relations and collective bargaining in libraries. 

Clark Kerr has described the American university as a mass of uneasy 
confusion. 1 7 So we might describe the library in America today, especially 
with regard to the status of its professional staff: the library is seen in varied 
roles such as book depository, information storehouse, educational agency, 
and community or social center; the librarian assumes varied roles such as 
bookperson, custodian, information scientist, educator, and social activist or 
community helper. There is widespread disagreement about the function, 
purpose and appropriate organizational scheme of the library, as well as about 
the chief function of a library. That is, how different are the functions and 
purposes of public, academic, school and special libraries? Who is in charge of 
the library? Who should be? Should the library director or chief librarian 
carry principal authority? Or should the staff of librarians themselves as 
autonomous professionals serve as the library's chief decision-makers? These 



EMPLOYEE RELATIONS IN LIBRARIES: THE CURRENT SCENE 

questions touch upon crucial aspects of the librarians' concerns with their 
professional status. 

In a collective bargaining environment the decision as to whether an 
occupation is designated as professional may have an important influence on 
the composition of the bargaining unit, the scope of negotiations, status as 
managerial employees, eligibility for certain perquisites, and related matters. 

Professionalism impinges on unionism and collective bargaining, but the 
opposite also occurs. For example, has collective bargaining enhanced the 
status and autonomy of the librarian as a professional, or has it had the 
opposite effect? How does collective bargaining affect the ability of both 
administrators and professional staff to achieve their personal goals and meet 
their professional and organizational responsibilities? Be it public, school, 
special or academic library, the American library today is not likely to escape 
struggling with such pressing questions associated with the concept of pro- 
fessionalism. Research into the literature on professionalism and the rise of 
various occupations to professional status reveals no general agreement on the 
meaning of the terms "profession" and "professionalism." Nor is this the 
place to attempt such a definition. Yet it is apparent that recognition of 
professionalism has important social and economic consequences for the 
members of the occupation who wish to be accorded professional standing in 
our society; it carries for its members an important assignment of differential 
prestige. For some occupations the label rather than the substance of pro- 
fessionalism may be the end being sought. 

An important element of the ideology of professionalism has been that 
there exists an essential harmony of interests between the employer and the 
professional staff. As an expression of ideology, few of us would quarrel with 
this formulation. Undoubtedly most librarians and library administrators 
would agree that fundamentally they share in the same responsibilities and 
have a joint interest in developing the field of librarianship. However, many 
employers and professional administrators have used the concept of harmony 
of interest as the basis for a broadside attack on efforts of salaried pro- 
fessionals to organize for purposes of collective bargaining. In effect, these 
administrators argue that professionals should eschew unionism and collective 
bargaining on the grounds that it constitutes unprofessional conduct; because 
there exists a fundamental harmony of interests, mutual confidence is 
endangered and effectiveness blunted when a union enters the picture; the 
union is perceived as driving a wedge between staff professionals and admin- 
istrators. These same persons would argue that any problems arising in the 
employment relationship can be solved through improved communication and 
consultation. What this kind of argument does is equate professionalism with 
loyalty to management. An interest in unionism is automatically viewed as an 
expression of disloyalty, and by extension as unprofessional conduct. In our 



8 ARCHIE KLEINGAR TNER AND JEAN R. KENNELL Y 

mind there is no doubt that this argument reflects purely managerial interests 
rather than a concern with maintaining high professional standards. 

A more realistic conceptualization of the essential nature of the relation- 
ship between staff professionals and administrators can be found in a series of 
six propositions set out by Jack Barbash: 18 (1) management-employee rela- 
tions inevitably generate problems; (2) the character of the work makes little 
difference; (3) it makes no difference who the employer happens to be; (4) 
although the essential differences of interest between those who are employed 
and those who employ may be made more bearable, they cannot be 
eliminated; (5) if there is a difference of interest between the two parties, 
neither side can be trusted adequately to protect the interests of the other no 
matter how high-minded the management, it cannot adequately protect the 
interests of the employees, and even if it could the employees would not trust 
management to do so unilaterally; and (6) the only practical way to resolve 
this inherent conflict between employer and employees rests with a 
mechanism in which either side can say "no" to the other. 

Barbash's principles seem applicable to the situation of librarians. 
Librarians as salaried personnel are in a direct relationship with the employer. 
Because the employer has many of his own goals to achieve, there will 
develop conflict at various points between his legitimate goals and the equally 
legitimate goals of the employees who have their own definition of the 
imperatives for success and survival. Librarians, like other groups of salaried 
professionals, form protective organizations to speak for and defend their 
interests in dealings with the employer. 

PROTECTIVE ORGANIZATIONS AMONG LIBRARIANS 

There are basically three kinds of protective organizations that claim the 
ability to represent the job and professional interests of librarians-the pro- 
fessional association, the labor union, and the single library staff association. 
Considerable variations exist among the organizations within each of the three 
types. Of the three, the library staff association is perhaps the least important 
insofar as labor relations are concerned; thus, it will be treated last and very 
briefly. 

The Professional Association 

Among librarians, the dominant form of organization has been the 
professional association. Librarians have shown a tendency toward pro- 
liferation of associations to the point where there are now, in addition to the 
ALA, more than thirty organizations which are national in scope although 
oriented toward various specializations and service areas. 1 9 



EMPLOYEE RELA TIONS IN LIBRARIES: THE CURRENT SCENE 9 

The predominant association, the ALA, is broadly based with a fairly 
open membership policy. This is not to say that the ALA is fully repre- 
sentative of American librarians. In 1973, ALA's membership stood at 30,172 
(28,267 personal members) or about 25 percent of the 114,000 American 
librarians. But this membership figure includes many who are not librarians- 
trustees, friends of libraries, etc. Interestingly, too, the 30,172 figure 
represents a decline in membership by some 7,000 from the peak membership 
year, 1969. 20 

The ALA, as the most visible professional association and the oldest, 
now approaching its one-hundredth anniversary may be taken as the 
librarians' counterpart to the National Education Association (NBA), the 
American Nurses Association (ANA), and the American Association of Uni- 
versity Professors (AAUP). Unlike these other organizations, however, the 
ALA has paid relatively little attention to immediate job matters and has 
concentrated instead on broad professional objectives such as establishing 
standards for professional practice, accrediting library schools (although there 
are still more nonaccredited than accredited schools), holding annual con- 
ferences, and publishing journals. 

The ALA's leadership posts are often filled by persons high in the 
management hierarchy. Like many other professional organizations, the ALA 
has fostered an attitude of full cooperation between employer and employee 
under the assumption that there exists a fundamental identity, not a conflict 
of interest, among members regardless of their status as employee, employer, 
or even trustee. In its view, improved communication, consultation and edu- 
cation of members, with the organization acting as catalyst, would work to 
solidfy and strengthen the bonds of common concern and interest to all 
members. By contrast, the ANA, the NBA, and the AAUP all have developed 
collective bargaining programs and compete with established unions to obtain 
representation rights. The ANA adopted such a policy as early as 1946, and 
today collective bargaining on behalf of registered nurses is undoubtedly its 
most important function. The NBA reluctantly turned to collective bargaining 
in the early 1960s, largely as the result of the pressure created by the success 
of the AFL-CIO-affiliated American Federation of Teachers (AFT). Today the 
NBA and AFT pursue very similar collective bargaining policies, and there is 
talk about a merger of the two national organizations. The AAUP formally 
adopted a collective bargaining program in 1968, in part as a result of the 
success of both the NBA and the AFT among college and university faculties. 

The ALA has never officially or actively opposed library unionism. 21 As 
early as 1919, speakers were invited to discuss the advantages and disad- 
vantages of union membership at a trustees section meeting. (However, ALA 
trustees did not present their views at this meeting.) In 1938, the ALA 
Library Unions Round Table (LURT) was formed by library union members 



10 ARCHIE KLEINGARTNER AND JEAN R. KENNELLY 

to coordinate the work of existing unions and to act as a clearinghouse and 
advisory agent for employees forming new unions. By the late 1940s the 
LURT had become inactive, its recommended resolutions never having been 
acted upon by the ALA council. The ALA's first semiofficial comment on 
unionism was made in 1939, when the Third Activities Committee included in 
its final report on reorganization and evaluation of association purposes a 
strong statement in favor of unions. 22 The report was sent to the 1939 
council but was not discussed. Thirty years later, in 1968, the subject again 
surfaced officially. ALA's President Roger McDonough, in his inaugural 
address, stated, "I am not against unions per se; I don't feel that unions can 
or will exhibit the same concern for the profession that we do." 23 Stimulated 
by this statement, a 1969 preconvention conference explored the problem of 
professional associations versus unions, and in 1970 the Library Adminis- 
tration Division Board of Directors adopted a position statement on collective 
bargaining. Although approved by the executive board of the ALA in April 
1970, the position statement has not appeared in the association's official 
publication, American Libraries, nor has it been approved by the membership. 
The position paper states that the ALA will promote bargaining legislation, 
inform its constituents about bargaining trends, assist library personnel in data 
gathering, and encourage training programs relating to bargaining. However, 
the document also states: "The collective bargaining concept and collective 
bargaining laws generally preclude the membership of both managers and 
other personnel in the same union or bargaining group. . .constitutional 
provision precludes ALA's becoming a bargaining organization within its 
current membership and dues structure." 24 Such a stand reasserts ALA's 
position as an old-line professional association virtually unmoved by the 
current trend toward bargaining. Its position is in striking contrast to the 
posture taken by those professional organizations mentioned previously that 
have not only officially endorsed bargaining, but also have actively engaged in 
collective bargaining on behalf of their members. 

We may contrast the ALA's position with that of the AAUP, for 
example. The AAUP's statement on collective bargaining, although retaining 
professional association ideology, makes a firm commitment to collective 
bargaining as an appropriate mechanism for achieving faculty goals. The 1972 
council position on collective bargaining reads in part: "The AAUP will pursue 
collective bargaining, as a major additional way of realizing the Association's 
goals in higher education and will allocate such resources and staff as are 
necessary for a vigorous selective development of this activity beyond present 
levels . . . there is pressing need to develop a specialized model of collective 
bargaining for higher education rather than simply to follow the patterns set 
by unions in industry." 25 

In summary, it would appear that professional library associations have 



EMPLOYEE RELA TIONS IN LIBRARIES: THE CURRENT SCENE 11 

not actively opposed collective bargaining efforts, nor have they significantly 
encouraged movement in this direction. The fact is that over the years, these 
associations have been relatively passive regarding the employment problems 
of professional librarians. A study completed in the mid-1960s concluded 
"that the professional associations among nurses, teachers, engineers, and, in 
all probability, other salaried professions as well, appear to have the 
capacity by adapting to the changing needs and conditions of the pro- 
fessionsfor discouraging large-scale unionization in the forseeable future. 
Even while eschewing any identification with labor unions, these associations 
appear quite willing to act like unions to protect their dominant positions in 
the professions." 26 

The major associations among teachers and nurses have effectively made 
the adjustments in structure and function to encompass the need for effective 
bargaining on behalf of their members. The AAUP seeks to remain the 
dominant professional organization among faculty by adopting a collective 
bargaining stance; the outcome is still uncertain. In the case of librarians, the 
actions taken by the ALA in 1970 probably preclude the association from 
becoming a collective bargaining representative for librarians. However, were 
the ALA inclined even now to develop a collective bargaining program and to 
seek representation rights for librarians, we suspect that effort would not have 
much prospect for success. Such a decision might have succeeded during the 
1960s; now it appears too late. Therefore, the basic pattern of labor relations 
in libraries is being developed within the framework of employee organizations 
already deeply committed to collective bargaining. 

The Labor Union 

What distinguishes the unions from the various associations in light of 
the present discussion is their early acceptance of the concept of collective 
bargaining with the employer. The unions, being characterized by varying 
degrees of militancy and success, were vigorously opposed by many librarians 
and by library management. 

In the case of salaried professionals it is generally an oversimplification 
to draw a sharp distinction between the professional association and the union 
model. This matter requires some elaboration here because for many pro- 
fessionals the word "union" invokes an image of industrial unions in the mass 
production industries. The stereotype in many people's minds is that of a 
strike-happy organization, led by power-hungry leaders who care about 
nothing but getting more money, tying management's hands, and stifling any 
opportunity for individual growth and achievement. That this stereotype does 
not describe the unions with which the writers are familiar needs to be stated, 
but not belabored. We wish to emphasize, however, that many of the unions 



12 ARCHIE KLEINGAR TNER AND JEAN R. KENNELL Y 

seeking to represent professional employees differ in significant ways from 
those usually portrayed as being the mainstream American labor movement. 
The more successful of them tend to comprise an amalgam of characteristics 
drawn from both traditional professional associations and traditional trade 
unions. Perhaps a more accurate description would be to call them quasi- 
unions or quasi-professional organizations. 2 7 

The 1960s saw a marked movement in the direction of convergence of 
goals, tactics and strategies of the two kinds of protective organizations the 
associations and the unions. That convergence has advanced farther among 
some salaried professionals (e.g., teachers and nurses) than it has among others 
(e.g., engineers and scientists). 

We have seen actual mergers of associations and unions, notably those of 
the NBA and the AFT affiliates in the city of Los Angeles and on a statewide 
basis in New York. We have also seen significant functional changes on the 
part of professional associations; a notable example is the American Asso- 
ciation of University Professors. We have even seen shifts in identity from 
professional association to union, as exemplified by the NBA. In short, we are 
witnessing the demise of the primacy of pure professional associations and the 
pure union in the world of professional employee relations. Among pro- 
fessional associations of librarians, however, we have witnessed neither mergers 
nor functional or identity changes. 

Because librarianship lacks a professional association as trend setter in 
bargaining the ALA having gone on record as refusing to function in this 
role librarians have tended toward diversity in the kinds of bargaining under- 
taken. Those employed in academic libraries, as already noted, have more 
often than not been included in a faculty bargaining unit, represented 
variously by the NBA, the AFT, the AAUP, or independent bargaining agents. 

Librarians in public libraries have bargained chiefly through established 
unions, notably the American Federation of State, County, and Municipal 
Employees (AFSCME). AFSCME locals of library personnel tend to vary as to 
the composition of the bargaining unit. In New York, for instance, extremely 
successful AFSCME locals at three major libraries-the Brooklyn Public 
Library, the Queens Borough Public Library, and the New York Public 
Library have been composed of approximately the same number of clerical 
and blue-collar employees as of librarians. Librarians in the city of Los 
Angeles, which along with the Brooklyn and New York Public libraries is 
considered one of the three largest library systems in the country, organized 
through an AFSCME local which represents librarians only. Librarians em- 
ployed by the Los Angeles County Library are represented by the Service 
Employees International Union in a unit consisting entirely of librarians. 

Another pattern of bargaining unit composition consists of multiple 
occupational categories at several levels of government in the same bargaining 



EMPLOYEE RELA TIONS IN LIBRARIES: THE CURRENT SCENE 13 

unit. Librarians in Philadelphia, Milwaukee, and Rochester, New York are 
represented in such mixed bargaining units. 2 8 

While the AFSCME's share of organized librarians has grown con- 
siderably with the nationwide increase in public sector collective bargaining 
since the 1 960s, numerous independent mixed units of public employees also 
represent librarians. 29 The Civil Service Employees association of White Plains, 
New York is an example of the independent municipal employees' union. 
Opinion is divided as to the appropriateness of a mixed unit for librarians. In 
response to an attitudinal survey conducted in 1968 as a project of the ALA's 
Library Administration Division, both administrator and union views differed 
sharply. Asked if library employees should be part of the same bargaining unit 
as other city employees, one administrator replied "No," while another sug- 
gested that fifty library employees within the city's employee group of 2,000 
would have less leverage in a separate unit than in one which included 
nonlibrarians. Similarly, one union spokesman supported the strength- 
in-numbers argument while another noted that mixed units were especially 
inappropriate for professional librarians who have no counterparts in other 
city departments. 30 

There is mounting evidence of concern over strength through size of 
bargaining units. Dennis Stone emphasized this in his assessment of the 
prospect of unionism as of summer 1974. He noted that the consensus of union 
and association offices in Washington, D.C., was that librarians were 
simply too small a group to be effective in bargaining units representing only 
librarians. 31 Stone believes that two public employee bargaining bills sup- 
ported by organized labor, if enacted at the federal level, would bring 
considerable impetus to bargaining among librarians and other public 
employees. One of the bills (HR 8677) would set up a National Public 
Employment Relations Commission (NPERC) for public employees. The other 
bill (HR 9730) would bring public employees under the jurisdiction of the 
present National Labor Relations Act. Should either bill pass and many 
persons predict that such legislation will be passed bargaining unit com- 
position would undoubtedly become more uniform along the guidelines or 
provisions of the NPERC or the NLRB. 

1 Benjamin Aaron, in his analysis of both pieces of proposed legislation, 
questions the underlying premise of these bills, that is, the desirability of the 
federal government's preemption of the entire field of labor-management in 
the public sector. He suggests that neither bill will be needed if the present 
trend continues among the states toward passage of bargaining legislation at 
the state level for public employees. Aaron argues for a simpler approach than 
the full-scale federal control over public employee bargaining as proposed in 
both these bills. He suggests instead a federal statute which would establish 
basic bargaining rights for public employees, those rights having been already 



14 ARCHIE KLEINGAR TNER AND JEAN R. KENNELL Y 

established in most large states. The statue would apply only in those states in 
which legislation has not already been passed affirming, for example, the 
absolute right of public employees to organize and to engage in collective 
bargaining (as opposed to so-called meet and confer procedures) as well as five 
related basic bargaining rights. 3 2 

The bargaining units established under the National Labor Relations Act, 
Executive Orders 10988 and 11491 for federal employees, and most of the 
legislation adopted for state and local employees, rest on the fundamental 
criterion of "identifiable community of interest" rather than the "broad 
common goals" criterion which is favored by many library administrators. 
Management often considers as the most appropriate bargaining unit the 
broadest grouping of employees, because this permits dealing with one large 
all-inclusive unit rather than a multiplicity of competing organizations. 

An appropriate unit with an identifiable community of interest is 
usually defined in terms of distinctiveness of function, similarity of job skills, 
and mutual interests in job-related problems and grievances. In the case of a 
library, the broad goals which all employees presumably hold in common for 
example, high quality service to the public might be the basis for the most 
appropriate unit. With identifiable community of interest currently being the 
single most important consideration in unit determination, the criteria dis- 
tinguishing professionals from other categories of employees become sig- 
nificant. In professional work the emphasis presumably is on the intellectual 
as opposed to the manual activity, on using independent judgment as opposed 
to routine decision-making, on qualitative rather than quantitative output, and 
on specialized and advanced knowledge in contrast to general academic edu- 
cation or vocational training. In the private sector and in federal employment, 
professional personnel may not be included in a unit with nonprofessional 
employees unless a majority of the professional personnel vote for such 
inclusion. The same options are available to professionals in much of the state 
and local legislation that has been enacted for public employees. 33 Many 
questions still remain about how to deal with supervisory personnel. Executive 
Order 11491 for federal employees provides that unless required by practice, 
prior agreement, or special circumstances, no unit may include both super- 
visors and the employees they supervise. Yet, because of uneveness in legis- 
lation, there are many exceptions. The Washington State Professional Nego- 
tiations Act of 1965, for example, provides that all professional employees in 
a given school or community college district, except the chief administrative 
officer, are automatically included in the same bargaining unit. 



EMPLOYEE RELA TIONS IN LIBRARIES: THE CURRENT SCENE 15 

The Staff Association 

A discussion of library employee relations would not be complete 
without mention of the staff association and its potential as a mechanism for 
structuring professional employee relations. However, because staff asso- 
ciations do not and could not engage in collective bargaining without trans- 
forming themselves into at least a quasi-union type of organization, they will 
not be treated here in great detail. Historically, the staff association has served 
principally to organize and to promote social activities, and only informally to 
improve the economic welfare and working conditions of the staff. Bryan's 
1949 study included in the Public Library Inquiry, documented the pre- 
dominance of social activities over all others on the part of staff asso- 
ciations. 34 Ninety-five percent of the librarians in her survey, however, 
expressed a desire that their staff associations work toward improved eco- 
nomic welfare. Another 93 percent see aiding the professional development of 
librarians as a focus for many staff associations. This aim was indicated as a 
desired activity by some 93 percent of the 2,000 public librarians who 
responded to Bryan's survey. 

In academic libraries on campuses where librarians are not represented in 
the faculty senate or by formal collective bargaining, the staff association may 
serve as a representative body for the librarians or as a mechanism to improve 
personnel policy or to bring out greater participation in policy development or 
implementation. Overall, however, if measured on a continuum or scale of 
effectiveness in structuring employee relations, the staff association would lie 
at the laissez-faire extreme. 

PROFESSIONAL GOALS IN BARGAINING 

We have suggested the hypothesis that the wages, hours, and other terms 
and conditions of employment for librarians will increasingly be established 
through negotiations between the employer and a certified bargaining agent. 
Bargaining creates a number of difficult problems for librarians, not shared by 
many other salaried professionals. Most crucial in this regard is the makeup of 
the bargaining unit. School librarians typically find themselves in the same 
unit with teachers, where of course they constitute a small minority, or in a 
unit composed of an assortment of supportive professional and semi- 
professional staff such as school nurses, playground directors, and counselors. 
In colleges and universities we typically find librarians together with the 
teaching faculty, where they again constitute a small percentage of the unit or 
with other nonteacher professionals such as professional researchers, extension 
specialists, and accountants. It is unlikely that there will be many bargaining 
units for school and academic librarians containing exclusively librarians or 



16 ARCHIE KLEINGARTNER AND JEAN R. KENNELLY 

even units where librarians constitute a majority. Public librarians are some- 
what more likely to have their own units, but their problem may be whether 
the unit is large enough or strong enough to be taken seriously by anyone. 
There is little evidence to suggest that the interests of librarians are being 
given special attention in collective bargaining legislation or by agencies such 
as employee relations commissions. Part of the responsibility for this must rest 
with the library profession itself because of its failure over the years to articulate 
a consistent philosophy about the vital job and professional goals of librarians 
and the extent to which collective bargaining might serve to achieve these goals. 

There is now enough experience with professional worker collective 
bargaining in the public sector to suggest, at least in broad outline, the basic 
bargaining strategy of professionals who are in a position to establish their 
own goals and devise their own bargaining policies. 

In many respects, what professionals seek to achieve in their jobs and 
careers is no different from what all other employees professional, as well as 
white- and blue-collarstrive to obtain. But there are also important dif- 
ferences. Of course, differences also exist among those occupations typically 
placed within the category "professional." Professionals everywhere seem to 
hold in common the idea that work is more than "just a job." They expect to 
give a good deal of effort to their work and careers, and they hope to obtain 
a high level of reward for their efforts. To illustrate this commonality, it is 
helpful to separate into two categories the goals sought by professionals. We 
can call then Level I and Level II goals. 

Level I goals may be defined as those relating to fairly short -run job and 
work rewards. These goals are common to all categories of workers, irre- 
spective of education, function, status, and related qualities; they have a 
"now" focus. Typical Level I goals include the fundamental concerns of 
satisfactory wages or salaries, suitable working conditions, fair treatment, 
reasonable fringe benefits, and a measure of job security. While conflicts do 
develop over the employers' obligation to meet employees' specific demands 
with respect to these goals, wherever collective bargaining exists in the public 
sector there is general recognition that they are appropriate subjects for the 
bargaining table. 

Level II goals may be defined as the longer-run professional goals those 
not generally held by manual workers as realizable objectives. Although they 
may be viewed as highly desirable by all workers, these goals are seldom 
translated into concrete objectives except by professionals. They are centrally 
related to the mission and content of the functions performed by members of 
the profession. Much of the substance of Level II goals is encompassed in the 
concepts of autonomy, occupational integrity and identification, individual 
career satisfaction, and economic security and enhancement. 35 Taken together 
these four concepts define much of the substance of professionalism. 



EMPLOYEE RELA TIONS IN LIBRARIES: THE CURRENT SCENE 1 7 

While Level I goals may lack the glamor associated with Level II goals, 
their importance must not be underestimated. Like the first levels of Maslow's 
hierarchy of needs, they serve as the necessary foundation for higher level needs- 
for Level II goals. 36 Historically, librarians as a group have experienced greater 
frustration than many other salaried professionals in achieving Level I goals, 
particularly satisfactory salaries. 

Each of the Level II goals is important to the current reappraisal of em- 
ployee relations in libraries. Salaried professionals no longer derive much satis- 
faction from the rhetoric of professionalism. They are demanding its substance, 
and more and more they are resorting to collective bargaining to achieve it. They 
are no longer satisfied with being told that they are sharing in management 
decision-making, that they are expected to live up to a high professional calling, 
and that unionism is incompatible with professionalism. 

Autonomy, whether for self-employed or for salaried professionals, 
suggests the professionals' right indeed, obligation to practice in their work 
that which they know. They expect to be trusted not judged by those to 
whom they make available their specialized knowledge. Once admitted to full 
membership in the profession, they expect to adhere to a code of conduct 
formulated by the profession and binding on all its members. They desire an 
authority structure which recognizes the characteristics of their professional 
role. Reference librarians in a large university library, for example, who must 
operate under a single-copy purchase policy imposed over their objection by 
the library director and the board, have suffered an erosion of professional 
autonomy. 

Occupational integrity and identification refers to delimitation of pro- 
fessional boundaries in dealings with clients and employees and to attainment 
of public recognition. With respect to internal organization, a profession will 
adopt a policy on entry, will take protective action against threats to its 
prerogatives and status, and will resist transfer of primary loyalty away from 
the profession to the goals of the employing organization. The recent employ- 
ment of a nonlibrarian as head of the San Francisco Public Library has 
received considerable negative response from librarians on the West Coast. The 
upcoming selection of the Librarian of Congress highlights the same issue. 

The matter of individual career satisfaction concerns the professionals' 
desire to retain a good deal of direct control over decisions affecting their 
work and careers. The hierarchical authority structure of most libraries inter- 
poses a screen between the professional employees and the library admin- 
istration, with administrators making most of the critical decisions regarding 
the deployment of professional staff and rewards for performance. "To be 
recognized as experts in their field, especially by their employers," "to be 
protected from unqualified outsiders," "to do satisfying and socially useful 
work," and "to have a predictable line of career development without leaving 



18 ARCHIE KLEINGAR TNER AND JEAN R. KENNELL Y 

the profession," are phrases commonly used in the literature to describe this 
area of interest. Individual career satisfaction has been thwarted, for example, 
for the children's librarian who wishes to practice in his or her area of 
specialization rather than to assume administrative functions, but who finds 
no career ladder available. 

Finally, the concept of economic security and enhancement in the Level 
II goal context goes beyond simple monetary gain. What makes this category 
important is the notion that the level of reward should be pegged not so 
much to the contribution made to the employing organization directly, nor to 
the need for adequate income to sustain a certain standard of living, but 
rather to the direct relationship of rewards and the quality of service 
rendered. Thus, the quality of the library service performed at a branch, 
rather than the number of books circulated or the senoirity of the branch 
librarian, would be the base from which to measure professional worth. 

Several observations may be made in comparing Level I and Level II 
goals. Whereas Level I goals were defined as being more "now" oriented than 
Level II goals, at some point the Level II goals may become just as instantly 
compelling for professionals as Level I goals. 3 7 In collective bargaining, Level 

I items may involve greater immediate dollar cost to the employer than Level 

II items. On the other hand, Level I items are less frequently disputed as 
appropriate subjects for bargaining. The Level II issues, while clearly having 
economic consequences, are from the employer's viewpoint of greatest con- 
cern because they may provide a fundamental challenge to managerial 
authority. For that reason, Level II goals are frequently more intractable in 
terms of conflict over whether they are appropriate subjects for collective 
bargaining. 

The evidence from bargaining by professionals with considerable 
experience in the process indicates that, early in the relationship, the primary 
stress of the bargaining organization seems to be on securing Level I goals, or 
"bread and butter items" as they are frequently called. However, it is also 
true that no sooner are acceptable Level I benefits established than the 
professional bargaining organization turns its attention to Level II issues. In 
actual negotiations, this often takes the form of initially negotiating a concept 
into the contract (such as peer review) and working out in subsequent 
negotiations the details of its implementation. The final outcome often is deep 
penetration into areas of decision-making formerly reserved exclusively for 
management. 

In general (with some notable exceptions), unions composed of and 
oriented toward the problems of manual workers tend to concentrate in their 
bargaining activities on achieving more benefits in the Level I area; if tradeoffs 
are to be made in bargaining, they are typically willing to give up the Level II 
goals for increased Level I benefits. In the case of professional worker 



EMPLOYEE RELA TIONS IN LIBRARIES: THE CURRENT SCENE 19 

bargaining, the process becomes considerably more complex. Any bargaining 
organization that wishes to retain the support of its professional constituents 
in a collective bargaining environment must demonstrate, on a continuing 
basis, its ability to secure Level I goals at an acceptable level. It also seems 
clear, however, that this same organization, if it is responsive to the central 
concerns of professionals, will strive continually to secure Level II goals. 
Stated another way, the organization will work continually to expand partici- 
pation in decision-making in all the areas of concern to professional 
employees. Indeed, it can be argued that if an employee organization does 
otherwise, it would forfeit its claim to being able to represent the full range 
of job and professional interests of its members. The hypothesis may be 
suggested that the greater the degree of professionalism of the occupation 
involved, the greater the pressure on the bargaining agent to work effectively 
in the Level II area. 

This analysis, if correct, raises a number of very important issues for 
librarians in view of the wide assortment of organizations which represent 
them. Do such organizations give the kind of attention to the job and 
professional interests that librarians feel they are entitled to? From our 
perspective, the problem is not that of having to decide whether an AFL-CIO- 
affiliated union or a professional association-turned-bargaining agent can do a 
better job. Each type of organization has demonstrated its basic ability to 
work effectively on behalf of professionals in the employment relationship. 
The dilemma confronting librarians is a more parochial one. In those cases in 
which they have their own bargaining unit, the unit will almost invariably be 
extremely small, in a relative sense, raising questions about its potential 
effectiveness. In those cases in which librarians are combined with non- 
librarians, the former almost invariably constitute a minority in the unit, 
raising the question of whether the distinctive needs and interests of the 
librarians will be given adequate attention. There are so far no easy solutions 
to these problems; nor is it clear to us that librarians will be given much 
choice in the matter. 

The question of unionism and collective bargaining among librarians has 
been a topic of active interest since the 1930s. Although there has been a 
union presence among librarians for many years, its total impact has not been 
great. This situation is likely to undergo drastic change. The 1960s saw the 
beginning of large-scale unionism and collective bargaining among public 
employees, and especially among professionals, a pattern which has continued 
into the 1970s. A substantial majority of the nation's 114,000 librarians are 
employed in public institutions. 

There is nothing that even approaches a consistent pattern in the type 
of organization representing librarians in bargaining or in the composition of 



20 ARCHIE KLEINGAR TNER AND JEAN R. KENNELL Y 

the bargaining units in which librarians find themselves. One can only con- 
clude that the quality of representation librarians receive varies considerably 
from case to case. 

The central conclusion which emerges from our view of the library labor 
relations scene is that librarians, as professionals, appear to have little oppor- 
tunity to exert real influence on the critical decisions involving composition of 
bargaining unit and choice of bargaining agent. In this sense librarians are in a 
dependent position an uncomfortable one for a proud profession to find 
itself in. 

Librarianship constitutes a small profession; its members are dispersed 
geographically and work in many different institutional settings. These and 
related factors undoubtedly contribute to the dependency of librarians on the 
good will of others for their job and professional enhancement. As a pro- 
fession, librarianship has been less vigilant in advancing its professional 
interests and in developing structures for collective action in the employment 
relationship than is true of most salaried professions. 

It seems that the future of employee relations in libraries will depend 
upon the appropriateness and success of existing and changing governance 
structures in libraries. It will depend on the passage of new and changes in 
existing bargaining legislation. It will depend heavily upon the extent of 
professionalization and the projection of this development outside the pro- 
fession. It will depend upon congruence in perceptions of the nature of the 
profession among librarians themselves, as well as among the public at large. 



REFERENCES 

1. Berelson, Bernard. "Library Unionization," Library Quarterly, 9:477, 
Oct. 1939. 

2. Mclver, M.E., et aL Technologists' Stake in the Wagner Act. 
Chicago, American Association of Engineers, 1944; and Northrup, Herbert R. 
"Collective Bargaining by Professional Societies." In Richard A. Lester and 
Joseph Shister, eds. Insights into Labor Issues. New York, Macmillan, 1948, 
pp. 134-62. 

3. Matter of Globe Machine and Stamping Company, 3 NLRB 294 
(1937). This fear among many engineers was to a large extent unfounded. In 
fact, professional engineers were given special consideration by the NLRB in 
the establishment of bargaining units under the Wagner Act. As early as 1937 
the NLRB was applying the "Globe Doctrine," which provides that within a 
plant "where the considerations are evenly balanced, the determining factor is 
the desire of the men themselves." 

4. Shlakman, Vera. "Unionism and Professional Organizations Among 
Engineers," Science and Society, 14:330, Fall 1950. 

5. Berelson, op. cit., p. 497. 



EMPLOYEE RELA TIONS IN LIBRARIES: THE CURRENT SCENE 21 



6. Green, Joseph. "A Three-Year Comparison of Urban-Suburban 
Library Statistics." In Madeline Miele, ed. The Bowker Annual of Library and 
Book Trade Information. 19th ed. New York, Bowker, 1974, p. 236. 

7. "Negotiation Notes," Negotiation Research Digest, 7:15, Jan. 1974. 

8. Kennelly, Jean R. "Collective Bargaining in Higher Education in the 
United States: Conceptual Models and a Survey of Incidence among Faculty 
and Supportive Professional Personnel." Unpublished Ph.D. dissertation 
prepared for the University of Washington, 1972. 

9. Guyton, Theodore L. "Unionization of Public Librarians: A Theo- 
retical Interpretation." Unpublished Ph.D. dissertation prepared for the Uni- 
versity of California, Los Angeles, 1972. 

10. Blitz, Rudolph C. "Women in the Professions, 1870-1970," Monthly 
Labor Review, 97:36, May 1974. 

11. Chronicle of Higher Education, 5:1, May 10, 1971. 

12. Chronicle of Higher Education, 6:24, June 10, 1974. 

13. Weatherford, John. "Librarians in Faculty Unions," Library Journal, 
99:2443, Oct. 1974. 

14. Boaz, Martha. "Labor Unions and Libraries," California Librarian, 
32:104, April/July, 1971. 

15. Goode, William J. "The Librarian from Occupation to Profession," 

ALA Bulletin, 61:544-55, May 1967. See also . "The Theoretical 

Limits of Professionalization." In Amitai Etzioni, ed. The Semi-Professions 
and their Organizations. New York, The Free Press, 1969. 

16. Vagianos, Louis. "The Librarian and the Garbageman: Profes- 
sionalism Reconsidered," Library Journal, 98:391-93, Feb. 1, 1973. 

17. Kerr, Clark. The Uses of the University. Cambridge, Mass., Harvard 
University Press, 1963, p. 18. 

18. Barbash, Jack. "The Elements of Industrial Relations," British 
Journal of Industrial Relations, 2:66-78, March 1964. 

19. The Bowker Annual . . ., op. cit., pp. 461-513. 

20. ALA Membership Directory 1973. Chicago, ALA, 1973, p. 215. 

21. Guyton, op. cit., pp. 1 1 1-14, Chapter 4. 

22. Dudgeon, Matthew S., et al. "Final Report of the Third Activities 
Committee," ALA Bulletin, 33:796, Dec. 1939. 

23. McDonough, Roger H. "An Inaugural Address," ALA Bulletin, 
62:874, July -Aug. 1968. 

24. "The American Library Association and Library Collective Bar- 
gaining" (Position Paper adopted by the Library Administration Division 
Board of Directors, Jan. 21, 1970). In American Library Association. Exe- 
cutive Board Minutes. 1970 Spring Meeting, Chicago, Illinois, April 29-May 1, 
1970. Exhibit 6, unpaged. 

25. Davis, Bertram H. "Council Position on Collective Bargaining," 
A A UP Bulletin, 57:511-12, Winter 1971. 

26. Kleingartner, Archie. "Professional Associations: An Alternative to 
Unions?" In Walter Fogel and Archie Kleingartner, eds. Contemporary Labor 
Issues. Belmont, Calif., Wadsworth, 1966, p. 255. 

27. Schlachter, Gail. "Quasi-Unions and Organizational Hegemony 
within the Library Field," Library Quarterly, 43:185-98, July 1973. 

28. Gardiner, George L. "Collective Bargaining: Some Questions 
Asked," ALA Bulletin, 62:973-76, Sept. 1968. 



22 ARCHIE KLEINGAR TNER AND JEAN R. KENNELL Y 



29. Ibid., p. 975; see also National Trade and Professional Associations of 
the United States and Labor Unions. Washington, D.C., Columbia Books, 
1974, p. 39. 

30. American Library Association. "Collective Bargaining: Questions and 
Answers," ALA Bulletin, 62:1388, Dec. 1968. 

31. Stone, Dennis. "The Prospect of Unionism," American Libraries, 
5:365, July/Aug. 1974. 

32. Aaron, Benjamin. "Federal Bills Analyzed and Appraised by 
Expert," LMRS Newsletter, f:2-4, Nov. 1974. 

33. Prasow, Paul. Unit Determination in Public Employment-Concept 
and Problems (Reprint No. 198). Los Angeles, Institute of Industrial Rela- 
tions, University of California, 1969. 

34. Bryan, Alice I. The Public Librarian: A Report of the Public 
Library Inquiry. New York, Columbia University Press, 1952, pp. 264-71. 

35. Kleingartner, Archie. Professionalism and Salaried Worker Organiza- 
tion. Madison, Industrial Relations Research, University of Wisconsin, 1967, 
Chapter 3. 

36. Maslow, A.H. "A Theory of Human Motivation," Psychological 
Review, 50:370-96, July 1943. 

37. Vollmer, Howard M., and Mills, Donald L. eds. Professionalization. 
Englewood Cliffs, N.J., Prentice Hall, 1966, Chapter 8. 



DON WASSERMAN 

Assistant to the President for Collective Bargaining Services 

American Federation of State, County, and Municipal Employees 

Washington, B.C. 



Unionization of Library Personnel: 
Where We Stand Today 



During the past decade a rapid change has been taking place in public 
employment: public sector employees of all types are joining employee organi- 
zations. Unlike the employee organizations of the past, these are being 
formed for the major purpose of engaging in collective bargaining with em- 
ployers, including state governments, county governments, school boards, local 
governments, universities, colleges, and nonprofit institutions. 

The growth of our own organization, AFSCME (American Federation of 
State, County, and Municipal Employees), may indicate what has happened 
among public employees over the last fifteen years. In 1964, for example, the 
dues-paying membership of our union was about 235,000; today the member- 
ship stands at 700,000, and is made up exclusively of people who work for 
state and local governments and for nonprofit institutions. There has been 
continual pressure on the part of public employees throughout the nation to 
join unions such as AFSCME and other employee organizations. The major 
issue involved seems to be the desire of public employees to introduce the 
concept of bilateralism into the employee relationship. Public sector 
employees number fewer than their private sector counterparts, and in terms 
of employee relations, most institutions and local governments have been run 
on a unilateral basis. Public employees are unhappy with this, and as a result 
the organization of public employees has taken place across the board, 
including not only blue-collar workers, nonprofessional white-collar workers, 
technicians and hospital workers, but also professional employees, especially 
where they are hired in large numbers. For example, AFSCME has substantial 
numbers of social service employees, engineering personnel, and librarians. 
Many of the teachers' groups the National Education Association, the 



This article is an edited transcription of Mr. Wasserman's presentation at the Institute. 



23 



24 DON WASSERMAN 

American Federation of Teachers, and the American Association of University 
Professors have also witnessed considerable growth during this period. 

Until recently, most public employers in most states really did not care 
whether employees joined associations or unions. It was relatively immaterial 
to them, because even when employees joined unions, that was about the end 
of the story. Although the unions may have become involved in some 
handling of personal grievances and matters of that nature, there was really no 
genuine collective bargaining. 

Our union was founded in the midst of the depression, during the same 
period when some of the more militant industrial unions, such as those of the 
auto workers, the steel workers, and the rubber workers, were founded. 
AFSCME had a different birth, however, for it was founded by a group of 
management employees in Wisconsin who were fearful that a newly elected 
state administration would attempt to destroy the recently established civil 
service system in that state. To protect that civil service system, the organ- 
ization which later became the American Federation of State, County, and 
Municipal Employees was founded in 1932 and became active in 1935. From 
the beginning, therefore, AFSCME was linked very closely to the problems of 
administration of public service affairs and the encouragement of civil service. 

These goals remained very much the same until after World War II. Then 
the nature of the organization slowly began to change. In the 1950s we had 
the first movement anywhere on the part of public employees to sit down at 
a bargaining table and actually negotiate conditions of employment with the 
public employer. The earliest instances of what might be called the birth of 
collective bargaining in the public sector took place in a few large cities first 
Philadelphia, then Cincinnati and New York. As a matter of fact, the frame- 
work of the New York bargaining situation later provided the background for 
the Federal Employees' Executive Order 1098, which was promulgated by 
President Kennedy in 1962 and established the framework for the limited 
form of bargaining which federal employees have. 

Actually, most of the movement in the public sector toward collective 
bargaining took place on a de facto basis i.e., without benefit of law. When 
Congress passed the Wagner Act in 1935, it specifically excluded from 
coverage all public employees, as well as most employees of nonprofit insti- 
tutions such as hospitals. The Wagner Act was amended in 1947 by Taft- 
Hartley, and by Landren and Griffin in 1959, but all amendments to the 
original law continued to bar public employees from engaging in collective 
bargaining and from the protections of the national labor relations policy of 
the country. Because of this, when collective bargaining appeared in the public 
sector it grew up on a piecemeal basis, state by state, county by county, 
school board by school board, municipality by municipality. It was about 
1960 in the state of Wisconsin when the first public sector bargaining law was 



UNIONIZA TION OF LIBRAR Y PERSONNEL: WHERE WE STAND TOD A Y 25 

passed, giving public employees for the first time the legal right to sit down 
with employers and mutually determine the conditions under which they 
would work. 

In the last several years there has been a rash of bargaining legislation, 
but thus far only about one-half the states have enacted any general legislation 
covering most public employees. I am not considering here laws which deal 
specifically with a single group such as teachers, police, firefighters, or uni- 
versity personnel, but am concerned with laws applying to the broad range of 
public employees working for state and local governments. Although about 
one-half of the states have enacted some kind of general legislation, coverage 
varies widely. In some states, coverage extends to both state and local 
governmental employees; in others only state employees are covered. Ironi- 
cally, a number of state legislatures have enacted legislation covering local 
government employees only, excluding state employees. 

One of the interesting things about state legislation on collective bar- 
gaining is the great variety that exists throughout the country. No two public 
sector bargaining laws are alike, and for a single state there may be as many as 
four or five laws, one dealing with teachers, one with state employees, one 
with municipal employees, and another with police and firefighters. Within a 
state, different municipalities and counties have different codes concerning the 
right of public employees to bargain collectively. In one municipality, there- 
fore, it is quite possible that employees have more or fewer rights than they 
have in a neighboring jurisdiction. ' 

For a number of years AFSCME has been seeking federal legislation in 
this area, either through amendment of the present statutes or, preferably, 
through a special piece of legislation which would take into account the 
specific needs and concerns of public employees. We have sponsored a public 
employees' relations act in Congress for a number of years, and in 1974 we 
succeeded in having a bill introduced in both the House and the Senate. This 
bill would provide a collective bargaining framework for all state and local 
government employees throughout the nation. At the same time, however, it 
would permit a state which had enacted legislation that was substantially 
equivalent to that enacted by Congress to continue to administer its own law. 

The important problem in this area is that when we bargain in the 
absence of law, on a de facto basis, the mechanism and procedures are 
generally controlled by the employer. This leaves the employees at a very 
distinct disadvantage. 

It is certainly true that the initial thrust for collective bargaining rights 
for public employees has come from blue-collar workers, just as the thrust in 
the private sector toward collective bargaining and unionization came from 
blue-collar workers in the mid- 1930s. But unlike the private sector, the public 
sector has witnessed an expanded concept of unionism that has far 



26 DON WASSERMAN 

transcended the blue-collar field. For example, AFSCME represents substantial 
numbers of professional employees in most of the major local governments 
throughout the United States and in many of the large state governments. 

State governments have typically lagged behind local governments in 
affording any rights to employees. In the absence of legislation we are very 
frequently able to sit down and negotiate on a de facto basis with a local 
governmental employer, but it becomes much more difficult to do this with 
the state employer. The state of Ohio may serve as an example here, for it has 
no collective bargaining legislation. The state service there mirrors the fact 
that there is no legislation, for there is very little bargaining at the state level, 
and what bargaining takes place is concerned with an individual institution or 
facility. By contrast, we have developed agreements with virtually every large 
municipal employer in Ohio. 

The spread of collective bargaining from its historical beginnings in the 
blue-collar field through white-collar workers and into professional employees 
is not based on any great organizing campaign on the part of AFSCME. It is 
based very simply on the fact that professional employees, especially those 
hired in large numbers, quickly come to realize that they are not treated as 
professional employees, particularly in such very basic areas as decision- 
making. One needs only to look, for example, at the detailed regulations and 
restrictions which surround the job of an experienced social service employee 
in many jurisdictions to realize that he is treated as a clerk, not as a 
professional employee. Although AFSCME does not represent teachers, we 
may note that one of the main reasons that they began to bargain about a 
decade ago was the fact that they were not treated as professionals. This 
clerical status, coupled with low salaries, was a prime reason for the tremen- 
dous thrust by teachers to engage in collective bargaining during the 1960s. 
We are now witnessing this same development on the part of other profes- 
sional employees. For example, a group of professional employees in Phila- 
delphia organized themselves into an association a few years ago and then asked 
to be affiliated with AFSCME. We have witnessed this in other cities as well. 

A distinctly new development of the past three or four years is the 
move toward collective bargaining by state employees who are professionals. 
In a sense these represent the last bastion. State employees, state professional 
employees, and university and college faculty seem to be organizing concur- 
rently, and there seems to be no doubt that this will continue on an 
accelerated basis. One thing that is going to accelerate this movement is that 
general economic conditions in the United States are going to get worse 
before they get better. We have witnessed a contraction of public budgets, 
especially on the municipal level, in the past five or six years, and this 
condition will probably worsen in the next year or two. This budget cutting 
has already affected colleges and universities, and has begun to affect state 



UNIONIZA TION OF LIBRAR Y PERSONNEL: WHERE WE STAND TODA Y 27 

governments too. Despite what might be told to those seeking wage increases, 
most states have been operating at a surplus; in fact, the state surpluses overall 
were greater in fiscal 1973 than in 1972. As a result of general revenue 
sharing help from the federal government, many states have been able to 
increase their surpluses without increasing state taxes. Some states have at the 
same time decreased their services to local governments within the state and 
have generally started to tighten their belts. I expect some of these rather 
large state surpluses will soon start to wither away as the economic conditions 
in the nation generally worsen and state revenues decline. 

It seems that when governors, mayors, and university trustees start to 
look for a place to engage in a little belt tightening, they will look for what 
they consider to be fringe areas of state, city or university operations. They 
will look for things that may easily be cut back, and every area that can be 
considered nonessential will be hit. For example, in large local governments 
we have seen tremendous cutbacks in recreational facilities cutbacks in 
personnel and in number of hours and this kind of operation is spreading. 
Another area that administrations will examine for budget cutting will cer- 
tainly be libraries. Libraries and librarians are going to be in for a rough time 
for the next few years. 

This problem relates to the idea of collective bargaining for public 
employees in several ways. Typically, public employees, like their counterparts 
in the private sector, wish to sit down in some mutually satisfactory way to 
determine the wages, hours, and conditions of employment under which they 
will work. Many professional issues fall under the heading of conditions of 
employment. The decision of how facilities are to be staffed is an example. 
These issues become more crucial for discussion and negotiation among profes- 
sional employees than they do among nonprofessional employees. We have 
seen this in the arguments over classroom size in the teacher negotiations and 
over case loads for social service employees. There are similar problems 
throughout the area of public employment, including library services. In the 
case of budget cuts, the questions are: How is the situation to be handled? If 
there is going to be a cutback in services, how is this cutback to be 
performed? What will be the impact on employment and employment oppor- 
tunity? These are all areas that we have made subject to the collective 
bargaining procedure. 

My experience has been that negotiations by professional employees 
have dealt with many professional issues and have tried to deal with a much 
wider range of issues than negotiations in the private sector. As a result, when 
professional employees want to talk about services, the first response by the 
employer has been that these areas are concerned with the mission of the 
agency and are therefore a management prerogative and not subject to nego- 
tiation. But in AFSCME we look at it from another perspective: we believe 



28 DON WASSERMAN 

that anything which has an impact on the employee and how he functions is 
in essence a condition of employment. Even some of the more restrictive laws 
under which we bargain in the public sector those laws which have spelled 
out management rights still generally permit the public employee to engage in 
dialogue where there is a management prerogative that affects employment 
conditions. Most of our collective bargaining procedures, even in situations 
where the law has a management-rights clause, provide that we have the right 
to bargain over subject matters which affect the employees, the way in which 
they perform their jobs, and the general conditions under which they work. 
The negotiations of most professionals have therefore much more readily 
entered those areas which are called the "mission of the agency" or "manage- 
ment prerogatives" than have negotiations among, for example, blue-collar 
workers in the private sector. 

I expect this trend to continue, but I do not accept the argument that 
has been made by observers of and participants in professional negotiations that 
monetary items take a back seat in such negotiations. It isn't even necessary 
to consider today's economy to realize that "bread and butter" issues wage 
and pension matters and health insurance matters are of primary significance. 
To suggest that these issues have little meaning to the professional employee, 
who is concerned only with performing a service to the employer and to the 
public at large, is nonsense. I don't know who started this story, but I suspect 
that it came in part from the employer; by claiming this he almost puts his 
employees on a pedestal, and I suspect that they are somewhat receptive to 
the idea. It puts a halo around their heads, and it sounds nice. It also makes a 
nice public appeal if the professional workers say they are more concerned 
about quality of service or how children learn than they are about the fact 
that they are still working for $4500 a year. If this was ever true, it is not so 
today. Professional employees are interested in wages, in providing their 
families with a decent standard of living, in having a measure of security and a 
decent retirement system, in being covered by reasonable health and life 
insurance plans. This is nothing shameful, for you really cannot take pride in 
your job unless you can have a certain amount of self pride as well. It is 
important that service employees be interested in these "bread and butter" 
issues. 

Of course it is true by the very nature of the job that professionals- 
librarians, social service employees, teachers, engineers, chemists or physicists- 
should be interested in the way in which the service they perform is going to 
be delivered to the people who want, request and need that service. Their 
entire training has told them this is proper, and to expect otherwise of them 
is to ask them to demean themselves. I contend that the only way profes- 
sionals can have a voice in how services are to be established and delivered is 
by having a collective voice. This is particularly important in the case of large 



UNIONIZA TION OF LIBRAR Y PERSONNEL: WHERE WE STAND TODA Y 29 

facilities and large institutions where there are many professionals and many 
employees under supervision. The only way that public employees may have a 
voice in setting the conditions of employment under which they will work 
wages, fringe benefits, hours, etc. is again by having a collective voice. 
Whether the vehicle is an out-and-out labor union like the American Feder- 
ation of State, County, and Municipal Employees, or whether it is an 
employee association given some more euphemistic or appealing name, is a 
decision that public employees will make on a city-by-city, state-by-state, 
service-by-service basis. 

I think, however, that the problems that librarians have faced up until 
now will increase considerably over the next year or two. They are going to 
increase as a result of the real budget crunch that employers will face. 
Libraries will in many cases be looked at first when sacrifices need to be made, 
and public employees in general will be scrutinized regardless of the kinds of 
services they perform. This is only one further reason why self-organization 
becomes absolutely essential. Librarians will need to have a voice in 
determining how crises will be met, how decisions are going to be made. Only 
through a collective voice does any individual professional, public employee 
have any voice at all. 



ANDREW M. KRAMER 

Executive Director 

Office of Collective Bargaining 

Springfield, Illinois 



The Legal Environment 



The legal environment surrounding the unionization of library personnel 
must be discussed from several different standpoints. At the outset, one must 
differentiate among library personnel on the basis of whom they work for. 
library personnel working for private universities come under the National 
Labor Relations Act (NLRA). Library personnel working for public employers 
in some states come under the jurisdiction of a state public employee labor 
relations act, while such personnel in other states have no statutory protection 
and must rely on judge-made law which varies from state to state. 

For many years library personnel were in the no-man's land of labor 
relations, outside the reach of any statutory framework to guide them in their 
dealings with their employer. The National Labor Relations Board (NLRB) 
had refused to assert jurisdiction over private, nonprofit colleges and uni- 
versities until 1970, when in its Cornell University (183 NLRB 41) decision it 
decided to assert jurisdiction over such institutions. 

Library personnel working for public employers are not under the 
jurisdiction of the NLRA. As public employees, they have been slow to 
achieve many of the rights which have long been enjoyed by employees in the 
private sector. Since a large number of library personnel work in the public 
sector, it is important to provide some background with respect to public 
sector bargaining. 

When we consider public employee bargaining from a historical per- 
spective, we are not talking of bargaining but rather of the restraints imposed 
in preventing union organization and bargaining from ever taking place. Nearly 
two decades ago, the report of the American Bar Association Committee on 
Labor Relations of Governmental Employees suggested that: "a government 
which imposes upon other employers certain obligations in dealing with their 
employees may not in good faith refuse to deal with its own public servants 
on a reasonably similar basis, modified, of course, to meet the exigencies of 
the public service." 1 



30 



THE LEGAL ENVIRONMENT 31 

At the time of that report it was generally accepted that public 
employees did not have any right to bargain. Indeed, in 1945 the Supreme 
Court had occasion to note that "under customary practices government 
employees do not bargain collectively with their employer." 2 

A central rationale leading to the denial of bargaining rights in the 
public sector was the concept of sovereignty. Since collective bargaining is 
premised on a bilateral determination of conditions of employment, it was 
viewed as an interference in the sovereign's affairs. Typical of the attitude 
which prevailed is the opinion of the Florida Attorney General in 1944 in 
which he stated: "no organization, regardless of who it is affiliated with, union 
or non-union, can tell a political subdivision possessing the attributes of 
sovereignty, who it can employ, how much it shall pay them, or any other 
matter relating to its employees. To countenance such a proposition would be 
to surrender a portion of sovereignty that is possessed by every municipal 
corporation." 3 

During the same time that bargaining rights were being denied, certain 
groups of public employees were thwarted even in their efforts to organize. 
Various courts sustained discharges of public employees for becoming 
members of labor unions on the grounds that such membership either violated 
a state statute or the court's perception of state public policy. 

It is of some interest to note that public employees were on several 
occasions granted the right to organize on the basis of a state right-to-work 
law. In a reversal of the popular concept of their role, some courts construed 
state right-to-work laws as allowing public employees the right to organize and 
join labor unions. 4 

Until recently, and even now with rare exception, public employees have 
been denied the right to strike. In enjoining strikes, courts noted the need for 
government services to be unobstructed and held that such strikes contravene 
public welfare. 5 

Historically, courts have generally been either disinclined or compelled 
to analyze at length the basis for enjoining public employee strikes. A finding 
that such strikes result in a denial of government authority seems to reflect 
the conclusion that strikes compel governmental decisions that would other- 
wise not be made. 

Many of the decisions prohibiting public employee strikes have arisen in 
states which have "Little Norris-LaGuardia Acts" prohibiting the issuance of 
injunctions in labor disputes. Even in the absence of express exclusion, 
however, these anti-injunction statues have not been held applicable to public 
employees. 6 

While the role of the law in the past has been a negative factor with 
respect to public employee bargaining, significant changes have occurred over 
the past fifteen years. Federal courts have recognized the constitutional rights 



32 ANDREW M. KRAMER 

of public employees to join and form labor unions and have struck down 
statues prohibiting public employees from joining unions. 7 Federal and state 
courts have also become increasingly sensitive to the due process rights of 
public employees. 

In more than thirty-six states and in the federal government the debate 
over the legitimacy of public employee organizational and bargaining rights is 
academic as a result of legislation or executive order. The public sector 
bargaining legislation which has been enacted raises numerous issues which 
have no analogy to the private sector. While space does not permit discussion 
of all of these issues, some of the present approaches to public employee 
bargaining deserve mention. 

It is often suggested that one of the distinguishing features between the 
private and public sectors is that in the private sector management and unions 
negotiate under the constraints of the market place. Management in the 
private sector considers the effects of increased labor costs on the price of 
items being manufactured as well as competitive forces and consumer pref- 
erence. In the public sector, however, services are not generally dependent on 
the revenues they produce and most often are exclusive in nature. This does 
not mean, however, that the constraints found are no less effective than those 
in the private sector. 

It is the political process which imposes some of the major constraints 
in the public sector. The type of service provided, the location where such 
services are to be provided, and the allocation of revenue to provide such 
services is often dependent upon political opinion and political pressures. 
Thus, it has been argued, opening the door to full-scale bargaining, as has 
evolved in the private sector, will "institutionalize the power of public 
employee unions in a way that would leave competing groups in the political 
process at a permanent and substantial disadvantage." 8 

In applying these views, some states and the federal government have 
chosen to limit the scope of bargaining by executive order. Thus, in some 
states public employers are not required to bargain over matters of "inherent 
managerial policy," including "the functions and programs of the public 
employer, standards of services [and] standards of work." Other states such as 
Michigan have not chosen to limit the duty to bargain, however, and have 
imposed a duty similar to that imposed under the NLRA. 

In addition to the impact of the political process on defining the scope 
of bargaining, another factor which has played a significant role is the 
presence of civil service systems. In many states and municipalities, civil 
service systems have come to encompass all aspects of employee relations and 
not just those aspects related to the merit principle. In Illinois, for example, 
the personnel code and its implementing rules cover most of the matters 
found in private sector collective bargaining agreements. 



THE LEGAL ENVIRONMENT 33 

Unfortunately, many states have ignored the pervasive impact of civil 
service statutes and rules in drafting public sector bargaining legislation. The 
failure to deal adequately with this issue leads ultimately to judicial accommo- 
dationa solution ill suited to treat fully the complexities presented. 9 

Another issue which has not been fully considered in drafting public 
sector legislation is the definition of who the public employer really is. Is it 
the executive branch, or does that title belong to the legislature or a county 
board which ultimately approves the monetary terms of any ageement through 
the appropriation process? 

Very little attention has been given to this issue which bears directly on 
the implementation of a statutory duty to bargain in good faith. One state 
which has at least addressed itself to this problem is Wisconsin. Under the 
Wisconsin Public Employee Relations Act, the term employer is defined to 
reflect the differences between the legislative and executive branches. While 
the state is considered as a single employer, the act sets out the role of the 
legislature with respect to the implementation and approval of collective 
bargaining agreements. 

One of the critical issues faced in the public sector is the determination 
of appropriate bargaining units. While Martin Schneid discusses this issue in 
depth elsewhere in this volume, it is necessary for me to touch upon some of 
the problems posed. 

Bargaining unit determinations in the public sector have far-reaching 
consequences since the establishment of a given unit affects the structure of 
bargaining and has a measurable impact on the traditional governmental policy 
of maintaining, where possible, uniformity of terms and conditions of employ- 
ment. 

Unit determinations in states which do not have legislation are made 
either by the parties or by the employer. For example, in Chicago High 
School Assistant Principals Association v. Board of Education of the City of 
Chicago the court was faced with the issue of whether the Board of Education 
had to recognize high school assistant principals as a separate unit for pur- 
poses of collective bargaining. Assistant principals were covered under the 
Board of Education's collective bargaining agreement with the Chicago 
Teachers Union. The agreement contained no provision for the severance of 
assistant principals and the board refused to recognize this group as a separate 
unit. In supporting the board's action, the court noted that it was "clear 
[that] the Board wanted to deal with just one bargaining unit" and that if 
each of the groups covered under the contract "were allowed to carve out its 
own bargaining unit, the extended negotiation would work an undue hardship 
on the Board in carrying out its necessary public purpose." 1 

The absence of criteria to govern unit determinations generally brought 
about a proliferation of units since public employers and state legislatures gave 



34 ANDREW M. KRAMER 

little consideration to this issue. For example, in New York City more than 380 
separate units were established some containing as few as two employees. 
Similar patterns were found under Executive Order 10988, in Wisconsin, 
Massachusetts and Oregon. 

Among the factors most frequently mentioned in determining bargaining 
units are: (1) clear and identifiable community of interest among employees; 
(2) establishment of units which will promote effective collective bargaining; 
and (3) establishment of units in light of the operational efficiency of the 
agency or agencies involved. In addition to these general considerations, 
numerous states have now imposed explicit criteria to deal with the problem 
of fragmented bargaining units. 

When dealing with state employees, legislatures have been even more 
explicit in terms of unit determinations. The Pennsylvania act requires the 
board to consider "that when the Commonwealth is the employer, it will be 
bargaining on a statewide basis unless issues involve work conditions peculiar 
to a given governmental locale." 1 1 The Illinois Executive Order covering state 
employees requires the office of collective bargaining to "promote the interest 
of the State in bargaining on a statewide basis by considering statewide units 
presumptively appropriate." 1 2 Similarly, the Minnesota act draws a distinction 
between municipal employees and state employees by requiring the director of 
mediation services to "define appropriate units of state employees as all the 
employees under the same appointing authority except where professional, 
geographical or other considerations affecting employment relations clearly 
require appropriate units of some other composition." 1 3 

The trend toward statewide units is not uniform. Several states have 
found separate units appropriate in cases involving educational institutions. 
For example, in Ft. Hays Kansas State College, the Kansas Public Employee 
Relations Board stated that it "would allow public employees at each unit of 
higher education to organize an individual institutional unit." 14 In discussing 
the rational of its decision the board noted: 

Each institution, we feel, is a separate distinct operating entity with a 
complex relationship already existing between the public employees and 
the administration therein. The principles of efficient administration will 
be maintained inasmuch as the evidence before this board indicates that 
most problems concerning conditions of employment with university 
employees have been handled on a local basis; i.e., between the local 
university administration and the employee. . . . Some previous history 
of employee organization, specifically KU Medical Center, was noted but 
not considered as having great weight. However, geographical location 
posed a possible serious problem, especially when considered with the 
concept of the separate identity of each institution as mentioned above. 
The difficulties of employees organizing over a great distance (i.e., the 
distance between Wichita and Fort Hays) when considered in light of 



THE LEGAL ENVIRONMENT 35 

the fact that each institution has operated as a separate identity made 
the unit determinations on an individual basis seem most logical. The 
board did not view the problems of overfragmentation and splintering of 
a work force as automatically requiring a statewide unit in every case, 
but that each case must be reviewed on its own merit, thus our decision 
of the individual institutional units. 1 5 

The above approach can be contrasted with the approach taken in New 
York and New Jersey. The New York board held that a university -wide 
faculty bargaining unit was appropriate since "the concomitant differences 
among the campuses do not establish such conflicts of interest between their 
respective professions as to warrant geographic fragmentation." 16 A similar 
result was reached by the New Jersey commission when it reversed its earlier 
determination that separate units were appropriate. 1 7 

Recently the director of public employment practices and representation 
of the New York Public Employment Relations Board was faced with a 
decertification petition on behalf of nonacademic professionals who were in a 
statewide unit combined with academic professionals. 18 The nonacademic 
professionals sought separate representation and a reversal of the board's 
earlier decision including academic and nonacademic professionals in a state- 
wide unit. The director of public employment practices and representation 
held that there was no evidence to justify fragmenting the existing bargaining 
unit and found that the history of collective bargaining which existed after 
the establishment of the initial unit demonstrated that nonacademic profes- 
sionals "did enjoy effective and meaningful negotiations on salaries as well as 
other matters." 1 9 

Even where a single campus is held to constitute an appropriate unit, 
questions arise with respect to the composition of that unit. In 1972 the 
Pennsylvania Public Employee Relations Board held that the faculty members 
in the university's law, dental and medical schools should be excluded from an 
overall unit and directed an election in the law school unit. 20 The Michigan 
Employment Relations Commission, however, rejected the establishment of 
separate units within a given institution and rejected the establishment of a 
separate medical school unit on the grounds that "it would unduly frag- 
mentize a teaching faculty unit if individual schools or colleges are permitted 
to have separate representation." 2 1 

It is evident from the decisions rendered by state public employee 
relations boards that the trend is toward large units, particularly when dealing 
with state employees. It is obvious that the early problems faced in New York 
and Wisconsin have greatly influenced subsequent action with respect to unit 
determinations. The trend toward large units does not preclude the establish- 
ment of separate institutional units as evidenced by the Minnesota and Kansas 
decisions affecting state colleges and universities. 



36 ANDREW M. KRAMER 

The trend toward large units is also evident from the National Labor 
Relations Board decisions concerning university employees. For example, at 
New York University in 1973 the board noted that while librarians were 
distinguished from faculty members with respect to tenure requirements, 
retirement age and lack of proportional representation on the university 
senate, they should be included in a university -wide unit with faculty 
members. 22 While in several cases the board has rejected units composed 
solely of library personnel, it did find a separate unit appropriate at Clare- 
mont University in 1972. 23 

In contrasting some of the rights granted employees under the National 
Labor Relations Act and the rights of public sector employees, we can first 
look at the whole concept of collective bargaining. In the private sector, a 
fundamental premise of national labor relations policy is the concept of free 
collective bargaining. Collective bargaining has long been viewed as a process 
by which parties settle disputes without the intervention of a third party. The 
strike or threat of a strike plays a fundamental role in the private sector since 
it is the threat of something worse which is viewed as a means to secure 
agreement between an employer and a union. Thus, federal courts have 
prohibited state interference with the collective bargaining process. 

In the public sector the concept of free collective bargaining has really 
never surfaced since, with rare exception, public employees are denied the right 
to strike. Impasse resolution devices in the public sector are viewed as the means 
to bringing about the settlement of a dispute between two unyielding parties. 

The reasons given for denying public employees the right to strike are 
varied. According to some, the acceptance of the right of public employees to 
strike would take away the authority of public officials to administer govern- 
ment for people. President Roosevelt had occasion to observe that "a strike of 
public employees manifests nothing less than an intent on their part to 
obstruct the operations of government until their demands are satisfied." 24 
The Taylor Committee in New York stated that the right to strike in the 
public sector is not compatible with orderly functioning of a democratic form 
of representative government. 

The future, in my opinion, will bring about a re-evaluation of the 
traditional notion that all public employees should be barred from striking. It 
is obvious that certain governmental services are essential and must be pro- 
vided. This does not mean, however, that free collective bargaining with the 
concomitant presence of economic force cannot exist in certain areas. Indeed, 
one should consider whether the public is paying a higher cost by denying all 
public employees the right to strike and substituting for that right impasse 
resolution devices which might reflect higher settlements than would have 
been achieved had the test been one of economic warfare rather than third- 
party decision-making. 



THE LEGAL ENVIRONMENT 37 

Moreover, declaring public employee strikes illegal has not meant the 
end of strikes. States which have enacted punitive antistrike legislation have 
often had to forego enforcement of the law since the penalties were too 
extreme. This was particularly true in New York under the Condon-Wadlin 
Act. 

The failure to enforce stringent laws regarding public employee strikes is 
further evidence of the deep political involvement in public sector collective 
bargaining. A governor or mayor is both an employer and politician. These 
roles are not consistent since a chief executive's actions as an employer carry 
political overtones. Thus, in New York it was shown that the Condon-Wadlin 
Act was not enforced in cases where the striking union was politically 
strong. 2 5 

In considering whether public employees should be granted the right to 
strike, one should also focus on the question of what issues are appropriate 
for strike action. There has been little consideration of this question since 
most states prohibit public employee strikes and even in the states providing a 
limited right to strike no distinction is made over the issues on which strike 
action can be taken. 

An example of this problem is a decision of an agency to go from a 
program of providing institutional care to the utilization of private facilities. 
Some of the groups affected by such a decision are the employees at the state 
institution, the patients being treated, the municipality where the institution is 
located and special interest groups involved in the health care field. While a 
union representing the employees should be able to bargain with the public 
employer over the impact of such a decision, one can persuasively argue that 
decisions such as this should not be subjects over which unions can strike. 

To remove an issue which might affect a broad range of social and 
community interests from the arena of economic warfare is not to say that 
public employees and their bargaining representatives should not have input 
with respect to that issue. Bargaining and political pressure, a tool used by 
public employee unions and other interest groups, offer ways in which the 
public employee can participate in the decision-making process. 

Another troublesome issue in the public sector concerns union security 
agreements. As an exclusive representative, a union must represent, without 
discrimination, all employees in the unit regardless of union affiliation. In the 
private sector union security agreements are legal, except in states where 
right-to-work laws are in effect. Section 7 of the NLRA grants employees the 
right to organize and bargain collectively and the right to refrain from such 
activities "except to the extent that such right may be affected by an 
agreement requiring membership in a labor organization as a condition of 
employment as authorized in Section 8(aX3)." 2 6 

In NLRB v. General Motors, the Supreme Court discussed the 



38 ANDREW M. KRAMER 

differences between an agency shop and a union shop in the following terms: 
"Under the second proviso to 8(a)(3), the burdens of membership upon 
which employment may be conditioned are expressly limited to the payment 
of initiation fees and monthly dues. It is permissible to condition employment 
upon membership, but membership insofar as it has significance to em- 
ployment rights, may in turn be conditioned only on payment of fees and 
dues. 'Membership' as a condition of employment is whittled down to its 
financial core." 27 Thus, the distinction between union shop and agency shop 
is the choice of membership. Under an agency shop the employee is given the 
"option of membership" while under a union shop, that option is removed. 
Recently the NLRB held that the term "membership" in Section 8(aX3) 
means "a financial obligation limited to payment of fees and dues." 28 

The primary challenge to negotiating agency shop or union shop clauses 
in the public sector centered around the provisions in various state laws giving 
employees the right to refrain from union activity. In the private sector, this 
question has arisen within the context of right-to-work laws. 

In 1963 the Florida Supreme Court held that a clause requiring the 
payment of service fees as a condition of employment was violative of the 
right-to-work section of the Florida Constitution. 29 The court based its 
decision on the fact that an individual's "right to work" without regard to 
union membership was "abridged" when the individual was required to pay a 
fee to continue working. 

A contrary view of a right-to-work provision is found in Meade Electric 
Co. v. Hagberg. There, the court held that the Indiana right-to-work law did 
not bar negotiation of agency shop since the statute "merely prohibits agree- 
ments and conduct which conditions employment on membership in a labor 
organization." 30 Membership, however, under the NLRB's rationale is the 
payment of fees and dues. Thus, one should question the rationale employed 
by the court in Hagberg. 

Various decisions have been rendered in the public sector concerning the 
legality of agency shop clauses. In New Jersey Turnpike Employees, Local 194 
v. New Jersey Turnpike Authority, a New Jersey court was faced with the 
task of determining whether such a clause was permissible in light of the 
following statutory provision: "Public employees shall have, and shall be 
protected in the exercise of, the right to freely and without fear of penalty or 
reprisal, to form, join and assist any employee organization or to refrain from 
such activity." 31 

In interpreting the above language, the court held that the execution of 
an agency shop agreement violated an employee's right to refrain from 
assisting an employee organization. Relying on the right of employees to 
refrain from "assisting" an employee organization, the court concluded that 
the enforcement of an agency shop clause would have the effect of "inducing, 



THE LEGAL ENVIRONMENT 39 

if not compelling, union membership, participation, and assistance on the part 
of non-member employees." 3 2 

Similarly, in Monroe-Woodbury Teachers Assn. the New York Public 
Employment Relations Board (PERB) held that an agency shop clause was 
illegal. In reaching its decision the New York board relied on several factors. 
First, it found that an "agency shop ... is inconsistent with the statutory 
grant of right that employees may refrain from 'participating in' an employee 
organization." 33 In addition, the Public Employment Relations Board found 
that the negotiation of an agency shop clause was in conflict with the New 
York Teachers Tenure Act and the New York dues deduction law. 

On appeal the PERB's holding was affirmed. The Appellate Division of 
the New York Supreme Court found that to require the payment of dues 
"would be in violation of the law as constituting, at the very least, partici- 
pation in an employee organization." 34 The court also held that the nego- 
tiation of an agency shop was inconsistent with the provisions of the New 
York Public Employee Relations Act, which makes it unlawful to "dis- 
criminate against any employee for the purpose of encouraging or discouraging 
membership in, or participation in the activities of any employee 
organization." 35 

In Illinois, the Attorney General has issued a recent opinion which has 
held that employees of a county highway department cannot be required to 
join a union should the county board recognize and bargain with the union as 
the exclusive representative of the highway department employees. In addi- 
tion, the Attorney General held that union dues can be deducted only if the 
employee requests to have this done. In light of these opinions and the 
current state law, the union security issue in Illinois can only be resolved 
through legislative action. 

Some of the issues present in both the public and private sector with 
respect to the unionization of librarians concern the status of librarians as 
professional employees and their role as supervisors. The National Labor 
Relations Board has considered librarians to be professionals and have there- 
fore included them in units with other faculty members. The board has also 
rejected the argument that the supervision of nonprofessional personnel by 
librarians automatically makes them supervisors so as to deny them bargaining 
rights. The board considers the amount of time that librarians spend super- 
vising and the group which is supervised. 

In discussing the legal environment, it is important to point out that 
various changes are currently being proposed which would affect library 
personnel. Several bills are now pending in Congress to either extend NLRA 
coverage to public employees or to create a national public employee relations 
act. The wisdom of having federal legislation cover public employees is in 
doubt since there are great differences among states which must be considered 



40 ANDREW M. KRAMER 

in drafting and enacting any public employee relations bill. It seems better to 
deal with this issue on a state rather than a federal level, even though it might 
be necessary to set some minimum federal standards which states are required 
to meet. 

Until there is legislation in states like Illinois, the great majority of 
library personnel have to depend on judge-made law which is an inadequate 
means to solve the major problems posed in this area. In the absence of a 
statutory framework, courts are ill equipped to deal with the myriad of issues 
raised in this area. 

The current labor relations scene in Illinois represents a patchwork of 
thoughts and ideas, most of which are confusing and not very meaningful. 
Other than Executive Order 6, which Illinois Governor Daniel Walker issued in 
September 1973, there is no framework to guide labor relations for public 
employees in that state. 

The legal environment surrounding the unionization of library personnel 
illustrates the difference between the public and private sectors. While 
librarians in the private sector can negotiate virtually all matters, their public 
sector counterparts are generally not given such a generous menu to negotiate. 
While librarians in the private sector can strike, their public sector counter- 
parts are generally denied recourse to this tool of economic warfare. But while 
librarians in the private sector must rely on the economic force they can 
generate to bring about a settlement, their public sector counterparts can 
often rely on impasse resolution devices to solve differences. 

To this already confusing environment we add the fact that the rights of 
librarians in the public sector may often vary from employer to employer. 
The situation will not become any clearer until legislation is passed which 
establishes a basic framework to protect employers, employees and the public. 



REFERENCES 

1. Kaplan, H. Eliot, et al. "Report of the Committee on Labor Rela- 
tions of Governmental Employees." In Section of Labor Relations Law. 
American Bar Association. 1955 Proceedings. Chicago, American Bar Center, 
1956, p. 90. 

2. Railway Mail Association v. Corsi, 326 U.S. 88, 95, 65 S. Ct. 1483, 
1488, 89 L. Ed. 2d 2072 (1945). 

3. Florida Attorney General's opinion, March 21, 1944, reprinted in 
Rhyne, Charles S. Labor Unions and Municipal Employe Law (National Institute 
of Municipal Law Officers, Report No. 116). Washington, D.C. National 
Institute of Municipal Law Officers, 1946, pp. 252-54. 

5. Anderson Federation of Teachers v. School City of Anderson, 252 
Ind. 558, 251 N.E. 2d 15, 37 A.L.R. 2d 1131, cert, denied, 399 U.S. 928 
(1969). 



THE LEGAL ENVIRONMENT 41 



6. City ofPana v. Crowe, 57 111. 2d 547, 316 N.E. 2d 513 (1974). 

7. See, for example, Mclaughlin v. Tilendis, 398 F. 2d 287 (C.A. 7th cir., 
1968); American Federation of State, County and Municipal Employees v. 
Woodward, 406 F. 2d (C.A. 8th Cir., 1969); Atkins v. City of Charlotte, 296 
F. Supp. 1068 (W.O.N.C., 1969). 

8. Wellington, Harry, and Winter, Ralph. The Unions and the Cities. 
Washington, D.C., Brookings Institution, 1971, p. 30. 

9. See, for example, Civil Service Commission v. Wayne County Board 
of Supervisors, 384 Mich. 363 (1971); and Laborer's International Union, 
Local 1029 v. Delaware, 72 L.C. 53, 238 Del. (1974). 

10. Chicago High School Assistant Principals Association v. Board of 
Education of the City of Chicago, 5 111. App. 3d 672, 675, 284 N.E. 2d 19 (1972). 

11. Pennsylvania Public Employee Relations Act, Ch. 19 604(4). 

12. Government Employee Relations Report (GERR) Ref. File, 
51:2211, 1975. 

13. Minnesota Stat. Anno. Supp., Ch. 179 197.74(4). 

14. In Ft. Hays Kansas State College, GERR No. 487, B-3 (1973). 

15. Ibid., No. 487, B-4. 

16. In State of New York (State University of New York) 2 PERB 
3492 (1969); aff'd. sub. nom., Wakshull v. Helsby, 35 A.D. 2d 183, 315 
N.Y.S. 2d 371 (1970). 

17. In State of New Jersey, GERR No. 484, B-6, F-l (1973). 

18. State of New York (State University of New York), 1 PERB 4007, 
par. 7-4010 (1974). 

19. Ibid., 1 PERB 4007. 

20. In Temple University, GERR No. 472, B-l (1972). 

21. Michigan State University, Michigan Employment Relations Com- 
mission (MERC) Lab. Op. No. 82 (1971); and Wayne State University, MERC 
Lab. Op. No. 140 (1972). 

22. New York University and New York University Chapter, American 
Association of University Professors, et al, 205 NLRB 16, 1973 CCH, 
NLRB par. 25, 587 (1973). 

23. Claremont University Center et al., and Office and Professional 
Employees International Union, Local No. 30, AFL-CIO, 198 NLRB 121, 1972 
CCH NLRB par. 24, 508 (1972). 

24. Quoted in Rhyne, op.cit., p. 437. 

25. Hildebrand, Geroge H. "The Public Sector." In John T. Dunlop and 
Neil W. Chamberlain, eds. Frontiers of Collective Bargaining. New York, 
Harper & Row, 1967, p. 38. 

26. NLRA, 29 U.S.C.A. 157. 

27. NLRB v. General Motors, 373 U.S. 734, 742, 83 S. Ct. 1453, 1459, 
10 L. Ed. 2d 670 (1963). 

28. Hershey Foods Corporation et al., and Lloyd Brewer, 207 NLRB 
141, 1974 CCH NLRB, par. 26, 506 (1973). 

29. Retail Clerks Local 1625 v. Schermerhorn, 141 So. 2d 269 (1962), 
aff'd. 375 U.S. 96, 84 S. Ct. 219, 11 L. Ed. 2d 179 (1963). 

30. Meade Electric Co. v. Hagberg, 129 Ind. App. 631, 159 N.E. 2d 
408, 413 (1959). 

31. New Jersey Turnpike Employees Local 194 v. New Jersey Turnpike 
Authority, 123 N.J. Super 461, 467, 303 A. 2d 557 (1973). 



42 ANDREW M. KRAMER 



32. Ibid., 470. 

33. In Monroe-Woodbury Teachers Association v. Monroe-Woodbury 
Board of Education, 3 PERB 4545, par. 3-3104, 3-4510 (1970), aff'd. 4 
PERB 7097, par. 4-7014 (1971). 

34. Farrigan v. Helsby, 68 Misc. 2d 952 (1971), aff'd. 346 N.Y.S. 2d 
39,41 (1973). 

35. McKinney's Consol. L. of New York, Anno., Civil Service Law, Ch. 
392, Art. 14 (1967). See also Ritto v. Fink, 58 Misc. 2d 1032 (City Ct. of 
Rochester, 1968); and Foltz v. Dayton, 27 Ohio App. 35, 272 N.E. 2d 169, 
56 Ohio Op. 2d 213 (1970). 



MARTIN H. SCHNEID 

Assistant to the Regional Director 

National Labor Relations Board 

Chicago, Illinois 



Recognition and Bargaining Units 



Any meaningful discussion of recognition and bargaining units must 
include general aspects of the National Labor Relations Act (NLRA) and 
reference to specific provisions, policies and procedures which have a sig- 
nificant, if indirect, impact on the subject. 

The first consideration is: When does the act apply? The phrase "assert 
jurisdiction" is of primary importance here. The statute itself, in its defi- 
nitions, excludes as employers the United States or any wholly-owned govern- 
ment corporaton, or any Federal Reserve Bank, or any state or political 
subdivision thereof, or persons subject to the Railway Labor Act. By decision 
of the National Labor Relations Board, with court approval, jurisdiction was 
at one time not asserted over certain industries or enterprises such as hotels, 
noncharitable hospitals, nonstate-owned educational institutions or professional 
sport organizations, although the statute did not exclude them. But in time, 
again under court approval, the board extended its jurisdiction over these 
enterprises, among others. By amendment of the statute, the board was given 
jurisdiction over the U.S. Postal Service and over charitable, nonstate hos- 
pitals. The board, however, still does not assert jurisdiction over race tracks, 
sheltered workshops, and some other enterprises. 

In addition, and probably more relative to libraries, on September 23, 
1974, the board announced that it was considering declining jurisdiction over 
private secondary and elementary schools and preschools. Interested parties 
were invited to submit comments, views or arguments within thirty days. 

Before jurisdiction is asserted, after having been extended to a class of 
enterprises by statute or discretion, it must appear that the particular em- 
ployer unit involved (and this may entail a number of employers banded 
together in an acknowledged bargaining unit), meets stated annual dollar 
standards. These standards may be either gross, as in the case of retail 
operations, or in terms of interstate inflow or outflow, in the case of various 
nonretail operations. 



43 



44 MARTIN H. SCHNEID 

The work of the board lies primarily in two areas: (1) handling charges 
of unfair labor practices against employers or unions, or both, and (2) 
handling representation or bargaining agent election cases. In any type of case, 
before the board may act, it must appear that the employer involved is 
subject to the jurisdiction of the board. This is true if the charge is against a 
union or an employer, or in a representation case. 

If these qualifications are not met, regardless of the other elements of 
the case, no action will be taken on the charge or petition. Thus, the phrase 
"assert jurisdiction" truly applies to the situations at hand. Employees 
working for noncovered employers, e.g., a state university, do not have the 
rights set out in Section 7 of the act, nor can the board processes protect 
them. The board cannot conduct representation elections if the employer is 
one over whom jurisdiction is not asserted, nor can it act against a labor 
organization, if the employer, being only indirectly involved, is likewise one 
over whom jurisdiction is not asserted. 

However, knowledge of the NLRA, its procedures, and its policies can 
be of significant value to employers, trade union officials and employees, 
whether or not the enterprise involved is one over which jurisdiction would be 
asserted. If a covered employer is involved, such knowledge will point to the 
legal limitations, rights and available avenues of procedure. If the enterprise is 
not subject to the act, following the policies enunciated under the act can 
lead to better employer-employee relationships. If a union is a bargaining 
agent, it can lead to more productive, meaningful handling of industrial 
relations problems. Further, many states have, or may soon have, labor 
relations laws or executive orders which would apply to noncovered 
employers, and these are generally modeled after the NLRA. 

Assuming that the employer is covered under the act, how are librarians 
affected? First, not all librarians are employees. Section 2(3) of the act, in 
defining employee excludes supervisors. Section 2(1 1) defines supervisor, and if 
an individual falls within that definition, he does not enjoy the rights 
guaranteed in Section 7, nor, except in rare cases, can a remedy be afforded 
him for discrimination by an employer or restraint or coercion by a union. 
Further, on April 23, 1974, the Supreme Court, in NLRB v. Textron Inc., 
found that employees properly classified as managerial are excluded from 
protection of the act. While the court did not define managerial, it cited with 
approval the board's definition which recognized as managerial executives who 
formulate and effectuate management policies by expressing and making the 
operative decisions of their employers. Further, the board has deemed to be 
managerial buyers those who regularly and to a substantial degree make 
substantial purchases for the employer. 

Relevant to the supervisory status of professionals is the problem of whom 
they supervise. In the University of Chicago case (205 NLRB 220), 



RECOGNITION AND BARGAINING UNITS 45 

decided on August 3, 1973 (and, by chance, concerning librarians), the board 
decided that professional librarians who supervise other professional librarians 
are supervisors within the meaning of the act, but that professional librarians 
who supervise only clerical (nonprofessional) employees are not supervisors 
within the act's meaning. This decision was affirmed on October 22, 1974, by 
the U.S. Court of Appeals for the Seventh Circuit. 

The third, and perhaps most cogent, consideration is whether librarians 
are professional within the meaning of Section 2(12) of the act. If they are 
professional (and not supervisory or managerial), they possess all the rights of 
nonprofessional employees. They are, however, accorded special treatment in 
representation cases to the following extent: under Section 9(b) it is provided 
that the board shall not decide that any unit is appropriate for the purposes 
of collective bargaining if such unit includes both professional employees and 
employees who are not professional employees unless a majority of such 
professional employees vote for inclusion in the unit. 

The National Labor Relations Act includes the following definition of 
"professional employee": 

(a) any employee engaged in work (i) predominately intellectual, varied 
in character as opposed to routine mental, manual, mechanical, or 
physical work; (ii) involving the consistent exercise of discretion and 
judgment in its performance; (iii) of such a character that the output 
produced or the result accomplished cannot be standardized in relation 
to a given period of time; (iv) requiring knowledge of an advanced type 
in a field of science or learning customarily acquired by a prolonged 
course of specialized intellectual instruction and study in an institution 
of higher learning or a hospital, as distinguished from a general academic 
education or from an apprenticeship or from training in the performance 
of routine mental, manual, or physical processes; or 

(b) any employee, who (i) has completed the courses of specialized 
intellectual instruction and study described in clause (iv) of paragraph 
(a), and (ii) is performing related work under the supervision of a 
professional person to qualify himself to become a professional 
employee as defined in paragraph (a). 1 

The board has had many occasions to apply the definition to a particular case. 
Recognizing that the definition speaks in terms of the work performed, the 
board did not pass on the individual qualifications of each employee involved, 
but rather upon the character of the work required of them as a group. 2 But 
the background is examined to decide whether the work of the group satisfies 
the "knowledge of an advanced type" requirement of the statute. 3 The 
requirement that professionals possess "knowledge of an advanced type," does 
not mean that such knowledge must be acquired through academic training 
alone; it is the character of the work required that determines professional 
status. 4 



46 MARTIN H. SCHNEID 

The board makes its findings independent of other governmental decisions. 
For example, a Wage and Hour Act finding that employees are nonprofessional 
does not affect a board finding of professional status, 5 nor does the fact that the 
persons acting need not be licensed to practice their profession in the state. 6 

With the foregoing distinctions noted, the act applies equally to li- 
brarians as to other employees. Section 7 of the act provides: "employees 
shall have the right to self-organization, to form, join, or assist labor organi- 
zations, to bargain collectively through representatives of their own choosing, 
and to engage in other concerted activities for the purpose of collective 
bargaining or other mutual aid or protection, and shall also have the right to 
refrain from any or all of such activities." 7 

To protect these rights, Congress declared certain activities by employers 
and by unions to be unfair labor practices. Free speech without threat of 
reprisal or force is not a violation of the act: "the expressing of views, 
arguments or opinion, or the dissemination thereof . . . shall not constitute or 
be evidence of an unfair labor practice ... if such expression contains no 
threat of reprisal or force or promise of benefit." 8 When speech contains a 
threat of reprisal, force, or promise of benefit, dependent upon the 
employees' union sympathy or concerted protected activity, it becomes vio- 
lative of Section 8(a)(l), by an employer, or 8(b)(l)(A), by a labor organi- 
zation. Employers may not question employees about their union activities or 
membership in such circumstances as will tend to restrain or coerce them, 
may not spy on union gatherings, may not grant or withhold wage increases 
deliberately timed to defeat self-organization among employees, and may not 
make or promulgate rules restricting employees in solicitation for or against 
unions on nonworking time or distribution of union or anti-union literature in 
non working areas on nonworking time. 

Under Section 8(a)(2), an employer violates the law if he dominates or 
interferes with the formation or administration of any labor organization, or 
contributes financial or other support to it, such as taking an active part in 
organizing a labor organization or a committee to represent employees, 
bringing pressure upon employees to join a union, or showing favoritism to 
one of two or more unions which are competing to represent employees. 

Section 8(a)(3) forbids an employer to discriminate against an employee 
"in regard to hire or tenure of employment . . . [or] to encourage or 
discourage membership in any labor organization'^ (emphasis added). Under 
this section, preferential or closed shops are prohibited, while union shops are 
permissible but not mandatory. 

Section 8(a)(5) and Section (d) bar an employer from refusing to 
bargain in good faith concerning wages, hours and other conditions of employ- 
ment with the representative chosen by a majority of employees in a group 
appropriate for collective bargaining. 



RECOGNITION AND BARGAINING UNITS 47 

How does the duty to bargin arise? An employer, faced by a demand 
for recognition as bargaining agent by a labor organization which he has in no 
way assisted, and in the absence of any evinced interest in such representation 
by another labor organization, may accord such recognition if the claiming 
labor organization represents an uncoerced majority of the employees in the 
proposed bargaining unit. This voluntary recognition is permissible, but not 
mandatory. Or, the employer must recognize a union if it obtains a majority in 
an election conducted by the board, a state agency or a neutral third party, 
with substantial adherence to the board's election procedure. Finally, if a 
union, in the absence of any other union claiming to represent any of the 
employees involved, makes a claim to represent the employees, and the 
employer refuses to recognize that union, he may be ordered to bargain with 
that union, without an election, or in the face of a lost election which has 
been set aside upon objections properly filed, provided that (1) the union in 
fact represents an uncoerced majority of the employees, and (2) the employer 
has committed such unfair labor practices as to make the holding of a fair 
election impossible. 

However the duty to bargain arises, it entails various obligations upon 
the employer and the union. The employer (and the bargaining agent union) 
must (1) be willing to meet at reasonable times and places; (2) have present a 
representative with sufficient authority to engage in bargaining; (3) not refuse 
to meet because of whom the other party has designated as its bargaining 
representative; (4) upon request, bargain about (but not necessarily agree 
upon) subjects within the scope of wages, hours and conditions of employ- 
ment; and (5) upon request, furnish information reasonably necessary to the 
bargaining process. 

Unions, in addition to what has gone before, are also subject to limi- 
tations. Section 8(b)(2) prohibits a union from causing, or attempting to 
cause, an employer to discriminate against an employee in violation of Section 
8(a)(3). For example, a union may not ask the employer to discharge an 
employee because he is running for union office or has failed to pay a fine or 
assessment, nor may it ask that he make a contract which provides that 
seniority (or other benefits) shall be dependent on union membership. 

Under Section 8(bX3), in addition to the obligations of the employer 
under 8(aX$), the union does not fulfill its obligation to bargain if, for 
instance, it insists upon the inclusion of an illegal provision, such as a closed 
shop, or strikes to compel changes in an existing contract either without 
giving proper notice or during the term of such contract. Under Section 
8(b)(4), unions may not engage in secondary boycotts or jurisdictional strikes, 
or other prohibited strikes. 

One other aspect of the proscriptions against strikes deserves note the 
ban on strikes for recognition under certain conditions, e.g., when another 



48 MARTIN H. SCHNEID 

union has been lawfully recognized, when the employees have voted (and 
rejected a union) within the preceding twelve months, or where the union 
pickets for recognition for more than thirty days without a formal petition 
being filed for an employee representation election. By statute, there are 
variations on some of the foregoing for health care facilities. 

The National Labor Relations Board cannot act upon its own motion. 
Only when a charge of unfair labor practices is filed may investigation be 
made. If no merit is found, the case is dismissed, absent withdrawal. Appeal 
from a regional dismissal may be taken to the General Counsel, who has final 
authority in denying the appeal or reversing the regional dismissal. If the case 
has merit, either upon original investigation or upon General Counsel's reversal 
of a regional dismissal, settlement is sought. If no settlement is effected, a 
complaint issues and a public hearing is held before an administrative law 
judge. When he issues his decision, the board may review the case and issue a 
decision and order. The board's decision is subject to review or enforcement 
by the U.S. Court of Appeals, and by the Supreme Court. In meritorious 
cases, injunctive relief may be sought. 

The other major aspect of the board's work is in the determination of 
collective bargaining representatives. This arises only when a petition has been 
filed by a union seeking certification as bargaining agent, by an employer 
upon whom a union has made a claim to represent (or continue to represent) 
his employees, or by employees seeking to decertify an incumbent union 
bargaining agent. 

When such petition is filed, investigation is made of the following 
questions: Is the employer subject to the NLRA? Is the union named a labor 
organization within the meaning of the NLRA? Is the petition properly sup- 
ported? (In the case of a union or employee petition, 30 percent of the 
employees must support the petition; in the case of an employer petition 
without an incumbent union, proof of claim made by the union is required; 
and in the case of an employer petition with an incumbent union, the 
employer must show he has objective reasons to believe that the union no 
longer represents a majority of the employees involved.) Is the unit involved 
appropriate for collective bargaining? (In employee petitions the unit must be 
coextensive with the unit represented.) Is the petition timely? (Petitions may 
not be filed during the year following certification of a union as bargaining 
agent, during ten months after an election in which no bargaining agent was 
selected, or in the face of a valid collective bargaining agreement except 
during the period sixty to ninety days prior to the expiration of such 
contract not to exceed three years in length.) The remaining issue is that of 
majority, which, in a representation case, can only be determined by an 
election. 

In 80 percent of the cases, the parties agree to the election. If the 



RECOGNITION AND BARGAINING UNITS 49 

questions are all answered in the affirmative, but parties who are entitled to 
do so refuse to consent to the election, a public hearing is held, and the 
regional director either directs an election, dismisses the petition, remands the 
case for further hearing, or refers it to the board in Washington for decision. 
Any party dissatisfied with the regional director's decision may request the 
board to review it, and the board's decision is final. 

Once the election is held, if the number of challenged votes cannot 
affect the results, and if the parties file no objections within five working 
days, a certification of representative or a certification of results will issue. 
However, if the number of challenges could determine the results, or if timely 
objections are properly filed and served, an investigation will be made of the 
eligibility status of the challenged voters, the facts surrounding the alleged 
objectionable conduct, or, in some cases, both. 

If there are no objections, the challenges will be disposed of. If the 
election is so close that the challenged votes could affect its outcome, a 
sufficient number of these are ruled on to render the results definitive. If 
merit is found to the objections, the election will be set aside and a new 
election directed. If the objections are found to have no merit, the results of 
the election will be certified. 

Under Section 9(b) of the act, the board is empowered to: "decide in 
each case whether, in order to assure the employees the fullest freedom in 
exercising the rights guaranteed by this subchapter, the unit appropriate for 
the purposes of collective bargaining shall be the employer unit, craft unit, 
plant unit, or subdivision thereof." 10 When the parties agree to the unit, 
provided the unit could be appropriate, although it is not the only, ultimate, 
or most appropriate unit, the board will accept such agreement. 1 1 However, 
where there is disagreement as to the unit, the board must resolve the 
differences, which can be of various kinds. 

As to the width of the unit, presumably the plant unit is appropriate, 
but a narrower unit, e.g., a craft unit, or a wider unit, e.g., two or more 
plants of the same employer, or in some cases, several employers, may be 
appropriate. Of prime consideration is the community of interest 12 and 
duties of the employees involved. Functional integration, common supervision, 
various employee skills, interchangeability and contact among employees, the 
work situs, general working conditions and fringe benefits are determinative of 
the community of interest. 1 3 In other words, one might ask: Does the 
proposed unit include all employees sharing this community of interest and 
does it exclude those employees who do not share such community of 
interest? 

When there is a disagreement as to the unit, the board will give weight to a 
successful valid history of bargaining, but will not consider establishing a con- 
tested unit solely on the basis of extent of organization of the union involved. 



50 MARTIN H. SCHNEID 

Once the width of the unit has been decided, so long as more than one 
employee is in that unit, the number of employees is not a factor, 1 4 nor are 
such items as the mode of payment, 15 age, 16 sex, 17 race, 18 union member- 
ship, 19 or the union's territorial or work jurisdiction. 20 The desires of the 
employees, while not controlling, 2 1 may be a factor in craft severance cases, 
and certainly are in the case of professional employees. 

In all cases, the board must observe the statutory exclusions. The act 
does not apply to agricultural laborers or individuals employed by their parent 
or spouse, nor to independent contractors. Briefly, when faced with a con- 
tention that certain individuals are independent contractors and therefore not 
employees, the board applies a "right-of-control" test. If the employer retains 
the right to control the manner and means by which the result is to be 
accomplished, the relationship is one of employment, but if the right of 
control is only as to the result sought, the relationship is that of independent 
contractor. 22 

Disagreements tend to occur most frequently in the designation of 
supervisors. Guided by the language in Section 2(11) of the act, the board 
considers these criteria: "the term 'supervisor' means any individual having 
authority, in the interest of the employer, to hire, transfer, suspend, lay off, 
recall, promote, discharge, assign, reward, or discipline other employees, or 
responsibly to direct them or to adjust their grievances, or effectively to 
recommend such action, if in connection with the foregoing the exercise of 
such authority is not of a merely routine or clerical nature, but requires the use 
of independent judgment." 23 The board, however, also takes into account 
such factors as substitution for supervisors, 24 training for supervisory posi- 
tions, 25 ratio of supervisors to supervised employees, 26 varying terms and 
conditions of employment, 2 7 and ostensible authority. 28 

As to professional employees and their supervisory status, I have alluded 
to the pending University of Chicago case, concerning professionals as super- 
visors, and have discussed the board's approach to professionals in general. As 
to specific cases concerning librarians or libraries, in the recent case of Queens 
Borough Public Library the board, reviewing the history of the establishment 
and the statutory authority under which it operated, decided that because 
"the nexus between the library and city of New York, is such that without 
city support, the library would cease to exist," it would not effectuate the 
policies of the act to assert jurisdiction over the library. 29 

Some of the later cases concerning librarians deserve mention. In CW 
Postcenter, L.I.U. (189 NLRB 904) the petitioning union sought a unit of all 
professionals, including librarians. The employer would exclude the librarians, 
among others, but the board, finding that the twenty-seven librarians who served 
all the libraries (except that of the graduate center) were professionals and had 
sufficient community of interest with the other professionals, included them. 



RECOGNITION AND BARGAINING UNITS 51 

The board excluded the library director, who hired and supervised all 
nonprofessional employees for the libraries. The decision is silent on whether 
he supervised professional librarians, a question which has thus far been 
answered by the board in the University of Chicago case and the Catholic 
University case to which I will refer later. 

In Fordham University (193 NLRB 134) one union sought an overall 
professional unit including professional librarians but excluding the law school 
faculty. Another union sought a unit of the law school faculty. The employer 
contended that all faculty members were supervisors, a contention the board 
denied, and found two separate units, as requested. Finding some librarians 
not to be professional, the board excluded them. As to the professional 
librarians, the board noted that the record was insufficient to decide their 
supervisory status and permitted them to vote under challenge. 

Tuscolum College (199 NLRB 28) involved a disagreement as to the unit 
placement of, among others, the library staff, consisting of a librarian, an 
assistant librarian, and an assistant to the librarian. The board, citing the 
Fordham case, found the librarian and the assistant librarian to be pro- 
fessionals and included them with other professionals, 30 but excluded the 
assistant to the librarian as being a clerical employee. 

Catholic University (201 NLRB 929) concerned itself with a law school 
faculty unit. Disagreement arose as to the status of the head librarian, whom 
the board found to be a professional. As to his supervisory status, since his 
duties in this regard were minor supervision over one full-time assistant 
librarian and four part-time student assistants, the board found him not to be 
a supervisor, and included him in the unit. 

What has been set out thus far is, at best, a fundamental framework on 
which 214 volumes of board decisions and 18 volumes of court decisions must 
be consulted to elaborate and explicate the nuances and variations of such 
basic principles. 

I would propound a caveat: When one has occasion to consider a board 
case, he should not rely upon the august pronouncements of self-styled oracles 
who rarely are properly informed, more infrequently objective, and even less 
frequently direct their comments at the proper target. If one who is in the 
daily arena of industrial or labor relations reads the law and the actual board 
decision, is aware of whether the law as Congress passed it or the board's 
interpretation is at issue, and regards the decision as to its effect on the total 
industrial community, he can provide a meaningful evaluation of the decision. 
The board, as shown in the proposed rule change regarding jurisdiction over 
private secondary and primary schools, welcomes and is guided by such 
significant viewpoints. 

Finally, the board's regional offices and Washington offices are available 
for general or specific inquiries. While no official or interlocutory judgment 



52 MARTIN H. SCHNEID 

can be made in the absence of a pending case, board personnel can acquaint 
people with board policies or status of cases. They will not, of course, suggest 
what course to follow. They also may, under appropriate circumstances, refer 
people to other agencies. The board also has various informational pamphlets 
which could be of help, and hopes that people feel free to use these services. 



REFERENCES 

1. National Labor Relations Act, 29 USCA152 (12). 

2. Northwestern Bell Telephone Co., 79 NLRB 549 (1948). 

3. Western Electric Co., 126 NLRB 1346 (1960). 

4. Ryan Aeronautical Co., 132 NLRB 1160 (1961); Chrysler Corpo- 
ration Space Division, 154 NLRB 352 (1965); and Robbins and Myers, 144 
NLRB 295 (1963). 

5. Standard Oil Co., 107 NLRB 1524 (1954). 

6. Westinghouse Electric Corporation, 89 NLRB 8 (1950); and C.T.L. 
Testing Laboratories, Inc., 150 NLRB 982 (1965). 

7. National Labor Relations Act, 29 USCA 157(64). 

8. Ibid., 158(c) 

9. Ibid., 158(a)(3). 

10. Ibid., 159(b). 

11. Donald H. Parsons and James C. Homes, d/b/a the Parsons Invest- 
ment Co., 152 NLRB 192 (1965). 

12. Berea Publishing Co., 140 NLRB 516 (1963). 

13. Sylvania Electric Products, Inc., 135 NLRB 768 (1962); and Curcie 
Brothers, Inc., 146 NLRB 380 (1964). 

14. Koppers Company, Inc., 117 NLRB 422 (1957). 

15. Palmer Manufacturing Co., 105 NLRB 812 (1953). 

16. Metal Textile Corporation, 88 NLRB 1326 (1950). 

17. Cuneo Eastern Press, Inc. of Pennsylvania, 106 NLRB 343 (1953). 

18. New Deal Cab Co., Inc., 159 NLRB 1838 (1966). 

19. Delta Manufacturing Division Rockwell Manufacturing Co., 89 
NLRB 1434 (1950). 

20. Pennsylvania Garment Manufacturers' Association, Inc., 125 NLRB 
185 (1959). 

21. Ideal Laundry and Dry Cleaning Co., 152 NLRB 1 130 (1965). 

22. Western Nebraska Transport Service Division of Consolidated 
Freightways, 144 NLRB 301 (1963); and Pure Seal Dairy Co., 135 NLRB 76 
(1962). 

23. National Labor Relations Act, 29 USCA 152(11). 

24. Birmingham Fabricating Co., 140 NLRB 640 (1963). 

25. Augusta Chemical Co., 124 NLRB 1021 (1959). 

26. Sanborn Telephone Co., Inc., 140 NLRB 512 (1963); and Formco, 
Inc., 156 NLRB 1471 (1966). 

27. Heck's, Inc., 156 NLRB 760 (1966). 

28. The Bama Co., 145 NLRB 1141 (1964). 



RECOGNITION AND BARGAINING UNITS 53 



29. Queens Borough Public Library, 195 NLRB 974 (1972). See also 
Nassau Library System, 196 NLRB 864 (1972). 

30. See also University of Miami, 213 NLRB No. 54 (1974). 



R. THEODORE CLARK, JR. 

Partner 

Seyfarth, Shaw, Fairweather & Geraldson 
Chicago, Illinois 



The Duty to Bargain 



The legal regulation of the obligation to bargain collectively in both the 
private and public sectors has two primary thrusts. The first is concerned with 
the mechanics of negotiations and the requirement that the parties negotiate 
in good faith. The second concerns the scope of negotiations, i.e., the 
determination of what subjects the parties must, upon request, negotiate. 

THE OBLIGATION TO NEGOTIATE IN GOOD FAITH 

Under the National Labor Relations Act (NLRA) as originally enacted in 
1935, it was an unfair labor practice for an employer to refuse to bargain. 
There was no similar obligation placed on employee organizations and there 
was no statutory definition of what the duty to bargain entailed. The primary 
purpose of the NLRA was to get employers to the bargaining table. As the 
Senate report stated: "The bill . . . leads them [employee representatives] to 
the office door of their employer with the legal authority to negotiate for 
their fellow employees. The bill does not go beyond the office door. It leaves 
the discussions between the employer and the employee, and the agreements 
which they may or may not make, voluntary." 1 The National Labor Relations 
Board and the courts, however, soon added certain requirements, such as the 
duty to meet at reasonable times and to execute in writing any agreement 
reached. Many of these requirements were subsequently incorporated in Sec- 
tion 8(d) of the NLRA with the passage of the Taft-Hartley Act in 1947. 
Section 8(d) states that: 

to bargain collectively is the performance of the mutual obligation of 
the employer and the representative of the employees to meet at 
reasonable times, and confer in good faith with respect to wages, hours, 



54 



THE D UTY TO BAR GAIN 55 



and other terms and conditions of employment, or the negotiation of an 
agreement, or any question arising thereunder, and the execution of a 
written contract incorporating any agreement reached if requested by 
either party, but such obligation does not compel either party to agree to 
a proposal or require the making of a concession. 2 

A substantial number of the public sector collective bargaining statutes contain 
identical or similar provisions. 3 

Parties' Representatives 

Virtually all the public sector statutes grant employees the right to 
negotiate through representatives of their own choosing. This has been uni- 
formly interpreted to mean that the union has the right to select the 
individuals who will negotiate with representatives of the employer and that 
interference with this right by an employer is an unfair labor practice. Thus, 
the fact that an employer finds one or more of the union's representatives 
personally objectionable does not ordinarily justify an employer's refusal to 
negotiate. The Wisconsin Employment Relations Commission made the 
following comment: 

Personal differences arising between the representatives of the parties 
engaged in negotiations with respect to wages, hours and working condi- 
tions of municipal employes do not constitute a valid reason for refusing 
to bargain in good faith. Both municipal employers and representatives 
of their employes have the right to designate whomever they choose to 
represent them at the bargaining table. To allow either or both parties 
to refuse to bargain with each other because of alleged or actual 
conflicts between their representatives would be contrary to the intent 
and purpose of [the act] ." 4 

Similarly, the Assistant Secretary of Labor, in a decision under Executive 
Order 11491, ruled that: "the right to choose its representatives at such 
discussions must be left to the discretion of the exclusive bargaining repre- 
sentative and not to the whim of management." 5 A good illustration of the 
scope of this right lies in a recent decision of the Michigan Employment 
Relations Commission which held that a county board of commissioners was 
not free to refuse to negotiate merely because the employees' bargaining 
representative designated another union as its bargaining agent, since the 
bargaining representative was not giving up its right to represent the 
employees in question. 6 It should be noted, however, that the size of a 
union's bargaining team, especially where negotiations take place on the clock, 
is negotiable and that a public employer is within its rights in requesting that 
the union negotiate over the size of its bargaining team. 



56 R. THEODORE CLARK, JR. 

While employee organizations thus have broad rights to designate their 
representatives for the purposes of collective bargaining, this does not 
generally include the right to include on their bargaining team individuals who 
are excluded from the bargaining unit on the basis of their supervisory and/or 
managerial authority. In fact, in many instances public employers would be 
committing an unfair labor practice if they negotiated with a union bargaining 
committee that included such supervisory or managerial personnel. In this 
regard, the Wisconsin Employment Relations Commission in City of Mil- 
waukee stated: 

The active participation by supervisory employes in the affairs of an 
employe organization could result in impeding and defeating the primary 
purpose of the employe organization that of representing municipal 
employes in conferences and negotiations concerning their wages, hours 
and conditions of employment. Since supervisors are the agents of the 
municipal employer, a municipal employer, by permitting supervisory 
employes to participate actively, in any manner similar to that described 
above, in the affairs of an organization representing employes for the 
purposes set forth in Section 111.70, could, in the proper proceedings, 
be found to have committed prohibitive practices by interfering, 
restraining and coercing its employes in the exercise of their rights 
granted to them under the law. 7 

While both parties have broad rights in terms of selecting their bar- 
gaining representatives, the selected representatives must be clothed with 
sufficient authority to engage in meaningful negotiations. The use of repre- 
sentatives who do not have any power to agree and who must continually 
check back with their principals constitutes bad faith bargaining. This does 
not mean, however, that a party's representatives must have authority to reach 
binding agreements without any need for ratification. To the contrary, both 
parties in the public sector typically take any tentative agreements back to 
their principals for ratification. The Michigan Employment Relations Com- 
mission stated: "Obviously, the negotiating team must receive instructions 
from the governing body and submit oral or written reports to it, if its 
concessions and tentative commitments are to be meaningful. ... [I] t need 
not, and probably cannot, be vested with final authority to bind the public 
employer, since that would seem to involve an illegal delegation of the 
lawmaking power of the City Council." 8 

Duty to Supply Relevant Information 

An employer has a clear duty to furnish relevant data and information 
to a union which represents its employees. 9 The courts and the various labor 
boards have uniformly held that employers are required upon request to 



THE DUTY TO BAR GAIN 5 7 

furnish unions with sufficient data with respect to wage rates, job classifi- 
cations and other related matters in order to permit the union to bargain 
intelligently, administer the contract, and prepare for negotiations. In this 
regard it should be noted that the "union is not required to show the purpose 
of their requested data unless the data appears to be clearly irrelevant." 1 
Rather, the burden is on the employer to show that the requested data is not 
relevant. An employer is not required to necessarily supply the information in 
the same form requested as long as it is submitted in a manner which is not 
unreasonably burdensome to interpret. 1 1 

Related to the duty to supply information is the obligation of an 
employer to supply financial data upon request if an employer pleads inability 
to pay higher wages or fringe benefits. As the U.S. Supreme Court has stated 
in a case arising under the NLRA: 

Good-faith bargaining necessarily requires that claims made by either 
bargainer should be honest claims. This is true about an asserted in- 
ability to pay an increase in wages. If such an argument is important 
enough to present in the give and take of bargaining, it is important 
enough to require some sort of proof of its accuracy. And it would 
certainly not be far-fetched for a trier of fact to reach the conclusion 
that bargaining lacks good faith when an employer mechanically repeats 
a claim of inability to pay without making the slightest effort to 
substantiate the claim. 12 



Unilateral Action 

Another constituent part of the duty to bargain in good faith is the 
requirement that an employer not make unilateral changes in wages, hours or 
working conditions which are subject to negotiation without first negotiating 
with the union. Thus, the Connecticut State Board of Labor Relations 
observed that: "it is well recognized that unilateral employer action upon a 
matter which is the subject of current collective bargaining between the 
parties constitutes a failure and refusal to bargain in good faith upon the issue 
in question." 13 In one case, for example, the Connecticut board held that an 
employer acted improperly when it unilaterally adopted a new classification 
plan while negotiations were in progress. 1 4 

However, once an employer has given the union an opportunity to 
negotiate over a given proposal and it appears that the parties are at an 
impasse, the employer is permitted to unilaterally implement the proposal. In 
upholding the right of a board of education to take such unilateral action, the 
Connecticut Supreme Court stated that: "it was not the intention of the 
legislature to permit progress in education to be halted until agreement is 
reached with the union." 1 5 



58 R. THEODORE CLARK, JR. 



Overall Obligation to Bargain in Good Faith 

Although the courts and the various labor boards are not supposed to sit 
in judgment concerning the results of negotiations, they do review nego- 
tiations to determine whether the parties have in fact negotiated in good faith. 
What constitutes good faith bargaining has been variously defined. The Con- 
necticut Supreme Court stated in West Hartford Education Ass'n v. Decourcy: 
"The duty to negotiate in good faith generally has been defined as an 
obligation to participate actively in deliberations so as to indicate a present 
intention to find a basis for agreement. . . . Not only must the employer have 
an open mind and a sincere desire to reach an agreement, but a sincere effort 
must be made to reach a common ground." 16 In determining whether there 
has been good faith bargaining, the courts and labor boards consider the 
totality of the parties' conduct throughout the negotiations. Thus, while an 
employer has a clear right to insist upon a management rights clause, 1 7 it has 
been held that an employer's good faith is suspect if it insists on retaining 
such absolute unilateral control over wages, hours and working conditions that 
it in effect would require the union to waive practically all of its statutory 
rights. 1 8 

A classic example of a case in which the NLRB looked at the totality of 
conduct is the case of General Electric (GE). 1 9 GE's approach to bargaining- 
called Boulwarism involved several different elements, including the sub- 
mission of a firm offer on a take-it-or-leave-it basis, a massive communications 
campaign, and what in effect amounted to an end run to the employees. In 
finding that this approach to bargaining did not comport with an employer's 
obligation to negotiate in good faith, the NLRB stated: 

a party who enters bargaining negotiations with a take it or leave it 
attitude violates its duty to bargain although it goes through the forms 
of bargaining, does not insist on any illegal or nonmandatory bargaining 
proposals and wants to sign an agreement. For good faith bargaining 
means more than 'going through the motions of bargaining'. . . . '[T]he 
essential thing is rather the serious intent to adjust differences and to 
reach an acceptable common ground'. ... On the part of the employer, 
it requires at a minimum recognition that the statutory representative is 
the one with whom it must deal in conducting bargaining negotiations, and 
that it can no longer bargain directly or indirectly with the employees. It is 
inconsistent with this obligation for an employer to mount a 
campaign, as Respondent did, both before and during negotiations, for 
the purpose of disparaging and discrediting the statutory representative 
in the eyes of its employee constituents, to seek to persuade the 
employees to exert pressure on the representative to submit to the will 
of the employer, and to create the impression that the employer rather 
than the union is the true protector of the employees' interests. . . . 
'[T]he employer's statutory obligation is to deal with the employees 
thru the union, and not with the union thru the employees.' 20 



THE DUTY TO BAR GAIN 59 

It should be specifically noted, however, that it is not ordinarily illegal 
for an employer to advise its employees of what is occurring at the bargaining 
table. As one court noted in construing its public sector act: "The act does 
not prohibit an employer from communicating in noncoercive terms with his 
employees while collective negotiations are in progress. . . . The element of 
negotiation is critical. Another crucial factor in these cases is whether or not 
the communication is designed to undermine and denigrate the union." 2 1 

General Bargaining Guidelines 

While it is impossible to set forth ironclad rules on how to fulfill the 
obligation to bargain in good faith, the following general guidelines may be 
helpful: 



1. Select negotiators with meaningful authority to engage in the give and 
take of negotiations. 

2. Provide, upon request, relevant information in a timely fashion. 

3. Do not take unilateral action on matters that are subject to negotiations 
unless and until such matters have been presented to the union's bar- 
gaining team and the parties are at impasse on those matters. It should 
be noted that this prohibition does not apply during the term of an 
existing collective bargaining agreement under which the employer has 
specifically or implicitly retained the right to take the action in 
question. 22 

4. Do not make proposals on a take-it-or-leave-it basis. This does not mean, 
however, that after a reasonable period of negotiations an employer 
cannot legitimately state its final position. For example, in Philip Carey 
Mfg., 23 the NLRB held that an employer did not commit an unfair 
labor practice when it made a final offer at the eleventh meeting after 
having participated in the traditional give-and-take of negotiation. 

5. Do not communicate proposals to employees until after they have been 
presented to the union's bargaining team across the bargaining table. 

6. Avoid categorical statements such as: "We will never sign a contract." 

7. Take good notes at bargaining sessions. Good notes serve a two-fold 
purpose: (1) they are helpful in reconstructing what actually occurred in 
negotiations if it is ever necessary to defend against a charge of refusing 
to bargain in good faith; (2) negotiating notes are often useful in terms 
of ascertaining the intent of the parties in agreeing to given provisions in 
the contract. As such, they can be extremely useful in terms of ad- 
ministering the contract and in presenting evidence of the parties' intent 
in arbitration proceedings. Parenthetically, it should be noted that it is 



60 R. THEODORE CLARK, JR. 

generally indicative of bad faith bargaining for one party to insist that 
there be a verbatim transcript of negotiations or that negotiations be 
tape recorded. 24 As the NLRB stated: "many authorities and practi- 
tioners in the field are of the opinion that the presence of a stenog- 
rapher at [bargaining] meetings has an inhibiting effect. The use of a 
stenographer or mechanical recorder to create a verbatim transcript does 
tend to encourage negotiators to concentrate upon and speak for the 
purpose of making a record rather than to direct their efforts toward a 
solution of the issues before them." 2 5 However, nothing prohibits both 
parties from agreeing to have a verbatim transcript of negotiations. 

THE SCOPE OF NEGOTIATIONS 



The determination of the scope of negotiations in the public sector is 
considerably more complex and difficult than in the private sector. 26 As one 
commentator has observed: "In the private sector the employer's right to design 
and control the kind and quality of a product he wishes has been relatively 
unchallenged. In education, many of the demands frequently made in 
negotiations challenge these same professional prerogatives." 27 Thus, the NBA, 
in its Guidelines for Professional Negotiations, states: 



A professional group has responsibilities beyond self-interest, including a 
responsibility for the general welfare of the school system. Teachers 
and other members of the professional staff have an interest in the 
conditions which attract and retain a superior teaching force, in the 
in-service training programs, in class size, in the selection of textbooks, 
and in other matters which go far beyond those which would be 
included in a narrow definition of working conditions. Negotiations 
should include all matters which affect the quality of the educational 
system." 28 



Many others, however, feel that such policy matters must be excluded 
from bilateral collective negotiations. Wellington and Winter, for example, 
have observed: "The issue is not a threshold one of whether professional 
public employees should participate in decisions about the nature of the 
services they provide. Any properly run governmental agency should be 
interested in, and heavily reliant upon, the judgment of its professional staff. 
The issue rather is the method of that participation." 29 Wellington and Winter 
concluded that if the scope of bargaining was not effectively limited, it 
"would, in many cases, institutionalize the power of public employee unions 



THE DUTY TO BARGAIN 61 

in a way that would leave competing groups in the political process at a 
permanent and substantial disadvantage." 30 The resolution of this funda- 
mental conflict has occupied the attention of not only state legislatures, but 
also the various labor boards and courts which are charged with the respon- 
sibility of deciding what the parties must negotiate. 

Any discussion of the scope of negotiations usually begins with a review 
of what the applicable statute provides. Rather than spelling out in elaborate 
detail what subjects are negotiable, virtually all of the public sector statutes 
define the obligation in generic terms. In fact, most statutes use the same 
wording found in the NLRA, i.e., the parties are required to negotiate in good 
faith "with respect to wages, hours and other terms and conditions of 
employment." In one case where a teacher bargaining statute referred to only 
wages and other terms and conditions of employment and made no reference 
to hours, the court held that the omission "evidences a legislative judgment 
that teachers' 'hours of employment' determine students' hours of educaton 
and that this is an important educational policy which should be reserved to 
the board of education." 31 As a result, the court held that "the length of the 
school day and school calendar are not mandatory subjects of negotiation." 3 1 

In determining the scope of negotiations, then, the initial inquiry is with 
respect to what falls within the phrase "wages, hours and other terms and 
conditions of employment." Under the NLRA, if a subject is deemed to fall 
within this area, it is considered to be a mandatory subject of bargaining. 32 A 
mandatory subject of bargaining is defined as a subject over which the parties 
must negotiate and over which the parties may insist upon to the point of 
impasse. Among the subjects that have been held to be mandatory subjects of 
bargaining are pensions, paid vacations, holidays, merit increases, incentives, 
bonuses, health and accident insurance programs, meal allowances, no-strike 
clause, management rights clause, severance pay, reporting pay, subcontracting, 
overtime, premium pay, shift work, and grievance procedures. It is an unfair 
labor practice for a party to refuse to negotiate over a mandatory subject of 
negotiation. Moreover, an employer's sincere belief that a proposal is not a 
mandatory subject of bargaining is not a valid defense. 33 

Mandatory subjects of bargaining are to be distinguished from permissive 
and illegal subjects of bargaining. A permissive subject of bargaining is one 
which a party can legally propose, but which cannot be insisted upon to the 
point of impasse. Examples include a demand that the other party withdraw 
an unfair labor practice charge, a proposal that the employer's last offer be 
voted upon by the employees prior to any strike occurring, and a proposal 
that the bargaining unit be expanded to include additional employees not 
previously covered. An illegal subject of bargaining is one which would be 
illegal for the parties to include in an agreement, e.g., a union security clause 
which is contrary to law. 



62 R. THEODORE CLARK, JR. 

Despite the expansive interpretation of the number of mandatory sub- 
jects that fall within the phrase "wages, hours and other terms and conditions 
of employment," the courts have repeatedly held that the scope of nego- 
tiations is not unqualified. Thus, in a recent case the Supreme Court stated 
that the NLRA "does establish a limitation against which proposed topics 
must be measured." 34 The most significant limitation is with respect to 
matters that are deemed to go to the core of entrepreneurial control. In 
Fibreboard Paper Products v. NLRB, 35 Justice Stewart in his concurring 
opinion noted: 



While employment security has thus properly been recognized in various 
circumstances as a condition of employment, it surely does not follow 
that every decision which may affect job security is a subject of 
compulsory collective bargaining. Many decisions made by management 
affect the job security of employees. Decisions concerning the volume 
and kind of advertising expenditures, product design, the manner of 
financing, and sales, all may bear upon the security of the workers' jobs. 
Yet it is hardly conceivable that such decisions so involve "conditions of 
employment" that they must be negotiated with the employees' bar- 
gaining representative. 

In many of these areas the impact of a particular management 
decision upon job security may be extremely indirect and uncertain, and 
this alone may be sufficient reason to conclude that such decisions are 
not "with respect to ... conditions of employment." Yet there are 
other areas where decisions by management may quite clearly imperil 
job security, or indeed terminate employment entirely. An enterprise 
may decide to invest in labor-saving machinery. Another may resolve to 
liquidate its assets and go out ot business. Nothing the Court holds 
today should be understood as imposing a duty to bargain collectively 
regarding such managerial decisions, which lie at the core of entre- 
preneurial control. Decisions concerning the commitment of investment 
capital and the basic scope of the enterprise are not in themselves 
primarily about conditions of employment, though the effect of the 
decision may be necessarily to terminate employment. ... [T]hose 
management decisions which are fundamental to the basic direction of a 
corporate enterprise or which impinge only indirectly upon employment 
security should be excluded from that area. 36 



Significantly, other courts and public employee relations boards have 
accepted the concept that "management decisions which are fundamental to 
the basic direction of a corporate enterprise" are not mandatory subjects of 
negotiation. For example, the Michigan Employment Relations Commission 
has held that it "will not order bargaining in those cases where the subjects are 
demonstrably within the core of entrepreneurial control." 37 While the 



THE DUTY TO BARGAIN 63 

Michigan commission acknowledged that "such subjects may affect interests of 
employees," it stated that "it did not believe that such interests outweigh the 
right to manage." 37 As the Connecticut Supreme Court recently stated, "the 
notion that decisions concerning the 'core of entrepreneurial control' are 
solely the business of the employer appears to have a special kind of vitality 
in the public sector." 38 

The New York Public Employee Relations Board (PERB) has adopted a 
similar approach. In its New Rochelle School District decision it held that 
decisions concerning the number of employees and whether a given service 
should be curtailed were not mandatory subjects of negotiation: "The deter- 
mination as to the manner and means by which education service is rendered 
and the extent of such service is the duty and obligation of the public 
employer. A public employer should not be required to delegate this respon- 
sibility. The decisions of a public employer as to the carrying out of its 
mission a decision to eliminate or curtail a service are not decisions that a 
public employer should be compelled to negotiate with its employees." 39 The 
New York PERB further noted that the underlying rationale "was the concept 
that basic decisions as to public policy should not be made in the isolation of 
a negotiation table, but should be made by those having the direct and sole 
responsibility therefor and whose actions in this regard are subject to review 
in the electoral process." 39 

In Board of Higher Education of New York City, the New York PERB 
held that student membership on a faculty evaluation committee is not a 
mandatory subject of bargaining. The New York PERB stated that: "the 
composition of committees that evaluate employees is not a term or condition 
of the employees being evaluated." 40 In hesitating to allow college teachers to 
shut out nonfaculty members, the board noted that policy questions about a 
university's responsibilities "often involved issues of social concern to many 
groups within the community other than the public employer's administrative 
apparatus and its employees. It would be a perversion of collective nego- 
tiations to impose it as a technique for resolving such dispute and thus 
disenfranchising other interested groups." 4 Member Joseph Crowley 
dissented, rejecting what he regarded as the majority's overreliance on trans- 
posing an industrial model of collective bargaining into an academic setting. 
He noted that appointment and promotion matters have traditionally been 
matters for mandatory negotiation. 

In a recent case the Kansas Supreme Court was faced with the task of 
defining what was negotiable under the Kansas teacher statute which requires 
the parties to negotiate in good faith "with respect to terms and conditions of 
professional service." 41 In addition to wages and other economic matters, the 
court held that negotiations were required over "such things as probationary 
period, transfers, teacher appraisal procedure, disciplinary procedure, and 



64 R. THEODORE CLARK, JR. 

resignation and termination of contracts." 41 On the other hand, the court 
held that negotiations were not required over "curriculum and materials, 
payroll mechanics, certification, class size and the use of para-professionals, 
the use and duties of substitute teachers, and teachers' ethics and academic 
freedom." 4 1 The court stated that "the key ... is how direct the impact of 
an issue is on the well-being of the individual teacher, as opposed to its effect 
on the operation of the school system as a whole." 4 

In a case under the New Jersey act, the New Jersey Supreme Court held 
that a college board of trustees is not required to negotiate over the length of 
the college year or the placement of vacations since these matters involve 
major educational policy determinations which traditionally have been the 
exclusive responsibility of the board of trustees. 42 After noting that the lines 
concerning what is negotiable "may often be indistinct," the court stated: 

[The lines] drawn by the Burlington Board of Trustees seem to us to 
have fairly effectuated the legislative goals. It negotiated on the matters 
directly and intimately affecting the faculty's working terms and con- 
ditions, such as compensation, hours, work loads, sick leaves, personal 
and sabbatical leaves, physical accommodations, grievance procedures, 
etc. It declined to negotiate the major educational policy of the calendar 
though it did make provision in its goverance structure for a calendar 
committee with student, faculty and administration representatives. 
While, in the interests of sound labor relations, it might well have also 
discussed the subject with officially designated representatives of the 
Association, it was under no legal mandate to do so. 3 

In another case the New Jersey Supreme Court held that a school 
board's decision to consolidate the chairmanships of two department was 
predominantly a matter of educational policy and was not, therefore, a term 
or condition of employment. 44 

Effect of Statutory Statement 
of Management Prerogatives 

The determination of the scope of negotiations in the public sector does 
not end with a review of whether a given subject falls within the area of 
"wages, hours and other terms and conditions of employment." In many 
situations, a given topic might very well be deemed to fall within this phrase, 
but is nevertheless not a subject for mandatory negotiation because of a 
statutory reservation of management rights or because it conflicts with civil 
service rules and regulations. The effect of a statutory statement of manage- 
ment prerogatives on the scope of bargaining will be reviewed first. 

Because certain matters have been deemed to be vital to the operation 
of government, many of the public sector statutes specifically exclude 



THE DUTY TO BAR GAIN 65 

designated managerial prerogatives from the scope of bargaining. This follows 
the lead of the federal government in Executive Order 11491, which contains 
the following reservation of management rights: 

Management officials of the agency retain the right, in accordance with 
applicable laws and regulations 

(1) to direct employees of the agency; 

(2) to hire, promote, transfer, assign, and retain employees in positions 
within the agency, and to suspend, demote, discharge, or take other 
disciplinary action against employees; 

(3) to relieve employees from duties because of lack of work or for 
other legitimate reasons; 

(4) to maintain the efficiency of the Government operations entrusted 
to them; 

(5) to determine the methods, means, and personnel by which such 
operations are to be conducted; and 

(6) to take whatever actions may be necessary to carry out the mission 
of the agency in situations of emergency. 

The Hawaii, Kansas and Nevada statutes have similar provisions. Moreover, a 
number of other states provide that public employers are not required to 
bargain over certain matters. For example, the Pennsylvania act provides that 
"public employers shall not be required to bargain over matters of inherent 
managerial policy, which shall include but shall not be limited to such areas of 
discretion or policy as the function and programs of the public employer, 
standards of services, its overall budget, utilizations of technology, the organi- 
zational structure and selection and direction of personnel." 

In the past several years the Federal Labor Relations Council (FLRC) 
and the various state and local labor relations agencies have been called upon 
to interpret the effect of a statutory statement of management prerogatives on 
the scope of bargaining. In Department of the Army Corps of Engineers? 5 
the FLRC ruled that a union's request to negotiate on rotating shift work 
schedules was negotiable. It rejected the agency's argument that the union's 
proposal would be contrary to the right of management under Section 
12(bX4) of Executive Order 11491: "to maintain the agency of Government 
operations entrusted to them." In so ruling, the FLRC stated: 

In general, agency determinations as to negotiability made in 
relation to the concept of efficiency and economy in section 12(b)(4) of 
the Order and similar language in the statutes require consideration and 
balancing of all the factors involved, including the well-being of em- 
ployees, rather than an arbitrary determination based only on the 
anticipation of increased costs. Other factors such as the potential for 



66 R. THEODORE CLARK, JR. 



improved performance, increased productivity, responsiveness to direc- 
tion, reduced turnover, fewer grievances, contribution of money-saving 
ideas, improved health and safety, and the like, are valid considerations. 
We believe that where otherwise negotiable proposals are involved the 
management right in section 12(b)(4) may not properly be invoked to 
deny negotiations unless there is a substantial demonstration by the 
agency that increased costs or reduced effectiveness in operations are 
inescapable and significant and not offset by compensating benefits. 45 

This decision should be contrasted with the FLRC's earlier decision in Plum 
Island Animal Disease Laboratory, wherein it held that "the number of its 
work shifts or tours of duty, and the duration of the shifts, comprise an 
essential and integral part of the 'staffing patterns' necessary to perform the 
work of the agency" and, therefore, was not negotiable since the Executive 
Order reserved to management the right to determine "the numbers, types or 
grades of positions for employees assigned to an organizational unit, work 
project or tour of duty." 4 6 

The Hawaii act likewise contains a fairly explicit management rights 
provision. In Hawaii State Teachers Association and Department of Educa- 
tion*' 1 the Hawaii Public Employee Relations Board held that a proposal 
concerning the average class size ratio was negotiable despite the employer's 
contention that this was a managerial prerogative reserved under the statute. 
In a subsequent decision, however, the Hawaii Public Employment Relations 
Board ruled that a proposal concerning work load which would fix the 
maximum number of students per teacher was not negotiable. After noting 
that the proposal involved "both educational policy-making and has a sig- 
nificant impact on working conditions," the Hawaii board determined "that it 
so interfere [d] with management's right to establish management educational 
policy and operate the school system efficiently as to render it non-- 
negotiable." 48 The board's rationale was as follows: 

It is our opinion that the specific proposal on work load which is here 
at issue, while admittedly concerned with a condition of employment 
because it may affect the amount of work expected of a teacher, 
nevertheless, in far greater measure, interferes with the DOE's respon- 
sibility to establish policy for the operation of the school system, which 
cannot be relinquished if the DOE is to fulfill its mission of providing a 
sound educational system and remaining responsive to the needs of the 
students while striving to maintain efficient operations. Hence, the DOE 
and the HSTA may not agree to the subject work load proposal because 
such agreement would interfere substantially with the DOE's right to 
determine the methods, means, and personnel by which it conducts its 
operations and would interfere with its responsibility to the public to 
maintain efficient operations. 49 

In the State Area College District case, the Pennsylvania Labor Relations 



THE DUTY TO BAR GAIN 6 7 

Board vacillated with respect to the interpretation and application of the 
management rights proviso set forth in the Pennsylvania act. After initially 
ruling that some twenty-one proposals, ranging from class size to the elimin- 
ation of the requirement that teachers chaperone athletic activities, were 
covered by the proviso and that a school board was not therefore required to 
negotiate on these matters, 50 the board reconsidered its initial decision and 
held that many of the twenty-one items which it had previously ruled 
nonnegotiable were, in fact, negotiable. 51 On appeal, the Commonwealth 
Court of Pennsylvania ruled that all of the twenty-one proposals in question 
were covered by the management rights proviso in that they concerned 
matters of inherent managerial policy. The court, in relevant part, stated: 

We must conclude that school boards have traditionally been given by 
the Legislature, under constitutional mandates, broad inherent mana- 
gerial powers to operate the public schools and to determine policy 
relative thereto. If Act 195 represents a departure from the traditional 
principle of our public schools being operated and managed by school 
boards, it would be a sharp departure not to be presumed but the result 
of clear legislative declaration. . . . 

Matters of "inherent managerial policy" over which public em- 
ployers are not obligated to bargain are such matters that belong to the 
public employer as a natural prerogative or essential element of the right 
(1) to manage the affairs of its business, operation or activity and (2) to 
make decisions that determine the policy and direction that the 
business, operation or activity shall pursue. 5 2 

The California Meyers-Milias-Brown Act authorizes negotiations over 
"wages, hours and other terms and conditions of employment," but exempts 
from the scope of negotiation the "consideration of the merits, necessity, or 
organization of any service or activity provided by law or executive order." In 
County of Los Angeles County Department of Public Social Services v. Los 
Angeles County Employees Association, 53 the California Court of Appeals 
upheld a decision of the Los Angeles County Employee Relations Commission 
that the number of cases assigned to welfare workers is a working condition 
and therefore a mandatory subject of bargaining. In balancing the conflicting 
provisions of the ordinance, the court stated: "The problem of interpreting 
these sections, and their relationship to each other, is that an argument can 
plausibly be made that all management decisions affect areas of mandatory 
service to the public and the working conditions of public employees; or, 
conversely, that all decisions rendered concerning a public employee labor 
dispute of necessity will determine the quality of mandated public service and 
the operation of management." 53 The court noted that it could find no 
reason why a public employer could not discuss the question of case load in 
light of "wages, hours and other conditions of employment," even though the 



68 R. THEODORE CLARK, JR. 

"merits, necessity, or organization" of the service being rendered are excluded 
from negotiations. 

The Nevada Local Government Employee Relations Act contains a fairly 
lengthy provision which reserves to public employers numerous rights "with- 
out negotiation or reference to any agreement resulting from negotiation." In 
Washoe County School District, the Nevada Local Government Employee - 
Management Relations Board held, inter alia, that proposals concerning class 
size, student discipline, school calendar, and teacher load were nevertheless 
negotiable. The board held "that any matter significantly related to wages, 
hours and working conditions is negotiable, whether or not said matters also 
relate to questions of management prerogative ; and it is the duty of the local 
government employer to proceed and negotiate said items." 54 

Effect of Civil Service Laws 
on Scope of Negotiations 

Prior to the advent of wide-scale collective bargaining in the public 
sector, the terms and conditions of employment for many public employees 
were established pursuant to civil service rules and regulations. In the public 
sector, these civil service rules and regulations were the counterpart to the 
collective bargaining agreement in the private sector. The enactment of public 
sector collective bargaining legislation has raised the question as to the extent, 
if any, to which preexisting civil service rules and regulations are superseded 
by collective bargaining. The legislative response has differed from state to 
state. The Michigan act, for example, is completely silent on the matter. As a 
result, the parties and eventually the courts have had to attempt to resolve the 
many conflicts that have arisen. The Michigan Supreme Court, noting that it 
had "to guess what the 1965 legislature would have done had the point come 
to its attention," held that the 1965 public employee bargaining law "must be 
implemented and administered exclusively as provided therein" and that the 
authority of civil service commissions was "diminished pro tanto by the 
(public employee labor relations] act of 1965, to the extent of free admin- 
istration of the latter according to its tenor." 5 5 

On the other hand, some states have provided, in effect, that existing 
civil service rules and regulations should not be impeded by collective bar- 
gaining. For example, the Massachusetts act for municipal employees provides 
that nothing in the act "shall diminish the authority and power of the civil 
service commission, or any retirement board or personnel board established by 
law." The New Hampshire statute for state employees provides, not unlike 
Executive Order 11491, that "all collective bargaining agreements shall at all 
times be subject to existing or future laws and all valid regulations adopted 
pursuant thereto." 



THE DUTY TO BAR GAIN 69 

The third legislative approach is to provide that certain core essentials of 
the merit principle i.e., the holding and granting of merit examinations and 
the appointment of employees from lists established by such examinations- 
are not negotiable, but with respect to all other matters where there is a 
conflict between the collective bargaining agreement and the rules and regu- 
lations adopted by a personnel board or civil service commission, the terms of 
such agreement shall prevail. This approach has been adopted in Connecticut. 

The conflict between civil service and the scope of bargaining under 
public sector collective bargaining laws is clearly revealed in Laborer's Inter- 
national Union of North America, Local 1029 v. State of Delaware. 56 At 
issue was the negotiability of union proposals concerning pay for holiday 
work, paid union leave, premium pay for double shift work, use of accumu- 
lated sick leave for vacation purposes, hazardous duty pay, and reimbursement 
for accumulated sick leave upon voluntary resignation. The court, noting that 
the Delaware Public Sector Bargaining Law provides for negotiations on 
"matters concerning wages, salaries, hours, vacations, sick leave, grievance 
procedures and other terms and conditions of employment," stated that each 
of the union's proposals fell within the defined area of negotiations and 
therefore was a "proper subject for collective bargaining." The court noted, 
however, that "difficulty arises when one attempts to reconcile the Union's 
demands for collective bargaining with the provisions and purposes of the 
State's Merit System of Personnel Administration." After noting that "both 
the Merit System and the right of public employees to organize are of 
relatively recent origin," the court stated: 

Having studied the statutes and the available legislative history, I am of 
the opinion that where there is uncertainty as to areas where the 
General Assembly has indicated a clear intention to deny collective 
bargaining, any doubt should be resolved in favor of the merit system. 
The Merit System has been instituted to create a uniformity of protection 
and treatment for public employees. The sections listed in section 5938(c) 
are those in which uniformity of treatment would seem most essential if 
the system is to have meaning, particularly those which attempt to deal 
with classification based on ability, equal compensation for commensurate 
ability and responsibility, promotions and time off from work with pay. If 
each agency is to bargain with the bargaining representative of its 
employees on such things as the amount of pay for holidays and double 
shifts worked, the amount of authorized leave with pay, the use of 
accumulated sick leave as additional vacation with pay, etc., then the 
obvious result will be to have employees of the same classifications 
receiving different compensation and different leave arrangements for 
different purposes based solely upon the agency they work for and the 
success of their collective bargaining representatives. Section 5938(c) 
seems designed to prevent this while the remainder of the statute allows 
for bargaining on various other matters. I am therefore reluctant to 



70 R. THEODORE CLARK, JR. 

expand the scope of collective bargaining so as to effectively encroach 
upon rules adopted pursuant to the statutes protected by Section 
5938(c) without clear legislative direction to do so (emphasis added). 56 

The court noted that: "[its] decision should not be taken to indicate a negative 
attitude in this State towards the rights of public employees. Rather it is an 
attempt to reconcile conflicts inherent in a public employment program which 
contemplates both merit system protection as well as collective bargaining 
rights for State employees." 5 7 

An example of the type of conflict that arises is indicated in the 
decision of the Orgeon Public Employe Relations Board in University of 
Oregon Medical School and the State Personnel Division. 5 * There the Oregon 
State Employee Association represented 90 percent of the physical plant 
employees employed by the state, with the American Federation of State, 
County, and Municipal Employees representing the remaining 10 percent. 
When AFSCME requested negotiations with respect to salaries for the physical 
plant employees which it represented, the personnel division proposed that 
negotiations on economic matters be conducted jointly with both AFSCME 
and the Oregon State Employe Association; it refused to negotiate separately 
with AFSCME on salaries and wages. In this regard, the personnel division 
relied on a provision of the merit system law which provided that salaries of 
employees in any classification in the classified state service were to be 
uniform. In rejecting the contentions of the personnel division, the Oregon 
board stated: 

Even if it be true that the statute requires a single rate, this does not 
foreclose the obligation to bargain with the smaller unit nor does it 
force the smaller unit to sit by submissively while the larger group has 
determined its fate. We cannot catalog all of the possible results of 
bargaining with the smaller unit but, as examples of possible results, it 
might be that the smaller unit would be persuaded to accept the pre-set 
rates or that the Department would agree to some different and higher 
rates which might then become the standard for all employes. It is also 
possible that the parties would reach an impasse. It is also conceivable 
that ORS 240.235(3), while requiring a uniform rate, does not require 
that the rate be uniform throughout the state but only in geographical 
areas. 59 

Effect of Statutes, Charter 
Provisions and Ordinances 

In addition to the conflict between civil service laws and collective 
bargaining, there is also a conflict with other state statutory provisions, 
municipal charters, and ordinances. In Detroit Police Officers Association v. 
City of Detroit, 60 one of the questions raised was whether the city of Detroit 



THE DUTY TO BAR GAIN 71 

was required to bargain with respect to certain changes in the retirement 
system where such changes were incorporated in a city charter provision 
which had been approved by the electrorate. In holding that the duty to 
bargain under the Michigan Public Employment Relations Act superseded city 
charter provisions, the court stated: "It takes little insight to appreciate what 
a municipal employer and its electrorate could do to the collective bargaining 
process if this procedure were allowed to stand. Any 'Home Rule' city could 
merely write its pension and retirement system into its charter, and insulate 
any change therein from negotiations and settlement save with electoral 
approval. This to us is the exact converse of what the Legislature intended 
when it inserted bargaining rights for public employees into the statute." 61 
Similarly, the Wisconsin Employment Relations Commission (WERC) in 
Racine County, ruled that whether salary increases were retroactive was 
negotiable, rejecting the employer's contention that retroactive payments were 
prohibited by a county ordinance. The WERC stated that "what the County 
enacted with respect to retroactivity, it can repeal if it so desires." 62 

In Waterbury Teachers Association v. City of Waterbury, 63 the Con- 
necticut Supreme Court held that a board of education had a duty to 
negotiate the terms and conditions of employment of principals even though 
the job specifications of the principals had been established by civil service 
rules and regulations adopted pursuant to a city charter. The court noted that 
principals as certified professional employees were covered by the Connecticut 
Teacher Negotiation Act and that therefore the provisions of the state act 
mandating negotiations were applicable "notwithstanding ... the Waterbury 
Charter and the civil service rules and regulations adopted pursuant thereto." 64 

Effect of Legislative and 
Appropriation Process 

In Rutgers Council of the American Association of University Professors v. 
The New Jersey Board of Higher Education 65 the court held that a state board 
of higher education did not violate the state's public sector bar- 
gaining law when it unilaterally adopted a student-faculty ratio funding for- 
mula applicable to the university, notwithstanding the union's contention that 
the formula imposed certain work loads, class sizes, class hours, etc., on the 
university's faculty. In so ruling, the court stated: 

The Board's right to make a budget recommendation for Rutgers 
was intended by the Legislature to be exercised freely, and in a manner 
that would enable it to receive an independent and analytical assessment 
of the budgetary needs of the University. As respondents point out, if 
the Employer-Employee Relations Act were construed to compel 
collective negotiations on the budget recommendations given to the 
Legislature by the Board, this obvious legislative intent would be 



R. THEODORE CLARK, JR. 

frustrated, for the recommendations it made each year would reflect 
compromise and not the Board's independent judgment. As we have 
remarked earlier in this opinion, any member of a public or private 
interest group may examine any budget recommendation made by the 
Board and, if so minded, submit his views and appropriate data with 
regard thereto to the executive and legislative branches of government. 
This, and not collective negotiation, is the proper avenue for interested 
parties to follow. 66 

Collective bargaining in the public sector is in many respects at the same 
stage of development as collective bargaining was in the private sector in the 
late 1930s. Like the private sector then, the public sector is beset with 
considerable uncertainty as to what the obligation to bargain in good faith 
means and what the scope of bargaining is. While much remains to be 
resolved, it is not unreasonable to suggest that as precedents are established to 
govern the conduct of the parties at the bargaining table and as the para- 
meters of bargaining become more firmly established, the uncertainty and 
militancy that often accompanies public sector bargaining today will decrease. 
That, at least, was the experience in the private sector. I am not suggesting 
that the problems are easy or that everything will eventually work out 
satisfactorily for all concerned. I do suggest, that, as the parties become more 
experienced in their relatively new roles and as institutional changes are made 
to accommodate to the reality of collective bargaining, the crisis, conflict and 
confrontation that permeates much of public sector bargaining will begin to 
recede. 



REFERENCES 

1. Quoted in Smith, Russell A. Labor Law. 2d ed. Indianapolis, 
Bobbs-Merrill, 1953, p. 647. 

2. National Labor Relations Act, 29 USCA 158(d). 

3. See generally Edwards, Harry T. "The Emerging Duty to Bargain in 
the Public Sector," Michigan Law Review, 71:885-934, April 1973. 

4. The City of Superior, Wisconsin Employment Relations Com- 
mission Dec. No. 8325 (1967). 

5. Ft. Jackson Laundry Facility, A/SLMR Dec. No. 242 (1972). 

6. Barry County Board of Commissioners, Michigan Employment Rela- 
tions Commission Case No. C74 B-42 (1974). 

7. City of Milwaukee, Wisconsin Employment Relations Commission 
Dec. No. 6960 (1964), reprinted in Russell A. Smith, Harry T. Edwards, and 
R. Theodore Clark, Jr. Labor Relations Law in the Public Sector. Indianapolis, 
Bobbs-Merrill, 1974, p. 173; and Accord, City of Stamford (Public Works 
Department), Connecticut State Board of Labor Relations Dec. No. 862 
(1966). 



THE DUTY TO BARGAIN 73 



8. City ofSaginaw, Michigan Employment Relations Commission Lab. 
Op. 465 (1967). 

9. See generally Huston, Robert A. "Furnishing Information as an 
Element of Employer's Good Faith Bargaining," University of Detroit Law 
Journal, 35:471-504, April 1958; and Miller, Max J. "Employer's Duty to 
Furnish Economic Data to Unions- Revisited," Labor Law Journal, 17:272-79, 
May 1966. 

10. Saginaw Township Board of Education, Michigan Employment Rela- 
tions Commission Lab. Op. 127 (1970), reprinted in Smith, Edwards, and 
Clark, op. cit., p. 544. 

11. Westinghouse Electric Corporation, 129 NLRB 850 (1960). 

12. NLRBv. Truitt Manufacturing Co., 351 U.S. 149, 153 (1956). 

13. Town of Stratford, Connecticut State Board of Labor Relations 
Dec. No. 1069 (1972). 

14. Borugh of Naugatuck, Connecticut State Board of Labor Relations 
Dec. No. 769 (1967). 

15. West Hartford Education Association v. DeCourcy, 162 Conn. 566, 
295 A.2d 526 (1972), reprinted in Smith, Edwards, and Clark, op. cit., 
p. 528. 

16. Ibid., p. 521. 

17. NLRB v. American National Insurance Co., 343 U.S. 395 (1952). 

18. See, e.g., West Hartford Education Association v. DeCourcy, op. cit. 

19. General Electric Co., 150 NLRB 192 (1964), enf'd, 418 F.2d 736 
(2d Cir. 1969), cert, denied, 397 U.S. 965 (1970). 

20. Ibid., 150 NLRB 194-95. 

21. West Hartford Education Association v. DeCourcy, op. cit. 

22. See, e.g., City of Milwaukee, Wisconsin Employment Relations Com- 
mission Dec. No. 8505 (1968), reprinted in Smith, Edwards and Clark, op. 
cit., p. 560; and Ador Corporation, 150 NLRB 1658 (1965). 

23. Philip Carey Mfg., 140 NLRB 1103 (1963), enf'd, 331 F.2d 720 
(6th Cir. 1964). 

24. See, e.g., Mayor Samuel E. Zoll and the City of Salem, Mass- 
achusetts Labor Relations Commission Case No. MUP 309 (1969); and Archi- 
tectural Fibreglass, Division of Architectural Pottery, 165 NLRB 238 (1967). 

25. Architectural Fibreglass, Division of Architectural Pottery, op. cit. 

26. See generally Smith, Edwards, and Clark, op. cit., pp. 364-521. 

27. Lane, Willard R., quoted in Clark, R. Theodore, Jr. "Negotiating the 
Public Sector Agreement." In Thomas P. Gilroy and Anthony V. Sinicropi, 
eds. Collective Negotiations and Public Administration. Iowa City, Center for 
Labor and Management, College of Business Administration, University of 
Iowa, 1970, p. 30. 

28. Quoted in Clark, ibid., p. 30. 

29. Wellington, Harry H., and Winter, Ralph K., Jr. The Unions and the 
Cities. Washington, D.C., The Brookings Institution, 1971, p. 24. 

30. Ibid., p. 30. 

31. West Hartford Education Association v. DeCourcy, op. cit. 

32. See generally NLRB \. Wooster Division of Borg-Warner Corpo- 
ration, 356 U.S. 342 (1958). 

33. See, e.g., Sanilac County Road Commission, Michigan Employment 
Relations Commission Lab. Op. 461 (1969). 



74 R. THEODORE CLARK, JR. 



34. Allied Chemical and Alkali Workers Local 1 v. Pittsburgh Plate Glass 
Co., 404 U.S. 157 (1972). 

35. Fibreboard Paper Products v. NLRB, 379 U.S. 203 (1964). 

36. Ibid., 379 U.S. 223. 

37. Westwood Community Schools, Michigan Employment Relations 
Commission Lab. Op. 313 (1972). 

38. West Hartford Education Association v. DeCourcy, op. cit. 

39. New Rochelle School District, 4 New York PERB 4-3060, 3704, 
3706. 

40. Board of Higher Education of New York City, New York PERB 
Case No. U-0904, Government Employee Relations Report (GERR) No. 558, 
B-10 (June 1974). 

41. National Educational Association of Shawnee Mission, Inc. v. Board 
of Education of Shawnee Mission Unified School District, 512 P.2d 426, 
Labor Relations Reference Manual, 84:2223, 1973. 

42. Burlington College Faculty Association v. Board of Trustees, 
Burlington County College, N.J. S. Ct., Labor Relations Reference Manual, 
84:2857, 1973. 

43. Ibid., p. 2858. 

44. Dunellen Board of Education v. Dunellen Education Association, 
GERR No. 535, G-l (Dec. 1973). 

45. Department of the Army Corps of Engineers, Federal Labor Rela- 
tions Council No. 71A-26 (1972), GERR Ref. File 21:7023. 

46. Plum Island Animal Disease Laboratory, Federal Labor Relations 
Council No. 71A-11 (1971), GERR Ref. File 21:7013. 

47. Hawaii State Teachers Association and Department of Education, 
Hawaii Public Employee Relations Board Dec. No. 22 (1972). 

48. Department of Education, Hawaii Public Employee Relations Board 
Dec. No. 26 (1973), reprinted in Smith, Edwards, and Clark, op. cit. p. 446. 

49. Ibid., p. 451. 

50. PLRB v. State College Area School District, GERR No. 426, F-l 
(Nov. 1971). 

51. Ibid., GERR No. 464, B-2 (Aug. 1972). 

52. State College Education Association v. PLRB, 306 A.2d 404 (1973), 
reprinted in Smith, Edwards, and Clark, op. cit. p. 432. 

53. County of Los Angeles County Department of Public Social Services 
v. Los Angeles County Employees Association, GERR No. 515, B-17 (Aug. 
1973), Calif. Ct. App., 2d App. Dist. (1973). 

54. Washoe County School District, Nevada Local Government 
Employee-Management Relations Board Item No. 3 (1970). 

55. Civil Service Commission v. Wayne County Board of Supersisors, 
184 N.W. 2d 201 (1971), reprinted in Smith, Edwards, and Clark, op. cit., 

p. 476. 

56. Laborer's International Union of North America, Local 1029 v. 
State of Delaware, Del. Ct. of Chan., Kent County (1973), Labor Relations 
Reference Manual, 84:2418-19, 1973. 

57. Ibid., p. 2420. 

58. University of Oregon Medical School and the State Personnel Divi- 
sion, Oregon Public Employe Relations Board Dec. No. C-70 (1972), reprinted 
in Smith, Edwards, and Clark, op. cit., p. 478. 



THE DUTY TO BAR GAIN 75 



59. Ibid., p. 480. 

60. Detroit Police Officers Association v. City of Detroit, 200 N.W. 2d 
722 (Mich. Ct. App. 1972), reprinted in Smith, Edwards, and Clark, op. cit., 
p. 504. 

61. Ibid., p. 507. 

62. Racine County, Wisconsin Employment Relations Commission Dec. 
No. 10917-6(1972). 

63. Waterbury Teachers Association v. City of Waterbury, Conn. S. Ct. 
(1973), Labor Relations Reference Manual, 84:2158, 1973. 

64. Ibid., p. 2155. 

65. Rutgers Council of the American Association of University Profes- 
sors v. The New Jersey Board of Higher Education, N.J. Super. Ct., App. Div. 
(1973), Labor Relations Reference Manual, 85:2214, 1973. 

66. Ibid., p. 2219. 



MARTIN WAGNER 

Professor 
Institute of Labor and Industrial Relations 

University of Illinois 
Urbana-Champaign, Illinois 



Grievances 



In preparing this discussion on grievances I have made two assumptions. 
First, I assume that an established collective bargaining relationship exists. I 
am not suggesting that this relationship is necessarily desirable, but the 
assumption is important. When grievances arise in an unorganized situation, 
their disposition is different than handled under collective bargaining. In 
addition, statutorily or organizationally established grievance procedures may 
be different from those established through collective bargaining. 

My second assumption is that the subject is not limited to the sub- 
stantive matter of which types of issues and problems constitute grievances in 
a collective bargaining relationship. I am assuming for the purpose of this 
discussion that the subject concerns not only those issues but also the 
problem of institutional procedure for dealing with grievances. In fact, the 
procedural aspect of the subject may be the most important part of the entire 
problem. 

Before turning to the specific subject of grievances, I want to direct 
attention to the background against which I believe our discussion must be 
carried on. All organizations of substantial size have procedures for esta- 
blishing employment conditions and for administering them on a continuing 
basis. In some instances these are poorly conceived and haphazardly admin- 
istered. In others they are thoughtfully constructed and carefully executed. 
These procedures exist in organized as well as unorganized situations in any 
large organization there are some arrangements for dealing with employment 
conditions. In contrast to the procedure generally followed in unorganized 
situations, in which employment conditions are established and administered 
at the discretion of managers alone, under collective bargaining these 

This article is an edited transcription of Mr. Wagner's presentation at the Institute. 



76 



GRIEVANCES 

employment conditions are established and administered bilaterally through 
negotiations and structured consultations with representatives of the em- 
ployees to which they are applicable. Collective bargaining, therefore, is a 
particular procedure for establishing those employment practices and policies 
and the procedures for administering and executing them. Out of this col- 
lective bargaining procedure a kind of governmental process develops for 
dealing with these employment concerns on a continuing and structured basis. 
The analogy with a governmental process may be overdrawn, but it does 
indicate something about the nature of this activity, particularly in relation to 
the administration of the process. It is the nature and the quality of this 
governmental process that is real for most of those involved in it and affected 
by it, and it is central to our concern. 

like those who study other complex institutions and relationships, those 
who examine the entire collective bargaining situation find it useful and 
meaningful to examine systematically different functional aspects of the pro- 
cess relationship in order to get a better understanding of the whole. At times 
we tend to examine separately or abstract from the whole one interesting 
and fascinating part of this procedure, the negotiation process. This is the 
dramatic process of changing or redefining the substantive terms, the basic 
practices and conditions of the relationship. We look at the negotiating 
process in which existing employment conditions are reshaped and redefined, 
and we become interested in and preoccupied with the strategies and tactics 
used by the negotiators to yield an acceptable result. At times those of us 
who look at the process break that negotiating aspect of the relationship into 
even smaller units, and examine the different stages at which these negotiating 
processes or procedures take place. Then we examine the involvement and the 
influence of additional parties such as negotiators, factfinders, or arbitrators, 
or some outside governmental forces, factors or persons who step into these 
procedures. We also look at the use of alternative pressure mechanisms and 
the contributions and effects that these have on the outcome of the nego- 
tiations. The breaking down of this large chain into smaller and smaller units 
to try to comprehend what is going on is an important analytical device and a 
good intellectual approach. 

Similarly, we occasionally set a different task for ourselves and examine 
separately the procedures whereby the same negotiated conditions that were 
the product of one of these negotiation sessions are put into effect at the 
work place and how differences, controversies and disputes about their appli- 
cation and interpretation are resolved. Here we are examining another facet of 
this continuing relationship, looking at it in great and greater detail and 
asking: How does it work? How do we resolve the inevitable differences and 
controversies that may arise under an agreement or previously established set 
of ground rules? What procedures are useful in trying to handle this kind of 



78 MARTIN WAGNER 

dispute? As with negotiations, we divide the relationship into smaller units 
and examine the mechanisms that are used to resolve those differences and 
those matters which the negotiating parties were unable to resolve. 

The program for this institute illustrates my point. We are dealing with a 
whole series of topics, including the scope of negotiations, the establishment 
of bargaining means, grievances, the negotiating process, and the negotiation 
of substantive terms of a new relationship. Each of these topics is abstracted 
from a continuing relationship in an attempt to gain some insight or some 
sense of what is occurring. As useful or significant as this approach is, we 
need to remind ourselves regularly that each of these functions, each of these 
categorized aspects of the relationship, is an integral part of the total relation- 
ship. Whether deliberate or not, a change in any one of these functions has 
some effect or influence on the total relationship. The segments are abstrac- 
tions, and it is the totality which is real and significant. It is that totality with 
which we should be concerned. 

What happens in the day-to-day administration of the previously agreed- 
upon conditions, the day-to-day application of those agreed-upon practices, 
has a tremendous impact on their negotiation the next time. Similarly, not 
only the agreements reached, but also the manner in which the agreements are 
reached in negotiation including the style, the respect or lack of respect, and 
the attitudes of the parties involved has a tremendous effect on the daily 
applications of the relationship that follows. To state it simply, attitudes and 
sentiments are shaped in each of these segmented procedures, but they are 
not confined to those particular procedures or to that setting; they spill 
over into the others. In general, neither the substantive issues nor the 
procedures adopted for dealing with grievances are as visible or as dramatic as 
those dealt with in the negotiation for changes in conditions, as is true in 
many other parts of the collective bargaining process. The headlines today 
discuss pending negotiations, and negotiations in progress, but little is said 
about what has been happening at the coal face in the last two years in the 
daily administration of safety provisions and the contractual provisions of the 
previous agreement. The drama is in the negotiations, and yet the absence of 
drama in the handling of grievances does not mean that they cannot and do 
not have a significant effect on those negotiations. What takes place in the 
day-to-day administration of a collective bargaining relationship may lend 
more flavor than the actual negotiations do. It is against this background that 
I wish to discuss the specific problem of grievances and the grievance proce- 
dure. 

What is this business of grievances about? A first major characteristic is 
that the establishment of a grievance procedure or the existence of a grievance 
is premised on recognition. It is in the application of the bargaining agreement 
that the meaning of the grievance procedure is realized. You can sit down in a 



GRIEVANCES 79 

room and negotiate a collective bargaining agreement, and include guidelines 
and substantive terms, but until that agreement becomes a viable, active 
instrument at a work place it is only a piece of paper. It is in the application 
of the agreement that it becomes alive and obtains its significance. 

A second important point is that in any complex, dynamic organization 
in which collective bargaining agreements exist, differences over the applica- 
tion and interpretation of those agreements will inevitably arise. Because of 
this, it makes eminent good sense to make arrangements for dealing with 
those differences when the specific issues of an individual situation are not 
before us, to deal with the potential difference before it occurs. Once a 
difference arises, the feelings aroused by the difference itself are imposed on 
the question and we cannot resolve it. Therefore, when we recognize that 
differences will arise, there are two approaches we can take. One is to say that 
we will deal with them on an ad hoc basis as they arise. There are dangers in 
that procedure. Alternatively we can say that we anticipate them, that we 
expect that the resolution of those differences will be important in terms of 
our continuing relationship, and that we ought to devise an instrument for 
solving them. 

It is also important that the actual parties to the relationship negotiate 
the grievance procedure. It is on the basis of their experience, knowledge and 
understanding of their situation that they decide to develop an instrument or 
mechanism for dealing with future differences. No one from the outside 
imposes these mechanisms. No one says, 'This is the model, and it's the only 
model," although in practice there is a tendency to adopt standard models 
because the parties involved have not asked the question, "What is this 
relationship about?" 

A major subject of negotiation in most collective bargaining 
relationships, therefore, is the grievance procedures, the mechanisms whereby 
we attempt in some orderly, sensible, pragmatic way to handle the differences 
that inevitably will arise. We can shape these procedures to our own situation, 
to suit our particular environment and our particular need. Those of us who 
have looked at grievance procedures find that a wide range of mechanisms is 
adopted because each is tailored to the problems at hand. The parties nego- 
tiate these mechanisms to solve their own problems, and the outcome of this 
negotiation is shaped by the views of the negotiating parties about what 
should be stressed, and by their relative bargaining power and skill. There is as 
much concern about grievance procedure as there is about other matters. 

Now let me turn to the specific matters in this grievance procedure that 
require attention. Even though the particular form of the grievance procedure 
tends to vary with the situation with the nature, size and character of the 
organization virtually all grievance procedures have one characteristic in 
common. This is a kind of appellate arrangement in which there are numerous 



80 MARTIN WAGNER 

steps. The number of steps may vary. The determination of who is involved at 
each step may depend on the character of the particular situation, and this 
can and should be related to the requirements of the parties in their setting. 
But most grievance procedures have a kind of appellate arrangement in which 
problems, issues or differences are first handled at some low level at the level 
of the origin of the difference and then may ultimately be taken to the top 
of the organization, to some higher level in which top officials or admin- 
istrative officers of both organizations who had something to do with shaping 
the original agreement look at and dispose of the grievance. 

Another problem concerns the matters that can be submitted to and 
processed through this machine. This is an important and critical question, 
and great controversies exist. I propose two possible answers: (1) any dif- 
ference that may arise between the parties during the existence of this 
agreement may be initiated and processed through the grievance procedure; 
(2) any difference over the interpretation or application of the agreement may 
be handled under the grievance procedure. They sound alike, but are they? 
This is a tremendous issue, and parties argue vigorously over it. "Any dif- 
ference" is one proposition; "any difference over the interpretation or applica- 
tion of the agreement" is a much more narrowly defined or circumscribed 
matter. 

Another concern is with the point in this machinery where the particular 
issue may be dealt with most effectively . For example, if a difference arises, where 
in the organizational hierarchy do you take the problem? Do you always start 
at the lowest level, or in some cases do you say, "This is an issue of such a 
nature that we ought to talk about it at an intermediate level and bypass a 
lower level which obviously cannot resolve it"? 

A fourth problem concerns the parties to the grievance and when they 
become parties. When a grievance occurs, should the grieving party whether 
an individual or a group of employees deal with the supervisor or admin- 
istrator directly, or is it appropriate for the organization to which they belong 
to become involved with the grievance immediately? 

Another question is whether the employee organization has independent 
standing to process and pursue a grievance as an organization, or whether it is 
solely representative of employees and can act only as the employee 
authorizes, delegates or designates. This is a critical question, a matter with 
which the U.S. Supreme Court has had to deal. Does the organization have 
independent standing to advance the interest of the organization and its 
members, or does it derive its authority to speak for the employees only as a 
result of a specific delegation of authority by the employees? Both positions 
prevail. 

Another interesting problem arises in the case of reprimand or discipline. 
If an employee is to be reprimanded, suspended or dismissed from the job, 



GRIEVANCES 81 

should the labor organization to which the individual belongs be involved at 
the outset in order to protect the interest of the employee? If an employee is 
to be disciplined, is it to his interest that he at least have the opportunity 
before discipline is imposed to have someone there to serve as his spokesman 
or representative, to look out for his interest and perhaps to protect that 
interest? Many labor organizations have found that in order to get maximum 
protection for an employee when an adverse action is contemplated, it is in the 
interest of that employee to be afforded the right of representation. Although 
arguments can be made for and against it, my bias leans toward representation 
before drastic action is taken to protect the rights and interests of the 
employee and perhaps to cool the situation before a major confrontation 
exists. 

Another interesting problem concerns time limits for processing 
grievances. However we define the grievance, should there be time limits for 
processing it? Should there be some kind of attempt to bring the issue to the 
attention of those whose action is being challenged? If so, what are those time 
limits to be? What is the reason for the time limit? What is the function of 
the time limit? Should matters be allowed to ride for weeks before raising the 
question? That may be terribly unfair, since by the time the issue gets joined 
to the employer, for example, the witnesses may no longer recollect what 
transpired and the data and the evidence may be gone. Should the issue be 
joined early? The time limit may be so short that the interest of the 
individual or group of employees cannot be fully protected because we cannot 
develop data or make the necessary investigation to look out for the interest. 

We now come to what I consider an extremely important part of the 
question of grievances: the grievance procedure itself. Who initiates a 
grievance? There are some cases in which employers do, but in the over- 
whelming majority of situations employees initiate a grievance. They contend 
or argue that the employer has done something improper, that he has failed to 
carry out an agreed-upon practice or to follow one of the established guide- 
lines. The employees seek the redress which they believe the agreement or the 
guidelines provide them. Suppose we then have extended discussion through 
the grievance procedure. We take it through the appellate arrangement and we 
reach the top of the structured appellate arrangement. And the employer says, 
"We have heard all of your arguments and your discussions, and we're not 
persuaded." What do we do now? In the private sector, where the parties 
have the right to resort to self help, in such a situation a labor organization 
might say, "We have carried this through the orderly procedure as far as we 
can. The employer does not agree. We are not prepared to accept the 
employer's final answer as the final disposition, and we reserve the right to 
resort to self help." In the private sector this is permissible and in some cases 
even takes place, but the parties involved have recognized that this procedure 



82 MARTIN WAGNER 

doesn't really make a great deal of sense. Employers do not want stoppages 
over these differences, and unions acting on behalf of employees don't want 
to shut the plant down over every difference that arises. So, in 96 percent of 
the agreements in the private sector, they devise a procedure in which they 
say that, since they are not able to resolve their difference in direct nego- 
tiations and direct consultation, they shall submit that difference to an 
outside party, a tribunal or an arbitrator, and agree that this outside party's 
determination shall be final. Each side then gets a fair shake at the particular 
controversy. In the private sector, employers readily agree to that kind of 
arrangement, provided the union agrees to not resort to a strike. This is what 
the Supreme Court called the quid pro quo. The employer agrees to let this 
kind of problem be resolved by some agreed-upon third party, who is to judge 
the case on its merits as a judge would. The employer agrees to be bound by 
that determination, but in turn asks the union to withhold the right of self 
help. 

When we enter the public sector we encounter some new problems. The 
common condition in most jurisdictions in the public sector is that the 
employees do not have the statutory or judicially recognized right to strike, so 
they cannot give up that which they do not have. In the public sector, 
therefore, there is an even greater reason to consider some judicial procedure 
in which outside parties are in a position to make some determination when a 
party feels that a grievance has not been handled in compliance with the 
agreed-upon guidelines. The procedure whereby this outside tribunal is to be 
brought into play is, of course, negotiable. Parties have both the right and the 
bargaining capacity to negotiate the grievance procedure, and they also have 
the authority, power, and right to negotiate what the nature of this outside 
tribunal will be. What shall the composition of that tribunal be? How is it to 
function? What shall its procedure be? Shall it be highly structured, legal and 
like a court, or shall it be relatively informal? Decisions on all of these 
questions reside with the negotiating parties, and they have the authority to 
shape the arbitration process on the basis of their own experience and situa- 
tion. The kinds of problems which may go to arbitration may be limited, and 
this is an area in which great bargaining debates can take place. The employer 
may say, "We are perfectly willing to talk about any matter up to the point 
of the employer's final determination, but we submit to the arbitrator or to 
the tribunal only those matters that deal with the agreement or the guide- 
lines." The union, on the other hand, may reserve the right to strike over 
certain issues. These practices are negotiable, and the outcome is significant. 

Thus far I have described the elements of the grievance procedure and 
what may or may not be a grievance. I will now make a few observations 
about what occurs when we use and apply the grievance procedure. The 
grievance procedure is the mechanism for obtaining compliance with the 



GRIEVANCES 83 

results of negotiation the dramatic part of the relationsip. It is the instrument 
whereby employees test an employer's action which they feel is not in 
accordance with those guidelines. If the challenge is valid and the employer 
does not agree, an arbitrator may tell him he has not complied. In other 
instances, a charge or contention may be raised and go ultimately to an 
arbitrator who determines that there really is no merit to the claim, and that 
the employer has in fact complied. The grievance procedure is therefore an 
instrument whereby an employer's actions and conduct are tested against that 
which the employer agreed upon in the negotiation. It is in that sense a 
compliance instrument, a most important part of the collective bargaining 
relationship. 

The grievance procedure is also an extremely important communications 
mechanism. It is the instrument whereby parties are constantly exchanging 
ideas and issues as they arise and are testing them and talking about them. It 
is the day-to-day instrument used to deal with the nuts and bolts problems on 
a continuing basis. Employers and employees are engaged in a constant 
interchange of ideas, points of view and positions, in some cases not even 
dealing with grievances, for in the course of dealing with a grievance other 
issues may arise. It is that kind of exchange of ideas and sampling of views 
and opinions that gives continuity and flavor to the continuing relationship 
between employers and employees. My own predilections are in the direction 
of using the grievance procedure to the maximum, at least in the early stages, 
to share ideas, to hear what employees have on their minds, what concerns 
they have, and to try to explore ways and means of dealing with them. The 
grievance procedure can be looked upon as a legalistic device, a kind of court 
procedure in which somebody sits back with detachment and says "you were 
right" or "you were wrong." But it can also be used as a clinical device to 
sound out the sentiments, ideas and attitudes that exist. It can be used not 
only to settle grievances in a legal way, but also to keep aware of the state of 
things in the organization. 

This rather mundane, not very attractive, not particularly dramatic 
process of dealing with grievances is an extremely important matter, an 
extremely important element that adds character and quality to the relation- 
ship. I hope I have challenged you not to become so preoccupied with the 
niceties of the sub-part that you fail to recognize how important each of these 
sub-parts is in relation to the others, and how the integral parts of the whole 
which finally combine give character and quality to this kind of governmental 
relationship. 



JAMES L. STERN 

Professor of Economics 

University of Wisconsin 

Madison, Wisconsin 



Impasse Resolution 
in the Public Sector 



Before examining the various alternatives used to resolve public sector 
labor disputes, it seems sensible to set forth explicitly some of the underlying 
value judgments that, in effect, provide the framework within which we 
choose among these alternatives. Then, subsequent sections of this paper will 
briefly summarize bargaining systems, describe the tools for dispute resolution, 
examine the evolution of dispute settlement techniques in various segments of 
the public sector, and evaluate how these tools are working. 

In a political democracy there will be continuing pressure to extend this 
concept to the workplace and to introduce "industrial democracy." This was 
nicely put by an English critic of collective bargaining who wrote in 1869: 
"One thing is clear . . . the relation between workmen and their employers has 
permanently changed in its character. The democratic idea which rules in 
politics has no less penetrated into industry. The notion of a governing class, 
exacting implicit obedience from inferiors, and imposing upon them their own 
terms of service, is gone, never to return. Henceforward, employers and their 
workmen must meet as equals." 1 

In the 100 years that have elapsed since that statement was written we 
have in effect adopted a standard of values which says that, other things being 
equal, bilateral decision-making between those who direct work and those who 
perform it is preferable to unilateral action. Phrased another way, we can say 
that we have enacted legislation to promote collective bargaining over indi- 
vidual bargaining and in the process have created a value judgment on the part 
of most citizens of western democracies that collective bargaining is good. 

At first, however, the public sector was exempt from the direct appli- 
cation of this doctrine. Instead, substitutes were found. Essentially, these were 
civil service type systems in which standards for judging merit were established 
and procedures were followed in order to eliminate favoritism. It was 
assumed that those who directed activities in the public sector, free from the 

84 



IMPASSE RESOL UTION 85 

insidious pressures of the profit motive of the private sector, would act in a 
fashion that would eliminate the need for collective bargaining by public 
employees. But this need has not been eliminated. Public sector employees 
have said that they want the right to be consulted, and, in many instances, 
the further right to bargain about the work they perform. The transfer of 
values from the private to the public sector is not a surprising phenomenon. 
Its significance tends to be overlooked, however, because it is occurring 
gradually, and as yet, the changes that are implied have not been fully 
comprehended. 

Twenty-five years ago, conventional wisdom suggested that it was not 
appropriate for public employees at the federal, state and local levels to 
engage in collective bargaining. Today, conventional wisdom suggests the 
contrary and calls attention to the inevitability of this development. Although 
it may seem trite to call attention to this change in values, it should be noted 
that many problem areas are regarded as problem areas primarily because the 
methods traditionally used to resolve them are consonant with the value 
system of the past rather than that currently being formed. 

Despite the risk of grossly oversimplifying the problem, one can char- 
acterize it as the replacement of the principle of "sovereignty" by that of 
"essentiality." No longer is there reliance on the idea that actions cannot be 
permitted because they threaten the sovereignty of the public employer. 
Instead, this has been superseded by dependence on the idea that actions can 
be prohibited in the public interest if they threaten the health and safety of 
the community. This new value judgment is not yet well identified and is still 
in the process of change. 

Most threats to health and safety are being defined broadly today by 
judges and government officials to include any stoppage of services which 
inconveniences and irritates important voting blocs sufficiently to have adverse 
political consequences. Actions which do not endanger health or safety, but 
which are legally classified in that category in order to minimize irritation, 
may have to be endured if, in the future, the community is to be protected 
from stoppages that actually threaten its health or safety. A few court 
decisions in the past few years have reflected a less sweeping and more 
accurate definition of threats to health and safety, and may exemplify the 
position that will prevail in the future. For example, the Michigan Supreme 
Court denied injunctive relief in a situation in which the employer had not 
demonstrated that irreparable damage to the public health and safety would 
be caused by a teacher strike. 2 

In addition to this problem of changing values, however, there is 
another, distinctly different, set of problems which are relevant whether we 
are discussing the United States, a socialist or communist industrialized nation, 
or even one of the newly developing countries. These are the problems which 



86 JAMES L. STERN 

arise out of the relationship between the individuals who perform the work 
and the individuals who supervise them. In all societies, decisions must be 
made about what work is to be done, how it is to be carried out, how hard 
individuals will be required to work and how much they will be paid for their 
efforts. Regardless of the way in which the enterprise is organized, individuals 
doing the work develop their own norms and, by a variety of tactics, attempt 
to introduce those norms into systems designed by the managers. 

Essentially, the second underlying point being raised here is that, even in 
the absence of collective bargaining, workers have historically formulated 
norms of output and patterns of performance which in turn have influenced 
the ways in which the directors of enterprises have been able to carry out 
their tasks. The extension of collective bargaining to the public sector means 
that the framework for making such decisions has been changed and that 
there has been an explicit recognition that such decisions are bilateral in 
nature. 



SUMMARY OF COLLECTIVE BARGAINING SYSTEMS 

The various public sector bargaining systems for federal, state and 
municipal employees of different types are modeled after the private sector 
system, although there are significant differences. In both the private and 
public sectors, the ground rules for bargaining are outlined in a statute or 
executive order and one or more administrative agencies are created to 
interpret the legislation and administer its operation. 

These statutes and agencies must define the classes of employers and 
employees to be covered and determine the appropriate bargaining units for 
such covered employees. Once units are determined, the agency then must 
interpret the provisions of the statute in regard to such problems as the scope 
of bargaining. For example, is bargaining to be confined to working condi- 
tions, or to wages and working conditions, but not fringes such as pensions? 
There are also procedural problems to be faced, e.g., whether the parties are 
obligated to bargain in good faith and what penalties may be imposed if it is 
found that one side or the other has committed an unfair labor practice. 

If the parties are able to reach agreement and have negotiated a labor 
contract, the contract usually contains a provision for airing and resolving 
problems of contract interpretation. This mechanism, typically identified as a 
girevance and arbitration procedure, requires the use of a neutral third party if 
the parties are not able to reach agreement. An administrative agency 
generally plays a role in establishing rosters of neutrals and procedures by 
which the parties can select a neutral when needed. 



IMPASSE RESOLUTION 87 

In addition, in both the private and public sectors, there is a statutory 
framework and set of administrative rules for the resolution of disputes arising 
over the terms of a new agreement. The problems of which set of rules and 
what framework is appropriate for use in various portions of the public sector 
are the ones on which this paper is focussed and to which attention is 
directed in subsequent sections. 

TOOLS FOR USE IN DISPUTE RESOLUTION 

Before examining the present state of public sector dispute resolution, 
the various tools are listed and briefly explained and the situation in the 
private sector is summarized. Some of these tools are well known and need 
little explanation; others are mentioned in the literature but have not been 
applied in practice or, possibly, have had only limited use. 

Mediation 

The most uncon trover sial tool is mediation. 3 To some degree its un- 
critical acceptance stems from the fact that it is private and noncoercive, and 
therefore can be safely ignored if so desired. Mediation is usually undertaken 
by full-time government staff who specialize in this activity. Mediation itself 
consists of attempting to prevent one of the parties from breaking off 
negotiations, persuading the parties to make or to listen to new proposals, and 
suggesting compromises and alternative solutions to the problems which have 
caused the parties to reach an impasse. 

Traditionally, mediation proceedings are confidential. Each side is 
encouraged to give the mediator the full explanation of its position with the 
understanding that he will not relay to the other side any information other 
than that which the party wants relayed. It is also assumed that the mediator 
will face the general public and assuage it with statements such as: "The 
parties have engaged in a lengthy and profitable session but as yet have not 
reached agreement," but will not disclose the exact nature of the dispute. It 
would be considered a faux pas in most situations if the mediator were in any 
way to suggest that one side was being unreasonable. Like all generalizations, 
however, this one has exceptions, e.g., when a mediator sees no alternative 
and may endanger his long-run relationship with one party in order to bring 
pressure on it to change its position. 

It should be noted that mediation is regarded as a minimal form of 
outside interference and is usually tried first or in combination with other 
more coercive tools. Mediation is used in the private sector as well as in 
federal, state and local government labor negotiations. It is also used in 
disputes outside of the labor field, such as in race relations, and in some 



88 JAMES L. STERN 

instances involves ad hoc mediators or staff members of nonprofit, non- 
governmental agencies. 

Factfinding 

Another widely used tool is called factfinding, although the term itself is 
regarded by many people as a misnomer for the actual process involved. 
Factfinding is usually carried out by an eminent neutral who has been 
appointed by a government agency on an ad hoc basis to help resolve a 
particular dispute. The factfinder has some other regular occupation such as 
lawyer, university professor or grievance arbitrator. In contrast to mediation, 
it is supposedly a public process designed to bring pressure to bear on the 
parties. 

The usual procedure followed after the factfinder is appointed is for him 
to hold a public hearing at which the parties enumerate the items on which 
they cannot agree and present evidence in support of their positions. After the 
presentation of evidence, they make oral arguments or, in some instances, 
forego the oral argument and submit written post -hearing briefs. The fact- 
finder studies the evidence, considers the arguments, and then issues a report 
discussing the issues and recommending solutions to each one. Usually, these 
are advisory recommendations unless the parties have agreed to be bound by 
them. 

In many situations, factfinders engage in mediation, particularly when 
there are many items in dispute and it appears impractical to make recom- 
mendations to resolve all of them. The actual factfinding hearing may be 
formal and resemble a courtroom procedure or may be informal, depending 
on the wishes of the parties, the particular statute authorizing the use of 
factfinding, and the style that each individual factfinder prefers. The fact- 
finding recommendations are a blend of the judicial and the practical. The 
factfinder is influenced by considerations of equity and criteria in the statute 
(if any are specified) but, since his recommendations are advisory rather than 
mandatory, must also take into account the acceptability of his recommen- 
dations by the stronger party. Theoretically, the issuance of the factfinding 
recommendations furnishes the parties and the public at large with a standard 
by which to judge the dispute and to bring pressure to bear to resolve it on 
that basis. 4 

Factfinding is used primarily in the public sector for the resolution of 
disputes involving municipal employees. Normally, it is not used in the private 
sector where the parties are free to strike. The right to strike is protected in 
the private sector and is the method relied upon for resolving private sector 
disputes about the terms of a new agreement. In the public sector, however, 
where for the most part strikes are outlawed, access to factfinding has been 
introduced as a substitute mechanism for dispute resolution. 



IMP A SSE RESOL UTION 89 

One variant of factfinding that should be noted in passing is the use of 
factfinding without recommendations in the resolution of national emergency 
disputes. In those situations a board of inquiry ascertains the facts relevant to 
the dispute and submits these to the President of the United States, who in 
turn submits them to Congress with recommendations of his own for reso- 
lution of the dispute. In actual practice, boards tend to make recom- 
mendations and engage in mediation but, technically, the law limits the 
authority of the board to finding facts. 5 

Arbitration 

A third tool for resolving disputes is arbitration. In a procedural sense, 
arbitration resembles factfinding. The arbitrator is usually hired on an ad hoc 
basis, has some other primary occupation, and is selected by the parties from 
candidates submitted by some government or nonprofit agency. As in fact- 
finding, the parties attend a hearing, present evidence and arguments or 
written post-hearing briefs. One significant difference between the procedures 
arises from the fact that an arbitration award is binding whereas a factfinding 
recommendation is advisory. Therefore the arbitrator need not give the same 
degree of attention to acceptability as he might be inclined to do if his 
decision were only advisory. 

Arbitration, like factfinding, is considered an alternative to the strike. 
Although it is not common for statutes to provide for the use of arbitration 
upon petition of either party after an impasse has been reached, arbitration is 
provided for in the federal statute covering postal employees and in approxi- 
mately a dozen states, usually for disputes involving firefighters and police- 
men. The private sector statute does not provide for arbitration although the 
parties may voluntarily renounce their right to strike and resort instead to 
arbitration if they so desire. For example, the United Steel Workers Union 
and ten major steel companies recently adopted an experimental negotiating 
agreement which provided for the arbitration of certain unresolved items if it 
became necessary. 6 

Arbitration is usually invoked as a last resort following mediation and 
possibly also factfinding. For example, Congress has authorized arbitration of 
disputes on the railroads when all other prior attempts to resolve the dispute 
have failed. There are various forms of arbitration, some of which are attracting 
considerable attention at present. One of these is called med-arb, which is a 
contraction of the words mediation and arbitration. This is a process in which 
the parties: "agree in advance that all decisions, whether reached by media- 
tion or arbitration become part of the mediator-arbitrator's award and are 
final and binding. None of the decisions go back to the parties for acceptance 
or rejection." 7 



90 JAMES L. STERN 

Another form of arbitration hs been identified as final -offer arbitration. 
Under this arrangement the arbitrator is limited to choosing the offer of either 
management or labor as a whole without modification. 8 He may not select a 
compromise position as would be possible under conventional arbitration. A 
variation of final-offer arbitration was adopted by the Michigan legislature in 
dealing with disputes of firefighters and policemen. Under that statute, the 
arbitrator must choose the position of either party on each economic issue, 9 
in contrast to the all-or-nothing situation in Wisconsin. 

Other Dispute Settlement Tools 

In addition to mediation, factfinding, and various forms of arbitra- 
tion used alone or in combination with other techniques, several other 
procedures have been suggested in the literature about dispute resolution 
and some have been tried in the private or public sector. These include 
the nonstoppage strike, continuous bargaining, and the use of the referen- 
dum. A nonstoppage strike is one in which the workers continue to work 
but receive progressively less pay as the strike continues. In turn the 
employer is also penalized comparable amounts in order to increase his 
incentive to reach a settlement. 10 

Continuous bargaining, as the name implies, consists of bargaining during 
the life of the agreement and voluntarily amending the terms of the agreement 
prior to its expiration date. It differs from conventional crisis bargaining in 
which settlements are reached only after threat of a strike and at the last 
possible moment. This form of bargaining was attempted in the steel industry 
in the early part of the last decade. 1 1 The referendum is discussed by 
Wellington and Winter as a possible tool for use in resolving municipal labor 
disputes. They note that a group such as the San Francisco Chamber of 
Commerce can threaten to circulate petitions for such a referendum as a 
means of persuading public employees to moderate their demands. 1 2 

Strikes 

To complete the litany of dispute resolution procedures, mention should 
be made of the strike. In the private sector this is the usual way in which 
disagreements are resolved. Except when the national emergency dispute 
procedure is invoked, the strike is protected in the private sector as the 
legitimate means to be used by workers in pursuing better contract terms. In 
the public sector, however, the strike is banned in most jurisdictions and other 
procedures have been introduced as substitutes. Even so, in a few states 
(Hawaii, Pennsylvania and Alaska) some categories of public employees have 
been given the right to strike, subject to certain constraints. 



IMPASSE RESOL UTION 91 

PRESENT STATE OF PUBLIC SECTOR DISPUTE RESOLUTION 

At present, public sector dispute resolution is in flux. Descriptions 
which are accurate today soon become obsolete. Furthermore, the changes 
being introduced are not uniformly applied. Different paths are being followed 
by different government bodies, and different procedures are being devised for 
application to different occupations. 

Police and Firefighters 

Municipal law enforcement and fire protection services have their own 
pattern. Originally, police unionism was actively discouraged by municipal 
management. When this tactic did not succeed, policemen learned that, 
although they had the constitutional right to form unions, they did not have 
the right to force recalcitrant employers to bargain with them in the absence 
of legislation requiring the employer to do so. Firefighter unionism did not 
encounter the same degree of resistance and has progressed further than police 
unionism. But, because both groups are considered to be essential, military- 
type discipline organizations, regulated by the same commission, they tend to 
be treated alike when labor relations legislation is being formulated. 

When legislation was first passed in some states it provided policemen 
and firefighters with the right to petition neutral third parties for advisory 
opinions. After a few years' experience with this procedure, protective service 
employee organizations became dissatisfied, and then, contrary to other 
groups such as teachers, rejected the use of the strike and turned instead to 
arbitration. Some strong firefighter or police unions have secured this right to 
refer disputes to arbitration. 

In localities where police and firefighter unionism is weak, there is either 
no legislation, or legislation that culminates in factfinding. In other localities, 
such as Illinois, firefighter and police unions in the larger cities engage in 
collective bargaining without the benefit of statutory protection. A survey of 
the country would find thousands of police and firefighters in each of these 
situations. Even so, the trend in recent years seems to be toward reliance on 
arbitration, although only about twelve states have reached that point. 

Teachers 

In the last fifteen years, the legal framework for resolving disputes 
involving teachers has changed substantially, but teacher union attitudes have 
changed to an even greater degree. Only a minority of the fifty states have 
passed statutes giving teachers the right to form unions, request certification 
elections, file unfair labor practice charges, and use third-party help in the 
resolution of disputes about the terms of new agreements. Despite this, 
however, bargaining has spread rapidly. 



92 JAMES L. STERN 

The third-party procedure included in most statutes enacted in the 
1960s included mediation and factfinding, procedures which were endorsed by 
the teacher organizations at that time. More recently, teachers have tended to 
ignore factfinding in some situations and instead have struck or threatened to 
strike. 13 In states in which there are no bargaining statutes covering teachers 
but where the teachers' union is strong, teachers have undertaken to strike in 
order to gain higher wages and other improvements in their contracts. 

For these reasons it is difficult to characterize the present stage of 
teacher bargaining. In some states without legislation, strong teacher unions 
are solving impasses by means of strikes. In other states without legislation 
where teacher unions are weak, very little bargaining may take place. In still 
other states which have passed legislation including the use of factfinding to 
resolve disputes, the procedure is being ignored by strong unions and is being 
relied upon by weak ones. This varied situation may lead teachers to turn to 
the system used in the Canadian Federal Service under which employees may 
choose between arbitration and the right to strike, options which are con- 
sidered at some length later in this paper. 

Other Municipal Employees 

The bargaining framework for other municipal employees is similar to 
the situation covering teachers, described above. Typically, there is either no 
legislation or legislation that provides for factfinding as the terminal step for 
the resolution of disputes about the terms of a new agreement. And, like 
teachers, strong unions of municipal employees in park, street, and sanitation 
departments have turned to the strike regardless of whether it is illegal or 
whether they are entitled instead to initiate factfinding. Weaker unions may 
rely upon factfinding where it exists, while weak unions in jurisdictions where 
there is no legislative protection may not engage in bargaining or may do so in 
a somewhat restrained fashion and must be prepared after relatively brief 
discussion to accept the management offer. 

In general it can be said that municipal management has not regarded 
municipal employment, except in the case of police and firefighters, as suf- 
ficiently essential to warrant consideration of arbitration. Nor have the unions 
pressed for arbitration because they believe that they should have the right to 
strike instead. In those states where legislation exists, it provides for fact- 
finding but in recent years has gone unused, for the same reasons that the 
teachers have abandoned it. 

Federal and Postal Employees 

Civil service federal employees are covered by executive orders which, 
since 1962, have provided them with the right to engage in collective bar- 
gaining in a somewhat limited fashion. Bargaining was first introduced as a 



IMPASSE RESOLUTION 93 

form of nonadversary employee participation. Subsequently this approach was 
amended to conform more closely to the patterns followed in other juris- 
dictions. It is important to note that the scope of bargaining in this sector is 
limited and that wages, pensions and items covered by civil service are 
excluded from bargaining. 

Insofar as impasse resolution is concerned, the initial procedure ter- 
minated with a review of a factfinding decision by the cabinet officer in 
charge of the department. Subsequently this system of bargaining within a 
department without central controls was abandoned. Impasses in negotiating 
new agreements could be referred to a neutral impasse panel which could 
make binding awards subject to appeal to a top government management body 
composed of the Secretary of Labor, the Chairman of the Civil Service 
Commission, and a representative of the President. The terminal step under 
this procedure is more management-oriented than some of the other pro- 
cedures previously discussed and may represent a transitory arrangement 
which will be abandoned in favor of one patterned after the one adopted for 
use in the postal service. 

Postal employees were originally covered by the same system as civil 
service employees but were given separate and more favorable treatment by 
Congress after they engaged in a wildcat strike that spread across the nation. 
These employees have been covered by the private sector legislation for most 
purposes but have been given binding arbitration as the terminal step in the 
dispute resolution procedure. As yet it has not been invoked, but it is 
significant to note that the largest employer in the United States is subject to 
arbitration in the establishment of wages if the employer and the union 
cannot reach agreement. 

The foregoing review of the type of dispute resolution procedure that 
exists for different occupational groups employed by different public sector 
bodies illustrates the diversity of procedures that have been adopted. It 
further shows that the actual practices may differ from those called for in the 
legislation. In general, a review of existing patterns shows that, despite the 
present preeminence of mediation and factfinding, there seems to be a trend 
toward arbitration or the right to strike or both. Before examining these two 
more extreme alternatives, the possible explanations for the declining use of 
mediation and factfinding are explored. 

EVALUATION OF DISPUTE RESOLUTION TECHNIQUES 

Mediation 

For mediation to succeed, a corps of knowledgeable mediators is 
needed. They must be individuals with the personality and skill to persuade 



94 JAMES L. STERN 

the parties to settle. One theory of mediation is based on the idea that the 
parties want to settle but that there is faulty communication between them 
and they are therefore unable to reach a mutually satisfactory point. Under 
these circumstances, the mediator is able to help by making the proposal as if 
it were his own suggestion; both parties can then agree to it without feeling 
that they had given into the other side. This fortuitous outcome does not 
happen too often except in new, small negotiations in which the bargainers 
are relatively unsophisticated. 

More frequently, the mediator has the task of persuading one or both of 
the parties to reduce their actual goals and to come up with a new solution. 
He knows that the position of each side represents an amalgam of differing 
views and that in effect he has some support from some members of each 
team who are not enthusiastic supporters of the majority view. For example, 
some members of management who are concerned with hiring in a tight labor 
market may be pleased to make a further concession in the hiring rate raising 
it may increase costs, but at least it makes hiring easier. The same spectrum of 
views exists on the union side older workers may have different preferences 
than younger workers. 

Also, the mediator must have a pocketful of new solutions that will 
permit the parties to gracefully slide from their present positions to ones that 
lead to settlements. For example, mediators can suggest that past service 
pension credits be funded over thirty years instead of twenty and that the 
money saved be used to provide extra vacation and holidays. 

Over the years the task of the mediator becomes more difficult for 
several reasons: (1) the parties learn more about the process and eventually 
there are very few new solutions that a mediator can offer; (2) the parties 
may be communicating perfectly and do not need the mediator as a go- 
between; (3) for their own internal political reasons they may not want to 
reach a solution voluntarily; (4) most mediators have extensive private sector 
experience but limited public sector experience and are handicapped by lack 
of knowledge about the industry. Probably the most important reason, however, 
that mediation will not be accepted as the terminal step of a procedure is 
that the mediator lacks power and the procedure itself lacks finality. 

There appears to be a continuing role for mediation in the public sector 
similar to the one that it fills in the private sector. It is a way of assisting 
smaller, less knowledgeable managements and unions. Also, mediators are able 
to serve as face-savers in situations where neither management nor union 
negotiators can afford to initiate compromises. But mediation, standing alone, 
is insufficient. In the private sector, it is followed by strikes when agreement 
is not reached. In the public sector there must also be some additional tool 
which follows mediation and can be used to resolve disputes which could not 
be mediated. 



IMPASSE RESOLUTION 95 

Factfinding 

Factfinding is the dispute resolution tool that usually is invoked in the 
public sector after mediation fails. Unfortunately, factfinding also suffers from 
the same lack of finality as does mediation. Typically, it has been found that 
unions and managements in the public sector accept most recommendations of 
the factfinder. Initially, partial acceptance of the recommendations was not of 
great concern to unions or managements who attempted in turn to bargain up 
or down from the recommendations but found them useful as a basis for 
settlement. Over the years, however, some unions have claimed that manage- 
ment acceptance of factfinding recommendations was diminishing and that it 
was pointless to use the procedure if management would not abide by the 
results. 

Management, in turn, would point to strong unions that struck instead 
of initiating factfinding procedures as provided for in the statute. In any 
event, without assessing where the blame lies, it is fair to conclude that 
factfinding is a tool with limited life and that its lack of finality will lead to 
its abandonment. The fault may not lie in the technique, per se, but may flow 
from the fact that it only fits in an environment in which unions are not 
militant and public employers regard factfinding recommendations in the 
same light as judicial findings. 

It also should be pointed out that unions have found that the cost of 
going to factfinding is about the same as that of going to arbitration. 
Therefore, if they pay the same amount for each type of third party judg- 
ment, they might as well seek a judgment that is binding on management. If 
they win, management must comply instead of bargaining down. Management, 
in turn, would prefer a less restrictive advisory decision to a binding one. 

It should be noted that, despite its lack of finality, factfinding may play 
a significant role when it is coupled with either the right to strike as in the 
recently enacted health care industry legislation, or where it is followed by 
arbitration, as is the case in the amended New York City procedure. This 
suggests that the importance of an advisory tool such as factfinding is 
increased by being put into the next-to-last position in contrast to being the 
terminal step. 

Traditionally, however, it has been thought that the addition of an extra 
step tends to diminish the importance of what was formerly the last step. It 
appears, however, that this generalization is one that should be reconsidered. 
For example, if a school board in a rural area in which the union is weak 
decides to reject most of the factfinder's recommendations, and this is the last 
step in the procedure, there is little that the union can do about this board 
action. If, instead, the union had the right to petition an agency to appoint an 
arbitrator to decide whether the previously issued factfinder's recommenda- 
tions should be made binding on the parties or amended in some fashion, the 



96 JAMES L. STERN 

board might have been willing initially to accept the factfmder's 
recommendations more fully. 

Critics of such a multi-stage hearing procedure might suggest that the 
parties would agree to omit the factfinding step and proceed directly to 
arbitration. It is doubtful that public managements would find such a step 
desirable and probably would resist it. Also, by statute or administrative 
rulings, the procedure can be arranged so that access to arbitration requires 
that the parties first try to resolve the dispute through factfinding. Finally, it 
should be noted that, to the degree the arbitrator takes cognizance of the 
factfinding recommendations issued in the case before him, he can be 
expected to follow along the same path rather than to carve new ground. This 
tendency would further increase the significance of factfinding. (The recently 
enacted Massachusetts statute covering police and firefighters provides a multi- 
step hearing procedure of this nature in which binding arbitration follows 
factfinding if a dispute is not resolved.) 

Arbitration 

The usual charge against the use of arbitration to resolve disputes about 
the terms of new agreements is that it causes collective bargaining to atrophy. 
In effect, it is seen as a substitute for bargaining one to which the weaker 
party will turn quickly and repeatedly in preference to bargaining. Many years 
ago Secretary of Labor Willard Wirtz said, in support of this line of reasoning: 
"experience particularly the War Labor Board experience during the '40s 
shows that a statutory requirement that labor disputes be submitted to 
arbitration has a narcotic effect on private bargaining, that they turn to it as an 
easy and habit forming release from the obligation of hard, responsible 
bargaining." 14 

More recent experience, however, challenges this conclusion. Although it 
may be premature to call any of the arbitration experiments successful, the 
so-called "narcotic" effect has not emerged as a significant problem in such 
states as Pennsylvania, Michigan and Wisconsin in the three or more years that 
each of these states has permitted arbitration as a means of resolving fire- 
fighter and police disputes. Furthermore, it should be noted that for some 
time several scholars have questioned on theoretical grounds the ready accept- 
ance of the idea that arbitration spells the end of bargaining. 1 5 

Even though there is not current evidence to support the charge that the 
advent of arbitration spells the end of bargaining, there is the question of 
what mixture of bargaining and arbitration is best. Is it better if only 1 
percent of the disputes are resolved by arbitration, rather than 10 percent, or 
20 percent, or is the 1 percent figure too low? For example, it could be 
argued that the process is too costly and that a record of 1 percent suggests 
that small unions do not use arbitration because of cost considerations. To the 



IMPASSE RESOL UTION 97 

degree that a high value is placed on self-settlement, it can be argued that a 
low percentage is superior to a higher one. But, such arguments probably 
apply to comparisons on the order of 10 percent usage in contrast to 30 
percent usage. 

One possible standard against which to measure the use of arbitration is 
the use of the strikes in the private sector. There, it is believed that a few 
strikes are needed to make the threat of a strike credible enough to force the 
parties to agree. In the private sector, there are about 3,000 such strikes in 
the negotiation of about 50,000 agreements annually the strike occurs in 
approximately 6 percent of the situations. This is a rough estimate and it is 
preferable to suggest that in the private sector, strikes occur in about 5 to 10 
percent of the annual contract negotiations. 

In a forthcoming study of the impact of arbitration on the bargaining 
process and outcome, based on a sample of police and firefighters in Penn- 
sylvania, Michigan and Wisconsin, it was found that arbitration was used to 
resolve disputes in 10 to 30 percent of the negotiations, depending on the 
year, the state, the type of arbitration involved, and the nature of the 
processes that preceded it. 1 6 This utilization rate exceeds the strike rate 
and quite possibly means that the effect of arbitration on the process and 
outcome of bargaining differs from that of the strike. However, research 
efforts have not yet enabled us to make a definitive statement about such 
differences. Remarks about this point are therefore limited to speculative 
generalizations which may not hold up when further information is obtained. 
With that caveat in mind, attention is directed to further criticisms of 
arbitration. 

Another alleged defect in arbitration is that it takes authority away 
from appointed or elected managers and as such is inefficient. This criticism 
differs from the old saw of improper delegation. Presumably, that question is 
settled governments can legally delegate wage setting authority to arbitrators 
and give them statutory standards for guidance. The question posed here is 
whether or not this delegation to an arbitrator so weakens the management 
authority structure that it causes inefficiency. 

Despite claims of management that it may do this, there is little 
evidence offered in support of the claim. It should be kept in mind that once 
the concept of collective bargaining has been adopted, the authority pattern is 
modified and arbitration only involves a further minor shift. The authority of 
management is subject to challenge by the union under a system of collective 
bargaining and the granting of the final word to an arbitrator may not 
represent a further erosion. It may even strengthen management in situations 
where it faces a very strong union. 

One question frequently raised about arbitration is whether unions will 
comply with awards. On the whole, the answer seems to be that they will. 



98 JAMES L. STERN 

Noncompliance is rare and where it has occured it has taken the form of 
avoiding the arbitration procedure, rather than striking in defiance of an 
award. Possibly this excellent record is attributable to the fact that unions 
usually have been the driving force in securing the adoption of the arbitration 
system by state legislatures and therefore have felt morally bound to go along 
with the results of the system. If arbitration were imposed over the objections 
of the union covered by the procedure, they well might not go along with it 
and noncompliance would then be a serious problem. 

Another criticism of arbitration is that it might change the wage patterns 
and possibly raise wages more than would otherwise be the case. One 
possible effect is that arbitration will not affect wages on the average very 
much, but it will reduce the dispersion. The existence of arbitration may 
make it more difficult for pattern setters to establish new patterns and to 
innovate because of the weight given to comparisons of wages and fringes 
paid elsewhere but it also will help unions in situations where they have 
lagged behind the pack. It should be noted at this point that there are a 
variety of arbitration arrangements and they may have different consequences. 

Final-offer arbitration on individual economic issues which is carried 
out on an issue-by-issue basis should deter usage of arbitration to a greater 
degree than conventional arbitration. The all-or-nothing effect associated with 
unmodified final-offer arbitration should, at least theoretically, pose the 
greatest deterrent to the use of arbitration. Initial applications of the three 
systems in Wisconsin, Michigan and Pennsylvania lends some support to this 
theory. It should be noted, however, that other differences in the procedure 
make it impossible to determine how much of the greater deterrent effect is 
associated with the form of arbitration and how much is associated with other 
differences in the procedures. 

A further question about final-offer arbitration is whether it brings the 
parties closer together than conventional arbitration. A charge leveled against 
conventional arbitration is that it encourages the parties to hold firm, make 
no compromises and maintain a large gap between their positions with the 
hope that the arbitrator will favor a position in the middle and the more 
extreme your position, the closer the arbitrator's position will be to your 
actual goal. 

When the parties are faced with an arbitration in which the arbitrator 
must select that final offer which he believes to be the more reasonable, the 
pressure is on each party to come a little closer than his opponent to the 
solution which he thinks the arbitrator will regard as the more equitable. If 
the management thinks that the arbitrator would find a 6 percent wage 
increase to be proper, and the union is asking for 10 percent, it might decide 
to defend 4^ percent, calculating that it could safely win at that level. 

If the union, however, were asking 8 percent, the city might decide to 



IMPASSE RESOL UTION 99 

argue for 5 percent, and if the union were asking for 7 percent, the city might 
well want to offer 5Vi percent. Theoretically, this pressure to converge will 
lead the parties to settle without arbitration. But even if they do not settle, 
the nature of the process should make the gap smaller than in conventional 
arbitration where just the opposite pressure prevails. 

Under some circumstances, final-offer arbitration by each issue may not 
differ appreciably from conventional arbitration, while in others it may not 
differ from final-offer package arbitration. Where it stands depends on the 
number of issues and the degree to which tradeoffs are possible between 
issues. For example, if the union is asking for more holidays and more 
vacation time, the arbitrator in a final-offer-by-issue case could grant one of 
the two demands and thereby make an award that had identical financial 
consequences as a conventional arbitration award in which the arbitrator 
reached a compromise position on each issue. On the other hand, if there 
were only one issue at stake, there would be no difference between a 
final-offer package and final-offer by each issue, but both would differ 
substantially from conventional arbitration. 

One criticism voiced about final-offer arbitration is that it may force the 
arbitrator to choose between two unreasonable positions or at least between 
two offers which each contain undesirable items. 1 7 There does not seem to 
be a ready answer to this defect except to note that it is the price the parties 
pay for failure to resolve the dispute themselves and thereby avoid the use of 
arbitration. And, the higher the price of failing, the more likely the parties are 
to avoid the use of arbitration and the situation in which this problem can 
arise. In Wisconsin, for example, this problem has arisen in fewer than six 
cases in a three-year period, during which about 400 police and firefighter 
contracts were renegotiated under a final-offer arbitration system. This 
suggests that the problem, although perplexing when it appears, is not likely 
to appear very often. 

Another form of arbitration which has occasioned comment in recent 
years is "med-arb." As explained previously, when med-arb is used in the 
private sector, it means that at the outset of negotiations the parties have 
voluntarily agreed to forego the strike or lockout and instead to be bound by 
the terms of an award made by a neutral person whom they have selected. 
This format excludes the rank and file from participation through the ratifi- 
cation procedure because the award is binding upon the parties and does not 
require membership approval to become effective. 

Med-arb is a powerful tool and is rarely used in the private sector for 
several reasons. The parties are reluctant to give up their right to use eco- 
nomic pressure and to reduce membership participation in negotiations. Also, 
few neutrals have sufficient experience and acceptability to be granted this 
power by the parties. It was used successfully in the 1970 San Francisco Bay 



100 JAMES L. STERN 

area nurses negotiations and perhaps will turn out to be particularly suited for 
use in essential industries in which there have been strikes in the past and in 
which the parties wish to avoid another round of strife. 1 8 

Med-arb differs from voluntary arbitration in that the parties expect the 
arbitrator to mediate most issues and to issue an award which reflects, for the 
most part or entirely, agreements reached by the parties themselves. The 
mediator is able by judicious hints and prompting to persuade one or both of 
the parties that a particular position should be abandoned and that the 
arbitrator would be more inclined to support one of the parties if it took a 
more moderate position. Sam Kagel, the neutral most closely associated with 
the development of this procedure, stresses that it is primarily mediation and 
works because the mediator has clout that is, the ability to make a binding 
award gives the mediator sufficient authority to be persuasive on most issues. 

Med-arb in the public sector could be carried ou in the same fashion as 
it is in the private sector if the parties agreed to try the procedure. It is more 
likely to occur, however, in jurisdictions in which the statute calls for binding 
arbitration. Under that situation, med-arb only means that the arbitrator 
spend some time attempting to persuade the parties that they should work 
out some or all of the issues themselves rather than force him to issue an 
award. Theoretically, agreed-upon awards are superior to imposed awards 
because the parties are more likely to agree upon solutions which cause no 
subsequent administrative problems and because the parties are thought to be 
more willing to abide by solutions which they helped to devise, rather than 
solutions designed by a third party. 

The success of med-arb when tried in the public sector in a situation in 
which the statute calls for arbitration and makes no mention of med-arb will 
depend on the degree to which one values agreed-upon settlements relative to 
imposed settlements. By mediating, the arbitrator may be weakening the 
bargaining process that preceded the ad hoc med-arb effort. The parties may 
not try as hard as they otherwise might if they know that the arbitrator 
subsequently will be conducting confidential mediation sessions at which they 
make concessions in order to gain their objectives on other items. 

An interesting variant of med-arb has been tried in a few instances in 
Michigan where the statute covering police and firefighters provides for final- 
offer arbitration by economic issue and also for a tripartite panel. In that 
situation the panel members representing each side have the opportunity to 
sound out the neutral arbitrator in an executive session and then amend their 
final offers to conform more closely to a position favored by the neutral. 19 
Although this same format could be followed if conventional arbitration were 
involved, the neutral arbitrator seems to have greater mediating power when 
he is prevented by statute from selecting a compromise position and can only 
select such a position if one of the parties adopts it as its amended final offer. 



IMPASSE RESOL UTION 1 01 

Med-arb also could be tried if the statute calls for final-offer package 
arbitration and permits amendment at the hearing. It may be difficult to 
amend final offers at a public hearing, and it should be noted that the 
tripartite panel arrangement facilitates mediation by the panel members in 
executive session. Theoretically, the neutral has even greater mediatory power 
in dealing with the partisan arbitration panel members under a system which 
requires that he must choose between one package or the other, rather than 
do so for each issue, or compromise as he sees fit as under conventional 
arbitration. The partisan panel member runs the risk of losing everything if he 
is not responsive to the hints of the neutral when the system requires the 
neutral to pick one final offer in its entirety without modification. 

A quite different approach to the question of how well the various 
forms of arbitration work emphasizes their nonuse and gives little weight to 
whether the settlement is an agreed-upon one as in med-arb, or an imposed 
one, as is the case when the arbitrator does not mediate but functions in a 
judicial manner. From this point of view, an arbitrator should not mediate. If 
the parties have not resolved their dispute and have referred it to him, he 
should protect the integrity of the procedure and render his award in arm's- 
length proceedings based on evidence presented in open session. If the award 
turns out to be punitive because the arbitrator must choose the final offer of 
one of the contending parties, and both offers contain unsatisfactory 
elements, the party that loses presumably will learn a lesson and in the future 
will bargain more effectively and be less likely to go to arbitration again; if 
forced to arbitration again this party may formulate a much more sensible 
final offer that will be devoid of unreasonable elements. 

Considerable attention has been devoted here to various potential 
problems associated with the use of arbitration. It should be noted, however, 
that in actual current practice experience with these procedures is rather 
limited, and many of these potential problems have not emerged or only 
rarely have been troublesome. An overall judgment on the use of arbitration, 
however, will not be attempted here until the alternative to it the right to 
strike has been explored. The question facing society is not whether arbitra- 
tion is a good tool to use but whether it is better than alternative tools to 
resolve disputes in particular public sector industries and occupations. We now 
turn, therefore, to a consideration of the use of strikes to resolve public sector 
disputes. 

Strikes 

The basic theoretical argument for the strike is that the threat of a 
strike is needed to compel agreement of the parties. This is the private sector 
model. Advocates of it simply argue that it can be transferred intact to the 
public sector. Opponents of this position argue that this is unsound because of 



102 JAMES L. STERN 

the differences between the public and private sectors. The primary difference 
cited by those who would not adopt the private sector model is the absence 
of the profit mechanism. A strike in the private sector reduces the income of 
the entrepreneur while leaving him with some fixed costs. His loss of sales and 
profit may make him more ready to settle, just as the workers' loss of wages 
may make them more tractable. 

In the public sector, closing down a public facility may inconvenience 
the public and in some instances may have substantial economic side effects, 
but usually the employer does not suffer loss of income. In fact, just the 
reverse occurs; he saves money. A teacher strike, for example, may balance a 
budget that was in a slight deficit position. 

Another argument raised by those who oppose the use of the private 
sector model is that the government service is more likely to be a monopoly, 
a service for which there may not be alternative sources police and fire 
service for example. This argument is not as persuasive as the first. There are 
also many services provided by private employers for which there may not be 
easily substitutable sources. For example, some cities rely on private firms for 
local transportation and for garbage disposal. 

Also, the substitutability argument is in part intertwined with the 
question of essentiality. There are no close substitutes for a public library, but 
there is little objection raised to suggestions that librarians be given the right 
to strike. It seems more likely that the willingness to give librarians the right 
to strike stems not from any considerations of substitutability but rather 
from considerations of nonessentiality. 

If one directly faces the question of essentiality, the conclusion may 
well be the one adopted in Alaska in which employees in those services 
deemed nonessential are given the right to strike. But essentiality is difficult 
to define. In Montana, nurses at a public hospital can strike provided that 
there are alternate hospitals to which patients can be referred. Also, essen- 
tiality will depend upon the degree to which a skeleton labor force of 
supervisors can maintain a minimum level of service which will eliminate the 
danger to the health and safety of the community even though the reduced 
services will cause a good deal of inconvenience. 

It should be admitted, however, that even if it were possible to make 
distinctions among vital, less essential, and nonessential services and to give 
those in the last category the unrestricted right to strike, those in the middle 
a limited right to strike, and those in the first category no right to strike, such 
a system might be inequitable. In effect, society would be saying to indi- 
viduals in the last group that their services would not be missed and therefore 
they may have the right to strike. But such a right is meaningless if the effect 
of withholding their services makes little or no difference. Finally, it should 
be noted that, conceptually, the granting of the right to strike is an admission 



IMPASSE RESOLUTION 103 

of a failure to devise a satisfactory substitute and quite possibly establishes a 
more adverse model of bargaining than is necessary. 

Proponents of the right to strike in the public sector raise a quite 
distinct and separate argument which needs examination. They argue that if 
public employees have the right to strike, they will be less likely to use this 
right for two reasons: (1) they will be aware that they will not be rescued by 
a judge who will order them back to work; (2) an employer will be more 
willing to make a fan offer if he knows that his employees can strike. The 
first consideration may be more than compensated for by eliminating the 
deterrent effect of breaking the law. That is, the fact that the strike is illegal 
may prevent a greater number of strikes than are created in instances where 
workers undertake them, secure in the knowledge that they will be ordered 
back to work by a judge. In any event there is no evidence on which to judge 
the merits of these two positions. 

As for the second argument, it is quite possible that the threat of third 
party arbitration may make an employer more willing to make a fair offer 
than the threat of a strike. For example, the negotiator for New York City 
said that in disputes involving what are known as management perogatives 
"the threat" of arbitration is an even greater spur to management's settlement 
motivation than a strike: "my fear of itinerant philosophers making judg- 
ments on policy determinations will likely keep my feet to the fire even 
longer than my fear of a walkout." 20 

Other Techniques 

The use of "nonstoppage strikes" intrigues scholars but has little appeal 
to practitioners. A few instances of its use in the private sector have been 
reported, but the idea has not gained even limited acceptance. Its defect seems 
to be twofold. First, there are problems in designing penalty scales for each 
side which are comparable. How much revenue must be given up by an 
employer to match, for example, a 20 percent wage forfeit by employees? 
Second, if the escrow account into which penalty funds are diverted is one 
from which the parties cannot subsequently recapture all or part of the 
penalties when they eventually settle, they may be quite unhappy about 
making large donations to some third party, no matter how worthy it may 
be. If the funds can be recaptured, however, then the force of the penalty is 
greatly diminished and the plan no longer provides a powerful incentive to 
settle. 

Continuous bargaining appeals to the rational side of all individuals it is 
clearly much better to make decisions deliberately with full thought of their 
consequences than to make them in haste under pressure. However, very few 
adversaries will make the necessary concessions to enable them to reach 
agreement without such pressures. The ritual of bargaining is built on the 



104 JAMES L. STERN 

notion that it takes the threat of an imminent strike to persuade both sides to 
finally retreat from positions that they have firmly advanced for many weeks. 

A change from the customary, adversary type of crisis bargaining to a 
problem-solving, continuous-bargaining framework requires a basic change in 
attitudes on the part of both management and union. This has come about in 
some industries after extended strikes and the growth of the idea that there 
must be a better way of resolving disputes. If the change to continuous 
bargaining is made, however, there still must be some method of resolving 
disputes. In this framework, that method would appear to be arbitration. The 
ten major steel companies and the United Steelworkers Union have adopted 
such a system and, at least at present, it seems to be working well. 21 

Continuous bargaining has several drawbacks which should be noted. It 
requires that the employer be willing and able to suffer additional costs in 
return for the willingness of the union to settle early. For example, in the 
1970 negotiations, Armour & Company and the Amalgamated Meatcutters and 
Butcher Workmen's Union agreed through informal, early, noncrisis bargaining 
to a settlement which was made effective about six months in advance of the 
scheduled contract termination date. In the steel industry, workers received a 
cash bonus payment for agreeing to forego the strike and to resolve matters 
by noncrisis negotiations subject to arbitration. The costs of advance settle- 
ment do not seem to be inordinate, however, and this should prove no barrier 
to wider adoption of this procedure. 

Another problem is that the negotiators do not wish to bargain con- 
tinuously, or at least they do not wish their constituencies to adopt a frame 
of mind which would require negotiators to resolve each problem as it arose 
by negotiating a change in the labor agreement. Both sides recognize that 
problems are constantly emerging and that there will always be some groups 
of workers who wish to renegotiate the contract. It is probably impractical to 
attempt to meet these constantly emerging and changing demands; yet if the 
fixed term agreement does not exist as a barrier to consideration of imple- 
menting changes immediately, rank and file groups can be expected to con- 
tinually press for changes and in the process may promote a good deal of 
unrest on the shop floor. 

Both of the above problems, however, seem minor compared to the 
basic one: bargaining today is a distributive problem one side taking some- 
thing from the other rather than a mutually profitable problem-solving exer- 
cise. Until this basic attitude is modified, continuous noncrisis, nonadversary 
type bargaining will have only limited acceptance. 

The current consensus about the use of the strike as the normal dispute 
settlement procedure is that most people regard strikes as wasteful and 
unwise. Politically, it does not seem to be acceptable today to most citizens. 



IMPASSE RESOLUTION 105 

In two instances where it has been adopted (Philadelphia and Hawaii 
school teachers), judicial interpretations of the law have been so restrictive 
that we really have not learned whether such a system is politically viable. 

Factfinding seems to be falling out of favor because of its lack of 
finality. Nonstoppage strikes and possible use of the referendum are ideas 
which are not considered ready for center stage on grounds of impracticality. 
Continuous bargaining also falls into that category of interesting ideas that 
few people want to try. 

For lack of a better alternative, it appears that arbitration of different 
types will be getting more and more attention in the coming years. In its few 
uses today in the United States, arbitration is working well; that is, com- 
pliance with awards is almost universal and its economic impact seems to be 
that of reducing wage dispersion in the way that the free market supposedly 
does when it is working well. 

This does not mean that arbitration will be satisfactory in the long run. 
It is quite possible that there is no one ideal solution. Instead, we may 
oscillate between solutions. Strikes will be tried for a period, followed by 
arbitration for a period, and then, quite possibly, back to strikes or to some 
other substitute. Negotiators change, constituencies change, circumstances of 
management change, and the dispute resolution method that is appropriate 
today may be unsuitable tomorrow. 

In any event, just as we sought substitutes for the use of the strike to 
settle questions of union recognition and grievances which arose during the 
life of an agreement and to some degree we have been successful in that 
search it seems we should continue to seek substitutes for economic strife in 
resolving arguments about the terms of new agreements in the public sector. 
Finally, it should be noted that there need not be a single solution: small 
cities may use different procedures than big ones; solutions that work for fire 
and police workers may not work for teachers, and procedures followed by 
counties and states may not be acceptable for application to federal 
employees. 



REFERENCES 

1. Quoted in Webb, Sidney, and Webb, Beatrice. Industrial Demo- 
cracy. London, Longmans, Greens, 1920, p. 841. 

2. Holland School District v. Holland Education Association, 380 Mich- 
igan 314, 157 N.W. 2d 206 (1968). 

3. See Simkin, William E. Mediation and the Dynamics of Collective 
Bargaining. Washington, D.C., Bureau of National Affairs, 1971. 

4. See Stern, James L. "The Wisconsin Public Employee Fact-Finding 
Procedure," Industrial and Labor Relations Review, 20:3-29, Oct. 1966. 



106 JAMES L. STERN 

5. Cullen, Donald E. National Emergency Strikes (ILR Paperback No. 
7). Ithaca, N.Y. Cornell University, 1968. 

6. Abel, I.W. "Basic Steel's Experimental Negotiating Agreement," 
Monthly Labor Review, 96:39-42, Sept. 1973. 

7. Kagel, Sam. "Combining Mediation and Arbitration," Monthly Labor 
Review, 96:62, Sept. 1973. 

8. Stern, James L. "Final-Offer Arbitration Initial Experience in 
Wisconsin," Monthly Labor Review, 97:39-43, Sept. 1974. 

9. Michigan Police-Fire Fighters Arbitration Act, Act 312 of Public 
Acts of 1969, as amended by Public Acts 1972, no. 127. 

10. Sosnick, Stephen H. "Non-Stoppage Strikes: A New Approach," 
Industrial and Labor Relations Review, 18:73-80, Oct. 1964. 

11. Healy, James J., ed. Creative Collective Bargaining. Englewood 
CUffs, N.J., Prentice-Hall, 1965, pp. 192-243. 

12. Wellington, Harry H., and Winter, Ralph K., Jr. The Unions and the 
Cities. Washington, D.C., The Brookings Institution, 1971, p. 200. 

13. See, for example, Gatewood, Lucian B. "Factfinding In Teacher 
Disputes: The Wisconsin Experience," Monthly Labor Review, 97:47-51, Oct. 
1974. 

14. Daily Labor Report, Bureau of National Affairs, Washington, D.C., 
Feb. 1, 1963, p. F-2. 

15. See, for example, Phelps, Orme W. "Compulsory Arbitration: Some 
Perspectives," Industrial and Labor Relations Review, 18:81-91, Oct. 1964; 
and Stevens, Carl M. "Is Compulsory Arbitration Compatible with Bar- 
gaining?" Industrial Relations, 5:38-52, Feb. 1966. 

16. Stern, "Final-Offer Arbitration. . ." op. cit., pp. 39-43. 

17. Witney, Fred. "Final-Offer Arbitration: The Indianapolis Exper- 
ience," Monthly Labor Review, 96:20-25, May 1973. 

18. Kagel, op. cit., pp. 62-63. 

19. Rehmus, Charles M. "Is a 'Final-Offer' Ever Final?" Monthly Labor 
Review, 97:43-45, Sept. 1974. 

20. Haber, Herbert L. "Alternatives in Public Sector: Factfinding with 
Binding Recommendations," Monthly Labor Review, 96:44, Sept. 1973. 

21. Abel, op. cit., pp. 39-42. 



ROBERT E. BROWN 

Assistant Director 
Graduate School of Library Science 

University of Illinois 
Urbana-Champaign, Illinois 



Negotiation Simulation 

According to many participants at the 1974 Allerton Park Institute, 
perhaps the most memorable part of the conference was a seven-hour session 
simulating labor-management contract negotiations. In planning the Institute, 
we realized that there should be a portion of the conference which would give 
participants some kind of "hands on" experience in the collective bargaining 
area. Of all the activities in collective bargaining, the actual bargaining session 
lends itself best to simulation activity, and we were very pleased to be able to 
locate an existing project which could be adapted for use at the Institute. This 
project was an industrial contract negotiation simulation developed by the 
Division of Public Employee Labor Relations, Labor Management Services 
Administration, U.S. Department of Labor (U.S.D.L.). The U.S.D.L. not only 
agreed to let us reproduce their material free of charge, but also sent 
specialists to a preconference training session and to the actual conference. 

The simulation session took place at the same point in the Institute as it 
appears in this volume after the introductory papers and the papers dealing 
with special topics in collective bargaining, and before the concluding papers 
examining the implications of unionization for various types of libraries. By 
waiting until this point in the proceedings, we gave each participant time to 
develop a maximum knowledge of the nature of collective bargaining, and also 
provided a change of pace at a time when people might have been getting 
tired of sitting and listening. 

The U.S.D.L. negotiation simulation was designed to utilize groups of 
approximately ten participants (five management and five union negotiators), 
each supervised by a moderator-facilitator. Since approximately 100 partici- 
pants were expected at the conference, ten negotiation sessions would have to 
be held simultaneously. Since the U.S.D.L. could not be expected to provide a 
team of ten moderators, a group of Illinois librarians, administrators and 



707 



108 ROBERT E. BROWN 

doctoral students were trained to serve as moderators in a special two-day 
preconference training session three weeks before the Institute. This "each one 
teach one" prep session was supervised by Morris Sackman of the U.S.D.L., 
who guided us through the simulation session while sharing with us his vast 
experience in labor affairs. The training session ended with wrap-up discussion 
sessions for each negotiating team and a final plenary session. A problem 
became apparent during this session the total negotation simulation took 
longer than the time allotted in the conference program. To resolve this 
problem the committee limited the number of issues to be negotiated, 
informed the participants that all of the issues listed need not be resolved if 
both negotiating teams agreed to the delay, drastically reduced the amount of 
planning time allowed the teams, and shortened the actual negotiating time 
somewhat. The simulation materials were to be given to the participants at 
registration two days before the simulation; several times during the con- 
ference they were reminded to read the materials. The committee felt that 
this procedure would make the participants better prepared than usual and 
would compensate for the shorter game time. 

The simulation materials provided by the U.S.D.L. were reproduced and 
assembled into packets which included: 

1. "Settle or Strike" the basic document which describes the situation, 
provides extensive information, and sets the stage for the negotiation 
session. The information in this document will be paraphrased and 
quoted widely in this article. 

2. Information privy to each negotiation team, which provided information 
about the five negotiators, outlined the company or union position on 
various issues, and presented other confidential information. 

3. "Negotiation Issues" this list included the following ten issues to be 
negotiated: contract duration, contracting out, grievance procedure, holi- 
days, leaves of absence, management rights, seniority, union security, 
vacations and wages. 

4. "Selected Contract Clauses" a 28-page listing of recent contract clauses 
in seven of the above areas. 

5. "Glossary of Collective Bargaining Terms" listing 107 terms used in 
bargaining (prepared by the Labor Relations Training Center, Bureau of 
Training, U.S. Civil Service Commission). 

6. "Background Profile" each participant received a description of the 
particular role he was to play on his negotiation team. 

Each institute participant received a total of sixty-seven pages of 
material on Sunday evening, with instructions asking that it be read before 
negotiations started at ten o'clock Tuesday morning. Although during this 



NEGOTIA TION SIMULA TION 1 09 

same period the participants were also exposed to five of the regular institute 
sessions, most people read the background information and were ready to play 
an active role in the negotiations. The following paragraphs summarize the 
simulation materials distributed and the general nature of the simulation 
process. 

SIMULATION 

Lastik Plastik, Inc. (LPI) is a small manufacturer of a variety of plastic 
products in Rapid Junction, a small midwestern city with a population of 
20,000. LPI has 1 04 employees and is the smallest of nine light manufacturing 
factories in the city. Like most of the other companies, LPI had been without 
a union since it opened twelve years ago. Recently the company employees 
voted, by a small majority, to have the Amalgamated Workers Union (AWU) 
represent them in future negotiations with the company. 

As the simulation begins, the two negotiating teams are preparing for 
their first face-to-face meeting following the election of union representatives. 
The management negotiation team consists of five men appointed by J. B. 
Swope, founder, president and chairman of the board of Lastik Plastik. These 
include: 

E. B. Whitz, team spokesman and vice-president for administration and per- 
sonnel, who has been with the company since its founding. Whitz is an 
engineer known among his coworkers as "the diplomat." He aspires to succeed 
Swope as president. 

R. A. Arts-worth, comptroller of LPI, a CPA and lawyer who has been with 
the company for five years. His concern with the negotiations is strictly 
economic; he has developed a reputation as being aloof and a cost-cutter 
(almost a skinflint). He may also be aspiring for advancement to president. 
Bart Trab, production manager, who rose from a general shop operator to 
his present position at LPI in three years. Trab is an ex-Marine sergeant 
who tolerates no nonsense in the plant and who is not well liked by the 
employees. 

/. C. Hitower, general foreman, who has spent eight years with LPI and is a 
life-long resident of Rapid Junction. He maintains excellent rapport with the 
employees and sees some positive influences of the union. 
R. J. Russell, a line foreman who has spent five years with LPI. He is reserved, 
but articulate. He is company oriented but has no strong feeling about the 
union. 

The negotiating team consists of three locally elected representatives plus two 
outside representatives of the union. These include: 



110 ROBERT E. BROWN 

C.B. Halloway, team spokesman, a lead machine maintenance mechanic with 
ten years service at LPI. He is a quiet person but an effective speaker, and he 
has worked for the union during the organizing campaign. He is respected by 
others. 

L. M. Steinway, international representative, AWU. This is his first visit to 
Rapid Junction; he knows little about the plastics industry or LPI but is 
experienced and knowledgeable in negotiating union contracts. He is not 
opposed to a strike at this time. 

P. King, district director, AWU. King has had twenty-eight years of union 
experience and is very familiar with other union contracts in the district, 
many of which he negotiated. He aspires to be president of the inter- 
national union. 

Wilbur Rosen, chief shop steward. Rosen is young, aggressive, strong and 
ambitious. He is the leader of the more militant group in the union. Rosen 
has been passed over twice for promotion, and this has turned him against 
the company. He favors a strike to strengthen his position. 
A. Walker, department steward, 23 years old. Walker is active in church and 
4-H work and admires Rosen for standing his ground. He is critical of the 
company management because of their lack of social conscience. 

The following instructions were given to the participants: 

This simulation has specific learning objectives, of which the pri- 
mary one is to experience the dynamics of collective bargaining nego- 
tiations. Reality must be accomodated to these, and to the constraints 
of time. Consequently, certain assumptions must be made. For example, 
the number of issues which will be negotiated has been limited to 
conform to the limited time frame which is available to this seminar, 
and they have been generally identified. The assumption is that these are 
the critical issues which must be resolved if a strike is to be avoided. 
While this may, for example, diminish the reality of how the parties 
determine their proposals, it is a necessary trade-off. 

Also the simulation is set in the private sector. There are two 
major reasons for this. One is to remove participants who are public 
sector oriented from that specific orientation. The other is to demon- 
strate the universal application of the principles, techniques and 
dynamics of negotiations. The primary purpose of this simulation is to 
expose participants to the dynamics of collective bargaining negotiations, 
not to prepare them for negotiations in which they will actually be 
participating. The issues that have been identified are, furthermore, 
equally applicable to most public sector bargaining. 

Each team is permitted to make any reasonable use of the data 
and information to enhance its positions, as long as it does not contra- 
dict that data and information. As occurs in real-life collective bar- 
gaining, the interactions between the management and union teams and 



NEGOTIATION SIMULATION 111 

within the respective teams often determine whether the parties can reach 
agreement without a strike or lockout as they seek to resolve conflicting 
positions over critical issues. While both teams generally seek agreement 
without having to resort to strikes or lockouts, the ultimate outcome is an 
agreement except in rare cases where the relationship between the parties 
is totally terminated. 

Strikes and lockouts, although occasionally unavoidable, are costly 
to both parties and to the public. Where the parties are unable to reach 
agreement directly by the parties themselves, there are three modes of 
neutral third party intervention available to assist them to reach agree- 
ment without resorting to strikes or lockouts. These are: mediation, 
factfinding and arbitration. This simulation provides for only one type 
of neutral third party intervention-mediation. The mediator role is incor- 
porated in the Data Bank, and the mediator is known to the parties. A 
simulation leader will act as the mediator. Either or both parties may 
request the mediator to intervene, or the mediator may seek to deter- 
mine the need for intervention and, if necessary, to suggest mediation 
without waiting for a request by either or both parties. 

The Negotiations 

Each of the twenty negotiating teams (ten union and ten management) 
were assigned a caucus room or area to which they were to return whenever it 
became necessary to discuss matters among themselves. Ten larger rooms with 
tables were designated as negotiating areas; seats around the tables were 
reserved for the team members and large name signs identified each nego- 
tiator. 

Final instructions to the team informed them of a pending strike with a 
one o'clock deadline. Negotiations were to continue until the ten issues had 
been addressed and the differences between the negotiating teams resolved or 
until a strike occurred. The twenty teams of five immediately went to their 
caucus areas to plan their opening moves. 

In caucus the teams ranked the ten issues to be negotiated in priority 
order and prepared their first offers. The simulation materials had provided 
the negotiators with extensive information concerning the present policies, 
salaries and benefits at LPI, as well as in the community and the plastics 
industry nationwide. Using this information and the sample contract clauses 
provided, all teams were able to present the opposition with numerous 
contract proposals. 

Negotiations began when both teams had agreed on a time and usually 
started with simple statements of position and the introduction of the first 
offers by each team. This first step was followed by a return to the caucus 
areas, after which new across-the-table negotiating resumed. In general this 
process continued for the next three hours with only minor variations, 
although one labor team walked out of their negotiating room and stayed out 
for over an hour, returning only after an outside arbitrator was brought in. 



112 ROBER T E. BROWN 

E. B. Whitz and C. B. Halloway served as the primary spokesmen for 
their respective teams in nearly all cases. The other members of the teams 
made comments spontaneously or upon the request of the spokesmen. Occa- 
sionally other team members (especially Trab or Rosen), dominated a session 
or a caucus discussion. As time passed and the negotiation tended to center 
on the questions most difficult to resolve, arguments occurred more fre- 
quently between and within the teams. Most participants were able to stay in 
role and project the image intended. 

The moderator-facilitator (simulation leader) assigned to each team 
played many roles arbitrator, news media reporter, and various union and 
company figures. His primary function, however, was to keep the action 
moving (or to slow it if necessary) by injecting elements of change and 
reporting on hypothetical happenings outside the negotiations room. The 
moderator used a "media board" in each room to post newspaper articles, 
inflammatory statements from union members and company staff, and other 
items of public information. He also provided each team (or particular team 
members) with confidential information in the form of notes, letters or 
telegrams. Included in the typical messages to the teams were: a letter of 
encouragement from the president of the international union urging the team 
to go after a strong contract which would be helpful in organizing other 
plants in the industry and offering support from the union's well-endowed 
strike fund (used to strengthen the union team's position); a similar letter 
warning that another large local had just gone on strike and would probably 
drain the strike funds (used to weaken the union line); a note to Bart Trab 
(the tough production manager) from a shop foreman telling of suspected 
sabotage of shop machines and urging him to shut down the assembly line 
(used to antagonize the union team); two letters to the management team 
from a large buyer for a new line of faddish plastic toys (hulahoop-type 
items), the first offering a contract if production can begin at once, the 
second threatening to withdraw the offer if labor troubles develop (used to 
stimulate management to settle); an offer from a competitor to buy the 
company (Lastik Plastik) and hire the company officers (used to slow nego- 
tiations). These messages were limited only by the creativity of the moderator- 
facilitator and were used effectively in all teams. 

The moderator-facilitator could, as mentioned earlier, assume the role of 
an arbitrator, offering his services to help resolve the issues if the teams 
reached a stalemate. Several teams used the services of the arbitrators toward 
the end of the session. 

As the strike deadline drew closer the negotiations became more harried 
and the pressure for settlement increased. Some teams made concessions on 
formerly unresolvable issues and others reduced the tension by referring less 
pressing issues to joint committees usually to report back within a month. A 



NEGOTIATION SIMULATION 113 

couple of teams settled tentatively with such vital issues as management rights 
and union security unresolved. Only one team (Team J) became hopelessly 
deadlocked on wages and contract duration and went on strike. 

The contracts negotiated by the tem teams varied widely, as can be seen 
in Table 1. Ray Gilbert, the U.S.D.L. representative at the conference, told us 
this phenomenon occurs regularly, even when the teams are as heterogeneous 
and randomly assigned to roles as they were at the Institute. The issues in 
Table 1 marked "no change" are those for which both teams agreed to remain 
with the present company policy; "postponed" issues are those which were 
referred to a committee for later resolution. 

Wrap-Up 

At the end of the negotiating session the teams assembled in larger 
groups (three pairs of teams) to discuss the experience. Most participants were 
either exuberant and anxious to discuss the experience or were exhausted and 
ready to retire. An atmosphere of bedlam existed at the beginning of the 
discussion period, when the participants shed their role identities and were able 
to express their real feelings. There was great interest in what others thought and 
in why they had acted in certain ways. The discussion leaders were able to 
start organized reviews of the negotiation procedure only after the participants 
were allowed to "let off steam" for about twenty minutes. In this plenary 
session the positions held by the two opposing teams were analyzed, and the 
following questions explored: Which issues were most important to the union 
and which were vital to management? Why was this so? Why did one team 
give in on one issue and dogmatically cling to another? Which issues might 
apply directly to libraries, and how might the negotiations have differed in the 
public sector? The recapitulation period helped to pull together the various 
loose ends and provided an appropriate finale to this session. 

I feel that involvement learning of all types is particularly useful. The 
particular simulation-role-playing experience employed at the Allerton Park 
Institute was especially effective and can be recommended as a primer in labor 
negotiations. Any group faced with the prospect of negotiating a first contract 
should consider using this or a similar training device. Among the advantages 
of simulation exercises in general are: 

1. This method stimulates learning by creating an immediate need for 
specific knowledge and producing equally immediate feedback to the 
participant. The impending need created by the simulation motivates the 
participant to learn specialized vocabularies and to acquire new skills in 
a way nothing else can. 

2. Simulation learning involves people; everyone becomes a participant and 
must contribute to the game. This encourages two-way communication 



114 



ROBERT E. BROWN 



Team 


Wages 


Union 
Contract 


Vacations 


Management 
Rights 


Grievances 


A 


8.2% across the 
board 


Agency shop 
Check off 


No change 


Except as limited by 
union contract 


48 hour cooling off 
2 week filing limit 
3 day response limit 
2 step thru vice pres. 
Binding arbitration 
Shared cost 


B 


7% 1st year 
7% 2nd & 3rd year 
if c.o.l.* exceeds 

9% 


Maintenance of 
membership 
Check off 


No change 
Average weekly 
salary 


Unchanged 


3 step -union in 
3rd step 


C 


8 % across the 
board 


Modified union 
shop language to 
be agreed upon 
within 30 days 


1 wk. after 6 mo. 
2 wks. after 2 yrs. 
3 wks. after 10 yrs. 


Except as limited 
by this contract 


2 step 
Step 1 on company 
time 


D 


c.o.L* + 
4% 1st year 
4% 2nd year 
2% 3rd year 


No agreement 
reached 


1 wk. after 6 mo. 
2 wks. after 3 yrs. 


Contract rights but 
shall not discrimin- 
ate against union 


2 step 
96 hrs. released time 
to process 
Cost of arbitration 
decided by arbitra- 
tion 


E 


190 across the 
board 
Reopen 2nd year 
for c.o.l.* 
50 3rd year 


Agency shop 
Check off 


No change 


Except as limited 
by this contract 


3 step with time 
limits 
Stewards involved at 
each step 
Arbitration with 
shared costs 


F 


150 across the 
board 


Agency shop 


No change 


Postponed 


3 step 
Unlimited steward time 
Arbitration costs 
paid by loser 


G 


10% across the 
board 
4% c.o.l.* 


Modified union 
shop 


Average weekly 
salary 


To be worked 
out by joint 
committee 


5 step plan 


H 


25<f 1st year 
Reopen 2nd year 


Maintenance of 
membership 
Check off 


2 wks. after 2 yrs. 
3 wks. after 10 yrs. 
4 wks. after 20 yrs. 


Except as limited by 
union contract 


4 step 
Binding arbitration 
Shared cost 


I 


15^ across the 
board 


Modified agency 
shop 


2 wks. after 1 yr. 
3 wks. after 10 yrs. 
4 wks. after 15 yrs. 


Except as limited by 
union contract 


4 step 
Binding arbitration 
Loser pays costs 


J 


Impasse 
Union 200 
Management 150 


Agency shop 
Check off 


2 wks. after 1 yr. 
3 wks. after 10 yrs. 


Except as limited by 
union contract 


To be worked out by 
joint committee 



*c.o.l. = cost of living 



Table 1 . Negotiated Contracts 



NEGOTIA TION SIMULA TION 



115 



Contract 
Duration 


Holidays 


Leaves 


Contracting 
Out 


Seniority 


Team 


1 year 


No change 


No change 


No job loss 
guarantee 


Layoff, rehire, and 
promotion on 
seniority 


A 


3 years with 
wage reopener 


No change 


No change 
except union 


No job loss 
guarantee 


Plant and dept. 
seniority 


B 



business 



1 year 



No change No change 



Postponed Agency-wide basis C 

for promotion and 
layoff 



3 years 



1 extra day Postponed 



Postponed 



Postponed 



3 years with No change 

wage reopener 



Postponed Limited to major Postponed 

construction 
No layoff 
Can't undermine 



To be settled 
later 



Postponed Postponed 



Postponed 



Postponed 



2 years 



8 days per 
year 



2 years with 1 extra day 

wage reopener 



1 year 



Impasse 
Union 1 yr. 
Management 2 yrs. 



7 plus birth- 
day 



Postponed 



Pregnancy Full employment Joint committee G 

1 day mo. sick leave only to work out 

3 day funeral 



Maternity 



Maternity 
Sick leave to 60 
days 

Postponed 



No job loss Layoff and promotion H 

6 month probation based on 
on new products seniority 



Limited areas 
No job loss 



Postponed 



Layoff and rehire 

on seniority 
10 day posting 

Joint Committee 

to work out 
50-50 productivity 



116 ROBERT E. BROWN 

and social and intellectual interaction, which helps participants learn 
from one another. The element of stress introduced by the adversary 
arrangement and the pending strike facilitates this learning. 

3. "Learn by doing" techniques tend to aid retention of knowledge. Some- 
thing learned and immediately reinforced by use (often repeated use) 
becomes more indelibly impressed on the mind. 

4. Time can be controlled to suit the learning process. The developer of a 
simulation project can concentrate on certain time periods, prolonging 
or contracting them as best fits the needs of the project. In the labor 
negotiations simulation the time spent in face-to-face, across-the-table 
negotiations was, of course, much less than it would have been in actual 
practice, and time between the breaks to caucus and the subsequent 
return to the negotiation table could well have been weeks rather than 
minutes. However, the essential elements involved in hammering out a 
labor contract were present, even to the speeding up of progress as the 
remaining time diminished. It was evident that 90 percent of the 
progress toward a contract occurred in the final 10 percent of the time. 

There are some inherent problems in simulation learning. These include: 

1 . Simulation learning requires preparation; those who enter the game with- 
out doing their homework cannot be worthwhile participants. 

2. All people do not learn well in this way; for some, simulation exercises 
may not be effective. It is difficult for some people to change their 
learning mode; those who have always learned by the traditional methods 
of reading and lectures may have some adjustment problems. 

3. The personality of the participants may limit the effectiveness of role- 
playing exercises. Not everyone is outgoing enough to actively partici- 
pate, and we know that some people are better actors than others. Prac- 
tice, however, is helpful in developing the necessary skills and in encouraging 
participants to loosen up. 

Most participants at the Allerton Park Institute seemed to enjoy the 
negotiation session and felt that it provided a nice contrast with the other 
conference sessions. Some even saw it as a good social mixer and wished it 
could have been held on the first day. 



MILTON S. BY AM 

Director, 

Queens Borough Public Library 
Jamaica, New York 

Implications for Public Libraries 

There is evidence of unionization in the field of public librarianship as 
early as 1917, according to Library Literature. One attempt occurred in New 
York and another in Detroit. Given the infancy of public librarianship at the 
time and the fact that staffs were often made up of women just out of high 
school and trained by the public libraries themselves, there was little hope for 
a successful conclusion to such efforts. The social class from which these 
young ladies had been selected, their complete identification with their public 
libraries, and their genteel surroundings gave them little reason for identifi- 
cation with the labor movement. The labor movement was not something that 
one thought well of in those days anyway. 

The real impetus for labor unions in libraries came at the time of the 
replacement of the last of the library-educated librarians by their master's- 
degree-holding colleagues, and at the time of the major movement of unions 
into the white-collar field. In the case of New York this white-collar move- 
ment was helped by the establishment of the Public Employees' Relations 
Board (PERB), which dealt with labor unionization and made unions of public 
employees legal for the first time in the state of New York. In New York 
City, in which there are three private corporate libraries, the staffs saw benefit 
after benefit extended to city employees while their administrators had to 
fight to have them extended to libraries. When, for example, pensions were 
given to other city employees, the librarians were not included. The same 
thing occurred in the extension of Social Security, hospitalization, health plan, 
and career-salary plan benefits to librarians. Under the prevailing system, 
library employees not only lacked the benefits of a civil-service-protected 
tenure, but also suffered from a weakened bargaining position when benefits 
were handed out to other city employees. 

Of course, long before the institution of unions, staff concerns in many 
libraries were expressed through a mechanism called a staff association. The 
actual name varies from library to library, but generally a staff association is 
an organization of staff members who seek to bring the interests of the staff 
to the attention of the library administration. Since their positions are not 

This article is an edited compilation of Mr. Byam's presentation at the Institute and a sub- 
sequent written report. 



777 



118 MILTON S. BYAM 

legally enforceable, these staff associations exist through the sufferance of the 
administrators of those libraries. And because these staff associations often use 
the library mail, library paper, and library time for meetings, they are in fact 
organizations which have to be responsive to the administrators. One of the 
reasons, for example, that the staff of the Brooklyn Public Library went 
outside the library to look for a union was that the staff association was 
unable to get the administration to act on the question of a thirty-five hour 
week. 

The success of the staff association mechanism, therefore, depends to 
too great an extent on the responsiveness of the library director. And library 
directors who are perfectly willing to recognize staff demands found them- 
selves unable to react by reason of trustee adamancy or city refusal to take 
action. 

There are now unions in almost every large city public library, but 
library governance is so varied and different from city to city that one cannot 
point to a typical library union. Indeed, one can go further and say public 
library governance makes unionization a special problem in public libraries. 

One public library, for example, may be governed as a private corpo- 
ration by a board of trustees, as in New York City, with no ties to the city 
except those surrendered by contract. It may be governed by an entirely free 
self-perpetuating board of trustees supported by an endowment, as is the New 
York Public Library, Astor, Lenox and Tilden Foundations. Even though it 
has a board of trustees, a public library may operate as a direct city 
department, with its employees gaining benefits at the same time as other city 
employees as in Los Angeles, Philadelphia and Chicago with full civil service 
status. A public library may be a school district based public library with an 
elected board of trustees or trustees appointed by the board of education, as 
is true of Cleveland and of many of the libraries on Long Island. 

It should be obvious from this discussion that the library-union relation- 
ship is simple only for an organization with an autonomous governing body 
which controls the funds to carry out its power. In all other situations the 
public library finds itself in the position of adding by unionization yet 
another layer of governance to an already confused picture. An interesting 
case in point is the District of Columbia, where the library is responsible to a 
board of trustees, to both houses of Congress, to the District of Columbia 
government, to the U.S. Civil Service Commission, to the Commission on 
Human Rights, etc. With whom do you bargain in a situation like that? How 
does the public make its needs felt? How do you give library service under 
those conditions? 

Look at the school district public library for example, with a board of 
trustees appointed by the board of education. With whom does the staff 
negotiate a salary increase? It could be with the board of education, which 



PUBLIC LIBRARIES 119 

might overlook essential library needs, with the board of trustees, which might 
have to seek the approval of the board of education and then negotiate with 
the city to get the funds to implement the increase, or with the municipality 
itself. In some cases, it could well be with all of these. 

But already the public libraries in all jurisdictions are beset and besieged 
by an astounding plethora of city regulations, state laws, federal regulations, 
and their own 'rules and regulations. These rules and regulations may say that 
there must be a bathroom in a building of given size, or that there must be a 
couch in a given place. In the state of New York there must be a librarian on 
the premises in any professionally run library at all times that the library is 
open. At least forty -two hours of service must be given weekly in a public 
library in the state of New York. Federal regulations determine how we will 
spend Library Services and Construction Act funds. And libraries have their 
own rules and regulations, which are approved by the board of trustees and 
must, of course, be legal under the existing state, city and federal statutes. To 
this tangle of laws and regulations, unionism adds yet another layer. 

The result is that the needs of the federal government for financial 
probity are met. The state rules governing education are met. The city's need 
to parcel out funds with care is met. The need of the staff to have a voice in 
their own future is met. The one end that these many invaders of public 
library governance do not strive to meet is library service. 

We have a very interesting situation in New York. In the Queens 
Borough Public Library the city is in fact doing a lot of negotiating directly 
with the union. We have representatives who sit in with the city on these 
discussions, so it is not likely that the needs of service will be overlooked in 
this particular type of arrangement, nor in the many similar types of arrange- 
ments which are possible here. In the case of the Brooklyn Public Library the 
employees negotiate with their board for those benefits such as certain 
types of leave or breaks which the trustees have not already given under the 
contract. All of the money questions, on the other hand, must be negotiated 
with the City of New York at the bargaining table. The trustees really get lost 
in this process. In spite of the fact that they are the titular heads of the 
corporation and presumably have all the power of that corporation and these 
are corporations in a very real sense they have in fact nothing to say about 
the negotiating process when money is involved. 

My negotiating experience has included both sides of the table. I was 
president of the staff association of the Brooklyn Public Library at one time, 
although our negotiations were just minimal since they were then at the 
sufferance of the administration. As a member of the union executive team at 
St. John's University, I negotiated with the administration. I can't say that I 
enjoy this kind of thing, mainly because the situation is and has to be an 
antagonistic one. In many cases, for example, there will be members of the 



120 MILTON S.BYAM 

staff who will be more militant than the union leader, and as a result he has 
to take a very strong position vis-a-vis the administration to show that he is 
not taking any guff. As a result a lot of the negotiations are simply and 
purely play acting and for effect. It is only when you get past that stage and 
start putting things down on paper that you will find you are really moving 
forward. 

Unionization has brought another disturbing element into the 
governance of public libraries: the impartial arbitrator. This is a person who 
stands above the city, state, library, and union and renders judgments on the 
appropriateness of given actions taken by the library. What happens if some 
arbitrator says public libraries can't be open at night or at times when the 
public can use them? This can be effected, simply, by requiring that given 
numbers of staff in certain classifications e.g., custodians must be on the 
premises during given hours, and then denying you that staff. We had exactly 
that situation in the District of Columbia, where the arbitrating team decided 
that no library could be open without a custodian on the premises. No staff 
member other than the custodian could be asked to lock the door. In the case 
of illness or absences we had to close the library until we could get a 
custodian on the premises. If an arbitrator says that Sabbath observers must 
be hired and placed in assignments, that means there is no staff in some cases 
on Saturday and Sunday. My concern may be unreasonable, but there are 
dangers when persons totally unaware of the needs of library service make 
decisions that concern libraries. 

In the first union experience I had in Brooklyn we anticipated that we 
would be spending an awful lot of time handling grievances, and we were 
right. Everybody who feels that he has been somehow wronged files a 
grievance, and that ties up you, your staff, and everybody along the line while 
it is being resolved. The union leaders have not been very responsible in this 
area. They do not say to their members that they think something should not 
go forward. They permit anything to go forward as an example of what the 
union can do for its members, and hours are spent handling formal grievances 
over questions which could easily be settled informally. Grievances multiply 
and they continue to come. If people are not supposed to be able to grieve 
about something, they grieve about not being able to grieve about it. And you 
find yourself then going through the whole process, up to an arbitrator, to get 
a question resolved about whether or not the contract does indeed say you 
can grieve about a particular issue or you cannot. Even when the arbitrator 
has decided the issue it will come up again another way. 

Most arbitration proceedings take at least a full day, and they may take 
several days. We had a case recently where a library staff member was found 
to be off the library premises when he should have been at his branch. He 
was suspended on the spot for being away from his assigned post without 



PUBLIC LIBRARIES 121 

prior approval. He grieved. It went up the whole ladder to the arbitrator, and 
we spent three days with witnesses, testimony, and paid lawyers to get the 
arbitrator to tell us we did the right thing. 

Generally, administrators don't go to arbitration; arbitration is usually 
employed by the union. We try desperately not to take cases that we are 
going to lose, unless there is some principle involved that requires arbitration. 
We try to get things settled beforehand if at all possible. 

While the library press is wont to be excessively promotive of library 
unionism, and the spokesmen for these unions are often professional 
librarians, the public library unions are hardly professional in their stance, 
since they generally include all grades and classes of staff. In seeking the 
lowest common denominator to satisfy its entire constituency, the union 
tends to be conservative in its policies on extended hours, Sunday hours, and 
late night service, which the public and city officials would like to see libraries 
provide. 

The manpower cost of the unionization of libraries has been enormous. 
Negotiations, grievance handling and arbitration are expensive and inter- 
minable. In a situation like this we pay all the costs, because even the union 
leaders are paid for by the library. We currently have a case in which the city 
of New York is refusing to recognize the right of a staff member who is party 
to the grievance to appear at an arbitration session on library time. The union 
is taking us and the city to the highest court in the land, in this case PERB, 
to argue this issue. They ask that every employee be able to appear at 
arbitration sessions on library time. This is public time, and it is not our time 
to give away. We can't just say that someone can take a couple of weeks off 
for union business, or for any business for that matter. 

Unionization has, however, been less of a problem than anticipated by 
prognosticates of gloom and doom in the recent past. Unions have resulted in 
more evenhanded treatment of staff by municipalities, trustees and admini- 
strators. Union leaders have on the whole been aware of and responsive to the 
library and its needs. 

Many libraries have awakened much too late to the need to be con- 
cerned with responding to the needs of staff. It is really too bad that 
administrators and trustees did not have the will, the ability, or the skill to 
get it done earlier. On the other hand, this may be an unfair comment, for 
today's mood favors unionization. It would be a staff which did not care 
much for itself which did not unionize in the face of unionization by the 
police, firefighters, school teachers, and everybody else. This is a movement 
that is going on and will go on in the future, and I expect that more and 
more different kinds of staff will become members of unions in the library 
field. 



MARGARET BECKMAN 

Library Director 

University of Guelph Library 

Guelph, Ontario, Canada 



Implications for Academic Libraries 



This paper may present a more restricted view of the academic library 
interface with collective bargaining than might have been anticipated, pri- 
marily for three reasons. First, I am more familiar with the Canadian academic 
library situation than with the American, although I have studied the pattern 
which appears to be emerging in American libraries. In addition, I am con- 
vinced that if academic library administrators had realized at any point within 
the past ten years that library management is a unique and demanding 
scientific discipline and had borrowed some of the techniques and method- 
ologies being practiced in the business community, they could have been in a 
position of bargaining from strength rather than from weakness. Finally, I am 
firmly committed to the belief that academic librarians should achieve their 
status and any ensuing rights and privileges through their own merit, and not 
by accepting a system designed for another profession with similar, but not 
identical, objectives and requirements. 

There is little doubt that collective bargaining will be the normal pattern 
for the majority of academic library staffs within the next decade. The 
question is not: What are the implications if we become involved? The question 
is: What do we do when, or hopefully before, we become involved? There are 
still steps which library administrators can take to ensure that their libraries 
will be in a relatively strong position in relationship to a union. The impli- 
cations of collective bargaining for academic libraries are identifiable and 
positive. They are that we must achieve, in as short a time as possible, 
effective consultative (or participatory) library management systems, using the 
principles of library management so well defined by the Management Studies 
Office of the Association of Research Libraries (ARL). 

Collective bargaining in academic libraries usually involves two groups: 
the professional staff and the clerical or support staff. In some instances one 
union or bargaining group negotiates for the support staff and some of the 



122 



ACADEMIC LIBRARIES 123 

professional staff, but this is probably the exception. For instance, of nine 
unionized academic libraries in Canada, six include only clerical and other 
sub-professional staff, while only three include some of the professional 
librarians with the clerical or support staff. 1 

In June 1974, 41 percent of ARL libraries had union representation for 
at least some of their employees, 2 but few include many professional 
librarians. 

This dominance of support staff in unions may not long continue, as 
movements for collective bargaining among the faculty on university campuses 
gain momentum. If university faculties unionize, the librarians, whether 
assigned full faculty status or not, are bound to be involved. 

Therefore, the implications of collective bargaining for academic libraries 
follow the particular pattern which the unionization takes on the individual 
campus and involve both support staff and professional staff. Although there 
are many factors in common, and certainly we have much to learn from the 
unionization of clerical or support staff, these will be discussed separately, 
after an examination of some overriding implications fundamental to the 
discussion. 

GENERAL IMPLICATIONS 

Emphasis on the Management Function 

A recent ARL Management Supplement phrases the immediate emphasis 
on management resulting from unionization in this fashion: "The art of 
writing a union contract serves to itemize and clarify management's options. 
Each provision of a collective bargaining agreement is, in effect, a limitation 
where none had formally existed before. In order to operate effectively, let 
alone to make changes or experiment within such a framework, management 
needs to be imaginative in planning and attentive to detail. Managing will 
require more time than before and will require considerably more attention." 3 

Instead of accepting what passed as library management a decade ago 
and that appears to have been an adherence to whatever traditional hierar- 
chical pattern existed, patched as necessary to meet particular or peculiar 
circumstances a library must define its system of management within an 
intelligently organized structure. This management system must have both 
long-range objectives and short-term goals, determined and understood within 
the framework of the institution's objectives and budgetary constraints. 

In order to provide the environment in which the library management 
system can be effectively operated, and meet its primary objectives of pro- 
viding library and information services, all library management and supervisory 
staff must be given the opportunity to acquire the necessary knowledge and 



124 MARGERT BECKAMN 

skills. Effective methods of providing the library with an effective and con- 
sciously managerial staff include: library in-service training programs for 
different levels of staff; seminars conducted by management experts pro- 
vided by the library or university administration; and participation of both 
professional and nonprofessional staff in external seminars, institutes or 
formal courses. 

The library management system must also define decision-making pro- 
cedures and levels, and must provide structured vehicles for communication of 
all decisions to staff members. This is best provided through a participatory, 
or consultative, management system, with policy decisions officially taken at a 
level of staff involving more than just the senior administrators. This is 
discussed in more detail later. 

Necessity for Formalized Personnel Function 

A second general implication of collective bargaining for academic 
libraries is that the personnel function, even as the management system itself, 
must be formally organized. As stated in the Booz, Allen and Hamilton study 
of the Columbia University Libraries, "the human resources of the libraries are 
so important that the highest level of attention should be given to the 
personnel function: the Personnel Office, headed by an Assistant University 
Librarian, should operate as an integral part of the top management." 4 

The responsibilities of such a personnel office include coordination of 
library personnel policies throughout all departments; recruitment, selection, 
evaluation, promotion and termination routines must be consistent within the 
library system. A constantly updated library personnel manual is the most 
effective tool for achieving this result. 

Job classification schedules meeting the particular needs of the library 
and related to detailed (and again, constantly updated) job descriptions are 
also part of the personnel function. The unique character of coding biblio- 
graphic data as compared, for example, to payroll coding, must be established 
and defined, as must be the wide-ranging activities of a science librarian with 
cataloging, research assistance, and collection development responsibilies. 
(Examples of classifications and some generic job descriptions are included in 
the Appendix.) 

Staff development plans for support staff, specialists and librarians- 
including both in-service training and personnel programs, liaison with the 
university personnel department and the union, or the planning of new 
personnel policies (e.g., variation of the compressed or flexible work week) 
are all part of the many functions which will be coordinated and emphasized 
by assigning the proper attention to the personnel function. 



ACADEMIC LIBRARIES 125 

Threat to the Service Function 

The third broad implication of collective bargaining for academic 
libraries is the threat to the service function. Library unions in Canada have 
existed longer in public libraries than in academic ones and we have been able 
to study, with growing alarm, the effects of such organizations on our 
common objective: effective library service. Specific examples can be cited in 
Canada of libraries which must be closed several evenings or on Sundays; 
where automation cannot be introduced; where staff members with seniority, 
but not necessarily with adequate qualifications can be transferred to public 
service jobs rather than filling the position with a more desirable outside 
candidate. All of these are the results of unions having prevailed over manage- 
ment in arbitration proceedings. 

Academic libraries would be seriously hampered if they were not 
capable of meeting the changing needs of the user by restructuring depart- 
ments, shifting or re-allocating personnel, introducing new technology, or 
entering into cooperative systems and regional or national networks. Union 
action need not be a threat to the service function if a library has already 
established its policies, objectives and organizational system consistent with 
the needs of both library users and staff. The implication is that each library 
must define those objectives, policies and organizational systems now, before 
collective bargaining is a reality in that library. 

SPECIFIC IMPLICATIONS: SUPPORT STAFF 

In speaking of specific implications of collective bargaining in relation to 
support staff in academic libraries, I am to a certain extent basing my 
observations directly on the fact that the University of Guelph has a union for 
all nonprofessional staff on the campus. Fortunately, that union has not been 
a militant or aggressive one and the library has been able to establish a 
management system and personnel policies which, although within the con- 
straints of a union, can still focus on the library's service objectives. 

In my experience, the most important areas on which a support staff 
collective agreement concentrates are discussed below. 

Job Posting and Staff Transfers 

As soon as a vacancy occurs in a library the position must be posted, 
internally to the university, usually for a period of five working days. The job 
classification or grade and necessary qualifications are stated briefly. 

Advantages in such a system are the increased potential for staff 
mobility which can accrue. A clerical assistant at a Grade 2 level in the 



126 MAR GER T BECKMAN 

cataloging department may be locked into an unchallenging situation because 
of the relative stability of all the senior positions above her in the same 
department. The posting of a Grade 3 clerical position in the acquisitions 
department may provide the opportunity for both advancement and more 
challenging work, which can result in a more productive staff member. 

There are disadvantages, however, particularly if the collective agreement 
stipulates that library seniority is an important factor in a transfer choice. 
This will result in loss of flexibility for library management, limiting its ability 
to promote those employees it judges to be best qualified for the job. 

This internal transfer after a job vacancy posting need not necessarily 
involve a promotion. As long as an employee deems that a job of similar 
classification and requiring similar qualifications is better for her, she may 
apply for the transfer. This situation can impinge on effective library service, 
and library management may be deterred by a union contract from selecting 
the best person for a position. 

Some actual examples of the results of union contracts, from the 
library's point of niew, may be helpful. The University of Guelph Library 
system offers service through subject divisions, with a general information 
division responsible in the central library for quick reference, information, and 
instructional services. In addition to professional staff in each division there 
are support staff called library associates with academic degrees in the sub- 
ject of the discipline. 

Within a period of two months, two library associates and the division 
head of one of the subject divisions resigned all for valid and personal 
reasons. Meanwhile, the professional librarian in charge of orientation in the 
information division resigned at the end of a maternity leave prior to the 
beginning of the fall semester. The senior associate in the information divi- 
sion asked for a transfer to the vacancy in the subject division, with no 
promotion involved. This transfer, although not received with enthusiasm, 
was processed. 

Then the second library associate in the information division asked to be 
transferred at her existing classification to the same subject division. This 
would leave the information division with no experienced staff except the 
division head. Although the employee is acting correctly within the terms of 
the contract in requesting a transfer, at some point the interests of the library 
and the needs of the user must be considered. 

Another aspect of the problem is discussed by Donald Redmond, Chief 
Librarian of Queen's University at Kingston, Ontario. In his 1973-74 annual 
report he states that: "[the] mobility of nonprofessional staff has been simul- 
taneously a benefit and a burden to the library system. Promotions and lateral 
transfers increase the value of a given employee to the university by 
broadening knowledge and familiarity." But he goes on to say that: 



ACADEMIC LIBRARIES 127 



promotions and transfers mean a heavy burden on supervisors and 
colleagues, in training, monitoring and review. . . . The pattern of mobility 
has immediate effect on the units from which the staff move. Delays 
occur due to the paperwork procedures required by the University's 
tight budget and the collective agreement with the non-professional staff 
union in job justification, posting and application. The resulting loss of 
working days increases the burden on staff remaining in the units. 

In 1973/74, 76 movements (73 per cent of all mobility) caused 
the loss of 943 working days the equivalent of five full time employees. 
On the average, each resignation caused one other internal movement, 
and the two movements together deprived the library system of 25 
working days... .Further, there is a hidden cost of time involved in 
training, particularly at the Library Technician I level which suffers both 
most mobility and most days lost in consequence. 5 

Promotions 

Promotion of support staff can also create difficulties if a library insists 
that skill and proficiency, in addition to seniority, be considered. We have 
found that detailed job descriptions linked to regular formal evaluations are 
the best documentation to support promotions with the least likelihood of 
grievance. 

One of the most difficult tasks at Guelph has been to impress on 
department heads the extreme importance of the evaluation procedures. An 
employee's performance cannot be rated satisfactory at several evaluation 
reviews and then, with the same documents, be assessed as not meriting either 
promotion or a merit increase. This area of evaluation and promotion enforces 
the necessity of and emphasis on the personnel function discussed earlier. 

Termination 

All union contracts contain clauses outlining the conditions under which 
an employee may be terminated, both before and after the probation period. 
Dismissal for disciplinary reasons consistent lateness, extended lunch breaks, 
absence without sufficient cause given is easier to handle than dismissal for 
inadequate work performance. Again, the detailed job description and an 
evaluation form which outlines all areas of job performance causing concern- 
inaccuracy, continuing errors, etc. are the only protection which the library 
has. 

A probationary period of six months is usually long enough in which to 
judge an employee's performance: it is far better to release an unsatisfactory 
or borderline employee prior to that period than to assume that an extension 
of the probationary period will result in improvement. Even though the 
evaluation procedures are well organized and effective, documenting the 
reasons for an employee dismissal after the probationary period are time 



725 MARGARET BECKMAN 

consuming, and such a termination can create an unpleasant environment in a 
particular department or throughout the entire library. 

Library-Initiated Transfers 

Budgetary cutbacks caused by severe inflation are forcing many 
Canadian libraries to reduce positions. In most libraries this is done by 
attrition, so that positions terminated for natural causes are not filled and the 
necessary positions can be cut. This makes it crucial that transfers to meet 
service needs within the library are possible under the contract. Otherwise, the 
entire catalog support staff might be eliminated and the library would not 
have the ability to transfer personnel from other departments to equalize the 
total library staffing. 

Job Classification 

It is essential that a library have clearly defined job classifications and 
descriptions prior to their becoming a matter for union negotiation. It is much 
simpler if such schedules and descriptions remain a prerogative of library 
management. Most union contracts state that a union representative has the 
right to review such descriptions and to make suggestions. Any stronger union 
right in this matter e.g., each position negotiated and described in the 
contract will greatly diminish library flexibility. This would be particularly 
serious if new technology or changing use patterns demanded different library 
responses, and new or changed job classifications and descriptions had to be 
arbitrated on an individual basis. 

Technological Advances 

The problem of technological advances should be discussed in some 
detail for, except in a few of the smaller colleges or universities, automation 
of library processes, multi-media services, and mechanized information 
retrieval are all considered normal aspects of library service. As previously 
mentioned, flexibility is required within the library management system so 
that innovative services can be introduced, certain jobs can be virtually 
eliminated, and complete operations changed. Most union contracts allow for 
such changes, but often within very time-consuming constraints. Clauses 
within a contract stating that no employee be demoted or terminated because 
of automation, that such changes be discussed in advance with the union, and 
that a retraining program be the responsibility of the library are quite 
common. 

There is at least one instance in Canada of a much more serious 
situation resulting from an unfortunate union contract, which states, to all 



ACADEMIC LIBRARIES 129 

extents and purposes, that automation may not be introduced into the library 
since job content may not be changed as a result of mechanization. This 
library is further hampered in that it may not join a cooperative regional 
processing system and receive the benefits of automation in that manner, 
because "contracting out" is also forbidden by explicitly expressed terms of 
the contract. 

Work Schedules 

For the most part, work schedules to meet service requirements need 
not be adversely affected by union contracts, if such schedules are defined as 
a normal part of the job content, and are so identified in the agreement. 

Salaries and Benefits 

The overall effect of unions is probably a rise in wages, and therefore an 
increase in that part of the library budget which goes to salaries as opposed to 
books. Another common result very apparent at the University of Guelph is 
the decrease in the amount of money available for merit or selective increases. 
With the union negotiating for large, across-the-board, basic increases, the 
university cannot afford additional allocations for the merit category. 

In July 1974, the Guelph basic increase was 11 percent, with 2 
percent made available for merit increases. This amount was so small that it 
was difficult to award it in any way that would be meaningful. This does not 
necessarily discourage the superior employee from continuing an excellent 
performance, but the lack of incentive does lead to a more standardized work 
environment. 

SPECIFIC IMPLICATIONS: PROFESSIONAL STAFF 

The implications of collective bargaining for professional librarians are 
much more complicated, both in the United States and Canada. Moreover, the 
Canadian environment is somewhat different in that Canadian librarians have 
not been, at least up to now, enthusiastic supporters of the concept of faculty 
status. The statement of the Canadian Association of College and University 
Libraries, for instance, makes a clear distinction between academic status and 
faculty status. Canadian academic librarians ask for the same basic recognition 
as do American librarians, but do so on the basis that their work is academic, 
not linking themselves to teaching as the requirement for faculty status, and 
not asking for collegial governance, rank, tenure, or other privileges tradi- 
tionally associated with teaching faculty. 

Whatever the terminology, the results have been quite similar. It would 



1 30 MAR CARET BECKMAN 

appear that approximately the same percentage of American universities as 
Canadian 10 percent in June 1974 already have agreements with faculty 
members and librarians. 

The pattern at such universities so far has been collective bargaining for 
both faculty and librarians through the local faculty association. At Wayne 
State University the bargaining unit includes, in addition to teaching faculty, 
all "academic staff employees" 6 such as academic advisors, librarians, etc. It 
excludes all faculty and academic staff who have supervisory responsibility, so 
that in a smaller academic library, at least, only a small proportion of the 
library professional staff would be eligible for membership. This depends, of 
course, on the organizational structure of the library, but in the University of 
Guelph Library, approximately 60 percent of the professional staff engage in 
some supervisory or management duties. 

In spite of the fact that librarians were members of the faculty asso- 
ciation and therefore members of the Canadian Association of University 
Teachers (CAUT), on two Canadian campuses in 1973-74 the university 
administration refused to recognize a community of interest between faculty 
and librarians, and would not accept the librarians within the faculty bar- 
gaining unit. Librarians have been recognized as a separate bargaining unit 
within CAUT on both of these campuses, but their contract reflects the 
"second-class citizen" rank which the university obviously applies to them. 

This situation also obtains in the United States. "The University of 
Delaware, Saginaw Valley, Youngstown State and Ashland have also excluded 
librarians by agreement." 7 The majority of American universities and four- 
year colleges covered by collective bargaining agreements are in the various 
statewide higher education systems which bargain on a system basis. It is 
anticipated that this pattern will be followed in Canada, as provincial govern- 
ments tighten their control over once-autonomous universities. 

Before discussing the actual implications of collective bargaining it might 
be useful to analyze the supposed advantages and disadvantages for academic 
communities. Factors which have particular significance in the library context 
have been selected from an Academic Collective Bargaining Information 
Service statement, 8 and are discussed below. 

Advantages 

1. Legal force collective bargaining contracts are enforced by law, and 
their provisions "cannot be ignored or changed informally or uni- 
laterally." 9 

2. Communication better communication may result between faculty or 
academic employees and administrations because a continuous dialog 
and sharing of information is guaranteed under the terms of the labor 
laws. 



ACADEMIC LIBRARIES 131 

3. Understanding of the institution the collective bargaining process often 
allows the faculty and academic staff to gain a better understanding of 
the institution and its administrative processes and its policy and finan- 
cial restrictions. 

4. Definition of policy collective bargaining supports a clear statement of 
administrative policy and procedure, minimizing misunderstanding. 

5. Guarantee of employee rights abuse of administrative power is reduced 
because the written contract guarantees employee rights, and the arbi- 
tration of a third party if a dispute should arise. 

6. Compensation there is little doubt that collective bargaining has 
increased the salary levels for employees at unionized universities. 

7. Minorities this is an important concern in libraries; it is believed that 
collective bargaining helps women and minority groups through equal 
pay schedules and standardized performance evaluation, recruitment, 
evaluation and promotion policies. 

Disadvantages 

1. Costs collective bargaining increases administrative costs (both within 
the university and within the library, or other academic unit), because 
of the necessity of assigning more specialized staff to personnel and 
senior negotiating matters. 

2. Inflexibility as mentioned earlier, institutional and unit (i.e., library) 
flexibility and decision-making capabilities are diminished. 

3. Individual freedom freedom of action for the individual is also 
diminished. 

4. Adversary relationship "Collective bargaining is an adversary approach 
to decision making." 1 } This can result in divisiveness within the library 
or the college, and educational or library policies may be negotiated, 
rather than determined through deliberations based on the recognized 
needs of the student within the educational process. 

5. Standardization and innovation opportunity and incentive for out- 
standing or innovative performance are lost in the standardized eval- 
uation and promotion procedures, and in rigid work rules. 

With this overview of the purported advantages and disadvantages of 
collective bargaining, the specific implications for academic libraries and 
librarians can now be analyzed. As suggested by John Weatherford in a recent 
issue of Library Journal, the involvement of librarians in faculty unions is so 
recent and still represents such relatively small numbers that it is difficult to 
define an established response. 1 1 Although the Association of College and 
Research Libraries (ACRL) statement on faculty status 1 2 is quite positive, the 



132 MARGARET BECKMAN 

study conducted by Weatherford indicates that continuing analysis is needed, 
as well as a more concise definition of the terminology employed. It is 
apparent that a collective bargaining process for librarians, whether within a 
faculty union or not, will be using the ACRL statements as guidelines, and 
implications will inevitably relate to these concerns. 

The nine rights and privileges outlined in the statement jointly spon- 
sored by ACRL and the American Library Association have varying impli- 
cations which fall primarily into two categories: (1) library management from 
a library manager's point of view, the suggestion that libraries should adopt an 
academic form of governance has the most serious implications; and (2) 
library governance "college and university libraries should adopt an academic 
form of governance. The librarians should form as a library faculty whose role 
and authority is similar to that of the faculties of a college, or the faculty of 
a school or a department." 1 3 

Writing in the June 1974 issue of Library Journal, Adeline Tallau and 
Benjamin Beede support this statement, suggesting that a "library director 
must think of himself or herself as an academic dean," who does not "issue 
orders but stands as a symbol of their collegial responsibility." 1 * They suggest 
that with the collegial form of governance, library administrative organizations 
can cease to be bureaucratic, and library "faculty" can be involved in 
planning, decision-making, defining objectives, and problem-solving. 

This view is contentious for two reasons. First, chief librarians or library 
directors, many of whom have the rank of dean, have a different account- 
ability than does a dean. A library director is accountable to the university 
president for the operation of the library, so that it meets objectives usually 
set forth by the senate, with a budget approved by the vice-president, 
administration or the board of governors. Within that framework the library 
director balances a variety of complex functions and determines priorities for 
the allocation of diminishing resources covering many fields. 

Colleges have one primary function: teaching. Research, usually funded 
separately and on an individual basis, is not the responsibility of the college 
dean. Within the teaching activity, each faculty member is independent as to 
methodology, timing, and even scheduling, to a certain extent. Any con- 
straints placed on the teaching faculty are university-wide and are accepted 
university policy. The dean may be accountable for such coordination of 
teaching programs as is necessary, but he is not accountable for the per- 
formance of the teacher within the classroom. 

Most, if not all, library directors are held accountable for the per- 
formance of all library activities. If a circulation clerk is rude to a faculty 
member, if there is a "mistake" in classification, or if a requested book takes 
six months to reach the library shelves, it is the library director who is 
accountable. The performance of professional librarians can be measured in a 



A CADEMIC LIBRARIES 133 

way that teaching cannot, and different operating systems can provide more 
effective service. Library directors can have more impact on a library than does a 
dean on a college, and more, or at least a different, accountability is involved. 

As long as this form of accountability exists, the library director should 
have final decision-making authority in such areas as choice of department 
heads, establishment of short-term goals, and priorities for allocation of 
resources. Staff members voting for the head of the catalog department on a 
rotating basis would not necessarily result in the provision of effective access 
to the collections of a resource library. 

The second reason for my reluctance to accept the collegial concept of 
library governance is that it is not the only alternative to bureaucratic 
administration. As stated above, a consultative or participatory library manage- 
ment system can achieve all the benefits of the collegial system, and yet still 
leave the library director with a role for which he or she can accept account- 
ability. 

At the University of Guelph Library, decision-making is done, within the 
framework of established objectives, at the department and division head 
meetings. Long-range planning considerations and university policy or budg- 
etary limitations are provided by the four senior library staff members, and 
decisions are made in a democratic fashion (see Appendix). To communicate 
these decisions to all library staff, committee meeting minutes are distributed, 
and each department or division head is responsible for maintaining regularly 
scheduled meetings with his or her entire department. Professional and sup- 
port staff can meet either separately or together, or in functional units. 
Department size may often be a determining factor in the structuring of such 
meetings. 

Efficient operating and management information systems, with proce- 
dural manuals and standards of productivity and measurement for all library 
processes and services are also part of an effective library management system. 
Staff can then be allocated on an equitable basis related to established 
priorities and measured needs. Automated library sytems are most suitable for 
providing the kind of data necessary for such decisions; circulation, reserve, 
in-library use, reference, orientation, bibliographic, acquisition, cataloging and 
processing statistics should all be part of the library management system. 

The librarians working in this type of library organization can assume a 
much greater degree of independence, since objectives, policies and procedures 
are all stated and understood. Working within an area of subject expertise, a 
librarian can do original cataloging, in-depth reference, or collection selection 
and evaluation, reporting officially in one division but working in several. As 
long as production or service schedules are met, librarians can be free to do 
research, participate in library or university committee work, or be involved in 
provincial or national library or academic affairs. 



134 MARGARET BECKMAN 

Librarian Benefits 

For purposes of this paper I am categorizing the paragraphs in the 
ACRL statements relating to compensation, tenure, promotion, leaves and 
research funds as benefits which librarians are seeking. The statement on 
promotion is typical: "Promotion. Librarians should be promoted through 
ranks and steps on the basis of their academic proficiency and professional 
effectiveness. A peer review system similar to that used by other faculty is the 
primary basis of judgement in the promotion process for academic librarians. 
The librarians' promotion ladder should have the same titles, ranks, and steps 
as that of other faculty." 1 5 

The implications of this statement are many. Using the criteria for 
promotion which are contained in the ACRL "Model Statement of Criteria 
and Procedures for Appointment, Promotion in Academic Rank and Tenure 
for College and University Librarians," the following qualities would be judged 
in consideration for promotion: (1) professional and scholarly qualifications; 
(2) ability to perform at a high professional level; (3) contributions to the 
educational function of the university; (4) contributions to the advancement 
of the profession; and (5) activities related to inquiry and research. 1 6 Similar 
criteria are suggested for tenure, and peer evaluation is recommended. Rather 
than postulating the results of application of such standards, several questions 
can be posed: Who but the catalog department head or immediate supervisor 
can judge the performance of a senior professional cataloger? How many 
librarians are actively involved in research and publishing, or in professional or 
university activities? How many librarians have academic qualifications similar 
to the teaching faculty member? 

If librarians are to be judged by faculty-directed criteria, they are going 
to have to adopt teaching faculty attitudes and commitments. They must also 
be prepared to accept unequal compensation, leave and tenure conditions, 
because the very nature of librarianship, as compared to teaching, does not 
provide identical opportunities or requirements. The statement of Paul Buck 
in describing the personnel program at Harvard in 1958 seems appropriate: 
"incorporation of Harvard's librarians into the 'officers of instruction' would be 
to impose upon them a personnel program that was not designed for 
librarians." 1 7 

Although not initiated by collective bargaining, in 1973 Harvard 
announced a new system for ranking and appointment of librarians. Librarians 
are to be assigned formal ranks with matching salary ranges; review and 
evaluation procedures have been established, and "there are up or out deci- 
sions to be made, because promotion or non-reappointment is the alternative 
at certain stages." 18 General librarians, for instance, can continue for a certain 
number of years in that classification, but after a stated interval they must be 



ACADEMIC LIBRARIES 135 

evaluated for promotion. If the evaluation is not successful the contract will 
not be renewed. 

The new Harvard system appears desirable because all criteria for eval- 
uation and the privileges established are directly related to the work and needs 
of librarians. A collective bargaining agreement in which standards designed 
for another profession are used to evaluate librarians for salary adjustments, 
promotion or tenure would not be as appealing. 

Compensation is another of the important issues for librarians, and the 
ACRL model states that the "salary scale should be the same as that for 
other academic categories with equivalent education and experience." 1 9 Dif- 
fering educational qualifications may be the justification for the discrepancy 
between the librarian and faculty scales displayed in the 1972-74 Wayne State 
University Contract (see Table 1). 

An interesting and very different situation has developed in Ontario, and 
this may have a parallel in some American states. At the University of Guelph 
librarians belong to the faculty association which, although not designated as a 
bargaining unit, does negotiate with the administration for salaries. Librarians 
have always had comparable if not exactly equivalent salaries with the 
teaching faculty. 

Within the past three years several Ontario universities have used a 
management consultant firm which has developed a system for evaluating all 
jobs within an institution and establishing a salary policy which is equitable 
for the campus. The University of Guelph hired this firm for such an 
evaluation, and all positions on campus except teaching or research faculty 
were evaluated. The faculty association protested the inclusion of the 
librarians within the project, but the protest was overruled. 

The initial reaction of concern about inclusion of librarians was caused 
by the heavy weighting toward management criteria in the evaluation system 
which was to be used. Typical factors were number of people supervised, size 
of budget involved, and complexity of the decision-making in the job. It was 
felt that librarians had a stronger community of interest with the faculty, that 
their concerns were primarily educational and academic, and that any eval- 
uation which compared librarians to accountants, engineers or the Computer 
Institute staff would not have favorable results for the librarians' compen- 
sation. 

Without going into the details of a process that took almost two years 
to complete, the librarians achieved, as a result of the evaluation, classifi- 
cations and salary grades that placed them well above equivalent faculty 
members. In some instances the salary increases for librarians which were 
needed to match the assigned grades were so high (up to 40 percent) that 
they could not be given in one year. Since this same result occurred on several 
other Ontario campuses, it can be suggested that a study of the academic 



136 MARGARET BECKMAN 





Mm. 


Max. 




Mm. 


Max. 


Librarian I 


$ 9,248 


$12,049 


Instructor 


$ 8,400 


$12,000 


Librarian II 


11,249 


14,493 


Assistant Professor 


9,800 


17,900 


Librarian HI 


12,979 


16,895 


Associate Professor 


12,500 


22,800 


Librarian IV 


15,251 


20,086 


Professor 


15,200 


30,400 



Table 1. Salary Schedules-Wayne State University, 1973-74 

Source: Wayne State University. Agreement Between Wayne State University and the Wayne 
State University Chapter of the American Association of University Professors, July 1, 1972 
to June 30, 1974, pp. 22, 24. 



administrative salary and classification schedules in American universities 
might prove valuable. 

It should also be noted that such an evaluation system is based on job 
content, not on personal ranking, and that this also conflicts with the 
established faculty procedures. The evaluation of job content is a premise 
basic to management theory, and is in direct opposition to the type of 
ranking recently accepted at Duke University Library: "Basic to the philosophy 
of the new structure is the idea that rank adheres to the individual rather than 
the position." 20 

There are, therefore, important issues which have to be resolved issues 
which may have different solutions dependent on the view of the library 
administrator or the library staff. If collective bargaining is to be the accepted 
pattern for the establishment of personnel policies in the university libraries of 
the United States and Canada, those libraries not yet involved should consider 
the immediate development and implementation of policies which would be 
more acceptable in the present environment of academic libraries. 

Since the recent study of university library directors determined that the 
second most common cause for their resignations was one of conflict between 
the director and the professional staff, 21 it might be of benefit if a task force 
representing several levels of the library staff studied the problem of the 
librarians' status and role in the academic community. Such an approach has 
been used at both Harvard 22 and the University of Toronto, 23 and certainly 
reduces the adversary condition referred to earlier. 

Whatever the method of approach, several steps can be taken: 

1. The ACRL standards for faculty status and the model statement of 
criteria and procedures for appointment and promotion should be re- 
evaluated as a basis for collective bargaining for academic librarians. 



ACADEMIC LIBRARIES 137 

Each article should be defined in relation to the objectives of librarian- 
ship, with consideration for the differing needs of librarians and the 
particular circumstances on an individual campus. 

2. Using this revised ACRL statement, a personnel policy for librarians, 
encompassing the management system, promotion, tenure, evaluation, 
compensation, leaves of absence and responsibility should be established 
within the library and approved by the university administration. 

^. The library should also develop a classification schedule with detailed 
job descriptions, and define criteria for movement through the schedule 
which are realistically related to the library functions and librarian 
qualifications. 

4. The need for study leaves as a vehicle for continuing education for 
librarians should be stressed in the personnel policy. This is separate 
from the issue of sabbaticals, which are rarely given for formal study in 
the teaching faculty context. 

5. The library personnel office, or the task force suggested above, should 
work closely with the university personnel department so that the 
university administration is kept informed of the concerns of the 
librarians and of other directions being taken. 

6. In universities or colleges where librarians are members of the faculty 
association, the association should also be made aware of policies being 
developed by the librarians. 

7. If the faculty association, or some other group which includes librarians, 
is declared a bargaining unit, some representative of the library should 
sit on the committee which draws up the contract. Care should be taken 
to ensure the inclusion of a general statement of the educational and 
service objectives of the university. 

STRIKES AND ACADEMIC LIBRARIES 

Having presented this very brief overview of the implications of col- 
lective bargaining for academic libraries, I would like to conclude with a brief 
discussion of the problem presented by a strike on a university campus and 
the implications which this might have for the library. Since several such 
strikes have occurred in academic libraries in Canada, all involving unions of 
clerical or support staff only, I will limit this discussion to a strike of that 
nature. 

Most strikes are based on economic factors, with the union seeking 
better working conditions, wages or fringe benefits. The union attempts to 
prevent the library from carrying out its normal functions, and brings pressure 
to bear by mobilizing support from members of the community not directly 
involved (e.g., the students). 



138 MARGARET BECKMAN 

It is usually a university decision whether services will be continued in 
all areas affected by the strike. Teaching and research activities usually 
continue fairly normally, with the library an area in which action has varied. 
Sir George Williams University in Montreal closed the library for five weeks 
during a strike (their second) in 1973. They also submitted to union demands. 
The University of Guelph, the University of Saskatchewan, and several others 
have elected to stay open, and in most instances have not acceded to union 
requests which were considered impossible to meet. 

Contingency planning for a strike should begin as soon as there is any 
indication that negotiations are not proceeding smoothly. If the university 
does not have a statement of broad guidelines to be followed in the event of a 
strike, the library should prepare one. This should be expanded into a full 
manual if a strike occurs. 

If an academic library is to remain open during a strike, depending 
entirely on professional and supervisory staff, priorities must be established 
concerning which services will be continued. It will undoubtedly be necessary 
to concentrate on services directly related to student use of the library: 
circulation and reserve systems, stack maintenance, reference service; such 
activities as cataloging, serial check-in and binding will be abandoned. 

Steps such as reducing library hours and closing most of the washrooms 
can be of great assistance. During the strike at the University of Guelph in 
1969 the most serious problem was the maintenance of the many washrooms 
in McLaughlin Library. 

It must also be realized that no one can be asked to do such main- 
tenance work if it is not normally his or her responsibility. At Guelph this 
was interpreted to mean that librarians shouldn't type catalog cards or paste 
book labels, but that book shelving and washroom cleaning were jobs 
necessary for our own welfare. A few librarians refused to participate in these 
activities and this attitude was accepted and understood. 

Other actions which can or should be taken by a library about to be 
involved in a strike are: arrange for increased library security; post reduced 
hours and services; notify faculty of specific services which may be reduced 
(i.e., no new books on reserve, no interlibrary loan, no book requests pro- 
cessed, etc.); notify other libraries in your network of a strike possibility, and 
the discontinuation of interlibrary loan activities; arrange for library parcel 
delivery away from the campus (personal mail is usually taken care of by the 
university); and plan schedules and priorities for return to normal library 
operations after the strike. 

A strike can have a very demoralizing and divisive effect on a library 
staff, since relationships between the unionized and the professional and 
supervisory staff can deteriorate. A meeting with the nonstriking staff prior to 
the return of the striking staff, in which advice on attitudes to be assumed 
can be given, is useful. 



ACADEMIC LIBRARIES 139 

At the conclusion of the strike at the University of Guelph it was agreed 
by the librarians that no mention was to be made of the strike or its 
settlement, and work was continued, with former strikers and nonstrikers 
coping with a four-week backlog of unprocessed books and journals and with 
chaotic book stacks, as if this was the normal routine. All staff pitched in and 
helped with the backlogs with more enthusiasm than many of us had had for 
the washroom detail. We arranged a staff party (using library funds) and 
almost everyone came. Within a few weeks all bitterness was gone, and we 
could even joke together about the not quite normal activities that many of 
us both strikers and those who had remained on duty had performed during 
the strike. 

The move toward collective bargaining for both support and professional 
staff in an academic library suggests the importance of improved management 
systems, with particular emphasis on consultative decision-making and the 
personnel function. It should be possible to design a library system in which 
librarians have the opportunity to perform independently within their area of 
academic expertise, and which encourages the development of procedures for 
evaluation and criteria for promotion more compatible with library goals and 
with librarianship. The unique position of the library one which has mana- 
gerial-oriented production goals as well as academic teaching and research 
objectives must be recognized. Since a union contract can reduce the 
flexibility of a library and curtail the provision of effective library service, it is 
important that libraries participate in the development of the contract and be 
kept informed throughout any negotiation period. 

Although the matrix of collective bargaining and academic libraries does 
not yet have exact or final definition, the outline is already apparent. By 
taking cognizance of the needs on which the collective bargaining movement 
focuses, academic libraries still have the opportunity to move toward 
improved management systems, anticipating some of the demands which a 
union might make and reducing the deleterious effects which can result. 

The status of the library professional staff will probably be the most 
important issue. The resolution of this problem may well decide the direction 
and dimension of academic library service in the future. 

APPENDIX 

Following are some examples of library organization, classification and 
job descriptions. 



140 



MARGARET BECKMAN 



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ACADEMIC LIBRARIES 141 

LIBRARY SUPPORT STAFF (SEPTEMBER 1973) 

Grade Job Category 

1 Library Assistant 1 

2 Library Assistant 2 

3 Library Assistant 3 
Senior Library Assistant 
Coordinator 

4 Library Assistant 4 
Senior Coordinator 1 

5 Library Technical Assistant 
Senior Coordinator 2 
Supervisor 1 

6 Library Associate 
Senior Supervisor 1 

7 Senior Library Associate 
Supervisor 2 

8 Senior Supervisor 2 

Grade 1 

This is the entry level for library assistants in positions requiring simple clerical 
skills only. 

Class Description 

Under direct supervision, performs routine library tasks of limited 
complexity, following prescribed procedures and with a minimum requirement 
for independent judgment. 
Qualifications for Eligibility 

1. Secondary school graduation (grade 12) or 

2. Relevant commercial or technical training or experience may be substi- 
tuted, provided a minimum of grade 10 (two years of secondary school) 
completed, or 

3. Equivalent basic qualifications accepted by the institution. 
Typical jobs (Library Assistant 1) 

Library assistant, file maintenance; library assistant, book processing; 
library assistant, photocopy; and library assistant, stack maintenance. 



142 MARGARET BECKMAN 

Grade 6 

Staff in this classification apply library techniques and/or university 
education (bachelor's degree) at a general senior level of responsibility and 
complexity. This is the entry level for library associates. 

Class Description 

Under general supervision, is accountable for the performance and/or super- 
vision of complex library tasks requiring extensive in-service training, uni- 
versity education and/or experience in library techniques. Consults supervisor 
on difficult problems or new policies only. Generally uses independent judg- 
ment and initiative in performing duties within assigned objectives. 
Library associate uses subject and/or language proficiency at bachelor's degree 
level in performing, under the direction of a department or division head or 
other professional librarian, complex library tasks such as bibliographic 
searching, Library of Congress cataloging, and reference assistance to library 
users. 

Senior supervisor 1 Under the general direction of the department head, 
supervises and trains library assistants and coordinators in grades up to 4. This 
job may be done by a supervisor 1 at grade 5 level, but, by virtue of training or 
experience, the senior supervisor 1 exercises a greater degree of independence 
and judgment than at grade 5 level. 
Qualifications for Eligibility 

1. Bachelor's degree 

2. Diploma in library technology, representing two years of post-secondary 
training, plus at least one year of library experience; one year must be 
in the same library 

3. Two years post-secondary education and two years of library experience, 
one year to be in the same library 

4. Secondary school graduation (grade 12) and three years of library 
experience, of which at least one year must be in the same library or 

5. Equivalent experience and education, provided at least one year of 
experience is in the same library. 

Note: Not every one of these alternatives is acceptable for every position in 

the grade. Library associates' and senior supervisors' positions require different 

qualifications. 

Typical jobs 

Library associate: library associate, acquisitions; library associate, bibliographic 

search; library associate, L.C. cataloging; library associate, documents coding; 

library associate, humanities division (social science division, science division, 

information and orientation division, special collections division, O.V.C. 

branch). 

Senior supervisor 1: senior supervisor, data input; senior supervisor, coding; 

senior supervisor, current subscriptions; senior supervisor back issues. 



ACADEMIC LIBRARIES 143 

LIBRARY STAFF MANUAL, SEPTEMBER 1974 

Classification: Librarian III 

Title: Senior librarian; or, Assistant Department/Division Head 
Recommended Minimum Qualifications 

Master's degree in a subject field in addition to master's degree in library 
science plus demonstrated professional competence and expertise. 
Summary of Responsibility 

Independent performance of duties requiring extensive theoretical 
knowledge of librarianship, practical experience in application of this knowl- 
edge, extensive subject knowledge in a specific discipline or broad knowledge 
of the function and operation of a library in an academic institution; and 
either organizational and administrative skill to initiate, direct and expand the 
structure and operation of a discrete section of an academic library, or skill 
and experience to perform difficult assignments without established routines 
and guidelines; supervision of general professional staff and nonprofessional 
staff assisting in these assignments. 

The assistant head of a department shares in the administration of the 
department, acts as deputy head when necessary, and may have entire respon- 
sibility for certain functions such as training and supervision. 
Characteristic Duties 

1. Undertakes extensive and difficult bibliographic tasks (including dif- 
ficult original cataloging and classification) 

2. Undertakes major responsibility to operate or coordinate bibliographic 
projects at institutional or wider levels within area of subject specialty 

3. Applies bibliographic, library or information science techniques and 
theory to new or special fields of knowledge or forms of material 

4. Initiates, recommends and conducts selection and acquisition of special 
materials 

5. Undertakes and is responsible for resource service to library users at 
many levels 

6. Offers instruction in library, bibliographic information or subject areas, 
either formally (classroom) or informally, to both library staff and 
library users 

7. Participates in research activities of a bibliographic, information science 
or scholarly nature, usually resulting in publication. 

Assistant Head of Department /Division 

1. Is responsible for preparation of departmental procedure manuals, in- 
service training of professional and support staff, maintenance of 
standards of performance 



144 MARGARET BECKMAN 

2. Represents the department head on committees or deputizes for him 

when necessary; acts as department head in his absence. 
Authority, Responsibility and Contacts 

In a specialist position, a senior librarian is free from responsibility for 
function of a unit of staff (other than staff directly assisting his tasks of 
content, bibliographic detail, or clerical support), but may have responsibility 
for effective personal service to a distinct body of users, and for effective 
relationships with persons and groups affected by the objectives of his own 
tasks and duties. He receives instruction as to general policy and objectives, 
with independence of decision on methods. He frequently represents the 
library in functions and meetings in the area in which he is a specialist. 

The assistant head works under the general supervision of the depart- 
ment head but has considerable freedom of action in the areas of respon- 
sibility which have been delegated to him. He must also be able to speak and 
act for the department head in his absence, on any matter concerning the 
department. 
Experience and Advancement 

Advancement to and within this grade is dependent solely on quali- 
fications and experience, on difficulty of duties, and on the independent 
professional initiative required for effective performance. Five years of pro- 
fessional experience at Librarian II would normally be considered the minimum 
necessary for assignment to the Librarian III classification. 

The senior librarian is responsible for maintaining personal professional 
development and competence including appropriate knowledge of library and 
information science, methodology, and of subject area. 

Promotion to assistant department head is entirely dependent on the 
needs of the library system. 



REFERENCES 

1. Houser, L., ed. "Labor Relations Information Exchange," IPLO 
Quarterly, 16:37-38, July 1974. 

2. "Collective Bargaining," Spec Flyer, 8:1, June 1974. 

3. Gotwals, Joan I. "Review of Collective Bargaining Activities in 
Academic and Research Libraries," ARL Management Supplement, 1:3, June 
1973. 

4. Booz, Allen and Hamilton, Inc. Organization and Staffing of the 
Libraries of Columbia University. Westport, Conn., Redgrave Information 
Resources Corp., 1973. 

5. Redmond, Donald A. Annual Report on the Libraries for the Year 
Ended April 30, 1974. Kingston, Ontario, Queen's University, 1974, unpaged. 



ACADEMIC LIBRARIES 145 



6. Wayne State University. "Agreement Between Wayne State 
University and the Wayne State University Chapter of the American Asso- 
ciation of University Professors, July 1, 1972-June 30, 1974," p. 3. 

7. Weatherford, John. "Librarians in Faculty Unions," Library Journal, 
99:2443, Oct. 1974. 

8. Academic Collective Bargaining Information Service. Some Sug- 
gested Advantages and Disadvantages of Collective Bargaining; A Short 
Review. Washington, D.C., 1973. 

9. Ibid., p. 1. 

10. Ibid., p. 4. 

1 1. Weatherford, op. cit., p. 2444. 

12. Herbison, Michael, et al. "Joint Statement on Faculty Status of 
College and University Librarians," College and Research Libraries News, 
33:209-10, Sept. 1972. 

13. Ibid., p. 211. 

14. Tallau, Adeline, and Beede, Benjamin R. "Faculty Status and 
Library Governance," Library Journal, 99:1522, June 1, 1974. 

15. Herbison, op. cit., p. 211. 

16. Committee on Academic Status. "Model Statement of Criteria and 
Procedures for Appointment, Promotion in Academic Rank and Tenure for 
College and University Librarians," College and Research Libraries News, 
34:193, Sept. 1973. 

17. Buck, Paul H. "A New Personnel Program for Harvard Librarians," 
Harvard Library Bulletin, 12:292, March 1958. 

18. Williams, Edwin E. "Harvard's Study Committee on Professional 
Library Personnel," Harvard Library Bulletin, 21:277, July 1973. 

19. Herbison, op. cit., p. 211. 

20. Dyson, Allan J., ed. "Ranking Structure Instituted in Duke 
Libraries," College and Research Libraries News, 35:216, Oct. 1974. 

21. McAnally, Arthur M., and Downs, Robert B. "The Changing Role of 
Directors of University Libraries," College & Research Libraries, 34: 1 10, March 
1973. 

22. .Williams, op. cit., p. 277. 

23. University of Toronto. "President's Working Group on the Library," 
Report, June 1974. 



MARGARET A. CHAPLAN 

Librarian 
Institute of Labor and Industrial Relations 

University of Illinois 
Urbana-Champaign, Illinois 



Collective Bargaining in Libraries : 
A Bibliography 

This bibliography was compiled for those who wish to pursue further 
the topics discussed in the papers included in this volume. From a great 
amount of material on collective bargaining by public employees and about 
labor relations in libraries, I have selected those items I thought important 
contributions to an understanding of the subject. Because circumstances are 
changing rapidly, recent works are emphasized. Some items were included not 
because they are the latest or the best, but because they represent a subject or 
viewpoint that needs to be recognized. In order to take advantage of the 
whole of our collective bargaining experience, items relating to both the 
public and private sectors are included; the basic principles are the same, and 
so are some of the problems. In addition, there are references to some topics 
that were not covered in the Allerton Park Institute papers. The guiding 
question in both the selection of topics and of individual items was: What 
would someone with little prior knowledge of collective bargaining and the 
activities of labor unions need to know, or want to know, if faced with a 
bargaining situation? 

ORGANIZING 

Basic to an understanding of the subject of collective bargaining in 
libraries is some background in the nature of labor unions their structure and 
administration, their programs and activities, and their relationship to other 
organized groups and to the communities in which they exist. Perhaps the 
best general introduction to labor and labor unions is the volume by Bok and 
Dunlop (2). The books by Barbash (1) and Estey (3) concentrate on the 
structure and administration of unions and their relationships with their 

146 



BIBLIOGRAPHY 147 

members. How union members feel about their union is described in the 
Seidman, et al., (4) study. Specifically for the public sector, these same types 
of general studies of unions have been done by Spero and Capozzola (5), 
Stieber (6), and Wellington and Winter (7). 

1. Barbash, Jack. American Unions: Structure, Government, and Politics. 
New York, Random House, 1967. 183p. 

2. Bok, Derek C., and Dunlop, John T. Labor and the American Com- 
munity. New York, Simon and Schuster, 1970. 542p. 

3. Estey, Marten. The Unions: Structure, Development, and Management. 
New York, Harcourt, Brace and World, 1967. 125p. 

4. Seidman, Joel, et al. The Worker Views His Union. Chicago, University 
of Chicago Press, 1958. 299p. 

5. Spero, Sterling D., and Capozzola, John M. The Urban Community and 
Its Unionized Bureaucracies. New York, Dunellen, 1973. 361p. 

6. Stieber, Jack. Public Employee Unionism. Washington, D.C., Brookings 
Institution, 1973. 256p. 

7. Wellington, Harry H., and Winter, Ralph K. The Unions and the Cities. 
Washington, D.C., Brookings Institution, 1971. 226p. 

The History of Organizing in Libraries 

Union organizing in libraries is not a new phenomenon. The 1930s, 
which was a great period of labor union growth in general, also saw the 
formation of unions in libraries, with the first, according to McDonald (23), in 
1934. Some of the same arguments used today in discussing the advantages 
and disadvantages of joining unions were brought up at that time also (see 
Falkoff (12) and Hale (18)). A summary of the organizing activity up to the 
end of the 1930s is included in Berelson's article (8), although he is more 
concerned with analyzing whether unionism and librarianship are compatible. 
Spicer (27) gives a short historical summary, and Clopine's thesis (10) pro- 
vides, among other information, a history of library unions local by local, 
including where they were located, how long they were in existence, and 
when and why they disappeared. While some librarians were joining labor 
unions, others were forming staff associations as a response to the same kind 
of problems. The question of whether to form a union or a staff association is 
discussed by Phelps (25). 

An upsurge of organizing activity in libraries has occurred since the 
formation of the University of California library local in 1965. This activity 
has been accompanied by a voluminous literature, much of which consists of 
case studies of organizing efforts at particular libraries. The more theoretical 
and analytical essays have been concerned with the status of organizing 



148 MARGARET A. CHAPLAN 

efforts, the reasons for an increase of interest in joining unions on the part of 
librarians, the pros and cons of joining unions, and assessments of whether the 
American Library Association or other professional organizations could func- 
tion as substitutes for labor unions. Boaz (9), Cottam (11), Goldstein (14), 
Golodner (15), Guyton (17), Harrelson (19), Hopkins (20), Kirkpatrick (21), 
Letson (22), Nyren (24), and Suleiman and Suleiman (28) are representative 
examples of such essays. The situation in specific types of libraries is discussed 
by Trelles (29) and Tucker (30), and organizing activities among nonprofessional 
library employees are described by Flanagan (13) and Greenberg (16). 

8. Berelson, Bernard. "Library Unionization," Library Quarterly, 
9:477-510, Oct. 1939. 

9. Boaz, Martha. "Labor Unions and Libraries," California Librarian, 
32:104-08, April-July 1971. 

10. Qopine, John J. "A History of Library Unions in the United States." 
Unpublished master's thesis, Catholic University, 1951. 

11. Cottam, Keith M. "Unionization is not Inevitable," Library Journal, 
93:4105-06, Nov. 1, 1968. 

12. Falkoff, Barbara. "Should Librarians Unionize? Part II. The Librarian 
and the Closed Shop," Library Journal, 62:590-93, Aug. 1937. 

13. Flanagan, Leo N. "A Sleeping Giant Awakens: The Unionization of 
Library Support Staffs," Wilson Library Bulletin, 48:491-99, Feb. 1974. 

14. Goldstein, Melvin S. Collective Bargaining in the Field of Librarianship . 
Brooklyn, Pratt Institute, 1968. 167p. 

15. Golodner, Jack. "The Librarian and the Union," Wilson Library Bulletin, 
42:387-90, Dec. 1967. 

16. Greenberg, Herman. Unionization of White Collar Employees: A Case 
Study of the Free Library of Philadelphia. Philadelphia, 1963. 92p. 

17. Guyton, Theodore L. "Unionization of Public Librarians: A Theoretical 
Interpretation." Unpublished Ph.D. dissertation, University of California, 
Los Angeles, 1972. 332p. 

18. Hale, Ruth. "Should Librarians Unionize? Part I: The Librarian and the 
Open Shop," Library Journal, 62:587-89, Aug. 1937. 

19. Harrelson, Larry E. "Library Unions: Introduction and History," 
Oklahoma Librarian, 22:6-8, July 1972; Part 2: "Library Unions: Some 
Issues," Oklahoma Librarian, 22:11-13+, Oct. 1972. 

20. Hopkins, Joseph S. "Unions in Libraries: A Review of the Recent Period 
of Renewed Union Activity in American Public and Academic 
Libraries," Library Journal, 94:3403-07, Oct. 1, 1969. 

21. Kirkpatrick, Oliver. "Professional Librarian as Unionist." In E. J. Josey, 
ed. What Black Librarians are Saying. Metuchen,N. J., Scarecrow Press, 
1972, pp. 192-201. 



BIBLIOGRAPHY 149 

22. Letson, C. G. "Collective Bargaining Organizations in Public Libraries of 
Nassau County, New York." Unpublished research paper, Long Island 
University, 1971. 81p. 

23. McDonald, Elizabeth. "First Librarians' Union," Wilson Library Bulletin, 
10:675-76, June 1936. 

24. Nyren, Karl E. "Libraries and Labor Unions," Library Journal, 
92:2115-21, June 1, 1967. 

25. Phelps, Orme W. "Organization of Employees with Special Reference to 
Library Personnel," Library Quarterly, 16:20-34, Jan. 1946. 

26. Smith, Eldred. "Librarians and Unions: The Berkeley Experience," 
Library Journal, 93:717-20, Feb. 15, 1968. 

27. Spicer, Erik J. Trade Unions in Libraries (the Experience in the United 
States) (Occasional Paper No. 23). Ottawa, Canadian Library Asso- 
ciation, 1959. 14p. 

28. Suleiman, Fuad K., and Suleiman, JoAnn D. "Collective Bargaining: 
Alternatives for Academic Librarians," Protean, 2:26-31, Summer 1972. 

29. Trelles, Oscar M. "Law Libraries and Unions," Law Library Journal, 
65:158-80, May 1972. 

30. Tucker, William P. "Unionization for Special Librarians," Special 
Libraries, 30:4145, Feb. 1939. 

Why Workers Join Unions 

Studies of why workers join unions fall generally into one of two 
categories: (1) studies of the motivations of employees, and (2) studies of the 
characteristics of union members, i.e., studies of the kinds of people who are 
likely to belong to unions. Theories of labor union growth attempt to account 
for membership expansion and contraction on a nationwide level. The article 
by Blum (34) is a survey of the literature on theories of union growth. In the 
first category, that of studies of motivation, Bakke (31), Seidman, et al. (47), 
and Viteles (49) are studies of workers in private industry; Christrup (36), 
Tyler (48), Imundo (40 and 41), and Biles (32) deal specifically with govern- 
ment employees; and Jones (42), Haro (39), and Bulger (35) analyze factors 
stimulating interest in unionization among librarians. A final group of motiva- 
tional studies concerns psychological studies of attitudes toward joining 
unions, represented here by Messick (44), Dubin (37), and Nagi (45). Quanti- 
tative studies of the characteristics of union members, like those by Scoville 
(46) and by Blinder (33), assess the influence of certain socio-economic 
variables of the population on union membership. Kornhauser's article (43) is 
a non-quantitative analysis of the same type. Preliminary results from a study 
of union and management actions in organizing campaigns and how they 
affect a worker's vote for or against the union in an NLRB-supervised 
representation election are reported in Getman, et al. (38). 



150 MARGARET A. CHAPLAN 

31. Bakke, E. Wight. "Why Workers Join Unions," Personnel, 22:3746, July 
1945. 

32. Biles, George E. "Allegiances of Unionized Public Employees toward 
Employer and Union," Public Personnel Management 3:165-69, March- 
April 1974. 

33. Blinder, Alan S. "Who Joins Unions" (Working Paper No. 36). Prince- 
ton, N. J., Industrial Relations Section, Princeton University, February 
1972. 25p. 

34. Blum, Albert A. "Why Unions Grow," Labor History, 9:39-72, Winter 1968. 

35. Bulger, William T. "Librarians and Collective Bargaining," Michigan 
Librarian, 38:10-12, Spring 1972. 

36. Christrup, Helen J. "Why do Government Employees Join Unions?" 
Personnel Administration, 29:49-54, Sept.-Oct. 1966. 

37. Dubin, Robert. "Attachment to Work and Union Militancy," Industrial 
Relations, 12:51-64, Feb. 1973. 

38. Getman, Julius G., et al. "The National Labor Relations Board Voting 
Study: A Preliminary Report" Journal of Legal Studies, 1:233-58, June 
1972. 

39. Haro, Robert P. "Collective Action and Professional Negotiation: 
Factors and Trends in Academic Libraries," ALA Bulletin, 63:993-96, 
July -Aug. 1969. 

40. Imundo, Louis V., Jr. "Attitudes of Non-Union White Collar Federal 
Government Employees toward Unions," Public Personnel Management, 
3:87-92, Jan.-Feb. 1974. 

41. . "Why Federal Government Employees Join Unions: A Study of 
AFGE Local 916," Public Personnel Management, 2:23-28, Jan.-Feb. 
1973. 

42. Jones, Margaret P. "Staff Organizations Roundtable Survey: Opinions on 
Collective Bargaining," ALA Bulletin, 63:803-09, June 1969. 

43. Kornhauser, Ruth. "Some Social Determinants and Consequences of 
Union Membership," Labor History, 2:30-61, Winter 1961. 

44. Messick, David M. "To Join or not to Join: An Approach to the 
Unionization Decision," Organizational Behavior and Human Per- 
formance, 10:145-56, Aug. 1973. 

45. Nagi, Mostafa H. "Social Psychological Correlates of Membership in 
Teachers' Organizations," Teachers College Record, 74:369-78, Feb. 
1973. 

46. Scoville, James G. "Influences on Unionization in the U.S. in 1966," 
Industrial Relations, 10:354-61, Oct. 1971. 

47. Seidman, Joel, et al. "Why Workers Join Unions," Annals, 274:75-84, 
March 1951. 

48. Tyler, Gus. "Why They Organize," Public Administration Review, 
32:97-101, March- April 1972. 



BIBLIOGRAPHY 151 

49. Viteles, Morris S. "Attitudes toward the Union." In Morris S. Viteles. 
Motivation and Morale in Industry. New York, W. W. Norton and Com- 
pany, 1953, pp. 333-58. 

Discussions and Histories of the Various Unions 
Trying to Organize Librarians 

A variety of unions have organized or are attempting to organize 
librarians in all kinds of libraries. There are the traditional labor unions, such 
as the American Federation of State, County, and Municipal Employees 
(AFSCME) and the American Federation of Teachers (AFT); there are profes- 
sional organizations that have taken on collective bargaining functions, such as 
the National Education Association (NEA) and the American Association of 
University Professors (AAUP); and, finally, there are independent employee 
unions and associations. Most of the librarians covered by collective bargaining 
agreements are represented by one of the above organizations. The items listed 
in this section present histories of these organizations and discussions of their 
goals and programs. Billings and Greenya (52) and Kramer (57) write about 
AFSCME. Braun (53) and the Commission on Educational Reconstruction 
(55) present opposing viewpoints on the AFT's activities, and Stinnett (64) 
chronicles the struggle between the AFT and the NEA for the support of 
teachers. Strauss (65) and Belasco (51) discuss the AAUP, and Schlachter (61 
and 62) analyzes the potential of the American Library Association for 
representing employee interests. The official positions of the AFT, NEA and 
AAUP on collective bargaining in colleges and universities are found in items 
50, 56, 60, and 63. The nature and functions of the independent unions and 
associations are discussed by Krislov (58) and Marshall (59), while Chaison and 
Rock (54) analyze the success rates of such local independent unions in 
organizing campaigns in private industry. 

50. "AFT Statement of Position; Academic Freedom and the Rights of 
Faculty." In Clarence R. Hughes, etal, eds. Collective Negotiations in 
Higher Education, a Reader. Carlinville, 111., Blackburn College Press, 
1973, pp. 218-21. 

51. Belasco, James A. "The American Association of University Professors: A 
Private Dispute Settlement Agency," Industrial and Labor Relations 
Review, 18:535-53, July 1965. 

52. Billings, Richard N., and Greenya, John. Power to the Public Worker. 
Washington, D.C., R. B. Luce, 1974. 224p. 

53. Braun, Robert J. Teachers and Power: The Story of the American 
Federation of Teachers. New York, Simon and Schuster, 1972. 287p. 



152 MARGARET A. CHAPLAN 

54. Chaison, Gary N., and Rock, William K. "Competition between Local 
Independent and National Unions," Labor Law Journal, 25:293-97, May 
1974. 

55. Commission on Educational Reconstruction. Organizing the Teaching 
Profession; The Story of the American Federation of Teachers. Glencoe, 
m., Free Press, 1955. 320p. 

56. "Faculty Participation in Strikes," AAUP Bulletin, 54:155-59, Summer 
1968. 

57. Kramer, Leo. Labor's Paradox-the American Federation of State, 
County, and Municipal Employees, AFL-CIO. New York, Wiley, 1962. 
174p. 

58. Krislov, Joseph. "The Independent Public Employee Association: Char- 
acteristics and Functions," Industrial and Labor Relations Review, 15: 
510-20, July 1962. 

59. Marshall, James F. "Public-Employee Associations Roles and Programs," 
Public Personnel Management, 3:415-24, Sept.-Oct. 1974. 

60. "NEA Statement of Position; Professional Negotiation and Grievance 
Procedures." In Clarence R. Hughes, et al., eds. Collective Negotiations in 
Higher Education. . . ,op. cit., pp. 222-23. 

61. Schlachter, Gail A. "Professional Librarians' Attitudes toward Profes- 
sional and Employee Associations as Revealed by Academic Librarians in 
Seven Midwestern States." Unpublished Ph.D. dissertation, University of 
Minnesota, 1971. 

62. . "Quasi Unions and Organizational Hegemony within the 

Library Field," Library Quarterly, 43:185-98, July 1973. 

63. "Statement on Collective Bargaining," AAUP Bulletin, 59:167, Summer 
1973. 

64. Stinnett, Timothy M. Turmoil in Teaching: A History of the Organi- 
zational Struggle for America's Teachers. New York, Macmillan, 1968. 
406p. 

65. Strauss, George. 'The AAUP as a Professional Occupational Asso- 
ciation, " Industrial Relations, 5:12840, Oct. 1965. 

THE LEGAL FRAMEWORK 

Collective bargaining in libraries comes under the jurisdiction of a 
variety of state and federal legislation, as well as court decisions and federal 
and state agency rulings. A general background to U.S. labor law can be found 
in Wellington (69). The other three works listed deal specifically with legal 
aspects of collective bargaining by public employees: those by Hanslowe (66) 
and Sullivan (68) are treatises, while Smith's (67) is a casebook. 



BIBLIOGRAPHY 153 

66. Hanslowe,Kurt L. The Emerging Law of Labor Relations in Public 
Employment (ILR Paperback No. 4). Ithaca, New York State School of 
Industrial and Labor Relations, Cornell University, 1967. 117p. 

67. Smith, Russell A., et al. Labor Relations Law in the Public Sector: Cases 
and Materials. Indianapolis, Bobbs Merrill, 1973. 1222p. 

68. Sullivan, Daniel P. Public Employee Labor Law. Cincinnati, W. H. 
Anderson Company, 1969. 312p. 

69. Wellington, Harry H. Labor and the Legal Process. New Haven, Yale 
University Press, 1968. 409p. 

Permissive Legislation 

Libraries in the private sector, and in private colleges and universities, 
are subject to federal labor legislation, i.e., to the National Labor Relations 
Act (Wagner Act), as amended by the Labor Management Relations Act 
(Taft-Hartley Act) and the Labor-Management Reporting and Disclosure Act 
(Landrum-Griffin Act). An explanation of the provisions of these acts can be 
found in item 74. The sections of the law relating to organizing campaigns are 
discussed by Schlossberg (70), and Silverberg (71) explains the procedure for 
taking a case before the NLRB. In several sessions of Congress, bills have been 
introduced that would provide for federal regulation of collective bargaining 
by public employees. The provisions and prospects for passage of one of the 
latest of these (H.R. 8677) are discussed by Stone (72) as well as how passage 
of this bill would affect organizing in libraries. Until such a bill is passed, 
however, public employees are covered by various state laws and state court 
decisions. A comparative outline of the basic provisions of state public 
employee bargaining laws can be found in item 73. 

70. Schlossberg, Stephen I. Organizing and the Law. Rev. ed. Washington, 
D.C., Bureau of National Affairs, 1971. 304p. 

71. Silverberg, Louis G. How to Take a Case before the National Labor 
Relations Board. 3d ed., rev. by Kenneth C. McGuiness. Washington, 
D.C., Bureau of National Affairs, 1967. 442p. 

72. Stone, Dennis. "The Prospect of Unionism," American Libraries, 
5:364-66, July-Aug. 1974. 

73. U.S. Department of Labor. Division of Public Employee Labor Rela- 
tions. Summary of State Policy Regulations for Public Sector Labor 
Relations: Statutes, Attorney Generals' Opinions and Selected Court 
Decisions. Washington, D.C., U.S.G.P.O., 1973. 37p. 

74. U.S. National Labor Relations Board. Office of the General Counsel. A 
Layman 's Guide to Basic Law under the National Labor Relations Act. 
Washington, D.C., U.S.G.P.O., 1971. 59p. 



154 MARGARET A. CHAPLAN 

Strikes 

The issues here are: Should public employees have the right to strike 
and, if so, should employees in essential services, however "essential" may be 
defined, also be allowed to strike? If strikes are not permitted, what other 
dispute settlement procedures should be adopted? What should be the policy 
of the unions regarding strikes by public employees? Burton and Krider (78) 
and Wellington and Winter (81) present the basic arguments for and against 
strikes. Aboud and Aboud (75) review the literature and add a bibliography 
on these issues, the provisions of the laws regarding strikes, and alternatives to 
the strike. Barrett and Lobel (76) review the legislative provisions regarding 
public employee strikes and court decisions interpreting them. Dispute settle- 
ment procedures other than the strike are analyzed by Bernstein (77) and 
Gilroy and Sinicropi (79). 

75. Aboud, Antone, and Aboud, Grace Sterrett. The Right to Strike in 
Public Employment (Key Issues Series, no. 15). Ithaca, New York State 
School of Industrial and Labor Relations, Cornell University, 1974. 40p. 

76. Barrett, Jerome T., and Lobel, Ira B. "Public Sector Strikes Legislative 
and Court Treatment," Monthly Labor Review, 97:19-22, Sept. 1974. 

77. Bernstein, Merton C. "Alternatives to the Strike in Public Labor Rela- 
tions," Harvard Law Review, 85:459-75, Dec. 1971. 

78. Burton, John F., and Krider, Charles. "The Role and Consequences of 
Strikes by Public Employees," Yale Law Journal, 79:418-40, Jan. 1970. 

79. Gilroy, Thomas P., and Sinicropi, Anthony V. Dispute Settlement in the 
Public Sector: The State-of-the-Art. Report submitted to the Division of 
Public Employee Labor Relations, U.S. Department of Labor. 
Washington, D.C., U.S.G.P.O., 1972. 141p. 

80. Muir, J. Douglas. "The Strike as a Professional Sanction: The Changing 
Attitude of the National Education Association," Labor Law Journal, 
19:615-27, Oct. 1968. 

81. Wellington, Harry H., and Winter, Ralph K., Jr. "The Limits of Col- 
lective Bargaining in Public Employment," Yale Law Journal, 
78:1107-27, June 1969. 

COLLECTIVE BARGAINING 

A widely used text for courses in collective bargaining is Chamberlain 
and Kuhn (87). Text-like books for public employee bargaining are item 83, 
Lowenberg and Moskow (95), Moskow, et al. (97), and Walsh (101). In 
addition to basic texts, a large number of studies on specific subjects have 



BIBLIOGRAPHY 155 

been done, of which only a representative sample can be mentioned here. The 
significance of the differences between the public and private sectors is 
assessed by Lewin (93). Alexander (82), Burton (86), and Weber (102) 
analyze bargaining structure and its effect on the bargaining relationship as 
well as organizational changes it may bring about. The problems of financial 
limitations and other constraints and of the treatment of managerial and 
confidential employees are discussed by Rehmus (98) and Bers (85), respec- 
tively. Political activity by public employee organizations and their influence 
on the political process is reported by Love and Sulzner (96). Several 
researchers have attempted to measure whether or not collective bargaining 
actually increases salaries, and Lipsky and Drotning (94), as well as presenting 
their own model, review the results of previous studies of the question. 
General problems of bargaining in libraries, concerns about procedures, and 
attitudes of various sectors of the profession are summarized in the ALA 
Bulletin (88), Gardiner (91), Vignone (99 and 100), and Wyatt (103). Factors 
to keep in mind when deciding whether the ALA should assume a bargaining 
role are pointed out by Auld (84). Librarians in colleges and universities have, 
for the most part, joined with faculty members for collective bargaining, and 
the situation in higher education is described in Ladd and Lipset (92), Duryea 
(89), and Tice (90). 

82. Alexander, Kenneth O. "Union Structure and Bargaining Structure," 
Labor Law Journal, 24: 164-72, March 1973. 

83. American Assembly. Public Workers and Public Unions. Sam Zagoria, ed. 
Englewood Cliffs, N.J., Prentice-Hall, 1972. 182p. 

84. Auld, Lawrence W. S. "ALA and Collective Bargaining," ALA Bulletin, 
63:96-97, Jan. 1969. 

85. Bers, Melvin K. The Status of Managerial, Supervisory, and Confidential 
Employees in Government Employment Relations. Albany, New York 
State Public Employment Relations Board, 1970. 190p. 

86. Burton, John F., Jr. "Local Government Bargaining and Management 
Structure," Industrial Relations, 11:123-39, May 1972. 

87. Chamberlain, Neil W., and Kuhn, James W. Collective Bargaining. 2d ed. 
New York, McGraw-Hill, 1965. 451p. 

88. "Collective Bargaining: Questions and Answers," ALA Bulletin, 
62:1385-90, Dec. 1968. 

89. Duryea, Edwin D., et al. Faculty Unions and Collective Bargaining. San 
Francisco, Jossey-Bass, 1973. 236p. 

90. Faculty Power: Collective Bargaining on Campus. Terence N. Tice, ed. 
Ann Arbor, Institute of Continuing Legal Education, 1972. 368p. 

91. Gardiner, George L. "Collective Bargaining: Some Questions Asked," 
ALA Bulletin, 62:973-76, Sept. 1968. 



156 MARGARET A. CHAPLAN 

92. Ladd, Everett C., and Lipset, Seymour M. Professors, Unions and Higher 
Education. Berkeley, Carnegie Commission on Higher Education, 1973. 
124p. 

93. Lewin, D. "Public Employment Relations: Confronting the Issues," 
Industrial Relations, 12:309-21, Oct. 1973. 

94. Lipsky, David B., and Drotning, John E. "The Influence of Collective 
Bargaining on Teachers' Salaries in New York State," Industrial and 
Labor Relations Review, 27: 18-35, Oct. 1973. 

95. Loewenberg, J. Joseph, and Moskow, Michael. Collective Bargaining in 
Government: Readings and Cases. Englewood Cliffs, N.J., Prentice-Hall, 
1972. 362p. 

96. Love, Thomas M., and Sulzner, George T. "Political Implications of 
Public Employee Bargaining," Industrial Relations, 11:18-33, Feb. 1972. 

97. Moskow, Michael H., et al. Collective Bargaining in Public Employment. 
New York, Random House, 1970. 336p. 

98. Rehmus, Charles M. "Constraints on Local Governments in Public 
Employee Bargaining," Michigan Law Review, 67:919-30, March 1969. 

99. Vignone, Joseph A. "An Inquiry into the Opinions and Attitudes of 
Public Librarians, Library Directors and Library Board Members Con- 
cerning Collective Bargaining Procedures for Public Library Employees in 
Pennsylvania." Unpublished Ph.D. dissertation, University of Pittsburgh, 
1970. 204p. 

100. . Collective Bargaining Procedures for Public Library Employees: 

An Inquiry into the Opinions and Attitudes of Public Librarians, Directors 
and Board Members. Metuchen, N.J., Scarecrow Press, 1971. 179p. 

101. Walsh, Robert E., ed. Sorry. . .No Government Today; Unions vs. City 
Hall. Boston, Beacon Press, 1969. 325p. 

102. Weber, Arnold R. "The Structure of Collective Bargaining: Intro- 
duction." In Arnold R. Weber, ed. The Structure of Collective Bar- 
gaining. New York, Free Press of Glencoe, 1961, pp. xv-xxxii. 

103. Wyatt, James. "A Study of Attitudes toward Library Union Organi- 
zation and Collective Bargaining Held by Academic Librarians, Library 
Directors, and Deans in Colleges and Universities of Eight Southern 
States." Unpublished Ph.D. dissertation, Florida State University, 1973. 

Unit Determination 

The composition of the bargaining unit has important implications for 
both organizing and collective bargaining, and the criteria for inclusion or 
exclusion of various classes of employees are often disputed. Related to this is 
the question, discussed by Sullivan (108), of whether the criteria used for 



BIBLIOGRAPHY 157 

private sector unit determinations are applicable to public employee unit 
determinations. A thorough review of practices, problems, and policy ques- 
tions is presented in Gilroy and Russo (104). Rock (107) deals with the 
particular problem of proliferation of units and what this means for orderly 
collective bargaining. McHugh (106) and Kahn (105) discuss the special 
problems of unit determination in colleges and universities, and Kahn parti- 
cularly examines the NLRB's policy on inclusion of non-teaching academic 
staff in units with teaching faculty. 

104. Gilroy, Thomas P., and Russo, Anthony C. Bargaining Unit Issues: 
Problems, Criteria, Tactics (Public Employee Relations Library, no. 43). 
Chicago, International Personnel Management Association, 1973. 62p. 

105. Kahn, Kenneth. "The NLRB and Higher Education: The Failure of 
Policymaking through Adjudication," UCLA Law Review, 21:63-180, 
Oct. 1973. 

106. McHugh, William F. "Collective Bargaining with Professionals in Higher 
Education: Problems in Unit Determination," Wisconsin Law Review, 
1:55-90,1971. 

107. Rock, Eli. "The Appropriate Unit Question in the Public Service: The 
Problem of Proliferation," Michigan Law Review, 67:1001-16, March 
1969. 

108. Sullivan, Daniel P. "Appropriate Unit Determinations in Public 
Employee Collective Bargaining," Mercer Law Review, 19:402-17, 
Summer 1968. 

How to Negotiate 

Negotiating a collective bargaining contract is a three-stage process. The 
first stage is preparation formulating demands, counterproposals, and strategy. 
Negotiation manuals, such as that prepared by the AFT (109), are intended to 
help local unions become informed on various issues and to suggest possible 
clauses for the contract. Management, too, has its reference tools; Morse (121) 
and the National Industrial Conference Board (123) give general guidelines, 
and Overton and Wortman (122) describe methods for preparation of pro- 
posals. The book by Ryder, et al. (124), is a survey of company practices 
when preparing for bargaining, with a detailed discussion of the various steps 
in the process. 

An important question in public employee negotiations is: With whom 
should the union negotiate? In many instances fiscal control and managerial 
control are vested in two different bodies, and deciding who should conduct 
the negotiations has important consequences, as Derber (112) points out. 

Practical guides for the conduct of negotiations, the second stage, can be 
found, for the public sector, in Hastings (114), Heisel and Hallihan (115), and 



158 MARGARET A. CHAPLAN 

Warner and Hennessy (125). For colleges and universities, Howe (116) offers 
guidelines and Coe (111) a description of actual practices. Lewis' article (119) 
presents management's view of the negotiation of a contract at the Brooklyn 
Public Library, and Lubin and Brandwein (120) present the union view of the 
same negotiations. Levin (117) describes various kinds of fringe benefits, along 
with their advantages and disadvantages, and points out things to keep in 
mind when negotiating benefits. How to calculate the cost of specific contract 
provisions and the pitfalls that may be encountered when doing so are 
analyzed by Granof (113) and Levine (118). 

The final stage of negotiation is to embody the proposals agreed upon in 
a contract, described by Clark (1 10). 

109. American Federation of Teachers. Department of Collective Bargaining 
Services. Negotiations Manual. John Oliver, comp. Washington, D.C., 
AFT, 1972. Looseleaf. 

110. Gark, R. Theodore, Jr. Drafting the Public Sector Labor Agreement 
(Public Employee Relations Library, no. 13). Chicago, Public Personnel 
Association, 1969. 35p. 

111. Coe, Alan C. "A Study of the Procedures used in Collective Bargaining 
with Faculty Unions in Public Universities," Journal of the College and 
University Personnel Association, 24:1-22, March 1973; 24:1-44, May 
1973; 24: 1-25, Sept. 1973. 

112. Derber, Milton. "Who Negotiates for the Public Employer?" In Keith 
Ocheltree, ed. Perspective in Public Employee Negotiation (Public 
Employee Relations Library, special issue). Chicago, Public Personnel 
Association, 1969, pp. 52-58. 

113. Granof, Michael H. How to Cost Your Labor Contract. Washington, 
D.C., Bureau of National Affairs, 1973. 147p. 

114. Hastings, Robert H. "How to Bargain in the Public Service," Good 
Government, 87:8-14, Winter 1970. 

115. Heisel, W. D., and Hallihan, J.D. Questions and Answers on Public 
Employee Negotiation. Chicago, Public Personnel Association, 1967. 
214p. 

116. Howe, Ray A. "The Bloody Business of Bargaining," College and Uni- 
versity Business, 48:63-67, March 1970. 

117. Levin, Noel A. Negotiating Fringe Benefits (AM A Management Briefing). 
New York, AMACOM, 1973. 39p. 

118. Levine, Gilbert. "Assessing the Cost and Benefits of Collective Bar- 
gaining: The Potential Use of Costing," Relations Industrielles, 
28:817-25, Oct. 1973. 

119. Lewis, Robert. "A New Dimension in Library Administration- 
Negotiating a Union Contract," ALA Bulletin, 63:455-64, April 1969. 



BIBLIOGRAPHY 159 

120. Lubin, Martin, and Brandwein, Larry. "Negotiating a Collective Bar- 
gaining Agreement the Union Perspective," ALA Bulletin, 63:973-79, 
July-Aug. 1969. 

121. Morse, Bruce. How to Negotiate the Labor Agreement; An Outline 
Summary of Tested Bargaining Practice Expanded from Earlier Editions. 
Detroit, Trends Publishing Co., 1971. 83p. 

122. Overton, Craig, and Wortman, Max S., Jr. "Proposals and Counter- 
proposals in Public Sector Collective Bargaining," Journal of Collective 
Negotiations in the Public Sector, 2:125-34, Spring 1973. 

123. Preparing for Collective Bargaining. Part I-Studies in Personnel Policy, 
no. 172. Part II-Studies in Personnel Policy, no. 182. New York, 
National Industrial Conference Board, 1959, 1961. 

124. Ryder, Meyer S., et al. Management Preparation for Collective Bar- 
gaining. Homewood, HI., Dow Jones-Irwin, 1966. 151p. 

125. Warner, Kenneth O., and Hennessy, Mary L. Public Management at the 
Bargaining Table. Chicago, Public Personnel Association, 1967. 490p. 

Scope of Bargaining 

The scope of bargaining refers to what items can be subjects for 
bargaining, or, to put it in Wildman's terms (131), "What's negotiable?" A 
subset of that question is: What should be negotiable and what have the law 
and the courts said must be negotiated? Two general surveys of the concepts 
and problems connected with the scope of bargaining are those by Gerhart 
(127) and Prasow (130). For the public employer, scope is especially a 
problem because of its possible conflict with sovereignty. Helburn (128) 
discusses the principles involved and what appropriate public policy might be. 
Historically the scope of bargaining has tended to widen and, particularly with 
governmental and professional employees, to include non-labor policies of 
management as well as its labor policies (126). This does not mean, however, 
that economic issues have declined in importance, as Johnson's study (129) 
reveals. 

126. "Collective Bargaining and the Professional Employee," Columbia Law 
Review, 69:277-98, Feb. 1969. 

127. Gerhart, Paul F. "The Scope of Bargaining in Local Government Labor 
Negotiations." In Proceedings of the 1969 Annual Spring Meeting, In- 
dustrial Relations Research Association. Madison, Industrial Relations 
Research Association, 1969, pp. 545-52. 

128. Helburn, I. B. "The Scope of Bargaining in Public Sector Negotiations: 
Sovereignty Reviewed," Journal of Collective Negotiations in the Public 
Sector, 3:147-66, Spring 1974. 



160 MARGARET A. CHAPLAN 

129. Johnson, Paul V. Wages and Hours as Significant Issues in Collective 
Bargaining (Paper No. 309). Lafayette, Ind., Herman C. Krannert 
Graduate School of Industrial Administration, Purdue University, 1971. 
28p, 

130. Prasow, Paul, et al. Scope of Bargaining in the Public Sector-Concepts 
and Problems. Washington, D.C., Division of Public Employee Labor 
Relations, U.S. Department of Labor, 1972. 156p. 

131. Wildman, Wesley A. "What's Negotiable?" American School Board 
Journal, 155:7-10, Nov. 1967. 

Administering the Contract, Including Grievances and Arbitration 

Frequently, if management has never been a party to a collective 
bargaining relationship before, the day-to-day operation under the contract 
brings about administrative changes (132, 137, and 143). Mechanisms and 
procedures have to be instituted by both parties to carry out the terms agreed 
upon (136, 138, 139, and 140) and to promote a smooth working relation- 
ship. Some (141) would argue that a union can be a help in administration. 
Should there be any dispute about the interpretation or application of the 
contract terms, a grievance procedure can usually be resorted to. In general, 
the grievance procedures prevailing in the private sector have been adopted 
into the public sector (133). The details of the procedures may vary con- 
siderably (144), but the mechanisms are all intended to insure due process 
(145). The final step in many grievance procedures is arbitration, and the 
books by Elkouri and Elkouri (134), Fleming (135), and Prasow and Peters 
(142) offer thorough discussions of the nature and operation of arbitration as 
well as analyses of arbitration awards. 

132. Association of Research Libraries. Office of University Library Manage- 
ment Studies. Review of Collective Bargaining Activities in Academic 
and Research Libraries (ARL Management Supplement, vol. 1, no. 3). 
Washington, D.C., Association of Research Libraries, 1973. 4p. 

133. Begin, James P. "The Private Grievance Model in the Public Sector," 
Industrial Relations, 10:21-35, Feb. 1971. 

134. Elkouri, Frank, and Elkouri, Edna. How Arbitration Works. 3d ed. 
Washington, D.C., Bureau of National Affairs, 1973. 819p. 

135. Fleming, R. W. The Labor Arbitration Process. Urbana, University of 
Illinois Press, 1965. 233p. 

136. Geller, William S. "Working with the Library Union, an Administrator's 
Experience," California Librarian, 3:50-62, Jan. 1972. 

137. Gibson, Frank E. "Effects of the Activities of the Unions in the 
Minneapolis Public Library on Library Functions and Administrative 



BIBLIOGRAPHY 161 

Processes and upon Union Members." Unpublished master's thesis, Uni- 
versity of Minnesota, 1952. 

138. Heisel, W. Donald. Day -to-Day Union-Management Relationships (Public 
Employee Relations Library, no. 31). Chicago, Public Personnel Associa- 
tion, 1971. 34p. 

139. Krause, Robert D., et al. Making the Collective Bargaining Agreement 
Work (Public Employee Relations Library, no. 14). Chicago, Public Per- 
sonnel Association, 1969. 29p. 

140. Marceau, LeRoy, ed. Dealing with a Union. New York, American Manage- 
ment Association, 1969. 256p. 

141. Mleynek, Darryl. "Unions-What's in it for Administrators?" Wilson 
Library Bulletin, 43:752-55, April 1969. 

142. Prasow, Paul, and Peters, Edward. Arbitration and Collective Bargaining: 
Conflict Resolution in Labor Relations. New York, McGraw-Hill, 1970. 
426p. 

143. Stanley, David T. Managing Local Government under Union Pressure. 
Washington, D.C., Brookings Institution, 1972. 177p. 

144. Ullman, Joseph C., and Begin, James P. "The Structure and Scope of 
Appeals Procedures for Public Employ ess" Industrial and Labor Relations 
Review, 23:323-34, April 1970. 

145. Volkersz, Evert. "The Grievance: First Step in Improved Library Govern- 
ment," ALA Bulletin, 63:1566-69, Dec. 1969. 

RELATED ISSUES 

This section is not meant to present an exhaustive list, but rather an 
indication of some of the more important issues that can affect, or be 
affected by, collective bargaining. 

Professionalism vs. Unionism 

The literature on this subject falls into two groups: (1) analyses of how 
professionalism influences employee behavior and attitudes toward unions 
(147, 149, 150, and 152), and (2) arguments about whether librarians are 
professionals (146 and 148). Mleynek (151) suggests librarians use collective 
bargaining to achieve professional goals. 

146. Bundy, Mary Lee, and Wasserman, Paul. "Professionalism Reconsidered," 
College & Research Libraries, 29:5-26, Jan. 1968. 

147. Etzioni, Amitai, ed. The Semi-Professions and their Organization: 
Teachers, Nurses, Social Workers. New York, Free Press, 1969. 328p. 



162 MARGARET A. CHAPLAN 

148. Flanagan, Leo N. "Professionalism Dismissed?" College & Research 
Libraries, 34:209-14, May 1973. 

149. Kleingartner, Archie. Professionalism and Salaried Worker Organization. 
Madison, Industrial Relations Research Institute, University of 
Wisconsin, 1967. 113p. 

150. Lipset, Seymour M. "White Collar Workers and Professionals-their Atti- 
tudes and Behavior towards Unions." In William A. Faunce, ed. 
Readings in Industrial Sociology. New York, Appleton-Century-Crofts, 
1967, pp. 52548. 

151. Mleynek, Darryl. "Professional Unions," California Librarian, 31:110-18, 
April 1970. 

152. Myers, Donald A. Teacher Power: Professionalization and Collective 
Bargaining. Lexington, Mass., Lexington Books, 1973. 199p. 

Merit Systems 

Subjects of bargaining, such as hiring, promotions, transfers, training, 
grievance procedures, job classification, wages and benefits are often regulated 
by civil service systems for public employees. There may be conflicts where 
they overlap. A general review of the problem can be found in item 1 60. The rest 
of the references that are listed offer assessments of whether the two systems 
are compatible and, if not, how they can be reconciled, except for Lelchook 
(155), who looks at the nature of civil service employee associations and how 
they are responding to collective bargaining. 

153. Feigenbaum, Charles. "Civil Service and Collective Bargaining: Conflict 
or Compatibility," Public Personnel Management, 3:244-52, May-June 
1974. 

154. Helburn, I. B., and Bennett, N. D. "Public Employee Bargaining and the 
Merit Principle," Labor Law Journal, 23:618-29, Oct. 1972. 

155. Lelchook, Jerry. State Civil Service Employee Associations; An LMSA 
Staff Study. Washington, D.C., U.S.G.P.O., 1974. 89p. 

156. Nesbitt, Murray B. "The Civil Service Merit System and Collective 
Bargaining." Unpublished Ph.D. dissertation, New York University, 
1962. 305p. 

157. Shils, Edward B. "Collective Bargaining Can Strengthen the Merit 
System," Public Employee, 32:11, Oct. 1967. 

158. Stanley, David T. "What are Unions Doing to Merit Systems?" Public 
Personnel Review, 31:108-13, April 1970. 

159. . "What's Happening to the Civil Service?" Good Government, 

91:16-19, Summer 1974. 

160. U.S. Labor-Management Services Administration. Office of Labor- 
Management Policy Development. Collective Bargaining in Public Em- 



BIBLIOGRAPHY 163 

ployment and the Merit System. Prepared by Jerry Lelchook and 
Herbert J. Lahne. Washington, D.C., U.S.G.P.O., 1972. 114p. 

Women in Unions 

Women have a long history of activity in labor unions, and some have 
been nationally known leaders of the labor movement. As more and more 
women join the labor force, their concerns will have to be incorporated into 
union policies and programs. Union policies on "women's issues" are histor- 
ically examined by Cook (162). Figures on the status of women union 
members can be found in Dewey (163), and Bergquist (161) offers statistical 
data to support the thesis that the increase in female union membership has 
not been accompanied by a proportional increase in the number of union 
leadership positions held by women. 

In order to make the influence of women in the labor movement 
stronger, in the spring of 1974 a convention of union women was held, out of 
which grew the Coalition of Labor Union Women. The convention and the 
founding of the coalition are described in 164, 165, and 166. 

161. Bergquist, Virginia A. "Women's Participation in Labor Organizations," 
Monthly Labor Review, 97:3-9, Oct. 1974. 

162. Cook, Alice H. "Women and American Trade Unions," Annals, 375: 
124-32, Jan. 1968. 

163. Dewey, Lucretia M. "Women in Labor Unions," Monthly Labor Review, 
94:42-48, Feb. 1971. 

164. Sexton, Patricia Cayo. "Workers (Female) Arise!" Dissent, 21:380-95, 
Summer 1974. 

165. Weiner, Lois. "Women Trade Unionists Organize," New Politics, 
11:31-35, Winter 1974. 

166. "Women Push for Union Power," Business Week, 2324:102, March 30, 
1974. 

Sex Discrimination 

The status of women in the labor force is described in the Monthly 
Labor Review (178), while Kreps (172) concentrates on the labor market for 
women. A quantitative analysis of the extent of sex discrimination is 
presented in Tsuchigane and Dodge (177). The case study by Malkiel and 
Malkiel (173) suggests that the real source of economic discrimination lies in 
exclusion from higher paying jobs rather than in salary differentials for men 
and women in the same job. 

Data on the status of women in libraries is presented by Blankenship 
(167), Schiller (175), and Carpenter and Shearer (168), who update their 



164 MARGARET A. CHAPLAN 

previous study of pay differentials (Library Journal, Nov. 15, 1972). The 
particular situation in law libraries and in archives is discussed by Hughes 
(171) and Deutrich (170), respectively. 

Several types of remedial action have been suggested. Schiller (174) 
suggests what the ALA might do to draw attention to the unequal status of 
women librarians. De Fichy (169) advocates affirmative action committees and 
suggests steps they might take. Smith (176) relates a case study in which 
collective bargaining was used to remedy sex discrimination. 

167. Blankenship, W. C. "Head Librarians: How Many Men? How Many 
Women?" College & Research Libraries, 28:41-48, Jan. 1967. 

168. Carpenter, Raymond L., and Shearer, Kenneth D. "Sex and Salary 
Update," Library Journal, 99:101-07, Jan. 15, 1974. 

169. De Fichy, Wendy. "Affirmative Action: Equal Opportunity for Women 
in Library Management," College & Research Libraries, 34:195-201, 
May 1973. 

170. Deutrich, Mabel E. "Women in Archives: Ms. versus Mr. Archivist," 
American Archivist, 36:171-81, April 1973. 

171. Hughes, Marija. "Sex-Based Discrimination in Law Libraries," Law 
Library Journal, 64:13-21, Feb. 1971. 

172. Kreps, Juanita. Sex in the Marketplace: American Women at Work. 
Baltimore, Johns Hopkins Press, 1971. 117p. 

173. Malkiel, Burton G., and Malkiel, Judith A. "Male-Female Pay Differen- 
tials in Professional Employment," American Economic Review, 
63:693-705, Sept. 1973. 

174. Schiller, Anita R. "The Disadvantaged Majority: Women Employed in 
Libraries," American Libraries 1:34549, April 1970. 

175. . "The Widening Sex Gap," Library Journal, 94: 1098-1 100, March 

15, 1969. 

176. Smith, Georgina M. "Faculty Women at the Bargaining Table," AAUP 
Bulletin, 59:402-06, Winter 1973. 

177. Tsuchigane, Robert and Dodge, Norton. Economic Discrimination 
against Women in the United States: Measures and Changes. Lexington, 
Mass., Lexington Books, 1974. 152p. 

178. "Women in the Workplace: A Special Section," Monthly Labor Review, 
97:3-58, May 1974. 



Glossary of Collective Bargaining Terms 

Agency Shop A provision in a collective agreement which requires that all 
employees in the negotiating unit who do not join the exclusive repre- 
sentative pay a fixed amount monthly, usually the equivalent of organi- 
zation dues, as a condition of employment. Under some arrangements, 
the payments are allocated to the organization's welfare fund or to a 
recognized charity. An agency shop may operate in conjunction with a 
modified union shop. (See Union Shop.) 

Agreement See Collective Bargaining. A written agreement between an 
employer (or an association of employers) and an employee organization 
(or organizations), usually for a definite term, defining conditions of 
employment, rights of employees and the employee organization, and 
procedures to be followed in settling disputes or handling issues that 
arise during the life of the agreement. 

American Arbitration Association (AAA) A private nonprofit organization 
established to aid professional arbitrators in their work through legal and 
technical services, and to promote arbitration as a method of settling 
commercial and labor disputes. The AAA provides lists of qualified 
arbitrators to employee organizations and employers on request. 

American Federation of Labor-Congress of Industrial Organizations (AFL-CIO) 
A federation of approximately 130 autonomous national/international 
unions created by the merger of the American Federation of Labor 
(AFL) and the Congress of Industrial Organizations (CIO) in December 
1955. More than 80 percent of union members in the United States are 
members of unions affiliated with the AFL-CIO. The initials AFL-CIO 
after the name of a union indicate that the union is an affiliate. 

Annual Improvement Factor Wage increases granted automatically each con- 
tract year, which are based upon increased employee productivity. 

Arbitration (Voluntary, Compulsory, Advisory) Method of settling employ- 
ment disputes through recourse to an impartial third party, whose 
decision is usually final and binding. Arbitration is voluntary when both 
parties agree to submit disputed issues to arbitration and compulsory if 
required by law. A court order to carry through a voluntary arbitration 
agreement is not generally considered as compulsory arbitration. 
Advisory arbitration is arbitration without a final and binding award. 

Arbitrator (Impartial Chairman) An impartial third party to whom disputing 
parties submit their differences for decision (award). An ad hoc 



Prepared by the Labor Relations Training Center, Bureau of Training, U.S. Civil Service 
Commission. 



765 



166 LABOR RELATIONS TRAINING CENTER 

arbitrator is one selected to act in a specific case or a limited group of 
cases. A permanent arbitrator is one selected to serve for the life of the 
agreement or for a stipulated term, hearing all disputes that arise during 
this period. 

Authorization Card A statement signed by an employee authorizing an 
organization to act as his representative in dealings with the employer, 
or authorizing the employer to deduct organization dues from his pay 
(check-off). (See Card Check.) 

Bargaining Rights Legally recognized rights to represent employees in nego- 
tiations with employers. 

Bargaining Unit Group of employees recognized by the employer or group of 
employers, or designated by an authorized agency as appropriate for 
representation by an organization for purposes of collective negotiations. 

Boycott Effort by an employee organization, usually in collaboration with 
other organizations, to discourage the purchase, handling or use of 
products of an employer with whom the organization is in dispute. 
When such action is extended to another employer doing business with 
the employer involved in the dispute, it is termed a secondary boycott. 

Bumping (Rolling) Practice that allows a senior employee (in seniority ranking 
or length of service) to displace a junior employee in another job or 
department during a layoff or reduction in force. (See Seniority.) 

Business Agent (Union Representative) Generally a full-time paid employee or 
official of a local union whose duties include day-to-day dealing with 
employers and workers, adjustment of grievances, enforcement of agree- 
ments, and similar activities. (See International Representative.) 

Business Unionism ("Bread-and-Butter" Unionism) Union emphasis on higher 
wages and better working conditions through collective bargaining rather 
than political action or radical reform of scoiety. The term has been 
widely used to characterize the objectives of the trade union movement 
in the United States. 

Call-in Pay (Callback Pay) Amount of pay guaranteed to a worker recalled to 
work after completing his regular work shift. Call-in pay is often used as 
a synonym for reporting pay. (See Reporting Pay.) 

Card Check Procedure whereby signed authorization cards are checked against 
a list of employees in a prospective negotiating unit to determine if the 
organization has majority status. The employer may recognize the organ- 
ization on the basis of this check without a formal election. Card checks 
are often conducted by an outside party, e.g., a respected member of 
the community. (See Authorization Card) 

Certification Formal designation by a government agency of the organization 
selected by the majority of the employees in a supervised election to act 
as an exclusive representative for all employees in the bargaining unit. 



GLOSSARY 167 

Check-off (Payroll Deduction of Dues) Practice whereby the employer, by 
agreement with the employee organization (upon written authorization 
from each employee where required by law or agreement), regularly 
withholds organizational dues from employees' salary payments and 
transfers these funds to the organization. The check-off is a common 
practice and is not dependent upon the existence of a formal organi- 
zational security clause. The check-off arrangement may also provide for 
deductions of initiation fees and assessments. (See Union Security.) 

Closed Shop A form of organizational security provided in an agreement 
which binds the employer to hire and retain only organization members 
in good standing. The closed shop is prohibited by the Labor- 
Management Relations Act of 1947 which applies, however, only to 
employers and employees in industries affecting interstate commerce. 

Collective Bargaining A process whereby employees as a group and their 
employers make offers and counter-offers in good faith on the condi- 
tions of their employment relationship for the purpose of reaching a 
mutually acceptable agreement, and the execution of a written docu- 
ment incorporating any such agreement if requested by either party. 
Also, a process whereby representatives of the employees and their 
employer jointly determine the conditions of employment. 

Company Union An employee organization that is organized, financed or 
dominated by the employer and is thus suspected of being an agent of 
the employer rather than of the employees. Company unions are pro- 
hibited under the Labor-Management Relations Act of 1947. The term 
also survives as a derogatory charge leveled against an employee organi- 
zation accused of being ineffectual. 

Compulsory Arbitration (See Arbitration.) 

Conciliation (See Mediation.) 

Consultation An obligation on the part of employers to consult the employee 
organization on particular issues before taking action on them. In 
general, the process of consultation lies between notification to the 
employee organization, which may amount simply to providing infor- 
mation, and negotiation, which implies agreement on the part of the 
organization before the action can be taken. 

Continuous Negotiating Committees (Interim Committees) Committees esta- 
blished by employers and employee organizations in a collective nego- 
tiating relationship to keep an agreement under constant review, and to 
discuss possible changes in it long in advance of its expiration date. The 
continuous committee may provide for third-party participation. 

Contract Bar A denial of a request for a representation election, forced on the 
existence of a collective agreement. Such an election will not be con- 
ducted by the National Labor Relations Board if there is in effect a 



168 LABOR RELATIONS TRAINING CENTER 

written agreement which is binding upon the parties, has not been in 
effect for more than a "reasonable" time, and its terms are consistent 
with the National Labor Relations Act. "Contract bars" in state govern- 
ments are established by state laws and state agencies. 

Cooling-off Period A period of time which must elapse before a strike or 
lockout can begin or be resumed by agreement or by law. The term 
derives from the hope that the tensions of unsuccessful negotiation will 
subside in time so that a work stoppage can be averted. 

Craft Union A labor organization which limits membership to workers having 
a particular craft or skill or working at closely related trades. In 
practice, many so-called craft unions also enroll members outside the 
craft field, and some come to resemble industrial unions in all major 
respects. The traditional distinction between craft and industrial unions 
has been substantially blurred. (See Industrial Union.} 

Craft Unit A bargaining unit composed solely of workers having a recognized 
skill, e.g., electricians, machinists, or plumbers. 

Credited Service Years of employment counted for retirement, severance pay, 
seniority. (See Seniority.} 

Crisis Bargaining Collective bargaining taking place under the shadow of an 
imminent strike deadline, as distinguished from extended negotiations in 
which both parties enjoy ample time to present and discuss their 
positions. (See Continuous Negotiating Committees.} 

Decertification Withdrawal by a government agency of an organization's 
official recognition as exclusive negotiating representative. 

Dispute Any disagreement between employers and the employee organization 
which requires resolution, e.g., inability to agree on contract terms or 
unsettled grievances. 

Downgrading (Demotion) Reassignment of workers to tasks or jobs requiring 
lower skills and with lower rates of pay. 

Dual Unionism A charge (usually a punishable offense) leveled at a union 
member or officer who seeks or accepts membership or position in a 
rival union, or otherwise attempts to undermine a union by helping its 
rival. 

Dues Deduction (See Check-off.} 

Election (See Representation Election.} 

Escalator Clause Provision in an agreement stipulating that wages are to be 
automatically increased or reduced periodically according to a schedule 
related to changes in the cost of living, as measured by a designated 
index or, occasionally, to another standard, e.g., an average earnings 
figure. Term may also apply to any tie between an employee benefit 
and the cost of living, as in a pension plan. 

Escape Clause General term signifying release from an obligation. One example 



GLOSSARY 169 

is found in maintenance-of-membership arrangements which give union 
members an "escape period" during which they may resign from 
membership in the union without forfeiting their jobs. 

Exclusive Bargaining Rights The right and obligation of an employee organi- 
zation designated as majority representative to negotiate collectively for 
all employees, including nonmembers, in the negotiating unit. 

Fact-finding Board A group of individuals appointed to investigate, assemble 
and report the facts in an employment dispute, sometimes with 
authority to make recommendations for settlement. 

"Favored Nations" Clause An agreement provision indicating that one party to 
the agreement (employer or union) shall have the opportunity to share 
in more favorable terms negotiated by the other party with another 
employer or union. 

Federal Mediation and Conciliation Service (FMCS) An independent federal 
agency which provides mediators to assist the parties involved in nego- 
tiations, or in a labor dispute, in reaching a settlement; provides lists of 
suitable arbitrators on request, and engages in various types of "pre- 
ventive mediation." Mediation services are also provided by several state 
agencies. 

Free Riders A derogatory term applied to persons who share in the benefits 
resulting from the activities of an employee organization but who are 
not members of, and pay no dues to, the organization. 

Fringe Benefits Generally, supplements to wages or salaries received by 
employees at a cost to employers. The term encompasses a host of 
practices (paid vacations, pensions, health and insurance plans, etc.) that 
usually add to something more than a "fringe," and is sometimes 
applied to a practice that may constitute a dubious "benefit" to 
workers. No agreement prevails as to the list of practices that should be 
called fringe benefits. Other terms often substituted for fringe benefits 
include "wage extras," "hidden payroll," "nonwage labor costs," and 
"supplementary wage practices." The Bureau of Labor Statistics uses the 
phrase "selected supplementary compensation or remuneration prac- 
tices," which is then defined for survey purposes. 

Grievance Any complaint or expressed dissatisfaction by an employee in 
connection with his job, pay, or other aspects of his employment. 
Whether such complaint or expressed dissatisfaction is formally recog- 
nized and handled as a "grievance" depends on the scope of the 
grievance procedure. 

Grievance Procedure Typically a formal plan, specified in a collective agree- 
ment, which provides for the adjustment of grievances through dis- 
cussions at progressively higher levels of authority in management and 
the employee organization, usually culminating in arbitration if 



170 LABOR RELATIONS TRAINING CENTER 

necessary. Formal plans may also be found in companies and public 
agencies in which there is no organization to represent employees. 

Impartial Chairman (Umpire) An arbitrator employed jointly by an employee 
organization and an employer, usually on a long-term basis, to serve as 
the impartial party on a tripartite arbitration board and to decide all 
disputes or specific kinds of disputes arising during the life of the 
contract. The functions of an impartial chairman often expand with 
experience and the growing confidence of the parties, and he alone may 
constitute the arbitration board in practice. 

Industrial Union (Vertical Union) A union that represents all or most of the 
production, maintenance, and related workers, both skilled and un- 
skilled, in an industry or company. Industrial unions may also include 
office, sales and technical employees of the same companies. (See Craft 
Union.) 

Injunction (Labor Injunction) Court order restraining one or more persons, 
corporations or unions from performing some act which the court 
believes would result in irreparable injury to property or other rights. 

International Representative (National Representative, Field Representative) 
Generally, a full-time employee of a national or international union 
whose duties include assisting in the formation of local unions, dealing 
with affiliated local unions on union business, assisting in negotiations 
and grievance settlements, settling disputes within and between locals, 
etc. (See Business Agent.) 

International Union A union claiming jurisdiction both within and outside the 
United States (usually in Canada). Sometimes the term is loosely applied 
to all national unions, i.e., "international" and "national" are used 
interchangeably. 

Job Posting Listing of available jobs, usually on a bulletin board, so that 
employees may bid for promotion or transfer. 

Joint Bargaining Process in which two or more unions join forces in nego- 
tiating an agreement with a single employer. 

Jurisdictional Dispute Conflict between two or more employee organizations 
over the organization of a particular establishment or whether a certain 
type of work should be performed by members of one organization or 
another. A Jurisdictional strike is a work stoppage resulting from a 
Jurisdictional dispute. 

Labor Grades One of a series of rate steps (single rate or a range of rates) in 
the wage structure of an establishment. Labor grades are typically the 
outcome of some form of job evaluation, or of wage-rate negotiations, 
by which different occupations are grouped, so that occupations of 
approximately equal "value" or "worth" fall into the same grade and, 
thus, command the same rate of pay. 



GLOSSARY 171 

Labor-Management Relations Act of 1947 (Toft-Hartley Act) Federal law, 
amending the National Labor Relations Act (Wagner Act), 1935, which, 
among other changes, defined and made illegal a number of unfair labor 
practices by unions. It preserved the guarantee of the right of workers 
to organize and bargain collectively with their employers, or to refrain 
from such activities, and retained the definition of unfair labor practices 
as applied to employers. The act does not apply to employees in a 
business or industry where a labor dispute would not affect interstate 
commerce. Other major exclusions are: employees subject to the Rail- 
way Labor Act, agricultural workers, government employees, nonprofit 
hospital workers, domestic servants, and supervisors. Amended by Labor- 
Management Reporting and Disclosure Act of 1959. (See National Labor 
Relations Act; National Labor Relations Board; Unfair Labor Practice.} 

Labor-Management Reporting and Disclosure Act of 1959 (Landrum-Griffin 
Act) A federal law designated "to eliminate or prevent improper prac- 
tices on the part of labor organizations, employers," etc. Its seven titles 
include a bill of rights to protect members in their relations with unions, 
regulations of trusteeships, standards for elections, and fiduciary respon- 
sibility of union officers. The Labor-Management Relations Act of 1947 
was amended in certain respects by this act. 

Maintenance of Membership Clause A clause in a collective agreement providing 
that employees who are members of the employee organization at the time 
the agreement is negotiated, or who voluntarily join the organization 
subsequently, must maintain their membership for the duration of the 
agreement, or possibly a shorter period, as a condition of continued 
employment. (See Union Security.) 

Management Prerogatives Rights reserved to management, which may be 
expressly noted as such in a collective agreement. Management pre- 
rogatives usually include the right to schedule work, to maintain order 
and efficiency, to hire, etc. 

Master Agreement A single or uniform collective agreement covering a number 
of installations of a single employer or the members of an employers' 
association. (See Multi-employer Bargaining) 

Mediation (Conciliation) An attempt by a third party to help in negotiations 
or in the settlement of an employment dispute through suggestion, 
advice, or other ways of stimulating agreement, short of dictating its 
provisions (a characteristic of arbitration). Most of the mediation in the 
United States is undertaken through federal and state mediation 
agencies. A mediator is a person who undertakes mediation of a dispute. 
Conciliation is synonymous with mediation. 

Merit Increase An increase in employee compensation given on the basis of 
individual efficiency and performance. 



772 LABOR RELATIONS TRAINING CENTER 

Moonlighting The simultaneous holding of more than one paid employment 
by an employee, e.g., a full-time job and a supplementary job with 
another employer, or self-employment. 

Multi-employer Bargaining Collective bargaining between a union or unions 
and a group of employers, usually represented by an employer asso- 
ciation, resulting in a uniform or master agreement. 

National Labor Relations Act of 1935 (Wagner Act) Basic federal act 
guaranteeing employees the right to organize and bargain collectively 
through representatives of their own choosing. The act also defined 
"unfair labor practices" as regards employers. It was amended by the 
Labor-Management Relations Act of 1947 and the Labor-Management 
Reporting and Disclosure Act of 1959. 

National Labor Relations Board (NLRB) Agency created by the National Labor 
Relations Act (1935) and continued through subsequent amendments. The 
functions of the NLRB are to define appropriate bargaining units, to hold 
elections to determine whether a majority of workers workers want to be 
represented by a specific union or no union, to certify unions to represent 
employees, to interpret and apply the act's provisions prohibiting certain 
employer and union unfair practices, and otherwise to administer the 
provisons of the act. (See Labor Management Relations Act of 1947.) 

National Union Ordinarily, a union composed of a number of affiliated local 
unions. In its union directory, the Bureau of Labor Statistics defines a 
national union as one with agreements with different employers in more 
than one state, or an affiliate of the AFL-CIO, or a national organi- 
zation of government employees. (See International Union.) 

No-strike and No-lockout Clause Provision in a collective agreement in which 
the employee organization agrees not to strike and the employer agrees 
not to lockout for the duration of the contract. These pledges may be 
hedged by certain qualifications, e.g., the organization may strike if the 
employer violates the agreement. 

Open-end Agreement Collective bargaining agreement with no definite termin- 
ation date, usually subject to reopening for negotiations or to ter- 
mination at any time upon proper notice by either party. 

Open Shop A policy of not recognizing or dealing with a labor union, or a 
place of employment where union membership is not a condition of 
employment. (See Union Security.) 

Package Settlement The total money value (usually quoted in cents per hour) 
of a change in wages or salaries and supplementary benefits negotiated 
by an employee organization in a contract renewal or reopening. 

Past Practice Clause Existing practices in the town, sanctioned by use and 
acceptance, that are not specifically included in the collective bargaining 
agreement, except, perhaps, by reference to their continuance. 



GLOSSARY 173 

Pattern Bargaining The practice whereby employers and employee organi- 
zations reach collective agreements similar to those reached by the 
leading employers and employee organizations in the field. 

Payroll Deductions Amounts withheld from employees' earnings by the 
employer for social security, federal income taxes, and other govern- 
mental levies; may also include organization dues, group insurance 
premiums, and other authorized assignments. (See Check-off.} 

Picketing Patrolling, usually near the place of employment, by members of the 
employee organization to publicize the existence of a dispute, persuade 
employees and the public to support a strike, etc. Organizational 
picketing is carried on by an employee organization for the purpose of 
persuading employees to join the organization or authorize it to 
represent them. Recognitional picketing is carried on to compel the 
employer to recognize the organization as the exclusive negotiating agent 
for his employees. Informational picketing is directed toward advising 
the public that an employer does not employ members of, or have an 
agreement with, an employee organization. 

Preventive Mediation Procedures designed to anticipate and to study potential 
problems of employment relations. These procedures may involve early 
entry into employment disputes before a strike threatens. 

Probationary Employee A worker in a probationary period. Where informal 
probation is the practice, a worker who has not yet attained the status 
of regular employee may be called a temporary employee. 

Probationary Period Usually a stipulated period of time (e.g., 30 days) during 
which a newly hired employee is on trial prior to establishing seniority 
or otherwise becoming a regular employee. Sometimes used in relation 
to discipline, e.g., a period during which a regular employee, guilty of 
misbehavior, is on trial. 

Raiding (No-raiding Agreement) Term applied to an organization's attempt to 
enroll members belonging to another organization or employees already 
covered by a collective agreement negotiated by another organization, 
with the intent to usurp the latter's bargaining relationship. A no-raiding 
agreement is a written pledge signed by two or more employee organi- 
zations to abstain from raiding and is applicable only to signatory 
organizations. 

Ratification Formal approval of a newly negotiated agreement by vote of the 
organization members affected. 

Real Wages Purchasing power of money wages, or the amount of goods and 
services that can be acquired with money wages. An index of real wages 
takes into account changes over time in earnings levels and in price 
levels as measured by an appropriate index, e.g., the Consumer Price 
Index. 



174 LABOR RELATIONS TRAINING CENTER 

Recognition Employer acceptance of an organization as authorized to 
negotiate, usually for all members of a negotiating unit. 

Reopening Clause Clause in a collective agreement stating the time or the 
circumstances under which negotiations can be requested, prior to the 
expiration of the contract. Reopenings are usually restricted to salaries 
and other specified economic issues, not to the agreement as a whole. 

Reporting Pay Minimum pay guaranteed to a worker who is scheduled to 
work, reports for work, and finds no work available, or less work than 
can be done in the guaranteed period (usually 3 or 4 hours). Sometimes 
identified as call-in pay. (See Call-in Pay.) 

Representation Election (Election) Election conducted to determine whether 
the employees in an appropriate unit desire an organization to act as 
their exclusive representative. (See Bargaining Unit) 

Right-to-Work Law Legislation which prohibits any contractual requirement 
that an employee join an organization in order to get or keep a job. 

Runoff Election A second election conducted after the first produces no 
winner according to the rules. If more than two options were present in 
the first election, the runoff may be limited to the two options receiving 
the most votes in the first election. (See Representation Election) 

Seniority Term used to designate an employee's status relative to other 
employees, as in determining order of promotion, layoff, vacation, etc. 
Straight seniority seniority acquired solely through length of service. 
Qualified seniority other factors such as ability considered with length 
of service. Department or unit seniority seniority applicable in a partic- 
ular department or agency of the town, rather than in the entire 
establishment. Seniority list individual workers ranked in order of 
seniority. (See Superseniority) 

Shop Steward (Union Steward, Building Representative) A local union's repre- 
sentative in a plant or department elected by union members (or 
sometimes appointed by the union) to carry out union duties, adjust 
grievances, collect dues, and solicit new members. Shop stewards are 
usually fellow employees, and perform duties similar to those of 
building representatives in public schools. 

Standard Agreement (Form Agreement) Collective bargaining agreement pre- 
pared by a national or international union for use by, or guidance of, its 
local unions, designed to produce standardization of practices within the 
union's bargaining relationships. 

Strike Temporary stoppage of work by a group of employees (not necessarily 
members of a union) to express a grievance, enforce a demand for 
changes in the conditions of employment, obtain recognition, or resolve 
a dispute with management. Wildcat or outlaw strike a strike not 
sanctioned by a union and one which violates a collective agreement. 



GLOSSARY 175 

Quickie strike* spontaneous or unannounced strike. Slowdown a 
deliberate reduction of output without an actual strike in order to force 
concessions from an employer. Sympathy strike-strike of employees not 
directly involved in a dispute, but who wish to demonstrate employee 
solidarity or bring additional pressure upon employer involved. Sitdown 
strike strike during which employees remain in the workplace, but 
refuse to work or to allow others to do so. General strike-strike 
involving all organized employees in a community or country (rare in 
the United States). Walkout-same as strike. 

Strike Vote Vote conducted among members of an employee organization to 
determine whether a strike should be called. 

Superseniority A position on the seniority list ahead of what the employee 
would acquire solely on the basis of length of service or other general 
seniority factors. Usually such favored treatment is reserved for union 
stewards, or other workers entitled to special consideration in con- 
nection with layoff and recall to work. 

Sweetheart Agreement A collective agreement exceptionally favorable to a 
particular employer, in comparison with other contracts, implying less 
favorable conditions of employment than could be obtained under a 
legitimate collective bargaining relationship. 

Toft-Hartley Act (See Labor-Management Relations Act of 1947.} 

Unfair Labor Practice Action by either an employer or employee organization 
which violates certain provisions of national or state employment rela- 
tions acts, such as a refusal to bargain in good faith. Unfair labor 
practices strike a strike caused, at least in part, by an employer's unfair 
labor practice. 

Union Security Protection of a union's status by a provision in the collective 
agreement establishing a closed shop, union shop, agency shop, or 
maintenance-of-membership arrangement. In the absence of such pro- 
visions, employees in the bargaining unit are free to join or support the 
union at will, and, thus, in union reasoning, are susceptible to pressures 
to refrain from supporting the union or to the inducement of a "free 
ride." 

Union Shop Provision in a collective agreement which requires all employees 
to become members of the union within a specified time after hiring 
(typically 30 days), or after a new provision is negotiated, and to remain 
members of the union as a condition of continued employment. 
Modified union shop variations on the union shop. Certain employees 
may be exempted, e.g., those already employed at the time the pro- 
vision was negotiated and who had not yet joined the union. 

Wagner Act (See National Labor Relations Act of 1935.) 

Welfare Plan (Employee-Benefit Plan) Health and insurance plans and other 



776 LABOR RELATIONS TRAINING CENTER 

types of employee-benefit plans. The Welfare and Pension Plans Dis- 
closure Act (1958) specifically defines welfare plans for purposes of 
compliance, but the term is often used loosely in employee relations. 

Whipsawing The tactic of negotiating with one employer at a time, using each 
negotiated gain as a lever against the next employer. 

Work Stoppage A temporary halt to work, initiated by workers or employer, 
in the form of a strike or lockout. This term was adopted by the Bureau 
of Labor Statistics to replace "strikes and lockouts." In aggregate 
figures, "work stoppages" usually means "strikes and lockouts, if any"; 
as applied to a single stoppage, it usually means strike or lockout unless 
it is clear that it can only be one. The difficulties in terminology arise 
largely from the inability of the Bureau of Labor Statistics (and, often, 
the parties) to distinguish between strikes and lockouts since the 
initiating party is not always evident. 

Zipper Clause An agreement provision specifically barring any attempt to 
reopen negotiations during the term of the agreement. (See Reopening 
Clause) 



INDEX 



Academic libraries, advantages of 
unionization, 130-131; collective 
bargaining in, 122-123; disadvan- 
tages of unionization, 131; future 
of unionization, 139; unionization 
of, 130; unionization of in 
Canada, 123. 

Academic library directors, role of, 
132-133. 

Academic library governance, collegial 
concept, 132-133. 

Administration of a collective bar- 
gaining agreement, 78-79. 

American Federation of State, 
County and Municipal Employees, 
bargaining in the public sector, 
23-29; history of, 24. 

American Library Association, ix, 
132; history of union position, 
9-10; membership of, 9; position 
on library unionism, 9-11. 

Arbitration, defined, 89-90; evalu- 
ation of, 96-98; its effect on 
libraries, 120; future of, 105; 
types of, 98-101. 

Association of College and Research 
Libraries, 131-132; statements on 
library benefits, 134-135. 



Association 
122-123. 



of Research Libraries, 



Brooklyn Public Library, 119. 

Canadian Association of College and 
University Libraries, 129. 

Collective bargaining, defined, 77; 
negotiating process, 77-78; process, 
future of, 105; in the private 
sector, negotiation simulation, 
109-113; for professional em- 
ployees, history of, 1-3; represen- 
tatives of parties, 55-66; tech- 
niques of, 78-83, 87-90, 93-105. 

Collective bargaining in the public 
sector, x, 23-29, 84-86; effect of 
budget cuts, 26-27; effect of civil 
service laws and regulations, 68-70; 
grievances, 82; history of, 24-25, 
30; legislation, 25-26, 31-40; 
professional negotiations, 60-6 1 ; 
scope of negotiations, 60-72; unit 
of determination, 33-36. 

Columbia University libraries, 124. 

Continuous bargaining, 90; evaluation 
of, 103. 



777 



775 



INDEX 



Duty to bargain, 47; definition of, 
54-55; obligations of employer and 
union, 47-48. 

Factfinding, defined, 88-89; evalu- 
ation of, 95-96; present status of, 
105. 

Final-offer arbitration, evaluation of, 
98-99. 

Grievance procedures, 79-82; use and 

application of, 82-83. 
Grievances, reason for, 79; use in the 

public sector, 82. 

Harvard University, library personnel 
policies, 134-135. 

Job classification, 124. 

Labor-management contract negoti- 
ations, simulation of, 107-116. 

Librarians, numbers unionized, 4-6; 
professional status of, 6-8; 
response to unionization, ix-x, 
117. 

Libraries, effect of budget cuts, 128. 

Library service, effects of unioni- 
zation on, 125-126. 

Management system in libraries, 

123-124. 

Med-arb, evaluation of, 99-101. 
Mediation, defined, 87-88; evaluation 

of, 93-94. 

National Labor Relations Act, 1, 
43-52; definition of professional 
employee, 45; jurisdiction of, 43; 
jurisdiction over librarians, 46; in 
relation to libraries, 44-45. 

National Labor Relations Board, 
43-52; cases involving librarians, 
50-51; designation of supervisor, 
50; determination of unit by, 
49-50; jurisdiction of, 44; process- 
ing of cases by, 48-50; professional 
employees and supervisory status, 
designation by, 50; professional 
status, determination of, 46; super- 
vision of union elections by, 48. 



Negotiation process, 77. See also: 

Collective bargaining. 
New York, regulation of public 

libraries, 119. 
Nonstoppage strikes, defined, 90; 

evaluation of, 103. 

Personnel offices in libraries, 124. 

Professional library associations, 
number of, 8. 

Professionalism, 6-8; effect on collec- 
tive bargaining, 27-29; in relation 
to collective bargaining, ix. See 
also: Collective bargaining. 

Professionals, goals of, 16-19. 

Public Employees Relations Board, 
117. 

Public library unions, coping with 
special legislation, 119; evolution 
of, 117; negotiations of, 119-120; 
operating in the public sector, 
118-119; resolving grievances, 
120-121; variety of, 118. See also: 
Collective bargaining in the public 
sector. 

Queens Borough Public Library, 1 1 9. 
Referendum, definition of, 90. 

Staff association, definition of, 117; 
position on collective bargaining, 
15; purpose of, 15, 117-118. 

Strikes, definition of, 90; evaluation 
of, 101-103; history of in the 
public sector, 3 1 ; legality of in the 
public sector, 31, 36-37; present 
attitude toward, 104-105; in the 
public sector, 31, 36-37, 101-103. 

Taft-Hartley Amendments (1947), 
effect on professional employees, 

2. 

Unfair labor practices, 46. 

Unionism in the public sector, of 
federal and postal employees, 
92-93; legislative protection for, 3; 
of municipal employees, 92; in the 
1970s, 3; of police and fire- 
fighters, 91; of teachers, 91-92. 
See also: Public library unions. 



INDEX 179 



Unionization of libraries, cost of, University of Guelph, staff associ- 

121; future of, 19-20, 29; legal ation, 135. 

status of, 30, 39-40. University of Guelph Library, 126, 

Unions, representing librarians, x, 129, 130, 133; effects of strike 

12-16. on, 138-139. 
Unions and professional associations, 

convergence of, 12. 
United States Department of Labor, 

negotiation simulation, 107-116. Wayne State University, 135.