This document discusses social stratification, defining it as the hierarchical arrangement of individuals based on wealth, power, and prestige, and examines various systems of stratification such as class, slavery, caste, and clan. It further explores theoretical perspectives on class inequality, including functionalism, conflict theory, feminism, and symbolic interactionism, while also detailing the measures and implications of poverty in Canada, particularly among disadvantaged groups. Additionally, the document covers the rights of union members, emphasizing the legal responsibility of unions to represent all employees fairly and without discrimination.

1. Chapter 6
Class Inequality
This Chapter Will Help You:
Define social stratification
Understand the different systems of stratification
Compare theoretical perspectives on class and stratification
Explain the different ways that social class is measured
Define poverty and explain various poverty measures
Social Stratification
The hierarchical arrangement of individuals in society
Based on wealth, power, and prestige
We often assume that Canada is a meritocracy:
A system based on achievement rather than ascribed status
Canada’s stratification system is relatively open
However, social mobility is Canada is quite limited
Global Inequality
Global inequality is complex and difficult to measure accurately
Gini Coefficient:
A measure from 0 to 1 applied to countries
0 means the country has no inequality
1 means that there is absolute inequality (one person has all the
money)

2. Systems of Stratification – Class
Class is a system of social ranking based on economic position
within the society
People are born into a class (ascribed status)
People can move within the system (achieved status)
Systems of Stratification – Slavery
Slavery involves the ownership of people
Colonial slavery was abolished in the 1800s
Slavery today is known a human trafficking:
The transportation of people to other countries for the purpose
of forced labour or sexual exploitation
Systems of Stratification – Caste
Caste systems are based on division of labour
A person’s status is ascribed at birth and can not be changed
Completely closed system – no social mobility
Systems of Stratification – Clan
The clan system involves individuals connected through large
networks of relatives
Lifelong allegiance to the clan is required
Members of each clan share a common status within their

3. society
Theoretical Perspectives
Theoretical Perspectives - Functionalism
The Davis-Moore Hypothesis
Societies require many different roles to be filled
These positions vary in their level of social importance
They also vary in the amount of education and training required
These factors should determine the level of reward for the role
Theoretical Perspectives – Functionalism, cont’d
The Davis-Moore Hypothesis explains why a brain surgeon
makes more than a retail worker
But does the logic apply to the rewards given to criminals? To
celebrities?
It also doesn’t account for non-occupational inequalities
i.e., those based on gendered or racialized inequalities
Theoretical Perspectives – Conflict Theory
Conflict theorists ask “who benefits?” from the social system
Why is there a gap between the rich and the poor?
What kinds of beliefs maintain this gap?
Theoretical Perspectives - Conflict Theory, cont’d
Karl Marx focused on inequalities in capitalism

4. The bourgeoisie provide the capital (factories, equipment, etc.)
The proletariat must sell their labour power to the bourgeoisie
False Consciousness in the proletariat:
Proletarians believe that if they work hard enough, they’ll
become part of the bourgeoisie
Theoretical Perspectives – Conflict Theory, cont’d
Max Weber
Focused on wealth and status
A person with lots of money and an important social position
will have a lot of power
A person may have one without the other
For example, a community religious leader may have high status
but low wealth
Wealth (i.e., inherited money) differs from income (earned
wages)
A person might have no income but lots of wealth
Theoretical Perspectives –
Symbolic Interactionism
Interactionists are interested in how class distinctions are
maintained through social interaction
Conspicuous Consumption
Thorsten Veblen
Purchasing expensive things (status symbols) in order to display
wealth
Theoretical Perspectives – Feminism
To understand inequality, we must consider gendered

5. differences
There are gendered patterns of domination in the home and in
the workplace
Feminists stress the interaction between various forms of
inequality (i.e., class, race, gender, ability, etc.)
This is referred to as intersectional analysis
Class in Canada - Elites
The super rich have a great deal of social power
Corporate power in both Canada and the U.S. is concentrated in
the hands of a few people
Elites participate in social networks and have shared
experiences (i.e. private schools, exclusive clubs)
Class in Canada – the Middle Class
Semi-professionals and managers with post secondary
educations
Insurance and financial services salespeople
Semi-skilled workers in manufacturing and clerical jobs
Economic growth in this group is much slower than in elites
Some researchers argue that the middle class is disappearing in
Canada
Class in Canada – the Poor
Absolute Poverty
Lack of basic necessities
Life-threatening
Relative poverty
Inadequate resources compared to the average standard of living

6. Poverty Measures
Low Income Cut-Off (LICO)
Examines amount of family income spent on necessities
Families that spend a larger than average portion of their
income on things like housing are likely to fall below the LICO
Poverty Measures, cont’d
Market Basket Measure (MBM)
Income required for a household to meet its needs
These needs are both subsistence needs (food, shelter, etc.) and
community norms (i.e., clothing)
Low Income Measure (LIM)
Low income is considered to be one half of the median income
for a household of that size.
Based on how much less they have than other similar
households
Poverty – Women
The poorest women are single parents and unattached seniors
Single mothers on social assistance fall far below the LICO
Elderly women tend to have lower lifetime earnings and
pensions than men
Poverty – Unattached Singles

7. 28% of unattached singles live in poverty
It is very difficult to live on one income in Canada today
Poverty – Indigenous Peoples
The average income of an Indigenous person is 25% less than
that of a non-Indigenous person
Indigenous women are particularly affected
The median income on many reserves is far below the expected
median income for Canada
Poverty – Immigrants and Visible Minorities
Greater risk of lower income and wages
Greater risk of unemployment
An income gap between racialized and non-racialized Canadians
exists and is widening
Poverty – People with Disabilities
1 in 5 differently abled Canadians are living on low income
Disabled lone parents and unattached singles are even more
likely to have low income

8. Understanding Poverty
Blaming the Victim
Results from classism: bias and discrimination on the basis of
class
Holds individuals responsible for any negative situations in
their lives
Ignores the structural context
In reality, poverty is strongly influenced by structural factors
Understanding Poverty, cont’d
Blaming the System
Considering the influence of structural factors on poverty
Examines systemic discrimination
For example, how do the economic system, policies, and/or laws
of a society maintain inequality and poverty?
Summary
This chapter introduced:
The definition of social stratification
Four different systems of stratification
How each of the major theoretical approaches explains class
inequality
The difference between absolute and relative poverty
Three ways to measure poverty
Information about the most disadvantaged groups in Canada
The difference between individualistic and structural
explanations of poverty

9. C H A P T E R 18
The Rights of Union Members
Unions, as bargaining agents representing bargaining units of
employees, have significant power and control over individual
employees. Those employees are precluded from dealing with
the employer on matters of wages and working conditions; the
employees must go through the union in dealing with the
employer. Because employees are dependent on the union, they
must be protected from the arbitrary or unreasonable exercise of
union power. This chapter explores the legal controls of unions
to protect the rights of union members.
18-1 Protection of the Rights of Union Members
The legal controls on unions are the result of actions by the
courts, the National Labor Relations Board (NLRB), and
Congress. The courts and the NLRB have imposed a duty of fair
representation on the part of the union—an obligation to
represent fairly all members of the bargaining unit. Congress
has legislated a union members’ “bill of rights” to guarantee
that union internal procedures are fair and has prohibited certain
practices by unions that interfere with employees’ rights under
the National Labor Relations Act (NLRA). In 1947, the Taft-
Hartley Act added a list of union unfair labor practices to the
NLRA, which included the following: • • • • • Section 7 was
amended to give employees the right to refrain from engaging in
con- certed activity, as well as the right to engage in such
activity. Section 8(b)(1)(A) prohibits union activity that
interferes with, restrains, or coerces employees in the exercise
of their Section 7 rights. Section 8(b)(2) prohibits unions from
causing an employer to discriminate against employees in terms
and conditions of employment because they are not union
members. Section 8(b)(5) protects employees from unreasonable
union dues and initiation fees. The Landrum-Griffin Act of 1959

10. added the union member’s bill of rights to the NLRA. Those
provisions will be discussed in detail later in this chapter. 18-1a
The Union’s Duty of Fair Representation The duty of fair
representation is a judicially created obligation on the part of
the union to represent fairly all employees in the bargaining
unit. The duty was developed by the courts because of the
union’s role as exclusive bargaining agent for the bargaining
unit. The initial cases dealing with the duty of fair
representation arose under the Railway Labor Act; subse- quent
cases applied the duty to unions under the NLRA as well. In the
following case, the Supreme Court developed the concept of the
duty of fair representation.
CASE 18.1 Steele v. louiSville & NaShville R.R. 323 U.S. 192
(1944
Stone, C. J. The question is whether the Railway Labor Act ...
imposes on a labor organization, acting by authority of the
statute as the exclusive bargaining representative of a craft or
class of railway employees, the duty to represent all the
employees in the craft without discrimination because of their
race, and, if so, whether the courts have jurisdiction to protect
the minority of the craft or class from the violation of such
obligation. ... Petitioner, a Negro, is a locomotive fireman in the
employ of respondent railroad, suing on his own behalf and that
of his fellow employees who, like petitioner, are Negro firemen
employed by the Railroad. Respondent Brotherhood, a labor
organization, is as provided under Section 2, Fourth of the
Railway Labor Act, the exclusive bargaining representative of
the craft of firemen employed by the Railroad and is recognized
as such by it and the members of the craft. The majority of the
firemen employed by the Railroad are white and are members of
the Brotherhood, but a substantial minority are Negroes who, by
the consti- tution and ritual of the Brotherhood, are excluded

11. from its membership. As the membership of the Brotherhood
constitutes a majority of all firemen employed on respon- dent
Railroad and as under Section 2, Fourth, the members, because
they are the majority, have chosen the Brotherhood to represent
the craft, petitioner and other Negro firemen on the road have
been required to accept the Brotherhood as their representative
for the purposes of the Act. On March 28, 1940, the
Brotherhood, purporting to act as representative of the entire
craft of firemen, without informing the Negro firemen or giving
them opportunity to be heard, served a notice on respondent
Railroad and on twenty other railroads operating principally in
the south- eastern part of the United States. The notice
announced the Brotherhood’s desire to amend the existing
collective bargaining agreement in such a manner as ultimately
to exclude all Negro firemen from the service. By established
practice on the several railroads so notified only white firemen
can be promoted to serve as engineers, and the notice proposed
that only “promotable,” i.e., white, men should be employed as
firemen or assigned to new runs or jobs or permanent vacancies
in established runs or jobs. On February 18, 1941, the railroads
and the Brotherhood, as representative of the craft, entered into
a new agreement which provided that not more than 50 percent
of the firemen in each class of service in each seniority district
of a carrier should be Negroes; that until such percentage
should be reached all new runs and all vacancies should be
filled by white men; and that the agree- ment did not sanction
the employment of Negroes in any seniority district in which
they were not working.... ... [W]e think that Congress, in
enacting the Railway Labor Act and authorizing a labor union,
chosen by a majority of a craft, to represent the craft, did not
intend to confer plenary power upon the union to sacrifice, for
the benefit of its members, rights of the minority of the craft,
without imposing on it any duty to protect the minority. Since
petitioner and the other Negro members of the craft are not
members of the Brotherhood or eligible for member- ship, the
authority to act for them is derived not from their action or

12. consent but wholly from the command of the Act.... Section 2,
Second, requiring carriers to bargain with the representative so
chosen, operates to exclude any other from representing a craft.
The minority members of a craft are thus deprived by the statute
of the right, which they would otherwise possess, to choose a
representative of their own, and its members cannot bargain
individually on behalf of themselves as to matters which are
properly the subject of collective bargaining.... The fair
interpretation of the statutory language is that the organization
chosen to represent a craft is to represent all its members, the
majority as well as the minority, and it is to act for and not
against those whom it represents. It is a principle of general
application that the exercise of a granted power to act in behalf
of others involves the assumption toward them of a duty to
exercise the power in their interest and behalf, and that such a
grant of power will not be deemed to dispense with all duty
toward those for whom it is exercised unless so expressed. We
think that the Railway Labor Act imposes upon the statutory
representative of a craft at least as exacting a duty to protect
equally the interests of the members of the craft as the
Constitution imposes upon a legislature to give equal protection
to the interests of those for whom it legislates. Congress has
seen fit to clothe the bargaining representative with powers
comparable to those possessed by a legislative body both to
create and restrict the rights of those whom it represents, but it
also imposed on the representative a corresponding duty. We
hold that the language of the Act to which we have referred,
read in the light of the purposes of the Act, expresses the aim of
Congress to impose on the bargaining representative of a craft
or class of employees the duty to exercise fairly the power
conferred upon it in behalf of all those for whom it acts,
without hostile discrimination against them. This does not mean
that the statutory representa- tive of a craft is barred from
making contracts which may have unfavorable effects on some
of the members of the craft represented. Variations in terms of
the contract based on differences relevant to the authorized

13. purposes of the contract in conditions to which they are to be
applied, such as differences in seniority, the type of work
performed, the competence and skill with which it is performed,
are within the scope of the bargaining representation of a cr aft,
all of whose members are not identical in their interest or merit.
Without attempting to mark the allowable limits of differ- ences
in the terms of contracts based on differences of condi - tions to
which they apply, it is enough for present purposes to say that
the statutory power to represent a craft and to make contracts as
to wages, hours and working conditions does not include the
authority to make among members of the craft discriminations
not based on such relevant differ- ences. Here the
discriminations based on race alone are obviously irrelevant and
invidious. Congress plainly did not undertake to authorize the
bargaining representative to make such discriminations. . . . The
representative which thus discriminates may be enjoined from
so doing, and its members may be enjoined from taking the
benefit of such discriminatory action. No more is the Railroad
bound by or entitled to take the benefit of a contract which the
bargaining representative is prohibited by the statute from
making. In both cases the right asserted, which is derived from
the duty imposed by the statute on the bargaining
representative, is a federal right implied from the statute and
the policy which it has adopted. . . . So long as a labor union
assumes to act as the statutory representative of a craft, it
cannot rightly refuse to perform the duty, which is inseparable
from the power of represen- tation conferred upon it, to
represent the entire member- ship of the craft. While the statute
does not deny to such a bargaining labor organization the right
to determine eligi- bility to its membership, it does require the
union, in collec- tive bargaining and in making contracts with
the carrier, to represent non-union or minority union members
of the craft without hostile discrimination, fairly, impartially,
and in good faith. Wherever necessary to that end, the union is
required to consider requests of non-union members of the craft
and expressions of their views with respect to collective

14. bargaining with the employer and to give to them notice of and
opportunity for hearing upon its proposed action. . . . We
conclude that the duty which the statute imposes on a union
representative of a craft to represent the interests of all its
members stands on no different footing and that the statute
contemplates resort to the usual judicial remedies of injunction
and award of damages when appropriate for breach of that duty.
The judgment is accordingly reversed and remanded. . . . So
ordered. Case Questions 1. Is Steele a member of the union?
Why? 2. To what conduct by the union and the railroad did
Steele object? 3. To which employees does the union owe a duty
of fair representation? What is the source of the union’s duty of
fair representation?.
The Steele case held that the duty of fair representation arose
out of the union’s exclu- sive bargaining agent status under
Section 2, Ninth, of the Railway Labor Act. In Syres v. Oil
Workers Local 23,1 the Supreme Court held that the duty of fair
representation also extended to unions granted bargaining agent
status under Section 9(a) of the NLRA. Unions, in representing
employees, must make decisions that affect different employees
in different ways. For example, in negotiating a contract, the
union must decide whether to seek increased wages or improved
benefits—trade-offs must be made in fashioning contract
proposals. Older employees may be more concerned with
pensions, whereas younger employees may be more concerned
with increased wages. Should the courts monitor the union’s
negotiation proposals to ensure that all workers are fairly
represented? In Ford Motor Co. v. Huffman,2 the Supreme
Court held that unions should be given broad discretion by the
courts in negotiation practices; the courts should ensure only
that the union operates “in good faith and honesty of purpose in
the exercise of its discretion.”
ethical DILEMMA

15. Union MeMbership benefits and Costs You are the human
resource manager of the Springfield plant of Immense Multina-
tional Business; the plant production employees are represented
by a union, and the collective agreement has a union shop
clause requiring employees in the bargaining unit to join the
union and to maintain their membership in good standing. You
have just hired a new production employee, Waylon Smithers,
who asks you if he is required to join the union. He also asks
you what benefits he may receive by becoming a union member
and what the negative aspects of union membership are. How
should you respond to him? Prepare a short memo outlining
your response to his questions, supporting your comments with
appropriate references.
The courts also give unions some leeway in exercising their
contractual duties. In Steelworkers v. Rawson,3 the Supreme
Court held that the allegations that the union had been negligent
in its duty under the collective agreement to conduct safety
inspections did not amount to a breach of the duty of fair
representation because mere negligence, even in the
performance of a contractual duty, does not amount to a breach
of the duty of fair representatio n. Where a union’s work
assignments were not irrational, the union did not breach duty
of fair representation even though the work assignments had the
effect of favoring skilled workers over unskilled workers.4
However, a union’s negligent failure to follow hiring hall rules
may be a breach of the duty of fair representation, according to
Jacoby v. NLRB.5 Although the courts allow unions broad
latitude in negotiations, they may be more concerned with union
decisions involving individual employee grievances. In Vaca v.
Sipes,6 the Supreme Court held that an individual does not have
an absolute right to have a griev- ance taken to arbitration, but
the union must make decisions about the merits of a griev- ance
in good faith and in a nonarbitrary manner.
In Vaca, the union refused to arbitrate the employee’s
grievance. If the union decides to arbitrate the grievance but

16. mishandles the employee’s claim, does it violate the duty of fair
representation? What if the union gives the grievance only
perfunctory handling? The following case addresses these
questions.
CASE 18.2 hiNeS v. aNchoR MotoR FReight, iNc. 424 U.S. 554
(1976)
Facts: Two truck drivers employed by Anchor Motor Freight,
Inc., were discharged for allegedly submitting expense claims in
excess of the actual costs of their motel rooms. The relevant
collective agreement provided that discharge required just
cause. At a grievance meeting between the union and the
employer, the employer presented the following: discharge was
not for good cause, the employer was in viola- tion of the
collective agreement. They also alleged that the union violated
its duty of fair representation by arbitrarily failing to make an
effort to investigate the employer’s charges of dishonesty. The
union relied upon the decision of the arbitration panel, and the
employer claimed that the employees had been properly
discharged for just cause. The employer also claimed that the
employees, diligently and in good faith represented by the
union, had unsuccess- fully resorted to the grievance and
arbitration machinery provided by the contract, and that the
adverse decision of the arbitration panel was binding upon the
union and employees under the collective agreement. During
pretrial discovery proceedings, the motel clerk revealed that he
had falsified the records and had pocketed the difference
between the sums shown on the receipts and the registration
cards. The trial court granted summary judgment for the

17. employer and the union on the ground that the decision of the
arbitration panel was final and binding on the employees and
that they had failed to show that the union had acted arbi -
trarily or in bad faith. The court stated that the union’s conduct
of the investigation and arbitration may have demonstrated bad
judgment on the part of the union, but it was insufficient to
prove a breach of the duty of fair representation. The employees
then appealed to the U.S. Court of Appeals, which reversed the
decision of the trial court and held that the employees had
presented sufficient evidence to support a finding of bad faith
or arbitrary conduct on the part of the union. An appeal was
taken to the U.S. Supreme Court. Issue: Can the union be sued
for breach of the duty of fair representation when the
employer’s discharge of the employees was held by the
arbitration panel not to be in violation of the collective
agreement? Decision: The Supreme Court noted that, in order to
prevail against either the employer or the union, the employees
must show not only that their discharge was in violation of the
collective agreement requirement of just • • • the motel receipts
submitted by the employees that showed charges in excess of
the rates shown on the mo- tel’s registration cards; a notarized
statement of the motel clerk asserting the accuracy of the
registration cards; and an affidavit of the motel owner affirming
that the reg- istration cards were accurate and that inflated
receipts had been supplied to the employees. The union claimed
petitioners were innocent and opposed the discharges. The
grievance over the discharge was then submitted to arbitration
under the collective agreement. The two employees suggested
that the union investigate the motel, but the union responded
that “there was nothing to worry about” and that they need not
hire their own attorney. At the arbitration hearing, Anchor
presented its case. Then both the union and employees were
afforded an oppor- tunity to present their case. The employees
denied the claim of dishonesty, but neither they nor the union
presented any other evidence contradicting the documents
presented by the company. The arbitration panel upheld the

18. discharges. The employees then retained an attorney and sought
rehearing based on a statement by the motel owner that the
discrepancy between the receipts and the registration cards
could have been attributable to the motel clerk’s recording on
the cards less than what was actually paid and pock- eting the
difference between the amount receipted and the amount
recorded. The arbitration panel unanimously denied rehear ing
“because there was no new evidence presented which would
justify reopening this case.” It was later discovered that the
motel clerk was in fact the culprit. The discharged employees
filed suit against both the union and the employer. They alleged
that because their cause but must also carry the burden of
demonstrating a breach of the duty of fair representation by the
union. Such a showing requires more than just demonstrating
mere errors in judgment. The employees are not entitled to
relitigate their discharge merely because they offer newly
discovered evidence that the charges against them were false
and that in fact they were fired without cause. The grievance
processes cannot be expected to be error-free. The finality
provision of the collective agreement regarding arbitration has
sufficient force to surmount occasional instances of mistake.
However, an arbitration decision may be reopened where the
employees’ representation by the union has been dishonest, in
bad faith, or discriminatory. Here, in order to prevail, the
employees must show that the arbitration deci- sion was in error
because it was undermined by the union’s breach of the duty of
fair representation. If they can make such a showing, then they
are entitled to remedies against both the employer for violating
the collective agreement and the union for breach of the duty of
fair representation. The employer is not immunized from
liability for discharge without just cause by reason of the
union’s breach of the duty of fair representation. The Supreme
Court reversed the court of appeals’ deci- sion affirming the
dismissal of the suit against the employer.

19. Union Dues and the Duty of Fair Representation A union owes a
duty of fair representation to all employees in the bargaining
unit it repre- sents, whether or not the employees are members
of the union. As you recall from Chapter 14, Section 8(a)(3)
allows the employer and union to agree on a union security
clause (unless there is a state right-to-work law that prohibits
mandatory union membership or union dues). Union security
clauses generally involve either a union shop clause, which
requires employees to become union members within thirty days
of their employment, or an agency shop clause, which requires
employees to pay union dues and fees. Negotiating a union
security clause that incorporates the language of Section 8(a)(3)
of the NLRA is not a violation of the union’s duty of fair
representation, as held in Marquez v. Screen Actors Guild.7 An
employer who unilaterally ceases to deduct union dues from
employees under a union security clause violates Sections
8(a)(1) and 8(a)(5), according to NLRB v. Oklahoma Fixture
Co.8 Where the collective agreement contains a union shop
agreement, a proviso to Section 8(a)(3) states that an employer
may not discharge an employee for failing to join the union if
union membership is denied for a reason other than failure to
pay union dues or fees. In NLRB v. General Motors Corp.,9 the
Supreme Court held that the effect of that proviso is to reduce
an employee’s obligation under a union shop clause to “a
financial core”—that is, simply to pay union dues and fees.
According to the Supreme Court’s decision in Communications
Workers of America v. Beck,10 unions may not use the dues or
fees of employees who are not union members to pay for union
activities not related to collective bargaining. Such employees
are enti- tled to a reduction in dues and fees by the percentage
of union expenditures that go for non–collective bargaining
expenses. Employees who are not union members may not be
charged for the portion of union dues spent on organizing
activities outside the appro- priate bargaining unit, according to
United Food and Commercial Workers Union, Local 1036 v.

20. NLRB.11 However, in Lehnert v. Ferris Faculty Ass’n,12 the
Supreme Court held that employees who are not union members
but are subject to an agency fee provision under a collective
agreement can be charged a pro rata share of the costs of union
activities related to bargaining, litigation, preparation for a
strike, and other union activities that may not directly benefit
members of bargaining unit; they are not required to pay the
costs of lobbying activity by the union. In Chicago Teachers
Union, Local No. 1 v. Hudson,13 the Supreme Court held that
the union is required to provide objecting members with infor-
mation relating to the union expenditures on collective
bargaining and political activities and must include an adequate
explanation of the basis of dues and fees. The objecting
members must also be provided with a reasonable opportunity to
challenge, before an impartial decision maker, the amount of the
dues or fees; the union must hold in escrow the disputed
amounts pending the resolution of the challenges. Unions may
require that disputes over the amount of agency fees charged to
nonmembers be arbitrated. However, the objecting nonmembers,
unless they have specifically agreed to arbitrate their dispute,
are not required to exhaust the arbitration process before filing
suit in federal court, as held in Air Line Pilots Association v.
Miller.14 A state law that requires public sector unions to get
affirmative authorization of the use of agency shop fees for
political purposes does not violate the unions’ First Amendment
rights, according to the Supreme Court decision in Davenport v.
Washington Education Association.15 Where a union increases
the fee, or imposes a new fee for the union’s political activities,
it must inform nonmembers in the bargaining unit of the
increase or new fee, and allow the nonmembers to choose
whether to pay it.16 In Ysursa v. Pocatello Education Ass’n,17
the Supreme Court upheld the consti- tutionality of an Idaho
state law that prohibited public sector employees from
authorizing voluntary payroll deductions for union political
activities. Shortly after taking office in 2001, President George
W. Bush signed Executive Order 13201,18 which applied to all

21. firms doing business with the federal government. The order
required those firms to post notices in the workplace informing
employees subject to a union security agreement that they have
the right to refuse to pay the portion of their union dues that is
expended for activities unrelated to collective bargaining,
contract administration, or grievance adjustment. However, on
January 30, 2009, President Barack Obama issued Executive
Order 13496,19 which revoked Executive Order 13201. The new
executive order requires employers to post a notice, the content
of which will be established by the Secretary of Labor,
informing employees of their rights under the National Labor
Relations Act.
CASE 18.3 iNteRNatioNal BRotheRhood oF teaMSteRS, local
776, aFl-cio (caRoliNa FReight caRRieRS coRpoRatioN) 324
NLRB 1154 (NLRB 1997)
Michael O. Miller, ALJ ... Since before 1994, the Employer had
recognized Respondent [union] (and the Teamsters National
Freight Industry Negotiating Committee) as the exclusive
collective- bargaining representative of its employees in a unit
appropriate for collective-bargaining purposes. The collective-
bargaining agreement includes a “Union Shop” clause which.”...
[a]ll present employees who are not members of the Local union
and all employees who are hired hereafter [to] become and
remain members in good standing of the Local Union as a
condition of employment on and after the thirty-first (31st) day
following the beginning of their employment....” It further
provides that an employee “who has failed to acquire, or
thereafter maintain, membership in the Union ... shall be
terminated seventy-two (72) hours after his Employer has
received written notice from ... the Local Union.” ... Carolina
hired Timothy Blosser on May 2, 1994, as a casual dock laborer.
As a casual, he had no set or guaranteed hours; his schedule was
determined each week.... The following case illustrates how the

22. NLRB applies the Beck decision. On May 27, the Union sent
Blosser a registered letter outlining what it asserted were his
union membership and financial obligations. That letter stated:
Our Constitution states that after thirty (30) calendar days, you
are required to join the Local Union.... Your initi- ation fee is
$200.00 plus the first month’s dues which is two times your
hourly rate, plus one dollar ($1.00) assessment for the death
benefit.... According to our records, your first day of employ-
ment at Carolina Freight was May 2, 1994. Therefore, per the
terms of our agreement with Carolina Freight and as outlined
above, you are hereby notified that you must come into the
Local Union office and join and/or become a member in good
standing in the Local Union on, but not before June 2, 1994.
Upon failure to comply on this date, we shall contact your
employer to inform him that you are not eligible to work. If you
have any questions regarding Teamsters Local Union No. 776 or
are no longer employed by the above- mentioned company,
please feel free to call. The letter omitted any reference to
employee rights to opt out of full membership or pay less than
the full amount of dues. On June 1, Blosser responded to the
Union’s demand ... he described, as a violation of the duty of
fair representation, a union’s maintenance and application of a
union-security clause requiring membership in good standing
without advising the unit employees that their obligation was
limited to the payment of uniform initiation fees and dues. ...
Blosser asserted that nonmembers “do not have to pay a fee
equal to union dues,” that they “can only be required to pay a
fee that equals their share of what the union can prove is its
costs of collective bargaining, contract administratio n, and
grievance adjustment with their employer.” ... The Union
replied on June 3, notifying Blosser that “the fees established
by our auditor is [sic] 87% of the two times the hourly rate, and
$1.00 for the death benefit, plus the $200.00 initiation fee.”
Accordingly, the dues, he was told, would be $26.10 per month.
He had, he was told, seven days to comply before the employer
would be informed not to assign him work. The correspondence

23. continued. Blosser replied, insisting that, “before the union
demands fees, an independent accountant’s verification of the
union’s cost of collec- tive bargaining, NOT the union’s
interpretation” must be provided. Because no such verification
had been provided, Blosser asserted that no payment could be
demanded and that he would await receipt of that verification.
He also asserted that the initiation fee should similarly be
reduced by the appropriate percentage, 87 percent according to
the Union’s calculation. Finally, he requested a copy of the
collective bargaining agreement. On June 20, the Union sent
Blosser the “latest auditor’s verification of the core fees,” those
for 1993, noting that the computations of the core fees using the
1994 financial information was [sic] in process. The
computation showed the Union’s expenses and the portion of
those expenses, if any, which were chargeable under Beck. It
concluded that the expenses chargeable to protesting members
amounted to 86.7 percent of the total expenses. Blosser was also
told that copies of the National Master Freight Agreement and
the supplement applicable to Carolina are “given to all members
when they become members of the Union.” A hope was
expressed that his dues and initiation fee would be received
within 72 hours. On June 24, the Union sent Blosser a
computer-gener- ated letter reiterating his obligation to pay the
initiation fee and dues. The sums demanded were the full dues
and initia- tion fee; there was no reference to any
adjustments.... It also reiterated his obligation to “become a
member in good standing” with no reference to his right to
choose financial core membership and it threatened to notify his
employer that he was ineligible to work if he did not comply
within 72 hours. Blosser wrote back on June 27, asserting that
he was entitled to the independent auditor’s complete audit or
his complete review, as well as his opinion letter, for the
Local’s expenses as well as those of the Union’s District and
National levels, where some of the dues money goes. He also
threat- ened to file an additional unfair labor practice charge if
he did not get a copy of the collective-bargaining agreement, to

24. which he claimed entitlement as a member of the unit. On June
29, the Union gave him a copy of the contract. The other
information he sought, the Union stated, was “being
investigated as to the legality;” he was promised a subsequent
response. Blosser never became a member of the [union];
neither did he pay it any fees or dues. He volun- tarily left
Carolina’s employ on June 29. ... The union-security clause in
Respondent’s collective- bargaining agreement requires all
employees “to become and remain members in good standing.”
On May 27, and on June 24, the Union demanded that Blosser
“join and/or become a member in good standing in the Local
Union.” At no time was he told that he had a right to be and
remain a nonmember. By failing to so inform him, Respondent
breached the duty of fair representation owed to him as a
member of the bargaining unit and thereby violated Section
8(b)(1)(A).... As set forth [by the NLRB] in California Saw &
Knife Works (1995), a union, when it seeks to enforce a union-
security clause, is required to inform the employees [who
choose not to join the union] of their rights under Beck. Thus,
they must tell the employees that they are not required to pay
the full dues and fees, give those employees information upon
which to intelligently decide whether to object, and apprise
them of the union’s internal procedures for filing objections.
Respondent did none of those when it made repeated demands
upon Blosser that he join the Union and pay dues. It thus failed
in its duty of fair repre- sentation, in violation of Section 8
(b)(1)(A). In its various demands that he pay the dues and the
initiation fee and join the Union, Respondent gave Blosser only
three to seven days in which to decide and act, on pain of the
loss of his job if he failed to comply. At the times it did so,
Respondent had not yet provided him with the Beck
notifications to which he was entitled. General Counsel argues
that by failing to give Blosser a reasonable time within which to
satisfy his dues obligation, Respondent further breached its duty
of fair representation. ... the complaint further alleges this
conduct more generally as unlawful restraint and coercion. I

25. agree. By threatening to cause his termination if he did not join
the Union in an unreasonably short time and without the infor-
mation necessary for him to reasonably decide whether to
assume objector status, Respondent has restrained and coerced
him in violation of Section 8(b)(1)(A). Respondent’s repeated
demands upon Blosser continued to seek payment of the full
$200 initiation fee, even after it acknowledged that some
portion of the dues were [sic] not chargeable to objectors as
representational expenses.... The complaint expressly raised the
issue of the Union’s attempt to collect the full initiation fee
from Blosser. Respondent offered no evidence that funds
derived from initiation fees were expended differently than
those derived from peri- odic dues and presented no argument
on brief that initia- tion fees should be exempt from the Beck
apportionment. Accordingly, I find that by seeking to require
Blosser, a nonmember objector, to pay the full initiation fee,
Respondent breached its duty of fair representation and ther eby
violated Section 8(b)(1)(A). In its computation of “core fees,”
the Union included, as chargeable to objecting employees, its
organizing expenses. The complaint alleges that by the
inclusion of such expenses the Union has breached its duty of
fair repre- sentation.... It is axiomatic that the organizing of
other bargaining units, at least within the same industry and/or
geographical area, strengthens a union’s hand in bargaining
with the employer of objecting employees. Successful orga-
nization of the employees of an employer’s competitors
precludes that employer from arguing, at the bargaining table,
that the lesser wages and benefits paid by his union- free
competition prevents him from granting wage and benefit
increases sought by the union which represents his employees.
It also tends to increase the support which his employees will
receive should they find it necessary to engage in economic
action, such as a strike. Organizing of other employees thus
inures “to the benefit of the members of the local union by
virtue of their membership in the parent organization.”
Moreover, in order to avoid the “free rider” problem . . . it is

26. essential that a union be permitted to charge objecting
nonmembers for its expenses in organizing other units. The
bargaining unit in which the objector finds him or herself has
already been organized. The expense of that organiza- tional
effort was borne by the union (and its members in previously
organized units) sometime in the past; it can no longer be
charged to current employees. Only by permit- ting a union to
pass along the cost of its current organizing efforts to the
members of its already organized units can it equitably recoup
those expenses.It may be that some organizing expenses are too
remote, in terms of industry or geography, to pose more than a
theoretical benefit to the objector’s bargaining unit. However ...
I find that organizing expenses are not “neces- sarily
nonchargeable ... as a matter of law” and recommend dismissal
of this allegation. ... Having found that the Respondent has
engaged in certain unfair labor practices, I find that it must be
ordered to cease and desist and to take certain affirmative
action designed to effectuate the policies of the Act.... [On
review by the NLRB, the Board affirmed the judge’s rulings,
findings, and conclusions and adopted the recom- mended
order.] Case Questions 1. What information does the NLRB
require a union to provide to employees who choose not to
become members? What information did the union provide to
Blosser? 2. Why is the union allowed to include organizing
expenses in the expenses chargeable to nonmembers? What is
the free rider problem? 3. How was the union’s conduct
coercive? What unfair labor practices did the union commit?
Explain.Liability for Breach of the Duty of Fair Representation
Most cases involving the duty of fair representation arise from
action by the employer; after the employee has been disciplined
or discharged, the union’s alleged breach of the duty compounds
the problem. How should the damages awarded in such a case be
divided between the employer and the union? Which party
should bear primary liability? In Vaca v. Sipes,21 the Supreme
Court held that an employer cannot escape liability for breach
of the collective agreement just because the union has breached

27. its duty of fair representation. Where the employee has
established a breach of the collective agreement by the
employer and a breach of the duty of fair representation by the
union, the employer and the union must share liability. In
Bowen v. U.S. Postal Service,22 the Supreme Court held that
the employer is liable for back pay for the discharge of an
employee in breach of the collec- tive agreement, whereas the
union breaching the duty of fair representation by refusing to
grieve the discharge is responsible for any increase in damages
suffered by the employee as a result of the breach of the duty of
fair representation. In Chauffeurs, Teamsters and Helpers, Local
No. 391 v. Terry,23 the Supreme Court held that to recover
damages against both the employer and the union, the employee
must prove both that the employer’s actions violated the
collective agreement and that the union’s handling of the
grievance breached the duty of fair representation. The NLRB
has held that when an employee has established that the union
improperly refused to process a grievance or handled it in a
perfunctory manner, the Board is prepared to resolve doubts
about the merits of the grievance in favor of the employee,
according to Rubber Workers Local 250 (Mack-Wayne
Enclosures).24
ThE WORKING LAw
Notice of Employee Rights under Federal Labor Laws Required
by Executive Order 13496 EMPLOYEE RIGHTS UNDER THE
NATIONAL LABOR RELATIONS ACT
The NLRA guarantees the right of employees to organize and
bargain collectively with their employers, and to engage in
other protected concerted activity. Employees covered by the
NLRA* are protected from certain types of employer and union
misconduct. This Notice gives you general information about
your rights, and about the obligations of employers and unions
under the NLRA. Contact the National Labor Relations Board,
the Federal agency that investigates and resolves complaints

28. under the NLRA, using the contact information supplied below,
if you have any questions about specific rights that may apply
in your particular workplace. Under the NLRA, you have the
right to: • Organize a union to negotiate with your employer
concerning your wages, hours, and other terms and conditions
of employment. • Form, join or assist a union. • Bargain
collectively through representatives of employees’ own
choosing for a contract with your employer setting your wages,
benefits, hours, and other working conditions. • Discuss your
terms and conditions of employment or union organizing with
your co-workers or a union. • Take action with one or more co-
workers to improve your working conditions by, among other
means, raising work-related complaints directly with your
employer or with a government agency, and seeking help from a
union. • Strike and picket, depending on the purpose or means
of the strike or the picketing. • Choose not to do any of these
activities, including joining or remaining a member of a union.
Under the NLRA, it is illegal for your employer to: • Prohibit
you from soliciting for a union during non-work time, such as
before or after work or during break times; or from distributing
union literature during non-work time, in non-work areas, such
as parking lots or break rooms. • Question you about your union
support or activities in a manner that discourages you from
engaging in that activity. • Fire, demote, or transfer you, or
reduce your hours or change your shift, or otherwise take
adverse action against you, or threaten to take any of these
actions, because you join or support a union, or because you
engage in concerted activity for mutual aid and protection, or
because you choose not to engage in any such activity. •
Threaten to close your workplace if workers choose a union to
represent them. • Promise or grant promotions, pay raises, or
other benefits to discourage or encourage union support. •
Prohibit you from wearing union hats, buttons, t-shirts, and pins
in the workplace except under special circumstances. • Spy on
or videotape peaceful union activities and gatherings or pretend
to do so. Under the NLRA, it is illegal for a union or for the

29. union that represents you in bargaining with your employer to: •
Threaten you that you will lose your job unless you support the
union. • Refuse to process a grievance because you have
criticized union officials or because you are not a member of
the union. • Use or maintain discriminatory standards or
procedures in making job referrals from a hiring hall. • Cause or
attempt to cause an employer to discriminate against you
because of your union-related activity. • Take other adverse
action against you based on whether you have joined or support
the union. If you and your coworkers select a union to act as
your collective bargaining representative, your employer and
the union are required to bargain in good faith in a genuine
effort to reach a written, binding agreement setting your terms
and conditions of employment. The union is required to fairly
represent you in bargaining and enforcing the agreement. Illegal
conduct will not be permitted. If you believe your rights or the
rights of others have been violated, you should contact the
NLRB promptly to protect your rights, generally within six
months of the unlawful activity. You may inquire about possible
violations without your employer or anyone else being informed
of the inquiry. Charges may be filed by any person and need not
be filed by the employee directly affected by the violation. The
NLRB may order an employer to rehire a worker fired in
violation of the law and to pay lost wages and benefits, and may
order an employer or union to cease violating the law.
Employees should seek assistance from the nearest regional
NLRB office, which can be found on the Agency’s website:
www.nlrb.gov. Click on the NLRB’s page titled “About Us,”
which contains a link, “Locating Our Offices.” You can also
contact the NLRB by calling toll-free: 1-866-667-NLRB (6572)
or (TTY) 1-866-315-NLRB (6572) for hearing impaired. *The
National Labor Relations Act covers most private-sector
employers. Excluded from coverage under the NLRA are public-
sector employees, agricultural and domestic workers,
independent contractors, workers employed by a parent or
spouse, employees of air and rail carriers covered by the

30. Railway Labor Act, and supervisors (although supervisors that
have been discriminated against for refusing to violate the
NLRA may be covered).
Enforcing the Duty of Fair Representation In Miranda Fuel
Co.,25 the NLRB held that a breach of the duty of fair
representation by a union was a violation of Section 8(b)(1)(A)
of the NLRA. The Board reasoned that “Section 7 ... gives
employees the right to be free from unfair or irrelevant or
invidious treatment by their exclusive bargaining agent in
matters affecting their employment.” Although the Court of
Appeals for the Second Circuit refused to enforce the Board’s
order in Miranda,26 other courts of appeals have affirmed
NLRB findings of Section 8(b)(1)(A) violations in subsequent
duty of fair representation cases. The NLRB continues to hold
that breach of the duty of fair representation by a union is an
unfair labor practice. The NLRB does not have exclusive
jurisdiction over claims of the breach of the duty of fair
representation; federal courts also may exercise jurisdiction
over such claims according to the Supreme Court in Breininger
v. Sheet Metal Workers Local 6.27 The cases developing the
duty of fair representation that we have seen so far have
involved lawsuits filed against both the union and the employer.
Such suits are filed under Section 301 of the NLRA, may be
filed either in state or federal courts, and are subject to federal
labor law, not state contract law. In Steelworkers v. Rawson,28
the Supreme Court held that a wrongful death suit brought under
state law against a union by the heirs of miners killed in an
underground fire was preempted by Section 301. According to
the Supreme Court in Chauffeurs, Teamsters and Helpers, Local
No. 391 v. Terry, an employee who seeks back pay as a remedy
for a union’s violation of the duty of fair representation is
entitled to a jury trial. In DelCostello v. Teamsters,29 the
Supreme Court held that the time limit for bringing a suit under
Section 301 alleging a breach of the duty of fair representation

31. is six months. In cases where the employee is required to
exhaust internal procedures, the six-month time limit does not
begin to run until those procedures have been exhausted,
according to Frandsen v. BRAC.30 A suit against a union for
failing to enforce an arbitration award is an action for breach of
the duty of fair representation and is subject to the six-month
limitations period, as held by Carrion v. Enterprise Association,
Metal Trades Branch Local Union 638.31 Exhausting Internal
Remedies We have seen that the duty of fair representation may
be enforced by either a Section 301 suit or a Section 8(b)(1)(A)
unfair labor practice proceeding. Before either action can be
initiated, however, the employee alleging breach of the duty of
fair representation must attempt to exhaust internal remedies
that may be available. Because most complaints of breaches of
the duty of fair representation result from employer actions,
such as discharge or discipline, which are then compounded by
the union’s breach of its duty, the affected employee may have
the right to file a grievance under the collective bargaining
agreement to challenge the employer’s actions. When
contractual remedies—the grievance procedure and arbitration—
are available to the employee, he or she must first attempt to
use those procedures. This means that the employee must fi le a
grievance and attempt to have it processed through to
arbitration before filing a Section 301 suit or a Section
8(b)(1)(A) complaint. The requirement of exhausting
contractual remedies flows from the policy of fostering
voluntary settlement of disputes. This policy is behind the
court’s deferral to arbitration (recall the Steelworkers Trilogy
from Chapter 17) and the NLRB deferral to arbitration (recall
the discussion of that policy in Chapter 17). The requirement of
exhausting contractual remedies is not absolute. In Glover v. St.
Louis–San Francisco Railway,32 the Supreme Court held that
employees need not exhaust contract remedies when the union
and employer are cooperating in the violation of employee
rights. In such cases, attempts to get the union to file a
grievance or to process it through to arbitration would be an

32. exercise in futility. Aside from contractual remedies, an
employee may have available internal union procedures to deal
with complaints against the union. Some union constitutions
provide for review of complaints of alleged mistreatment of
union members by union leaders. For example, if local union
officials refuse to submit the employee’s grievance to
arbitration, the employee may appeal that decision to the
membership of the local. An appeal to the inter- national union
leadership may also be available. Should an employee be
required to exhaust such internal union remedies before filing a
suit or unfair practice complaint alleging breach of the duty of
fair representation? In Clayton v. United Auto Workers,33 the
Supreme Court held that an employee is not required to exhaust
internal union remedies when the internal union appeals
procedure cannot result in reactivation of the employee’s
grievance or award the complete relief sought by the employee.
In such cases, the employee may file a Section 301 suit or a
Section 8(b)(1)(A) complaint without exhausting the internal
union remedies. If such remedies could provide the relief sought
by the employee, they must be pursued before filing under
Section 301 or Section 8(b)(1)(A). If the alleged breach of the
duty of fair representation involves claims of discrimination
based on race, sex, religion, or national origin, the affected
employees may also have legal remedies under Title VII of the
Civil Rights Act of 1964. Just as in Alexander v. Gardner -
Denver (see Chapter 8), the remedies under Title VII are
separate from any remedies under Section 301 or Section
8(b)(1)(A). The affected employees may then file a complaint
with the Equal Employment Opportunity Commission under
Title VII as well as filing under Section 301 and/or Section
8(b)(1)(A). Remedies available under an action for breach of
the duty of fair representation depend on whether the employee
pursues the claim under Section 301 or Section 8(b)(1)(A).
Under Section 301, an action against both the employer and the
union can be brought. An employee may recover monetary
damages (but not punitive damages) and legal fees and may get

33. an injunction (such as ordering the union to arbitrate the
grievance or ordering the employer to reinstate the employee).
Under Section 8(b)(1)(A), the NLRB can order the union to • • •
pay compensation for lost wages, benefits, and legal fees;
arbitrate the grievance; and “cease and desist” from further
violations. If the employee’s complaint involves action by both
the employer and the union, Section 301 would be preferable; if
only the union is involved, either Section 301 or Section
8(b)(1)(A) is appropriate
18-2 Rights of Union Members
In addition to being protected by the duty of fair representation,
union members have certain rights against the union guaranteed
by statute. The union members’ bill of rights under the Labor
Management Reporting and Disclosure Act and Section 8(b)(1)
establishes those rights. 18-2a Union Discipline of Members
Section 8(b)(1)(A) prohibits union actions that restrain, coerce,
or interfere with employee rights under Section 7. Section
8(b)(1)(A), however, does provide that “This paragraph shall
not impair the right of a labor organization to prescribe its own
rules with respect to the acquisition or retention of membership
therein.” In NLRB v. Allis-Chalmers Mfg. Co.,34 the Supreme
Court held that a union could impose fines against members
who crossed a picket line and worked during an authorized
strike. In NLRB v. Boeing Co.,35 the Supreme Court held that a
union may file suit in a state court to enforce fines imposed
against members. However, if union members legally resign
from the union before crossing the picket line and return to
work during a strike, the union cannot impose fines against
them, as held by the Supreme Court in NLRB v. Textile
Workers Granite State Joint Board.36 Where the process used
by a union to determine the amount of fines levied against
members does not allow the fines to be apportioned between the
members’ conduct before and after they resigned from the
union, the NLRB will rescind the entire amount of the fines,

34. according to Sheet Metal Workers Ass’n.37 In response to the
Textile Workers Granite State Joint Board decision, a number of
unions adopted rules that limited the right of members to resign
from the union during a strike. Such rules violate Section
8(b)(1)(A) according to the Supreme Court decision in Pattern
Makers’ League of North America v. NLRB.38 Where workers
in a right-to-work state resign from the union but continue to
work in the bargaining unit, and later decide to rejoin the union,
a union rule requiring them to pay a “reinitiation” fee equal to
the amount of union dues that they would have paid had they
remained in the union did not violate Section 8(b)(1)(A), as
held in Lee v. NLRB.39 18-2b Union Members’ Bill of Rights
The Labor Management Reporting and Disclosure Act
(LMRDA) seeks to ensure that union members are guaranteed
certain rights when subjected to internal union proceedings.
Section 101 of the LMRDA is commonly called the union
members’ bill of rights. Union Disciplinary Procedures
Procedural safeguards against improper disciplinary action are
provided by Section 101(a)(5), which states: No member of any
labor organization may be fined, suspended, expelled, or
otherwise disciplined except for nonpayment of dues by such
organization or by any officer thereof unless such member has
been (A) served with written specific charges; (B) given a
reasonable time to prepare his defense; (C) afforded a full and
fair hearing. Section 102 of the LMRDA allows any person
whose rights under the act have been violated to bring a civil
suit in the federal courts for such relief as may be appropri ate.
In Wooddell v. International Brotherhood of Electrical Workers,
Local 71,40 the Supreme Court held that a union member suing
under the LMRDA, alleging discrimination against him by the
union in job referrals through the union hiring hall, was entitled
to a jury trial. When a union member alleges that his or her
rights have been violated by union disci- plinary action, what
standards should the court apply to determine if the union
procedure was reasonable? This question was addressed by the
following Boilermakers v. Hardeman case. To have a valid

35. claim under Section 101(a)(5) and Section 102, the union
member must been subjected to discipline by the union. In
Breininger v. Sheet Metal Workers Local 6,41 the Supreme
Court held that Breininger’s suit over the union’s failure to
refer him under a hiring hall agreement because he supported a
political rival of the union business manager did not state a
claim under the LMRDA. The Court held that the failure to refer
him was not “discipline” within the meaning of the act. Where a
union pursuing disciplinary action against a member did not
allow the member to record the disciplinary hearing and allowed
a biased decision maker to sit as a member of the hearing board,
the union was held to have violated the LMRDA due process
requirements, according to Knight v. Longshoremen, ILA.42
CASE 18.4 BoileRMakeRS v. haRdeMaN 401 U.S. 233 (1971
Facts: George Hardeman was a boilermaker and a member of
Local Lodge 112 of the International Brotherhood of
Boilermakers. He went to the union hiring hall to see Herman
Wise, business manager of the local, who was the official
responsible for referring workers for jobs. An employer who
was a friend of Hardeman had promised to ask for him by name
for a job. He sought an assurance from Wise that he would be
referred for the job, but Wise refused to make a definite
commitment. Hardeman threatened violence if no work was
forthcoming in the next few days. Hardeman returned to the
hiring hall the next day and waited for a referral, but there was
none. He returned to the hiring hall the next day, and when
Wise came out of his office, Hardeman handed him a copy of a

36. telegram asking for Hardeman by name. As Wise was reading
the telegram, Hardeman began punching him in the face. The
union brought disciplinary charges against Hardeman. He was
tried on charges of creating dissension and working against the
interest and harmony of the local, and of threat- ening and using
force to restrain an officer of the lodge from properly
discharging the duties of his office. The trial committee found
him guilty of the charges, and the local sustained the finding
and voted his expulsion for an indefinite period. Hardeman then
sought an internal union appeal of this action, but the verdict
and the penalty were upheld. Five years later, Hardeman filed
suit against the union, alleging that it violated Section 101(a)(5)
by denying him a full and fair hearing in the union disciplinary
proceedings. After a jury trial, Hardeman was awarded damages
of $152,150. On appeal, the U.S. Court of Appeals for the Fifth
Circuit affirmed the trial decision. The union then appealed to
the U.S. Supreme Court. Issue: What standards should the
courts use to review whether union disciplinary procedures are
reasonable under Section 101(a)? Decision: The union claimed
that the NLRB had exclusive jurisdiction over the subject matter
of this lawsuit because it involves an allegation of
discrimination against Hardeman in job referrals, which is
arguably an unfair labor practice under Sections 8(b)(1)(A) and
8(b)(2) of the NLRA and that the federal courts must defer to
the exclusive competence of the NLRB. The Court rejected that
claim, holding that Hardeman’s suit alleged that his expulsion
was unlawful under Section 101(a)(5), and he sought
compensation for the consequences of the claimed wrongful
expulsion. The issue presented by Hardeman’s suit was whether
the union disciplinary proceedings had denied him a full and
fair hearing within the meaning of Section 101(a)(5)(c).
Congress explicitly referred claims under Section 101(a)(5) not
to the NLRB, but to the federal district courts, as stated in
Section 102. The internal union procedures resulted in
Hardeman being convicted on both charges, and he was expelled
from the union. When the trial court was considering

37. Hardeman’s suit against the union, the trial judge held that
whether Hardeman was rightfully or wrongfully expelled was a
question of law for the judge to determine. The judge assumed
that the transcript of the union disciplinary hearing contained
evidence adequate to support conviction of using threats or
force against an officer of the union, but held that there was no
evidence in the transcript to support the charge of creating
dissension and working against the interest and harmony of the
local. Because the union tribunal had returned only a general
verdict, and since one of the charges was thought to be
supported by no evidence whatsoever, the trial judge held that
Hardeman had been deprived of the full and fair hearing
guaranteed by Section 101(a)(5), and the court of appeals
affirmed. The Supreme Court disagreed, holding that neither the
language nor the legislative history of Section 101(a)(5) could
justify the substitution of judicial authority for the union’s
authority to interpret its regula- tions when determining whether
the scope of offenses warrant discipline of union members. The
Court stated that Section 101(a)(5) was not intended to
authorize courts to determine the scope of offenses for which a
union may discipline its members, and it is not appropriate for a
court to construe the union’s written disciplinary rules in order
to determine whether particular conduct may be punished at all.
Here, Hardeman was given a detailed statement of the facts
relating to the fight which formed the basis for the disci-
plinary action against him, which complied with the notice
requirement of Section 101(a)(5). Section 101(a)(5)(c)
guarantees union members a “full and fair” disciplinary hearing,
and the parties and the lower federal courts are in full
agreement that this guarantee requires the charging party to
provide some evidence at the disciplinary hearing to support the
charges made. The courts have repeat- edly held that conviction
on charges unsupported by any evidence is a denial of due
process, and Section 101(a)(5)(c) imports a similar requirement
into union disciplinary proceedings. In this case, there is no
question that the charges were adequately supported by “some

38. evidence.” The Supreme Court reversed the court of appeals’
deci- sion affirming the trial court verdict.
Free Speech and Association Whereas Section 101(a)(5)
guarantees union members’ procedural rights in union disci -
plinary proceedings, the other provisions of Section 101(a)
provide for other basic rights in participating in union
activities. These rights take precedence over any provisions of
union constitutions or bylaws that are inconsistent with Section
101 rights. Section 101(b) states that any such inconsistent
provisions shall have no effect. Section 101(a)(2) provides for
the rights of freedom of speech and assembly for union
members. Every union member has the right to meet and
assemble with other members and to express any views or
opinions, subject to the union’s reasonable rules for the conduct
of meetings. As long as any item of business is properly before
a union meeting, a union member may express his or her views
on that item of business. The latitude given to union members to
express their opinions at union meetings is very broad. Any
restrictions on such expression must be reasonable and required
for the orderly conducting of union meet- ings. Violations of
these rights give rise to civil liability. In Hall v. Cole,43 a
union member was expelled from the union after introducing a
series of resolutions alleging undemocratic actions and
questionable policies by union officials. The union claimed such
resolutions violated a rule against “deliberate and malicious
vilification with regard to the execution or duties of any
office.” The member filed suit under Section 102, alleging
violations of his rights guaranteed by Section 101(a)(2). The
Supreme Court upheld the trial decision ordering that the
member be reinstated in the union and awarding him $5,500 in
legal fees. In Sheet Metal Workers International Association v.
Lynn,44 an elected business agent of the union filed suit under
Section 102 over his removal from office because of statements

39. he made at a union meeting opposing a dues increase sought by
the union trustee. The Supreme Court held that his removal
from office constituted a violation of the free speech provisions
of Section 101(a)(2). In United Steelworkers of America v.
Sadlowski,45 the Supreme Court held that a union rule
prohibiting contributions from nonmembers in campaigns for
union offices did not violate a union member’s right of free
speech and assembly under Section 101(a)(2), even though it
had the effect of making a challenge to incumbent union
officers much more difficult. The courts have recognized some
other limits on union members’ rights of free speech and
assembly. A union member cannot preach “dual unionism” —
that is, advocate member- ship in another union during his
union’s meeting. Furthermore, the remarks of a union member
are subject to libel and slander laws. The right of free assembly
does not protect a group of members who engage in a wildcat
strike that violates the union’s no-strike agree- ment with the
employer. Right to Participate in Union Affairs The right of
union members to participate in all membership business, such
as meetings, discussions, referendums, and elections, is
guaranteed by Section 101(a)(1) of the LMRDA. This right to
participate is subject to the reasonable rules and regulations of
the union’s constitution and bylaws. Any provisions that are
inconsistent with these rights are of no effect by reason of
Section 101(b). The provisions of the LMRDA allow a union to
require that members exhaust internal union remedies before
pursuing external action for violation of the rights granted by
the LMRDA. Section 101(a)(4) does provide, however, that the
internal union proceedings cannot last longer than four months.
If the proceedings take longer than four months, the member is
not required to pursue them before instituting external
proceedings.Election Procedures Title IV of the LMRDA
requires that union elections be conducted according to certain
democratic procedures. Section 401 sets the following
requirements: • National and international labor organizations
must elect their officers at least every five years • Every local

40. union must hold elections at least every three years • Elections
shall be by secret ballot or at a convention of delegates chosen
by secret ballot • There must be advance notice of the election,
freedom of choice among candidates, and publication and one
year’s preservation of the election results • Dues and
assessments cannot be used to support anyone’s candidacy •
Every candidate has the right to inspect lists of members’ names
and addresses • Each candidate has the right to have observers
at polling places and at the counting of the ballots In the case of
International Organization for Masters, Mates & Pilots v.
Brown,46 the Supreme Court held that labor unions must
cooperate with all reasonable requests from candidates for
union office to distribute campaign literature despite union
rules restricting such requests. In that case, the Court decided
that a union refusal to provide a membership list to a candidate
because of a union rule prohibiting preconvention mailings was
in violation of the LMRDA. The election provisions of the
LMRDA also prohibit unduly restrictive eligibility requirements
that enable incumbents to become entrenched in office. Such
eligibility requirements are the subject of the following case.
CASE 18.5 heRMaN v. local 1011, uNited SteelwoRkeRS oF
aMeRica 207 F.3d 924 (7th Cir. 2000), cert. denied, 531 U.S.
1010 (2000)
Posner, Chief Judge Section 401(e) of the Labor–Management
Reporting and Disclosure Act [LMRDA] makes all union
members in good standing eligible to run for office in the
union’s elections subject to “reasonable qualifications
uniformly imposed.” The constitution of the steel-workers inter-
national union conditions eligibility for local office on the
member’s having attended at least eight of the local’s monthly
meetings (or been excused from attendance at them, in which
event he must have attended one-third of the meetings from
which he was not excused) within the two years preceding the

41. election. Noting that the rule disqualifies 92 percent of the
almost 3,000 members of Local 1011 of the steelworkers union,
the district judge, at the behest of the Secretary of Labor ...
declared the rule void. The Act’s aim was to make the
governance of labor unions democratic. The democratic
presumption is that any adult member of the polity, which in
this case is a union local, is eligible to run for office.... As an
original matter we would think it, not absurd, but still highly
questionable, to impose a meeting-attendance requirement on
aspirants for union office, at least in the absence of any
information, which has not been vouchsafed us, regarding the
character of these meetings. All we know is that they are
monthly and that the union’s constitution requires that all
expenditure and other decisions of the union’s hierarchy be
approved at these meetings; yet despite the formal power that
the attendants exercise, only a tiny percentage of the union’s
membership bothers to attend— on average no more than 3
percent (fewer than 90 persons). We are not told whether an
agenda or any other material is distributed to the membership in
advance of the meeting to enable members to decide whether to
attend and to enable them to participate intelligently if they do
attend. We do not know how long the meetings last or what
information is disseminated at them orally or in writing to
enable the attenders to cast meaningful, informed votes. For all
we know the only attenders are a tiny coterie of insiders not
eager to share their knowledge with the rest of the union’s
members.... All we know for sure about this case, so far as bears
on the reasonableness of the meeting-attendance requirement, is
that the requirement disqualifies the vast majority of the
union’s members, that it requires members who have not been
attending meetings in the past to decide at least eight months
before an election that they may want to run for union office
(for remember that the meetings are monthly and that a
candidate must have attended at least eight within the past two
years unless he falls within one of the excuse categories), and
that the union itself does not take the requirement very

42. seriously, for it allows members who have attended no meetings
to run for office, provided that they fall into one of the excuse
categories. The catego- ries are reasonable in themselves—
service with the armed forces, illness, being at work during the
scheduled time of the meeting, and so forth—and they expand
the pool of eligibles from 95 union members to 242, of whom
53 attended not a single meeting. But if the meeting- attendance
requirement were regarded as a vital condi- tion of effective
officership, equivalent in importance to the LMRDA’s
requirement that the candidate be a union member in good
standing, the fact that a member was without fault in failing to
satisfy it would not excuse the failure.... So many of the union’s
members are excused from the meeting-attendance requirement
that there could be an election for officers of Local 1011 at
which none of the candidates satisfied the requirement. The
requirement is paternalistic. Union members should be capable
of deciding for themselves whether a candidate for union office
who had not attended eight, or five, or for that matter any
meetings within the past two years should by virtue of his poor
attendance forfeit the electorate’s consideration. The union’s
rule is antidem- ocratic in deeming the electors incompetent to
decide an issue that is in no wise technical or esoteric—what
weight to give to a candidate’s failure to have attended a given
number of union meetings in the recent past. . . . And since
most union members interested in seeking an office in the union
are likely to attend meetings just to become known ... the rule is
superfluous. ... Under conditions of pervasive apathy, a
requirement of attending even a single meeting might disqualify
the vast bulk of the membership. That is true here. Only 14
percent of the members attended even one meeting within the
last two years. Yet the Department of Labor does not argue that
therefore even a one-meeting requirement would be
unreasonable. ... We think the proper approach, and one that is
consistent with the case law ... is to deem a condition of
eligibility that disqualifies the vast bulk of the union’s
membership from standing for union office presump- tively

43. unreasonable. The union must then present convincing reasons,
not merely conjectures, why the condition is either not
burdensome or though burden- some is supported by compelling
need. This approach distinguishes ... between impact and
burden. A require- ment that to be eligible to be a candidate a
member of the union have attended one meeting of the union in
his lifetime would not be burdensome even though it might
disqualify a large fraction of the union membership simply
because very few members took any interest in the governance
of the union. That defense is unavailable here, however.
Requiring attendance at eight meetings in two years imposes a
burden because it compels the prospec- tive candidate not only
to sacrifice what may be scarce free time to sit through eight
meetings, but also, if he is disinclined to attend meetings for
any reason other than to be able to run for union office, to make
up his mind whether to run many months before the election.
The burden is great enough in this case to place the onus of
justification on the union. The only justification offered is that
the requirement of attending eight meetings in two years
encourages union members who might want to run for office,
perhaps especially opponents of the incumbents, to attend union
meetings (since otherwise they may not be eligible to run), thus
bolstering attendance at the meetings and fostering participatory
democracy. The slight turnout at the meetings suggests that this
goal, though worthy, cannot be achieved by the means adopted;
the means are not adapted to the end, suggesting that the real
end may be different. So far as appears, the union has given no
consid- eration to alternative inducements to attend meetings
that would not involve disqualifying from office more than
nine- tenths of its members.... Under the rule challenged in this
case, a union member who wanted to be sure of qualifying for
eligibility to run for office might have to start attending
meetings as much as a year in advance of the election, because
he might miss one or more meetings for reasons that the union
does not recognize as excusing (such as vaca- tion or family
leave) and because the union might cancel one or more

44. meetings. And yet a year before the election an issue that might
move a union member to incur the time and expense of running
for office might not even be on the horizon.... The district court
was right to invalidate the meeting- attendance requirement as
unreasonable, and the judgment is therefore. AFFIRMED. Case
Questions 1. What does the election rule require of members
who want to run for union office? Why would the union impose
such a requirement? 2. Why has the Secretary of Labor
(Herman) challenged the election-eligibility rule? 3. What does
the court mean by distinguishing “between impact and burden”
of the challenged rule? How does the court’s approach apply to
the rule at issue in this case?
18-2c Other Restrictions on Unions Duties of Union Officers
The provisions of the LMRDA and the Taft-Hartley amendments
to the NLRA imposed a number of duties on union officers to
eliminate financial corruption and racketeering and to safeguard
union funds. All officials handling union money must be
bonded, and persons convicted of certain criminal offenses are
barred from holding union office for five years. Unions are also
subjected to annual reporting requirements by the LMRDA. The
union reports, filed with the Secretary of Labor, must contain
the following information: • the name and the title of each
officer; • the fees and dues required of members; • provisions
for membership qualification and issuing work permits; • the
process for electing and removing officers; • disciplinary
standards for members; • details of any union benefit plans; and
• authorization rules for bargaining demands, strikes, and
contract ratification. Any changes in the union constitution,
bylaws, or rules must be reported. In addition, detailed financial
information must be reported annually; these financial reports
must contain information on the following: • assets and
liabilities at the beginning and end of the fiscal year; • union

45. receipts and their sources; • salaries paid by the union in excess
of $10,000 total; • any loans by the union in excess of $250; and
• any other union disbursements. All reports and information
filed with the Secretary of Labor must also be made avail - able
to union members. Union officials must report any security or
financial interest in, or any benefit received from, any employer
whose employees are represented by the union and anything of
value received from any business dealing connected with the
union. The LMRDA imposes on union officers a duty to refrain
from dealing with the union as an adverse party in any manner
connected with their duties and to refrain from holding or
acquiring any personal or pecuniary interest that conflicts with
the interests of the union, according to Chathas v. Local 134
I.B.E.W.47 Employers are required to make annual reports of
any expenditures or transactions with union representatives and
payments to employees or consultants for the purpose of
influencing organizational or bargaining activities. Welfare and
Pension Plans Section 302 of the Taft-Hartley Act, along with
the Employee Retirement Income Security Act (ERISA),
controls the operation and administration of employee welfare
and pension plans. Persons administering such funds must
handle them to protect the interests of all employees. Union
officials serving as trustees or administrators of such funds may
receive only one full- time salary. They must also be careful to
keep their roles as trustee and union official separated. Section
304 of the Taft-Hartley Act, along with the federal election
laws, control union political contributions and expenditures.
Union dues or assessments may not be used to fund political
expenditures. However, the union may establish a separate
political fund if it is financed by voluntary contributions from
union members. Members must be kept informed of the use of
such funds and must not be subject to any reprisals in connec-
tion with the collection of contributions. State laws may affect
public sector unions; a law requiring public sector unions to get
affirmative authorization of the use of agency shop fees for
political purposes was valid and did not violate the unions’ First

46. Amendment rights, as held by Davenport v. Washington
Education Association.48
C H A P T E R 19
Public Sector Labor Relations
19-1 The rights of public sector employees to organize and
bargain collectively are relatively recent legal developments.
The National Labor Relations Act (NLRA) excludes employees
of the federal, state, and local governments from its coverage.
Only in the last several decades have Congress, the executive
branch, and the states adopted legal provisions allowing public
employees some rights to organize and bargain collectively.
Furthermore, during the first dozen years of the 21st century,
public employee unions have come under attack in several
states. In these states, Republican governors and GOP-
dominated legislatures have sought to withdraw collective
bargaining rights and to rescind benefits from their unionized
employees. They have sometimes succeeded in doing so. This
chapter examines the legal provisions that enable public
employees to engage in labor relations activities and the recent
trend toward repealing and amending many of those laws. Labor
relations legislation affecting the federal sector is exam- ined in
some detail, and the recent developments in state legislation are
also surveyed. Government as Employer Although many labor
relations issues in the public sector are similar to those in the
private sector, there are also significant differences. Actions
taken by government employers with regard to their employees
may raise issues regarding the constitutional rights of those
employees. Both the U.S. Constitution and the various state
constitutions regulate and limit government action affecting
citizens. Because public sector workers are simultane- ously
both citizens and employees, employers must respect their
constitutional rights. The public sector employer may therefore

47. be limited in its attempts to discipline or regulate its employees
by constitutional requirements, such as “due process of law.”
The private sector employer faces no similar constitutional
problems. Another area in which public sector labor relations
differ from the private sector involves the idea of sovereignty.
The government, as government, is sovereign; it cannot vacate
or delegate its sovereignty. The government may be obligated
by law to perform certain func- tions and provide certain
services, and government officials are given authority to take
such actions and make such decisions as are necessary to
perform those functions. Collective bargaining involves sharing
decision-making power between the employer and the union; the
employer and the union jointly determine working conditions,
rates of pay, benefits, and so on. For the public sector
employer, collective bargaining may involve delegating to the
union the authority relating to the employer’s statutory
obligations. Bargaining may also affect the financial condition
of the employer, requiring tax increases or cutbacks in the level
of public services provided by the government employer.
Because of this concern over sharing or delegating government
sovereignty with the union, public sector labor relations statutes
may narrowly define terms and conditions of employment and
limit the matters that are subject to collective bargaining to
avoid the government employer abdicating its legal authority. In
the federal government, for example, most employees have their
wages set by statute. Collective bargaining in the federal
service is precluded from dealing with any matter that is
“provided for by Federal statute.” Some state public sector
labor relations stat- utes do not provide for collective
bargaining at all but rather for consultation or “meeting and
conferring” on working conditions. A third area in which public
sector employment differs from the private sector is the right to
strike. The right to strike is protected by Section 7 of the NLRA
for private sector workers. Public sector workers, in general, do
not have the right to strike. The activities of the government
employer are usually vital to the public interest. Disruptions of

48. these activi- ties because of labor disputes could imperil the
welfare of the public. For that reason, the right to strike by
public sector workers may be prohibited (as in the federal
government and most states) or be limited to certain employees
whose refusal to work would not endanger the public safety or
welfare (as in several states). The following case involves a
challenge to the prohibitions of strikes by federal employees.
The union representing postal clerks argues that such a
prohibition violates their members’ constitutional rights to
strike.
CASE 19.1 Postal Clerks v. Blount 325 F. Supp. 879 (U.S.D.C.,
D.C. 1971), aff’d, 404 U.S. 802 (1971
Per Curiam This action was brought by the United Federation of
Postal Clerks (hereafter sometimes referred to as “Clerks”), an
unincorporated public employee labor organization which
consists primarily of employees of the Post Office Department,
and which is the exclusive bargaining represen- tative of
approximately 305,000 members of the clerk craft employed by
defendant. Defendant Blount is the Postmaster General of the
United States. The Clerks seek declaratory and injunctive relief
invalidating portions of 5 U.S.C. Section 7311, 18 U.S.C.
Section 1918, an affidavit required by 5 U.S.C. Section 3333 to
implement the above statutes, and Executive Order 11491. The
Government, in response, filed a motion to dismiss or in the
alternative for summary judgment, and plaintiff filed its
opposition thereto and cross motion for summary judgment.... 5
U.S.C. Section 7311(3) prohibits an individual from accepting
or holding a position in the federal government or in the
District of Columbia if he (3) participates in a strike ... against
the Government of the United States or the government of the

49. District of Columbia.... Paragraph C of the appointment
affidavit required by 5 U.S.C. Section 3333, which all federal
employees are required to execute under oath, states: I am not
participating in any strike against the Government of the United
States or any agency thereof, and I will not so participate while
an employee of the Government of the United States or any
agency thereof. 18 U.S.C. Section 1918, in making a violation
of 5 U.S.C. Section 7311 a crime, provides: Whoever violates
the provision of Section 7311 of Title 5 that an individual may
not accept or hold a position in the Government of the United
States or the government of the District of Columbia if he … (3)
participates in a strike, or asserts the right to strike, against the
Government of the United States or the District of Columbia ...
shall be fined not more than $1,000 or imprisoned not more than
one year and a day, or both. Section 2(e)(2) of Executive Order
11491 exempts from the definition of a labor organization any
group which: asserts the right to strike against the Government
of the United States or any agency thereof, or to assist or
participate in such strike, or imposes a duty or obligation to
conduct, assist or participate in such a strike. Section 19(b)(4)
of the same Executive Order makes it an unfair labor practice
for a labor organization to: call or engage in a strike, work
stoppage, or slowdown; picket any agency in a labor–
management dispute; or condone any such activity by failing to
take affirmative action to prevent or stop it; ... Plaintiff
contends that the right to strike is a fundamental right protected
by the Constitution, and that the absolute prohibition of such
activity by 5 U.S.C. Section 7311(3), and the other provisions
set out above thus constitutes an infringement of the employees’
First Amendment rights of association and free speech and
operates to deny them equal protection of the law. Plaintiff also
argues that the language to “strike” and “participate in a strike”
is vague and over- broad and therefore violative of both the
First Amendment and the Due Process Clause of the Fifth
Amendment. For the purposes of this opinion, we will direct our
attention to the attack on the constitutionality of 5 U.S.C.

50. Section 7311(3), the key provision being challenged.... At
common law no employee, whether public or private, had a
constitutional right to strike in concert with his fellow workers.
Indeed, such collective action on the part of employees was
often held to be a conspiracy. When the right of private
employees to strike finally received full protection, it was by
statute, Section 7 of the National Labor Relations Act, which
“took this conspiracy weapon away from the employer in
employment relations which affect interstate commerce” and
guaranteed to employees in the private sector the right to
engage in concerted activities for the purpose of collective
bargaining. It seems clear that public employees stand on no
stronger footing in this regard than private employees and that
in the absence of a statute, they too do not possess the right to
strike. The Supreme Court has spoken approvingly of such a
restriction, and at least one federal district court has invoked
the provisions of a predecessor statute, 5 U.S.C. Section 118p-r,
to enjoin a strike by government employees. Likewise, scores of
state cases have held that state employees do not have a right to
engage in concerted work stoppages in the absence of legis-
lative authorization. It is fair to conclude that, irrespective of
the reasons given, there is unanimity of opinion on the part of
courts and legislatures that government employees do not have
the right to strike. Congress has consistently treated public
employees as being in a different category than private
employees. The National Labor Relations Act and the Labor-
Management Relations Act of 1947 (Taft- Hartley) both defined
“employer” as not including any governmental or political
subdivisions, and thereby indi- rectly withheld the protections
of Section 7 from govern- mental employees. Congress
originally enacted the no-strike provision separately from other
restrictions on employee activity by attaching riders to
appropriations bills, which prohibited strikes by government
employees.... Given the fact that there is no constitutional right
to strike, it is not irrational or arbitrary for the Government to
condition employment on a promise not to withhold labor

51. collectively, and to prohibit strikes by those in public
employment, whether because of the prerogatives of the
sovereign, some sense of higher obligation associated with
public service, to assure the continuing functioning of the
Government without interruption, to protect public health and
safety, or for other reasons. Although plaintiff argues that the
provisions in question are unconstitutionally broad in covering
all Government employees regardless of the type or importance
of the work they do, we hold that it makes no difference
whether the jobs performed by certain public employees are
regarded as “essential” or “nonessential,” or whether similar
jobs are performed by workers in private industry who do have
the right to strike protected by statute. Nor is it relevant that
some positions in private industry are arguably more affected
with a public interest than are some positions in the
Government service.... Furthermore, it should be pointed out
that the fact that public employees may not strike does not
interfere with their rights, which are fundamental and
constitutionally protected. The right to organize collectively
and to select representatives for the purposes of engaging in
collective bargaining is such a fundamental right. But, as the
Supreme Court noted in Local 232 v. Wisconsin Employment
Relations Board, “The right to strike, because of its more
serious impact upon the public interest, is more vulnerable to
regulation than the right to organize and select representatives
for lawful purposes of collective bargaining which this Court
has characterized as a ‘fundamental right’ and which, as the
Court has pointed out, was recognized as such in its decisions
long before it was given protection by the National Labor
Relations Act.” Executive Order 11491 recognizes the right of
federal employees to join labor organizations for the purpose of
dealing with grievances, but that Order clearly and expressly
defines strikes, work stoppages and slowdowns as unfair labor
practices. As discussed above, that Order is the culmination of a
longstanding policy. There certainly is no compelling reason to
imply the existence of the right to strike from the right to

52. associate and bargain collectively. In the private sphere, the
strike is used to equalize bargaining power, but this has
universally been held not to be appropriate when its object and
purpose can only be to influence the essen- tially political
decisions of Government in the allocation of its resources.
Congress has an obligation to ensure that the machinery of the
Federal Government continues to function at all times without
interference. Prohibition of strikes by its employees is a
reasonable implementation of that obligation. Accordingly, we
hold that the provisions of the statute, the appointment affidavit
and the Executive Order, as construed above, do not violate any
constitutional rights of those employees who are members of
plaintiff’s union. The Government’s motion to dismiss the
complaint is granted. Order to be presented. Case Questions 1.
Do public sector employees have a constitutional right to strike?
Is the right to strike protected at common law? 2. Does the right
of employees to organize and join unions for purposes of
collective bargaining include the right to strike? 3. Are the
legislative prohibitions against strikes by federal employees
constitutional? What is the rationale behind such prohibitions?
19-2 Federal Government Labor Relations 19-2a Historical
Background It is not clear exactly when federal employees
began negotiating over the terms of their employment, but
informal bargaining began as long ago as 1883. In that year, the
Pendleton Act, known as the Civil Service Act, was passed. It
granted Congress the sole authority to set wages, hours, and
other terms and conditions of federal employment. This act led
to informal bargaining and congressional lobbying by federal
employees seeking higher wages and better working conditions.
In 1906, President Theodore Roosevelt halted the informal
bargaining by issuing an executive order forbidding federal
employees or their associations from soliciting increases in pay,
either before Congress and its committees or before the heads of

53. the executive agen- cies. Employees violating the order faced
dismissal. In the years following the executive order, Congress
passed several laws that gave limited organization rights to
some federal workers. The Lloyd–La Follette Act of 1912 gave
postal workers the right to join unions. In 1920, the federal
government negotiated the terms of a contract with the union
representing construction workers building the government-
sponsored Alaskan Railroad. It was not until 1962, however,
with the issuing of Executive Order 10988 by President
Kennedy, that large numbers of federal employees were given
the right to organize. The executive order recognized the right
of federal workers to unionize and to present their views on
terms and conditions of employment to the agencies for which
they worked. Executive Order 10988 was supplemented by
Executive Order 11491, which was issued in 1969 by President
Nixon. That order placed the entire program of employee–
management relations under the supervision and control of the
Federal Labor Relations Council. The Federal Service Labor–
Management Relations Act of 1978 (FSLMRA), which was
enacted as part of the Civil Service Reform Act of 1978, was
the first comprehensive enactment covering labor relations in
the federal government. The FSLMRA took effect in January
1979. 19-2b The Federal Service Labor–Management Relations
Act The FSLMRA, which was modeled after the NLRA,
established a permanent structure for labor relations in the
federal public sector. It created the Federal Labor Relations
Authority (FLRA) to administer the act, and it granted federal
employees the right to orga- nize and bargain collectively. It
also prohibited strikes and other defined unfair practices.
Coverage The FSLMRA covers federal employees who are
either employed by a federal agency or who have ceased to
work for the agency because of an unfair labor practice. Most
federal agen- cies are covered, but some are specifically
exempted. The following agencies are excluded from FSLMRA
coverage: • the FBI • the CIA • the National Security Agency •
the General Accounting Office • the Tennessee Valley Authority

54. • the FLRA itself, and • the Federal Service Impasses Panel
Furthermore, any agency that the president determines is
investigative in nature or has a primary function of intelligence
and would thus not be amenable to FSLMRA coverage because
of national security may be excluded. The FSLMRA also
excludes certain employees from coverage, including: •
noncitizens working outside the United States for federal
agencies; • supervisory and managerial employees; in pay,
either before Congress and its committees or before the heads of
the executive agen- cies. Employees violating the order faced
dismissal. In the years following the executive order, Congress
passed several laws that gave limited organization rights to
some federal workers. The Lloyd–La Follette Act of 1912 gave
postal workers the right to join unions. In 1920, the federal
government negotiated the terms of a contract with the union
representing construction workers building the government-
sponsored Alaskan Railroad. It was not until 1962, however,
with the issuing of Executive Order 10988 by President
Kennedy, that large numbers of federal employees were given
the right to organize. The executive order recognized the right
of federal workers to unionize and to present their views on
terms and conditions of employment to the agencies for which
they worked. Executive Order 10988 was supplemented by
Executive Order 11491, which was issued in 1969 by President
Nixon. That order placed the entire program of employee–
management relations under the supervision and control of the
Federal Labor Relations Council. The Federal Service Labor –
Management Relations Act of 1978 (FSLMRA), which was
enacted as part of the Civil Service Reform Act of 1978, was
the first comprehensive enactment covering labor relations in
the federal government. The FSLMRA took effect in January
1979. 19-2b The Federal Service Labor–Management Relations
Act The FSLMRA, which was modeled after the NLRA,
established a permanent structure for labor relations in the
federal public sector. It created the Federal Labor Relations
Authority (FLRA) to administer the act, and it granted federal

55. employees the right to orga- nize and bargain collectively. It
also prohibited strikes and other defined unfair practices.
Coverage The FSLMRA covers federal employees who are
either employed by a federal agency or who have ceased to
work for the agency because of an unfair labor practice. Most
federal agen- cies are covered, but some are specifically
exempted. The following agencies are excluded from FSLMRA
coverage: • the FBI • the CIA • the National Security Agency •
the General Accounting Office • the Tennessee Valley Authority
• the FLRA itself, and • the Federal Service Impasses Panel
Furthermore, any agency that the president determines is
investigative in nature or has a primary function of intelligence
and would thus not be amenable to FSLMRA coverage because
of national security may be excluded. The FSLMRA also
excludes certain employees from coverage, including: •
noncitizens working outside the United States for federal
agencies; • supervisory and managerial employees; is authorized
to negotiate the terms and conditions of employment of the
employees in the unit. The union must fairly represent all
employees in the unit without discrimination or regard to union
membership. The FLRA is authorized to settle questions
relating to issues of representation, such as the determination of
the appropriate unit and the holding of representation elections.
Appropriate Representation Units The FLRA is empowered to
determine the appropri- ateness of a representation unit of
federal employees. The FLRA ensures the employees the fullest
possible freedom in exercising their rights under the FSLMRA
in determining the unit, and it ensures a clear and identifiable
community of interest among the employees in the unit to
promote effective dealing with the agency involved. The FLRA
may determine the appropriate- ness of a unit on an agency,
plant, installation, functional, or other basis. Units may not
include: • Any management or supervisory employees •
Confidential employees • Employees engaged in personnel work
except those in a purely clerical capacity • Employees doing
investigative work that directly affects national security •

56. Employees administering the FSLMRA • Employees primarily
engaged in investigation or audit functions relating to the work
of individuals whose duties affect the internal security of an
agency Any employees engaged in administering any provision
of law relating to labor– management relations may not be
represented by a labor organization that is affiliated with an
organization representing other individuals under the act. An
appropriate unit may include professional and nonprofessional
employees only if the professional employees, by majority vote,
approve their inclusion. RepresentationElections
TheproceduresforrepresentationelectionsundertheFSLMRA
closely resemble those for elections under the NLRA. The act
allows for the holding of consent elections to determine the
exclusive representative of a bargaining unit. It also provides
that the FLRA may investigate the question of representation,
including holding an election, if a petition is filed by any
person alleging that 30 percent of the employees in a unit wish
to be represented by a union for the purpose of collective
bargaining. In addition, when a petition alleging that 30 percent
of the members of a bargaining unit no longer wish to be
represented by their exclusive representative union, the FLRA
will investigate the representation question. If the FLRA finds
reasonable cause to believe that a representation question exists,
it will provide, upon reasonable notice, an opportunity for a
hearing. If, on the basis of the hearing, the FLRA finds that a
question of representation does exist, it will conduct a repre-
sentation election by secret ballot. An election will not be held
if the unit has held a valid election within the preceding 12
months. When an election is scheduled, a union may intervene
and be placed on the ballot if it can show that it is already the
unit’s exclusive representative or that it has the support of at
least 10 percent of the employees in the unit. The election is by
secret ballot, with the employees choosing between the union(s)
and no representation. If no choice receives a majority of votes
cast, a runoff election is held between the two choices receiving
the highest number of votes. The results of the election are

57. certified; if a union receives a majority of votes cast, it becomes
the exclusive representative of the employees in the unit. A
union that has obtained exclusive representation status is
entitled to be present at any formal discussions between the
agency and unit employees concerning grievances, personnel
policies and practices, or other conditions of employment. The
exclusive representative must also be given the opportunity to
be present at any examination of an employee in the unit in
connection with an agency investigation that the employee
reasonably believes may result in disciplinary action, provided
that he or she has requested such representation. (This right is
the equivalent of the Weingarten rights established by the
NLRB for organized employees in the private sector. See
Chapter 14.) Consultation Rights If the employees of an agency
have not designated any union as their exclusive representative
on an agency-wide basis, a union that represents a substantial
number of agency employees may be granted consultation
rights. Consultation rights entitle the union to be informed of
any substantive change in employment conditions proposed by
the agency. The union is to be permitted reasonable time to
present its views and recommendations regarding the proposed
changes. The agency must consider the union recommendations
before taking final action, and it must provide the union with
written reasons for taking the final action. Collective
Bargaining The FSLMRA requires that agencies and exclusive
representatives of agency employees meet and negotiate in good
faith. Good faith is defined as approaching the negotiations with
a sincere resolve to reach a collective bargaining agreement,
meeting at reasonable times and convenient places as frequently
as may be necessary, and being represented at negotiations by
duly autho- rized representatives prepared to discuss and
negotiate on any condition of employment. In National
Federation of Federal Employees, Local 1309 v. Dept. of the
Interior,1 the Supreme Court held that the FLRA had the power
to determine whether federal employers were required to engage
in “midterm” bargaining—bargaining during the term of a

58. collective agreement over subjects that were not included in the
agreement. The FLRA, on remand from the Supreme Court,
decided that the FSLMRA required employers to engage in
midterm bargaining and the refusal to do so was an unfair labor
practice under the FSLMRA.2 Conditions of Employment The
act defines “conditions of employment” as including personnel
policies, practices, and matters—whether established by rule,
regulation, or otherwise—that affect working conditions.
However, the act excludes the following from being defined as
conditions of employment: • • • Policies relating to prohibited
political activity Matters relating to the classificati on of any
position Policies or matters that are provided for by federal
statute Wages Wages for most federal employees are not subject
to collective bargaining because they are determined by statute.
Federal blue-collar employees are paid under the coordinated
Federal Wage System, which provides for pay comparable to
pay for similar jobs in the private sector. Federal white-collar
employees are paid under the General Schedule (GS), and
increases and changes in GS pay scales are made by presidential
order. However, in Fort Stewart Schools v. Federal Labor
Relations Authority,3 the Supreme Court considered the
question of whether schools owned and operated by the U.S.
Army were required to negotiate with the union representing
school employees over mileage reimbursement, paid leave, and
a salary increase. The school declined to negotiate, claiming
that the proposals were not subject to bargaining under the
FSLMRA. The school claimed that “conditions of employment”
under the FSLMRA included any matter insisted upon as a
prerequisite to accepting employment but did not include wages.
The Supreme Court upheld an order of the FLRA that the school
was required to bargain over wages and fringe benefits.
Whereas the wages of most federal employees are set by law
under the GS of the Civil Service Act, the school employees’
wages are exempted from the GS. Wages for the school
employees, therefore, were within the conditions of employment
over which the school was required to bargain. Section 7106 of

59. the FSLMRA, which provides that “nothing in this chapter shall
affect the authority of any management official of any agency to
determine the ... budget ... of the agency....” did not exempt
wages and fringe benefits from the duty to bargain. Agency
management seeking to avail themselves of that provision to
avoid bargaining over a proposal must demonstrate that the
proposal would result in significant and unavoidable increases
in costs. Management Rights The FSLMRA contains a very
strong management-rights clause, which also restricts the scope
of collective bargaining. According to that clause, collective
bargaining is not to affect the authority of any management
official or any agency to determine the mission, budget,
organization, number of employees, or internal security
practices of the agency. In addition, management’s right to hire,
assign, direct, lay off, retain or suspend, reduce in grade or pay,
or take disciplinary action against any employee is not subject
to negotiation. Decisions to assign work, contract out work, or
select candidates to fill positions are not subject to negotiation.
The act also precludes bargaining over any actions necessary to
carry out the mission of the agency during emergencies. The
duty to bargain extends to matters that are the subject of any
rule or regulation as long as the particular rule or regulation is
not government-wide. However, if the agency determines there
is a compelling need for such a regulation, it can refuse to
bargain over that regulation. The exclusive representative must
be given an opportunity to show that no compelling need exists
for the regulation. Disputes over the existence of a compelling
need are to be resolved by the FLRA.
CASE 19.2 u.s. DePartment of the navy v. feDeral laBor
relations authority 665 F.3d 1339 (D.C. Cir. 2012)
Facts: In the mid-1990s, the Naval Undersea Warfare providing
employees with bottled water. It did so after an Center Division
in Newport, Rhode Island, began EPA report indicated that
water fountains in some Navy buildings in Newport contained

60. components manufac- tured with lead. Beginning in 2005,
however, the Navy replaced the problematic water fountains,
tested the tap water, and determined it safe to drink. The Navy
then stopped providing bottled water; it did not negotiate with
employee unions before removing the bottled water. The Navy
reasoned that an agency has no duty or authority to bargain over
or grant benefits that are prohibited by federal appropriations
law. And the Navy concluded that providing bottled water when
safe and drinkable tap water was available would violate the
legal prohibition against use of appropriated funds for
employees’ personal expenses. The unions representing civilian
employees at the Newport facilities objected to the removal of
the bottled water and filed grievances with the Navy. When
negotia- tions did not yield a compromise, the unions sought
binding arbitration. An arbitrator sided with the unions and
ordered the Navy to continue providing bottled water on the
ground that bottled water had become a condition of
employment. The Federal Labor Relations Authority affirmed
the arbitra- tor’s decision, holding that the Navy had a duty to
bargain with the unions before removing the bottled water.
Issue: Did the Navy have an obligation to bargain with the
unions about the elimination of bottled water, and if not, should
the arbitrator’s award be vacated? Decision: The Circuit Court
of Appeals for the District of Columbia held that federal
appropriations law barred the Navy from providing bottled
water to its civilian employees when perfectly safe tap water
was available. The appellate panel explained that the
Appropriations Clause of the U.S. Constitution is “a bulwark”
of the separation of powers, because in its absence the executive
branch would have unbounded power to spend the taxpayers’
dollars. The Clause forbids the federal bureaucracy from
spending public funds even accidentally, where statutory
authority is lacking. Federal collective bargaining rights do not
trump this hard- and fast-rule. A federal agency cannot bargain
and contract with a labor union to spend money where Congress
hasn’t given its approval. The FLRA is entitled to a high level

61. of deference when it interprets the FSLMRA. But the FLRA
gets no deference when it ventures to interpret other federal
laws. The “necessary expense doctrine” comes into play when
it’s unclear whether a specific expenditure is legally authorized
or not. In this case, continued providing by the Navy of the
bottled water clearly was no longer a necessary expense. The
Navy, therefore, would have violated the law had it continued to
provide the bottled water or if it had negotiated with the unions
to that result. Consequently, it had no such duty to bargain
before it changed this condition of employment, and the FLRA
was out of bounds when it sought to enforce the arbitrator’s
award to the contrary.
The agency’s duty to bargain includes the obligation to furnish,
upon request by the exclusive representative, data and
information normally maintained by the agency. Such data must
be reasonably available and necessary for full and proper
discussion of subjects within the scope of bargaining. Data
related to the guidance, training, advice, or counsel of
management or supervisors relating to collective bargaining are
excluded from the obliga- tion to provide information. The duty
to bargain in good faith also includes the duty to execute a
written document embodying the terms of agreement, if either
party so requests. Impasse Settlement The FSLMRA created the
Federal Service Impasse Panel, which is authorized to take any
actions necessary to resolve an impasse in negotiations. The
Federal Mediation and Conciliation Service, created by the
Taft–Hartley Act, also assists in the resolution of impasses by
providing mediation services for the parties. If the mediation
efforts fail to lead to an agreement, either party may request
that the Federal Service Impasse Panel consider the dispute. The
panel may either recommend procedures for resolving the
impasse or assist the parties in any other way it deems
appropriate. The formal impasse resolution procedures may

62. include hearings, fact-finding, recommendations for settlement,
or directed settlement. The parties may also seek binding
arbitration of the impasse with the approval of the panel.
Grievance Arbitration The FSLMRA provides that all collective
agreements under it must contain a grievance procedure. The
grievance procedure must provide for binding arbitration as the
final step in resolving grievances. If arbitration is invoked,
either party may appeal the arbitrator’s decision to the FLRA
for review within 30 days of the granting of the award. Upon
review, the FLRA may overturn the arbitrator’s award only if it
is contrary to a law, rule, or regulation or is inconsistent with
the standards for review of private sector awards by the federal
courts (see Chapter 17). If no appeal is taken from the
arbitrator’s award within 30 days of the award, the arbitrator’s
award is final and binding. When a grievance involves matters
that are subject to a statutory review procedure, the employee
may choose to pursue the complaint through the statutory
procedure or through the negotiated grievance procedure.
Examples would be grievances alleging discrimination in
violation of Title VII of the Civil Rights Act of 1964, where the
griever can elect to pursue the complaint through the grievance
process or through the procedure under Title VII. Performance
ratings, demotions, and suspensions or removals that are subject
to civil service review procedures may be pursued either
through the civil service procedures or the grievance procedure.
Unfair Labor Practices The FSLMRA prohibits unfair labor
practices by agencies and unions. The unfair labor practices
defined in the act are similar to those defined by Sections 8(a)
and 8(b) of the NLRA. Agency Unfair Practices Unfair labor
practices by agencies under the FSLMRA include: • Interfering
with or restraining the exercise of employees’ rights under the
act • Encouraging or discouraging union membership by
discrimination in conditions of employment • Sponsoring or
controlling a union • Disciplining or discriminating against an
employee for filing a complaint under the act • Refusing to

63. negotiate in good faith • Refusing to cooperate in impasse
procedures It is also an unfair labor practice for an agency to
enforce any rule or regulation that conflicts with a preexisting
collective bargaining agreement. Union Unfair Labor Practices
Union unfair labor practices under the FSLMRA include: •
Interfering with or restraining the exercise of employees’ rights
under the act • Coercing or fining a member for the purpose of
impeding job performance • Discriminating against an employee
on the basis of race, color, creed, national origin, gender, age,
civil service status, political affiliation, marital status, or
disability • Refusing to negotiate in good faith • Refusing to
cooperate in impasse procedures It is also an unfair labor
practice for a union to call or condone a strike, work slow -
down, or stoppage or to picket the agency if the picketing
interferes with the agency’s oper- ations. Informational
picketing that does not interfere with agency operations is
allowed. Unfair Labor Practice Procedures When a complaint
alleging unfair labor practices is filed with the FLRA, the
General Counsel’s Office of the FLRA investigates the
complaint and attempts to reach a voluntary settlement. If no
settlement is reached and the investigation uncovers evidence
that the act has been violated, a complaint is issued. The
complaint contains a notice of the charge and sets a date for a
hearing before the FLRA. The party against whom the complaint
is filed has the opportunity to file an answer to the complaint
and to appear at the hearing to contest the charges. If the FLRA
finds, by a preponderance of evidence, that a violation has
occurred, it will issue written findings and an appropriate
remedial order. FLRA decisions are subject to judicial review
by the federal courts of appeals. Unfair Labor Practice
Remedies The FLRA has broad authority for fashioning
remedial orders for unfair labor practices. Remedial orders may
include cease-and-desist orders, reinstatement with back pay,
rene- gotiation of the agreement between the parties with
retroactive effect, or any other actions deemed necessary to
carry out the purposes of the act. When a union has been found

64. by the FLRA to have intentionally engaged in a strike or work
stoppage in violation of the act, the FLRA may revoke the
exclusive representation status of the union or take any other
disciplinary action deemed appropriate. Employees engaging in
illegal strikes are subject to dismissal. The FLRA may also seek
injunctions, restraining orders, or contempt citations in the
federal courts against striking unions. The following case
involves the review of an FLRA order revoking the exclusive
repre- sentation status of the air traffic controllers’ union
because of its involvement in an illegal strike.
CASE 19.3 Professional air traffiC Controllers org. v. flra 685
F.2d 547 (D.C. Cir. 1982)
Facts: The Professional Air Traffic Controllers Organization
(PATCO) was the exclusive bargaining representative for air
traffic controllers employed by the Federal Aviation
Administration (FAA) since the early 1970s. PATCO and the
FAA began negotiations for a new contract in early 1981, and a
tentative agreement was reached in June. That proposed
agreement was overwhelmingly rejected in a vote by the
PATCO membership. Following the rejection, the parties
resumed negotiations in late July, and PATCO announced a
strike deadline of August 3, 1981. When the negotiations failed
to reach an agreement, PATCO went on strike against the FAA
on August 3, 1981. Of the 9,304 air traffic controllers scheduled
to work on August 3, only 2,308 reported for work, resulting in
a significantly reduc- tion in the number of private and
commercial flights in the U.S. President Reagan warned the
strikers that if they did not return to work by August 5, they
would be terminated. Approximately 11,000 air traffic
controllers were fired. In addition, the FAA filed an unfair labor
practice charge against PATCO with the Federal Labor
Relations Authority (FLRA). An FLRA regional director issued
a complaint on the unfair labor practice charge, alleging that the

65. strike was prohibited by federal law and seeking revocation of
PATCO’s certification under the Civil Service Reform Act. The
FLRA held that PATCO had called or participated in an illegal
strike, and revoked PATCO’s certification as exclusive
bargaining representative of the air traffic control- lers. PATCO
then sought judicial review of the FLRA deci- sion before the
U.S. Court of Appeals for the D.C. Circuit. Issue: Did PATCO
engage in an illegal strike, and should PATCO’s certification
have been revoked? Decision: Federal employees have long
been forbidden from striking against their employer, the federal
govern- ment. Section 7311(2) of Title 5 of the U.S. Code
prohibits a person who “participates in a strike ... against the
Government of the United States” from accepting or holding a
position in the federal government. Violating that prohibi - tion
is a criminal offense. Newly hired federal employees are
required to execute an affidavit attesting that they have not
struck and will not strike against the government. In addition,
since the beginning of formal collective bargaining between
federal employee unions and the federal government, unions
have been required under Executive Order No. 10988 to
disavow using the strike as an economic weapon. Since 1969,
striking has been expressly designated a union unfair labor
practice.4 The Civil Service Reform Act, passed in 1978, added
a new provision that authorized the FLRA to “revoke the
exclusive recognition status” of a recognized union or “take any
other appropriate disciplinary action” against any labor
organization when that union has called, participated in, or
condoned a strike, work stoppage, or slowdown against a
federal agency in a labor–management dispute. Here, the FLRA
held that PATCO had called or partici- pated in a strike in
violation of federal law, and revoked PATCO’s status as
exclusive bargaining representative for the air traffic
controllers. The court of appeals held that the FLRA was fully
justified in taking official notice of proceed- ings in the District
Court for the District of Columbia that found PATCO and its
president, Robert Poli, in contempt of court for violating the

66. restraining order against the strike. Before the FLRA, PATCO
offered no evidence to indicate that it even attempted to end the
strike. The court of appeals therefore affirmed the FLRA
finding that the strike was an unfair labor practice. The court
then considered whether the FLRA prop- erly exercised its
discretion under the act to revoke the exclusive recognition
status of PATCO. The FLRA has substantial discretion under
Section 7120(f) to decide whether or not to revoke the
certification of a union found guilty by the FLRA of striking or
condoning a strike against the government. On judicial review
of the FLRA’s exercise of its remedial discretion, the court has
a limited role. The court will uphold the remedial orders of the
FLRA “unless it can be shown that the order is a patent attempt
to achieve ends other than those which can fairly be said to
effectuate the policies of the Act.” Here, the court of appeals
had little trouble deciding that the FLRA did not abuse its
discretion. The FLRA could take official notice that PATCO has
repeatedly violated legal prohibitions against striking and other
job actions in the past. PATCO openly defied the restraining
orders and injunctions directed at the strike of August 3, 1981.
PATCO made no attempt to end the strike. Even after the
striking controllers had been terminated and the FLRA had
ordered revocation of its exclusive recognition status, PATCO
failed to satisfy the FLRA request that it end the strike and
promise to abide by the no-strike provisions of the Civil Service
Reform Act. PATCO was a repeat offender that has willfully
ignored statutory proscriptions and judicial injunctions. The
court affirmed the FLRA order finding PATCO had violated the
legal prohibi- tions against strikes by federal employees, and
revoking PATCO’s certification as exclusive bargaining
representa- tive of the federal air traffic controllers.
19-2c Judicial Review of FLRA Decisions As the U.S. Navy and
PATCO cases illustrate, final orders, other than bargaining unit

67. deter- minations (as well as most, but not all, arbitration
awards), are subject to review in the federal courts of appeals.
The party seeking review has 10 days from the issuance of the
FLRA decision to file a petition for review with the court of
appeals for the appropriate circuit. Unless specifically
authorized by the appeals court, the filing of a petition for
review does not operate to stay the FLRA order. Upon review,
the court may affirm, enforce, modify, or set aside the FLRA
order. Findings of fact by the FLRA are deemed conclusive if
they are supported by substan- tial evidence. The order of the
court of appeals is subject to discretionary review by the
Supreme Court
19-2d The Hatch Act The Hatch Act5 was enacted in 1939. Its
long title is “An Act to Prevent Pernicious Political Activities.”
As that mouthful suggests, it prohibits certain political activity
by federal employees. Federal employees are prevented from
taking an active part in the management of political campaigns
and from running for office in a partisan political campaign.
The act also restricts federal employees from engaging in
political activity while on the job. The purposes of the
restrictions on the political activities of federal employees are
to: • • • avoid the appearance of political bias in government
actions; prevent the coercion of federal employees to engage in
political action or to support political positions; and avoid
politicizing the federal civil service. In 1940 the act’s reach was
extended to include employees of state and local govern- ments,
whose positions are funded primarily by federal appropriations.
In 1947 and again in 1974 the act survived challenges, based
upon First Amendment free-speech arguments, in the U.S.
Supreme Court. More recently, the act’s restrictions on political
activity by federal employees were held to be constitutional in
Burrus v. Vegliante.6 That case also held that the American
Postal Workers Union’s use of bulletin boards in nonpublic
areas of post offices to display political materials violated the
Hatch Act prohibitions against political activities on the job.

68. Most states have legislation similar to the Hatch Act to restrict
political activities by state government employees.
19-2e Union Security Provisions A union that is granted
exclusive representation rights under the FSLMRA must accept
as a member any unit employee who seeks membership. A union
may not require union membership as a condition of
employment. This means that the collective agreement may not
contain a closed shop or union shop provision. For the
government employer to require that employees join a union in
order to retain their jobs would violate the employees’
constitutional rights of association protected by the First
Amendment (or Fourteenth Amendment if the employer is a
state or local government agency). Agency shop provisions,
which require that an employee pay union dues or fees but do
not require union membership, do not raise the same
constitutional problems. However, if the employee’s dues
money is spent by the union on matters other than those relating
to collective bargaining or representation issues, the employee
is, in effect, forced to contribute to causes and for purposes that
he or she may oppose. Does this “forced contribution” violate
the employee’s constitutional rights? In Abood v. Detroit Board
of Education,7 the Supreme Court held that union expendi- tures
for expression of political views, in support of political
candidates, or for advancement of ideological causes not related
to its duties as bargaining agent can be financed only from dues
or assessments paid by employees who do not object to
advancing such ideas and who are not coerced into doing so. To
do otherwise violates the First Amendment rights of the
employees who object to such expenditures. The Court held that
employees who object to political expenditures by the union are
entitled to a refund of that portion of their dues payments that
represents the proportion that union political expenditures bear
to the total union expenditures. A state law requiring public
sector unions to get affir- mative authorization of the use of
agency shop fees for political purposes was valid and did not

69. violate the unions’ First Amendment rights, according to
Davenport v. Washington Education Association.8 In Ysursa v.
Pocatello Education Association,9 the Supreme Court held that
a state law prohibiting the use of payroll deductions of public
employees for political purposes was not in violation of the
First Amendment. In Chicago Teachers Union, Local No. 1 v.
Hudson,10 the Supreme Court addressed the procedures that the
union must make available for employees who object to union
expen- ditures of their dues or fees. The Court held that the
union is required to provide objecting members with
information relating to the union expenditures on collective
bargaining and political activities and must include an adequate
explanation of the basis of dues and fees. The members must
also be provided a reasonably prompt opportunity to
challenge—before an impartial decision maker—the amount of
the dues or fees, and the union must hold in escrow the amounts
in dispute pending the resolution of the challenges by the
members. The Abood and Chicago Teachers Union cases hold
that individuals who object to a union’s political activities are
not required to pay that portion of union dues and fees that fund
such nonbargaining activities. What standards should a court
use to determine which union expenditures are related to its
collective bargaining activities? The Supreme Court considered
this question in the case of Lehnert v. Ferris Faculty
Association.11 The Court set out three criteria for determining
which activities can be funded by dues and fees of objecting
individuals: • The activity must be germane to collective
bargaining • It must be justified by the government’s interest in
promoting labor peace and avoiding “free riders” who benefit
from union activities without paying for union services • It must
not significantly add to the burdening of free speech inherent in
allowing a union shop or agency shop provision Using these
criteria, the Lehnert Court held that the teachers’ union could
not charge objecting individuals for lobbying, electoral
activities, or political activities beyond the limited context of
contract implementation or negotiation. In addition, the union

70. could not charge for expenses incurred in conducting an illegal
work stoppage or for litigation expenses unless the litigation
concerned the individual’s own bargaining unit. The union
could charge objecting individuals for: • national union
programs and publications designed to disseminate information
germane to collective bargaining; • information services
concerning professional development, job opportunities, and
miscellaneous matters that benefited all teachers, even though
they may not directly concern members of the individual’s
bargaining unit; • participation by local delegates at state or
national union meetings at which representa- tion policies and
bargaining strategies are developed; and • expenses related to
preparation for a strike. The Court also held that the union
could not charge the objecting individuals for public relations
efforts designed to enhance the reputation of the teaching
profession gener- ally because such efforts were not directly
connected to the union’s collective bargaining function. It
should be noted that private sector employees have the same
right to object to political expenditures by their unions; in
Communications Workers of America v. Beck12 (see Chapter
18), the Supreme Court stated that We conclude that Section
8(a)(3) ... authorizes the exaction [from nonmembers or
objecting employees] of only those fees and dues necessary to
“performing the duties of an exclusive representative of the
employees in dealing with the employer on labor–management
issues.” The FSLMRA provides that union dues may be
deducted from an employee’s pay only if authorized by the
employee. The employer may not charge a service fee for
deductions to either the employee or the union. Employee
authorizations for dues deduction may not be revoked for a
period of one year from their making. It is worth noting that in
a still more recent decision, the Supreme Court held that
political action committees (PACs) have a constitutional right
to spend as much money as they wish to promote political
candidates of their choosing. In light of the restrictions placed
upon public-employee unions in the preceding decisions, this

71. latter case has been sharply criticized by organized labor and
the political left as unfairly tilting the political playing field in
favor of wealthy individuals and corporations.13 19-2f Federal
Labor Relations and National Security The terrorist attacks of
September 11, 2001, brought about a profound government
emphasis on protecting national security. President George W.
Bush, responding to pres- sure from Congress, created the
Department of Homeland Security (DHS) and gave it
responsibility for a broad range of agencies and functions
within the federal government, including Customs and Border
Protection, Citizen and Immigration Services, the U.S. Coast
Guard, and the Transportation Security Administration. As part
of the administra- tive reorganization involved with the creation
of DHS, the Bush administration sought to increase management
flexibility and control over employees and working conditions.
The Homeland Security Act of 2002 authorized the Secretary of
Homeland Security and the director of the Office of Personnel
Management to adopt regulations to create a human resource
management system. The act also stated that any regulations
adopted had to “ensure that employees may organize, bargain
collectively and participate through labor organizations of their
choosing in decisions which affect them....” Pursuant to the
authority granted under the Homeland Security Act, DHS
adopted the Department of Homeland Security Human
Resources Management System, a human resource manage-
ment system that restricted bargaining over personnel actions
and limited the role of the FLRA in handling labor relations
matters. The unions representing the affected DHS employees
challenged the human resource management system as violating
the legislative requirement to protect collective bargaining
rights and illegally restricting the statutory authority of the
FLRA and the Merit System Protection Board (MSPB), which
administers the federal civil service system and regulations. The
U.S. Court of Appeals for the District of Columbia agreed.14
The Department of Defense (DoD) also sought more flexibility
and control in its human resource management system for its

72. civilian employees. The National Defense Authorization Act for
fiscal year 2004 authorized the DoD to establish a National
Security Personnel System (NSPS) to restructure labor relations
between management and employees. The act also provided that
the NSPS would supersede all collective bargaining agreements
for the bargaining units in the DoD until 2009. Several unions
representing the DoD civilian employees challenged the
resulting NSPS as going beyond the legislative authority
granted to DoD. In early 2010, the NSPS announced that the
DoD was on track to transition the majority of its 220,000
civilian employees out of the NSPS by September 2010, more
than a year ahead of the deadline. The 2010 National Defense
Authorization Act called for the termination of NSPS by
January 2012, bringing an end to a controversial personnel
system that has been operational for less than four years. In the
spring of 2010, the majority of employees began to transition
back to the decades-old General Schedule system but with an
assurance in regard to pay. The law required the DoD to take all
actions necessary for the orderly termination of NSPS and the
transition of all employees and positions from NSPS to legacy
personnel systems or, if applicable, to the personnel systems
that would have applied if NSPS had never been established.
The law mandated that no employee would suffer loss in pay
during the transition process, which was completed by January
1, 2012. The law also required DoD to establish a new
performance management system and consider development of
additional staffing flexibilities and a workforce incentive fund.
ThE WORKING LAw
Airport Screeners Seek Bargaining Rights The legislation that
established the Transportation Security Administration (TSA),
the federal agency in the Department of Homeland Security that
employs some 45,000 officers who work as airport screeners,
states that the Administrator of the TSA has the authority to
decide whether or not to allow its employees to engage in
collective bar- gaining. The Bush administration took the

73. position that collective bargaining rights for TSA employees
would weaken travel security protection by adding an additional
layer of procedures to TSA operations and would limit the
agency’s ability to respond quickly in emergencies because it
would be required to negotiate changes in security procedures
with unions representing its employees. Proponents for
collective bargaining rights argue that collective bargaining can
ensure that the agency is run more effectively and that cur- rent
TSA employees complain of hostile work environments,
favoritism, and fear of retali- ation by managers for reports of
violations of regulations. They also point out that staffing levels
at some airports are very low, so that employees are required to
work through break times, work extra shifts, and work on
scheduled days off. A survey of the “Best Places to Work” in
the federal government for 2009 ranked the TSA near the
bottom of federal agencies, although the ratings for employee
job satisfaction for the TSA had increased by nearly 23 percent.
In February 2011 TSA administrator John S. Pitole issued a
“Determination” in which he stated, “The failed Christmas Day
terrorist attack just over a year ago and the recent air cargo plot
reminded us all of the challenges we face in protecting our
nation against a creative and determined enemy. The
Transportation Security Administration’s mission to protect
transportation security systems is critical to our national
interests. While we continue to step up to the challenges of this
mission, I am engaged in a full examination of how we can
continue to evolve towards an agile, high performance
organization that is better able to protect the traveling public
from constantly changing threats.” He added, “As part of my
top-to-bottom review of TSA, and in line with a commitment I
made during the Senate confirmation process, I have conducted
a full assessment of the impact union representation and
collective bargaining might have on TSA’s counter- terrorism
mission. I have also considered the recent decision under the
Federal Service Labor–Management Relations Statute (5 U.S.C.
Chapter 71) issued by the Federal Labor Relations Authority

74. (FLRA or Authority)—an independent government agency that
oversees federal labor relations—directing an election about
exclusive representation for purposes other than collective
bargaining (65 FLRA No. 53 (2010)).” He then outlined a
framework for labor relation within his agency. This framework
is unique to TSA in that it allows for bargaining at the national
level only. It prohibits local-level bargaining at individual
airports—except on the nonsecurity employment issues
identified in the Determination, such as shift bids, transfers, and
awards. Administrator Pistole’s Determination prohibits
bargaining on any topics that might affect security, such as: •
Security policies, procedures, or the deployment of security
personnel or equipment • Pay, pensions, and any form of
compensation • Proficiency testing • Job qualifications •
Discipline standards The following two decisions of the U.S.
Court of Appeals for the District of Columbia involve the legal
challenges to the DHS and the Department of Defense human
resources management systems by the unions representing their
employees.
CASE 19.4 national treasury emPloyees union v. miChael
Chertoff, seCretary, uniteD states DePartment of homelanD
seCurity 452 F.3d 839 (D.C. Cir. 2006)
Edwards, Senior Circuit Judge When Congress enacted the
Homeland Security Act of 2002 (“HSA” or the “Act”) and
established the Department of Homeland Security (“DHS” or the
“Department”), it provided that “the Secretary of Homeland
Security may, in regulations prescribed jointly with the Director
of the Office of Personnel Management, establish, and from
time to time adjust, a human resources management system.” [5
U.S.C. § 9701 (Supp. II 2002)] Congress made it clear,
however, that any such system “shall—(1) be flexible; (2) be
contemporary; (3) not waive, modify, or otherwise affect

75. [certain existing statutory provisions relating to ... merit hiring,
equal pay, whistle blowing, and prohibited personnel practices],
[and] (4) ensure that employees may organize, bargain
collectively, and participate through labor orga- nizations of
their own choosing in decisions which affect them, subject to
any exclusion from coverage or limitation on negotiability
established by law.” The Act also mandated that DHS
employees receive “fair treatment in any appeals that they bring
in decisions relating to their employment.” Section 9701 does
not mention “Chapter 71,” which codi- fies the Federal Services
Labor–Management Statute and delineates the framework for
collective bargaining for most federal sector employees. In
February 2005, the Department and Office of Personnel
Management (“OPM”) issued regulations establishing a human
resources management system ... [the] Department of Homeland
Security Human Resources Management System (“Final Rule”
or “HR system”). The Final Rule ... defines the scope and
process of collective bargaining for affected DHS employees,
channels certain disputes through the Federal Labor Relations
Authority (“FLRA” or the “Authority”), creates an in-house
Homeland Security Labor Relations Board (“HSLRB”), and
assigns an appellate role to the Merit Systems Protection Board
(“MSPB”) in cases involving penal- ties imposed on DHS
employees. Unions representing many DHS employees filed a
complaint in [District of Columbia] District Court ...
challeng[ing] aspects of the Final Rule. ... the District Court
found that the regulations would not ensure collec- tive
bargaining, would fundamentally and impermissibly alter FLRA
jurisdiction, and would create an appeal process at MSPB that is
not fair. Based on these rulings, the District Court enjoined
DHS from implementing [certain sections] ... of the regulations.
However, the District Court rejected the Unions’ claims that the
regulations impermissibly restricted the scope of bargaining and
that DHS lacked authority to give MSPB an intermediate
appellate function in cases involving mandatory removal
offenses. ... The case is now before this court on appeal by the

76. Government and cross-appeal by the Unions. We affirm in part
and reverse in part. We hold that the regulations fail in two
important respects to “ensure that employees may ... bargain
collec- tively,” as the HSA requires. First, we agree with the
District Court that the Department’s attempt to reserve to itself
the right to unilaterally abrogate lawfully negoti- ated and
executed agreements is plainly unlawful. If the Department
could unilaterally abrogate lawful contracts, this would nullify
the Act’s specific guarantee of collec- tive bargaining rights,
because the agency cannot “ensure” collective bargaining
without affording employees the right to negotiate binding
agreements. Second, we hold that the Final Rule violates the
Act insofar as it limits the scope of bargaining to employee-
specific personnel matters. The regulations effectively eliminate
all meaningful bargaining over fundamental working conditions
(including even negotiations over procedural protections),
thereby committing the bulk of decisions concerning conditions
of employment to the Department’s exclusive discretion. In no
sense can such a limited scope of bargaining be viewed as
consistent with the Act’s mandate that DHS “ensure” collective-
bargaining rights for its employees. The Government argues that
the HSA does not require the Department to adhere to the terms
of Chapter 71 and points out that the Act states that the HR
system must be “flexible,” and from this concludes that a
drastically limited scope of bargaining is fully justified. This
contention is specious. Although the HSA does not compel the
Government to adopt the terms of Chapter 71 as such, Congress
did not say that Chapter 71 is irrelevant to an under- standing of
how DHS is to comply with its obligations and Chapter 71 gives
guidance to its meaning. It is also noteworthy that the HSA
requires that the HR system be “contemporary” as well as
flexible. We know of no contemporary system of collective
bargaining that limits the scope of bargaining to employee-
specific personnel matters, as does the HR system, and the
Government cites to none. We therefore reverse the District
Court on this point. We affirm the District Court’s judgment

77. that the Department exceeded its authority in attempting to
conscript FLRA into the HR system. The Authority is an
indepen- dent administrative agency, operating pursuant to its
own organic statute and long-established procedures. Although
the Department was free to avoid FLRA altogether, it chose
instead to impose upon the Authority a completely novel
appellate function, defining FLRA’s jurisdiction and dictating
standards of review to be applied by the Authority. In essence,
the Final Rule attempts to co-opt FLRA’s adminis- trative
machinery, prescribing new practices in an exercise of putative
authority that only Congress possesses. Nothing in the HSA
allows DHS to disturb the operations of FLRA.... The allowance
of unilateral contract abrogation and the limited scope of
bargaining under DHS’s Final Rule plainly violate the statutory
command in the HSA that the Department “ensure” collective
bargaining for its employees. We therefore vacate any
provisions of the Final Rule that betray this command. DHS’s
attempt to co-opt FLRA’s administrative machinery constitutes
an exercise of power far outside the Department’s statutory
authority. We therefore affirm the District Court’s decision to
vacate the provisions of the Final Rule that encroach on the
Authority. The judgments of the District Court are affirmed in
part and reversed in part, and the case is hereby remanded for
further proceedings consistent with this opinion. So ordered.
CASE 19.5 ameriCan feDeration of government emPloyees, afl -
Cio v. roBert m. gates, seCretary of Defense 486 F.3d 1316
(D.C. Cir. 2007)
Kavanaugh, Circuit Judge This case arises out of a contentious
dispute over the collec- tive-bargaining rights of hundreds of
thousands of civilian employees of the Department of Defense.
Our limited judicial task is to determine whether the
Department of Defense has acted consistently with its statutory
authority in promulgating certain regulations. The primary legal
question we must decide is whether the National Defense

78. Authorization Act for Fiscal Year 2004 authorizes DoD to
curtail collective-bargaining rights that DoD’s civilian
employees otherwise possess under the Civil Service Reform
Act of 1978. We hold that the National Defense Authorization
Act grants DoD temporary authority to curtail collective
bargaining for DoD’s civilian employees. By its terms, the Act
authorizes DoD to curtail collective bargaining through
November 2009. But after November 2009, with certain
specified exceptions, DoD again must ensure collective
bargaining consistent with the Civil Service Reform Act of
1978. We reverse the District Court’s judg- ment, and we
uphold the DoD regulations at issue in this appeal.... To put
together the pieces of the statutory puzzle in this case, one must
first appreciate the difference between Chapter 71 and Chapter
99 of Title 5 of the U.S. Code. Chapter 71 of Title 5 codifies
the Civil Service Reform Act of 1978 and establishes the right
of federal civilian employees, including civilian employees at
the Department of Defense, “to engage in collective-bargaining
with respect to conditions of employment through
representatives chosen by employees.” The Act generally
requires agency management to “meet and negotiate” in good
faith with recognized unions over conditions of employment
“for the purposes of arriving at a collective-bargaining
agreement.” The Act exempts various matters from collective
bargaining, such as hiring, firing, suspending, paying, and
reducing the pay of employees. Therefore, the Civil Service
Reform Act ensures collective bargaining for federal employees,
albeit more limited than the collective bargaining rights for
private employees. Chapter 99 of Title 5 codifies a section of
the National Defense Authorization Act for Fiscal Year 2004
and sets out a new labor relations framework for Department of
Defense employees. Chapter 99 differs from the Chapter 71
model in several respects. In particular, Section 9902(a) of
Chapter 99 establishes procedures for DoD, in coordination with
the Office of Personnel Management, to “establish, and from
time to time adjust, a human resources management system for

79. some or all of the organizational or functional units of the
Department of Defense.” The “human resources management
system” is called the “National Security Personnel System.”
Within the National Security Personnel System, the Act
authorizes DoD to establish a “labor rela- tions system” to
structure bargaining between management and employees....
After Congress enacted the National Defense Authorization Act
in November 2003, DoD began devel- oping the National
Security Personnel System. On February 14, 2005, DoD
published a proposed system in the Federal Register. After
various DoD employee representa- tives submitted comments,
DoD held several meetings with employee representatives in the
spring of 2005. On November 1, 2005, DoD promulgated final
regulations setting up the National Security Personnel System....
The regulations curtail the scope of Chapter 71 collec- tive
bargaining in several ways relevant to this appeal: • The
regulations permit certain DoD officials to issue “implementing
issuances” to abrogate any provision of an existing collective
bargaining agreement or effectively take any topic off the table
for future bargaining purposes. DoD may also promulgate
“issuances” that take topics off the table. (Issuances and
implementing issuances are doc- uments issued to carry out
DoD policies; implementing issuances relate to the National
Security Personnel System, while issuances relate to any DoD
policy.) Under the reg- ulations, both issuances and
implementing issuances can have prospective effect, but only
implementing issuances can abrogate existing collective
bargaining agreements. • The regulations broaden the scope of
“management rights”—that is, actions that management can take
with- out collective bargaining—beyond the management rights
already provided in Chapter 71. In particular, the regulations
permit DoD “to take whatever other actions may be necessary to
carry out the Department’s mission.” • The regulations curtail
bargaining over (i) the proce- dures DoD must follow when
exercising management rights and (ii) the “appropriate
arrangements” that DoD must make for employees affected by

80. exercises of management rights. • The regulations limit
collective-bargaining rights over pay and benefits for employees
of certain DoD units known as “non-appropriated fund
instrumentalities.” These em- ployees’ compensation is not set
by statute and is there- fore traditionally subject to collective
bargaining.... [S]ubsection (m) of Section 9902 grants DoD
expansive authority to curtail collective bargaining through
November 2009.... After November 2009, however, the
authority in subsection (m) runs out, and collective bargaining
under Chapter 71 again will structure the Department’s labor
relations ... In effect, therefore, the Act sets up a tempo- rary,
experimental period through November 2009 during which DoD
has broad leeway to restructure its labor relations system. But
after November 2009, assuming that Congress has not amended
the statute in the meantime, the Chapter 71 collective-
bargaining requirements ... again will apply and govern labor
relations for DoD’s civilian workers (subject to targeted
exceptions). ... In sum, we hold that the plain language of the
National Defense Authorization Act authorizes DoD to curtail
collective bargaining for DoD’s civilian employees through
November 2009. For purposes of our analysis, we find the
relevant statutory terms plain.... Because we conclude that the
National Defense Authorization Act authorizes DoD to curtail
collective bargaining, we reverse the contrary judgment of the
District Court.... We reverse the judgment of the District Court
and uphold the DoD regulations at issue in this appeal. So
ordered. Case Questions 1. As noted, the court of appeals held
that the DHS regulations were invalid but upheld the
Department of Defense regulations. Because the intent and the
effects of the regulations in both cases were similar, how can
you explain the different results in the two decisions? 2. In the
DHS decision, what reasons did the court give for holding that
the regulations failed to ensure the rights of the employees to
bargain collectively? 3. In the Department of Defense case, how
did the NSPS limit the scope of collective bargaining for the
civilian employees? Were the restrictions on collective

81. bargaining legal? Explain. Note that the National Defense
Authorization Act for Fiscal Year 200815 amended Section
9902 to eliminate subsection (m) and to require that the DoD
bargain collectively within the National Security Personnel
System (NSPS). The amended legislation also ensures that no
collective bargaining agreement is superseded under the NSPS.
19-3 State Public Sector Labor Relations Legislation
In 1954, Wisconsin adopted a public employee labor relations
law covering state, county, and municipal employees. Since that
first legal provision for state public sector labor relations,
approximately 40 states have adopted provisions relating to
public sector labor relations. The various state laws differ
widely in their treatment of issues such as employee coverage,
impasse resolution procedures, and restrictions on the scope of
bargaining. Because of the diversity of statutes, it is not
possible to discuss them in detail; thus, the remaining portion of
this chapter discusses certain general features of state public
sector labor relations statutes. In recent years, as a response to
the negative economic impact the recession has had on state
finances, state legislatures and governors have made public
sector unions the target of legislation restricting collective
bargaining rights and automatic payroll deduction of union
dues. In Wisconsin the governor and legislature essentially
repealed its pioneering laws. This chapter outlines the current
movement to reverse the trend started by Wisconsin some six
decades ago. 19-3a Coverage of State Laws As noted,
approximately 40 states have provisions for some labor
relations activity by state or local employees. Most of these
states have adopted statutes that provide for organizing rights
and for collective bargaining by public employees. Some states
that have no statutes dealing with public sector labor relations
allow voluntary collective bargaining by public employees
based on court decisions. Other states, while not restricting the
rights of public employees to join unions, prohibit collective

82. bargaining by public employees based on stat- utory
prohibitions or court decisions. In states that have public sector
labor relations statutes, the pattern of coverage of those statutes
varies. Some statutes cover all state and local employees.
Others may cover only local or only state employees. Some
states have several statutes, with separate laws covering
teachers, police, and firefighters. Some states also allow for the
enactment of municipal labor relations legislation. New York
City, for example, has established an Office of Collective
Bargaining by passage of a city ordinance. The courts have
generally held that there is no constitutionally protected right to
bargain collectively. For that reason, the courts have upheld
restrictions or prohibitions on the right to bargain. The right to
join unions or to organize, however, has been held to be
protected by the constitutional freedom of association under the
First and Fourteenth Amendments. Because the right to organize
is constitutionally protected, restrictions on that right of public
employees have consistently been struck down by the courts.
But while public employees in general may have the right to
organize, many states exclude supervisors and managerial or
confidential employees from unionizing. Other states may allow
those employees to organize but provide for bargaining units
separate from other employees. The courts have generally
upheld exclusions of managerial, supervisory, and confidential
employees from organizing and bargaining. 19-3b
Representation Issues Most of the state statutes authorizing
public sector labor relations provide for exclusive bargaining
representatives of the employees. The statutes generally create a
Public Employee Relations Board (PERB) to administer the act
and to determine representation issues and unfair labor practice
complaints. Bargaining Units Determining appropriate
bargaining units is generally the function of the PERB agency
created by the particular statute. Some statutes provide for
bargaining by all categories of public employees, whereas other
statutes may specifically define appropriate units, such as
teachers within a particular school district. When the PERB is

83. entrusted with determining the appropriate unit, it generally
considers community interest factors such as the nature of work,
similarity of working conditions, efficiency of administration,
and the desires of the employees. Some statutes require
determination based on efficiency of administration. Police and
law enforcement officers and firefighters are generally in
separate district-wide units (or statewide units for state law
enforcement officers). Faculty at public universities may be
organized in statewide units or may bargain on an institution
unit basis. In general, PERB agencies seek to avoid a
proliferation of small units. Representation Elections The
procedures for holding representation elections for units of
public employees gener- ally resemble those under the FSLMRA
and the NLRA. The union seeking representa- tion rights
petitions the PERB requesting an election. The union must
demonstrate some minimum level of employee support within
the unit. If the parties fail to reach agreement on the bargaining
unit definition, the eligibility of employees to vote, and the date
and other details of the election, the PERB settles such issues
after holding hearings on them. The elections are by secret
ballot, and the results are certified by the PERB. Either party
may file objections to the election with the PERB; the PERB
then reviews the chal- lenges and possibly orders a new election
when the challenges are upheld. Bargaining As noted, a
majority of states have provisions requiring, or at least
permitting, some form of collective bargaining. Some statutes
may use the term “meet and confer” rather than collective
bargaining, but in actual operation, the process is not
substantially different from collective bargaining. The scope of
bargaining subjects may be restricted to protect the statutory
authority of, or to ensure the provision of essential functions
by, the public employer. The public employer may also be
legally prohibited from agreeing with the union on particular
subjects. For example, state law may require a minimum number
of evaluations of employees annu- ally, and the employer may
not agree to fewer evaluations. Public sector labor relations

84. statutes generally have broad management-rights clauses. As a
result, the subjects of “wages, hours and other terms and
conditions” of employment may be defined more narrowly than
is the case in the private sector under the NLRA. The state
PERBs generally classify subjects for bargaining as mandatory,
permissive, and illegal subjects. Mandatory topics involve the
narrowly defined matters relating to wages, hours, and other
terms and conditions of employment. Permissive subjects
generally are those related to government policy, the employer’s
function, or matters of management rights. Illegal subjects may
include matters to which the employer is precluded by law from
agreeing. Some states may prohibit bargaining over certain
items that may be classified as permissive in other states. In
Central State University v. A.A.U.P., Central State Chapter,16
the U.S. Supreme Court upheld the constitutionality of an Ohio
law that required state public universities to set instructional
workloads for professors and exempted those workloads from
collective bargaining. In 2011 the newly elected Republican
governor of Wisconsin proposed the so-called Budget Repair
Law, and the state legislature enacted it. This law sharply
curtailed public employees’ collective bargaining rights, while
increasing their individual contributions into their healthcare
and pension plans. Upon the signing of the bill by Governor
Scott Walker on March 10, 2011, a county district attorney
mounted a legal challenge, which wound up before the state’s
Supreme Court.
CASE 19.6 maDison teaChers, inC. v. Walker 358 wis.2d 1
(wisconsin Sup. Ct. 2014)
Facts: In March 2011, the Wisconsin Legislature passed Act 10,
a budget repair bill proposed by Governor Scott Walker. The
Act significantly altered Wisconsin’s public employee labor
laws; it prohibits general employees from collectively

85. bargaining on issues other than base wages, prohibits municipal
employers from deducting labor orga- nization dues from
paychecks of general employees, imposes annual recertification
requirements, and prohibits fair share agreements requiring non-
represented general employees to make contributions to labor
organizations. In August 2011,Madison Teachers, Inc. and
Public Employees Local 61 sued Governor Walker, challenging
several provisions of Act 10. The plaintiffs alleged that four
aspects of Act 10—the collective bargaining limitations, the
prohibition on payroll deductions of labor organization dues,
the prohibition of fair share agreements, and the annual
recertification require- ments—violate the constitutional
associational and equal protection rights of the employees they
represent. The Dane County Circuit Court invalidated several
provisions of Act 10, including the provisions relating to
collective bargaining limitations, union recertifications, and the
prohibitions on fair share agreements and payroll deductions of
labor orga- nization dues. The court of appeals certified the case
to the Supreme Court of Wisconsin. Issue: On appeal, the
unions raised the following issues: (1) whether Act 10
impermissibly infringes on the asso- ciational rights of general
employees; (2) whether Act 10 impermissibly infringes on the
equal protection rights of represented general employees when
compared to non- represented general employees. The unions’
central argu- ment is that the following provisions of Act 10
violate the associational rights of general employees and their
certified representatives that are guaranteed under Article I,
Sections 3 and 4 of the Wisconsin Constitution: 1. The
provision prohibiting collective bargaining between municipal
employers and the certified representatives for municipal
general employee bargaining units on all subjects except base
wages. 2. The provisions limiting negotiated base wage
increases to the increase in the Consumer Price Index, unless a
higher increase is approved by a municipal voter referendum. 3.
The provisions prohibiting fair share agreements that previously
required all represented general employees to pay a

86. proportionate share of the costs of collective bargaining and
contract administration. 4. The provision prohibiting municipal
employers from deducting labor organization dues from the
paychecks of general employees. 5. The provision requiri ng
annual recertification elections of the representatives of all
bargaining units, requiring 51% of the votes of the bargaining
unit members (regardless of the number of members who vote),
and requiring the commission to assess costs of such elections.
Decision: Before the enactment of Act 10, general employees
were permitted under MERA to collectively bargain over a
broad array of subjects, including wages, working conditions,
work hours, and grievance proce- dures. Act 10 limits collective
bargaining between munic- ipal employers and the certified
representatives of general employees to the single topic of
“total base wages and excludes any other compensation....”
Moreover, Act 10 prohibits collective bargaining for base wage
increases that exceed an increase in the Consumer Price Index
unless approved in a municipal voter referendum. The plain-
tiffs argue this limitation penalizes general employees who
choose to be represented by a certified representative because
Act 10 imposes no limitations whatsoever on the terms that non-
represented general employees may nego- tiate with their
municipal employers. Consequently, the plaintiffs contend, Act
10 unconstitutionally burdens the associational rights of general
employees because they must surrender their association with a
certified representative in order to negotiate anything beyond
base wages. General employees have no constitutional right to
nego- tiate with their municipal employer on the lone issue of
base wages, let alone on any other subject. As the United States
Supreme Court made clear: [While t]he public employee surely
can associate and speak freely and petition openly, and he is
protected by the First Amendment from retaliation for doing
so.... [,] the First Amendment does not impose any affirmati ve
obligation on the government to listen, to respond or, in this
context, to recognize the association and bargain with it. Smith
v. Ark. State Highway Emps., Local 1315, 441 U.S. 463, 465,

87. 99 S.Ct. 1826, 60 L.Ed.2d 360 (1979) (citations omitted). The
plaintiffs have insisted at every stage of litigation in this case
that they are not arguing a constitutional right exists to
collectively bargain. It is evident, however, that they really are,
for without such a constitutional right, their challenge fails. Put
differently, general employees are not being forced under Act
10 to choose between a tangible benefit and their constitutional
right to associate. Instead, Act 10 provides a benefit to
represented general employees by granting a statutory right to
force their employer to negotiate over base wages, while non-
represented general employees, who decline to collectively
bargain, have no constitutional or statutory right whatsoever to
force their employer to collec- tively bargain on any subject.
For this reason, the plaintiffs’ argument must be rejected. The
plaintiffs’ associational rights are in no way implicated by Act
10’s modifications to Wisconsin’s collective bargaining
framework. At issue in this case is the State’s implementation
of an exclusive representation system for permitting public
employers and public employees to negotiate certain
employment terms in good faith. It is a prerogative of a state to
establish work- place policy in a non-public process in
consultation with only select groups—here, an organization
selected by the affected workforce itself—and not others. Not at
issue in this case is the plaintiffs’ constitutional right to
associate to engage in protected First Amendment activities.
The plaintiffs remain free to advance any position, on any topic,
either individually or in concert, through any channels that are
open to the public. Represented munic- ipal employees, non-
represented municipal employees, and certified representatives
lose no right or ability to associate to engage in constitutionally
protected speech because their ability to do so outside the
framework of statu- tory collective bargaining is not impaired.
Act 10 merely provides general employees with a statutory
mechanism to force their employer to collectively bargain;
outside of this narrow context, to which the plaintiffs freely
concede public employees have no constitutional right, every

88. avenue for petitioning the government remains available.
General employees may feel inclined to collectively bargain
under Act 10 in order to compel their employer to negotiate on
the issue of base wages, but this creates no unconstitutional
inhibition on associational freedom. The defendants are not
barring the plaintiffs from joining any advocacy groups,
limiting their ability to do so, or other- wise curtailing their
ability to join other “like-minded indi- viduals to associate for
the purpose of expressing commonly held views....” The
limitations on permissible collective bargaining subjects
imposed by Act 10 do not force general employees to choose
between their constitutional right to associate and the benefit of
collective bargaining. Therefore, the court held that Wis. Stat.
§§ 111.70(4)(mb), 66.0506, and 118.245 do not violate
Plaintiffs’ right to freedom of association. Fair shar e
agreements are negotiated arrangements between municipal
employers and certified representatives that require all general
employees, including non-repre- sented general employees, to
pay the proportional share of the cost of collective bargaining
and contract adminis- tration. Act 10 prohibits these
agreements. See Wis. Stat. § 111.70(1)(f), (2). The plaintiffs
argue this creates a financial burden on certified representatives
and repre- sented general employees to bear the full cost of
collective bargaining for the benefit of the entire bargaining
unit, while allowing non-represented general employees in the
bargaining unit to enjoy the benefits of representation as “free
riders.” For the certified representative and its members to
choose the statutory “privilege” of collective bargaining, the
plaintiffs argue they must accept the financial penalty as a
condition of their associational choices to serve as the certi -
fied representative and be represented general employees. The
plaintiffs contend these burdens will dissuade labor
organizations from becoming certified representatives and
general employees from becoming represented general
employees, and are therefore unconstitutional. The court
rejected the unions’ argument. First, labor organizations “have

89. no constitutional entitlement to the fees of nonmember-
employees.” Davenport v. Wash. Educ. Ass’n, 551 U.S. 177,
127 S.Ct. 2372 (2007). Further, as the United States Supreme
Court recently reaffirmed in Harris v. Quinn, fair share
agreements “unquestionably impose a heavy burden on the First
Amendment interests” of munic- ipal employees who do not
wish to participate in the collec- tive bargaining process. Harris
v. Quinn, 573 U.S. ––––, 134 S.Ct. 2618 (2014). Even setting
aside the question of whether fair share agreements are
constitutionally permissible, it is evident that the prohibition of
fair share agreements does not infringe on the associational
rights of general employees or certified representatives in any
respect. The First Amendment does not compel the government
to subsi- dize speech. By logical extension, the First
Amendment does not compel the government to compel its
employees to subsidize speech. The court concluded that Wis.
Stat. § 111.70(1)(f) and the third sentence of § 111.70(2),
examined in isolation, do not violate the plaintiffs’ right to
freedom of association. Prior to Act 10, general employees
could petition WERC to hold an election to designate a labor
organiza- tion as the general employees’ certified
representative. The voting requirement for certification was a
simple majority of employees in the collective bargaining unit.
Once a labor organization was certified, it would remain the
general employees’ certified representative until thirty percent
of the employees requested a decertification election. Act 10,
however, requires the certified representative of a collective
bargaining unit to undergo an annual certification election in
which the representative must obtain the vote of an abso- lute
majority of the general employees in the bargaining unit to
retain status as the employees’ certified representa- tive. Wis.
Stat. § 111.70(4)(d)3.b. Further, Act 10 requires that the
certified representative pay the cost of admin- istering the
related certification elections. Certification requirements for
certified representatives have existed in Wisconsin’s labor laws
since 1959. The certification requirements imposed by Act 10

90. are certainly more strin- gent than under the prior laws, but it is
impossible for these increased “organizational penalties” to
violate the plain- tiffs’ associational rights, when there are no
associational rights at stake. The certification requirements
apply solely to collective bargaining, which is wholly distinct
from an individual’s constitutional right to associate. Therefore,
the court held that Wis. Stat. § 111.70(4)(d)3.b., examined in
isolation, does not infringe on the plaintiffs’ constitutional right
to associate. Prior to Act 10, municipal employers could deduct
labor organization dues from the paychecks of general
employees at the employee’s request. Act 10 prohibits this
practice. Wis. Stat. § 111.70(3g). The plaintiffs argue this
prohibition hampers certified representatives and general
employees both organizationally and financially, creating an
unconstitutional burden on their associational rights. The
prohibition on an employer’s authorization to deduct labor
organization dues from the paychecks of general employees
does not infringe on an employee’s constitu- tional right to
associate. Further, this prohibition does not penalize employees
because no constitutional right exists for the deduction of dues
from a paycheck to support membership in a voluntary
organization. Accordingly, Wis. Stat. § 111.70(3g), examined in
isolation, does not infringe on the plaintiffs’ constitutional right
to associate. Even when viewed together, the contested
provisions of Act 10 are not unconstitutional. Each provision of
Act 10 that the plaintiffs contend infringes upon the
associational rights of certified representatives and general
employees does not, in fact, do so, because in each instance,
there is no constitutional associational right implicated.
Viewing the provisions as a whole does not change our analysis.
Each of the plaintiffs’ arguments fails for largely the same
reason: collective bargaining requires the municipal employer
and the certified representative to meet and confer in good faith.
Wis. Stat. § 111.70(1)(a). The Wisconsin Constitution does not.
Indeed, it is uncontested that it would be consti- tutional for the
State of Wisconsin to eliminate collective bargaining entirely.

91. Thus, the plaintiffs’ contention that several provisions of Act
10, which delineate the rights, obligations, and procedures of
collective bargaining, infringe upon general employees’
constitutional right to freedom of association is unfounded. No
matter the limi- tations or “burdens” a legislative enactment
places on the collective bargaining process, collective
bargaining remains a creation of legislative grace and not
constitutional obliga- tion. The restrictions attached to the
statutory scheme of collective bargaining are irrelevant in
regards to freedom of association because no condition is being
placed on the decision to participate. If a general employee
participates in collective bargaining under Act 10’s statutory
framework, that general employee has not relinquished a
constitutional right. They have only acquired a benefit to which
they were never constitutionally entitled. The First Amendment
cannot be used as a vehicle to expand the parameters of a
benefit that it does not itself protect. The court held that the
plaintiffs’ associational rights argument was without merit, and
rejected the plaintiffs’ argu- ment that several provisions of Act
10, which delineate the rights, obligations, and procedures of
collective bargaining, somehow infringe upon general
employees’ constitu- tional right to freedom of association. The
court concluded that Wis. Stat. §§ 111.70(4)(mb), 66.0506,
118.245, 111.70(1)(f), 111.70(3g), 111.70(4)(d) 3 and the third
sentence of § 111.70(2) do not violate the plaintiffs’ associa -
tional rights, and upheld the validity of Act 10 in its entirety.
The decision and order of the circuit court was reversed.
19-3c Bargaining and Open-Meeting Laws Some states have
adopted open-meeting, or “sunshine,” laws that require
meetings of public bodies be open to the public. Such laws
could present a problem for collective bargaining by public
employers because they may allow members of the general
public to take part in the bargaining process. In some states,

92. such as Ohio, collective bargaining is exempted from the open-
meeting law. In other states, however, the right of the public to
participate in the bargaining is legally protected. Impasse
Resolution Procedure Because most state laws restrict or
prohibit strikes by public employees, they must provide some
alternative means for resolving bargaining impasses. Most
statutes provide for a process that includes fact-finding,
mediation, and ultimately, interest arbitration. Mediation is
generally the first step in the impasse resolution process. The
mediator may be appointed by the PERB at the request of either
party. The mediator attempts to offer suggestions and to reduce
the number of issues in dispute. If the mediation is
unsuccessful, fact-finding is the second step. Each party
presents its case to the fact-finder, who will issue a report
defining the issues in dispute and establishing the
reasonableness of each side’s position. The fact-finder’s report
may be released to the public in an attempt to bring the pressure
of public opinion upon the parties to force a settlement. If no
resolution is reached after mediation and fact-finding, the
statutes generally provide for interest arbitration (see Chapter
18). The arbitration may be either voluntary or compulsory, and
it may be binding or nonbinding. Compulsory, binding
arbitration is generally found in statutes dealing with employees
who provide essential services, such as firefighters and police.
Nonbinding arbitration awards may be disregarded by the public
employer if it so chooses. Binding arbitration awards bind both
parties to the arbitrator’s settlement of the dispute. In several
states, the arbitration of bargaining disputes has been
challenged as being an illegal delegation of the public
employer’s legal authority to the arbitrator. Most state courts
have upheld the legality of arbitration; examples are Maine,
Michigan, Minnesota, New York, Oklahoma, Pennsylvania, and
Washington. In some states, however, courts have held compul-
sory arbitration to be illegal. Such was the case in Colorado,
South Dakota, Texas, and Utah. Some statutes allow for judicial
review of arbitration awards, generally on grounds of whether

93. the award is unreasonable, arbitrary, or capricious. Strikes by
State Workers Most state public sector labor relations statutes
prohibit strikes by public employees. Statutes in other states,
such as Hawaii, Michigan, Pennsylvania, and Vermont, allow
strikes by employees whose jobs do not immediately affect the
public health, safety, and welfare. Still other states’ statutes
allow for strikes in situations in which the public employer
refuses to negotiate or to abide by an arbitration award.
Penalties for illegal strikes vary from state to state. New York’ s
Taylor Law, which prohibits all strikes by public employees,
provides for fines and the loss of dues check-off provisions for
unions involved in illegal strikes. Employees who participate in
illegal strikes in New York may face probation, loss of job, and
loss of pay. The court may issue injunc- tions or restraining
orders against illegal strikes. Disciplining public sector
employees, even those who have taken part in illegal strikes,
may pose constitutional problems for the public sector
employer. The employer must ensure that any disciplinary
procedure ensures the employees “due process,” including
adequate notice of and an opportunity to participate in a hearing
on the proposed penalty. State and municipal employees in the
following states are accorded a limited right to strike: • Alaska •
Hawaii • Idaho • Illinois • Minnesota • Montana • Oregon •
Pennsylvania • Vermont
ethical DILEMMA
ProPerty taxes versus PubliC-eMPloyee benefits
In 2011, New Jersey residents stagger under the highest
property taxes in the nation. Meanwhile, teachers and other
public employees regularly retire at 80 percent of their most
recent base salaries, plus full medical benefits. The U.S. debt
clock shows state revenue at less than $80 billion, while it
estimates spending at $108 billion. Debt, it claims, equals
nearly $94 billion, or about 18.5 percent of state GDP. New

94. Jersey Governor Chris Christie released his 2012 budget in
February 2011. A press release from the governor’s press
secretary stated: Advancing his vision for a New Normal in
state budgeting, Governor Chris Christie ... presented a $29.4
billion budget for Fiscal Year 2012 that cuts real spending for a
second consecutive year. The Governor’s Budget proposal
includes $200 million in focused tax cuts, provides additional
property tax relief, increases school aid and funds a reformed
state pension system, while preserving or increasing funding to
protect our state’s most vulnerable citizens. The Fiscal Year
2012 Budget marks a departure from the Trenton tradition of
budgeting to meet deficit projections that embrace wish-list
spending by legislators and assume continuous funding
increases that irresponsibly ignore actual revenue sources and
the fiscal health of the state. Specifically with respect to public
employees, the release stated: Governor Christie will continue
to insist that the shared sacrifice be spread among state
employees as well, including in payment of a fair share of
medical costs. By increasing co-payments and premiums to
levels still below what federal employees pay, the state will
save $323 million that will be used to pay for other critically
important programs—and prevent increases in some of the
highest sales, income and property taxes in the nation. What do
you think is the appropriate balance between homeowners’ and
busi- ness property taxes and the pension and health care
benefits given by the Garden State to its public employees, such
as police, firefighters and teachers? What are the possible
repercussions, if any, of reducing these benefits going forward?
(Might the very property owners who seek tax relief, suffer
indirectly?) Are there other ways in which Governor Christie
and the state legislature might afford property owners some tax
relief, while not shifting the burden onto the backs of public
employees?

95. 19-4 Part 3 Labor Relations Law Public Employees and First
Amendment Free Speech Rights
The employment practices of public employers may also be
matters of public concern— citizens and taxpayers may want to
express their views on matters such as benefits for domestic
partners, family leave, pension benefits, and even workforces.
Public employees have a dual role—they are employees who are
affected by such practices or policies, and they are also citizens
(and taxpayers). Do the public employees, as citizens, have the
right to speak out on matters relating to their employer’s
practices? Can a public employer prohibit its employees from
speaking out on such issues? Does the First Amendment
freedom of speech protect those employees from disciplinary
action by the employer? The following two cases involve the
question of whether or not a school board can allow a teacher to
comment at a public meeting on matters currently being
negotiated with the teachers’ union, and whether an employee of
a district attorney who reports concerns about improper actions
by other employees to his supervisor is protected by the First
Amendment.
CASE 19.7 City of maDison Joint sChool DistriCt no. 8 v.
WisConsin emPloyment relations Commission 429 U.S. 167
(1976)
Burger, C. J. The question presented on this appeal from the
Supreme Court of Wisconsin is whether a State may
constitutionally require that an elected board of education
prohibit teachers, other than union representatives, to speak at
open meetings at which public participation is permitted, if such
speech is addressed to the subject of pending collective-
bargaining negotiations. The Madison Board of Education and
Madison Teachers, Inc. (MTI), a labor union, were parties to a
collec- tive-bargaining agreement during the calendar year of

96. 1971. In January 1971 negotiations commenced for renewal of
the agreement and MTI submitted a number of proposals. One
among them called for the inclusion of a so-called “fair share”
clause, which would require all teachers, whether members of
MTI or not, to pay union dues to defray the costs of collective
bargaining. Wisconsin law expressly permits inclu- sion of “fair
share” provisions in municipal employee collec- tive-bargaining
agreements. Another proposal presented by the union was a
provision for binding arbitration of teacher dismissals. Both of
these provisions were resisted by the school board. The
negotiations deadlocked in November 1971 with a number of
issues still unresolved, among them “fair share” and arbitr ation.
During the same month, two teachers, Holmquist and Reed, who
were members of the bargaining unit, but not members of the
union, mailed a letter to all teachers in the district expressing
opposition to the “fair share” proposal. Two hundred teachers
replied, most commenting favorably on Holmquist and Reed’s
position. Thereupon a petition was drafted calling for a one-
year delay in the implemen- tation of “fair share” while the
proposal was more closely analyzed by an impartial committee.
The petition was circulated to teachers in the district on
December 6, 1971. Holmquist and Reed intended to present the
results of their petition effort to the school board and the MTI
at the school board’s public meeting that same evening. Because
of the stalemate in the negotiations, MTI arranged to have
pickets present at the school board meeting. In addition, 300 to
400 teachers attended in support of the union’s position. During
a portion of the meeting devoted to expression of opinion by the
public, the president of MTI took the floor and spoke on the
subject of the ongoing negotiations. He concluded his remarks
by presenting to the board a petition signed by 1,300–1,400
teachers calling for the expeditious resolution of the
negotiations. Holmquist was next given the floor, after John
Matthews, the business representative of MTI, unsuccessfully
attempted to dissuade him from speaking. Matthews had also
spoken to a member of the school board before the meeting and

97. requested that the board refuse to permit Holmquist to speak.
Holmquist stated that he represented “an informal committee of
72 teachers in 49 schools” and that he desired to inform the
board of education, as he had already informed the union, of the
results of an informational survey concerning the “fair share”
clause. He then read the petition that had been circu- lated to
the teachers in the district that morning and stated that in the 31
schools from which reports had been received, 53 percent of the
teachers had already signed the petition. Holmquist stated that
neither side had adequately addressed the issue of “fair share”
and that teachers were confused about the meaning of the
proposal. He concluded by saying: “Due to this confusion, we
wish to take no stand on the proposal itself, but ask only that all
alternatives be presented clearly to all teachers and more
importantly to the general public to whom we are all
responsible. We ask simply for communication, not
confrontation.” The sole response from the school board was a
question by the presi- dent inquiring whether Holmquist
intended to present the board with the petition. Holmquist
answered that he would. Holmquist’s presentation had lasted
approximately 21⁄2 minutes. Later that evening, the board met
in executive session and voted a proposal acceding to all of the
union’s demands with the exception of “fair share.” During a
negotiating session the following morning, MTI accepted the
proposal and a contract was signed on December 14, 1971. In
January 1972, MTI filed a complaint with the Wisconsin
Employment Relations Commission (WERC) claiming that the
board had committed a prohibited labor practice by permitting
Holmquist to speak at the December 6 meeting. MTI claimed
that in so doing the board had engaged in negotiations with a
member of the bargaining unit other than the exclusive
collective-bargaining represen- tative, in violation of Wis. Stat.
Sections 111.70(3)(a)(1), (4) (1973). Following a hearing the
Commission concluded that the board was guilty of the
prohibited labor practice and ordered that it “immediately cease
and desist from permit- ting employees, other than

98. representatives of Madison Teachers Inc., to appear and speak
at meetings of the Board of Education, on matters subject to
collective bargaining between it and Madison Teachers, Inc.”
The Commission’s action was affirmed by the Circuit Court of
Dane County. The Supreme Court of Wisconsin affirmed. The
court recognized that both the Federal and State Constitutions
protect freedom of speech and the right to petition the
government, but noted that these rights may be abridged in the
face of “a clear and present danger that [the speech] will bring
about the substantive evils that [the legislature] has a right to
prevent.” The court held that abridgment of the speech in this
case was justified in order “to avoid the dangers attendant upon
relative chaos in labor management relations.” The Wisconsin
court perceived “clear and present danger” based upon its
conclusion that Holmquist’s speech before the school board
constituted “negotiation” with the board. Permitting such
“negotiation,” the court reasoned, would undermine the
bargaining exclusivity guaranteed the majority union under Wis.
Stat. Section 111.70(3)(a)(4) (1973). From that premise it
concluded that teachers’ First Amendment rights could be
limited. Assuming, arguendo, that such a “danger” might in
some circumstances justify some limitation of First Amendment
rights, we are unable to read this record as presenting such
danger as would justify curtailing speech. The Wisconsin
Supreme Court’s conclusion that Holmquist’s terse statement
during the public meeting constituted negotiation with the board
was based upon its adoption of the lower court’s determination
that, “[e]ven though Holmquist’s statement superficially
appears to be merely a ‘position statement,’ the court deems
from the total circumstances that it constituted ‘negotiating.’”
This cryptic conclusion seems to ignore the ancient wisdom that
calling a thing by a name does not make it so. Holmquist did
not seek to bargain or offer to enter into any bargain with the
board, nor does it appear that he was authorized by any other
teachers to enter into any agreement on their behalf. Although
his views were not consistent with those of MTI,

99. communicating such views to the employer could not change the
fact that MTI alone was authorized to negotiate and to enter into
a contract with the board. Moreover the school board meeting at
which Holmquist was permitted to speak was open to the public.
He addressed the school board not merely as one of its
employees but also as a concerned citizen, seeking to express
his views on an important decision of his government. We have
held that teachers may not be “compelled to relinquish the First
Amendment rights they would otherwise enjoy as citizens to
comment on matters of public interest in connection with the
operation of the public schools in which they work.” ... Where
the State has opened a forum for direct citizen involvement, it is
difficult to find justification for excluding teachers who make
up the overwhelming proportion of school employees and who
are most vitally concerned with the proceedings. It is conceded
that any citizen could have presented precisely the same points
and provided the board with the same information as did
Holmquist. Regardless of the extent to which true contract
nego- tiations between a public body and its employees may be
regulated—an issue we need not consider at this time—the
participation in public discussion of public business cannot be
confined to one category of interested individuals. To permit
one side of a debatable public question to have a monopoly in
expressing its views to the government is the antithesis of
constitutional guarantees. Whatever its duties as an employer,
when the board sits in public meetings to conduct public
business and hear the views of citizens, it may not be required
to discriminate between speakers on the basis of their
employment, or the content of their speech.... The WERC’s
order is not limited to a determination that a prohibited labor
practice had taken place in the past; it also restrains future
conduct. By prohibiting the school board from “permitting
employees ... to appear and speak at meetings of the Board of
Education” the order consti- tutes an indirect, but effective,
prohibition on persons such as Holmquist from communicating
with their government. The order would have a substantial

100. impact upon virtually all communication between teachers and
the school board. The order prohibits speech by teachers “on
matters subject to collective bargaining.” As the dissenting
opinion below noted, however, there is virtually no subject
concerning the operation of the school system that could not
also be characterized as a potential subject of collective
bargaining. Teachers not only constitute the overwhelming bulk
of employees of the school system, but they are the very core of
that system; restraining teachers’ expressions to the board on
matters involving the operation of the schools would seriously
impair the board’s ability to govern the district.... The judgment
of the Wisconsin Supreme Court is reversed, and the case is
remanded to that court for further proceedings not inconsistent
with this opinion. Reversed and remanded. Case Questions 1.
Why did the Wisconsin Supreme Court characterize Holmquist’s
statement as constituting negotiation? Did the U.S. Supreme
Court agree with that character- ization? Why? 2. Was
Holmquist addressing the school board in his capacity as an
employee, as a concerned citizen, or as both? Why is it relevant
here? Explain your answer. 3. When can the First Amendment
rights of the freedom of speech and the right to petition the
government be limited? Were those circumstances applicable to
the facts in this case? Explain.
CASE 19.8 garCetti v. CeBallos 547 U.S. 410 (2006)
Facts: Richard Ceballos was a deputy district attorney for the
Los Angeles County District Attorney’s Office. In February
2000, a defense attorney contacted Ceballos about a pending
criminal case and told him that there were inaccuracies in an
affidavit used to obtain a critical search warrant. The attorney
informed Ceballos that he had filed a motion to challenge the
warrant, and asked Ceballos to review the case. Ceballos
determined the affi- davit contained serious misrepresentatio ns.
He informed his supervisors and prepared a memo explaining

101. his concerns and recommending dismissal of the case. A
meeting was held to discuss Ceballos’ concerns about the
affidavit. The meeting allegedly became heated, and Ceballos
was criticized for his handling of the case. The supervisor
decided to proceed with the prosecution, and at a hearing on the
motion to challenge the warrant, Ceballos was called by the
defense and testified about his observations about the affidavit.
The trial court rejected the challenge to the warrant. Ceballos
claimed that in the aftermath of these events he was subjected to
a series of retaliatory employment actions, including
reassignment to a trial deputy position, transfer to another
courthouse, and denial of a promotio n. Ceballos initiated an
employment grievance, but the grievance was denied. Ceballos
then filed suit, claiming that his employer had violated the First
and Fourteenth Amendments by retaliating against him based on
his memo. The trial court granted the employer’s motion for
summary judgment, but on appeal, the U.S. Court of Appeals for
the Ninth Circuit reversed the trial court, holding that Ceballos
allegations of wrongdoing in his memorandum constituted
protected speech under the First Amendment. The employer
appealed to the U.S. Supreme Court. Issue: Does the First
Amendment protect a government employee from discipline
based on speech made pursuant to the employee’s official
duties? Decision: The court of appeals held that Ceballos’
memo was “inherently a matter of public concern” but did not
consider whether the speech was made in Ceballos’s capacity as
a citizen or as part of his profes- sional duties. The Supreme
Court, however, stated that there were two questions to ask to
determine whether constitutional protection is accorded to
speech by a public employee. The first question is whether the
employee spoke as a citizen on a matter of public concern. If
the employee is not speaking as a citizen but rather in the
course of offi- cial duties, the employee’s speech is not
protected by the First Amendment. If the employee is speaking
as a citizen, then the possibility of a First Amendment claim
arises. In that case, the court considers the second ques- tion,

102. whether the government employer had an adequate justification
for treating the employee differently from any other member of
the general public. Government has broader discretion to
restrict speech when it is acting in its role as employer, but any
restrictions it can impose must be directed at speech that has
some potential to affect the employer’s operations. When public
employees speak out, they may express views that contravene
governmental poli- cies or impair the proper performance of
governmental functions. At the same time, the First Amendment
limits the ability of a public employer to impose restrictions on
employees in their capacities as private citizens. So long as
employees are speaking as citizens about matters of public
concern, the employer can only impose speech restrictions that
are necessary for their employers to operate efficiently and
effectively. However, when public employees make statements
pursuant to their official duties, the employees are not speaking
as citizens for First Amendment purposes, and the Constitution
does not protect their communica- tions from employer
discipline. In this case, Ceballos believed the affidavit used to
obtain a search warrant contained serious misrepresenta- tions,
and he conveyed his opinion and recommenda- tion in a memo
to his supervisor. His expressions were made pursuant to his
duties as a calendar deputy, not as a citizen, and his conduct
was not protected by the First Amendment. The Supreme Court
reversed the decision of the court of appeals.

103. References
Cihon, P. J., & Castagnera, J. O. (2017). Employment and labor
law (9th ed.). Boston, MA: Cengage Learning.