Goldwater Institue Reply to Al Lewis, by Nick Dranias

Nick Dranias, on October 20, 2011 at 9:40 am said: Edit Comment

Al Lewis, your claims about Arizona law are simply not true

Arizona lacks statutory collective bargaining authority, but it does not prohibit it and local “meet and confer” ordinances make up the difference. Although public sector unions in right-to-work states, like Arizona, still assiduously refuse to equate “meet and confer” and “collective bargaining” laws, the distinction between “meet and confer” and “collective bargaining” laws no longer makes much of a difference. When such laws first appeared, “meet and confer” laws authorized public sector unions and government management to engage in entirely optional collective negotiations. They were enacted to displace a backdrop of common and statutory laws that prohibited even voluntary negotiations between public sector unions and public employers. Labor advocates later applied the term “meet and confer” to laws that compelled public employers to engage in “good faith” negotiations with public sector unions, but which did not require government to agree to a union contract.

Today, both “meet and confer” and “collective bargaining” laws usually authorize state and local governments to reach binding contracts with public sector unions—contracts that can bind the hands of subsequent legislatures and city councils because of the constitutional protection afforded contractual obligations under federal and state constitutions. Moreover, if unions believe the negotiations are not being conducted by their employer in “good faith,” both “collective bargaining” and “meet and confer” laws empower public sector unions to seek administrative or judicial intervention to compel public employers to bargain. See Phoenix v. PERB, 699 P.2d 1323, 1326-29 (Ariz. Ct. App. 1985) (“It is apparent from the foregoing description that the meet and confer ordinance establishes a procedure whereby City management and employee representatives are expected to negotiate in good faith and reach an agreement concerning wages, hours, and other working conditions. It is anticipated that the negotiations, which are the essence of the meet and confer process, will produce a memorandum of understanding reflecting the agreement between City management and the employee representatives. Importantly, the final decision-making authority is expressly reserved to the Phoenix City Council because the memorandum of understanding is not to be effective until it is approved by the Council . . . . The employee organizations have only suggested, and correctly so, that the terms of the meet and confer ordinance be followed and that issues which are subject to negotiation be, in fact, negotiated as a predicate to final action by the City Council.”); see also AFSCME v. Phoenix, 142 P.3d 234, 235 n.1 (Ariz. Ct. App. 2006) (“In pertinent part, the term “meet and confer” means the performance of the mutual obligation of the public employer through its chief administrative officer or his designee and the designees of the authorized representative to meet at reasonable times, including meetings in advance of the budget making process; and to confer in good faith with respect to wages, hours and other terms and conditions of employment or any question arising thereunder, and the execution of a written memorandum of understanding embodying all agreements reached”).

In short, both labels have come to denote essentially the same thing—laws that require public employers to bargain, i.e. negotiate, with public sector unions in good faith over wages, benefits, terms and conditions of employment. And however they are labeled, such laws are heavily influenced by the National Labor Relations Act. Courts enforcing them look directly to National Labor Relations Board precedent for guidance. In addition to the ability to compel public employers to remain at the bargaining table until “good faith” is demonstrated, these laws deploy many other aspects of the federal doctrine of “unfair labor practices” to hang a legal threat over public employers who refuse to yield to union demands. This power to keep—or threaten to keep—a public employer indefinitely engaged in a costly rope-a-dope of court-supervised contract disputes and negotiations gives public sector unions significant legal leverage in bargaining, which is roughly equivalent to that wielded by private sector unions under the NLRA in more than two-thirds of the nation’s states. As a result, “a considerable amount of bargaining does transpire” in states such as Arizona notwithstanding local reticence to describe such bargaining as “collective. See Richard C. Kearney and David G. Carnevale, Labor Relations in the Public Sector 65-66 (3rd ed. Marcel Dekker, Inc., New York, 2001).


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