Labor Problem in the Public Service : A Study in Political Pluralism [1 ed.] 9780674188792

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H A R V A R D POLITICAL STUDIES PUBLISHED UNDER THE DIRECTION OF THE DEPARTMENT OF G O V E R N M E N T IN H A R V A R D UNIVERSITY

H a r v a r d Political S t u d i e s A

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OF

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OF

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the l a b o r

problem

in the public service A STUDY IN POLITICAL

PLURALISM

the labor problem in the public service A STUDY

IN

POLITICAL

PLURALISM

M O R T O N ROBERT G O D I N E

1951 HARVARD U N I V E R S I T Y PRESS · CAMBRIDGE · MASSACHUSETTS

COPYRIGHT,

1951

B Y THE PRESIDENT AND FELLOWS OF HARVARD COLLEGE

Distributed in Great Britain by GEOFFREY CUMBERLEGE OXFORD UNIVERSITY PRESS LONDON

PRINTED IN THE UNITED STATES OF AMERICA

TO BERNICE

CONTENTS INTRODUCTION

I

xi

the emergence of the labor problem in the public service

II

1

the government and its employees

21

III

the state as an employer: theoretical aspects

41

IV

the status of employee organization in the public service

V

62

the structure and development of the labor movement in the public service

VI VII VIII IX

94

the objectives of public service unionism

131

strikes and political activity in the public service

164

public service unions and the legislature

193

administrative discretion in the determination of conditions of employment in the public service

X

the present status of employee representation in the public service

XI

219

proposed principles and methods of

233 collective

negotiation in public employment

260

BIBLIOGRAPHY

289

INDEX

303

INTRODUCTION IT is a commonplace to observe that the evolution of representative government has been marked by the development of various consultative arrangements whereby the views and desires of organized interest groups are given some measure of consideration in the formulation of public policy. Normally the consultation of interests involves relationships between public agencies on the one hand and groups which are predominantly private in composition on the other. The doctrine of bureaucratic neutrality represents a rational and indeed imperative response to these circumstances. It is true that the concept of neutrality is occasionally attenuated in administrative practice. Officials may bring the fruit of their knowledge, skill, or even prejudices to the creation and implementation of public policy. Neutrality is not synonymous with indifference. But bureaucratic participation in substantive policy-making or in the evolution of administrative methods and procedures is intended to reflect opinion and to embody conduct derived from an informed and conscientious searching of the public interest which precludes the injection of personal bias or elements of favoritism on behalf of particular groups. The vast expansion in the size of modern bureaucracies to the point where government service now provides the largest single source of employment in the national economy and the attendant emergence of a series of challenging labor problems with which public employers have almost everywhere and increasingly become confronted have compelled a reconsideration of the relevance of the concept of neutrality in the specific field of public personnel management. For several million public employees in the United States are manifestly and vitally interested in those aspects of public policy formation and administration which govern the terms of their own employment and economic well-being. Hence arises their concern with such issues as compensation, conditions of employment, freedom to associate for the promotion of their economic objectives, or to engage in political activity in common with their fellow citizens. Moreover, their aspirations in this regard

xii

introduction

have recently been made more clearly articulate through staff organizations. The public service in brief has come to constitute a unique and numerically important special interest. Neutrality may not be assumed as readily in the field of public personnel policy as it may reasonably be enjoined in relationships between the civil service and private groups. More significantly, staff interests may not be expunged summarily without jeopardy to the liberty of functional organization and activity which have become integral elements in the processes of representative government. On the other hand the civil service may not be permitted a status which would enable it to become so effective or dominant a force in personnel management and policy determination as to subvert the principle of bureaucratic responsibility to popular organs of government. For if the public employee is a member of an occupational group whose interests demand free articulation if they are to be satisfactorily consulted in the course of policy formation, he is also part of a government service whose organization and functioning, including the terms of employment which shall prevail within it, must be controlled ultimately by public representatives. The labor problem in the civil service derives its uniqueness and complexity from this twofold aspect of government employment. The imperatives of industrial management do not require that employees accept individually or collectively the conditions of employment offered by private firms. In the conduct of negotiations or in the contests of strength which may ensue in this area they may legitimately aspire to exercise an equal or even preponderant voice. Similar pretensions are inadmissible in public employment where the unique demands of government require the subordination of the civil service to representative authorities. The primary object of this study is to ascertain the extent to which the civil service may be accorded a measure of functional recognition without impairment of the inalienable duty of a representative government to retain ultimate control over the administrative machinery created for the accomplishment of public purposes.

the l a b o r p r o b l e m in the ρuoiic service A STUDY IN POLITICAL PLURALISM

CHAPTER I

the emergence of the labor problem in the public service OVER twenty-five years ago an analysis of the pluralist movement in political thought led the writer to the general observation that "governments have entirely overlooked any need to recognize the peculiar interests of the persons who actually create the services purveyed or contributed by government to the community." 1 The failure to make adequate provision for the diverse needs of an ever-growing army of civil servants may be attributed to a number of factors which, although of varying importance in particular countries, have been universally perceived by writers in the field of public administration. In Europe, the neglect of the public service may have been due to a historical distrust of a bureaucracy which was once the arm of an arbitrary and unpopular executive. In the United States, the development of a career service in which adequate recognition is given to the professional needs of the government and its employees has long been impeded by an apparently abiding adherence to the spoils system. But whatever were the causes responsible for the prevalent indifference toward the welfare of public employees, they were of such lasting effectiveness that years after the pluralist movement had spent its force, Herman Finer felt compelled to conclude in his comparative survey of modern governments that the civil servant was still generally treated "in a way which has, in the last generation, at least, not been tolerated by the private employee." 2 Indeed, public employees in various countries, particularly in 1 Francis W. Colter, "The Technique of the Pluralist State," 15 American Political Science Review 201 (1921). ' The Theory and Practice of Modern Government, London, Methuen, 1932, p. 1384.

2

labor problem in public service

France, and to a lesser extent in Great Britain, sometimes abandoned hope that the traditional bureaucratic structure would permit the substantial amelioration of their conditions of employment. The pluralist criticisms of the sovereign state endeavored to delineate a practicable ideological framework for a new administrative scheme in which the conception of the state as an absolutist employer would yield to more democratic arrangements which would permit an enhanced responsiveness to the individual and group aspirations of the civil service.4 These expectations have nowhere been realized. The failure to evolve a more democratic administrative system was in part a consequence of the general ideological collapse of the pluralist attack upon the sovereign state. Of fundamental importance in this respect was the inability of its proponents to formulate an acceptable economic and political program which could effectively resolve the many social and political problems which pluralist thinkers had explored with such versatile brilliance. Of equal moment in so far as public administration was concerned was the attempted affiliation of government workers in certain countries, notably France, with revolutionary organizations and an excessive preoccupation with the strike problem in the public service. The popular hostility engendered by these activities not only threw into disrepute the specific associations involved but also delivered a fundamental setback to the general movement for any civil service reorganization directed toward an increased measure of group participation in personnel management. Associations of public employees continued to function in Great Britain, France, and the United States. But their objectives and activities were limited, with the outstanding exception of the Whitley experiment in England, to securing improvements in the material conditions of employment through whatever expedients could be conveniently and effectively devised without reference to any underlying conceptual scheme of public labor relations. The emerging importance of public employer-employee relations has raised to a new and pressing urgency the issues inherent in the demand for the democratization of administrative organization which attracted and unfortunately confounded pluralist speculation a generation ago. The rise of the labor movement in the public service to a position of growing significance has now made imperative 3

8 See Louis Levine, Syndicalism in France, New York, Columbia University Press, 1914. * Pierre Harmignie, L'Etat et ses Agents: Etude sur le Syndicalisme Administratif, Louvain, 1911.

emergence

3

a fresh appraisal of programs which aspire to create a measure of employee participation in personnel management. Civil service unions have not only directed their efforts toward securing substantive improvements in working conditions but they have increasingly sought an opportunity to share in the formulation and administration of personnel policies which vitally affect the welfare of the rank and file. Unfortunately, administrative officials have been required to evaluate these objectives without the guidance of a basic public policy prescribing the status and functions which may properly be assigned to associational activity. Such legislation as has been passed by the national and state governments directed toward the promotion of collective bargaining in private industry has scrupulously excluded public employees from the scope of its provisions. The National Labor Relations Act may be cited as a case in point. 5 The Norris-La Guardia Act 6 designed to prevent the issuance of court injunctions in private labor disputes provides a further illustration of the government's failure to evolve a positive policy with respect to its own labor problems. A judicial determination that this particular statute does or does not preclude the issuance of injunctions in disputes in which the government rather than a private firm is a major party, or a pronouncement to the effect that the government qua government cannot conceivably be engaged in a labor dispute, in no wise furnishes a satisfactory solution to the labor problems inherent in the public operation of various enterprises. The act in question was conceived without reference to its possible application in a public labor dispute. Assuming that it will not normally be construed to restrain the government from seeking injunctions in the event of conflicts with labor organizations, it is nevertheless evident that resort to this particular remedy by public authorities is of dubious propriety if private firms are denied its use as contrary to public policy. Governmental operation of basic industries beset by strikes may assure the continued performance of vital services but it does not necessarily eliminate or even assuage the grievances which led to the original outbreak of industrial strife. The seizure of certain coal mines in 1946 by the Federal Government illustrated the dangerous fallacy inherent in this assumption. The success of the government in securing the uninterrupted provision of essential services was in no sense evidence of its ability to resolve labor disputes satisfactorily as indeed the history of 6

29 U.S.C. 152 (1940 ed.). •29 U.S.C. 101 (1940 ed.).

4

labor problem in public service

the mine seizure distressingly revealed. The situation demands rather the evolution of a specific labor relations policy for public employees than a continued resort to exemptions and immunities contained in general labor legislation which permit the imposition of a unilateral settlement by official command. Such reserved authority may well be indispensable in emergencies but in the normal course of public personnel management, techniques less arbitrary and less discredited may well prove feasible and indeed indispensable if authoritarian regulation of a substantial segment of the national labor force is to be avoided. It is true that personnel administrators have recently revealed a growing awareness of the problem of employee relations in the public service. In addition, a number of government agencies have issued formal statements of personnel policies in the establishment and operation of which both individual employees and representative organizations have been accorded a measure of responsibility and participation. In general, however, the subject remains "one of the most neglected in the field of public personnel administration." 7 The failure to evolve a rational scheme of employee relations has had the unfortunate and serious consequence of rendering responsible administrators unprepared in psychological attitude and ill-equipped in personnel technique to cope with a labor problem of growing importance. Organizations of public employees, wrote Messrs. Reeves and David in the Report of the President's Committee on Administrative Management, frequently appear to encounter the passive, if not the active, opposition of administrative officials. It is often alleged that officials attempt to prevent organization, or . . . to dominate . . . organizations when formed (or) to be reluctant to recognize and confer with representatives of employee groups.8 Mr. Arthur J. Altmeyer has elsewhere succinctly summarized prevailing personnel practice. "Government unions have been in existence for some time, but there is no well defined policy toward them," and he proceeded to express his personal conviction that "a definite policy of employee representation seems . . . essential in proper personnel administration." 9 7 Research in Employer-Employee Relations in the Public Service, New York, Social Science Research Council, 1940, p. 2. 8 Report of the President's Committee on Administrative Management, Government Printing Office, Washington, 1937, p. 112. 9 "The Scope of Departmental Personnel Activities," 189 Annals of the American Academy of Political and Social Science 190 ( 1937).

emergence

5

Personnel programs which would provide for staff representation have been instituted in only a few public jurisdictions and have been confined in the main to agencies possessed of exceptionally extensive autonomous authority to experiment with employee relationship policies of their own preference and design. The development of virtual collective bargaining at the T V A is a celebrated case in point. T h e few experiments in employee relations introduced in specific agencies unfortunately have not provided any marked stimulus to similar projects in other areas of public employment within the limits of basic personnel and compensation laws and regulations. T h e number and wide divergence of procedures governing employee relations have not been sufficiently and systematically compiled and analyzed so as to enable supervisory officials to be generally aware of their potential relevance and applicability. But a more deeply rooted indifference to the labor problem in the public service is indicated when the Council of Personnel Administration, an agency established for the express purpose of conducting planning and research activities in the field of personnel management, is alleged to have made no effort at any time to enlist the interest, cooperation and assistance of the various organizations of Federal employees. It does not seem to have given thought to whether these organizations are capable of making a contribution to the development of Federal personnel policies. 10 FACTORS R E S P O N S I B L E F O R T H E N E G L E C T O F LABOR P R O B L E M I N T H E P U B L I C

THE

SERVICE

T h e neglect of public employee relations may be attributed in the first instance to an inadequate recognition of the fact that the conception of an omnipotent state confronted by a "rabble" of isolated individuals is without empirical foundation in the field of public employment as elsewhere. 1 1 Informal organization of employees into groups has been found to constitute a primary fact of large-scale bureaucratic organization. Examination of an extensive variety of work relationships has revealed the existence of a complex social system rather than an agglomeration of discrete individuals in a hierarchy in which only vertical relations of supervision are involved. Of equal importance with the overt organizational structure are the horizontal and informal affiliations between employees in the same and in various 10 Report of the President's Committee, p. 86. " See Elton Mayo, The Social Problems of an Industrial Civilization, Andover Press, 1945.

6

labor problem in public service

units.12

work Personnel administration is thus everywhere and inevitably confronted with a twofold managerial problem. It must first of all secure the achievement of the basic purpose for which the specific organization was created. In private industry this demands the economical production of certain goods or services. In the public service this objective requires the efficient and continuous performance of the functions which government has assumed. But the further task is imposed of achieving an equilibrium of the social groups inherent in any large scale organization so that "individuals through contributing their services to this common purpose obtain the personal satisfactions that make them willing to cooperate."13 The two objectives are mutually related in the sense that one cannot normally be achieved at the expense of the other. Public personnel administration has almost without exception, however, proceeded upon the very explicit assumption that the government labor problem essentially involves relationships between a multitude of employees on the one hand and supervisors assisted in varying degrees by personnel staffs on the other. Little awareness, expressed or implied, has been shown of the fact that the rank and file spontaneously or as a result of conscious deliberation and action form numerous types of associations to protect and advance their welfare. The informal type of social organization studied by Roethlisberger and Dickson has not been made the subject of intensive analysis in public employment. It is reasonable, however, to presume its existence in this area. Government, as the President's Committee on Administrative Management pointed out, "is an institution . . . made up of men and women who work together in groups."14 Civil service unionism is essentially a collective and protective response of employees to a work environment in which group activities are not accorded or often explicitly denied any integration with formal administrative procedures. Under these circumstances the relationships between public officials and staff organizations have not, of course, secured the cooperative response from the working force which is vital to the achievement of administrative objectives. The traditional popular hostility toward governmental bureaucracy, particularly evident in democratic societies, has contributed further toward the neglect of the problems of employee relations in the public service. This attitude, as Friedrich and Cole observed, has at least in 12 F. J. Roethlisberger and W . G. Dickson, Management and the Worker, Cambridge, Harvard University Press, 1939, p. 554. 13 Roethlisberger and Dickson, p. 567. 11 Report of the President's Committee, p. 39.

emergence

7

part been engendered by or expressed itself in the widespread belief that bureaucracy is necessarily "irresponsible" and therefore undemocratic. 15 The merits of this particular controversy are not of direct concern at this point. The consequences of the familiar animosity, however, are of vital importance. So long as the public service remains a popularly suspect institution, adequate provision for the needs of its members will not be forthcoming in democratically organized societies. Unhappily there is little warrant for assuming that these suspicions will be easily eradicated by improved public relations or even by the evolution of a more efficient and more responsible bureaucracy. The distrust is more self-interested in motivation. It derives its apparently abiding vitality from the fact that "the public service . . . is being carried on in a total institutional background of an acquisitive society." 16 The low repute in which the public service is held and the resultant neglect of the needs of its members are often an expression, albeit irrational or malicious, of opposition to basic governmental purposes which are in conflict with private objectives. It may be unjust and illogical to deny adequate consideration to the welfare of public employees who are conscientiously seeking to carry out policies in whose formulation they had little or no voice but which are antagonistic to the interests of powerful private groups. The reality of such reactions, however, is frequently apparent. The prevalent reluctance to view civil service aspirations sympathetically may also be attributed to widespread apathy as well as hostility. Private interests seek to establish with varying degrees of success some relationship between their particular aims and the communal welfare. The prospect of attaining their objectives depends in large part upon the degree to which they succeed in this process of identification. If the group and its aspirations are deemed, with or without reason, to be unrelated to the everyday interests of the public, the appeal will probably fall upon deaf ears. Unfortunately the civil service has long been regarded in this light. "A democracy," as Graham Wallas observed a long time ago, "is but rarely interested in the processes of administration. What compels its attention is not so much methods as results." 17 The primary and often exclusive interest of the public is to secure the continuous, uninterrupted provision of services. So long as this 15 Representative Bureaucracy: A Study of the Swiss Civil Service, Cambridge, Harvard University Press, 1932, p. 3. ™ Ordway Tead, New Adventures in Democracy, New York, Whittlesey House, 1939, p. 111. 17 Cited by Harold J. Laski, Authority in the Modem State, New Haven, Yale University Press, 1927, p. 324.

8

labor p r o b l e m in public service

demand is met with apparent regularity and efficiency, any attempt to arouse popular support for the improvement of the conditions under which employees work involves an effort of prodigious proportions. It is only occasionally and in special areas of public employment that a readily perceived relationship between the public interest and the needs of government employees permits a successful appeal to the sovereign electorate. Daily and generally pleasant contact with postal workers and the recognition that they perform tasks of great and obvious value to the community have been responsible in part for the relative success with which their organizations have been able to elicit favorable public support of their programs and to secure their sympathetic consideration before legislative bodies. It should immediately be observed, however, that these general expressions of approval frequently fail to compel the rectification even of employment situations which are admittedly in urgent need of improvement. It is too often only the shock of the interruption of services confidently taken for granted which spurs the public to an awareness of the needs of its civil servants. Under these critical circumstances, however, government workers are likely to find themselves in a strategically precarious position. Their demands, legitimate or otherwise, are no longer the subject of immediate controversy. The primary concern of the public is to secure the restoration of discontinued services. Of course discontent with working conditions in the public service only rarely culminates in strike action. Government employees are well aware that the risks involved render any such undertaking hazardous in the extreme. More frequently, public hostility or indifference permits grievances to remain without redress with the result that the civil service either presents a deceiving picture of surface tranquility beneath which frustration takes its toll in the form of diminished efficiency or alternately the accumulation of ignored demands compels a resort to pressure group activities of dubious propriety. CONSEQUENCES OF THE NEGLECT OF THE LABOR PROBLEM IN THE PUBLIC SERVICE

The failure to provide explicit procedures for the resolution of labor problems in the public service has been manifest at all levels of government. Municipal employees in particular have struck against public authorities to obtain elementary rights of association. The "right" to strike is unequivocally denied and yet occasionally exercised.18 Politi18 See David Ziskind, One Thousand York, Columbia University Press, 1940.

Strikes of Government

Employees,

New

emergence

9

cal activities forbidden by statute and civil service regulations are nevertheless openly conducted by employee organizations under the guise of "educational" activities. T h e effective prohibition of strikes demands the provision of machinery whereby employee grievances may be satisfactorily resolved in such a manner as to render strike action morally as well as legally indefensible. The absence of an explicit labor relations policy for public employees in the State of New York, for example, made the settlement of the greatest strike of school teachers in the nation's history depend ultimately upon a test of strength rather than upon an objective consideration of the merits of the controversy. 19 Again threatened strike action on the part of the Transport Workers Union in New York City has repeatedly been averted only by lastminute improvised compromises rather than in accordance with a clearly defined labor relations policy. It is of especial significance to observe that the issues in controversy between the public employee unions and the municipal authorities in New York City have often been centered not in wage demands but in such questions as union recognition and the closed shop which relate to the constitutional framework within which employer-employee relations are conducted. Without agreement upon such fundamental matters, the pattern of public employee relations will continue to assume the already too familiar shape of crisis followed by popular indignation with the resultant undesirable alternatives of the arbitrary repression of employee demands or the achievement of staff objectives through a collective defiance of public authority. Other consequences of significance may attend the persistence of confusion and uncertainty in this field. The continued coexistence of popular government and authoritarian administration involves incongruous relationships which become more serious as the number of pub" See New York Times, February-March 1946, for accounts of the city of Buffalo school teachers' strike. Observers of this event were virtually unanimous in their opinion that city and state officials had neglected to develop even the rudiments of a satisfactory procedure whereby the merits of the teachers' demands could be fully and fairly considered. The failure to provide adequate machinery for the peaceful settlement of the dispute may be attributed in part to the fact that city officials had greatly underestimated the collective strength which group organization had apparently created. Immediately preceding the strike, responsible officials expressed a firm belief that it would be averted at the last moment. In brief, the strike threat of the organization was not viewed seriously. The history of the strike should serve as an object lesson of the danger inherent in a persistent refusal by official authorities to develop a positive program of employer-employee relations. Continued neglect in this field might well provoke more drastic action on the part of associations affiliated with the labor movement and more sympathetic to the use of militant tactics in the achievement of their objectives.

10

labor problem in public service

lie employees increases steadily to form a major segment of those gainfully employed in the economy. For a bureaucracy, as has often been observed, is the core of modern government and in large part conditions the nature of political institutions and political morality. That aspect of modern pragmatism which asserts a measure of continuity between means and ends is of vital relevance at this point. An authoritarian bureaucracy is not only an unfit instrument to achieve broad democratic objectives but also it may jeopardize the very survival of representative institutions. Moreover it would be imprudent to expect organized labor to adopt a judicious perspective toward the efforts of government to expand the scope of its functions if such undertakings are invariably attended by the enfeeblement of the labor movement. If increased governmental activity involves a surrender of the degree of industrial democracy which has been achieved in private industry, organized labor will indiscriminately oppose government enterprise regardless of the merits of ultimate objectives which may be of urgent social importance. Programs for the development of power resources in the northwest United States for a time met with the opposition of organized labor precisely on this score.20 It was in large part the employee relations policy developed cooperatively by public personnel administrators and progressive labor leaders at the Bonneville Power Administration which led finally to an enthusiastic acceptance of public power projects by the organized employees of the region.21 The personnel program which emerged, like that of the Tennessee Valley Authority, is in fundamental contrast, however, with prevailing techniques for the conduct of labor relations in the public service. FACTORS RESPONSIBLE FOR THE EMERGENCE OF THE LABOR PROBLEM IN THE PUBLIC SERVICE

Expressing the aspirations of French civil servants, M. Maxime Leroy remarked in 1909: "Hommes, citoyens, les fonctionnaires se refusent a n'être que des "citoyens spéciaux," dans l'Etat sans autres droits que l'obéissance." 22 The recent history of employee relations in public employment has lent a fresh urgency to this observation which a generation ago challenged the traditional conception of the state employer. A distinguished labor relations expert whose experience has " O t t o S. Beyer, "Bonneville Power and Labor," Survey Graphic 1946). 21 See Chap. X. " Syndicats et Services Publics, Paris, 1909.

(October

emergence

11

included a close association with the experimental personnel policies of the Tennessee Valley Authority and of the Bonneville Power Administration has declared: It is only a question of time before the full impact of the developments in the field of labor relations in private industry will be felt in the relations between employees and administrators in the public service.23 Public employees rarely deny that the peculiar conditions of their employment require the imposition of special restrictions upon their individual and group activities. They are insistent, however, that these constraints be justified on concrete, relevant grounds and not by the mere dogmatic assertion that the civil service qua service cannot enjoy rights and privileges possessed by private employees. Civil servants are increasingly demanding a reasoned justification by the public authorities of the latter's almost universal exemption from processes developed by, or more pertinently often imposed by government policy upon private employers. "The impetus to some form of collective bargaining," Ordway Tead has observed, "is now one that seemingly will not be stopped even among governmental employees." 2 4 Furthermore the tendency to demand a status commensurate in some measure with that achieved by private workers has its impulse in more than a desire to improve material conditions of employment. It is in large measure the expression of a democratic spirit. For even if it were assumed that the government could be counted upon to be as benevolent or even more benevolent than private employers, experience has shown that the growing spirit of independence among those who labor calls for a participation in the social process other than that of drawing the pay check. It is not benevolence that America stands for. 25 Public employees in brief seek not only the betterment of their economic welfare but also a voice in the determination of the conditions under which they work. The opportunity to share in personnel decisions of vital concern may represent a satisfaction of especial value in the public service. For inasmuch as government employees are universally " Otto S. Beyer, "Employee Relations in the Public Service—Present and Future," 7 Public Personnel Review 20 (January 1946). u Tead, New Adventures in Democracy, p. 109. 25 Charles A. Beard, "A Governmental Employment Policy," 3 6 Good Government 17 (January 1 9 1 9 ) .

12

labor problem in public service

unable to obtain exceptionally attractive terms of employment, they may reasonably be expected to attach considerable importance to the less tangible satisfactions derived from participation in the formulation and administration of personnel policy. Other factors have been responsible for the increased emphasis upon organizational activity in the public service. Certain employment conditions which generally favor the emergence of unionism may reasonably be expected to have similar consequences in public employment. Security of tenure, for example, has tended to increase the organizability of a working force. Although reductions in force constitute an ever-present threat to job security in the government service, the many persons who retain their positions and acquire civil service status, in addition to vested interests in pension funds, form an excellent foundation for stable and effective unionism. Perhaps the strength of the oldest general employee organization in the Federal Service, the National Federation of Federal Employees, may be attributed to the fact that many of its members and officers have been in the government service for exceptionally long periods of time. In this respect it should be noted that all employee associations are unremitting in their advocacy of that aspect of the merit system which would remove jobs from the uncertainties of political manipulation. Again the relatively few promotional opportunities in a large hierarchical organization tend to make its members in the aggregate less individualistically bent upon personal advancement and more disposed to collaborate with fellow employees in attempts to improve their common welfare. Furthermore the work of thousands of public employees is routine in nature and the fact that large numbers are engaged in the performance of similar tasks produces common interests and leads naturally to collective action as the most expeditious means of securing the effective consideration of group needs. Finally the public service is not as a whole confronted with the threat of technological unemployment and the elimination through obsolescence of important occupational groups. The government service has rather shown a secular increase in numbers which the most vigorous retrenchment efforts have been unable to mitigate. Indeed the proportion of the total number of gainfully employed persons in the United States who earn their livelihoods as public servants has steadily grown larger.26 The trend in the nature and volume of public employment perhaps merits particular comment. M H. D. Anderson and P. E. Davidson, Occupational Trends in the States, California, Stanford University Press, 1940, p. 472.

United

emergence

13

Prior to the outbreak of World War II, Federal civil employees increased steadily from a total of 532,798 in 1925 to 861,914 in 1938.2T The Civil Service Commission's Monthly Report of Employment for March 1946 showed a total of 2,379,389 employees in the executive branch of the Federal Government. Civil Service Commissioner Arthur S. Flemming has expressed the opinion that a minimum work force of 1,600,000 would remain essential in the Federal Service even if the most drastic Congressional measures to reduce the size of the executive establishment were carried out.28 It is exceedingly important in any attempt to ascertain the potential minimum volume of Federal employment to recall that a very substantial percentage of the total personnel is regularly employed in the War and Navy Departments, the Post Office and the Veterans Administration.29 The elimination of war emergency and even other agencies which have become popular symbols of governmental personnel extravagance is not accordingly likely to reduce the size of the public service to pre-World War II levels.30 The abolition of war-necessitated agencies may well be followed after a not too prolonged interval by others created to mitigate hardships created by postwar economic and other problems. The diversification of public employment which presently encompasses an extensive variety of occupations increasingly difficult to distinguish from those found throughout the economy at large has contributed further to the emergence of labor problems of similar magnitude and substance to those encountered in private industry. "Few of the occupations in the United States, listed by the Census Bureau . . . do not have one or more representatives in the Federal Service." 31 In 1943, excluding school board employees, only one-fifth of the total number of state government workers were engaged in general administration, financial, legislative, or judicial functions.32 Of the total number of employees in the Executive Branch of the Federal Government in March 1946, one-third were paid on an hourly or daily basis according to prevailing rates for comparable work in private industry. Of the remaining salaried employees, a large proportion per27 President's Committee on Civil Service Improvement, 77 Cong. 1st Sess. H. Doc. 118, vol. 3, pt. 1, Documents and Reports, p. 12. 28 Address, Boston, November 6, 1946. 28Ibid. 30 See "Public Employment and Pay Rolls in the United States, 1929-1939 and Post War Implications," Monthly Labor Review (February 1 9 3 5 ) , in which it was asserted that Federal employment was "not likely to drop to the 1939 figure of 888,400 or even to fall as low as one million." " U.S. Civil Service Commission, Annual Report, 1939, p. 62. 82 U.S. Department of Commerce, Quarterly Employment Survey, May 1944.

14

labor problem in public service

formed professional, scientific, and technical functions33 rather than clerical and administrative work so frequently regarded as characteristic of public employment. A recent sample analysis of more than 800,000 service record cards of the Civil Service Commission indicated how erroneous is the prevalent conception of the public service as composed essentially of clerical employees of varying degrees of capacity and responsibility.34 Over 26,000 job titles were examined in this study. Allowing for duplication in descriptions and other procedural defects in classification, the result nevertheless testifies to an enormous occupational range of positions. The survey shows that only 54.6 per cent or 441,000 of a total of 808,000 employees were engaged in administrative, managerial, or clerical work. Of this group, however, 47.4 per cent were postal clerks and carriers who have been strongly unionized for decades. The remaining 45 per cent were divided evenly between workers who in many instances are members of craft unions affiliated with the general labor movement and professional, technical, and maintenance employees. Government employees in the main are essentially wage earners with substantially the same economic interests as employees in private industry. It is not surprising that they too have turned increasingly to organization and group activity as a method of securing improvements in their conditions of employment. By the same token it is apparent that a public labor relations policy based upon the misconception that government employees are primarily white-collar workers traditionally indifferent or hostile to organizational activity reflects an unawareness of the personnel structure of a modern public service. Finally the increasing demand for the collective deliberation of the terms of public employment may be attributed to the fact that conventional methods of wage determination and grievance adjustment have proved unsatisfactory to a growing proportion of government employees. It was urged some years ago that the civil servant in Great Britain could safely depend upon the public and parliamentary recognition of the justice of his cause, upon the fairness of the Treasury . . . and upon royal commissioners which act as a kind of arbitration board, to get real grievances redressed and reasonable demands granted.35 83 J. W. Mitchell, Chief, Federal Employment Statistics Staff, letter to the writer, May 6, 1946. 34 A. C. Edwards and B. Wermerl, "Occupations of Federal Employees," Personnel Administration (April 1940), pp. 6-10. 35 Robert Moses, The Civil Service of Great Britain, New York, Columbia University, 1914, p. 202.

emergence

15

The subsequent establishment of staff consultation in the Whitley Council experiment and the vigorous and continued growth of civil service associations in England would seem to indicate that this observation was somewhat over-sanguine in its evaluation of the treatment which public employees may reasonably expect from the unilateral determination of their conditions of employment. In so far as public personnel administration in the United States is concerned, both experience and the testimony of expert observers would point to a similar conclusion. J. M. Pfiffner has pertinently observed that inasmuch as executives and legislatures are constantly under pressure from large tax-paying interests to keep down expenditure,36 . . . public servants will be neglected in matters of pay unless they are militantly vocal through their organizations.37 Ordway Tead made a similar observation almost thirty years ago when he wrote: "The plain fact is that left to itself, the State has neither the knowledge nor the inclination to alter for the better the conditions under which its civil employees work." 38 The public servant in brief appears to be in the same predicament as members of private groups who find conventional political party machinery inadequately responsive to their complex interests. The oft-noted correlation between the effective enjoyment of liberty and freedom of associational activity is therefore perhaps as valid within the public service as in the more familiar area of trade union, industrial, and religious life. 38 Indeed the ineffectiveness of individual action is particularly apparent in the public service. A small number of employees may occasionally succeed in exploiting elements of a patronage system to their separate advantage. The rank and file of a government bureaucracy is unable to improve the general level of public employment through such conduct. In this sphere group organization has appeared increasingly essential to the effective achievement of objects of common concern. Of course government employees in common with other citizens may and do exercise their historic and constitutional right to appeal " Public Administration, New York, Ronald Press, 1946, p. 246. " Ibid., p. 244. ""Labor Unions in a Democratic State," 35 Good Government 1 3 4 (February 1918). " "In every modern state the essence of political liberty lies in freedom of association . . . The state has grown to such a Leviathan . . . that it can only be moved at all by powerful organizations. The free play of these interests and propaganda groups is essential to any democratic and liberal form of government.' W . Y. Elliott, The Pragmatic Revolt in Politics, New York, Macmillan, 1928, p. 38.

16

labor problem in public service

to legislative bodies for the redress of their grievances. This privilege, however, whether exercised by private persons or public servants is generally little more than an ineffective gesture unless it is exercised in collective fashion. For as A. L. Lindsay has observed, the "right of petition has little to do with democracy . . . Unless there is power behind the expression of grievances, the grievances are apt to be neglected." 40 Although few students of government would question the validity of this proposition, the attitude is still prevalent that the organization of government employees as distinct from other groups would serve no useful purpose inasmuch as the people acting through their representatives possess the knowledge, the interest, and the voluntary disposition to provide for the welfare of its civil service. The response of the public and its representatives to the needs of the civil service would appear to deprive this viewpoint of a firm basis in fact. The complicated issues involved in the management of a modern bureaucracy lack the spectacular content which normally awakens widespread interest among the electorate. Allusion has already been made to a deeply rooted tradition of popular hostility or indifference toward the welfare of the government employee. It is not surprising, therefore, that party platforms in the United States since the passage of the original civil service act in 1883 have contained only the most general references to public personnel matters. In the main these have been confined to the assertion of conflicting claims of exclusive responsibility for the introduction, protection, and extension of the merit system.41 Such perfunctory declarations would appear to indicate both the nature and extent of the public's interest in these matters. Commenting on the lack of informed popular discussion which preceded the enactment of important salary legislation in 1928, a Washington newspaper succinctly and accurately expressed the prevailing relationship between the public at large and its employees. "The people of the United States," it was declared, "know nothing of conditions surrounding the civil service. They rely upon Congress to deal fairly with the Nation's employees." 42 Normally it is true that the reliance of interest groups upon the responsiveness of legislative bodies is not misplaced in governmental systems organized upon representative principles. For it is in the nature of representative bodies, as they have developed historically, to react The Modern Democratic State, London, Oxford University Press, 1943, p. 271. See the History of the Federal Civil Service, 1789 to the Present, published by the U.S. Civil Service Commission for a compilation of those sections of party platforms which relate to civil service and the merit system. " Federal Employee, April 1928, p. 10. 10

41

emergence

17

with almost inherent and sometimes oversensitiveness to the articulation of group aspirations.43 The basic reason underlying this familiar phenomenon was given classic expression in the celebrated tenth Federalist Paper: "And what are the different classes of legislators but advocates and parties to the causes which they determine?" But the apathetic response of representative bodies to the needs of the civil service provides an outstanding exception to these prevalent political relationships. It is only rarely that legislators appear as the champions of causes which would promote the welfare of public employees. Seldom does an American Congress include any definable group devoted to safeguarding and promoting the welfare of civil servants. In this respect it is interesting to observe Professor Holcombe's inclusion of government employees among the "intermediate" classes of occupational groups which allegedly are "greatly over-represented" in legislative bodies.44 But the detailed enumeration of the types of occupation which have achieved excessive representation in Congress includes only "lawyers, doctors, dentists, teachers, journalists, engineers, accountants and clergymen." 45 With the exception of teachers, it is apparent that public employees have failed to secure spokesmen for their particular interests. The "over-representation" referred to is thus characteristic of some but not all of the particular segments within the broad occupational groups which comprise the "intermediate" class. Of course it is questionable whether the entire civil service should be indiscriminately classified with these particular social groups rather than with wage earners. The allocation of almost five million persons engaged in more than twenty thousand different types of work to a single "class" seems on the surface to involve a simplification which may be sustained only at the risk of broadening the basis of class differentiation to a point of questionable significance. Whether the criterion of economic status or psychological attitude is employed in the designation of public employees as wage earners or as members of the middle class, many of the rank and file would appear to fall into the former category. Employees engaged in industrial type activities, and their number includes a substantial proportion of the public service, are clearly wage earners in the usual sense of that term. The vast majority of postal workers who have been organized for a genera" See Francis G. Wilson, Elements of Politics, New York, McGraw-Hill, 1936, p. 94. " Arthur N. Holcombe, Government in a Planned Democracy, New York, W. W. Norton, 1935, pp. 45, 49. 45 Ibid.

18

labor problem in public service

tion bear at least as strong a resemblance to private employees engaged in craft unions as to the members of the social groups which comprise the middle classes. White-collar employees present a more complex problem of class affiliation. Income considerations would merge most of them with wage earners but their psychological attitudes would perhaps ally them with the middle class. To the extent that government workers may reasonably be viewed as a segment of the labor element within the economy, they have been denied, at least until recently, any significant representation in legislative bodies. Professor Holcombe has pointed out that generally "the numbers of the workers enable them to find some compensation for the unimportance of their direct representatives." 4 6 Mere numerical preponderance, however, is admittedly ineffective in the absence of vigorous "supplementary representative institutions . . . through which these special interests can find more adequate expression." 47 To this end private labor has been organized into powerful groups. The interests of public employees similarly require collective action if they are to secure adequate recognition. "I believe," declared Senator Harrison in 1920, "that it has been necessary in a very large measure for the Government employees to organize if they were going to be adequately taken care of by Congress." 4 8 In his testimony before the Commission of Inquiry on Civil Service Personnel, President Steward of the National Federation of Federal Employees indicated some fifteen years later that the need for concerted group action had not diminished. It was alleged that every measure of benefit to government workers had "not only been initiated by the organized federal employees themselves, but they have furnished the motive power to put the thing through . . . everything from research to lobbying." 4 9 In view of the inadequate popular or legislative consideration of the needs of government employees, it is unlikely that even the most enlightened officialdom can mitigate the tendency toward organized measures of self-help on the part of the rank and file. Persons in managerial positions, moreover, have a vested interest in securing the most efficient performance of work in the administrative units under their supervision. This objective is present in public as well as in private employment. The most efficient record is generally deemed to be that "Holcombe, p. 72. 47 Holcombe, p. 41. 48 Congressional Record, 66 Cong., 2d Sess., April 2, 1940, p. 5149. " Commission of Inquiry on Public Service Personnel, Minutes of New York, McGraw-Hill, 1935, pp. 59-60.

Evidence,

emergence

19

which involves the least cost. Until recently, operating results in terms of overall profit provided the principal available criterion of managerial efficiency. As the government service was normally not operated for profit, the work of a public administrator was not readily susceptible of objective evaluation in these terms. But the marked increase of technical proficiency in the fields of cost analysis and work measurement have produced basically new criteria by which work performance may be evaluated. Similar standards of efficiency and productivity can now be applied increasingly in public and private enterprise. Their administration, however, is occasionally productive of abuses which employees acting individually can counteract only with great difficulty. The attempt to maximize the productivity of a work force through unilateral managerial initiative may lead to a neglect of employee welfare which only collective action can effectively remedy. The actions of officials are only as circumspect or as ill-advised as those of private employers. Indeed, as John Dewey has pointed out, the mere holding of public office presents a particular challenge to the maintenance of intellectual integrity and disinterested devotion to duty. "Unusual powers for private glorification . . . density of mind . . . Pomposity of behaviour, adherence to class-interest and its prejudices are strengthened by position." 50 It is true that on occasion organized employees may be successful in securing the elimination of not only the more egregious types of speed-up schemes but of desirable attempts to improve the general level of efficiency in public employment. Appropriation acts of the Federal Government have prohibited time and motion study programs for many years. Such provisions may well incorporate indefensible objectives of an employee group but the government is not without sufficient authority to insist upon the techniques of its preference and still permit organized staff criticism of devices of questionable propriety. Prejudice, ambition, or stubbornness may result in the distortion or disregard of official personnel policy at lower levels of management. In its report on employee relations in the public service, a committee of the Civil Service Assembly declared: Practically speaking, it is by no means certain that the popular mandate is embodied in the decisions of the administrative officer who represents the government to the subordinate employee. 51 x

67.

John Dewey, The Public and Its Problems, New York, Henry Holt, 1927, p.

51 Gordon Clapp, Employee Relations in the Public Service, Civil Service Assembly of the United States and Canada (Chicago, 1942), p. 53.

20

labor problem in public service

A classic example of willful and flagrant circumvention of a popular mandate may be found in the administration of the Classification Act of 1923. From the point of view of employee welfare, this law, according to President Steward of the National Federation of Federal Employees, was "the most important . . . ever placed on the statute books, not even excepting the original Civil Service Act of 1883." 52 A special committee of the impartial National Civil Service Reform League reported that "the administration of the act . . . was in contravention of the plain intent, if not the actual letter, of the law." 53 Specifically, the Personnel Classification Board failed to draw up class specifications for employees in the District of Columbia or to carry out a vitally needed field survey of positions as directed in the statute. It required almost a decade of incessant pressure by employee organizations and other interested associations before this situation was rectified. Public employee associations in brief have emerged to make articulate and to promote the peculiar and diverse needs of the civil service. They might conceivably become superfluous if an enlightened electorate were interested in the processes of administration or if its elected representatives were more responsive to the requirements of the public service, or if administrative officiais could be entrusted unilaterally to carry out the popular mandate with due regard to their tasks and to the welfare of the rank and file. But these conditions do not exist. The tradition of popular hostility or indifference toward bureaucracy remains deeply ingrained in the public mind. Under these circumstances, as Friedrich and Cole pointed out in their study of the Swiss civil service, "definite machinery is needed to counter-act the tendency of the public to pauperize the public servant." 54 An extensive variety of expedients may be devised to accomplish this end but they will probably all share one common element—the organization of employees for the purposes of collective action.55 Employee (September 1925), p. 4. Federal Employee (February 1925), p. 14. " Op. cit., p. 86. 18 "It has been the experience of government employees everywhere that the amelioration of their material status must have organized self-pressure as its initial impetus." W. R. Sharp, The French Civil Service: Bureaucracy in Transition, New York, Macmillan, 1931, p. 493. MFederal 13

CHAPTER

II

the government1 and its employees THE labor problem in the public service has emerged as a unique problem of group organization. It derives its essential peculiarity from the exceptional circumstances which surround a government confronted by collective employee action. The determination of this relationship requires an understanding of the basic purposes of trade unionism. The principles which have been alleged to underlie the conduct of labor organizations in private industry may first be examined with a view to ascertaining their potential relevance to government employment. Selig Perlman's celebrated Theory of the Labor Movement furnishes an excellent point of departure in this endeavor. This conception of the labor movement is based upon the hypothesis that the fundamental purpose of trade unionism is to "assert Labor's collective mastery over job opportunities and employment bargains."1 This viewpoint is in turn derived from the assumption of an everpresent threat of job scarcity resulting from the progressive introduction of labor-saving devices and the perennial challenge of technological unemployment. Employee associations in this analysis are thus primarily interested in obtaining job security for their members. For this reason, it is asserted that unionism moves inexorably toward the closed shop as a critical safeguard of job security. The extent to which this theory serves to explain the rationale and development of unionism in private industry is not relevant to this inquiry. Whether it is, in fact, a valid description of the direction in which employee organization in the public service will tend to evolve is of the greatest moment. If it represents a substantially correct generalization concerning inherent tendencies in trade union organization, the case for a severe curtailment of the effective scope of group em1Λ

Theory of the Labor Movement, New York, Macmillan, 1928.

22

labor problem in public service

ployee activity can readily be demonstrated. Employee control of job opportunity is inadmissible in a responsible public service. Job entry and promotional opportunities must rather be determined by governmental authorities accountable in varying degrees but essentially to representative bodies. To permit employee control in these matters is to sanction the institution in some form, at least with respect to the personnel if not the substantive aspects of government administration, of a guild or syndicalist type of bureaucracy. An analysis of unionism in the public service must therefore determine whether machinery can be devised which will allow employee groups an adequate voice in but not control over matters relating to job opportunities. The extent to which employee representation and participation in personnel administration may be recognized short of capitulation to group domination becomes thus a matter of critical importance. Some students of the labor movement would assert the essential hopelessness of any such effort. This conclusion would follow from the assumption, elaborated in extreme and provocative form by the late Henry C. Simons, that trade unionism is inherently a socially and economically malevolent institution compelled by its very logic to pursue private advantage to the detriment of the public welfare.2 In this view the state is considered powerless to limit the demands or extortions of powerful, mass supported, private organizations. Accordingly these predatory associations must be destroyed or kept in a loose and precarious state of being by the continual challenge of vigorous non-organized competition. Minorities, industrial and functional minorities especially, are the great nemesis to democracy and . . . democracy if it survives, must, above all learn how to discipline and to de-organize such minorities as special-interest groups.3 The justification which is offered in support of the severe repression of functional associations is found in the alleged fact that they are essentially designed and ready "to disrupt the whole production process unless their demands are met." 4 The possibility of such grave economic dislocation becomes particularly acute in the event of an increasing socialization of industry and the consequent intensification of large-scale enterprise the interruption of which by group defiance would clearly be fraught with great social ' "Some Reflections on Syndicalism," Journal of Political Economy 1944). 'Ibid., pp. 20-21. 4 Ibid., p. 3.

( March

government and employees

23

peril. Simons is thus logically led to the conclusion that "there is 110 place for collective bargaining, or for the right to strike, or for effective occupational organization in the socialist state." 5 Logically this observation would apply with equal relevance to those significant spheres of economic activity in a non-socialist state for which the government has assumed responsibility. The empirical validity of this analysis in so far as it relates to public employees may be determined by an inquiry into the nature, objectives, and methods of civil service unionism. It is possible, for example, to deny the right of public employees to challenge the government authority and to permit or even encourage a staff organization which experience has shown is not a "bandit army" in Simons' dramatic phrase, but a useful medium to increase the volume and quality of the services provided as well as to heighten morale. Organizations of public servants have not thus far in the United States nor in Great Britain sought to achieve their objectives by resorting to strike action on any significant scale. They have on the other hand made several fundamental contributions to personnel administration. The 55th Report of the United States Civil Service Commission explicitly acknowledged the constructive role which employee organizations have played in the development of a more efficient public service. Leadership of employee unions [it was asserted], has been responsible and intelligent. Cooperation from employee groups has been outstanding. The Commission believes that the maintenance of a close, cooperative relationship with employee organizations is an assurance of progress in the field of personnel administration.6 The brief experience of the socialist program in Great Britain indicates that organized labor has come to a new awareness of a social responsibility to avoid creating extensive economic dislocation in the pursuance of its objectives. Such self-restraint may be largely selfinterested in motivation. The leadership of the Trades Union Congress has apparently realized that strike action which threatens or produces economic chaos may well lead not only to political defeat but to the enfeeblement of the labor movement.7 Caution in the adoption of measures which would deny the right of effective organization to occupational groups would seem to be particularly warranted in the public service. A substantial measure of nonIbid. ' U.S. Civil Service Commission, Report, 1938, p. 27. * Address of Sir William Lawther, President of the British Trades Union Congress, at the annual T.U.C, conference, September 5, 1949. 5

24

labor problem in public service

union competition may be necessary, as Simons maintains, to establish proper wage levels. But the element of competition is often absent or of negligible importance in the public service. The government does not compete with private industry with respect to many of the services which it provides. Competitive adjustment in the "products market" is therefore uncommon. The monopolistic and urgent character of most public services virtually eliminates the possibility of their widespread substitution by more efficient or less expensive private economic activity. Government does compete, however, with industry in its demand for labor. If, in its effort to attract persons from the labor market, it offers too little in terms of wages, individuals will not be forthcoming in adequate numbers and will even be induced to leave the public service. The result of this situation would be simply to force an increase in wages until "an adequate supply of labor in competition with other employment opportunities" 8 is available. But the immobility of considerable numbers of public employees militates considerably against this responsive adjustment allegedly automatic in operation. Several hundred thousand postal workers, to cite but one example, possess work qualifications which are valuable only to the postal service. Competition in the labor market here becomes attenuated at best. Secondly the public employer cannot alter the terms of the wage bargain as readily as private employers to meet the exigencies of a changing labor market. Private wages may be revised with a minimum of administrative difficulty. Public compensation rates which are statutorily or even administratively fixed can be adjusted only with great difficulty involving prolonged discussion and delay. Finally the government employer is often reluctant to adjust civil service pay rates of its own accord to conform with prevailing levels even though failure to do so may result in the retention of inferior grade employees. Evidence has been practically universal to the effect that government must provide higher salaries if it is to induce the most capable citizens to pursue careers in the public service. If the pay schedules which are attached to positions of the highest levels of responsibility in the executive and legislative branches have not been made sufficiently attractive to assure the government of a continuous supply of superior talent, it seems less than likely that adequate consideration will be given to the needs of the rank and file employees engaged in tasks of lesser significance. The result of such a situation, as Professor Simons' analysis indicates, will manifest itself either in a rapid personnel turnover, which immobility will decrease appreciably, or more 8

U.S. Civil Service Commission, Report, 1938, p. 14.

government and employees

25

likely in a deterioration in the quality of work performed. The laws of the market may be neatly vindicated by these consequences; the need of a modern government for an efficient working force may be seriously compromised. An exclusive reliance upon the forces of competition in a free labor market does not appear to provide a suitable formula for the determination of proper wage levels in the public service. If the only alternative to such competition, however, is a complete and undesirable surrender of control of the terms of the work situation to selfish employee groups, as Professor Simons maintains, then the public service cannot permit staff organizations to acquire a status which may challenge administrative authority. If, on the other hand, collaboration with employee groups in the public service does not lead inevitably to this consequence, then, as John R. Commons once suggested, "the real solution is not to try to destroy the organizations of public servants, but to give them official recognition . . . and then to hold them to that responsibility." 9 THE UNIQUE ASPECTS OF PUBLIC EMPLOYMENT

The status to which employee associations may aspire in the public service will depend in part upon the nature of government employment and its likenesses or dissimilarities to work in private industry. The work force in the public service as in private industry is divided into a small relatively well-paid staff and a much larger number of lower-paid employees. The general scarcity of promotional opportunity inherent in any hierarchically organized bureaucracy is equally prevalent in the public service and in private employment. In each area individual effort to obtain the redress of grievances has generally proven ineffective and employees have united in associations for their self-help and protection. The desire of government employees [wrote President Franklin Roosevelt], for fair and adequate pay, reasonable hours of work . . . suitable working conditions . . . opportunities for advancement . . . consideration and review of grievances . . . is basically no different from that of employees in private industry. 10 The mass of individuals who "work for the government" naturally compare their positions and working conditions with those of private employees engaged in similar tasks. The various factors which have been shown to contribute most appreciably to industrial unrest such 'Labor and Administration, New York, Macmillan, 1913, p. 115. 10 New York Times, September 5, 1937.

26

labor problem in public service

as allegedly unfair arrangements in grievance adjustment, work rules, promotions, dismissals, the fatigue and apathy attendant upon the performance of repetitive work, the tendency on the part of some employers to induce employees to compete with one another rather than to seek to unite them in a common endeavor and the widespread sense of job insecurity11 are normally prevalent in any bureaucratic organization and it would be idle to expect their absence in the public service. Although the nonprofit character of the public service provides a distinction of fundamental importance between public and private employment, forces frequently at work in the government bureaucracy exert an impact similar to that which is produced by the operation of the profit motive in private industry. The pressure of powerful groups to reduce taxes and government expenditures furnishes as effective an impetus as do considerations of profit to the resistance of employee demands for higher wages and improved working conditions. Under these various circumstances it is not surprising that the individual civil servant, as Laski once remarked, "cannot help feeling that to call him a member of the governing classes is an absurd misapplication of terms . . . his situation is exactly the situation of an ordinary member of the working classes." 12 The statement implies that a choice must be made between apparently incompatible alternatives. The public employee in this view is either a member of the "governing class" or a "member of the working class." In fact, however, he occupies both these positions. As regards the concrete aspects of his job, it may be a matter of little concern that his particular employer at any given moment happens to be the state and he may well be indifferent to the ultimate purpose toward which the work in which he is engaged is directed. A machinist will work at a government arsenal or a private munitions plant according to the conditions of the labor market. The same circumstance will prevail in a host of other employments. But these considerations, however valid, do not completely exhaust the substance of government employment. Other factors peculiar to the public service are discernible and these merit consideration in the evolution of a labor policy for civil servants in which adequate provision is made not only for the needs of employees but also for the unique demands and purposes of a responsible governmental bureaucracy. In the field of private labor relations the role of the state is essentially that of an impartial arbiter between private parties. As such it performs a specific, limited and essentially indirect function. It may 11 12

Peter Drucker, "The Way to Industrial Peace," Harpers Laski, Authority in the Modern State, p. 335.

(November 1946).

government and employees

27

seek to establish the conditions under which an equality in terms of bargaining strength between employers and employees may be secured and maintained. On occasion the government may elect to assume a direct but limited role in an otherwise private relationship. Its responsibility to assure the continued provision of vital communal services or to forestall wherever possible strike action in basic industries may thus impel it to establish arrangements whereby labor conflicts in these critical areas may be peaceably resolved.13 Even in these instances, however, the customary pattern of public policy is one in which official authority restricts itself to functions of mediation. A similar purpose is evident in a further area of labor relations in which government establishes minimum standards of wages, hours, and working conditions to which private collective-bargaining agreements must conform.14 The management of employee relations in the public service demands of the state a fundamentally different role. It is no longer an umpire in the public interest but a direct party to a set of concrete employer-èmployee relationships. The civil service on its part comprises a particular interest group distinct from private functional associations in that it must perforce look to the government not only to enhance its relative position vis-à-vis other groups but to fix in every detail the terms of public employment. It is at once apparent that the techniques of a private pressure group which conducts the significant part of its activities within a scheme of essentially private relationships may not prove effective or socially desirable when adopted by a civil service association which is necessarily linked to the public authority in a uniquely direct manner. In this latter relationship a further fundamental peculiarity of government employment may be observed. The groups which confront each other in private labor relations are generally deemed to be equal in social importance and value. Conflicting claims accordingly demand equal consideration. Negotiations are thus bilateral in the strict sense of the term. Indeed, it may become the express policy of the state to facilitate the achievement of such equality if it is not forthcoming in the normal process of unregulated group conduct. The state confronts its own employees in a basically different manner because its purposes are usually considered to be of greater social value than those which are identified with the objectives of other associations. In this respect it is essential to recall that "society is not a plurality of coordinate groups but an organized system of institutions of differing value." 15 Railway Labor Act, 45 U.S.C. 151 (1940 ed.). " F a i r Labor Standards Act, 29 U.S.C. 201 (1940 ed.). 15 Norman Wilde, The Ethical Basis of the State, Princeton, 1924, pp. 165-166. 1S

28

labor problem in public service

For this reason the relationships between the government and its employees cannot be bilateral in the sense in which this term is used in the area of private economic activity. The transfer of collective bargaining to the public service in the form in which it has developed in industry assumes that the state as an employer is entitled as of right to the same but to no greater privileges than are accorded to private employers. The functions with which the democratic state is charged, however, including its duty to assure conditions which permit the free development of all other associations as well as the maintenance of a fundamental constitutional system demand that it be accorded a privileged status commensurate with its unique responsibilities. It may of course be urged, as did the pluraliste, that the purposes of the state express values of no higher normative order than those embodied in other associations. Even if this point of view were admitted, or if the whole issue of political values were considered irrelevant, it would still follow, albeit on other grounds, that the state occupies a unique position in which a coordinate status with other associations is inadmissible. Aside from ethical considerations, the survival of the political association and the achievement of its essential purposes demand a preponderance of power vis-à-vis other groups.16 In no other manner can the state effectively discharge its primary responsibility to adjust the relations of associations to itself, to other associations and to their own members—to itself, in order to maintain the integrity of its own scheme; to other associations, in order to preserve the equality of associations before the law and to their own members, in order to preserve the individual from the possible tyranny of the group.17 This threefold responsibility must be as fully recognized in the conduct of employee relations in the public service as in the policy which the state adopts toward other associations within its jurisdiction. Its duty to itself demands the adoption of measures which will secure it from open defiance. Hence arises the critical problem of the strike in the public service. Its obligation with respect to the totality of other associations requires that taxpayers and various groups vitally interested in the functioning of government be accorded an adequate voice in the formulation of public labor policy by the state employer. Finally the state is obliged to regulate certain relations between See F. M. Watkins, The State as a Concept in Political Science. "Ernest Barker, Political Thought in England 1848 to 1914, London, Butterworth, 1930, p. 178. 18

government and employees

29

civil service associations and their members in order to protect individuals from political coercion or from compulsion to join groups contrary to their voluntary preferences. Hence arise measures to eliminate political assessments, to curtail political activity, to ban the closed shop in the public service, and to secure the appointment of personnel exclusively on the basis of merit. In each of these areas of political action it is apparent that the state, unlike private employers, cannot negotiate with its organized employees upon a basis of complete equality in bargaining privileges lest it jeopardize the accomplishment of its objectives by permitting the performance of vital administrative processes to hang in the balance of indeterminate conflicts. At this point, however, it should be noted that the political need for indisputable superiority does not make inevitable the unilateral determination of conditions of employment in the public service nor justify the suppression or indifferent toleration of employee groups. Their recognition and partial integration into the administrative apparatus, as this study will seek to reveal, may be quite compatible with the retention by the state of the degree of authority requisite to its purposes. The attempt has sometimes been made to distinguish vital from ordinary functions of government in the thought that diverse public labor relations policies should be developed to accommodate the exigencies of particular employment situations. In this view the state is accorded a privileged status only with respect to its performance of socially urgent activities and is advised to conduct itself as any other employer in those areas of public employment which are not devoted to the provision of essential services. In his study of strikes in the public service, Ziskind expresses the belief that "the correlation between . . . social consequences and government employment must be sought separately in each form or type of government employment." 18 Sterling Spero has been an outstanding proponent of this point of view.19 He has divided the work performed by civil service employees into four classifications. The first is considered to encompass administrative work of a type common to all large-scale organization such as is performed by clerical and administrative employees. The second class is concerned with the provision of public services which may in some jurisdictions be supplied under private auspices. Education, postal service, scientific investigation, fall into this category. A third Ziskind, One Thousand Strikes of Government Employees, p. 9. " See The Labor Movement in a Government Industry, New York, Macmillan, 1927, and "Employer and Employee in the Public Service," in Problems of the American Public Service, New York, McGraw-Hill, 1935, 18

30

labor problem in public service

section of the public service includes employees of such establishments as navy yards, arsenals, and printing and engraving plants who are engaged in producing goods and services required by the state. The fourth group perform strictly "governmental functions" such as law enforcement, and police protection. This functional differentiation of the public service leads Spero to the conclusion that only a limited proportion of civil employees are engaged in activities which are sovereign or governmental in character and that the work of a great majority of them differs in no essential respect, either in regard to its public purpose or nature from the work of employees in private enterprise . . . The government in the carrying on of its public service functions does not serve the community to any greater extent than do those enterprises and institutions which carry on similar functions. There can be no logic in denying full industrial rights to employees of the one and according them to those of the other.20 The fact that a considerable number of public employees perform work which is substantially similar to that of private workers does not necessarily justify logically or morally the existence of similar systems of employee rights and responsibilities. The specific objectives of a particular governmental activity may not, it is true, differ in purpose from those of private economic or social undertakings. But the functions of government as indeed of any organization cannot be defined adequately by an enumeration of a series of discrete and unrelated activities. They form a distinctive totality as well as a heterogeneous conglomeration. The nature of this totality may warrant the imposition of certain restrictions upon the individual and collective conduct of all public employees regardless of the character of the particular tasks in which they are separately engaged. Thus restraints imposed upon political activities of civil servants are attributable to the fact that their work is performed within a total context of governmental sponsorship in which political neutralization of the bureaucracy is generally deemed necessary. The unique position of the state again leads it to demand exceptional standards of executive conduct and integrity on the part of those entrusted with the administration of public affairs. The degree of discretionary initiative possessed by management in private industry is substantially curtailed in the public service. Statutes, orders, constant exposure to public criticism, personal liability and conduct restrictions have long combined to limit 30

The Labor Movement in a Government Industry, p. 11.

government and employees

31

the freedom of supervisory and subordinate employees in the public service to a degree unparalleled in private industry. These controls are designed essentially to secure adequate bureaucratic responsibility to the public and its representatives. Such responsibility is not demanded in private industry. Its existence is indispensable in the bureaucracy of a democratic state. By the same token it would be as inappropriate to urge that the financial and managerial discretion of a public official should be as unfettered as that of his counterpart in private industry as to maintain that the mere fact of similarity in concrete work functions warrants the adoption of similar systems of labor relations. Not only must the conference of employee rights in the public service proceed without impairment of bureaucratic responsibility but, as Duguit has succinctly observed, the character of "administrative intervention must always differ from private action because the end it has in view is different." 21 The classification of government activities into a series of distinct occupational functions should not obscure the essential purposive unity of the public service. The paramount objective of government is to provide for the general welfare and this end is not sufficiently expressed by a mere comparison of a host of subordinate activities to those performed under private auspices. It is true, as has often been pointed out, that socially vital consequences flow from many fields of private as well as from public activity. Indeed many admittedly vital public services could not be performed if certain private undertakings were interrupted. Thus police protection would be ineffectual if private light companies were unable to provide their customary services. Two inferences may be drawn from this complex system of public-private interrelationships. It may be urged that it is manifestly unfair to deprive public employees of the full measure of rights which are exercised by private workers engaged in equally vital tasks. On the other hand it may be contended with equal logic and consistency that measures should be adopted which will secure from interruption the performance of all socially vital functions whether publicly or privately performed. In point of fact the increasing emergence of enterprises "affected with a public interest" has been accompanied not by an enhanced measure of freedom from governmental restraint but by the regulation of previously unfettered private discretion to the end that private interests should not be served at the expense of the public welfare. In brief the problem of employee relations becomes one " Law in the Modern State, New York, Huebsch, 1919, p. 142.

32

l a b o r p r o b l e m in public

service

which demands for its resolution an explicit recognition of the uniqueness of public employment and of related private activities of vital social interest. THE STATE AS A MODEL EMPLOYER: ITS THEORETICAL ASSUMPTIONS AND INSTITUTIONAL RELEVANCE

It has sometimes been urged that the state employer should conduct itself as a model employer and thus set exemplary standards for emulation by private industry. During the nineteenth and early twentieth centuries when unions of private employees were engaged in a bitter struggle to secure recognition and the attainment of elementary objectives, they often lacked strength in terms of financial resources and membership to compel employers to accede to their demands through the techniques of strike action or collective bargaining. As a supplementary means to achieve their aims, they occasionally looked to the government not only to enact protective labor legislation but also to provide model conditions of employment in the conduct of its own affairs which private employers might be led to adopt voluntarily or as a result of trade union pressure. It was from this background of private industrial conflict that the concept of the government as a model employer was evolved. The "first formal acceptance by the Federal Government of its role as model employer" 22 may be found in President Van Buren's Executive Order of March 31, 1840 which prescribed a ten-hour day for government laborers and mechanics. The movement to shorten working hours in private employment had preceded the issuance of this order. A number of states had already enacted legislation prohibiting employment of persons beyond ten hours a day and certain industries had proceeded to operate on this basis.23 The adoption of this standard, however, by the Federal Government had the desired effect of providing trade unions with a powerful propaganda weapon in their attempt to secure a nation-wide reduction in the length of the normal workday. After the Civil War the trade unions sought the introduction of the eight-hour day in the government service before its acceptance had been secured on any widespread scale in private industry. Although legislation enacted in 1868 established the eight-hour day in the Federal service, the movement for its general adoption did not make substantial progress. The subsequent history of organized labor History of the Federal Civil Service, 1789 to the Present, p. 23. " John R. Commons and associates, History of Labor in the United States, New York, Macmillan, 1921, vol. I, chap. 10. 21

government and employees

33

in the United States reveals that its aims were only rarely obtained as a result of the indirect influence upon private enterprise of allegedly model employment conditions in the public service. Labor gains were rather primarily the result of independent trade union action exemplified in direct negotiation or open conflict with employers. Indeed public employees were fortunate to retain the benefits of the few measures which granted them a limited privileged status. Private employers sought to lower those standards of public employment which tended to place them at a competitive disadvantage in the labor market. Nor were they lacking in Congressional spokesmen. It is quite time [remarked Representative Corbett in a House debate in 1871], that we repealed this eight hour law . . . it has produced enough mischief already among our people . . . in all classes of mechanical labor where there is competition. There it proves to be a very great injury. Owr24 mechanics who are laboring alongside of those engaged in public work, work ten hours and receive only the same wages that these people obtain who work eight hours. This works great dissatisfaction.25 Similar opposition to the basic conception of the government as a model employer was voiced by Representative Morrill who feared the creation of "an aristocracy of labor, composed solely of those employed by the Government." 26 On the other hand, organized labor itself gradually ceased to look to the field of public employment as a potential proving ground in the pursuance of its various objectives. These were found more easily obtainable through direct processes of private negotiation and mass action than through indirect governmental establishment of so-called model labor policies. Of more fundamental importance, however, is a consideration of the extent, if any, to which the government should seek to create standards of public employment which private industry will be compelled to adopt as a result of trade union pressure or through competition in the labor market. A distinction must here be made between the pecuniary and non-pecuniary aspects of public employment. With respect to the former it seems reasonable to assert that government in an economic system based primarily upon private enterprise should not reward its own employees in such a manner as to place private employers at a severe competitive disadvantage. For public authorities, regardless of 24 a

The italics are mine. Congressional Globe, 42 Cong. 2d Sess., December 14, 1871, p. 122.

34

labor problem in public service

the type of activities in which they are engaged, compete with taxpayers in the labor market for needed personnel. It would seem inequitable to require these taxpayers to support model personnel policies at their expense. Acceptance of this view does not imply that wages paid by the government may not exceed those received in private industry for comparable work. It does assume, however, that public levels of compensation will not in general exceed the productivity of the public labor force. For it is as true that government can support such wage scales by taxation and borrowing as it is that private enterprise is unable to do so because of resulting unprofitable operations and potential bankruptcy. Moreover, the very tax burden which would necessarily be imposed as a consequence of uneconomic public wage payments would tend to prevent private employers from paying the higher wages prevailing in the government service. At the very minimum the existence of governmental inefficiency wherever it may be found demands remedial action before public authorities may with propriety play the role of a model employer with respect to wage matters. Administrative officials may be loath for reasons of convenience or out of indifference to exercise disciplinary prerogatives clearly within their authority and personnel agencies may extend indiscriminate job protection to employees who are not grossly incompetent or guilty of misconduct. A reluctance or refusal for political or other reasons to discharge or discipline incompetent personnel may not reasonably accompany wage policies which confer exceptional conditions of employment upon the work force.27 The highest wages are normally paid by the most efficient firms. Governments can afford to pay wages equal to those which obtain in these enterprises only when they have attained corresponding levels of operating efficiency. The political implications of the model employer concept merit particular consideration. If public authorities employing a significant and increasing segment of the labor force should establish optimum conditions of employment, the terms of the wage bargain in private industry might tend as a result of competition in the labor market to be determined in substantial measure by public policy rather than by private negotiation. Labor conflicts now resolved by collective bargaining might be transferred to the political arena with the result that trade unions and employers would seek the settlement of their differences by public action rather than through private agreement. Wage and other vital employment decisions would thus become partly dependent upon 27 Herman Feldman, A Personnel Program for the Federal Service, 73 Cong., 3d Sess., H. Doc. 773, 1931, p. 61.

government and employees

35

the relative political strength of the contending parties and the public service would to some extent become a pawn in the ensuing economic and possibly class rooted struggle. The labor movement would direct its efforts toward securing the most favorable conditions of public employment whether or not they were economically warranted and employers would conversely attempt to compel their reduction to the lowest permissible level without adequate regard for the objective needs of the bureaucracy. In addition to these undesirable consequences which might imperil sound fiscal management or impair operating efficiency, the concentration of labor and employer pressures upon public authorities might well have more ominous political repercussions. An unstable equilibrium might be established between two vast aggregates of economic power which a particularly potent application of pressure from either side might upset with results disastrous to the other. The observation of a student of political propaganda is highly relevant in this respect. It is one of the curious things about human society that, where potentialities of division are very numerous, the possibilities of serious splitting may be at a minimum, but where possible lines of division are few, the group may be in serious danger of radical deterioration.28 The preservation of an autonomous labor movement on the one hand and a system of private enterprise on the other under conditions which will protect with reasonable assurance the integrity of each group may require a substantial diffusion and decentralization of the processes whereby vital decisions are reached affecting their welfare. Diversified collective bargaining between numerous employers and employee groups may provide one area of such desirable private decision-making albeit within the general framework of public policy. The concept of the government as a model employer demands finally a consideration not only of its desirability in the light of its economic and political implications but also an investigation of the extent to which public employment has in fact conformed to this ideal. This matter was recently examined by a committee of the National Civil Service Reform League established to investigate the problem of employee relations in the public service. The committee composed of persons outstanding in the field of public administration found it neces28 F. C. Bartlett, Political Propaganda, Cambridge, England, 1940, pp. 8-9 quoted in V. O. Key, Politics, Parties and Pressure Groups, New York, Crowell, 1945, p. 209.

36

labor problem in public service

sary to call attention to the "erroneous but widely prevalent notion . . . that terms of employment in the public service are exemplary and give occasion for no more than superficial grievances." 29 A comparison of the fields of public and private employment does not indicate that the former offers relatively more attractive job opportunities. The civil servant may enjoy certain advantages in such matters as security, sick leave allowances, or vacation provisions. With respect to such equally vital considerations as the prospects of promotion, salary expectations of those few who occupy or may reasonably anticipate promotion to the higher level positions, or freedom from political interference in personnel matters, the public servant may well envy the lot of the private employee. Opinion is often divided as to the degree of importance which should be attached to these various job factors. Feldman considers that public employment provides unique benefits of considerable value30 whereas Mosher and Kingsley conclude that the "intangible advantages of public employment about balance the disadvantages and may be ignored." 31 In any event certain specific aspects of public employment are frequently far from satisfactory. Government employees, for example, are presently deprived of social benefits granted under public auspices on a very extensive scale to private workers. A United States Civil Service Commissioner has pointedly observed: "Government as an employer must do what Government in another capacity insists on society doing for private employees . . . to cushion the shock when . . . persons must be laid off." 3 2 But the government has thus far failed to provide a system of unemployment compensation for its own employees. Successive reports of the United States Civil Service Commission have declared that "no legitimate reason can be advanced for drawing a line of demarcation in this respect between Government workers and those who work for private industry" 3 3 and that the prevailing situation is consequently "decidedly unfair to Federal employees." 3 4 Bills sponsored by the Civil Service Commission which would rectify this condition have thus far failed of passage. Other instances of questionable discrimination between public and private employees may readily " Employee Organizations in the Public Service, New York, N.C.S.R. League, 1946, p. 9. 30 Op. cit., p. 61. " Public Personnel Administration, New York, Harper, 1936, p. 404. 32 Arthur S. Flemming, Address before 1944 Convention of the National Federation of Federal Employees, Proceedings, p. 36. 33 61st Report, U.S. Civil Service Commission, 1944, p. 9. " 62d Report, U.S. Civil Service Commission, 1945, p. 2.

government and employees

37

be adduced. Government workers are excluded from the provisions of the Fair Labor Standards Act with the result that in 1946 thousands of municipal employees allegedly received wages which amounted to as little as twenty and thirty cents an hour.35 According to reported estimates of the United States Social Security Board, approximately one and one-half million state and local government employees and their dependents lack those old age and death benefits available under publicly sponsored programs to millions of private workers.30 The practice of paying punitive rates for overtime work has long been established in many industries and indeed Federal legislation has required private firms which receive public contracts to pay their employees at the rate of time and one-half for work performed in excess of eight hours per day or forty hours per week. Thousands of public servants, however, did not receive any compensation for overtime work until World War II. It was only the emergence of a serious rise in the rate of personnel turnover and an inability to recruit workers in sufficient numbers that led the government to adopt, albeit reluctantly and with the most incongruous qualifications, those practices which had gained widespread acceptance in private employment.37 In so far as comparative levels of compensation are concerned, it is the consensus of opinion that public employees in lower-paid positions are as well if not better treated than their counterparts in private industry. This condition may possibly be true of the Federal service; it is questionable whether it would be found equally prevalent in other public jurisdictions. The mayor of New York City whose public wage standards compare most favorably with those of other municipalities declared in a recent budget message: I am convinced that many rates are inadequate for a fair standard of living [and more pertinently], I am cognizant that too frequently a municipality demands more of its employees for a salary that in many outside enterprises requires less ability or skill.38 Nor are substandard conditions of employment unknown in some branches of the Federal government. The urgent need for maintaining efficient guard forces in public war plants appears to have been the principal factor responsible in 1941 for the improvement of rates in the ® Officers' Report to Fourth Biennial Convention, State, County and Municipal Workers of America (CIO), Atlantic City, N.J., 1946, p. 28. M Ibid. " See Chap. IX, X. 38 Mayor William O'Dwyer, Budget Message for Fiscal Year 1946-47, New York Times, April 1, 1946.

38

labor problem in public service

subprofessional and custodial services. According to the testimony of presidential administrative assistant W. H. McReynolds before the House Civil Service Committee, the prevailing salary scales were "too low to conform with generally accepted minimum living standards." 39 It is often alleged that civil service tenure provides a unique form of job security unknown in private employment. It is of course true that a well-administered civil service law furnishes protection against unfair discrimination and tends to assure recruitment and promotion on grounds of merit rather than personal or partisan favoritism. But it is erroneous to conclude that civil service laws or regulations confer a particularly secure status upon public employees. Civil servants may in fact be removed by their superiors upon grounds which are exceedingly difficult to challenge successfully. Administrators may on occasion be reluctant to undertake dismissal action out of indifference or ignorance of their proper authority but if they choose to discharge inefficient employees, civil service commissions will normally, and the courts almost invariably, uphold the legality and propriety of their conduct. "Contrary to . . . popular impression, . . . there is no such thing as life tenure for a career civil servant. If he does not perform in a competent manner, he can and should be discharged." 40 In fact, 108,000 Federal employees were discharged for cause in 1946. This number is exclusive of those who were laid off due to reductions in force. On the other hand, the enactment of fair employment practices laws and vigorous trade union insistence upon seniority rights tend to curb hitherto broad employer prerogatives in private personnel management. In vast areas of public employment, moreover, the merit system is either nonexistent or enjoys only a nominal status. Wherever the spoils system dominates personnel administration, explicitly or through circumvention of formal regulations, public servants notably lack the job security afforded private workers. But even in a wellconstituted career service the attainment of job security is jeopardized by the presence of other factors peculiar to public employment. Veterans preference legislation, however commendable as public policy, challenges the job status of many public employees to a degree unparalleled in private industry. The Veterans Preference Act of World War II requires that no veteran whose efficiency rating is "good" or better 39 Hearings, House Committee on the Civil Service, H.R. 6217, 77 Cong., 1st Sess., December 16-18, 1941. 40 Arthur S. Flemming, Address before the Society for the Advancement of Management, Washington, D.C., December 19, 1946. See also his address before the American Federation of Government Employees Convention, St. Paul, Minnesota, September 18, 1946.

government and employees

39

shall be laid off in any reduction in force until all non-veterans, regardless of their length of service or efficiency ratings, have been discharged.41 As a result of widespread reductions in force, persons who have been on the public payroll for as long as twenty-five years have been dismissed in order that veterans with negligible periods of service might be retained.42 Public servants are of course subject to drastic reductions in force similar to those which occasionally take place in private industry. But the pronounced degree of specialization required for the performance of many jobs in the public service makes it particularly difficult for the laid-off government worker to find substitute employment. The Preliminary Report of the Wage and Personnel Survey of the Personnel Classification Board contains a relevant observation in this respect. The commercial worker . . . has a greater opportunity to obtain work in some other concern for which he is already fitted . . . A very large part of employments in Federal establishments are peculiar to the Government so that training and experience on these jobs is of no value outside.43 A sudden layoff of a thousand postal employees would work much greater hardship upon the persons affected than the dismissal of an equal number of blue- or white-collar employees in private industry. For the former possess skills and training which private employers or even other public agencies cannot utilize. If, as is the case at present, no provision is made for dismissal pay or unemployment compensation, the position of these public employees is hardly one which can reasonably be termed secure in any lasting sense. Other aspects of public employment which invite comparison with private industry may be mentioned briefly. Mosher and Kingsley observed that lighting, ventilation, and sanitary facilities in public buildings are frequently in violation of state industrial codes prescribed for private firms.44 A recent study conducted under the auspices of the United States Council of Personnel Administration revealed the quite remarkable and hardly complimentary fact that the accident rate in the United States Department of Commerce and the Post Office was more than three times that of the United States Steel Corporation and the 41 Arthur S. Flemming, Address before the Convention of the American Veterans of World War II, St. Louis, November 22, 1946. " Arthur S. Flemming, Address, Boston. " Report of Wage and Personnel Survey, House Doc. 602, 70 Cong., 2d Sess., 1929, p. 87. " Op. cit., p. 587.

40

labor problem in public service

General Motors Company. The safety record of the Du Pont companies was six times better than that of the Federal Government's average.45 In so far as the care and maintenance of employee health is concerned, Civil Service Commissioner Flemming has declared that "the government has lagged far behind the procession in the health and medical field." In summary, the public servant does not appear to occupy a privileged position compared with the private worker. The state employer has failed to keep abreast of employee relations policies established by the more progressive private employers. Whether as a result of legislative indifference, administrative incompetence, self-imposed or involuntary civil service preoccupation with the narrower issues of the merit system to the neglect of other personnel matters, "the position of civil servants . . . does not lead one to hope too much from the initial stages of state control, at least." 47 As long as such conditions prevail, and they have shown few signs of substantial improvement since this observation was made some twenty years ago, public employees will continue to seek through organized, collective effort the attainment of objectives which the state employer is apparently ill-disposed or administratively illequipped to grant by unilateral action. 15 Federal Employee, June 1944, p. 6. " Address before the 1944 convention of the National Federation of Federal Employees, Proceedings, p. 39. " W. Y. Elliott, The Pragmatic Revolt in Politics, p. 199.

CHAPTER

III

the state as an employer: theoretical aspects "Il faut vivre avec son temps et ne pas perpetuer dans les moeurs de la démocratie le dogma d'un Etat souverain et infallible dont les fonctionnaires seraient les esclaves resignes et muets." Maxime Leroy, Syndicats et Services Publics. W H E N E V E R the state is viewed as an employer in more or less abstract terms, the issue of its sovereign authority is inevitably raised. Unfortunately the consideration of the concept of sovereignty has too often been marked by a barren discussion of ideas and their logical relationships to the neglect of relevant, empirical data. It is therefore of especial importance that any theoretical conception of the state employer be reasonably reconcilable with those observed characteristics of public employment which have been previously discussed.1 The impact of the concept of sovereignty upon the problem of group organization in the public service may be reduced to fairly simple terms. Does an acceptance of the notion that an "absolute despotic power . . . must in all governments reside somewhere," 2 inherently preclude the possibility of responsible collective negotiation between the state and its employees? For the purposes of this analysis, the idea of sovereignty as the ultimate and final source of legal authority within a state will be accepted without reservation. This approach is based upon three assumptions. First, the classic theory of sovereignty remains of central validity in legal systems as they are presently constituted. A scheme of employee relations in the public service based upon other presuppositions may possess logical consistency and even moral appeal. The possibility of its actual establishment, however, is too remote to warrant serious consideration. Secondly, if it is feasible 1 John Dewey, The Public and Its Problems, New York, 1927, p. 201. ' Blackstone, Commentaries, Philadelphia, 1771, I, 160.

42

labor problem in public service

to formulate a practicable labor policy for the public service embodying cooperative features in which the concept of sovereignty is fully recognized, it will, a fortiori, be a relatively simpler task to devise collaborative arrangements in which the state is not accorded such a privileged status. Thirdly, it is assumed that any political society demands a single and final source of legal reference for the adjudication of disputes between private parties and also between the state and its agents charged with the supreme responsibility of providing services essential to the community. Acceptance of this position does not imply that the state will not in fact be challenged and, on occasion, successfully by other associations or that its activities as they are carried on by its multitude of officials will always bear scrutiny in terms of their moral content. The legal authority of the state, nevertheless, is adequate in this view to prescribe unilaterally the terms of public employment. It may formally recognize, indifferently tolerate, or unreservedly suppress all forms of organization among its employees.3 Under such circumstances, the civil servant individually or collectively cannot legally challenge properly issued commands of the sovereign on the ground that they violate the dictates of individual conscience or the objective needs of the public service as was asserted in the more pretentious claims of pluralist speculation. It does not follow, however, that the state's recognition of effective staff organization ipso facto constitutes a derogation of its sovereign authority. Such a consequence will result only if the state so acts as to deny its ultimate authority to resolve disputes between itself and other associations. The theory of sovereignty relates rather to an ultimate situation than to everyday problems of administration. By virtue of its supreme authority the state may legally impose unilateral solutions in controversies with other associations. In fact it frequently functions quite differently. It has increasingly denied itself immunity from suit for violations of contracts which it could with propriety and indeed for many years did claim to be an indispensable aspect of its sovereign capacity. It has gradually assumed a measure of liability for tortious acts of its agents which was long held to be incompatible with the nature of the sovereign power. Within a framework which allows for adequate safeguards to protect its authority in case of necessity, the * The organization of public employees in the United States raises a particular constitutional problem which will be discussed below. In general it may be asserted that the courts will probably decline to invalidate legislative acts which have the effect of depriving public employees of rights of association and of collective bargaining on grounds of a denial of "due process" or "equal protection." See Railway Mail Association v. Corsi, 65 Sup. Ct. 1483 ( 1 9 4 5 ) .

the state as employer

43

government normally enters into contracts with private parties and permits itself to be sued on a basis of virtual equality. Its ability to negotiate with associations of its employees may depend upon a similar possibility of devising procedures which will not impair its essential ultimate authority. If, for example, the state reserved, but did not capriciously or invariably exercise the right to dictate the terms of public employment as well as the privilege to alter or repudiate understanding reached with staff representatives, it may not reasonably be deemed to have abrogated its sovereignty.4 A legal formula which will satisfy the essential demands of a sovereign authority does not, however, exhaust the problem of collective negotiation between the state and its employees. For the issues here involved are not only legal in their nature but also present fundamental political power relationships which, it has been observed, generally and "obstinately resist satisfactory treatment in legal terms." 5 In the first instance the state often lacks in fact the plenitude of power which the concept of sovereignty would impute to it. A constitutional government may not successfully relegate a vast civil service to a status of unquestioning subservience to its commands even if it were disposed and legally empowered to do so. Such conduct would probably be precluded by the force of public opinion and by the passive or active resistance of public employees. Such opposition or discontent may effectively manifest itself in a number of forms as to compel a consideration of staff needs and demands. Nor is resort to strike action essential in this respect. The collapse of morale, acute personnel shortages resulting from widespread withdrawals or a reluctance to accept employment under terms deemed unsatisfactory as well as vigorous associational activity may lead the state to abandon arbitrary personnel policies. In these relationships it becomes necessary to ascertain in terms of power limits the extent to which a government may permit its employees individually and collectively to participate in the determination of the conditions under which they work. In defining the permissible area of associational activity it is essential to assure the state such power as will secure it from serious challenge. It is this consideration which makes "the organic character of the state prevail over the development of freer purposes." 6 The requisite degree of authority may be subject to numerous variations but * See the concluding section of this chapter for an elaboration of this idea into a more formal theory of the state-employer. 5 Watkins, The State as a Concept in Political Science, p. 56. ' W. Y. Elliott, The Pragmatic Revolt in Politics, p. 363.

44

labor problem in public service

in general if a state is to retain its quality of statehood it must always be "possessed of a power greater than that of any of its rivals." 7 It follows as a corollary of this proposition that the "maintenance of state order is inherently incompatible with any attempt to distribute power equally among a number of independent personalities." 8 The inadmissibility of an equal distribution of power does not, however, preclude the possibility or even social desirability of vigorous associational activity on the part of civil servants as long as the state retains a preponderance of power. Public employee relationships have seldom been discussed in these terms. If such a superior power position is accepted as an imperative component of any effective political organization, the policies of the state employer must not jeopardize this essential condition. The alleged rights of public employees to form organizations, to affiliate with the general labor movement, to negotiate with administrative officials, to engage in political activities, or to strike against their employers must not be exercised in such a manner as to do violence to this fundamental requirement. In a recent study of employee relations in the American public service, a committee of the Civil Service Assembly examined a number of theories of the state employer which were intended to provide a framework of basic principle in accordance with which the labor problems of public employees might be rationally considered. The effort was declared to have been unsuccessful. We have found philosophical concepts of the government as an employer too controversial to determine policies of employee relations. We shall test specific issues solely by the criterion of efficient management.9 Unfortunately the labor issues inherent in the management of the public bureaucracy cannot be satisfactorily determined in the light of this single, attractively simple and apparently practical standard of reference. Factors other than those which relate to administrative efficiency may not easily be ignored with impunity. The efficiency of an organization is not a value of intrinsic finality; it is rather a relative concept which derives its meaning in large part from the purposes which particular administrative systems seek to achieve. An authoritarian and a constitutional system of government may each be judged Watkins, op. cit., p. 46. Ibid., p. 61. ' Clapp, Employee Relations in the Public Service, p. 58.

7

8

the state as employer

45

efficient but with reference to fundamentally different criteria of proper management. If, for example, the realization of individual and group freedom, to the extent that they represent feasible goals in the public service, is posited as a fundamental desideratum, then employee relations programs will demand evaluation with respect to their success or efficiency in attaining these ends as well as their ability to secure maximum productivity. The formulation of concrete policies will consequently vary with differing views of the nature and objectives of the public employer. For this reason it becomes essential to base any labor relations program for the public service upon some "philosophical concept" of the government employer. THE AUTHORITARIAN THEORY OF THE STATE EMPLOYER

The essence of this conception of the public service, as Laski observed in his analysis of administrative syndicalism in France, consists in the belief that "the civil servant is not an actor in the events of which he is the administrator."10 In this view the bureaucracy may not with propriety claim any individual or corporate rights against their sovereign employers. The state is deemed to absorb the complete loyalty of its civil servants. In the rather dramatic terms of a Continental writer, the latter "belong to it body and soul, to it they sacrifice their independence and insofar as necessary, their rights." 11 Any similarity between public and private employment thus becomes essentially irrelevant. On the other hand the oft-made distinction between military service and civilian employment becomes of less significance. All public servants are under an equal obligation not only to carry out the state's commands but to accept its decisions with respect to working conditions without question or protest. In his denunciation of strikes in the French civil service, President Nicholas Murray Butler expressed this point of view in his insistence that "loyalty . . . ought to mean the same thing in the civil service that ( it does ) in the military or naval services."12 It is readily apparent that associations of civil servants can find no substantial raison d'être in employee relations programs based upon the authoritarian theory of the state employer. Their essential purpose is in the Modern State, p. 345. Georges Cahen, Les Fonctionnaires, leur Action Corporative, Paris, 1911, p.

10 Authority 11

368. "New York Sun, May 18, 1909 cited in S. D. Spero, "Employer and Employee in the Public Service," Problems of the American Public Service, p. 173.

46

labor problem in public service

the representation of a special interest and this theory denies the admissibility of any individual or group staff interest independent of that of the state. Moreover public employees are considered to be under a unique compulsion to acquiesce without remonstrance in any and all decisions affecting their working conditions even though in other circumstances they might be moved to the most vigorous protest. "In regard to pay, conditions of work . . . leisure . . . ( the civil servant ) must accept the result without that malice, sense of injustice or revolt which would spoil his work." 13 It follows as an obvious corollary that the state cannot tolerate strikes in the civil service. "Its agents cannot engage in strike action without at the same time engaging in revolutionary acts." 1 4 The authoritarian conception of the state is generally justified on three separate grounds. First, it is alleged that the unique and vital functions performed by the state demand its assumption of arbitrary power in the field of public personnel management. The position of civil service associations [writes Finer], is peculiar in that the employer is the State, an institution of which undisputed authority is the essence, because that authority is so necessary and at the same time so liable to daily dispute.15 This viewpoint denies the feasibility of a proportionate distribution of power between the state and its organized employees. The preservation of state order is held to be incompatible with any measure of independent corporate organization or collective behavior on the part of the civil service. This conception of the government employer represents essentially an extension to the field of public administration of the theory of sovereignty in its absolutist legal aspects. As previously indicated this theory is uncompromising in its insistence upon the need for a single and ultimate source of legal reference in any political society. It does follow as a valid inference from this position that the state may dictate such terms of public employment as it sees fit. It is illogical to conclude, however, that the public employer should ethically or must as a matter of legal or political necessity exercise to the full its plenary authority as a sovereign power in its relationships with its employees. In fact, it is seldom if ever possessed of complete omnipotence nor in essential or perennial need of such power in order to achieve its purposes. ™ Herman Finer, The Theory and Practice of Modem Government, p. 1383. " Cahen, op. cit., p. 371. 1E Finer, op. cit., p. 1400.

the state as employer

47

Paradoxically, the preservation of democratic processes themselves constitutes the basis of the second argument for the authoritarian conception of the state employer. In this view only unquestioning acceptance by public employees of the commands of their superiors can assure the responsibility of the bureaucracy to the representative branches of the government. Thus the administrative apparatus of a democratic society ironically is denied the possibility of organizing itself democratically by virtue of the alleged imperatives of representative government. It is true of course that the essential function of the civil service is to carry out policies which are determined in the main by political forces which operate beyond the boundaries of administration. The public service is normally prohibited from questioning decisions which have been reached primarily by representative bodies. Hence arises the familiar insistence upon the neutrality of the civil service with respect to the programs which it is required to administer. But even if the concept of neutrality with respect to policies and political activities be accepted without reservation,16 it would not follow that an authoritarianism with respect to ends is incompatible with a substantial measure of staff organization designed to secure improvements in conditions of employment within the bureaucracy. In this sense it is necessary to distinguish between administrative management in its personnel aspects and the larger problem of public policy formation and execution. The fact that public employees desire to participate to some degree in the determination of their working conditions does not necessarily imply a demand for a share in the formulation of other policy decisions concerning the substantive functions performed by the entire bureaucracy. Unfortunately, however, the issue of civil service neutrality cannot be resolved by drawing a simple distinction between personnel management and substantive policy formation. Significant policy decisions often affect personnel matters and the problem of neutrality accordingly remains relevant in this field. It becomes necessary therefore to determine the extent to which the admittedly necessary acceptance by the civil service of political decisions concerning personnel warrants the retention by the state of authoritarian power in matters of internal administration. The demand of public employee groups to share in the formulation and administration of policies relating to personnel management is directly relevant at this point. Is this objective compatible with the requirement of civil service neutrality? Both 1β

See discussion of Political Activities in Chap. VII.

48

labor problem in public service

logic and available experience tend to substantiate the view that such accommodation is possible. The justification of neutrality lies in the fact that it is indispensable to assure the responsibility of a bureaucracy to popularly elected and representative organs of government. Neutrality requires that an employee perform tasks properly assigned to him whether or not they conflict with his preferences or his conception of the public welfare. But it does not imply that he may not be granted a substantial measure of discretion in the execution of policy or even in its formulation at various stages prior to its formal and final adoption by responsible political authorities. That such latitude prevails in the exercise of administrative functions is now a commonplace. That it may equally exist in the area of personnel management and not constitute an impairment of essential legislative prerogatives is less widely recognized. In fact public employees cannot reasonably be expected to remain neutral with respect to matters of vital concern to their material welfare. A government employee in an agricultural agency, for example, does not share a direct interest in programs designed to achieve "parity" for the farmer. Hence he may legitimately be expected to remain neutral or even indifferent in his attitude toward public policies in this field. He may believe that some programs are of greater merit than others and he may be afforded an opportunity, especially in the higher reaches of the bureaucratic hierarchy, to participate positively and constructively in the creation or administration of final policy. But as a civil servant he may consistently administer programs, unless to do otherwise would fundamentally violate his conscience, which he may personally consider well or ill-advised because he has no direct personal interest in their content. Hence arises the psychological possibility of that neutrality which is essential to representative bureaucracy. But the same employee will not remain equally indifferent or neutral when confronted with personnel policies which involve his compensation or job security. In this relationship his position is more akin to that of the farmer seeking "parity" than to the official endeavoring to administer a program designed to achieve this purpose. Dispassionate neutrality becomes psychologically impossible in this situation. The interest of the civil servant is immediate, direct, and inextinguishable. Government is confronted only with the choice of allowing or denying its adequate expression. A third defense of the authoritarian view of the state employer is contained in the view that bureaucratic organization intrinsically implies substantially irreducible elements of absolutism.

the state as employer

49

The semi-military, authoritarian nature of a Government service is . . . no . . . gratuitous addition of petty autocrats, but inherent in the very nature of the processes which form the essence of all administrative services.17 By way of corroboration it is pointed out that "large scale business corporations are conducted on precisely this pattern." 18 It should be immediately observed that the fact of an authoritarian industrial structure is no evidence of its inevitability or desirability from the viewpoint of operating efficiency even apart from the matter of its compatibility with the objectives of a democratic society. The history of employee relations in private industry has hardly been a happy one. An insistence upon authoritarian organization must bear a not too negligible share of responsibility for the bitter and tragic strife which has so often marked relationships between management and labor. It is questionable whether a "semi-military" organizational pattern was dictated by any inherent necessity. Deviations from this once dominant framework are increasingly discernible. Arthur Macmahon has been led to declare that whatever the ownership, there are inherent problems in the relations of management and men that can hardly be satisfactorily adjusted in an atmosphere of undisputed authority. 19 The history of labor relations in private industry abundantly reveals that almost every concession to employee demands for an increased voice in the determination of working conditions, which proved quite compatible with efficient administration, was originally opposed as an intolerable challenge to allegedly essential managerial prerogatives. The needs of management admittedly require an acceptance by all members of an organization of many decisions made by a few. It does not follow, however, that all but trivial matters must be resolved in this manner. The development of private industrial relations has shown an ever-growing area in which consultative procedures have replaced the exercise of "managerial prerogatives" once deemed indispensable to efficient operation. The whittling down of these prerogatives consequent upon the organization of labor has not impeded the growth of large-scale organization to any perceptible degree. Managerial discretion has indeed been hedged in by a formidable number of restric17 Carl J. Friedrich, Constitutional Government and Politics, New York, Harper, 1937, p. 34. "Ibid. 19 "The New York City Transit System: Public Ownership, Civil Service and Collective Bargaining," 56 P.S.Ç. 190, 1941.

50

labor problem in public service

tions imposed as a result of employee pressures. Some of these may be clearly unsuited to the public service; others may or may not be socially desirable in public or private enterprise. But all of them are essentially manifestations of a deeply felt staff resentment against authoritarian organization. Administrative absolutism breaks down particularly at the point where it is confronted by considerations of employee selfinterest. Specific areas of managerial activity may be viewed in this light. Employees are generally indifferent with respect to the products or services which a firm provides. Managerial discretion accordingly remains largely unfettered in this area. But the manner in which a given product is made frequently provokes varying degrees and types of employee interest which may range from a vested interest in the preservation of obsolete methods to the making of appreciable contributions to operating efficiency through fruitful labor-management consultation. Finally the terms of employment which prevail in an organization raise issues of the most direct and immediate concern to its members and they will accordingly seek a substantial voice in their determination. Hence have arisen collective bargaining in private industry and vigorous lobbying activities in public employment. In this area arbitrary solutions, however benevolent in intention, will encounter a hostile reception in a society in which democratic consultative procedures are commonly accepted and cherished. The authoritarian theory of the state employer contains one final implication which may be observed at this point. It assumes that the civil servant is required to give to the state his sole and undivided loyalty. Those who maintain this view are perhaps unmindful of the fact that the civil servant like all other men, as Walter Lippmann once wrote, finds himself the center of a complex of loyalties . . . The multiplicity of his interests make it impossible for him to give his whole allegiance to any person or to any institution. Because a man has so many loyalties, each loyalty commands only a segment of himself . . ,20 Moreover the complexity of a plural society creates situations in which the allegiances which men render to specific causes occasionally conflict. The loyal civil servant, for example, may belong to an association which seeks to promote his economic welfare in opposition to a policy of governmental economy and retrenchment. If these objectives 10

A Preface to Morals, New York, Macmillan, 1929, p. 268.

the state as employer

51

are in fact mutually exclusive, then the state will be required to deny to its employees and their associations such individual or corporate freedom as result in a challenge to its authority. In fact, however, these objectives are not only often compatible; their pursuit is the very essence of decision-making in a democratic society in which final solutions are reached through a compromise of the aims of various interest groups. Arbitrary or unilateral action may be justified only if the state is able to make good a claim to an absolute and unsharable loyalty on the part of its servants. The military service clearly falls into this category. The remainder of the bureaucracy does not furnish in its entirety a convincing instance in support of the validity of this pretension. Nor does recourse to such vaguely defined terms as "semi-military" clarify the issue. In this area it is suggested that the sovereignty of the state demands only that the organs of government be vested with a preponderance of power and not with its absolute possession. The state may thus command an ultimate loyalty of its servants as indeed it does of all citizens. But it need not perforce exact an exclusive allegiance. It may legitimately insist that its interest is paramount but it is not by that fact the only interest. It may demand a preferential position in its relations with its employees but the exigencies of its situation do not appear to warrant the imposition throughout the bureaucracy of an authoritarian personnel policy. THE SYNDICALIST THEORY OF THE STATE EMPLOYER

Underlying the various proposals for administrative reform which were developed by the numerous proponents of the syndicalist movement there may be found a number of general propositions which indicate the tone and direction of the syndicalist attack upon the traditional authoritarian conception of the state employer. These programs were all based upon the cardinal assumption that only a virtually autonomous civil service could secure the adequate satisfaction of staff needs. Denying the necessity for a single supreme coercive agent in government, the syndicalists sought to diminish the sphere of effective state action by a division of political power among functionally organized and distinct groups. Although various and vital tasks were assigned to the state, in general its claims to preeminence were depreciated and the activities of private economic, religious, and other associations were considered essentially to be governed by contracts freely entered into and not dependent for their validity upon a legal system administered by a sovereign authority. The ideological founda-

52

labor problem in public service

tions of the syndicalist movement were formulated as early as Proudhon whose works expressed its fundamental purposes. "Ce que nous mettons a la place de lois, ce sont les contrats." 21 Applied to public administration this conception of social organization envisaged a number of autonomous services each of which enjoyed a measure of independence sufficient to eliminate established hierarchical arrangements and provide for a complete decentralization of control in personnel matters.22 The statutory determination of employment conditions would accordingly be replaced by a collective work agreement similar to those concluded in private industry. The fact that the state was denied any privileged legal or moral status in the community rendered it unnecessary and undesirable to provide it with supreme or even predominant authority in the management of the public bureaucracy. On the contrary the situation was considered to call merely for a "simple contrat du travail entre l'employe et son patron l'Etat." 23 It would of course reflect an academic conceit of considerable proportions to attribute the syndicalist movement exclusively or even principally to the speculations of political philosophers. In so far as its relevance to the field of public administration was concerned, it derived its principal impetus from widespread dissatisfaction, particularly in France, with wretched employment conditions, abuses and inefficient management in the public services. It was born of disillusionment with the persistent neglect of the civil service by legislative bodies and with bureaucratic incompetence and corruption. The specific objectives sought by the syndicalists were in fact frequently similar to those of conventional civil service reform associations which arose during the same period in the United States. Their writings in large part expressed the demand of public employees for merit systems in the appointment of personnel, rational schemes of promotion which would curtail administrative favoritism and egregious nepotism, removal procedures which would protect the government worker from arbitrary action by his superior, and for equitable classification and compensation structures. It was in the methods which they advocated or, perhaps more accurately, considered imperative to attain their objectives that they departed radically from traditional theories of administrative organization. For the syndicalists concluded that only a fundamental trans21 Proudhon, Idée générale de la revolution au XIX siècle, Oeuvres completes X, I860, p. 259. Cited by Lefas, L'Etat et les fonctionnaires, Paris, 1913, p. lviii. " See Joseph Paul-Boncour, Les Syndicats de Fonctionnaires, Paris, 1906, p. 29. " Lefas, op. cit., p. xlv.

the state as employer

53

formation of the state which would eliminate its centralized authority and hierarchical organization could protect the public servant from exploitation by his employer. Accordingly they demanded for the civil service "the most complete independence vis-à-vis the political organs of the state, both legislative and executive." 2 4 Statutory standards of personnel management and ultimate legislative control of bureaucratic activity were rejected as inherently repressive or as ineffective expedients. Indeed parliamentary action was attacked on the ground that it would not only fail to alleviate but that it would in fact worsen the plight of the civil servant.25 The philosophical and institutional implications of the syndicalist movement have often been analyzed and there is no need to restate at this point the series of criticisms which resulted from a logical scrutiny of its political theory and from an evaluation of its empirical or ethical validity. If it were merely of academic interest, it would be sufficient to conclude that the syndicalist idea after a brief and spectacular existence had come to the end of its adventure and could now with the perception which hindsight renders so acute be made the subject of a number of appropriate and searching academic obituaries. The premises which underlay syndicalist thought, however, retain a considerable measure of contemporary relevance in at least two vital areas of public personnel management. These are concerned respectively with the determination of the limits to which collective negotiations with government employees may proceed and with the resolution of the strike problem in public employment. To demand collective bargaining in the public service in the form in which it is practiced in private industry and to assert the right to strike against a government employer is to assent in part to the assumptions of syndicalism even though such pretensions are not made articulate to the point of being reconciled with or incorporated into a formal political theory. The affirmation of the first claim is tantamount to a denial that the government has a fundamental right, grounded in political morality or in the necessities of state survival, to impose, if it deems necessary, a unilateral determination of personnel relations in the public service. To proclaim the right to strike is likewise to express a syndicalist preference for an administrative system in which the state has no ipso facto claim to ultimate obedience but must permit controversies to be resolved in a Paul-Boncour, op. cit., p. 43. * See Cahen, op. cit., p. 22, "L'ingérence parlementaire avait aggravé L'arbitraire" . . . and on page 357, "Un statut, c'est encore une réglementation imposé . . . On le remplacerait par une convention collective du travail." M

54

labor problem in public service

contest of strength in which the merits and facts of particular disputes are alone relevant. In an oft-quoted passage, Harold Laski once gave classic expression to this point of view. "I shall be . . . with my trade union and against the State, if the impact of the State upon my experience seems inadequate compared to the impact of the . . . trade union." 2 6 In this view public servants would subject state decisions or rather proposed courses of public action to individual and collective appraisal. If they concluded that their needs were inadequately provided for, they would (depending on whether syndicalism is considered as essentially an ethical theory, a rationale of power relations in society, or a proposed legal order) 2 7 be justified in morally refusing obedience to state commands inasmuch as no unique moral value is ascribed to state action, or they would engage in a process of "internecine" 2 8 strife to achieve the triumph of their cause since social equilibrium is essentially the product of an unregulated contest of opposing forces, or they would exercise their legal right of disobedience inasmuch as the basis of law is its ability to secure assent rather than its promulgation by a sovereign authority. The trade union [wrote Laski], is concerned with the business of production, the state is, above all, concerned with the general regularity of the supply for consumption. What . . . the tradeunionist is compelled to deny is the subordination of the function he fulfills as producer to his interests in the supply of his needs. 29 The implications of this position in so far as they relate to the problem of strikes in the public service are as obvious as they are ominous. Public employees who concluded that an interruption in the supply of government services provided an effective method of improving their status as producers would feel no moral obligation to consider the public consumer interest as superior in value or social importance to their own. In this view the right to strike in the public service may command a measure of ethical justification. An evaluation of the syndicalist theory of the state employer must, if it is to retain a clarity of focus, distinguish between its legal, normative, and political aspects. In so far as the first is concerned, the theory implies a condition of "contingent anarchy" which was explicitly " A Grammar of Politics, New Haven, Yale, 1929, p. 60. * Syndicalism rarely distinguished between these distinct categories of social thought and action. M Laski, Authority in the Modern State, p. 64.

"Ibid., p. 86.

the state as employer

55

recognized by its expounders and rationalized as essential to the development of corporate and individual freedom. It was also and almost immediately recognized by its critics as being incompatible with any attempt to regulate social relations by a system of law. As John Dickinson observed: "To legalize disobedience to existing positive law . . . this is . . . to make a regime of positive law impossible." 3 0 The legal criticisms to which syndicalism was subjected with such shattering logical effect were somewhat less important than its denunciation for its moral deficiencies and its politically dangerous content. For the syndicalists and the pluraliste were not primarily lawyers but political theorists and sociologists. The ethical aspect is particularly germane to the field of public employment. It is quite clear, for example, that within the context of a specific labor dispute, administrative officials may adopt attitudes which are morally less defensible than the demands of a group of employees. An arbitrary refusal to meet with employee representatives might provide a case in point, particularly if such conferences were established as general practice in other and similarly organized jurisdictions. But it would not follow in such circumstances, as the syndicalists urged, that employees were thereby relieved from an obligation to admit the subordination of their collective interest to that represented by public officials. For, as the critics of syndicalism showed, the state is essential to the achievement of any social morality. In this view the state emerges as an indispensable instrument in the service of such morality even though its specific actions may on occasion be deemed intrinsically indefensible. A religious organization may be internally irresponsible, arbitrary, or even corrupt to varying degrees but nevertheless may remain essential as a medium to preserve the faith espoused by its members. A state may likewise respond inadequately and even capriciously to the needs of its servants and in particular instances be guilty of insupportable conduct. It may yet be justified in demanding their ultimate allegiance in the interests of preserving an established constitutional system. It cannot, therefore, be made a hostage to fortune in an unregulated strife between public officials and employees. But the syndicalist theory of the state employer appears inherently to involve this latter consequence. In so far as political or power relationships are concerned, it is now abundantly clear that the assumptions of the syndicalists with respect to the degree of authority which the state apparatus must in fact " " A Working Theory of Sovereignty," 43 Political Science (1928).

Quarterly,

35

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labor problem in public service

possess in order to achieve its purposes have been shown in the tragic aftermath of European political disintegration to have been historically unwarranted and dangerously ill-advised. It is not with any sense of critical gratification but only with the bitterest irony that one may recall Laski's exuberant hopes for the future of syndicalism in France on the ground that the French democracy was internally, at least, in little danger of disappearance, [and that the] only reason for the retention of the present system is the power it places in the hands of statesmen to corrupt the civil service and the electorate by the "fear of dismissal" and the "hope of office." 31 This judgment, it may further be ventured, was as injudicious a reflection on the alleged stability of the Third Republic as it would be of any democratic government. An uncontrolled bureaucracy can menace its survival as well as the military cliques, religious forces, or subversive political movements which threatened the Third Republic throughout its existence. The state is bound to protect itself from attack or domination by powerful associations. Moreover it must discharge an inalienable responsibility to appraise their demands dispassionately and objectively in the light of the public interest. It is a somewhat naive view of the aspirations and conduct of organized interest groups to assert that their autonomous functioning will assure the adequate protection of the public interest. They may contribute invaluably toward the resolution of various issues. To a degree they may represent, in Laski's words, "deposits of expertise" 32 provocative of "discussion rooted in the principles of its subject." 33 Their nature, however, is not completely explained in these terms. Such associations are clearly and indeed primarily self-interested rather than disinterested in their motives. Their ability to contribute to an expert solution of an issue is matched and too often exceeded by a determination to press for selfish advantage. The state must examine their conduct, coordinate their activities, and assure the preëminence of the public interest. In this task it is in need of enhanced rather than diminished authority. And this requisite degree of power is incompatible with the equalitarian presuppositions of the syndicalist theory of the state employer. It is probable that the indiscriminate compounding of normative, legal, and political elements in syndicalist thought was responsible for the fact that its proponents did not have "a clear vision . . . of the Ά

Authority in the Modern State, p. 346.

•* Laski, A Grammar of Politics, p. 80. "Ibid.,

p. 82.

the s t a t e a s e m p l o y e r

57

probable repercussions of their acts." The movement was largely a militant response of despairing public employees to working conditions which did not seem amenable to improvement by any other means. Many were drawn to it because of its dramatic stress upon aggressive and direct action and its promise of material improvement in their status without regard for its logical consistency or institutional practicability. In seeking to introduce democratic elements into an authoritarian bureaucracy based upon hierarchical control, the syndicalists failed to evolve a reasoned plan for the system of administrative autonomy which they so eloquently extolled. They did succeed, however, in focusing attention upon the fact that an inflexible application of the authoritarian theory of the state employer created incongruities which would not long be tolerated without protest in a democratic society. 34

THE STATUTORY THEORY OF THE STATE EMPLOYER

In an effort to find some compromise between the extremes of administrative authoritarianism and syndicalism, a concept of public employment which became known as "statuisme" was developed in France during the early years of the present century. It sought as its principal objective the enactment of a "statut des fonctionnaires" or a fundamental and comprehensive civil service law which would prescribe employees' rights, duties, and conditions of work in sufficient detail to satisfy staff needs and provide for the redress of grievances. It was anticipated that such an organic law would serve the double purpose of protecting employees against bureaucratic excesses and of mitigating syndicalist agitation. The purpose of the fundamental law was to replace the collective-bargaining relationship of private industry with an acceptable statutory substitute. As described by one of its proponents, "The protection which the private worker has in his freedom of association, the civil servant will find in his legal status." 3 5 A scheme of this kind draws a sharp line of distinction between the areas of public and private employment particularly with respect to the manner in which working conditions are determined. For this reason it was repudiated by a substantial element in the civil service which was class conscious or politically articulate and hence apprehensive of any program which appeared to divide the working class and obscure their alleged community of interest. The proposed detailed statutory solution of civil service problems may be subjected to criticism on Cahen, op. cit., p. 11. " G e o r g e s Demartial, Le Statut des Fonctionnaires, p. 375. w

quoted in Cahen, op.

cit.,

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labor problem in public service

grounds less self-interested in motivation. A comprehensive civil service law which permitted only a minimum of bureaucratic discretion would be marked by a rigidity detrimental to efficient administration. Furthermore a scheme of this sort would simply replace arbitrary bureaucratic conduct by a statutory absolutism albeit benevolent in intent or practice. It would not satisfy the aspirations of the civil service in a democratic state for a measure of participation in the determination of their conditions of employment. THE CONSTITUTIONAL THEORY OF THE STATE EMPLOYER

In his study of administrative syndicalism in France,38 Professor Laski was apparently led to the conclusion that a choice must be made from among the three conceptions of the state employer which have just been examined. The monarchial or authoritarian, syndicalist and statutory conceptions of the civil service were construed to exhaust the various logical and politically feasible possibilities. The development of public employee relations in Great Britain and the United States has indicated, however, that other practicable arrangements may be devised and have in fact been made the subject of substantial experimentation. Although these have not been elaborated into a formal theory of employee relations in the government service, they indicate a new trend in public personnel administration. The procedures in question and the presuppositions which govern their operation reflect a conception of the public service which may perhaps be described as the "constitutional" theory of the state employer. The elements of this concept have been implicit in the preceding discussion of the relations between the state and its employees. It is necessary at this point only to attempt their systematic recapitulation and integration into a more comprehensive scheme. Of primary importance is an acceptance of the view that the state is an association which, for ultimate purposes, is vested with final legal authority and political power. Secondly, it is contended that the state is not required in law or on grounds of political expediency or morality to exercise continually the full plenitude of its authority and thus invariably to insist upon a unilateral administration of the bureaucracy. The state may consistently and practicably permit as a matter of everyday administration partial and responsible staff participation and consultation according to statutory standards and retain ultimate authority to establish basic personnel policies and to impose a solution of its own making should established procedures fail to function satisfacM

Authority in the Modern State, chap. v.

the state as employer

59

torily. In this manner, negotiations between administrative officials and employee associations may cover as wide a range of issues as public authorities permit. Indeed British experience has even shown that in the event of a failure to reach agreements at the operating levels of personnel management, resort may be had to arbitration rather than to the resolution of the issues in question by the sovereign authority of parliament. On the other hand the government has retained an unequivocal predominance of authority in Great Britain. "In the balance of forces within the state, the official side enormously outweigh the staff side." 37 The system of employee consultation presupposes a substantial degree of official discretion with respect to the matters submitted for joint discussion. Moreover it is explicitly recognized that decisions reached in joint deliberative processes are subject to review by parliament. But it is equally important to observe first that officials have not so narrowly exercised their discretion as to thwart the development of genuine collective negotiation and secondly that parliament has rarely seen fit to set aside understandings reached through these procedures.38 In the United States several significant experiments in public employee relations have indicated the feasibility of similar arrangements. The organic legislation establishing the Tennessee Valley Authority enables the management of this enterprise to conclude agreements with employees in a manner which closely resembles collective bargaining in private industry.39 The labor agreement in effect at the Bonneville Power Administration explicitly states that the parties involved are respectively the sovereign authority of the United States and a regional group of labor unions.40 The statutes and agreements nevertheless recognize as a basic stipulation the supremacy of the public authority. Finally a constitutional system of labor relations in the public service demands that the government establish explicitly the machinery of staff consultation. It cannot rest upon occasional and sporadic latitude in the exercise of administrative or statutory discretion. It requires rather that the government define specific areas of consultation with employees and provide definite procedures for arriving at understandings and for securing their implementation and interpretation when necessary. A program of public employee relations which proceeds from these 17 Leonard White, Whitley Councils in the British Civil Service, Chicago, University of Chicago Press, 1933, p. 347. ω Ibid. " See Chap. X. "Ibid.

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labor problem in public service

assumptions would seem to satisfy the need for a sovereign authority defined as an ultimate source of legal reference in a political society governed by law. It would also be based upon a frank acceptance of the fact that the state in the actual exercise of its sovereign power is perforce subject to various limitations. "In fact, a continuous, everpresent final arbiter is not only not essential for a democracy, but it does not come into play except at intervals, and even then only imperfectly." 4 1 A sovereign power which is excercised intermittently or periodiclaly is not by that fact less supreme. Its supremacy does not inherently require a perpetual assertiveness. In this view a sovereign state may prescribe the initial, fundamental framework within which personnel administration must evolve and reserve for itself the terminal authority to impose unilateral solutions in those instances where the exercise of discretionary authority jeopardizes the public welfare. Thus far the constitutional theory of the state employer has been discussed with primary reference to its theoretical consistency and administrative feasibility. Its acceptability, however, will depend upon a number of other factors which may recommend it in more positive fashion. As hypotheses, to be examined in detail subsequently, it is suggested that the establishment of employee relations programs in which explicit provision is made for staff participation may ( a ) enhance operating efficiency and ( b ) advance the purposes which a democratic society seeks to achieve. The first contention is based upon the assumption that the autocratic management of public or private administration is less efficient than procedures which accord a responsible, participatory role to the working force. The employee relationship policy of the Tennessee Valley Authority has recognized the fact "that employees . . . have a contribution of knowledge (to make) . . . without which . . . the best job cannot be done." 4 2 TVA experience has shown that the consultative practices which the Authority has introduced and fostered have provided an effective means of encouraging staff initiative which would not be forthcoming in an atmosphere of unchallenged command. Moreover they have apparently contributed to a lessening of that apathy which is so frequently regarded as the inevitable concomitant of work performance in the public service. The extent to which such indifference is unavoidable " Carl J. Friedrich, The New Belief in the Common Man, Boston, Little, Brown, 1942, p. 57. " Address by Mr. Gordon Clapp before the International Brotherhood of Electrical Workers, St. Louis, October 28, 1941.

the state as employer

61

in a bureaucracy is debatable. It is generally admitted, however, that "once . . . work is divorced from responsibility, the result is a balked disposition of which the consequence is to diminish the creativeness of the worker concerned." 4 3 Secondly a scheme of employee relations in which provision is made for staff participation may enlarge the general area of political and economic freedom. Freedom of collective action without which liberty in a modern industrial society is meaningless is as vital in the vast public services as in private enterprise. Public opinion upon which government employees must ultimately depend for the attainment of satisfactory conditions of employment will not be genuinely public unless it reflects in appropriate measure the opinions of millions of civil servants. Associations may provide the most effective means of assuring that the staff point of view will secure an adequate voice in the formation of that complex of social attitudes generally termed public opinion. Moreover employee organizations may not only serve as a medium for the adequate articulation of civil service needs but also secure the more responsible execution of public policy. The legislative mandate may be disregarded on occasion by administrative officials or be inherently so general in nature as to permit wide discretion in fixing many vital aspects of public employment. Students of both American and European systems of public administration have expressed the belief that "employee opinion organized and articulate may act as a corrective" in assuring that administration will carry out policies "in the direction of the public will." 4 4 Indispensable as administrative discretion may be, its adequate exercise may be compatible with and indeed more responsibly discharged by the establishment of procedures which assign specific consultative roles to responsible employee organizations. Interest representation of this sort has long performed a similar function in the operation of various agencies created for the regulation of private economic activity. α Harold J. Laski, The Foundations of Sovereignty, New York, Harcourt, Brace, 1921, p. vii. " Clapp, Employee Relations in the Public Service, p. 54.

CHAPTER

IV

the status of employee organization in the public service T H E RIGHT O F ASSOCIATION

THE various policies which have been adopted by public authorities governing the right of the rank and file employees to associate for purposes of collective action reflect a widespread failure to reach agreement upon fundamental principle. In the absence of any basic pattern to guide a positive program of public labor relations, existing arrangements share only in the negative decision that the civil service is not to be included within the scope of general labor legislation designed to facilitate collective bargaining in private industry. The National Labor Relations Act specifically denied to government employees the rights which it extended to private workers.1 Similar reservations are contained in the labor legislation of numerous states.2 Court decisions have invariably held that the public service occupies such a unique status that its members may not claim rights granted other employees on such constitutional grounds as the "equal protection of the laws" clause of the Constitution might conceivably be deemed to confer.3 It is not difficult to understand the justification for this prevalent judicial attitude. Labor legislation which explicitly recognizes the right and indeed propriety under certain circumstances of strike, walkout, or picketing action by private employees is patently not intended to apply to the public service. In a recent opinion of the Supreme Court of the State of Florida, the court declared that a decision to include government workers within the scope of such legislation would be 29 U.S.C. 152 (1940 ed.). * See Monthly Labor Review (February 1939), p. 309. ' U.S. Constitution, Art. XIV, Sec. 1. 1

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"strange and incongruous . . . when attempted to be squared with the governmental process as we know it." 4 The Court therefore dismissed a suit brought by a union of municipal employees against the City of Miami to compel recognition of the association as a bargaining unit on the ground that Chapter 21, Section 968 of the State General Laws ( 1943 ) conferred upon employees in general the right to form unions of their own choosing for the purposes of collective bargaining. Although the courts have generally refused to extend the scope of existing labor legislation to the area of public employment, they have reflected a certain disagreement with respect to the competence of public authorities to deny unequivocally as a valid exercise of their sovereign power the right of government employees to form organizations for the protection of their interests. In 1930 the Supreme Court of Washington upheld an order of the Seattle Board of Education which denied employment to teachers who were members of the American Federation of Teachers. It was held that it was within the competence of the Board to refuse employment to anyone for any reason whatsoever, or for no reason at all . . . It is no infringement upon the constitutional rights of anyone for the Board to decline to employ him as a teacher . . . and it is immaterial whether the reason for the refusal . . . is because the applicant is married or unmarried, is of fair complexion or dark, is or is not a member of a trade union . . .5 An earlier decision in the state of Texas reached a similar conclusion but repudiated by implication the unfettered governmental discretion asserted by the Court in the Seattle case. Thus in McNatt v. Lawther,6 the Court denied relief in a suit for reinstatement brought by firemen of the city of Dallas who had been dismissed because of their refusal to obey an ordinance of city officials directing them to dissolve a union which they had formed. "We cannot say," declared the Court, "that the adoption and enforcement ( of the ordinance ) . . . was arbitrary or capricious." The opinion appears at least to imply, in contradistinction to the Seattle decision, that if the municipal ordinance had been capricious, for example, directed at persons "of fair or dark complexion," it might have been set aside. Considerable support for this point of view may be 4 Miami Water Works Local No. 654 v. The City of Miami, 26 So. 2nd 194, 197 (1946). " Seattle High School, Chapter No. 200 A.F.T. v. Sharpies, 293 Pac. 994. See also People ex. rei. Fursum v. City of Chicago, 278 III. 318 (1917). •223 S.W. 503 (1920).

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found in other judicial decisions. Concerning the circumstances under which persons may be barred from public employment, Mr. Justice Cardozo declared in People v. Crane7 that an acceptance of the proposition that no person has the right to public employment does not imply that "he may be declared disqualified from service unless the proscription bears some relation to the advancement of the public welfare." In an article analyzing the issues involved in this and similar cases, Professor Powell pointed out that the power of the state to refuse to employ persons generally does not confer upon it the authority to exclude persons of a designated class. "The power of discriminatory exclusion is assumed (but with logical foundation) to follow from the power of excluding all." 8 If the criterion of administrative welfare referred to in the Crane case is adopted as the standard in determining qualifications for public employment, it becomes essentially a matter of public policy to ascertain if such welfare is jeopardized by virtue of affiliation with a labor organization. The courts have usually agreed that the determination of the right of association in the government service is inherently a policy-making function which will rarely be subject to judicial limitation. With respect to the prohibition of membership in public employee associations, the Court declared in McNatt v. Lawther: "We are not called upon to express an opinion as to whether such rules were wise or not." 9 The adoption of a rule by the Chicago Board of Education forbidding teachers to belong to unions was again upheld as "an exercise of the discretionary powers of the Board, which Courts cannot interfere with." 10 Occasionally the courts will undertake to pass upon the propriety of associational activity in the public service. In the matter of Hägen v. Picard the New York courts suggested that municipal employees enjoyed the right of association and reversed a ruling of the New York City Park Department which had denied a certificate of incorporation to an employee organization. The court asserted that the administrative decision was "arbitrary and without justification in law" and declared that public employees "have the same right to mutual help and assistance that other citizens have . . . and to group themselves T

214 N.Y. 168 (1915). ""The Right to Work for the Government," 16 Columbia Law Review 108 (1916). "223 S.W. 503 (1920). 10 People v. City of Chicago, 278 111. 318 (1917).

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11

together for that purpose." This opinion, however, had only a very narrow application inasmuch as it related simply to an administrative determination made in the exercise of discretion not governed by controlling legislation or a more comprehensive executive ordinance which might specifically prohibit the formation of employee associations. The political organs of government vested with the responsibility of defining the right of association of public employees have generally failed to reach any fundamental agreement in this matter. Thus in 1946 the city of Dallas denied the right of its employees to form labor unions. The Court of Civil Appeals for the Fifth Supreme Judicial District of Texas recently upheld an ordinance of the city of Dallas which made it unlawful for any officer, agent or employee or any group of them, of the City of Dallas to organize a labor union . . . or to be or become a member thereof, whether such labor union . . . is affiliated or not with any local, state, national or international body. 12 In 1912 the United States Government, however, under the terms of the Lloyd-La Follette Act, explicitly recognized the right of Federal employees to form associations for the promotion of their economic welfare. 13 Considered the "Magna Carta" of organized labor in the public service, the Lloyd-La Follette Act was passed by the House of Representatives on April 30, 1912, as a rider to the postal appropriation bill. Its provisions have been of such importance in determining the nature of public employee organization during the past thirty-five years as to warrant their quotation in some detail. They provided that membership in any society, association . . . or other form of labor organization of postal employees not affiliated with any outside organization imposing an obligation or duty on them to engage in any strike or proposing to assist them in any strike, against the United States, having for its objects, among other things, improvements in the condition of labor of its members, including hours of labor and compensation therefor and leave of absence, by any person or groups of persons in said postal service, or the presenting by any such person or groups of persons of any grievance or grievances to Congress or any member thereof shall not con11 171 Misc. 475, 476, 12 Ν Y S (2d) 873, Affd 258 App. Div. 771, 14 Ν Y S (2d) 706 (1939). "CIO v. City of Dallas, 198 S.W. 2d 143 (1946). "Act of Aug. 24, 1912, Sec. 6; 37 Stat. 355; 5 U.S.C. 652 (1940 ed.).

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service

stitute or be cause for reduction in rank or compensation or removal . . . from said service. The right of persons employed in the civil service of the United States either individually or collectively, to petition Congress, or any member thereof, to furnish information to either House of Congress or to any committee or member thereof, shall not be denied or interfered with.14 In the light of contemporary uncertainty concerning the propriety of permitting associations of public servants, it is interesting to observe that throughout the prolonged legislative hearings and debates which preceded the passage of the Lloyd-La Follette Act, virtually no exception was taken by those who opposed its enactment to the basic proposition that government employees should be granted the right of forming organizations to secure improvement in their conditions of employment. In a discussion of the bill before the Senate it was pointed out by Senator Root, who indeed expressed misgivings concerning the wisdom of the proposed measure, that the issue was simply whether the postal organizations . . . allowed . . . by law . . . shall be permitted to affiliate themselves . . . with the great national organizations, the chief purpose of which is to promote, and make possible and successful, strikes against employers.15 Senator Reed, who was one of the principal supporters of the bill, declared: Nobody has proposed that these men engaged in the Government service should not be allowed to organize, but a fear has been expressed that they may affiliate . . . with some outside organization, and that that outside organization might require a strike.16 Thus the Federal Government has seen fit to permit freedom of association among its employees but lesser jurisdictions have on occasion insisted that the government as a sovereign employer requires such an exclusive allegiance of its servants as to compel them to forego the right to share another corporate interest or loyalty devoted to the promotion of their material welfare. THE RIGHT OF AFFILIATION WITH THE GENERAL LABOR MOVEMENT

In order to achieve their objectives more effectively, most organizations of public employees have sought affiliation with the outside labor movement. On occasion this relationship has been desired simply Ibid. Congressional Record, "Ibid., p. 10797.

11

15

6 2 Cong., 2d Sess., August 13, 1912, p. 10799.

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on the ground that it provided the most expeditious means of promoting the economic welfare of government workers. In such cases the demand for affiliation is viewed as an essential strategic or protective device. Thus the promulgation of executive orders which prohibited direct appeals to Congress by public employees or their representatives resulted in an accentuation of the drive for affiliation with the American Federation of Labor and the utilization of its resources as an indirect means of expressing the position of public employees before legislative bodies. The National Federation of Post Office Clerks was the first union composed exclusively of government employees which was affiliated with the labor movement. It was chartered by the American Federation of Labor in 1906. Its Constitution declared that the trade union movement, as exemplified by the American Federation of Labor is the best, most practicable and lawful method for advancing the interests of all wage earners. Therefore we desire to be and to remain in full affiliation with that body. Postal organizations have tended increasingly during the past forty years to affiliate with the A. F. of L. and only a small number of independent groups, principally among the clerks and rural letter carriers, remains in existence. Approximately two-thirds of the postal employees now belong to associations affiliated with the American Federation of Labor.17 They are organized into seven unions representing clerks, carriers, railway mail service employees, rural letter carriers, special delivery messengers and, since July 12, 1946, postal supervisors. The recent affiliation of this latter group of Postal employees with the A. F. of L. furnishes an interesting case in point of the factors which impel civil servants to seek affiliation with the outside labor movement. The National Association of Postal Supervisors had been an independent union for many years. Several attempts to secure affiliation had been unsuccessful although committees had been periodically appointed to study the issue and make recommendations to the membership at its regular conventions. Affiliation was rejected decisively in the 1944 convention but the question continued to provoke vigorous discussion in the association's journal, the Postal Supervisor,18 Various arguments were advanced to support the position of each side. It was generally agreed that affiliation would materially assist the consideration of measures affecting the postal service by permitting a common front of postal unions before administrative officials and 17 18

Postal Supervisor, November 1944. Ibid., and immediate subsequent issues.

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legislative committees. The effective coordination of employee organizational activity was seen to demand either the service-wide acceptance or repudiation of an affiliated status. The latter alternative was clearly impractical in view of the entrenched strength of the affiliated unions. On the other hand it was pointed out that the supervisors constituted but an insignificant proportion of the total number of postal employees (12,000 among 350,000) and that affiliation might result in the disregard or even sacrifice of their interests in the event of a conflict with the preponderant number of employees. To cite but one possibility, the higher-paid supervisors might favor a salary increase on a percentage basis whereas the lower-paid carriers would probably seek a flat sum adjustment which would exceed that which would accrue to them from a service-wide percentage revision. The achievement of a common front might accordingly deprive supervisors of an opportunity to call effective attention to the uniqueness of their position. Despite these objections, however, a majority of the supervisors apparently concluded that the benefits to be derived from affiliation exceeded the potential disadvantages. They voted at their 1948 convention in Chicago to apply for admission into the American Federation of Labor. The organization was immediately chartered as the National Association of Supervisors and became the seventh postal union to be affiliated with the Federation. 19 Affiliation with the labor movement is sometimes sought not only as a useful or necessary expedient in the accomplishment of economic objectives but also on the less concrete although equally important ground of its role in promoting the solidarity of labor groups regardless of their public or private status. At its first constitutional convention, the United Federal Workers of America20 announced as one of its fundamental purposes the development of "a sense of identity between the Government worker and his fellows in industry." 21 Its Constitution thus proclaimed its resolve "to join with the rest of organized labor in its efforts to achieve a better life for the working men and women of this country." 2 2 Local unions were urged to affiliate with city, county, state, or regional Industrial Union Councils of the Congress of Industrial 18 See the Union Postal Clerk, official journal of the National Federation of Post Office Clerks, July 1946, p. 8. 50 The title or this organization was changed in 1946 to the United Public Workers of America upon the amalgamation of the federal, state and local CIO public service unions. 21 Officers' Report, Convention Proceedings, UFWA, 1940. 23 UFWA Constitution, Art. II, Sec. II.

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Organizations.23

An emphasis upon affiliation in these terms differs from the perspective in which this issue was regarded by the older postal unions. Affiliation with the labor movement appears to be motivated in this case not only by the conviction that working conditions in the government service and in private industry are determined by essentially identical factors but also by the belief that working classes in general have a mutual interest in various political and economic problems which should not be obscured by the fact of public or private employment. That this conception of the appropriate function of the labor movement in the public service conflicts with the conventional idea of civil service neutrality may be observed at this point and reserved for later consideration. The attempt of organizations of public employees to affiliate with the outside labor movement has not gone unchallenged by public authorities. The several objections to affiliation may be discussed briefly before an appraisal is made of their individual merit. Paramount among them has been the fear, expressed by Senator Root during the debate on the Lloyd-La Follette Act, that affiliation might entail the assumption of "an obligation that imposes . . . the duty to turn against (the) country the forces of coercion." 24 Senator Sutherland voiced the additional apprehension that affiliation might not only lead public employees to strike against the government employer in order to secure the satisfaction of their demands but that it might enable the American Federation of Labor to call upon the postal employees . . . as an affiliated organization . . . to engage in a sympathetic strike against the Government of the United States in order to bring pressure to bear upon private employers.25 Although the act confirmed the right of postal organizations to affiliate with the general labor movement subject to the express stipulation that no obligation was thereby incurred which would require them to strike against the Government and despite the fact that strike action was never contemplated nor engaged in by any affiliated postal union, reports of the Postmaster-General, as Sterling Spero has pointed out, continued to oppose affiliation as a "menace to governmental authority." 2 8 Following the Boston police strike in 1919, the Congress passed a law which forbade policemen and firemen of the District of Ibid., Art. VIII, Sec. VI. * Congressional Record, 62 Cong., 2d Sess., August 13, 1912, p. 10793. * Ibid., p. 10794. M The Labor Movement in a Government Industry, p. 221. 0

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Columbia from affiliating with the labor movement by denying them the right to associate directly or indirectly with any organization which regarded the strike as a legitimate method of achieving its objectives.27 Not only legislators and administrative officials but independent associations of public employees have occasionally expressed opposition to affiliation on the ground that it might involve civil servants in strike action. Thus the United National Association of Post Office Clerks, unaffiliated rival of the National Federation of Post Office Clerks, has declared that "affiliation . . . can have but one object and that is to threaten the government." 28 The desirability of affiliation has been further questioned on the ground that it creates a dual loyalty which menaces the disinterested and impartial performance of public duties. For this reason civil servants directly responsible for the maintenance of law and order are occasionally denied the right to affiliate with the outside labor movement. Law enforcement officers may be required to suppress civil violence and in this task they must discharge their duties with strict neutrality. Their organization into affiliated employee unions might introduce dangerous elements of class bias and partisanship. In like manner employees of government agencies established to mediate and resolve labor disputes in private industry cannot reasonably expect to gain public confidence in the objectivity of their efforts if through affiliation with the labor movement they identify themselves with one of the parties at interest. Three additional objections to affiliation merit specific mention. First, it has been urged that the pressure of outside influences "may have the effect of arousing a spirit of mischief . . . and . . . break down and put into chaos everything like discipline." 29 In expressing its opposition to the proposed statutory guarantee of the right of affiliation sought by employee unions, the Post Office Department in 1912 declared that the consequences of such action would "embarrass and hamper the operation of the service." 30 Secondly, it has been asserted that affiliation would inevitably involve a measure of participation in politics prohibited to civil servants and an injection of political considerations into personnel manage" 4 1 Stat. 363 ( 1 9 1 9 ) P.L. 245, 76 Cong. 1939. Cited by Leonard D. White, Introduction to the Study of Public Administration, p. 348. w Remarks of Senator Crawford in the Congressional Record, 62 Cong., 2d Sess., August 10, 1912, p. 10795. ''Ibid., p. 10676. 28

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system.31

ment which would threaten the integrity of the merit This criticism would become of crucial significance if the labor movement in general evolves into a formal political party or becomes identified with the political ideology of one major party. Under these circumstances public-service unions might conceivably find themselves in opposition to the policies of a particular administration and the resultant conflict between the corporate and public loyalty of their members might imperil the operation of a neutral and responsible bureaucracy. Finally it has been alleged that affiliation compromises the welfare of public employees in favor of the interests of more powerful unions composed of private workers. The United National Association of Post Office Clerks has claimed, for example, that, although thousands of postal workers paid dues to American Federation of Labor affiliates throughout the period 1925-1945, no important upward salary adjustment was gained during this twenty-year period.32 The cultivation of a sympathetic public opinion was thus held to be more effective in securing improvements in working conditions than the pressure which the outside labor movement was able to exert on behalf of the public employees. Thus the union journal declared: "Our friendly contacts with the public is a mightier weapon than any organization of crafts." 33 The President of the independent National Federation of Federal Employees, which severed its connection with the American Federation of Labor in 1932, has pointed out that inasmuch as government employees form but a small part of the total organized labor force it is inevitable that when the interests of the bulk of the membership of either the American Federation of Labor or the Congress of Industrial Organizations do not coincide with the interests of Federal employees, the latter must be ignored or their interests set aside.34 President Steward alleged specifically that the American Federation of Labor had opposed both the extension of field classification in the Federal Service which had been proposed in the closing report of the Personnel Classification Board in 1931 and the reorganization bills introduced during President Roosevelt's second term despite the fact that these measures had generally received the enthusiastic endorsement of Federal employees. In his testimony before the Commission of Inquiry appointed by the Social Science Research Council to investiSee discussion of Political Activities in Chap. VII. " Post Office Clerk, March 1946, p. 27. "Ibid. M President Steward's Report in the 1939 N F F E Convention Proceedings, 51

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gate personnel conditions in the public service, Mr. Steward further asserted that the American Federation of Labor's handling of the classification problem had shown not only a persistent lack of sympathy with the objectives of its affiliated public employee union but a distressing failure to comprehend the fundamentals of "what had always been considered by our organization as our paramount issue." 35 The Executive Council of the Federation was accused of having acted arbitrarily in neglecting to consult the then affiliated National Federation of Federal Employees whose membership included more than "eighty five per cent of all the employees who could be affected" 38 by the classification legislation in question. Such action, it was concluded, rendered meaningless the guarantee of autonomy contained in the constitution of the American Federation of Labor and compelled the severance of an affiliation "not only working against our best interests, but doing so in an arbitrary and unintelligent manner." 87 The advocates of affiliation deny that the relationship necessarily involves the pernicious consequences alleged by its opponents. Thus the connection which the latter sought to establish between affiliation and strike action is attacked as both illogical and contrary to experience. During the debate on the Lloyd-La Follette Act, Senator Reed found it necessary to point out repeatedly that the mere act of affiliation did not impose a potential strike obligation upon a newly chartered constituent member of the American Federation of Labor or of any other existing labor organization. There is no obligation taken by any member of any labor organization . . . that requires the members . . . to respond to a call for a strike, unless that call comes from the head of their own organization.38 The Federation cannot by the terms of its constitution require an affiliate to engage in a sympathetic strike; such action is only taken directly by the various unions whose autonomy in this respect is unqualified. Following an exhaustive study of strikes in public employment Ziskind concluded: "The fear that unity with trade unions in private industry will lead to sympathetic strikes by government workers has not been supported by experience." 39 The record of strikes 35 Minutes of Evidence, p. 59. "Ibid. 87 Federal Employee, November 1931, p. 4. " Congressional Record, 62 Cong., 2d Sess., August 10, 1912, p. 10796. " Ziskind, One Thousand Strikes of Government Employees, p. 195.

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in the public service indicates, on the other hand, that neither the American Federation of Labor nor the Congress of Industrial Organizations has demanded or encouraged direct or sympathetic strike action by affiliated unions of government employees. The strikes and strike threats which have occurred have resulted almost without exception from the independently arrived at decisions of the public service unions.40 The fact that the great majority of associations in the public service have voluntarily sought affiliation with the labor movement would appear to deny the validity of the argument that affiliation exacts a tribute disproportionate to the benefits received. The fact that the postal service did not receive a general pay increase for twenty years is of course as much a criticism of the ineffectiveness of the independent as it is of the affiliated organizations. In so far as the withdrawal of the National Federation of Federal Employees from the American Federation of Labor is concerned, it should be recalled that the Federal union by the admission of its own leadership was critically aided in its early years and materially helped throughout its history by the A. F. of L. Moreover affiliation with any organization necessarily implies a considerable degree of continuing compromise between the diverse interests of the constituent members. Employee associations form confederations for the purpose of promoting their common as well as individual interest and in the process of achieving these aims, the welfare of some particular group may occasionally suffer. Affiliation has appeared to offer to its proponents a number of positive advantages which merit particular comment. They have contended that, as a matter of practical necessity, it is indispensable to preserve a reasonable degree of employee independence from administrative domination. It was for this reason that the postal clerks first affiliated with the American Federation of Labor in 1906. "The very act of affiliation" stated Sterling Spero, "has been looked upon as a sort of declaration of independence of departmental tutelage." 41 The substantial handicaps under which public employee unions normally operate make affiliation a desirable arrangement from the point of view of organizational effectiveness. The general renunciation of the strike, the numerous restrictions placed upon their political activities 40 See Chap. VII for a more exhaustive treatment of the strike problem in the public service. The issue has been discussed at this point only in so far as it relates to the question of affiliation. " The Labor Movement in a Government Industry, p. 294.

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and their disfranchisement in the District of Columbia combine to make government employees particularly vulnerable to political and administrative domination. The evidence appears to substantiate the opinion that the so-called independent associations in the postal service were in fact under the virtual control of department officials.42 On the other hand the National Federation of Federal Employees is at least as free of administrative domination as its rival affiliated counterpart, the American Federation of Government Employees. The former organization, however, is perhaps in a unique position among public service unions. Its prestige is impressive; its leadership and contacts are unexcelled and its program is so basically conservative that it would rarely arouse administrative hostility or suspicion. Other associations with a more militant program and with objectives which go beyond those of the older unions might well find themselves in a more precarious position unless they received the support of the general labor movement. Affiliation has further been defended as a means of bringing public and private employees to a mutual awareness of their respective economic interests. Private workers like all taxpayers will normally tend to oppose the levying of additional taxes which may be necessary to support an increase in the public payroll. A labor movement internally informed, however, of the objectives of affiliated public employees may be less reluctant to oppose their demands than if government workers remained isolated from contact with private employee groups. Indeed affiliation provides a direct means whereby the programs of public employee unions may be more effectively advanced through collaborative action. Wages in the public service are often dependent, for example, upon rates which are established in private industry and affiliation affords government employees a voice in the councils of those organizations which are instrumental in determining private wage levels. Thus affiliated public-service unions are entitled to representation on state labor federations and central local councils. This relationship is of particular importance to certain civil service occupational groups whose wages are statutorily fixed in accordance with prevailing rates in private industry. Affiliation contributes significantly, however, toward enhancing the effectiveness of all public employee organizations by rendering them valuable assistance in their lobbying activities, publicity, financial problems, and in the provision of expert personnel in organizing local branches. In an address before the International Brotherhood of Electrical "Ibid.

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Workers in 1941, Mr. Gordon Clapp, then general manager of the TVA, declared that the issue of affiliation had been extensively discussed by those persons responsible for drafting the employee relationship policy which was subsequently adopted by this government enterprise. Among the important factors which contributed to the ultimate decision to permit affiliation was a widespread conviction that employee groups which were not connected with organized labor might, in view of their immature leadership, uncertain status, and lack of established prestige, approach their functions in such a manner as to "over-emphasize the little irritations" which are so damaging to administrative efficiency and employee morale. By the same token it was felt that experienced labor leaders could be relied upon with greater confidence to adopt a more understanding outlook derived from long familiarity with labor problems and thus direct collective staff efforts toward essential rather than trivial issues. 43

The contention that the affiliation of public servants with the labor movement creates an intolerable division of allegiance between their duty to the state and their attachment to their trade unions goes deep to the roots of the problem of loyalty in modern society. If no distinction is drawn between the nature and extent of the allegiance required of the soldier, policeman, postal employee, clerk, and mechanic in the government service, then the discipline necessary to effective administration becomes incompatible with the interposition of private corporate loyalties. It has been suggested previously, however, that the plural nature of modern society inevitably develops a multiplicity of loyalties among its members. The composition of the bureaucracy furnishes some exceptions to this general social condition. The state must clearly exact the sole allegiance of its military establishment and of civil servants engaged in tasks essential to its vital interests. Such undivided loyalties are less forthcoming in other branches of the public service. Affiliation should be prohibited at the point where it threatens the impartial performance of official duties. It does not, however, create a division of loyalty; the plurality of allegiance exists irrespective of affiliation for the civil servant is both a citizen and an employee as well as a member of various other social groups. His association with the labor movement simply provides a specific economic interest with a more adequate opportunity of expression. It is precisely in this sense that meaning may be given to the viewpoint that individual and collective allegiances frequently complement one another rather than clash in irreconcilable conflict. The loyalty of a "October 28, 1941 (mimeographed copy).

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group of individuals to an association which expresses their interests in some specialized aspect of their lives rarely exhausts the sum total of their potential devotion to causes of collective concern. Citizenship itself may thus not only embrace but derive its very richness from a multiplicity of loyalties. The allegiance which the individual owes the state may be "unified," to borrow Mary Follets term, 44 in the sense that it is compounded of a number of loyalties arranged and coordinated, if necessary, in a hierarchy of value, but not "undivided" in the sense that it inherently excludes all other loyalties as incompatible with its own. It is only in the event of a challenge to its authority or of an intrinsic incompatibility between public duties and group affiliations that the state may properly deny the legitimacy of other loyalties. The formulation of policy in this matter should not be derived from general presuppositions concerning the public service viewed as an undifferentiated whole. The threat to impartiality should be real and clearly recognizable before affiliation is prohibited. Public employees engaged in government labor relations agencies furnish an obvious case in point. Testifying before the House Committee on the Civil Service, Mr. Robert Silagi, chairman of the legislative committee of the association of employees in the National Labor Relations Board, remarked: The nature of the work done by the Labor Board requires that its employees be completely impartial in handling the cases brought before the Board by affiliated unions and for that reason the National Labor Relations Board Union has remained independent and unaffiliated with either the American Federation of Labor or the Congress of Industrial Organizations.43 The possibility of such potential partiality is not readily apparent in many other segments of the public service. Labor relations policies based upon the fear that the affiliation of clerks or mechanics with the outside labor movement will introduce dangerous elements of class bias in government employment and impair public confidence in the neutrality of the bureaucracy may be unsubstantiated in fact and operate simply to deprive employees of appropriate machinery for the collective consideration of their needs. The desirability of affiliation will depend again upon the purposes and direction assumed by the labor movement in the public service. In the United States where organized labor has not developed a socially revolutionary aspect, the question of affiliation presents a basiThe New State, New York, Longmans, Green, 1918, pp. 312 ff. Hearings, House Committee on the Civil Service, H.R. 2497, 79 Cong., 1st Sess., May 1945, p. 176. u

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cally different issue from that which was encountered in France where significant segments of the trade-union movement embraced a program of militant syndicalism or in Great Britain where the labor movement became connected organically with a specific political party. Organized labor in the United States may conceivably undergo a fundamental transformation and become more politically articulate even to the extent of forming a separate political party or aligning itself irrevocably with one of the existing parties. Labor unions in general have developed political interests and ambitions whose scope and implications greatly exceed the aspirations of the labor movement envisaged during the era of Samuel Gompers. It is perhaps less well known that this reorientation in outlook has also manifested itself in marked fashion in the activities and objectives of a few public employee organizations. The specific issue of political activity will be examined subsequently and the propriety of civil service affiliation with a politically conscious and possibly partisan labor movement will there be explored in greater detail. In general, however, public employee unions have pursued a nonpartisan policy toward political issues and have refrained from participation in political campaigns. Under these circumstances, at least, the deprivation of the right to affiliate with the labor movement would seem to constitute an unnecessarily burdensome restriction upon associational activity in public employment. THE CLOSED AND UNION SHOP IN PUBLIC EMPLOYMENT

The closed and union shop have generally been repudiated as an inadmissible form of employee organization in the public service. Municipal jurisdictions have frequently been denied the right or considered themselves without authority to enter into labor agreements or even to proclaim unilaterally a public labor policy which would make the joining of an employee association a prerequisite to employment.46 The issue, however, is far from resolved. The most celebrated dispute which it has provoked in public employment has been centered in the continuing effort of the Transport Workers Union in New York City to obtain an acceptance of the closed shop as well as recognition as the exclusive bargaining agent for all employees within its jurisdiction. In this particular case, consultation between employee representatives and administrative officials failed to produce any satisfactory solution to the issues at stake. The courts were then called upon to define the legal limits of the city's authority to conclude labor agree" Charles S. Rhyne, The Power of Municipalities to Enter into Labor Contracts, National Institute of Municipal L a w Officers, Report 76, 1941.

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ments with its employees. In Petrucci v. Hogan,47 the court virtually, although indirectly, declared the closed shop illegal in municipal employment. The circumstances of the case are as follows: Following the public acquisition of the subway systems, some of its employees resigned from the Transport Workers Union. When their homes were picketed by union members, suit was brought to enjoin such picketing as unlawful on the ground that such action was devoted to the accomplishment of unlawful ends. In issuing the injunction the court declared that the provisions of Article V Section 6 of the State Constitution which provided that civil service appointments "shall be made according to merit and fitness" were incompatible with a public labor policy which made appointment depend not upon "merit and fitness" but upon "membership in a labor organization." 48 To remove doubt as to the illegality of both the closed and union shop the court decided further that removal as well as appointment were matters which could only be determined by civil service law and regulations and that the causes for which employees might legally be discharged could not be construed to include a refusal to join a labor union. The issue of the closed shop received a momentary prominence in the Federal Service during the early years of the present century. The outcome of a case in the Government Printing Office served decisively to affirm the open-shop principle in Federal employment. The circumstances of this celebrated incident are recounted in the Twentieth Annual Report of the United States Civil Service Commission.49 In 1903 the International Brotherhood of Bookbinders established a de facto closed shop in the Government Printing Office and even succeeded in securing the discharge of employees who had been expelled from the union. On May 18, 1903, Mr. William A. Miller was removed from his position four days after his expulsion from a local union. A letter addressed to Mr. Miller by the Public Printer, Mr. F. W. Palmer, specifically stated that he had been dismissed from public office solely because of the loss of his union membership. The Civil Service Commission requested his reinstatement on the ground that he had been discharged in violation of Section 2 of Civil Service Rule XVI which provided only for such disciplinary removals as would promote "the efficiency of the public service" and declared that it did " 2 7 N.Y.S. ( 2 d ) 718.

"Ibid. 10

U.S. Civil Service Commission Report, 1903, pp. 147-150.

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"not consider expulsion from a labor union . . . to be such a cause as will promote the efficiency of the public service." 50 The matter was brought to the attention of President Theodore Roosevelt who not only directed the immediate reinstatement of the discharged employee but denounced the closed shop as an intolerable form of public employee organization. Federal personnel policy whereever it is explicit on the subject, has invariably affirmed the principle of the open shop. To cite but two examples: Regulations of the Navy Department prescribe that employees "may organize, join or refrain from joining any employee group without interference . . . discrimination" and make it "mandatory that employment of any worker will not be contingent upon his membership or non-membership in an employee group." 51 The Tennessee Valley Authority, which has developed the most progressive labor relations practices in the Federal Service, declared in its Employee Relationship Policy that no employee of the Authority and no one seeking employment shall be required as a condition of employment, transfer, promotion or retention in service to join or to refrain from joining any organization . . . of employees . . . there shall be no discrimination against representatives of employees of the Authority nor shall employees suffer discrimination because of membership or non-membership in any organization or association of employees. In more general terms, the proscription of the closed shop appears warranted in view of the threat which it contains to the preservation of a bureaucracy responsible to the people at large and not subject to control by a special interest group. An observer, markedly sympathetic to the aspirations of the labor movement, has thus condemned the closed shop in the public service as both "unnecessary and dangerous" on the ground that it "drives toward a merger of government and union bureaucracy in a combination of power that is dangerous for the public, democracy, and the workers." 52 The circumstances of the Miller case amply serve to confirm this judgment. The charges brought against Miller by the union are extremely relevant in this respect. It was alleged that he had directed certain employees under his supervision to bind fourteen books a day "knowing that those members were instructed by the union not to exceed ten books a day, thereby injuring the interests of your fellow "Ibid. 51 Naval Civilian Personnel Instructions, 23 June 1945, Sec. 60, pp. 1, 3. 63 Lewis Corey, The Unfinished Task, New York, Viking, 1942, p. 298.

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members." Similar injuries to his fellow employees were again asserted to have issued from the fact that he had submitted samples of a less expensive style of binding to the Post Office Department the acceptance of which would possibly have resulted in substantial economies. The case, of course, shows the closed shop in its most pernicious aspect as a device to protect a vested interest in curtailed productivity as well as form of employee organization which accords to union officials an arbitrary control of the job status of the membership to the point of compelling the discharge of a capable employee who cannot conscientiously accept union rules which foster socially wasteful labor practices. It would be unjust to assert that the present unions in the public service would generally seek to abuse the privilege of a closed shop in this manner. But the danger is one to which no government can reasonably be expected to submit. 53

Public employee organizations understandably may fail to appreciate those considerations of public policy which render the closed shop inadmissible in government employment. From their point of view it is perhaps more relevant to point out that this particular status is substantially less vital to the protection and promotion of the economic interests of the civil service than to labor groups in private industry. The closed shop was sought originally as a strategic defense against employer attempts to undermine wage standards established by collective action or to destroy effective union organization by individual bargaining and the hiring of nonunion workers. These motives as well as the opportunity to engage in discriminatory practices are largely absent in the public service. The public promulgation of wage rates creates a uniformity which cannot readily be violated. It is true that the very fact of relative security from attack by a hostile employer may impel public-service unions to press for some form of the closed shop as a protective corporate device to sustain an otherwise dwindling staff interest in organizational activity. Conditions of this sort, as Macmahon has suggested,54 are most likely to emerge with troublesome impact in the event of the public assumption of private enterprises in which trade unionism has become firmly and extensively established. In such cases the demand for the closed shop may be born of a sense of futility or desperation with a situation in which a formerly powerful association has been reduced to virtual impotence. By the same token a claim motivated by such considerations may not be pursued if staff organizations receive official recognition and are "20th Annual Report, U.S. Civil Service Commission, 1903, p. 148. M Political Science Quarterly, June 1941, p. 196.

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vested with responsibilities which would direct their energies into constructive efforts to improve the lot of the rank and file and to contribute to the more efficient operation of the enterprise in which their members are engaged. Should the closed shop ever become a vital issue in public employment, a comprehensive reorientation of public policy would be required. It is doubtful whether the unions would consider the attainment of this objective worth the price which would almost inevitably be exacted. The government would be obliged to look closely to the internal aspects of trade union government and to ensure its freedom from the presence or even suspicion of influences deemed socially undesirable. Discriminatory restrictions upon membership would of course have to be removed. The closed shop, moreover, would render it necessary to establish financial accountability to a degree hitherto uncompromisingly resisted by the labor movement. Unions would in brief lose their private character and become quasi-public organizations subject to intensive government regulation. Such virtual "corporatism" might possibly be regarded by some politically conscious unions as establishing a bridgehead for the radical transformation of the state into a socialist society under workers' control. If so, the possibility should be realized and those concerned with the preservation of the existing social order should prohibit the introduction of arrangements which would operate toward this end. But experience has pointed to the much greater likelihood that under such circumstances employees would not emerge in a controlling position but would rather suffer the oppressive consequences of state domination. The interests of labor unions in the public service as elsewhere require that they remain above all voluntary private associations. A demand for the closed shop might invite consequences which would threaten the autonomy essential to their freedom. It may be, as John R. Commons has written, that it is "to the advantage of every man in the service to go into the organization as soon as he is employed," 55 but it is the continued responsibility of the union to demonstrate this advantage to the satisfaction of those eligible to membership. The overwhelming majority of those employed at the TVA may be members of various unions but the remaining few per cent apparently still entertain conscientious reservations or even irrational prejudices concerning union affiliation. Admittedly they are "free riders" and enjoy the benefits without contributing to the cost of a comprehensive system of collective bargaining. On the other hand the government cannot and M

Labor and Administration, p. 109.

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in practice does not seek to utilize this unconvinced residual element as a means to depress working standards or as an entering wedge for the destruction of employee organizations. Under these conditions unions can reasonably demand no more than a free opportunity to persevere in their efforts to obtain within their ranks a complete but voluntary enrollment of all eligible employees. A democratic state can concede no less in the light of its obligation to safeguard corporate freedom and no more in the interests of that preponderance of authority over all other associations which has been posited as essential to its survival and to the fulfillment of its purposes. THE PROBLEM OF MAJORITY REPRESENTATION IN PUBLIC SERVICE UNIONISM

In private industry the provisions of national and state labor legislation generally oblige employers to recognize for the purposes of collective negotiations those unions which represent a majority of the employees in appropriately designated bargaining units. This practice has rarely been adopted in the public service. Even if a particular association contains a clear majority of the organized or of the total number of employees in a given jurisdiction, public policy has generally denied it any special representative status. It has rather proceeded upon the assumption that equal recognition must be granted to all associations, large and small, established or in process of formation. The struggle of the Transport Workers Union in New York City for recognition by the Board of Transportation as the exclusive bargaining agent for transit employees provides an outstanding case in point. The labor policy established by Mayor La Guardia was firmly opposed to any grant of sole collective-bargaining rights to any single union.56 Clearly representing an overwhelming majority of the operating employees of the transit system, the Transport Workers Union demanded recognition as the dominant employee group as soon as the city purchased the transportation facilities from private owners. The union had pressed originally for the maintenance of the closed-shop contracts which had been in effect with the private operators but this claim was abandoned following its unequivocal rejection by the municipal authorities and by the courts. In 1946 Mayor O'Dwyer appointed a committee of three persons to study the problem of labor relations in the transit system and to submit recommendations for their improvement to the Board of Transportation. Mr. William H. Davis, former chairman of the Nam State, County and Municipal Workers of America, 1941 Convention p. 13.

Report,

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tional War Labor Board and a member of the Mayor's committee, proposed that the Board of Transportation give "proper weight to the number of employees represented by each organization so as to give the greatest possible amount of satisfaction to the largest number of its employees." 57 This plan was enthusiastically received by the T W U which claimed to represent 23,105 of the 29,000 operating employees. It was endorsed by Mayor O'Dwyer who submitted it to the Board of Transportation for consideration. The Board rejected the proposal by a vote of two to one on April 25, 1947. 58 Mr. Davis, who was a member of the Board, cast the sole vote in its favor. In its place a resolution was adopted in support of the existing policy of "absolute impartiality" in dealing with employee unions. 59 The Federal Government in common with other public employers has generally maintained an indiscriminate open-door policy toward employee associations. The existence of rival unions and the vigorous competition among them is both a cause and consequence of this longestablished practice. Unions will insist upon the preservation of this impartiality at least until they have attained a position of unchallengeable dominance within given jurisdictions. Even if a union should succeed in organizing a majority of the employees in any particular operating unit, its claim to a preferred position in dealing with administrators will be opposed by other organizations which may contain as many members within the entire agency or in a principal subdivision. In the absence of formally established consultative machinery the designation of employee representatives according to a rational scheme of selection has never been undertaken. Should the present inter-union rivalry eventuate in the elimination of the weaker organizations and in the creation of strong representative associations, the resultant demand for exclusive recognition or for a preferred status may compel a modification in existing policy. Under such circumstances the present system of indiscriminate recognition or "absolute impartiality" toward all associations may prove as conducive to widespread employee dissatisfaction and troublesome labor relations as it has in the municipal transit system in New York City. Evidences of this transformation may already be perceived in the Postal Service. The gradual emergence of the National Federation of Post Office Clerks to a position of dominance 57

New York Times, April 26, 1947.

68Ibid. M

Ibid.

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service

among organized postal clerks and the attendant decline in strength and prestige of the rival United National Association of Post Office Clerks has led the president of the former union to request recognition by the Department of that organization representing a majority of the employees within each branch of the Postal Service.60 The demand was refused and the Department reiterated its intention "to recognize its employees and their organization whether in the majority, minority or individually."61 Public personnel policy has generally adhered undeviatingly to this policy.®2 COLLECTIVE BAKGA1NING IN THE PUBLIC SERVICE

In an oft-quoted statement President Roosevelt once declared: The process of collective bargaining, as usually understood, cannot be transplanted into the public service. It has its distinct and unsurmountable limitations when applied to public personnel management. The very nature and purposes of Government make it impossible for administrative officials to represent fully or to bind the employer in mutual discussions with Government employee organizations. The employer is the whole people who speak by means of laws enacted by their representatives in Congress. Accordingly administrative officials and employees alike are governed and guided, and in many instances restricted, by laws which establish policies, procedures or rules in personnel matters. Particularly, I want to emphasize my conviction that militant tactics have no place in the functions of any organization of Government employees.63 This announcement has assumed such importance in the development of employee relations policies in the public service that a close scrutiny of its content and of the inferences which may properly be drawn from it appears warranted. In the first place it does not purport to bar the admissibility of all collective bargaining in the government service. It is concerned rather with the attempt to transfer indiscriminately to public jurisdictions those particular practices which have developed in private industry. Thus the President's statement cate00 Letter of Mr. Leo George of June 5, 1 9 4 3 to Mr. K. P. Aldrich, First Assistant Postmaster General, See Union Postal Clerk, August 1943, p. 1. 61 Ibid. 62 The possibility of its modification will be considered in detail in the concluding chapter in the course of an attempt to outline proposed methods of collective consultation in public employment. 63 President Roosevelt's letter to Mr. Luther Steward, President of the National Federation of Federal Employees, August 16, 1937. The italics are mine.

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gorically denounced the resort to strikes or other types of militant action by government workers. But it is illogical to conclude that the possibility of collective negotiation between managerial personnel and employees is precluded because of the inadmissibility of strike action. The right to strike may be curtailed or even denied in certain instances in private industry, as in public employment, and yet permit substantial scope for collective bargaining. Negotiations conducted under circumstances which do not permit a resort to the strike perhaps may not warrant the appellation "collective bargaining." In this case some distinguishing term to describe the processes of employer-employee consultation may be devised. Secondly, the President's assertion that joint consultation in public employment proceeds within peculiarly narrow bounds inasmuch as administrators lack authority to enter into conclusive agreements with employees under their jurisdiction refers rather to the scope than to the essential feasibility of collective bargaining. Admittedly this competence may be rigidly confined in many matters. The statutory determination of employment conditions often precludes the exercise of effective administrative discretion. But it is a rather simplified view of public personnel administration which asserts that the "employer is the whole people who speak by means of laws enacted by their representatives" if such laws are construed to encompass in detail the innumerable and complex conditions of public employment. In the vital matter of wages, for example, the legislature has delegated to administrative officials the authority to fix the pay of public industrial employees. Discretion in this matter is made subject only to a very general statutory standard. In fact existing procedures permit a substantial degree of consultation with employees in the final determination of rates.64 Even in instances in which the exercise of such delegated authority has required ultimate legislative approval, as is the case in the Government Printing Office, this final sanction has not constituted a vital part of the ratefixing process. In brief, administrative officials may represent the sovereign employer partially, if not fully, and bind him contingently, if not conclusively, in joint conferences with employees. The Whitley Council experiment in Great Britain revealed that such arrangements are quite compatible with the preservation of ultimate legislative control and unimpaired administrative responsibility. The existence of Whitley machinery [writes J. L. Robson], has not impaired ministerial responsibility and in consequence there is M

See Chap. IX.

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ministerial responsibility to depart from any agreements reached in the Council. At the same time . . . it may be assumed that there will be no rejection save in exceptional circumstances.65 .

The legality of labor agreements in the American public service will depend in the first instance upon their constitutionality. The provisions of various state constitutions may so explicitly define the basic conditions governing the establishment and functioning of the civil service as to remove broad aspects of employment from the area of negotiation. In fact such constitutional stipulations combined with statutory restrictions may virtually eliminate the possibility of collective bargaining in public employment. But these express limitations do not strike at the root of the constitutional problem of formal employee consultation within the public service. Procedures are generally available for their amendment. Whether the state may engage in collective bargaining with its employees and in so doing not involve itself in an inadmissible delegation of inalienable public authority to a private group raises a more fundamental question. The authority of municipalities, for example, and presumably of other public jurisdictions, may not be surrendered by contract or otherwise to private corporations or groups of individuals.66 Applying this principle of public law to the conduct of public labor relations, the Attorneys General of several states have ruled that state and local authorities may not conclude contracts with labor unions.67 A recent decision of the Court of Appeals of Maryland implied that such contracts may be declared invalid as an inadmissible delegation of administrative authority to a private group. In Mugford v. Mayor of Baltimore the court held that the Department of Public Works could not bind the City, by contract, in any particular relative to hours, wages or working conditions, either as to union employees, or as to all employees . . . To the extent that ( these matters ) are left to the discretion of any City Department . . . the authorities cannot delegate or abdicate their continuing discretion.68 65 "Whitley Councils in the British Public Service," 3 Journal of Public Administration 12 (New Zealand), June 1940. M See E. McQuillin, Municipal Corporations, 2nd ed. rev., Sec. 1271. m Charles S. Rhyne, Labor Unions and Municipal Employee Law, Washington, National Institute of Municipal Law Officers, 1946, pp. 135-136. 6 8 4 4 Atl ( 2 d ) 745 ( 1 9 4 5 ) one of the three decisions by the Maryland Circuit Court of Baltimore City which declared invalid certain provisions of contracts between the City's Department of Public Works and an A F L Union of municipal employees. See Rhyne, Labor Unions and Municipal Employee Law, for the complete texts of these decisions.

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If collective bargaining in the public service involves a surrender of public authority to private groups, the resulting agreements would clearly be objectionable on constitutional grounds. The opinion of the United States Supreme Court in the celebrated Schechter case apropos the improper delegation of legislative authority to private trade associations might readily be extended to encompass collective labor negotiations in which the terms of public employment were in fact fixed by private action. Denying the authority of Congress to delegate its legislative authority to trade or industrial associations or groups so as to empower them to enact the laws which they deem to be wise and beneficent for the rehabilitation or expansion of their trade or industries, [the court declared that] such a delegation of power . . . is utterly inconsistent with the constitutional prerogatives and duties of Congress. 69 Judicial decisions have not thus far been directly concerned with the constitutional aspects of collective bargaining in public employment. The fact that signed collective agreements covering vital conditions of work have been in existence in several Federal agencies for a number of years would seem, however, to warrant the assumption of their constitutionality. For joint conferences with employees and even the existence of formal and written agreements with representative employee organizations do not necessarily endow private groups with virtual legislative or executive competence. The procedures which govern the conduct of negotiations and the consummation of agreements should be sharply distinguished from the manner in which trade associations were authorized under the National Recovery Act to promulgate codes of fair trade practices in substantially unilateral and virtually uncontrolled fashion. Collective bargaining in the public service might conceivably assume a pattern which would issue in an intolerable challenge to public authority. It is by no means inevitable that it must develop in this manner. The actual balance of power may theoretically run the gamut from official domination of the entire process to public helplessness before strongly organized employee groups. In fact, however, the consultative arrangements which have developed reveal almost universally that the preponderance of authority rests with administrative officials who may with virtual impunity refuse to conclude agreements or even to negotiate with employees if they consider such action contrary to public policy. 70 On the other hand, the various pro" Schechter Poultry Corp. v. U.S. 295, U.S. 499 (1935). TO See Chap. X.

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cedures which have evolved reflect the familiar and inescapable fact that bargaining over conditions of employment in some form or another is an inevitable phenomenon in a society where labor has achieved the right to organize. If staff consultation and the reduction of understandings to written agreements do not necessarily constitute an unlawful abdication of governmental authority, it may be contended that such action involves at least a suspension of official discretion for the duration of the agreements in question. The need for that "continuing discretion" to which the court referred in the Mugford case71 thus raises the problem of the propriety of labor agreements which in fact place into abeyance if they do not involve an absolute surrender of the exercise of public authority. Such allegedly uninterruptible discretion has not appeared as an indispensable ingredient of sovereign authority in other areas of governmental activity. The right to exercise certain public powers for specified periods is occasionally abrogated. The legality of such action has been upheld in cases involving public taxing powers as well as the authority to regulate public utility rates.72 Specific statutory recognition of the propriety of similar conduct in the field of public labor relations may be found in the 1935 law of the state of Washington which authorized "any city of the first class . . . to enter into contracts for periods not exceeding one year, with its employees." 73 Basic legislation of this kind has rarely been forthcoming. For this reason experiments in collective negotiation which have fallen subject to judicial scrutiny have generally been interpreted in the light of available relevant statutes such as civil service laws, labor relations acts, or general public law. Lacking express legal sanction, the propriety of collective bargaining in the public service has frequently been challenged. Civil service laws have been held to preclude its admissibility by reason of their allegedly exhaustive determination of the conditions of public employment, and labor relations acts which normally contain explicit provisions exempting public employees from their scope have been offered as evidence of a clear legislative intent to bar such arrangements in public employment. This point of view has been well expressed by a prominent official of the National Civil Service Reform League. 44 Atl. (2d) 745 (1945). See Home Telephone Co. υ. Los Angeles 211 U.S. 265 (1908); Vicksburg v. Vicksburg Water Works Co. 206 U.S. 496 (1907); New Orleans Gas Co. v. La. Light Co. 115 U.S. 650 (1885). 73 Washington Laws, 1935, C.37. 71

73

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89

There are two systems of employment in the United States, one for private industry, and the other for government services. The system of civil service employment, established by merit system laws differs fundamentally from the system of industrial employment regulated by labor relations laws . . . Appointing officials have no authority by bargaining to bind appropriating or legislative bodies to any contract not authorized by law.74 A statement even as unequivocal as this which seeks to establish a basic distinction between permissible labor relations in public and private employment does not, however, deny the possibility of collective bargaining in the government service. It simply declares that only such contracts may be entered into as are authorized by law and in so doing clearly implies the admissibility of these agreements under legal sanction and asserts further that labor legislation designed for conditions peculiar to private industry does not provide a fit guide to authorities responsible for the management of the public bureaucracy. Labor relations policies in this latter area must, of course, take sufficient cognizance of the unique circumstances surrounding the discharge of public functions. Such conditions will restrict the scope of collective negotiation but in so doing they will not necessarily render consultative action impossible. Labor agreements in private industry are subject to legislative stipulations governing the procedures by which contracts may be negotiated and to restrictions upon the content which they may legally assume. Minimum wage and anti-discrimination laws remove certain aspects of private employment from determination by collective bargaining. The point is elementary but merits explicit restatement in view of the prevalent tendency to deny the possibility of collective negotiation in the public service on the ground that it would involve a fundamental clash with existing civil service legislation. The basic principle governing the relationship between staff consultation and statutory requirements is clear. Understandings will be valid unless they violate the provisions of law whether the latter are contained in civil service acts, general laws, or labor legislation. Even at the present time it is a gross simplification to assert that existing merit system, compensation, and classification laws exhaustively define the conditions of public employment. To the extent that they do not, collective negotiation between public officials and organized employees becomes feasible. Thus in Chapín v. Board of Education of Peoria, it was held 74

Good Government,

May-June, 1941, p. 22.

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that, although a closed-shop agreement between the Board of Education and an AFL Fireman and Oilers local union was invalid, "many of the provisions of the contract are clearly within the discretionary power of the Board." 75 In Mugford v. Mayor of Baltimore the same point was expounded at greater length. It does not follow that every agreement with a labor union by municipal officers is unlawful . . . Agreement upon a fixed policy, for a reasonable period, in regard to wages, hours . . . may promote stability and regularity. But the preferential and exclusive features common to labor union contracts must in the field of government be altogether avoided . . . There must be no strike; and no closed shop.76 The provisions of existing labor relations acts become relevant at this point. The preponderant number of these measures specifically exclude public employees from their scope.77 Their exemption means only that they may not as a matter of right demand the opportunity to bargain collectively with their employers. Thus in Railway Mail Association v. Corsi,78 the United States Supreme Court declared statutory discrimination of this type represented a reasonable differentiation between the categories of public and private employment. Hence it was not a denial of the constitutional right of equal protection of the laws. But these laws do not forbid public authorities from engaging in such joint consultative practices as may be within their discretion and which the legislature has neither expressly nor by implication prohibited. Where general labor legislation has not specifically confined its applicability to private employment, the courts have, in one instance, at least, extended the protection of the law to public as well as private workers. In Local Union 876 υ. Labor Mediation Board,79 the Supreme Court of Michigan declared that a state labor mediation act directed toward the resolution of labor disputes in public utilities included within its scope publicly as well as privately operated enterprises. We can see no basis for holding that a city operating a street lighting plant is not subject to the law . . . The nature of the ownership will make no difference in the deleterious effect of the labor dispute on the general public. The act was intended to alleviate 5 Municipal Law Journal 24 ( 1 9 4 0 ) . 9 Municipal Law Journal 46 ( 1944 ). 77 49 Stat. 450 ( 1 9 3 5 ) ; 29 U.S.C.A. 152 ( 1 9 4 1 ) . See also Pa. Laws, 1937, No. 294 as amended; New York Laws, 1937, C.443 as amended. 78 326 U.S. 88 ( 1 9 4 5 ) . ™ 294 Mich. 629 ( 1 9 4 0 ) . 75 76

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labor difficulties in general and not only in disputes in privately owned factories and utilities.80 This single decision does not warrant the conclusion, however, that the practice of collective bargaining in public employment cannot proceed in the absence of specific authorization in law. Administrative officials in some jurisdictions may engage in joint consultation with employees in the exercise of their discretionary authority in personnel administration. Collective bargaining agreements have been concluded, for example, in a number of Federal agencies without any specific statutory sanction.81 Moreover, their expression in the form of bi-lateral and even signed agreements has not been challenged in the courts. In an address delivered several years ago, Mr. Gordon Clapp, present head of the Tennessee Valley Authority, asserted unequivocally that the TVA "operates under a signed agreement with labor; it is legal and it has proved workable." 82 A somewhat more complex situation presents itself in the case of municipalities and units of similarly limited jurisdiction. The competence of such public authorities is, of course, considerably more restricted than that of the Federal Government. It is generally confined to those powers which are specifically conferred by constitutions, statutes, charters, and other like instruments supplemented by such additional jurisdiction as may be reasonably implied in or incident to powers expressly granted.83 It is a matter of conjecture as to whether courts, in the absence of explicit authorization, will hold that public officials may conduct negotiations with organized employees and conclude agreements by virtue of their implied powers. The widespread acceptance of collective bargaining in private industry may conceivably lead courts to declare that the efficient conduct of municipal affairs implies the power to enter into such agreements. In this connection the opinion of the court in the Mugford case is extremely timely. A broad national policy to foster unionization vigorously prosecuted has produced a labor market closely organized . . . none would be so foolish as to deny the result which has been achieved. Cities are not bound by the Wagner labor relations act, but cities must compete for labor in the same labor market with persons and Ibid., pp. 629, 635. See Chap. X. 82 Address before the International Brotherhood of Electrical Workers, St. Louis, October 28, 1941. 83 J. F. Dillon, Municipal Corporations, 5th ed., Sec. 237. 80 81

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corporations who are so bound, and . . . may be forced to make a virtue of necessity.84 On the other hand, in the case of Miami Water Works Local No. 654 v. City of Miami, the court not only denied that any implied power could be found which would warrant the City of Miami to negotiate with a labor union but it asserted that whatever inferences might be drawn from relevant organic legislation pointed to a contrary conclusion. The charter of the City . . . contains no provision which even remotely suggests that the duly elected or appointed oiBcials . . . are under an obligation . . . to consult with the union or anyone else, in determining fitness for employment . . . or in fixing hours, wages or conditions of employment . . . Indeed all provisions of the charter are impliedly to the contrary.85 Again in the City of Cleveland v. Amalgamated Association of Steel, Electric and Motor Coach Employees et al., an Ohio Court ruled that the Transit Board of the City "had no power or authority under the constitution or laws of the State of Ohio or the charter of the City of Cleveland to enter into an agreement or contract with any of the defendant unions." 86 This decision was followed by the enactment of a law by the Ohio legislature which specifically conferred authority upon officials of publicly operated utilities to enter into contracts with employee unions provided that collective bargaining practices had been in effect prior to the public ownership of these enterprises.87 It seems apparent that the development of joint negotiations between organized employees and administrative officials will proceed uncertainly and unevenly if the determination of the basic decisions governing its permissible extent is left to administrative or to judicial decision. The absence of an organic law of public labor relations compels the courts to define the limits of action in this field. Grave doubts may be entertained as to whether this task should be assumed by the judiciary. Courts are increasingly called upon to decide questions relating to the legality of union recognition, affiliation, the closed shop, majority representation, the check off, and other issues relating to collective bargaining in public employment. In the absence of legislation framed with reference to these special problems, the courts must look to other statutory sources and to case law of dubious relevance. It would be hazardous in the extreme to attempt the evolution of a body 9 Municipal Law Journal 75 ( 1944 ). 26 So. 2d 194, 196 (1946). *· 10 Municipal Law Journal 22 ( 1945 ). 87 Ohio Laws, 1945, Sec. 258, July 18, 1945. 84

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of law governing the right of public officials to engage in collective bargaining on the basis of judicially contrived principles germane to other aspects of governmental activity. The distinction between proprietary and sovereign functions of government was principally evolved, for example, in the attempt to establish a measure of public liability for tortious acts of officials and for other purposes in the fields of taxation and contract law. It is of questionable value in the area of public labor relations. Nevertheless one lower court has refused to issue an injunction sought by a municipality to restrain striking employees of a municipal light and water plant from picketing on the ground that the municipality was engaged in a proprietary function and "as such has the power of and is liable to the same law as a . . . private corporation." 8 8 Normally, however, the courts may be expected to withhold approval of experiments in staff consultation or collective employee action which do not enjoy specific legislative sanction. They will probably not construe the implied powers of government, general labor legislation, or precedents from other fields of case law to provide adequate authorization for widespread collective bargaining in public employment. To act otherwise would be to indulge rather unduly in "judicial legislation" 89 in matters which call clearly and urgently for the formulation of a basic policy by the legislative and executive branches of government. The previously cited law of the state of Washington represents a unique instance of fundamental legislation addressed to this particular problem. Its quotation in somewhat greater extent is perhaps merited at this point as an indication of the direction which public policy may assume in this field. The statute authorizes any city of the first class . . . owning and operating a . . . public utility . . . to deal with and to enter into contracts for periods not exceeding one year with its employees, employed in the construction, maintenance and/or operation of such utilities, through . . . accredited representatives of such employees . . . concerning wages, hours and conditions of employment; Provided, nothing herein shall be construed to permit hours of labor in excess of those provided by law or conditions of employment otherwise prohibited by law. 90 88 Village of Celina v. Now, Docket 14383, November 27, 1941, Ohio Court of Common Pleas, Mecca County, cf. Rhyne, Labor Unions and Municipal Employee Law, p. 47. 88 See Mugford v. Mayor of Baltimore, 44 Atl (2d) 745 (1945). °° Mugford v. Mayor of Baltimore. The uniqueness of this statute was pointed out in the Labor Relations Reference Manual, IX, 901. In 1941 this law was "the only one of its kind in the United States."

CHAPTER

V

the structure and development of the labor movement in the public service T H E E X T E N T O F ORGANIZATION

THE extent of employee organization in the public service is difficult to ascertain. Accurate statistics are not readily obtained and available union membership data is occasionally unreliable. The coexistence of unions competing vigorously in the same jurisdictions for membership under circumstances which do not permit the selection of an exclusive bargaining agent representing the majority of the employees renders associations understandably reluctant to publicize membership figures. Moreover, unions in the skilled trades indiscriminately include public and private workers and do not distinguish between these two categories in their published membership statistics. Furthermore many so-called organizations of public employees are not trade unions in the conventional sense of that term but are rather welfare or professional associations concerned with such personnel issues as the preservation of the merit system and the improvement in material conditions of employment but meticulously eschewing the methods of trade unionism in the pursuance of their objectives. Statistics relating to unionism in the Federal Service reveal, however, that a considerable proportion of employees have joined associations which may properly be termed labor organizations. According to a Civil Service Assembly survey of 1939, 34 per cent, or 313,000 of the total number of 920,000 employees in the Federal Executive civil service were classified as union members.1 It should immediately be observed, however, that 61 per cent of these, or 190,000, belonged to associations in the Post Office Department. Whereas 66 per cent of the 1

Clapp, Employee Relations in the Public Service, p. 17,

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employees in this Department were members of long and firmly established organizations, only 19 per cent, or 122,000 of the total of 631,000 employees in other Federal agencies, had joined the three competing general unions in this area. Two of these associations had been chartered for less than a decade. In 1943, according to available data, 2 the postal organizations had increased their membership to 203,000 and the general unions had gained 16,000 members. In so far as unionism in state and local government is concerned, a number of employee organizations which vary considerably in strength, methods, and objectives have arisen during the past fifteen years throughout the United States. A 1937 survey reported that "all cities over 500,000 and almost three-fifths of the cities over 30,000 contain one or more of these organizations." 3 Ten years later one or more employee associations had been established in 98 per cent of the cities whose population ranged from 100,000 to 250,000. Public employee unions affiliated with the A F L or the CIO were found in 46 per cent of the 674 cities included in a 1947 survey conducted by the International City Managers Association. 4 The figures presently available indicate that two rival organizations, the American Federation of State, County and Municipal Employees ( A F L ) and the state and local branches of the United Public Workers of America ( CIO ) have recently made appreciable gains in membership. In 1937 approximately 47,000 employees were reported organized into 152 locals; 5 in 1941 membership had doubled to 94,000 and locals had increased to a total of 491; in 1946 these unions claimed 126,604 members in 1462 locals located in practically every state in the country.® VARIOUS TYPES OF UNION ORGANIZATION IN THE PUBLIC SERVICE UNIONS COMPOSED OF PUBLIC AND PRIVATE EMPLOYEES

The development of unionism among government employees forms an integral and continuous albeit minor part of the general history of the labor movement in the United States. The formation of craft unions in skilled trades has proceeded without regard to the public or private 2 Compiled from figures in the Handbook of Labor Unions, Florence Peterson ed., American Council on Public Affairs, Washington, D.C., 1944. * L . S. Moore, Municipal Year Book, 1937, p. 340. 4 2 9 Public Management 126, May 1947. 6 See Articles by A. S. Zander and Abram Flaxer, former presidents of these unions, in Public Management, September 1937, p. 260 ff. 'Officers' Report SCMWA ( C I O ) , 4th Biennial Convention, March 1946; President's Report, 5th Biennial Convention A F S C M E ( A F L ) , April 1946.

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employment of the membership. Statistics are unavailable which would reveal the proportion of public employees in these organizations but the building, construction, electrical, metal, and printing trade unions in the American Federation of Labor have always organized workers in navy yards and army arsenals of the Federal Government. Wages for public employees in these trades are usually established in accordance with the prevailing industrial rates for comparable work in the vicinity. Inasmuch as these rates vary in different localities and fluctuate within specific regions, organized public workers have generally preferred unilateral administrative wage fixing to legislative action because of its greater flexibility and responsiveness to diverse and changing economic conditions. The expansion of unionism in the government service has occasionally produced disturbing instances of inter-union jurisdictional strife. Conflicts of this kind have been particularly acute in the relationships between craft unions composed of public and private employees and those organizations whose membership is limited exclusively to government employees. The jurisdictional disputes have been accentuated by a further clash between two distinct bases of union organization. Associations in which membership is determined according to the nature of the work performed confront others in which the single fact of government employment provides the determining criterion of eligibility. The charter of the American Federation of State, County and Municipal Employees (AFL) authorizes it to organize public servants regardless of the type of work in which they are engaged unless jurisdiction has previously been granted to other unions affiliated with the American Federation of Labor. It would indeed be surprising if this exceedingly broad organizational latitude did not occasionally result in conflict with the older established craft unions which are so traditionally jealous of their elaborately defined jurisdictions. At its fifth biennial convention in 1946 the more comprehensively organized public union found it necessary to call attention to disputes which had already occurred with the International Brotherhood of Electrical Workers, the International Union of Building Service Workers, and various Federal Labor Unions within the American Federation of Labor. A resolution was adopted instructing the union's delegates to the next AFL convention to protest against and to attempt to secure the discontinuance of the "raiding" tactics of other associations.7 In the Federal Government the 7 See "A Decade of AFL Unionism in State, County and Municipal Service," Industrial Relations Branch, Bureau of Labor Statistics, U.S. Department of Labor, p. 7.

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withdrawal of the National Federation of Federal Employees from the American Federation of Labor was due in part to jurisdictional disagreements with other Departments within the Federation. 8 The opposition of the craft unions to position classification of government employees was based upon the fear that its extension would imperil the existing trade union structure built upon occupational or craft distinctions established principally by the organized employees rather than by public officials. CRAFT UNIONS COMPOSED EXCLUSIVELY OF PUBLIC EMPLOYEES

It was perhaps inevitable that during the formative years of the development of trade unionism in the United States along predominantly craft lines the early associations of employees in the public service should conform to the organizational pattern which prevailed in private industry. Unions whose membership consisted exclusively of government employees were formed in a number of jurisdictions in the second half of the nineteenth century. 9 The most active and successful of these associations arose in the postal service 10 although others were established among schoolteachers, fire fighters, and policemen. These organizations were usually affiliated with the outside labor movement. Even police unions maintained their affiliation with organized labor without significant public protest until the reaction which followed the Boston police strike of 1919 resulted in the widespread compulsory severance of this connection. These restrictions have gradually been relaxed in recent years and in 1946 the A F S C M E ( A F L ) reported that it had chartered fifty-six locals composed exclusively of policemen and that a separate police division had been formed to intensify organizational activity. 11 The letter carriers were organized in the Postal Service in the 1880's following a successful campaign of several local unions for the eight-hour day. The National Association of Letter Carriers became affiliated with the A F L in 1917. It presently constitutes the largest and probably most influential union in the postal service. Wolman reSee pp. 114 ff. for a discussion of this event. See Leonard White, Trends in Public Administration, New York, McGrawHill, 1933, pp. 283 ff. 10 See Spero, The Labor Movement in a Government Industry, for the definitive historical account of the early growth of these unions. The more important associations and the dates of their establishment are as follows: National Association of Letter Carriers, 1899; United National Association of Post Office Clerks, 1899; National Federation of Post Office Clerks, 1906; National Rural Letter Carriers Association, 1903; Railway Mail Association, 1 9 0 4 ; National League of District Postmasters, 1908; National Association of Postmasters, 1922. 11 "A Decade of A F L Unionism in State, County and Municipal Service," p. 4. 8

9

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ported an increase in membership from 11,100 in 1897 to 40,900 in 1923.12 In 1941 the association claimed a membership of 65,750.13 The advantages which organization brought to the letter carriers led subsequently to the widespread unionization of the postal clerks. A prolonged and as yet unresolved conflict over the issue of affiliation has impeded the emergence of a single organization of postal clerks comparable in effectiveness with that of the National Association of Letter Carriers. Since 1906 the United National Association of Post OfBce Clerks (independent) and the National Federation of Post Office Clerks ( AFL ) have each sought to organize the postal clerks in a competitive struggle marked by bitter recrimination and unrelieved by any genuinely conscientious effort to compose their differences. The former union was established in New York in 1899 and represented an amalgamation of two rival organizations which had been founded in 1890 and 1897 respectively. Although it was regarded for some years and apparently with considerable justification as a departmentally favored organization,14 it still claims to constitute the "real spokesman" of the postal clerks and the "activating power" behind efforts to promote their welfare.15 Depreciating the claims of its rival, the UNAPOC leadership has referred bitterly to the "persistent, inspired misunderstandings as to where credit should go for the legislation and other measures which since 1883 have improved the condition of post office clerks." 16 In 1941 it claimed a membership of 35,000 clerks in first- and secondclass post offices. For some years the UNAPOC has collaborated with other independent postal organizations, particularly the Rural Letter Carriers Association, and with such unaffiliated unions in other departments as the National Federation of Federal Employees in the coordination of their respective legislative activities. The success of the rival affiliated organization in increasing its membership has been responsible for a decline in the prestige and popularity of the older union and the desirability of amalgamation has frequently been discussed. A resolution was unanimously adopted at the 1933 UNAPOC convention in favor of a single association of postal clerks and a seven-man committee was appointed to draft a proposal for amalgamation and to 12 Leo Wolman, The Growth of American Trade Unions, 1880-1923, New York, 1924. 18 Public Administration Organizations, a Directory, Chicago Public Administration Clearing House, 1941. 14 Spero, The Labor Movement in a Government Industry, passim. 11 UNAPOC Handbook, 1941 ed., p. 1. " Ibid.

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enter into negotiations with the rival union. Meetings were held in December 1933 at which the president and secretary of the independent union tendered their unconditional resignations to take immediate effect in the event that a consolidation were achieved. The issue of affiliation with the outside labor movement was the principal stumbling block which led to the collapse of the negotiations. The UNAPOC representatives insisted that the question of affiliation should be resolved by a general vote of post office clerks and requested assurance that the A F L would not establish a rival union if the vote were in favor of independence rather than affiliation.17 The National Federation of Post Office Clerks whose membership was clearly greater than that of its rival refused to accept these terms principally on the ground that a majority of the organized clerks had already indicated their preference for affiliation in unmistakable fashion. Its representatives accordingly made affiliation an indispensable condition of any amalgamation. Until this issue is resolved, a single organization of postal clerks is unlikely to emerge. The National Federation of Post Office Clerks was formed in Chicago in 1906 and was affiliated from the outset with the AFL. Accumulated dissatisfaction with deplorable working conditions in post offices and widespread resentment with the failure of existing associations to obtain remedial action led to the formation of an aggressive clerks' organization under A. F. of L. auspices. 18 The NFPOC has unquestionably established itself as the stronger of the two postal clerk unions. In 1923 each organization claimed approximately 37,000 members. 19 In 1939, the NFPOC asserted that it had organized 45,625 or five out of every seven clerks in 3500 post offices throughout the country. 20 Some 48,000 clerks were alleged to belong to the organization in 1941 2 1 and a recent history of the union placed its membership in 1945 at 50,000. 22 In his report to the 24th Convention in August 1946, President George reported an all-time membership peak of 61,089 representing a gain of 11,096 since 1943. 23 Some indication of the organizational strength of the NFPOC may be found in the fact that it currently retains more 17 UNAPOC Pamphlet on the Amalgamation Question and Karl Baarslag, History of the National Federation of Post Office Clerks, Washington, D.C., 1945, pp. 181-182. 18 See Baarslag, op. cit., and Spero, op. cit., for the history of this association. 19 Wolman, op. cit., p. 133. 20 Leo George, President NFPOC, American Federationist, August 1939, p. 949. 21 Public Administration Organizations, a Directory. 22 Baarslag, op. cit., p. 198. 23 Convention Proceedings, p. 2.

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than twenty persons as full-time employees at its Washington headquarters. Its monthly publication, the Union Postal Clerk, has an average circulation of 60,000. This journal provides the membership with complete data on legislative activities and administrative regulations which concern the postal service. Rural letter carriers and railway mail clerks formed associations in the late nineties and early years of the present century. Organizations of postal supervisors and postmasters of the third and fourth class were established prior to 1910. By 1922, when the National Association of Postmasters was formed, the entire range of the postal service reflected the pronounced influence of associational activity among its thousands of employees. Craft unionism in the public service emerged in response to a number of factors which varied in different agencies and jurisdictions. In no instance were associations formed for the express or even implied purpose of engaging in collective bargaining in the presently understood sense of that term. Their creation was rather motivated by a more simple desire to achieve some concrete improvement in conditions of employment. Thus fire fighters established organizations primarily in order to secure a measure of financial protection against the unique hazards of their occupation. Their energies were accordingly absorbed in efforts to obtain death, disability and sick benefits, improved instruction and safer operational methods. Organization received its initial impetus among letter carriers primarily as the most effective means of achieving the statutory establishment of the eight-hour day which had previously been granted mechanics and laborers in public employment.24 The structure of the postal service made it particularly amenable to trade-union organization.25 It is a relatively large establishment and its employees perform types of work which can be sharply and rationally differentiated in such a manner as to form the foundation for effective craft unionism. The nationwide scale of operations facilitates the growth of numerous local unions. The occupational basis of organization has permitted the leadership to advance the welfare of a homogeneous class of employees by devoting their energies exclusively to its specific interests. For this reason the postal unions have proved more effective organs of employee representation than unions in other agencies in which the widespread diversification of occupations precludes such simplified staff organization and its attendant concentration of purpose and economy of collective effort. 24 25

Spero, Employer and Employee in the Public Service, p. 202. Lewis Mayers, The Federal Service, New York, Appleton, 1922, p. 546.

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INDUSTRIAL T Y P E 2 6 UNIONS COMPOSED EXCLUSIVELY OF PUBLIC EMPLOYEES

A third type of public-service union is exemplified by associations in which membership is open to virtually all civilian employees except higher level supervisory officials vested with major responsibility for administrative management. Members of such associations may be found in the lowest grades of the protective and custodial service and in upper branches of the professional service. Some of these groups may appear to be fundamentally differentiated from trade unions in private industry in view of the inclusion within their membership of minor supervisory officials who are generally ineligible to membership in labor organizations. Such apparent incongruities are the natural result of a bureaucratic structure in which the line of demarcation between employer and employee is less sharply defined than in private industry. All public workers are, of course, employed by a governmental authority and in a very real sense they are all employees. It is partly for this reason that managerial personnel has occasionally been permitted to join civil service unions. Administrators in the public service do share a common status with employees under their supervision. Levels of compensation, hours of work, retirement benefits, and other vital aspects of employment are determined for the entire civil service in accordance with statutes and regulations which apply indiscriminately among personnel of various levels of responsibility. Supervisory employees, especially those who occupy relatively minor positions, are thus led to join with other civil servants in organized efforts to secure improvements in their conditions of employment. Such activity may manifest itself in the formation of associations composed exclusively of managerial personnel, such as the National Association of Postal Supervisors which has become affiliated with the general labor movement, or it may result simply in the growth of union locals with a heterogeneous membership of government workers in various service classifications. The fact that significant job elements are common to the employ20 "Industrial" is here used in the limited sense of describing a form of trade union organization in which membership is open to all employees in a given firm or industry regardless of distinctions in the type of work which they perform. Unions in the public service in which the criterion of membership is simply employment by the government rather than the pursuance of a specific trade or occupation are accordingly designated as "industrial" in their structure. This term is purposely used instead of the more familiar ones, such as "general" unions or "service" unions because the fact of "industrial" organization has been a factor of basic significance in determining the shape and growth of these associations.

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ment situation of all civil servants should not obscure the equally important consideration that officials vested with responsibility for the management of the bureaucracy must be clearly distinguished from employees under their supervision. The proper discharge of their responsibility requires that these officials represent their ultimate employers without the interposition of a divided loyalty to a private association whose very raison d'être is to press demands the evaluation and satisfaction of which often depend upon the judgment of supervisory personnel. Some unions have accordingly denied membership to such government employees. Thus the constitution of the United Federal Workers provided that "officials having major responsibility for hiring or dismissal, or for personnel matters" shall not be eligible to membership.27 Other associations, such as the National Federation of Federal Employees, do not formally place such restrictions upon membership28 but provide that any member of the Federation who has "power to appoint, promote, or dismiss employees shall not be eligible to serve as officers, delegates, or on regular committees of a local union." 29 Such officials, however, are not prohibited from serving as national officers of the Federation.30 The vertical or industrial type organization of public service unions was developed originally as a matter of necessity in those areas of government employment which remained generally immune from the otherwise prevalent growth of trade unionism in private industry. Apart from the postal service and other skilled occupations over which established industrial craft unions claimed jurisdiction, the American Federation of Labor concluded many years ago that the organization of public servants on traditional craft lines, however theoretically desirable, was in fact impracticable of attainment. The prevalent whitecollar indifference or resistance to identification with the labor movement was primarily responsible for this condition. Organizational success demanded, moreover, that such unions as were formed be permitted to affiliate as autonomous groups with the AFL rather than become absorbed into the existing craft-union structure.31 The industrial type of union organization, although born of necessity, was defended in later years on somewhat more objective grounds. The president of the oldest union of this type in the Federal Service has enthusiastically endorsed this organizational principle on the ground that Art. III, Sec. 1 (a). NFFE Constitution, 1944, Art. III, Sec. 1. 29 Ibid., Art. VIII, Sec. 8. 30 Ibid., Art. V, Sec. 1. 31 See Harvey Walker, "The Formation of the NFFE," Public Personnel Studies (October 1941), pp. 130-135. 27

28

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no better leveling influence can be secured than to throw a group of employees of all categories together . . . and then encouraging them to work out their problems together, with the scientist and the charwoman, the customs inspector and the forest ranger, the clerk in the navy yard and the watchman on the highway project, all side by side.32 Associations developed on this basis can partially mitigate the sharpness of various prejudices inevitably present in any group whose membership is recruited from heterogeneous social and economic backgrounds. The fact that all employees frequently confront a common situation of official "neglect, prejudice and indifference" 38 provides a further justification of their organization into a single union. A comprehensive membership basis has again been defended on the ground that it alone can induce the mass of public employees to abandon whitecollar prejudices and affiliate with the rank and file of organized labor. The United Federal Workers of America has been particularly emphatic in pointing out that it is not essentially a white-collar union but that its membership includes hospital workers, freight handlers, laundry workers, food handlers, cooks, research personnel, scientists, and other skilled and unskilled occupational groups as well as clerical employees.34 Unions of state and local employees are organized on a similar basis. The American Federation of State, County and Municipal Employees ( A F L ) generally issues charters to groups employed in governmental organizational units such as departments or institutions irrespective of the individual members' occupations. "Each governmental subdivision, whether state or township is regarded as an organization unit." 3 5 Its rival counterpart, the State, County and Municipal Workers of America (CIO) has evolved a similar organizational pattern. "The average state, county and municipal employee," declared its President in 1940, "wants an organization that will embrace into one organization all of his colleagues in any particular division of the service of any locality." 36 Finally it should be observed that those factors which normally impel labor groups to secede from associations of broad jurisdiction and to form unions to promote their specific interests independently of those of other workers are largely absent in the public service. Industrial unions are continually confronted by the possibility of secessionist movements by groups which feel that they can obtain more advanPublic Personnel Studies (October-November 1930), p. 142. Federal Employee, January 1929, p. 4. " Federal Record, September 18, 1940. M Arnold Zander, Public Management, September 1937, p. 260. " Abram Flaxer, Public Management, September 1937, p. 262. 82 33

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tageous conditions of employment by independent action. In private industry these alignments or withdrawals are often determined by a calculation of the potential contributions which specific groups may make to the total bargaining strength of the organization as compared with the advantages which its members would receive either in the form of strike benefits or more usually as a result of their sharing in the increased wages which may be obtained through collective action. These considerations are not nearly as operative in the public service as they are in private industry. It is extremely difficult for any particular group of government employees to obtain concessions at the expense of others. Strike action to force the hand of public authorities cannot normally be resorted to by strategically situated groups. Wage arrangements moreover have tended increasingly to be established upon a service-wide basis in such a manner as to preclude individual or group favoritism. Adjustments must as a matter of public policy be conferred upon public employees in general and cannot feasibly be distributed in disproportionate fashion to groups of critical importance. Devisive tendencies among staff organizations are accordingly replaced by a concentration upon concerted pressure tactics and these are more effective when conducted by broadly rather than by narrowly defined and organized groups. An examination of the nature and growth of those outstanding employee associations which have been organized essentially along industrial type lines will perhaps clarify their status somewhat further and illustrate more concretely their potential importance in public personnel administration. THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES

The first national union of Federal employees excepting those formed in the Postal Service and exclusive of the organization of skilled workers in established craft unions was created in 1917 when the American Federation of Labor issued a charter to a group of Federal Labor Unions. These associations had been in existence for several years. In 1916 about fifty groups had received individual charters from the American Federation of Labor. The reluctance of white-collar workers to join employee organizations was principally responsible for their generally slow expansion in most government agencies. The American Federation of Labor declined to charter these groups as a national federation until their strength had increased so as to indicate at least a promise of lasting and effective organization. 37 To facilitate " See Harvey Walker, "The Formation of the NFFE," pp. 130-135.

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their progress the Federation provided these unions with the services of expert organizers. It is doubtful, however, whether their efforts would have been notably successful had it not been for the impetus furnished by several external conditions 38 which proved particularly conducive to organizational achievement. The increase in the wartime cost of living combined with a notoriously chaotic Federal pay structure which had not undergone any comprehensive adjustment since 1854 provided the stimulus needed to overcome white-collar indifference to unionization. To add affront to an already deteriorated and in some instances desperate economic plight, Representative William P. Borland led a vigorous Congressional movement for the establishment of a minimum eight-hour working day in the departmental service. The attack upon the existing seven-hour day provoked not only an unprecedented increase in organizational interest on the part of government employees but drew the American Federation of Labor into the field of public-service unionism with an unparalleled display of activity. A shorter working day had always been one of its paramount objectives and its attainment in the public service had come to be regarded widely as an exemplary situation which might in due time be extended to private industry. The defeat of the Borland program and eventually of Representative Borland himself accordingly became a matter of vital significance to organized labor. On September 17, 1917, forty-seven delegates representing 12,000 government employees met in Washington and formed a national organization affiliated with the American Federation of Labor. The union was designated as the National Federation of Federal Employees. 39 The jurisdiction of the new association was almost without parallel in trade-union practice. It was defined to include virtually all Federal employees except postal employees and industrial workers exclusively eligible to membership in an established union of the American Federation of Labor. The possibility of dual membership was thus recognized. Federal employees could belong to the N F F E and to another A F L union provided that the latter did not forbid its members to join other labor organizations. The severance of affiliation with the A F L in 1931 led the N F F E to extend even further the scope of its jurisdiction. According to the provisions of its revised constitution, as adopted by the seventeenth convention in 1944, any person employed in the civil branch of the United States Government, including departmental and Μ Luther Steward, "Civil Service Unionism," in Public Management New Democracy (New York, 1940). 30 Federal Employee, September 1917, p. 482; October 1917, p. 574.

in the

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field employees of the Post Office Department, was declared eligible to membership.40 An exception was made in the case of employees who were members of other unaffiliated service organizations. The membership of the NFFE has shown a steady and gradual increase although it has occasionally suffered appreciable losses during periods of declining Federal employment. The general expansion of trade unionism following the First World War, the acute economic plight of government employees in an inflationary period, and the promise of alleviation which organization seemed to hold combined to produce a total membership of 38,500 in 1920.41 The Federation played a leading role in securing the enactment of wartime bonus legislation. Forward-looking members of the organization, however, were not content with these admittedly temporary and palliative measures superadded to a hopelessly archaic classification system. They resolved to press for its fundamental reform as a major N F F E objective. The union's vigorous activities in this area were partly instrumental in securing the eventual appointment of the Congressional Joint Commission on the Reclassification of Salaries. In fact, the association was officially accorded representation on the various consultative committees which actively participated in the work of the Commission. Even though it performed outstanding services in this respect and although its recommendations were incorporated into the Commission's final report, the organization was soon confronted by a loss in membership. The establishment of classification was repeatedly delayed and substantially compromised. Congressional indifference or resistance to the rationalization of the personnel structure led many employees to lose confidence in the ability of the Federation to achieve its objectives. Indeed the very efforts of the NFFE on behalf of classification ironically induced considerable employee apathy. The concept of classification was only vaguely understood throughout the service and elsewhere in 1923. It was unrelated in any immediately discernible sense to those tangible material gains which organized employees customarily demand of their leadership. Public servants who would support an employee organization in order to achieve a temporary cash bonus were more reluctant to join a movement devoted to the achievement of a comprehensive administrative reorganization which, however desirable from the long point of view, could not readily be associated with their present economic well-being. Rank and file enthusiasm for the NFFE program declined somewhat and the membership dropped to 21,200 in 40 11

Art. III, Sec. 1. Wolman, op. cit., p. 113.

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1923. 42

On the other hand the organization had no practicable alternative strategy since Congress would probably have refused to pass further compensation legislation until at least the foundations of a classification system had been established. The general economic prosperity of the twenties contributed further to the lack of employee interest in organizational activity in the public service as well as in private industry. The depression of 1929 and its aftermath led to a significant growth in public-service unionism. The encouragement which public policy afforded to the expansion of trade unionism in general was reflected in the government service. The attempt during the early years of the depression to facilitate recovery through a program of rigid public economy provoked vigorous employee protest and compelled existing associations to conduct their activities with unusual militancy. Although pay cuts, compulsory and payless furloughs, and other economy measures were eventually introduced in the Federal Service, they were subject to ceaseless attack by employee organizations which sought at first to reduce their magnitude and eventually to secure their complete repeal. Government workers turned in increasing numbers to the N F F E and to its newly cartered A F L rival, the American Federation of Government Employees, as the most effective means to combat the retrenchment measures of the early thirties. The establishment of the National Industrial Recovery program cast the entire problem of public employee organization and activity into a different perspective. Projects to achieve recovery through an unprecedented volume of public expenditures led to an unusual expansion of the public payroll and to a corresponding rise in the membership of employee associations. Moreover the increasing acceptance of trade unionism as an economically desirable instrument to preserve needed mass purchasing power and as an essential institution in a democratic society had its repercussions in the public service as well as in private industry. In 1939 President Steward reported that the Federation's membership had exceeded 75,000 and that it contained approximately 700 active locals and 22 affiliated state and regional federations. 43 The fulfillment of the union's present ambition to enroll 100,000 employees will depend not only upon the size of the bureaucracy but upon the success with which the N F F E is able to meet the increasingly vigorous competition from rival affiliated unions. The achievements of the N F F E form an integral part of the history " Ibid. ""Objectives of an Employee Union," Personnel 1939), p. 7.

Administration

(February

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of Federal pay, classification, retirement, and merit system legislation which has been enacted since its formation in 1917. Its energies have principally been confined to these fields of personnel administration. Suffice it to observe that it played an important role in securing the bonus legislation of World War I, the preservation of the seven-hour day as the normal workday in Federal employment, the original retirement law of 1920, its amendments in 1928 and 1930 to provide for increased annuities as well as earlier optional retirement and more generous disability payments, its further liberalization in 1939 and 1942, the classification act of 1923 as well as the salary increases and improved administration of pay legislation provided for by the Welch Act of 1928 and the Brookhart Act of 1930, the restoration of pay cuts in 1934 and 1935 and the salary legislation of 1945 and 1946 which provided payment for overtime work uniformly throughout the Federal Service and conferred pay increases upon employees in most grades of public employment. Subsequent to 1931, of course, credit for the achievement of these measures, in so far as they were the result of employee organizational activity, cannot be allocated to any particular association and the claims of each to exclusive responsibility must be discounted.44 Nevertheless, these instances of NFFE activity provide an indication of the type and range of issues to which the organization has devoted the major part of its effort with considerable success. Other important functions include the settlement of individual grievances through a locally and nationally organized adjustment department, the provision of such welfare services as credit unions, group insurance, hospital guilds, and cooperative buying as well as the sponsorship of numerous social activities and the publication of an exceedingly informative and widely read monthly journal. In his study of various types of trade-union structure, Robert Hoxie developed a terminology which is perhaps useful in describing the essential corporate nature of the National Federation of Federal Employees.45 It would probably be classified in this analysis as a "business" union with a strong admixture of "uplift" elements. Its program is devoted to a rather narrow preoccupation with the unique problems of a particular group of employees to the exclusion of broader social issues which confront laboring classes in general. "Our approach" declared the President of the NFFE to its twentieth convention held in " For example, see Luther Steward's assertion in his report to the N F F E Convention in 1944 that the retirement legislation of 1942 was "largely designed by the National Federation of Federal Employees." Proceedings, p. 13. 45 Robert F. Hoxie, Trade Unionism in the United States, New York, Appleton, 1917, pp. 44 ff.

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1937, "is the same now as it was twenty years ago." The NFFE, formed under the auspices and in accordance with the trade-union philosophy of Samuel Gompers, has remained aloof from influences which have emerged elsewhere to challenge the strictly "bread and butter" outlook of traditional AFL unionism. Its leadership has explicitly pointed with pride to its steadfast refusal to . . . concern itself with . . . subjects which, however important or . . . interesting to individual members, are, nevertheless, not within the scope of the purposes for which the National Federation of Federal Employees was founded.46 In this respect, as will be noted below, it differs fundamentally in underlying purpose and method from its recently formed rival, the United Public Workers of America. Despite an "industrial" type of organization, it is basically a craft union in outlook. Even prior to its separation from the organized labor movement, its activities were confined to an almost exclusive preoccupation with public personnel matters. Its officials are equipped by experience and temperament to provide expert, technical leadership. As a result of my experience as a member of the Civil Service Commission, [declared Mr. Arthur S. Flemming to an NFFE convention], I can truthfully say that I know of no two persons who exercise more constructive leadership in the field of personnel administration . . . than your President and your Secretary-Treasurer.47 In their appearances before hearings of Congressional committees, the NFFE representatives typically submit expertly documented briefs the presentation of which often reveal a more intimate familiarity with minute details of legislative proposals than is shown by even the most active and experienced committee members. Within the field of public administration, the NFFE has conceived its interests to encompass a broad range of issues. In their promotion it has developed some of the more commendable attributes of craft unionism. Its spokesmen have persistently defended the civil service not only against the spoilsmen but also against frequently ill-informed and sometimes malevolently inspired attacks upon the public bureaucracy. Its publicity facilities have called popular attention to the achievements of distinguished public servants in various fields of endeavor. Its leaders have been quick to counter general accusations of administrative inefficiency and " President Steward's Report to the 1937 Convention. See Federal August 1937, p. 7. "Address, N F F E Convention, 1944, Proceedings, p. 33.

Employee,

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extravagance by demands for their concrete substantiation and by offering evidence which might show them to be ill-founded. The entire resources of the organization have been devoted to an enthusiastic and zealous promotion of the merit system and to the support of programs which would secure the extension of a career service in all fields of government employment.48 It is true, of course, that its motives in this respect are largely selfinterested. The maintenance of autonomous unionism in the public service is dependent in substantial measure upon the preservation of the merit system. Group objectives cannot readily be attained through concerted effort in a bureaucracy organized according to spoils principles unless union leadership betrays its responsibilities and becomes a party to a series of odious bargains with political leaders whereby concessions to employees are made in exchange for political support or employee demands are compromised in return for the extension of public favors to union officiais. Experience in the Federal Service points unmistakably to the conclusion that the NFFE, and other associations in the Federal Service, have never resorted to such tactics. They have rather joined with other interested groups in appealing to the civil servant's sense of professional pride and integrity. In seeking to cultivate this attitude among its members by means of educational programs, by the explanation and defense of the merit system in its publications, by the holding of essay contests among its membership, and through collaboration with civil service reform groups, the N F F E has acquired some of the elements of an "uplift" as well as of a "business" union in the narrow sense of the latter term. The organizational structure of the N F F E conforms to the conventional trade-union pattern. Conventions are held biennially and representation therein is based on the average per capita tax paid to the national organization during the preceding fiscal year.49 Subject to the decisions of the convention and the provisions of the constitution, an Executive Council composed of the President, Secretary-Treasurer, and a number of Vice-Presidents is designated as the governing body of the union and is vested with the responsibility of directing its policies.60 Revenues are derived from initiation fees, a per capita tax of thirty-five cents per member each month, reinstatement and charter fees, and special assessments limited to a maximum of fifty cents per member in any fiscal year.51 Local unions are chartered in cities and towns prinSee "Art. 60 Art. 51 Art. 48

Chap. VI. IV, Sec. 1, 2. V, Sec. 1, 2; Art. VI, Sec. 1. VII, Sec. 1.

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cipally upon a geographical basis. The national conventions of 1921 and 1935 authorized respectively the formation of State and Regional Federations. These larger organizational units are of particular importance to an association which relies upon lobbying activities as its primary operational technique. They serve as useful means whereby local contact with members of Congress may be centrally directed with maximum effectiveness. Of more importance than the familiar framework of trade-union organization is an appreciation of the unique circumstances which impel the membership of the NFFE to entrust its leadership with exceptional authority and responsibility. Adherence to democratic procedures which may formally be prescribed in a union constitution and the successful conduct of a lobbying program often collide with embarrassing impact. The exercise of pressure upon a legislative body demands a highly coordinated and flexible strategy. Timing is one of its most crucial aspects. The decision to remain adamant or to modify or withdraw a demand even of the most critical importance cannot readily be made the subject of extensive collective or public discussion. Labor negotiations in private industry possess a degree of flexibility unknown in the public service. Union members may demand announced concessions from employers and be willing to strike for their attainment. Again conferences may be protracted until a satisfactory settlement has been reached which can readily be made retroactive to a designated earlier date. Public employees confront an employer in a unique situation which drastically restricts the choice of methods. The general repudiation of strike action deprives them of the opportunity to press demands as militantly as private workers. Dilatory tactics may prove fatal to effective lobbying albeit successful in private negotiation. If a major objective of an employee organization has not been attained by the end of a particular Congress or even of a session, its subsequent reintroduction requires an organizational effort of substantial proportions which must begin anew at the elementary stages of the legislative process. To resume deliberations at the point were they were previously suspended may constitute a feasible and indeed prevalent practice in private industry but it is manifestly a less practicable arrangement in public personnel administration. The membership of legislative committees charged with the responsibility of considering civil service measures may change in composition and outlook with markedly greater frequency than managerial personnel which fixes company labor policy. The flexibility demanded of union leadership under such circumstances

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permits the rank and file of the membership to expect only the periodic submission of conduct to representative conventions for approval or rejection. Decisions of strategy and even of policy formation become largely the responsibility of the leadership. The growth of the NFFE has typified the development of a tradeunion government operating on the basis of such a broad and general mandate. Authority has not only been centralized in the National Federation but it has been concentrated in a single personality who has led the organization for over twenty-five years and whose decisions and attitude have played a dominant role in directing its growth and activities. Mr. Luther Steward's leadership has been virtually unchallenged since his election to the presidency of the union several years after its formation. 52 Protests against allegedly arbitrary action or charges of inept or excessively timid leadership have occasionally been leveled against him but his detractors have never been successful in dislodging him from his position. A further distinguishing feature of the governmental structure of the NFFE may be found in those provisions of its constitution which impose specific and rigorous restrictions concerning the eligibility of persons for national office. Article 5 thus provides that no member shall be eligible for election as an officer unless he is a bona fide employee of the United States . . . at the time of such election, unless he resigned from such employment for the purpose of engaging in the active work of this Federation and since his separation been engaged continuously therein. 53 Future leadership is thus effectively restricted to former government employees. Such a requirement may be commendable from the point of view of securing persons experienced in the problems of public personnel administration. Its wisdom, however, is questionable on a number of other grounds. The recruitment of leadership exclusively from personnel within the service may tend to produce an excessively narrow professional or class point of view. Leaders of the unaffiliated NFFE are not only removed from an organic connection with privately organized labor but they are in effect denied any prior contact with the outside labor movement. Such a background may render them extremely competent and informed in their understanding of the technical aspects of public personnel administration but it may ill-equip 51 Eldon Johnson, "Unionism in the Federal Service," unpublished thesis, University of Wisconsin, 1938, p. 244. "Art. 5, Sec. 4.

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them with other attributes essential to effective trade-union leadership. The labor movement has increasingly perceived the need for training leaders on a professional and career basis. The education and experience which these persons receive and the point of view which they absorb are not intended to prepare them for administrative positions in private industry but rather for the assumption of the specialized responsibilities of trade-union management. Conversely the training received by junior administrators in the public service and in private industry is not designed to produce persons suited in outlook or sympathy for a career in the labor movement. Unions of public servants which insist upon the recruitment of their leadership exclusively from the ranks of government employees may do themselves a great disservice. If they select persons from the upper levels of the hierarchy, and the professional demands of modern trade-union management virtually confine the area of selection to persons normally found in these groups, they run the risk of obtaining intelligent and informed leaders who are lacking in the attitudes essential to the vigorous leadership of independent employee organizations. On the other hand the recruitment of officials from the lower occupational levels will perhaps secure persons more sympathetic to the aspirations of the labor movement but inadequately trained to assume the important tasks of leadership. The opinion may perhaps be ventured at this point that the restricted leadership policy of the NFFE has jeopardized its future stability. An unaffiliated employee organization is under a particular compulsion to develop capable successors to the existing management. Unions connected with the labor movement enjoy at least an everpresent source of official personnel albeit not expertly trained in the specific labor problems of the public service. Thus the CIO was able to furnish the newly formed United Federal Workers with a temporary administrator upon the occasion of a union reorganization. The American Federation of Government Employees would perhaps never have survived had it not been for the assistance extended to it by the AFL. Of course the NFFE is a long-established union and its leadership is firmly entrenched. It is possibly confronted, however, with a long-run problem of even greater urgency than those which have beset the more recently formed organizations. The principle of majority representation cannot protect the predominant status which the NFFE has achieved at least in some areas of the Federal Civil Service as long as public policy requires that equal recognition be accorded all employee groups regardless of their individual numerical strength. A

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change in leadership might well imperil its survival in the ensuing organizational conflict. The present situation would accordingly appear to demand not only the early development of effective substitute leadership but the removal of constitutional barriers which critically narrow the recruitment of qualified candidates. THE N F F E SPLIT WITH THE AMERICAN FEDERATION OF LABOR

The history of unionism in the Federal Service during the 1930's was marked by two events of outstanding importance. The first of these incidents was the withdrawal of the National Federation of Federal Employees from the American Federation of Labor in 1931; the second was the establishment of the United Federal Workers of America in 1937. The earlier episode resulted in a severance, albeit reluctantly undertaken, of the only significant union of white-collar workers in public employment from formal contact with organized labor. The incident inflicted a severe setback to the cause of unionism in the public service. The bitter rivalries which were subsequently engendered lowered the prestige of staff associations and militated against the effective promotion of collective aims through concerted and unified action. The dispute between the NFFE and the AFL is generally considered to have been caused by jurisdictional conflicts and by a failure to reach agreement with respect to the pressing issue of position classification in the field service. Certain AFL craft unions feared that the membership pretensions and activities of the NFFE represented a potential and on occasion real encroachment upon their jurisdiction. From the point of view of union organization a substantial number of government employees occupy a dual job status resulting from the fact of their public employment and their pursuance of an established trade. The uniqueness of their situation was recognized in the NFFE Constitution which permitted the union to admit to membership skilled workers who were eligible to and already members of existing craft unions. Outright absorption was thus precluded but the way was opened to a duality of allegiance which the older associations regarded with suspicion. The classification system which had been established in 1923 provided the concrete issue out of which this latent conflict finally erupted in such a manner as to split the solidarity of the labor movement in the public service. Employees in skilled trades had long been classified according to the independently evolved standards of craft unions. Membership was thus grouped into the familiar categories of apprentice, journeyman, and master craftsman. As early as 1923 the craft unions protested

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against the proposed statutory extension of the Federal classification system to public employees who were eligible to membership in their locals according to conventional craft distinctions. Classification on the other hand was a paramount objective of white-collar employees who were largely unorganized, whose duties and responsibilities had never been defined according to any rational scheme, and whose rates of pay had never been properly adjusted to their functions, training, and skill. The NFFE did not advocate the specific extension of the classification system to groups of government workers engaged in skilled trades and internal conflict within the AFL on this issue was accordingly avoided. The union, however, campaigned persistently and energetically for the general broadening of the classification act to include employees in the field service. The 1929 Closing Report of the Wage and Personnel Survey of the Personnel Classification Board recommended the enactment of legislation which would extend the classification system to the field service and establish a central review by the personnel classification board of the decisions of field wage and classification agencies.54 The principal emphasis of the report was obviously directed toward the resolution of the classification problem as it affected public servants not eligible to membership in craft unions. The recommendations of the Board, however, did not specifically exclude skilled trades from the scope of proposed classification reform. For this reason the report was regarded as a potentially grave menace to the tradition of craft unionism and the AFL leadership felt obliged to oppose its implementation uncompromisingly. In the 1931 AFL Vancouver Convention, Mr. John P. Frey of the Metal Trades Department led the attack of the craft-union leaders upon proposed Congressional legislation embodying various recommendations of the Personnel Classification Board. It was claimed that the measures would classify "mechanics, helpers and apprentices" who were customarily under trade-union jurisdiction55 and would impede the effectiveness of wage boards by reserving to the Personnel Classification Board a right of final review over their decisions.56 In brief it was alleged that the enactment of these proposals would "cause a disruption of all trades." 57 " Report of the Wage and Personnel Survey, Personnel Classification Board, Washington, Government Printing Office, 1929. K Proceedings, p. 310. M Ibid., p. 125. "Ibid.

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Instead of this trade union movement . . . determining what shall be the journeyman's work and what shall be the helper's work, this Personnel Classification Board [argued Mr. Frey in his appeal to the delegates], would attempt to settle all of the jurisdiction questions which have ever arisen and which may arise in the future.58 A public personnel project long regarded as desirable by employees, administrative officials, and impartial experts was thus made the object of a fundamental attack by organized labor because it was construed to represent governmental intervention in and possibly compulsory resolution of jurisdictional matters which unions had long and jealously regarded as their exclusive preserve. The basic objective of the proposed legislation seems indeed to have escaped attention amidst the indiscriminate repudiation of the classification program by the AFL Executive Council. Its report on this issue declared: "The main purpose of the bill is apparently to regulate the classification and fix the wages of those who perform . . . work in a recognized trade or craft." 59 Such was simply not the case. Only a very minor part of the measures in question concerned craft and mechanical employees. The inflexible opposition of the craft unions cannot wholly be dismissed as the product of hasty and ill-informed action born of a failure to appreciate the complexity of the classification problem in the public service. The Personnel Classification Board was neither designed nor equipped to consider the status of organized skilled labor in government employment. Its members were selected primarily with a view to their background in personnel administration. Its advisory council, as Mr. Frey relevantly pointed out, was composed of educators, businessmen, and professional personnel experts but did not include any representation from organized labor.60 In arriving at its decision to recommend the extension of the classification system to include certain crafts the Board had neglected even to consult the representatives of trade unions long and firmly established in these fields of employment.61 The suspicious reaction of organized labor becomes more understandable when viewed in this light. It would indeed have been surprising if such circumstances did not fail to produce a biased outlook ill-suited to the objective appraisal of the classification problem. Mr. Luther Steward, President of the NFFE, defended the classifiIbid., p. 316. "Ibid., p. 125. 80 Ibid., p. 317. " Ibid. M

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cation program before the AFL convention and introduced a resolution calling for its endorsement. Approaching the issue with characteristic realism, he beseeched the craft-union delegates to refrain from a categorical repudiation of the basic concept of classification but to take exception only to those specific provisions of the proposed legislation which would affect them adversely. He pointed out that 80 per cent of the public employees concerned were beyond jurisdiction of the craft unions and that an unequivocal condemnation of the measure would operate to destroy a classification bill that is of great value and that is eagerly sought by thousands of Government employees, who . . . are far more numerous than those employed in mechanical trades 62 [and] to place the AFL . . . on record as opposing personnel classification.63 On its part the NFFE could not in all conscience officially proclaim itself opposed to a classification system whose very introduction in the Federal Service it had been so instrumental in achieving and whose extension it had persistently sought as a cardinal union objective. "Classification for us," declared its Secretary to the delegates, "is the life-blood of our organization." 64 In view of its vital importance to the NFFE, the charge brought by Mr. Steward to the effect that the Executive Council had acted with unseemly haste seems justified. To have recommended the adoption of a resolution in opposition to classification "without even notifying the majority group that such a course was to be taken," 65 was in unhappy contrast to the tradition of trade-union autonomy generally respected by the AFL. Of greater moment, the accusation raised questions of more fundamental urgency concerning permissible relationships between an organization of public employees and a private interest group. The maneuverings at the convention leave much to be desired from the point of view of responsible and democratic trade-union government. At the very minimum they warrant the exercise of considerable caution before adopting a public program which would recognize employee associations as responsible, representative bodies in the absence of adequate measures to assure the freedom of service organizations from external domination. One phase of the convention proceedings is particularly significant " Ibid., 83 Ibid., M Ibid., " Ibid.,

p. 319. p. 323. p. 327. pp. 323-324.

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in this respect. The resolution of the Metal Trades Department expressing disapproval of classification was referred to the committee on legislation. A majority report of the committee, adopted by a decisive margin of fourteen to three, recommended its further consideration by the Executive Council with specific "instructions to call the various interested affiliates together." 66 A minority report of the same committee called, however, for the approval of the original recommendation of the Executive Council opposing the proposed classification bill. The minority members introduced a motion before the convention which set aside the majority report for future consideration. The motion was carried and the assembled convention adopted the minority report by a vote of one hundred and forty to fifty.67 In the face of this decisive rebuke to one of its most cherished objectives, the leadership of the NFFE determined to sever affiliation with the AFL and proceeded without delay to present the issue to its membership for final decision. A referendum was ordered by the Executive Council and the membership supported the decision to withdraw by a vote of 16,635 to 11,406.68 The NFFE became an independent organization as of December 1, 1931. Ironically, the report of the AFL Executive Council to the next union convention in 1932 reflected a more temperate and informed view of the classification problem to which the NFFE could hardly take exception. The AFL's Executive Council asserted that the Federation energetically supports the principle of classification and is thoroughly in favor of the enactment of classification legislation . . . exclusive of employees whose wages are or should be fixed by wage boards or such classes or crafts who do not desire it.69 This was precisely the position which President Steward had unsuccessfully urged before the previous convention. The Council, moreover, proceeded explicitly to recommend "that classification . . . be extended to the field service." 70 It seems apparent from this almost precipitous reversal that the dominant powers within the AFL were not basically opposed to the principle or practice of classification in the public service. Perhaps Ibid., p. 310. Ibid., p. 329. M Federal Employee, January 1932, p. 3. M Report of the Executive Council to the AFL Convention 1932, Proceedings, p. 61. nIbid. M

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the split with the N F F E was simply the result of misunderstanding and of the unreasonable and uncompromising bitterness which sometimes accompanies disputes in which the parties lack a clear and informed awareness of the issues involved. Certainly the AFL craft leaders before the Vancouver convention evinced a very imperfect grasp of the essential purposes of classification. On the other hand the conflict served to bring into sharp focus fundamentally different conceptions of trade-union organization and it is these which may possibly have furnished the basic impetus toward the severance of affiliation. The NFFE was a successful and growing industrial type union. Although the dispute occurred in 1931, several years prior to the formation of the CIO, the entrenched leadership of the AFL had already adopted an attitude of intransigent opposition toward incipient movements in the direction of industrial types of union organization. A simple internal jurisdictional conflict normally does not result in a withdrawal of the disaffected union from the larger confederation. But when the rival unions in question are organized according to conflicting conceptions of trade-union structure, the association representing the unorthodox organizational pattern is unlikely to receive the impartial consideration of its claims. THE AMERICAN FEDERATION OF GOVERNMENT

EMPLOYEES

The American Federation of Government Employees was chartered by the American Federation of Labor immediately following the withdrawal of the NFFE. The referendum conducted by the latter organization on the issue of secession had clearly shown that a number of locals were opposed to withdrawal. With the encouragement of the AFL, twenty-six of these applied for a charter which was issued in August 1932.71 The original AFGE membership was approximately two thousand. The union enjoyed a steady if unspectacular growth throughout the thirties. A membership of 18,000 was claimed in 1936 and despite a loss of certain more militant elements to the newly formed Committee of Industrial Organization in 1937, the number of local lodges had increased to 650 in 1941 with a total membership of 30,000.72 Beset by rivalry from the older union and vigorous competition from its recent offshoot, the growth of the organization has been modest. In 1944, it reported a membership of 33,500 organized in 774 locals.73 Proceedings, 1932 Convention, p. 82. ™ Public Administration Organizations, a Directory. "Peterson, Handbook of Labor Unions, p. 154. 71

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The official program of the AFGE as adopted at its 1943 convention is almost indistinguishable from that of the NFFE. It was concerned primarily with such personnel matters as pay, promotions, classification, retirement, the extension of the merit system, appeals, and efficiency ratings.74 The union's activity on behalf of these objectives has in general paralleled that of its older rival. In fact the resort to substantially identical methods has on occasion resulted in needless duplication of effort in the furtherance of common aims. The coexistence of two unions within the same jurisdictional area has had even more direct and injurious effects upon collective attempts to improve the welfare of public employees. The very fact of rivalry and the consequent necessity to demonstrate individual achievement and effectiveness have often led each organization to seek the separate sponsorship of civil service legislation. Although objectives may differ only in minor detail, each association feels compelled to pursue its legislative program independently in order to substantiate subsequent claims to exclusive responsibility for the enactment of favorable measures. On the other hand, the organizations sometimes adopt basically conflicting positions toward impending legislation. In such cases the consequences may seriously jeopardize the interests of public employees. Failure to present a common staff front serves to prolong the delay and multiply the compromises which usually attend the legislative consideration of public personnel measures. In fact the resultant confusion may provide hostile interests with an opportunity to secure the defeat or the equally fatal postponement of vital civil service legislation. In so far as union activities at the administrative level are concerned, the existence of the present rivalry has imposed additional burdens upon personnel and operating officials conscientiously seeking to evolve satisfactory labor relations programs. Grievance procedures, for example, which would permit organized employee representation are made cumbersome by the present necessity of according equal weight to competing associations of substantially different numerical strength. The condition of multiple unionism in the public service will probably continue to prevail as long as official policy prohibits the assignment of a preferred status to dominant organizations. Administrative efficiency, as well as the interests of the employees themselves, would be more satisfactorily served if the number of contending groups were reduced. The emergence of a new union should normally reflect a fundamental difference in corporate outlook or a substantial dissatisfaction with existing leadership. The AFGE was not the product of a 74

Resolution No. 53 in Proceedings, p. 240.

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cleavage attributable to such factors. The present rivalry with the NFFE serves only to duplicate the expenditure of resources and energies which should be devoted to better advantage. The quality of the AFGE leadership has been inferior to that of the older organization and its membership has been appreciably less than that of its rival. Occupying essentially a middle position between the aggressive United Public Workers and the conservative independent Federation, it lacks the elements of programmatic appeal which are necessary to the effective functioning of unionism in the public service. THE UNITED PUBLIC WORKERS OF AMERICA

The split within the AFGE which led to the formation of the United Federal Workers of America in 1937 had its immediate origin in certain internal conflicts which early beset the new AFL affiliate. In pursuing a conservative policy essentially similar to that of the NFFE, the association's leadership provoked widespread criticism from militant elements within its ranks. Some of the membership had become somewhat dissatisfied with conventional lobbying as a principal method of union operation and had shown increased sympathy for more direct and aggressive techniques such as picketing and the sponsorship of mass demonstrations. The celebrated Donovan case in 1934 provided a specific and dramatic instance of such internal dissension.75 Mr. Donovan alleged that he had been dismissed from his position with the NRA because of his membership and activity in an AFGE lodge. In an effort to secure his reinstatement and to call public attention to a disciplinary act which was deemed to constitute a rather flagrant violation of the spirit of the very labor policy which the NRA was then seeking to administer in private industry, some members of the union proceeded to picket the office of General Hugh Johnson, head of the NRA, and to hold mass meetings on behalf of the discharged official. Although an ad hoc panel of the National Labor Relations Board, whose arbitration was voluntarily accepted by NRA officials, recommended Mr. Donovan's reinstatement and virtually confirmed the validity of the union's charge of discrimination,76 the tactics which had been employed were generally deplored by the union's leadership as unbecomingly militant and embarrassing to the administration. At the 1934 AFGE convention, President Babcock See Chap. VI. ™ AFGE Ex rei. John L. Donovan υ. Hugh S. Johnson, (July 9-Dec. 31, 1 9 3 4 ) , Case 39. 73

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introduced a resolution condemning strikes, picketing, and mass demonstrations which was substantially incorporated in the union's constitution.77 The fact, however, that aggressive tactics had been successful in securing redress of a grievance in a case in which peaceful appeals through normal channels had fallen upon deaf ears led a number of members to regard the newly imposed union restrictions as an unwarranted concession to officialdom and as tangible evidence of timid leadership unwilling to embrace new tactics of demonstrated effectiveness. These differences concerning appropriate union strategy impeded the growth of the newly formed AFGE. In 1936 President Babcock found it necessary to suspend certain lodges in the Social Security Board, Justice Department, Farm Credit Administration, and Securities and Exchange Commission which persisted in conducting their activities in violation of the declared policies of the national organization.78 The dissension within the AFGE was not only the result of isolated union militancy confined to elements within the public service. The labor movement in general throughout this period underwent a fundamental transformation which led to the eventual division of the AFL into hostile camps which were unable to resolve their differences within the framework of a single confederation. The newly formed Committee of Industrial Organizations provided that militant leadership and material support which aggressive elements within the AFGE found congenial to their conception of vigorous public service unionism. Divisive tendencies were thus fostered within the AFGE and on June 21, 1937, the United Federal Workers of America was formed under CIO auspices. The original membership consisted mostly of employees who had belonged to suspended lodges of the AFGE. Particularly effective organizational success was claimed in the Department of Labor, the Social Security Board, and the Works Progress Administration.79 The numerical strength of this most recent addition to the several unions in the Federal Service is exceedingly difficult to ascertain. Newly formed labor organizations often decline to reveal the extent of their membership. At the first Constitutional Convention of the Congress of Industrial Organizations in 1938, the UFWA reported a membership of 15,120 organized in 135 locals in 33 states.80 District CounArt. II, Sec. 3, 4. Government Standard, July 31, 1936; September 18, 1936. ™ New York Times, June 22, 1937, p. 1. 80 Proceedings, p. 250.

77

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cils were formed in New York State and Washington, D.C. When the first convention of the U F W A was held in 1940 the membership was declared to have increased slightly to 18,000. T h e number of locals had dropped to 122 distributed in 23 government agencies. 81 In 1941 the organization claimed a total membership of 25,000 public employees. 82 Throughout these years the national C I O leadership exercised close control over the union's activities. It was not disposed to issue a charter to the U F W A as a full-fledged C I O affiliate until its position had been securely established. The C I O national office appointed an Administrator for the union in 1940 and this arrangement was maintained for four years. At its third convention in 1944 the union became a fully independent C I O affiliate and was given the authority to elect its own officers. In 1946 the U F W A merged with the State, County and Municipal Workers of America to form the United Public Workers of America. The merger was probably motivated by a number of considerations. Each association had encountered vigorous competition in its respective jurisdiction. Public hostility toward the CIO, particularly in certain states and localities, may also have led the two unions to form a united front for their mutual advantage. If such factors were operative, they were not explicitly acknowledged at the convention at which the amalgamation was effected. The Officers' Report to the S C M W A at the 1946 convention declared that the similarity in the basic problems relating to pay, political activity, the extension of social legislation and collective bargaining to government employees as well as obvious advantages of financial and leadership consolidation provided compelling reasons for the formation of a single national union of public workers. 83 In any event the United Public Workers with an initial membership of approximately 75,000 and organizationally equipped to expand as a single entity throughout the various public services of the country was established in 1946. Four years later the union was expelled from the C I O for its failure to rid itself of alleged communist domination. It remains to be determined whether this type of aggressive organization represents a fundamental reorientation in governmental unionism or merely a further example, albeit accompanied by an unwonted display of spectacular publicity, of those almost periodic secessionist movements which have marked the history of union development in 81 82 ω

Federal Record, September 18, 1940, p. 4. Public Administration Organizations, a Directory. Officers Report to SCMWA Convention, 1946.

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the public service. Its formal program, as White has observed, is "not distinguishable from the platforms of existing groups." 84 A resolution adopted at the first Constitutional Convention of the CIO in 1938 defined its objectives to include the establishment of the five-day week, overtime pay, automatic pay increases, the extension of classification and the merit system, the liberalization of retirement laws and the creation of appeals machinery.85 Older rival organizations had advocated and actively promoted virtually identical measures for over twenty-five years. Their adoption by the UFWA did not in itself indicate any particularly unique conception of the scope and purposes of public-service unionism. Nor did the widespread dispute in private industry between the proponents of craft and industrial unionism provide an ideological basis for the creation of the new publicemployee union. It is perhaps true that the "all-inclusive industrial form of organization espoused by the CIO is particularly well adapted to government employment." 86 But public service unions had long been organized on precisely this basis. If the jurisdictional latitude of the UFWA was broader than that of the AFGE in view of the latter's need to coordinate or even subordinate its organizing activities to those of craft unions in the Building, Metal Trades and other Departments within the AFL, it was certainly no wider than that of the NFFE and potentially more restrictive to the degree that the CIO becomes successful in its organization of unions in private industry which might conflict jurisdictionally with its public service affiliate. Despite a formal similarity in structure and in ostensible objectives, the history and nature of the UPWA leadership indicate that the union represents a radically new type of public service unionism. The very fact of its amalgamated structure reflects a unique conception of the scope and functions of a public service union. It assumes that public employees at all jurisdictional levels essentially comprise a single labor force. The simple fact of public employment rather than the jurisdiction of the specific employer, whether it be a Federal agency or a municipal playground, becomes the governing standard of membership eligibility. The assumption by a single union of the burden of promoting the interests of organized employees in diverse areas of public employment may well result in a hitherto untried attempt to extend to one jurisdiction those material gains and procedural arrangements which organized effort has achieved in another. Sec84 85 M

Introduction to the Study of Public Administration, p. 431. Resolution 65, Proceedings, pp. 248-249. Union News Service, CIO, June 28, 1937.

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ondly, the older unions typify professional and business organizations whose efforts are concentrated upon the specialized and expert promotion of the technical and strictly service problems of pay, classification, retirement and similar matters. The CIO union, on the other hand, has conceived the appropriate scope of its interests to encompass social and economic objectives of concern to citizens in general and to labor groups, public and private, in particular. Moreover, it has urged that the mass of subordinate civil servants should be as vitally and articulately concerned with the problems of citizenship as other individuals. The journals and convention proceedings of the union furnish abundant evidence of this viewpoint. Alone among Federal employee organizations, for example, it has vigorously attacked the Hatch Act and unsuccessfully challenged its constitutionality before the United States Supreme Court. Throughout its history the UFWA has not hesitated to express opinions on matters of general domestic and even foreign concern. One year after its formation it protested against the current American foreign policy toward Mexico and publicly recorded itself in favor of the expropriation of American and British oil properties by the Mexican Government. In conformity with its policy of neutrality and indifference toward issues of this character, the NFFE viewed these declarations with horrified forebodings. Such conduct was deemed to hold "the seeds of disaster for Federal employees" and to lead inevitably to the "ultimate dissolution of all organizations of Federal employees" in the process of which the "innocent will suffer with the guilty." 87 The leadership of the United Federal Workers evidently did not share in these dire presentiments. It grew even less restrained in the expression of political opinions. The union policy with respect to the United States defense program prior to the formal entry of the nation into the Second World War was similar to that of other left-wing CIO affiliates. As late as June 1941 the organization was accused by administrative officials of fostering or condoning slowdown drives in Navy Yards.88 The accusation was not proved but the entire atmosphere surrounding the incident was certainly in sharp contrast to the resolution of the National Executive Board in August of that year. The union now called for vigorous support of the national defense program including "all aid to Great Britain, the Soviet Union, China and other nations fighting 87 88

Federal Employee, June 1938, p. 15. Federal Record, June 20, 1941.

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against aggression," 89 and pointed specifically to the urgent need for increased ship construction, improved efficiency, and vitally needed war production. In April 1942, the union urged the immediate opening of a second front in Europe and this position was officially adopted at a meeting of the National Executive Board in the fall of 1943.90 At its 1946 Convention the scope of the organization's interest in international affairs ran the gamut of United States foreign policy. Resolutions were adopted calling for such varied measures as "the immediate possession of all atomic bombs" by the United Nations, the civilian control of atomic energy development, the breaking of diplomatic relations with Spain, the expulsion of Argentina from the United Nations, the denazification of Germany, and finally, in what may perhaps not improperly be termed a moment of indiscreet and exuberant self-revelation, for aid to the people of Yugoslavia who "out of their struggle created a democratic republic with universal suffrage, universal education and the prohibition of national and religious hatreds." 9 1 On the domestic front the union favored the continuation of price and rent controls, the municipal ownership of public transportation systems, Federal aid to education, and the defeat of allegedly anti-labor legislation. The older organizations in the public service tend, in brief, to regard government employees primarily if not exclusively in the light of their status as civil servants. Hence arises their general acceptance of lobbying as the most effective method of operation and, by the same token, their reluctance to engage in partisan political activity. In this view the organized civil service becomes simply another pressure group concerned with the promotion of specific and limited goals through conventionally accepted procedures. The UPWA has repudiated this conception of the proper functions of a public employee association. It has insisted upon regarding public employees as an integral part of the organized labor movement confronted by problems basically similar to those which prevail in private industry. Their resolution is thus deemed to require substantially similar techniques of bilateral collective bargaining, political activity, and the exercise, if necessary or available, of strike action. The ambiguous UPWA policy with respect to the strike has distinguished it from most public-employee organizations and even provoked such a widespread reaction as to lead the United States Congress Federal Record, September 5, 1941. Federal Record, May 8, 1942; October 27, 1943. M Resolutions adopted at the Constitutional Convention of United Public Workers of America, Atlantic City, April 23-26, 1946. 89 80

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into enacting legislation designed to deny to Federal employees the right to strike. 92 Whereas other associations have unreservedly denounced strike action in their constitutions, the UPWA has simply declared that resort to such conduct is contrary to its general policy but it has explicitly provided an extraordinary constitutional procedure whereby strikes may be authorized in cases of allegedly extreme necessity. 93 The extensive criticism which followed the adoption of this provision led the organization's leadership to issue a categorical denial that the UPWA would ever sanction or engage in a strike against the Federal Government but the provisions of its constitution remain to illustrate the extent to which the union has sought to introduce into the public service the methods which organized labor has utilized in private industry. UNIONISM AMONG STATE AND LOCAL GOVERNMENTS

Public employees in state and local governments engaged in skilled trades frequently retain membership in their respective craft unions as do their co-workers in the Federal Service. Until recently these workers comprised the dominant proportion of organized employees in this field. In a very real sense, however, they do not form an integral part of the labor movement in the public service. Their conditions of employment depend primarily upon arrangements secured through collective action in private industry. A different type of craft union comparable to those which are found in the Postal Service has emerged among fire fighters, policemen, and teachers and occasionally among certain other groups of municipal employees such as clerical, custodial, and institutional workers. In addition a number of general or industrial type associations have recently been formed which, like their counterparts in the Federal service, embrace state and local employees engaged in the widest variety of functions. These latter organizations are both affiliated with and independent of the outside labor movement. 94 The program of some of these groups is far removed from the aspirations of conventional unionism. Indeed a number of them represent the institutional expression of a middle-class resolve to resist assimilation with a working-class movement. The National Education Association is perhaps an outstanding illustration of this type of association. 95 6 0 Stat. 5 9 5 ( 1 9 4 6 ) . Art. 8, Sec. 15. 81 See Mosher and Kingsley, Public Personnel Administration, pp. 567-569, for a list of these associations and their affiliations. See Spero "Employer and Employee in the Public Service," pp. 2 2 0 ff. 82

83

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Others lack the resources or disposition to engage in independent collective action.96 Several confine their energies in the main to welfare and fraternal functions and only to sporadic but highly publicized appearances before budget officials and legislative committees on behalf of vital employment measures. A few, however, have evolved longrange and systematic programs covering such personnel problems as pay, classification, the merit system, or retirement and have sought increasingly to further these objectives through collective negotiation with administrative officials. Outstanding among these organizations have been the American Federation of State, County and Municipal Employees ( A F L ) and the former State, County and Municipal Workers of America (CIO) which is now a division of the United Public Workers of America. The first organization represents the outgrowth of the Wisconsin State Administrative Employees Association which was established in 1932.97 Together with several other organizations of public employees it became affiliated in 1935 with the American Federation of Government Employees as an autonomous department. In 1936 it severed this connection and was chartered as an international union by the Executive Council of the AFL and given its present title. Its paid-up membership at that time was 5355.98 It was accorded a characteristically broad jurisdiction similar to that enjoyed by the AFGE in the Federal Service. All persons employed in state or local governments were declared eligible to membership except elective and certain appointive officials and employees over whom the AFL had already granted jurisdiction to other unions. Its growth within the past several years has been impressive. In 1937 President Zander reported 22,000 members organized in 112 locals in 28 states.99 Both membership and the number of locals were practically doubled in the next four years. In 1941, the union claimed a total of 42,000 employees in 225 locals.100 At its fifth biennial convention held in Chicago in 1946, paid-up membership totaled 78,164 and President Zander estimated an actual membership of 90,000. The 450 delegates present represented 979 locals in 46 states as well as in Canada, Alaska, and the Hawaiian Islands.101 "Ibid., p. 218. " "A Decade of AFL Unionism," Bureau of Labor Statistics, U.S. Department of Labor, pp. 1 ff. M Ibid., p. 2. ""Public Employee Unions," Public Management (September 1937), p. 259. 100 Public Administration Organizations, a Directory. 101 "A Decade of AFL Unionism," p. 2.

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Since 1937 this union has occasionally met competition from its C I O rival and counterpart, the State, County and Municipal Workers of America. Chartered in 1937, the latter organization originally claimed a membership of 25,000 employees in 40 locals. 102 A summary of union progress furnished to the convention in 1941 indicated that the association had suffered from a particularly high rate of turnover during its early years of growth. In 1939 and 1940 the rate exceeded 50 per cent. During this period 31 locals were chartered but 17 of them were suspended because of delinquency or inactivity. 103 In 1941 the S C M W A reported "a real and absolute expansion of our organization" in terms of an increase over 1939 of 69 per cent of the number of local unions. 104 Net membership was declared to have increased by 47 per cent during these years. At its fourth biennial convention held in March 1946 and immediately prior to its amalgamation with the U F W A , the S C M W A claimed a total membership of 48,440. 1 0 5 That the progress of the union was still uncertain was indicated by the fact that in the preceding three years, 16,184 members had been suspended and 12,504 had resigned, exclusive of those who withdrew to enter the armed services. The reluctance of white-collar workers, however low paid, to affiliate with the labor movement and particularly with its more militant segment represented by the C I O is reflected in the preponderance of laboring classes within the SCMWA's membership. In 1946, labor and white-collar groups comprised 46 and 28 per cent respectively of the total membership. 106 Five years previously these two groups were approximately equally represented in the union with each forming about 35 per cent of the total membership. 107 It is of course difficult to assign precise and exclusive definitions to the categories of laboring and white-collar employees in the government service. Income criteria do not furnish a satisfactory guide in this respect. In its assertion that the basic composition of its membership has consistently shown a "tendency . . . towards a larger proportion of labor membership and away from white collar membership," 1 0 8 the S C M W A did not indicate the standard which it used in distinguishing between these groups. It is reasonable to conclude, however, that the proportion 102 103

101

A. Flaxer in Public Management, Sept. 1937, p. 262. Report of Proceedings, ASCMWA Convention, 1941, p. 22.

Ibid., p. 22.

Proceedings, p. 50. 108 Ibid., p. 51. 107Ibid. ™lbid. 106

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of white-collar employees in state and local government is considerably in excess of that which is contained in the membership structure of the SCMWA. Like its affiliate in the Federal Service the state and local CIO union has extended the scope of its interests to embrace matters of general social moment. The officers' report to the fourth biennial convention of the State, County and Municipal Workers of America held in 1946 opens with a résumé of national and international affairs. The interests of our membership cannot be divorced from the interests of the working people of the United States, or for that matter, of the working people throughout the world . . . Peace is the precondition of a prosperous life for all our people. It is futile to talk of wage scales, working conditions, job security . . . when we are faced with the danger of a suicidal and destructive atomic war. 109 The 1946 convention of its AFL rival, the American Federation of State, County and Municipal Employees, announced a set of objectives which represented a compromise between the strictly service unionism of the NFFE and the indiscriminate absorption of the CIO organization with various public questions. Union aims relating to such matters as minimum hourly wages, the extension of state unemployment compensation laws, and the Federal Social Security act to public employees were combined with resolutions in favor of the municipal ownership of utilities, public power, and navigation projects, the extension of price and rent control and the enactment of antipoll tax legislation.110 It should be observed that the interests of state and local employees can readily and directly be related to most of these objectives. In this respect their formal incorporation into the AFSCME's official platform marks an increasing measure of political awareness albeit considerably more restricted than that evinced by its rival. 109 110

Officers' Report, pp. 3, 4. Proceedings, Fifth Biennial Convention, Chicago, April 1946.

CHAPTER V I

the objectives of public service unionism THE various employee unions in the public service share a common group of objectives. In general these associations devote the major part of their efforts to such matters as wage and hour adjustments, liberalized retirement laws, the extension of position classification and the merit system, improved in-service training, enhanced promotional opportunities, and the creation of a civil service court of appeals with employee representation to adjudicate grievances should redress be unattainable through normal channels of administrative adjustment. WAGES AND HOUBS

In his analysis of personnel conditions in the Federal Service, Herman Feldman remarked that "unfair wage levels and the failure to make wage adjustments have constituted the most tangible and frequent causes of misunderstanding and friction in the civil service." 1 It is not surprising, therefore, that the principal activities of associations of government employees have always been directed toward obtaining improvements in public wage payments. T h e bewildering variety of compensation arrangements which prevail in the Federal Service need not b e explored at this point. It will be sufficient to indicate the predicament in which government employees frequently find themselves as a result of the factors which govern wage determination in public employment. In his well-known survey of real wages in the United States, Professor Paul Douglas showed that "while the full-time weekly wages of the manufacturing workers could purchase 12 per cent more in 1926 than during the nineties, the Federal employees could purchase 30 per cent less, the postal workers 4 per cent less." 2 Personnel Program for the Federal Service, p. 15. ' Real Wages in the United States, Boston, Houghton Mifflin, 1930, pp. 196-198.

1A

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Government wages lagged most markedly during the inflationary period following the First World War. The index number for real full-time weekly earnings of Federal employees (computed on a basis of 1890-99 = 100) fell to 59 in 1918 and 54 in 1920. This appraisal of the economic status of civil servants concluded with the assertion that the "relative position of the Government employees in Washington has declined more than that of any other class of which we have record." 3 In his testimony before the House Civil Service Committee in December 1941, Mr. McReynolds, administrative assistant to the President, indicated that these conditions continued to prevail in many areas of public employment. It was shown, for example, that certain pay scales in the Sub-Professional Service were below commonly accepted minimum standards of living, that others in the Crafts, Protective and Custodial Service were less than those needed to secure competent guard forces in defense establishments, and that many laborers and mechanics were employed at base rates considerably inferior to those which were in effect in private industry.4 The pay scales in public employment, incidentally, show an interesting relationship between levels of compensation and employee organizational activity. The lag in wages in the highly organized postal service was significantly less than in the relatively unorganized fields of Federal employment. The index numbers for real full-time weekly earnings in 1918 stood at 59 for all Federal employees but reached 67 for the Postal Service. In 1920 the discrepancy was even greater when these numbers were 54 and 70 respectively. In the presumably normal year 1926, the same index was 70 for all personnel in the aggregate but 96 for the Postal service. A survey of 1,437,000 Federal employees in 1942 revealed that Postal workers continued to enjoy a relatively superior position in so far as compensation scales of the great mass of lower-paid civil servants were concerned.5 Whereas 66 per cent of the total number of employees covered in the survey earned between $1199 and $1999 per annum, only 31 per cent of the Postal employees were found to fall in this category. On the other hand only 21 per cent of the total group earned salaries between $2000 and $2499 but 63 per cent of the Postal employees included in the analysis were shown to receive salaries within this higher range. ' Ibid., p. 199. Federal Employee, January 1942; Hearings, H.R. 6217, December 1941. 5 Data derived from "Salaries of Federal Employees, October, 1942," Monthly Labor Review, September 1943, Table 6, p. 11. 4

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Unions of public employees in state and local jurisdictions have also pressed vigorously for revisions in public salaries to match increases in the cost of living or upward adjustments in private industry. The 1941 Convention of the State, County and Municipal Workers of America devoted a considerable part of its proceedings to a comparative analysis of average monthly earnings of government employees with United States Department of Labor estimates of monthly budgets deemed necessary for maintaining an average family at a minimum level of decency. A 1940 estimate considered that $160 constituted a minimum monthly budget for this purpose. In 1941, according to a Quarterly Employment Survey of State and Local Government conducted by the Department of Commerce, average monthly earnings in January 1941 in the government service varied from $103 in counties, $107 in the Federal Service, $114 in states, and $116 in cities.6 The inclusion of all employees in the computation of these averages makes them somewhat misleading. Union officers pointed out that the figures do not reflect the average earnings of the rank and file of public workers since the salaries received by a relatively few higher-paid top officials such as city managers, commission members, bureau chiefs, tend to raise the computed average above that received by the great body of government employees. On the other hand these figures include compensation received by many maintenance and custodial employees who are only engaged on a part-time basis and whose total remuneration might therefore exceed the announced averages. In common with all employee associations, unions in the public service have sought to obtain reductions in hours of work, longer vacations, sick leave, and similar benefits. In many instances the activities of employee unions have been directed toward achieving a statutory prohibition of allegedly pernicious administrative practices as well as other concessions through direct legislative action. Legislation alone could remedy the scandalous over-working of employees in the postal service which was prevalent prior to the enactment of the eight-hour day.7 Within the past decade the authority of administrative officials in other agencies to require employees to work overtime without compensation was unquestionably abused 8 and employee organizations accordingly sought a statutory reduction in hours and a punitive rate for overtime. The achievement of these fundamental objectives, however, has 'Proceedings, SCMWA (CIO) 1941 Convention, p. 33. 7 27 Stat. 340, August 1, 1892; 40 U.S.C. 321 as amended 37 Stat. 726, March 3, 1913; 40 U.S.C. 321. 8 See Chap. IX.

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only slightly diminished the latitude possessed by supervisory officials in fixing hours of work. The efficiency of the service demands an appreciable amount of flexibility in this respect. But the history of public personnel administration has frequently been marked by instances in which the demand for additional hours of work was not the product of administrative need but of inefficient planning, carelessness, or the deplorable but nevertheless occasionally evident attempt to exaggerate, for reasons of personal interests, the importance of a work unit through the retention of an excessive number of employees or through an increase in the number of hours which they are required to work. To counteract this tendency, employee organizations seek continually to eliminate arrangements deemed inequitable or unwarranted in terms of operating necessity. RETIREMENT

The achievement of a retirement system has not only constituted a perennial objective of public-employee associations but was a factor of critical significance in their original formation. Organizations devoted exclusively to the attainment of retirement legislation were established in the Federal Service as early as 1896. The confusion attendant upon the multiplication of these single-interest groups, their failure to reach agreement with respect to basic procedures and objectives, and their lack of coordination with emerging employee associations whose programs encompassed a wider range of service interests impeded the successful enactment of a retirement law. In order to present a more effective and united front, employee organizations which were affiliated with the AFL formed the Joint Conference on Retirement in 1917. In this manner the advantages of a harmonious and functional approach toward a problem of particular urgency were secured within the broader framework of general employee organizational activity. From its inception the Joint Conference operated as a specialized pressure group seeking the extension and liberalization of retirement legislation and administration. Individual employee organizations lent it their vigorous support and at the same time continued to exert their influence separately whenever it proved advantageous to do so. A resolution adopted by the National Federation of Federal Employees at its first convention in 1917 urged "upon Congress the enactment at as early a date as accurate statistics can be obtained of a scientific retirement measure." 9 The various employee associations and • Federal Employee, October 1917, p. 582.

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the AFL itself began in 1918 to support retirement bills in Congress.10 Their efforts culminated two years later in the Lehlbach-Sterling Retirement Act of May 22, 1920. In subsequent years employee organizations sought ceaselessly to extend its originally limited scope and to liberalize its benefits by securing an increase in the annuities and through the addition of optional retirement provisions at progressively lower ages or specified shorter periods of service. The liberalization of the retirement system in 1926 and 1930 was due in appreciable part to the expertly organized campaigns of the employee unions.11 At its 1933 Convention, the N F F E called for optional retirement regardless of age upon thirty years' service and at age sixty following a minimum of fifteen year's service. Amendments in this direction were incorporated in the Act of January 24, 1942.12 The success which Government employees achieved in securing the enactment of retirement legislation was attributable not only to the persistence and skill with which they conducted their activities but also to the agreement among various associations upon fundamental objectives. The emergence of rival unions during the 1930's was responsible for a significant breach in this hitherto coordinated outlook. Although unions may agree upon basic objectives, they may differ considerably in regard to the feasibility of their promotion at specific moments. Accordingly the strategies of the several associations not only vary and occasionally conflict but more militant groups will tend to impute the failure of a particular project to the alleged lack of enterprise of their conservative rivals whereas the latter will attribute an unsuccessful campaign for further retirement liberalization to the allegedly irresponsible and impracticable demands of a poorly advised leadership. In 1939 the independent and affiliated public unions supported different retirement measures. Since that time they have usually failed to present a united front toward an issue which for several decades operated as a cohesive force and elicited an exceptionally effective and harmonious concentration of effort within the scattered ranks of the labor movement in the government service. The results of this recent cleavage are already discernible. The failure of employee associations to agree upon specific retirement proposals simply reinforces a legislative disposition toward inaction. Again the divergence of associational outlook has occasionally reflected such fundamental disagreement as to jeopardize the very preservation 10 Ibid., September 1918, p. 947. " 4 4 Stat. 904 ( 1 9 2 6 ) ; 46 Stat. 468 ( 1 9 3 0 ) . u P.L. 411, 77 Cong., 2d Sess. (H.R. 3 4 8 7 ) .

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of the Federal retirement system in its present form. The independent unions under the leadership of the National Federation of Federal Employees are committed to the maintenance of the retirement system as it is now constituted. These associations were in considerable part responsible for its original enactment and many of their members are eligible to receive substantial benefits under its terms. In their view the "Federal retirement system is today the best in the world." 13 Consequently the officers of these associations, according to NFFE President Luther Steward, have been constantly on the alert to forestall efforts of those who would, in whole or in part combine the Federal retirement system with the Social Security system . . . Believers in the Federal retirement system must maintain constant vigilance to protect what they have built up painstakingly over the years.14 On the other hand, affiliated unions and particularly the United Public Workers of America have sought a fusion of the Federal retirement and social security systems. As a younger union with fewer members eligible to appreciable benefits under the existing system, and possibly with a larger proportion of members eligible to some measure of social security payments by virtue of prior employment in private industry, it has not been as favorably disposed to the maintenance of the present retirement scheme as some of its older rivals. From a less material standpoint, the general tendency of the union to view public and private employees as integral parts of the labor movement would further lead it to promote a single retirement program which would embrace public and private workers indiscriminately and confer equal privileges upon them. CLASSIFICATION

The enactment as well as the efficient and impartial administration of a classification system has constituted another paramount objective of general unions in the public service. The NFFE at its first convention in 1917 adopted a resolution calling for a "thorough, just and equitable reclassification" based upon an investigation by public officials, impartial experts, and employee representatives.15 Although the union vigorously supported the campaign for temporary wage increases or so-called wartime bonuses as a temporary expedient, its 13 Federal

Employee, President's Report, ees, September 1944, p. 15 Federal Employee, 11

February 1943. 17th Convention, National Federation of Federal Employ13. October 1917, p. 651.

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long-range program was based upon a firm conviction of the need for a comprehensive duties reclassification if the underlying causes of employee discontent and inefficient personnel administration were to be removed. Craft unions such as are found in the Postal Service are not directly interested in the problem of classification inasmuch as the duties of their members fall readily into a few, simple, broad and apparent categories. These organizations are nevertheless generally sympathetic to the classification objectives of unions in the remainder of the government service. Thus in the dispute between the Metal Trades Department of the AFL and the NFFE in 1931, the affiliated Postal Unions pleaded before the convention not only for moderation and a dispassionate consideration of the issues involved but informed the other delegates of the critical significance of a classification scheme to thousands of employees in the Federal Service.18 On the other hand, this same incident showed that unions composed of skilled public and private employees have usually regarded officially sponsored position classification as an incipient threat to established journeyman standards and practices. The campaign for the present classification system in the Federal Service began as early as 1920. In the several years which preceded the enactment of the act of March 3, 1923, the National Federation assumed a leading and vigorously active role in pressing for the consideration of various classification proposals and in evolving compromises acceptable to a Congress largely unfamiliar with the nature of the problem. When legislative interest appeared to lag or when the technical difficulties inherent in the administration of a scientific classification system seemed insurmountable, the NFFE voluntarily contributed to the subsidization of an impartial research investigation the results of which were of critical significance in shaping the final legislation. Nor was the role of the Federation confined to that of external promotional or pressure activity.17 The 1923 Classification Act represented an outstanding example of legislation in which interest groups were accorded an official consultative status and authorized to perform specific functions in the accumulation of data and the preparation of proposals. Thus the Joint Congressional Commission on the Reclassification of Salaries officially recognized the NFFE as the representative employee association in the Federal Service and " Proceedings, 1931 AFL Convention, pp. 310-329. Luther Steward, "Civil Service Unionism," pp. 191-195.

17

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called upon its officers to select employee members of national, departmental, and local advisory committees. The Federation proved an effective cooperative medium whereby the collective work experience of thousands of employees was systematically compiled and intelligently interpreted.18 A considerable amount of classification work involved in the preparation of job descriptions, the determination of the number of classes, their interrelationship and regrouping into broader categories is necessarily preliminary and tentative. It is precisely at this level that interest representation can perform its most valuable and proper role. Such procedures permit ultimate decisions to be made by authorities directly responsible to the public but prior to such final action, interested groups may make advisory contributions of vital importance and thus assist in the eventual formulation of a policy which is at once more intelligently conceived and more responsive to the interests which it affects. In this respect the NFFE functioned with commendable efficiency in the years preceding the enactment of the classification law. Together with other employee unions it has watched zealously over its administration and has been indefatigable in efforts to secure its extension by executive action wherever possible under existing laws or, if necessary, by the enactment of additional classification legislation to encompass widening areas of public employment. UNIONS AND THE MERIT SYSTEM IN THE PUBLIC SERVICE

Are unionism and the merit system in the public service inherently in potential conflict with each other or are they compatible to the point of embracing common underlying objectives? In an address before the Educational Forum of the District of Columbia's Federal Employee Union, Leonard White referred with praise to the "unremitting efforts" of the NFFE's officers "to build up a sound Federal personnel system on the bedrock of civil service." 19 In a pamphlet issued for the guidance of its employees, The United States Civil Service Commission briefly described the functions of public unions and declared that the extension of the merit system constituted one of their primary objectives.20 On the other hand, Dr. W. S. Carpenter, President of the New Jersey Civil Service Commission, announced categorically at a conference of the Institute for Governmental Research in 1946 that "as long as the American people wish to continue 18 19 w

Federal Employee, October 1923, p. 9. Federal Employee, December 1939, p. 4. Information for Employees, Form 2 4 6 1 , U.S.C.S.C., p. 35.

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a civil service system there is no place for a trade union as a competitor." 2 1 The merit of these conflicting opinions may perhaps be best ascertained by an examination first of the formal positions which the various unions have adopted and secondly of the extent to which their specific activities have confirmed the sincerity of their pretensions. The oldest Federal union has always proudly deemed itself an "unfailing and untiring guardian" of the merit system. At its 1941 convention, Representative Robert Ramspeck paid tribute to the "splendid work" which the NFFE had performed "in selling to the people of this country the principles of the merit system." 2 2 Historically it has not only actively supported every proposal to extend the principles of the competitive civil service throughout the Federal Government but it has energetically defended the career service whenever its integrity was threatened by political spoilsmen. Two outstanding instances may be cited as evidence of conscientious and unflagging efforts on behalf of the merit system. An attempt to restore the spoils system in certain agencies during President Harding's administration was effectively checked by the widely publicized protest of the NFFE against an executive order23 which had the effect of dismissing twenty-eight administrative officials of the Bureau of Engraving and Printing. On the day following the issuance of the order, Mr. Luther Steward sent a letter to President Harding protesting against this flagrant violation of the merit system in the dismissal of responsible officials "without warning, without specification as to cause." 24 This prompt action in calling public attention to what was apparently part of a more broadly conceived attack upon the merit system in the Federal Government provoked widespread comment in the nation's press. The dismissals were vigorously denounced and a nationwide demand arose for the prompt reinstatement of the persons involved. Subsequent investigation resulted in the complete exoneration of the officials of all charges of inefficiency and those who wished to be restored to their jobs were reinstated without prejudice. It was during the early years of the New Deal that the NFFE further revealed itself as one of the staunchest defenders of the merit system in its firm opposition to political forces which were so conBoston Globe, September 11, 1946. NFFE Convention Proceedings, 1941. 33 Executive Order, March 31, 1922. " Federal Employee, April 1922, p. 11. a

22

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cerned with an immediate and unprecedented expansion of the existing bureaucracy as to disregard indiscriminately civil service recruitment and examination requirements. Of course the staffing of emergency agencies in meticulous accordance with civil service rules might have impeded their formation and effective functioning at a very critical period of widespread economic distress. On the other hand it would be idle to deny that many positions were filled by political appointment where resort might have been had to civil service registers without any impairment of bureaucratic efficiency. Thus the National Federation protested vigorously against an Executive Order of June 28, 1933 which, apparently for political reasons only, removed from the competitive classified service a number of positions in the National Soldiers Home at Johnson City, Tennessee. Moreover, it was responsible for the national exposure of an organization which had termed itself, with an honesty in self-designation rare among pressure groups of its type, the Civil Service Repeal Association.25 The NFFE in fact momentarily abandoned its customary preoccupation with salary, classification, and retirement measures and virtually concentrated its entire energies in a nationwide attempt to marshal the forces of public opinion on behalf of the merit system. The issue of the Federal Employee for the month of March 1934 was devoted to an impassioned defense of the competitive civil service and an editorial called upon every "loyal American . . . to save the merit system in the Federal Service." 26 In more concrete fashion the Federation's thirteenth convention in 1935 unanimously adopted a recommendation of a specially appointed committee to raise a Defense Fund "to educate the American public to a realization of the importance of the merit system." 27 During the fall of 1935, Luther Steward engaged in an exchange of correspondence with President Roosevelt concerning the allegedly unprecedented disregard of the civil service system in making Federal appointments and his efforts received enthusiastic public support.28 In 1937 the NFFE urged the President to veto the Wagner Housing Bill which, it was pointed out, created not an emergency agency but a permanent one and exempted almost 2000 positions from civil service requirements.29 In 1940 the organization worked assiduously on behalf of the Ramspeck Bill which sought to extend the civil Federal Employee, August 1934. Ibid. 27 Ibid., November 1935. 25 M

"Ibid. 29

Federal Employee, October 1937.

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service system to thousands of additional employees. The Federal Employee referred to the proposal unqualifiedly as "the most important piece of general civil service legislation since the passage of the original Pendleton Act." 30 Letters were sent to several thousand newspapers and periodicals explaining its purposes and soliciting their support on its behalf. Public employee organizations have almost a vested interest in the protection of the civil service system from encroachment by spoils politicians. Its political manipulation jeopardizes the very survival of associations by making it extremely difficult to build up a stable membership. Moreover, the injection of political influences in the career service permits individual employees to obtain preferred treatment through favoritism thus undermining the effectiveness of collective action. But an evaluation of the relationship between public service unionism and the merit system demands not only a survey of associational activities on its behalf whenever it is threatened by hostile political forces but an analysis of the precise content which employee organizations ascribe to the concept of a professional civil service. It may well be found that the merit system will be conceived differently by supervisory officials and by associations of public employees. Certain divergences in outlook have in fact already emerged. Union support of the merit system on occasion has been qualified by a tendency to depreciate the value of certain specific job qualifications, in particular those which relate to academic training. The union attitude in this respect possibly represents a wholesome reaction against excessive emphasis upon educational requirements for public office. But the demand that "no merit system . . . be killed by qualification . . . wherein the head of a department might have the right to rule out employees on the ground of insufficient academic qualifications" 31 may lead to the imposition of rigid limitations upon reasonable administrative discretion in appointments. As a general rule, however, associations in the public service have not shown a vested interest in minimizing the importance of educational preparation and training. They have vigorously supported in-service training programs and some of them have directly undertaken educational activities on an extensive scale. Expert observers of public unions in Great Britain have testified to the valuable contributions which these associations have made in the furtherance of a professional career service. Ibid., January 1940. Resolution 41, First Constitutional Convention, Congress of Industrial Organizations, 1938, Proceedings, p. 231. 30 Ώ

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There is little doubt indeed [wrote William A. Robson in a symposium on Trade Unions and Efficiency], that the desire to abolish patronage and to improve the status of the various groups by eliminating the untrained is the chief motive which has impelled the members of practically all the brainworking grades in local administration to set up barriers against haphazard entry . . . to define . . . and advance, through their corporate associations, the technique of the calling, to arrange for the acquirement of it by approved methods of instruction.32 Somewhat different educational experiments have recently been undertaken in the American public service. In 1937 the United Federal Workers of America established a Federal Workers School.33 Its declared purposes were to provide Federal employees with an opportunity to acquire instruction and training which would advance their job proficiency, to acquaint members and other interested persons with the history and objectives of the labor movement, and to offer courses and lectures on subjects of general social and cultural interest.84 A broad curriculum was offered at nominal cost and services of persons of national prominence in their respective fields were secured as special lecturers. The program was vitiated, however, by the pronounced interposition of political bias. The function of objective instruction was frequently subordinated to the dissemination of political propaganda. Nor was it surprising that the UFWA should have sponsored an educational program of such scope and content. One of the avowed purposes of the Federal Workers School, as of the UFWA itself, was to bring public servants to a heightened awareness of the fact that they shared a common social and economic situation with citizens in general and labor groups in particular. At the state and local level the American Federation of State, County and Municipal Employees (AFL) has sponsored an educational program somewhat more limited in its purposes than that of the UFWA Federal Workers School. Thirty scholarships are awarded annually to qualified members to attend courses in the history of the labor movement, civil service, labor problems, and kindred subjects which are offered at the University of Wisconsin's Summer School for Workers.35 It is difficult to appraise the significance of these educational experiments. For the most part they are not directed toward increasing job 6 Pub. Adm. 137 ( 1 9 2 8 ) . Ibid., November 28, 1937; Johnson, "Unionism in the Federal Service," p. 188. 84 Federal Record, November 26, 1938. 35 "A Decade of A F L Unionism." 32

811

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skills in the manner of conventional apprentice programs among craft unions. They are concerned rather with the cultivation of broader social and economic interests on the part of the rank and file of union membership. In assuming this pattern they reveal at once their promise and their limitations. The development of an enlightened civic interest should redound to the benefit of a career service as personnel is made more aware of issues of general concern and hence equipped to view its work and its relationship to the public more intelligently. The narrow concentration upon specific job requirements in ascertaining the fitness of candidates for appointment and promotion which civil service legislation has made mandatory in the United States attaches a particular value to the broadening effects implicit in undertakings of this sort. On the other hand the assumption of these functions by employee associations is not without a certain peril to the operation of a responsible civil service. If centers of instruction become instruments of class propaganda the danger becomes particularly acute. That this thought is by no means an idle fear is evident from the pronounced social and class bias which the UPWA leadership evinced in unmistakable fashion in its approach to national and international affairs. The inculcation of the rank and file with similar viewpoints may lead to the adoption of attitudes which would jeopardize the neutrality of the civil service through the injection of a partisan or even subversive spirit. A further area in which the demands of a career service and union aspirations may come into potential but by no means inevitable conflict is discernible in an occasional tendency among some employee associations to equate the merit system with job security. "Ce que les fonctionnaires ont avant tout et toujours reclamé, ce qu'ils ne cessent de revendiquer, c'est la sécurité de leur carriere." 36 A primary goal of the civil service associations in France was the elimination of nepotism and political interference in appointments and promotions. Observers have paid tribute to their accomplishments in this field. "Les syndicats . . . donnent d'excellents résultats . . . par example, ils détruisent . . . les influences corruptives des politiciens sur l'administration."37 But such activities are not equivalent to an unqualified acceptance of the merit system. A remark of President Zander of the American Federation of State, County and Municipal Employees is of direct relevance in this respect, "Public employees " Cahen, Les Fonctionnaires, p. 218. "Anatole France, Introduction to Paul-Boncour, Syndicats des Fonctionnaires,

p. viii.

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share the common wish for job security. The AFSCME is a staunch advocate of civil service." 3 8 Job security, however, falls far short of exhausting the content of the merit system. Dismissal of incompetent or needless personnel and promotion according to a reasonable combination of merit and seniority factors are as vital components of a career service as the elimination of political interference in appointment or of arbitrary or discriminatory action in removal. But the exercise of discretion in this manner may well impair job security in the conventional trade union sense of that term. Indeed a brief survey of associational activities in the field of post entry personnel matters such as promotions, service ratings, governmental efficiency, economy and reduction in force programs will reveal a number of significant points of potential friction between union objectives and the operation of a merit system considered in its broader aspects. PROMOTIONS AND REDUCTIONS IN FORCE

That employee organizations may exert a pernicious or beneficial influence in the formulation of promotion policy was well evidenced by the remarks of the NFFE's President, Luther Steward, before the 29th meeting of the Civil Service Assembly in 1937. A surrender to seniority as the controlling factor in promotions and lay-offs was too high a price to pay for employee participation in the extension of the merit system. Employee organizations should educate their membership to accept merit as a basis of promotion.39 The specific proposals which have been advanced by several unions in the public service relating to promotion policy indicate, however, that merit is sometimes viewed as a factor of minor importance. In defining the general objectives of the American Federation of Federal Employees, its president expressed the conventional trade union preference for seniority as the governing factor in promotion policy.40 Referring to certain specific promotion schemes which this association had proposed, a public personnel official was led to remark caustically: "Efficiency is evidently of so little importance as to be unworthy of mention." 4 1 A resolution adopted at the 64th Convention of the AFL in 1944 Public Management, September 1937, p. 259. Proceedings, p. 72. 40 C. F. Stengle, "Objectives of an Employee Union," Personnel Administration, March 1939. 11 "Union Activities," Personnel Administration, March 1939, p. 9. 88 89

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proposed the extension to all Federal employees of the principle of seniority promotion operative in private trades and industries.42 At its 24th Convention in 1946, the National Federation of Post Office Clerks formulated an elaborate plan which explicitly stated the union's position on this question.43 The heart of the proposal was continued in the statement that, in the administration of a promotion program, "it is not a question of selecting the most efficient employee but the senior employee who meets the requirements." 44 In this view seniority is clearly advocated as the controlling consideration. Moreover, a procedure suggested by the Federation specifically required that the senior clerk in question be given the first opportunity to demonstrate his fitness for a particular vacancy. If he possessed the requisite qualifications the scheme was designed to provide assurance that he would receive the promotion notwithstanding the fact that other employees with less seniority may possess demonstrably greater fitness. The conflict between seniority and merit arises not only in promotion decisions but also on the more critical occasion of reductions in force. In these instances employee organizations have sometimes sought to confine administrative discretion by requiring that layoffs be made strictly in the inverse order of length of service. Thus in 1939 the United Federal Workers of America pressed for a dismissal policy among the WPA employees on the sole basis of seniority. The absence of an acceptable efficiency-rating scheme was held to preclude force reductions according to merit and the union opposed the institution of a rating scheme for this purpose.45 A more theoretical and somewhat more plausible argument on behalf of seniority in layoff was once advanced by Mr. Jacob Baker, a former UFWA president.46 Contending that "efficiency is purely a function of management," it was alleged that it was a responsibility of supervisory officials to recruit with discrimination, to establish adequate training programs, to effect transfers where necessary, and to dismiss the unfit in the normal process of personnel administration. If management functions in this manner, a reduction in personnel due to basic policy changes or the need for economy should logically and equitably be carried out in accordance with seniority. Under these circumstances, "the whole working force being " Proceedings, p. 466. " Proceedings, pp. 13-15. 44 Ibid., p. 14. 15 Federal Record, February 17, 1939. " " T h e Rank and File" in Public Management 182-183.

in the New Democracy,

pp.

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service

competent and reasonably efficient, the worker can properly expect that those workers who have been on the job the longest shall hold their jobs longest." 47 The analysis possesses a certain logical merit but as a practicable procedure in public personnel administration it is obviously objectionable. Although efficiency may largely be considered a function of management, it nevertheless remains all too evident that management is frequently remiss or restrained in the proper discharge of its responsibilities. In the event of a widespread reduction in personnel, it is manifestly contrary to the public interest to restrict the hands of administrative officials seeking to devise equitable layoff arrangements by an insistence upon a scrupulous regard for seniority. The fact of previous negligence is hardly a legitimate excuse for continued inefficiency. But even if officials had faithfully performed their functions it would be unreasonable to presume the existence of a working force of uniform competence. Although the unfit may have been dismissed, the remaining employees will vary in proficiency from borderline "satisfactory" to unusual "excellence." Nor can prior transfers and training programs effectively reduce to insignificance these individual differences in competence. In brief, efficiency is not entirely a function of management. It is equally true that certain ineradicable and discernible differences in individual abilities demand recognition by administrators who seek to achieve the optimum operating efficiency of the public bureaucracy. An inflexible insistence upon the seniority factor in reductions in force may impede the realization of this objective. EFFICIENCY

The policies of unions in the public service with respect to other aspects of personnel management are occasionally as ambiguous as those which prevail in the matter of job security and promotion. Various associations have joined forces with civil service reform groups in supporting projects which would improve the practice of public administration. In some instances, however, they have opposed measures of substantial merit but in some fashion hostile to their immediate interests. The position of the N F F E on two issues of considerable importance will illustrate each of these tendencies. In January 1940 the Federation sent a letter to each member of Congress urging a reconsideration of the decision of the House Appropriation Committee to refuse to recommend funds for the operation of the Council of Personnel Administration established under an executive order of June 24, "Ibid.,

p. 182.

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1938. 48

The union claimed that such alleged economy in fact represented virtual "extravagance and waste in that a denial of the comparatively small amount of money would defer the development of standardized personnel practices which would result in more efficient service at lesser cost." 4 9 The Council's work to date and the long-run purposes which it was designed to achieve have been universally endorsed by impartial observers and the demand for its continuation by a union of public employees is indicative of a commendable interest in the advancement of the standards of public personnel administration. In 1943, however, certain actions of the N F F E leaders seemed to reflect a somewhat less admirable determination to retain several employee privileges, admittedly hard won, at the expense of administrative efficiency. On December 18, 1942 the War Department issued a circular 50 which required civilian employees to procure Social Security numbers for purposes of payroll identification. In a letter to the Civil Service Commission, the Secretary of War defended the proposal on grounds of military necessity, economy, manpower conservation, audit facilitation, and claimed that a universal numbering system could most expeditiously be established in the manner suggested inasmuch as thousands of employees had already obtained such numbers before entering public employment. Moreover it was pointed out that most of them would return to private industry after the war and that the creation of distinct procedures for the public service was unnecessary and wasteful. 51 The Director of the Budget, the Civil Service Commission, and the President's assistant in personnel administration concurred in the recommendations of the Secretary of War. 52 The N F F E uncompromisingly attacked the proposal and conducted a year-long campaign to prevent or postpone its introduction. Its objectives were not based in substantial measure upon consideration of the feasibility or efficiency of the plan but upon an openly expressed fear that the action of the War Department reflected an insidious design to replace or merge the Federal retirement system with the Social Security program. Its apprehension on this score continued to exert a decisive influence upon the Federation's position with respect to various proposals to centralize personnel records. President Steward thus appeared before the Senate subcommittee in charge of supplemental appropriaExecutive Order No. 7916. " Federal Employee, February 1940. 50 War Department Circular 412. 61 Letter dated February 9, 1943. w Federal Employee, January 1944, p. 16. 48

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tions in December 1943 and urged the elimination of a $688,000 appropriation for the Civil Service Commission which would enable it to undertake the centralization of records. The N F F E apparently considered the defense of the retirement system of such paramount importance that it did not hesitate to join with Senator McKellar in a rather unedifying attack upon the activities of the Social Security Board, the general "usurpation" of authority by administrative agencies, and the alleged use of funds for unauthorized purposes. 53 These incidents suggest the conclusion that public-service unions will usually support efforts to improve the quality of personnel management but that they will obstruct measures without regard to their intrinsic merit which are construed as detrimental to their immediate welfare or which jeopardize long-established privileges. Their attitude toward broader proposals designed to achieve fundamental reorganization of the public bureaucracy will illustrate a similar tendency. GOVERNMENTAL BEORGANIZATION

Federal employee unions have evinced considerable interest in reorganization programs which have been offered from time to time to improve the quality of public management. As early as 1919 the N F F E advocated the establishment of a central personnel agency endowed with adequate authority to undertake a wide range of functions which, it claimed with obvious correctness, the existing Civil Service Commission was neither staffed to undertake nor legally authorized to perform. Such an agency, it was urged, might develop programs for training, efficiency, promotions, and grievance adjustment as well as conduct customary recruitment and certification activities. The N F F E envisaged an organization which would replace the bipartisan Commission by a tripartite board representing the public, the administration, and the employees. 54 It lent continued support throughout the twenties to the movement to establish a central personnel agency and in 1929 and 1930 the association collaborated with the National Civil Service Reform League and the Institute of Government Research in recommending legislation directed toward governmental reorganization. In 1937 it enthusiastically endorsed a bill introduced by Senator Joseph Robinson to create a single administrative head of the Civil Service Commission but it suggested that the administrator be selected on the basis of competitive examination in accordance with the original recommendaFederal " Federal

63

Employee, Employee,

January 1944, p. 16. October 1919, p. 6 2 5

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tion of the President's Committee on Administration Management. 55 The N F F E had greeted the report of the President's Committee as a "milestone in the direction of sound Federal Personnel administration" and expressed hope that Congress would "lose no time in acting favorably upon its recommendations." 56 In the celebrated struggle over President Roosevelt's reorganization program in 1938, this employee organization vigorously supported proposed legislation relating to personnel management. Such reservations as it did entertain were of negligible importance. The recommitment of the reorganization bills by the House of Representatives was regarded by the N F F E as a major setback to its objectives. The union's journal regretfully announced the defeat of the proposals with the comment that they had contained "the greatest number of progressive, constructive . . . provisions ever gathered into a single measure." 5 7 The split in the labor movement in the Federal Service in 1938 produced a number of interesting divergences in attitude that were reflected in the struggle over the reorganization program. The A F G E adopted the position of many A F L unions and attacked the proposals before Congress on the ground that their enactment would result in a dangerous augmentation of administrative powers. It was apparently feared that contemplated reorganization would impair the effectiveness of the powerful A F L legislative lobby by requiring a reorientation of pressure activities in the direction of the administrative branch of the government where officials might prove less susceptible to influence than the legislature. The A F G E called upon its locals to participate in the celebrated telegram campaign which was organized on a nationwide scale to persuade Congress to reject the reorganization measures and it hailed the defeat of the "obnoxious" bill in its official publication. 58 The newly formed UFWA, however, gave the program its unqualified support. These marked differences in outlook appear to indicate that affiliated unions generally tend to view such measures in accordance with the general policy of the unions with which they are associated and to evaluate them in terms of the rather broad perspective of their potential effect upon the labor movement as a whole. Independent associations, on the other hand, base their reaction upon a more restrictive calculation of the immediate and direct impact of reorganization proposals upon employee welfare. Federal Employee, July 1937, p. 3. Federal Employee, February 1937, p. 3. 67 Federal Employee, May 1938, pp. 3, 17. 68 Government Standard, April 15, 1938; see also Johnson, op. cit., p. 162. 55 56

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Associations of public employees can hardly be expected to lend enthusiastic support to programs which aim to achieve economies in the cost of government. The curtailment of services and the reduction of personnel will scarcely be advocated by rank and file employees or by their representatives. Functions of this sort must be discharged by fiscal and personnel officers specifically designated for these purposes. The primary objective of a union in public or private employment is to procure for its membership the best attainable terms of employment and to enlarge its membership wherever possible. These associations will accordingly resist "economy drives" as a matter of corporate selfprotection. Thus all unions in the public service sought ceaselessly in the thirties to secure the restoration of salaries to their original level following the imposition of pay cuts in the early years of the depression. Indeed the very formation and growth of public employee unions are intimately associated with the organization of collective protest against allegedly excessive parsimony on the part of government authorities. The establishment of the NFFE, for example, was in substantial part a staff response to the failure of public wage levels to keep pace with the increased cost of living during World War I. The emergence of the UFWA was in part a consequence of government economy measures introduced in 1937. In a larger sense this latter union was a product of the general split in the labor movement during this period but the immediate occasion for its formation in the Federal Service was the threatened elimination of emergency agencies set up in the early years of the national recovery program. The older unions were somewhat indifferent to the predicament of temporary employees who had not been incorporated into the civil service system. The split in the ranks of organized labor provided these government workers with a particularly favorable opportunity to form their own organization and to affiliate with the newly established Congress of Industrial Organizations. Accordingly they appointed from among their numbers a "Committee Against Fake Economy" which vigorously and militandy opposed a reduction in relief expenditures.59 The UFWA was subsequently created from this nucleus and most of its early leaders were drawn from the ranks of officials and employees within the WPA. 60 The new union continued throughout 1940 to advocate the 68 Officers' Report, First Convention, United Federal Workers of America; see Federal Record, September 18, 1940, p. 1. 80 President Baker had been an assistant WPA administrator; Union Local I had been originally formed in the WPA; UPWA President, Abram Flaxer, had been active in the promotion of unionism within the WPA during the thirties.

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continuance of WPA projects in which it had recruited a substantial membership. A widely publicized "Campaign Against Ruinous Economy" ( CARE ) was undertaken in that year. The services of the CIO's national publicity director were enlisted to focus attention upon the adverse social and economic effects which the elimination of WPA or REA projects would allegedly entail. 61 The opposition of organized public employees to government economy programs should not be regarded as an unmitigated evil springing from considerations of self-interest in fundamental conflict with the public welfare. The proponents of economy measures frequently reflect equally selfish interests of groups bent upon securing a reduction of governmental expenditures which would operate to their particular advantage. Secondly, those groups and persons who, disinterestedly and out of deeply felt convictions of social desirability, advocate a drastic reduction in the "mammoth" bureaucracy are often lacking in factual information and concrete data upon which an intelligent program of bureaucratic contraction may be based. It is from the interplay of these opposing interests, selfish and otherwise, that workable compromises can be democratically conceived and effected. Auxiliary personnel agencies are frequently responsible for the accumulation of information and the formulation of practicable plans to effect economies on a rational basis. But these agencies are often unwilling or lack personnel or finances to perform these functions. Even if they should be undertaken, the need for employee organizational activity would not be obviated. For data in these matters may be subject to diverse interpretations and the point of view of employees, personnel officials, and private interest groups may vary considerably. Each of them should be accorded an adequate opportunity to present its case before legislative authorities prior to the formulation of ultimate policy. English experience has shown that, given a firm decision on the part of policy-making authorities to carry out a program of retrenchment, employee associations may furnish practicable suggestions to achieve this end with a minimum of dislocation. The proposals of the staff side of the Whitley Councils in the customs and excise departments in Great Britain following the First World War furnished the basis for the retrenchments which were in fact effected. 62 Such instances of constructive staff contributions to personnel management are admittedly rare but on the other hand, employees have seldom been vested with advisory responsibility in these 81 82

Federal Record, March 20, 1940, p. 4. E. N. Gladden, The Civil Service, London, Staples, 1945, pp. 85, 86.

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matters. Their assumption of initiative can reasonably be expected only if some formal scheme of employee consultation is established. CIVIL AND POLITICAL LIBERTIES

Unions in the public service have adopted markedly different positions with respect to the problem of civil liberties in so far as it relates to government employees in particular and to citizens in general. The more conservative "bread and butter" organizations whose programs are confined strictly to personnel questions are less disposed toward manifesting any particular concern with the general issue of civil liberties than are other associations whose range of interests encompasses broad social objectives. The variations in attitude may be attributed in part to the fact that the former type of union is not normally confronted with the issue of civil liberties in the pursuance of narrowly defined aims. The commonly accepted technique of the pressure group designed to secure specific benefits for designated groups of persons is adequate to the accomplishment of its objectives. The implementation of the program of the latter type of organization, however, demands a fuller measure of civil and political rights. Thus the UFWA and the SCMWA were driven by the specific content of their programs to challenge legislative restrictions upon civil service political activity contained in the Hatch Act.83 Further divergences are revealed in the attitude toward measures considered necessary to assure the elimination of disloyal personnel within the ranks of the civil service. The United National Association of Post Office Clerks provides explicitly in its constitution that "membership in organizations advocating the overthrow of the Government of the United States by force or engaging in subversive activities shall be deemed good and sufficient cause for immediate dismissal." 64 Most of the other unions in the Federal Service share these sentiments unreservedly. In the 1941 the UFWA, however, denounced a proposed amendment to the Department of Justice's appropriation bill which directed the Federal Bureau of Investigation to investigate employees alleged to belong to subversive organizations as an "attack upon Federal worker's rights." 65 In the same year this association criticized the investigating procedures of the Civil Service Commission and advocated the imposition of restrictions upon the scope of its ac"UPWA v. Mitchell, 67 Sup. Ct. 556 (1947), 56 F. Supp. 621 (D.C.) 1944, Officers' Report to UFWA Convention, April 1946. M Art. Ill, Sec. 4. m Federal Record, April 18, 1941, p. 3.

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tivities which would require it to furnish notice and written charges to employees accused of belonging to subversive organizations, to provide for a hearing, to refrain from asking questions of suspects which were not related to their immediate duties and even from investigating their personal as distinguished from official conduct. 66 The fact that subversive sympathies or activities manifestly could not be proven if such procedural requirements were made mandatory indicates rather conclusively that the U F W A opposed loyalty investigations as a matter of fundamental principle or alternately that its leadership had a vested interest in opposing the establishment of effective procedures for the dismissal of disloyal personnel. Unique among civil service associations, the U F W A has shown an active interest in the general problem of civil liberties. Thus in February 1942, the union sent a letter to all locals urging their vigorous support of CIO President Philip Murray's attack upon the Congressional Committee on Un-American Activities ( Dies Committee ) ,67 During the same period it called upon its members to write to their Congressmen in support of the proposed fair employment practices and anti-poll tax legislation. In June 1943, UPWA President, Miss Eleanor Nelson, appeared before a Senate appropriation Committee and expressed the union's opposition to an amendment proposed by Senator Kerr which would deprive Messrs. Robert Morss Lovett, Goodwin B. Watson, and William E. Dodd, Jr. of their employment in the Department of the Interior and in the Federal Communications Commission on grounds of their allegedly subversive sympathies. In none of these activities was the U F W A joined by other organizations of public employees. Their scrupulous abstention in these matters has on occasion appeared to border upon dangerous complacency. It is entirely proper that the N F F E should point with pride to the fact that it has never been obliged "to conduct a 'purge' to rid itself of allegedly subversive or radical or irresponsible elements," 6 8 but it is perhaps placing an exceedingly high premium upon respectability in the light of trade union history when a labor organization proclaims that it "never has brought upon itself or its members or Federal employees as a whole the unfavorable notice of the press or public, or any section thereof." 6 9 It is needless to observe that organized labor in the public service "Ibid., May 2, 1941; July 4, 1941; see also issue of March 20, 1942 in which it was urged that similar restrictions be placed upon the F.B.I. 07 Ibid., February 13, 1942. 88 From N F F E Organizing Circular entitled "A Message of Urgent Importance to All Federal Employees." 60 Ibid.

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as elsewhere has rarely attained any significant objective amid an atmosphere of universal approbation. The continued progress of the labor movement in the public service may compel a reorientation in its traditional indifference toward the issue of civil liberties. The particular exemplification of this new outlook by the UPWA may leave much to be desired. But the decision to display an articulate interest in civil liberties has much to commend itself. A similar resolve on the part of other associations whose program and leadership are universally respected would appear not only legitimate but desirable. The feared loss in "respectability" which they might suffer would be outweighed in the gain to the cause of individual and corporate freedom to which organized labor groups can ill afford to remain indifferent. APPEALS PROCEDURES IN THE SETTLEMENT OF GRIEVANCES

Associations in the public service have all sought the establishment of appellate machinery and procedures which would effectively prohibit arbitrary and discriminatory disciplinary conduct by administrative officiais especially in cases of dismissal. From the early 1900's, the convention platforms of almost all of the postal unions have contained provisions calling for the creation of appeals machinery. Other unions of Federal employees have placed the attainment of an appeals system in the forefront of their objectives. In his report to the twentieth convention of the NFFE, President Steward called attention to the "need for an appellate body to review the decisions of administrative officials involving serious disciplinary action, such as dismissals and demotion." 70 The broader issue of personnel appeals in public administration and the degree to which procedures should provide for participation by employees or impartial outsiders will not be explored at this point.71 The demand for an appeals board will instead be approached from its more restricted standpoint as a union objective. Two considerations have usually motivated public employees in their demand for formal appeals machinery. It has been alleged that the much vaunted job security of the civil service is in fact illusory. Secondly, organized government workers have come increasingly to regard appeal procedures in which some provision is made for employee representation as indispensable to the protection of public-service unionism. Appearing before the Senate Civil Service Committee in 1939, ™ "A Message of Urgent Importance to All Federal Employees." 71 See Chap. XI for a discussion of this point in terms of its administrative feasibility rather than as a union objective.

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President Baker of the United Federal Workers of America presented the case for appeals machinery as a safeguard of job security. 72 It was pointed out that government employees whose positions are not covered by civil service laws have virtually no protection against arbitrary dismissal, demotion, or other forms of discrimination. In so far as employees who enjoy civil service status are concerned, existing statutory safeguards are negligible. Although officials are required before dismissing civil servants to furnish them with a copy of charges and with an opportunity to reply thereto, they are under no obligation to grant them a hearing and the courts will refuse to review dismissals even in instances where substantial discrimination is manifest as long as prescribed statutory procedures are respected. Citing several court decisions President Baker correctly remarked that "judicial inquiry into the substance of the issues presented is foreclosed." 7 3 T h e most celebrated case of alleged discrimination against union activity in the public service was the dismissal and subsequent reinstatement in 1934 of John L . Donovan from the Labor Advisory Board of the National Recovery Administration. 74 Mr. Donovan, President of the A F G E local in the NRA, was dismissed from his position on June 18, 1934. Claiming that his discharge had been motivated by administrative resentment of his union activities, he requested NRA administrator, General Johnson, to submit the dispute to impartial arbitration by the National Labor Relations Board. General Johnson was under no compulsion either to submit to arbitration or to accept its findings. Nevertheless the national labor policy which the administration was then seeking to establish and promote in private industry could hardly be reconciled with a charge of peremptory dismissal and of anti-union discrimination in public employment particularly within that agency which had become the very symbol of the New Deal program. T h e case was submitted to arbitration. The board confirmed the charge of anti-union discrimination and recommended Mr. Donovan's reinstatement. "After reviewing all the evidence, we are satisfied that the controlling reason for Donovan's discharge was his conduct as the head of a delegation of union employees." 7 5 Admittedly the dismissed employee had resorted to intemperate tactics in his effort to secure the alleviation of a union grievance and his actions had provoked administrative superiors to severe measures of 72 Hearings, 76 Cong. 1 Sess. Sen. Res. 198, Civil Service Committee, April 20, 1939, pp. 419-439. 73 See Golding υ. U.S. 78 Ct. CI. 682; cert. den. 292 U.S. 643.

M

n

See AFGE ex. rei. John L. Donovan v. Hugh Johnson.

Ibid., p. 27.

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retaliation and discipline. But as the arbitration board pointed out: "Conduct more temperate might have been expected of him if he had not had to rely on methods of agitation alone." 76 The specific circumstances which preceded the Donovan dismissal point further to the need for some sort of appellate machinery. Following the discharge of a stencil cutter in the NRA, an AFGE local unsuccessfully attempted to confer with supervisory officials. Whatever were the merits of the case, supervisory personnel refused to meet with Donovan in his capacity as president of the union local but only as an individual public employee. The fact that no attempt was made "to work out . . . some more satisfactory procedure for the handling of union grievances seems to us," declared the arbitration board, "to have been an unjustified interference with (the) employee's right of selforganization." 77 For under such circumstances the right to form associations becomes an empty privilege as group representation is denied recognition even upon an ad hoc basis. Finally, the dismissal of the union president was made under conditions which in turn denied him any means of securing an impartial review of his grievance. "When Donovan was discharged, and until the case was finally submitted to arbitration, there existed no method by which he could obtain redress." 7 8 That anti-union discrimination may exist even within the postal service where employee associations have enjoyed recognition and at least a tolerant acceptance for many years was made strikingly evident in a recent dismissal case which was unsuccessfully appealed to the United States Supreme Court.79 In this case, administrative officials refused to consent to its resolution through ad hoc arbitration procedures. Significantly enough, the employee in question failed to secure reinstatement as had Donovan in the NRA case. It seems apparent from an examination of the available evidence that the dismissal action in the postal service was prompted by the employee's union activity. On March 1, 1937, Jonathan Levine, a clerk in The New York Post Office for eight years and a member of Local 10 of the National Federation of Post Office Clerks, was dismissed from his position on the ground that his conduct had brought the service into disrepute. Ineffi™ Ibid., p. 28. " Ibid., p. 27. nIbid. ™Levine v. Farley, 107 F. ( 2 d ) 186 (App. D.C., 1939), cert, den., 308 U.S. 622 ( 1 9 4 0 ) . See also Hearings, House Committee on the Civil Service, 76 Cong., 3 Sess., Bills Proposing the Establishment of Courts or Boards of Appeal for Civil Service Employees, April 16-18, 1940, pp. 95-97.

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ciency in the strict sense of the term was not a factor in the case and indeed could not have reasonably been offered as a basis for discharge inasmuch as the employee had attained an efficiency rating of 98 per cent immediately previous to the events which led to his dismissal. Levine, however, had been a member of a union committee of seven, appointed by the local in 1936, to work for the reinstatement of certain employees who had allegedly been dismissed for their union activity. Unable to obtain satisfactory consideration of the union's grievance from supervisory officials, the committee resorted to a publicity campaign and appealed for support to the public, to various Congressmen, to the Post Office Department, and to the American Federation of Labor. Although dismissal proceedings were originally undertaken against all members of the committee, Levine alone was subsequently discharged. An appeal was then brought before the courts in an unsuccessful attempt to obtain a writ of mandamus ordering his reinstatement. The Supreme Court affirmed the judgment of the lower courts and the case was legally concluded. 80 The courts pointed out that the resort to aggressive publicity methods designed to bring external pressure to bear upon departmental officials was sufficiently embarrassing to warrant dismissal as a reasonable exercise of administrative removal power. Hence arises the dissatisfaction of employee organizations with existing legal and personnel arrangements which render the courts "powerless to review the merits of a valid charge" 81 but provide no means whereby grievances may be resolved at the administrative level other than by the unilateral and virtually unreviewable action of operating officials. Appearing before the House Civil Service Committee, the legislative representative of the National Federation of Post Office Clerks Local 251 argued persuasively for the creation of appeals machinery on the ground that it was needed to eliminate a widespread fear of reprisal which prohibited the free articulation of complaints, discouraged independent and thoughtful writing in union journals, and induced a dullness and passivity in union meetings. Such an "unhealthy . . . attitude has become imbedded in the Postal Service," it was alleged, "because of an absence of the designation of the rights of employees." 82 In so far as organizational functions were concerned, it was claimed that "there has never been any definite clarification of what union officers may or may not do in their efforts to improve Levine v. Farley, 308 U.S. 622 ( 1940). Hearings, House Civil Service Committee, April 16-18, 1940, p. 97. "Ibid., p. 96. 80

81

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and maintain the conditions of the membership." 83 The ensuing uncertainty permits unfriendly officials to accuse an employee of bringing the service into disrepute and provides a too ready "means of getting rid of active union members who might incur the ill will of their superiors." 84 The appellate arrangements desired by the various unions in the public service differ in detail but basically coincide in their insistence that some provision be made for employee representation and participation. The president of the United National Association of Post Office Clerks succinctly summarized this point of view in his statement before the Civil Service Committee of the House of Representatives. "No matter what board you might set up the employees involved should be represented thereon either personally or by an agent." 85 A resolution adopted at the NFFE's 1944 convention called specifically for the creation of a departmental appeals board with employee representation and an appeal therefrom to the Civil Service Commission with an opportunity to examine witnesses, a privilege which existing statutes and executive orders do not confer as a matter of right.88 In testimony before the Civil Service Committee of the House of Representatives, President Stengle of the AFGE asserted that the existing departmental grievance procedures failed to furnish employees with adequate protection against arbitrary administrative action and indicated his organization's support of a "board of appeals . . . independent of any influences within a department." 87 On the same occasion the representatives of the UFWA elaborated a detailed plan for a decentralized system of ad hoc appeal boards designed to resolve grievances at their source through consultation between immediate supervisors and union adjustment committees. If this procedure failed, an impartial referee was to be selected by both parties to the dispute. It was proposed that this official be authorized to hold hearings and to exercise the power of subpoena, which is presently denied personnel officials, and that an executive order finally direct that his decision be accepted. 88 A program of this sort is unlikely to receive serious consideration by public authorities. It is interesting, however, as an indicaIbid., p. 94. Ibid. 85 Hearings, House Civil Service Committee, April 16-18, 1940, p. 22. 86 37 Stat. 539, August 24, 1912; Civil Service Commission Rule XII. 81 Hearings, House Civil Service Committee, April 16-18, 1940, p. 38. 88 Ibid., pp. 64-67. See also Hearings, 76 Cong., 1st Sess., Sen. Joint Res. 198, Senate Committee on the Civil Service, pp. 422-433; Federal Record, March 3, 83 81

1939.

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tion of the extent to which the demand for staff recognition can proceed in the direction of administrative syndicalism. Its adoption would probably imperil the maintenance of bureaucratic discipline and responsibility. COLLECTIVE NEGOTIATIONS WITH ADMINISTRATIVE OFFICIALS

From a desire to secure representation on civil service courts of appeal, organizations of public employees have broadened their objectives to include a demand for a measure of consultation in other fields of personnel administration. This tendency has become particularly manifest in recent years and not unexpectedly has reached its most articulate expression in the program and activities of the United Public Workers of America. From its very inception, this union advocated bilateral negotiations with administrative officiais as the basically appropriate technique for the conduct of labor relations in government employment. To a degree which seemed to set it fundamentally apart from its rivals, it came to regard public employees not as another interest group seeking special privileges through lobbying but as a body of workers confronting an employer and hence in need not so much of representation before legislative authorities as of conference machinery whereby understandings could be reached with administrative officials governing conditions of employment. The permissible scope of such collective negotiations and the requisite degree of enabling legislative authorization and supervision have not been made the subject of any explicit or rationally elaborated program but the UPWA's objectives in this field served to raise in dramatic fashion the entire question of collective bargaining in the public service as an alternative to the statutory determination of working conditions. 89 The UFWA program, for example, was in marked contrast to the position adopted by the A F L unions. At the 1937 A F L Convention the legislative committee commented as follows upon a resolution favoring the extension of collective bargaining into the pubhe service: "Some of the most successful . . . unions now have their wages, hours and other fundamental working conditions determined by Congress. They expressed a deep desire that this method be not disturbed." 9 0 Several years later in response to a resolution proposed at an A F L ® See Resolutions adopted at the Constitutional Convention of the United Public Workers of America, Atlantic City, April 2 3 - 2 6 , 1946. °° Proceedings, 1937 Convention, American Federation of Labor, Res. No. 65, p. 328.

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convention in favor of the extension of the National Labor Relations Act to public employees, the legislative committee indicated a preference for legislative methods wherever they were deemed necessary or desirable.91 The preamble to the constitution of the UFWA, however, asserted by way of contrast the allegedly "fundamental right of all people in the United States in both public and private employment to organize into unions of their own choosing for purposes of collective bargaining with their employers." That this objective went somewhat beyond the exuberant vagueness of a preamble declaration was indicated in the 1941 Convention of the CIO. The desire of its affiliated unions in the public service for collective bargaining was specifically defended on the ground that civil service tenure while necessary to end the use of government jobs for political spoils, is no substitute for the protection . . . afforded by the full exercise of the right to organize and to bargain collectively through freely chosen representative.92 Achievements in this direction have necessarily fallen far short of aspirations in view of the existing statutory determination of the most significant conditions of public employment. Like its rivals, the UPWA built as powerful a lobby as it was able to support. But unlike them it sought wherever possible to implement the detailed legislative prescription of working conditions by interpretation or administration through procedures of joint consultation. Tendencies in this direction may be discerned in a number of the union's recent activities. In 1938 it sought to confer with the Bureau of the Budget in an attempt to secure an increase in the estimates for the Civil Service Commission, the Department of Labor, the Veterans Administration, and the Customs Service. Its action in this respect although not productive of concrete results or even of any substantial degree of formal consultation represented a development in marked conflict with the lobbying practices of public-employee organizations.93 In 1941 the union requested a "wage conference" with the Bureau of the Budget to consider salary bills then pending before Congress. "We feel that it would be more desirable if we could discuss the problem with you and in conference agree on a plan which would receive the full support of all concerned." 94 91 Proceedings, 1944 Convention, American Federation of Labor, Res. No. 99, p. 70. 92 Proceedings, 1941 Convention, Congress of Industrial Organizations, p. 232. 83 Federal Record, November 12, 1938. " Ibid., December 19, 1941, p. 3.

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In 1943 the U F W A addressed a letter to President Roosevelt requesting the delegation of "authority to an appropriate agency to increase the basic pay rates of Federal employees to compensate for increased living costs brought about by the war." 9 5 The demand for the collective determination of conditions of employment has on occasion expressed itself in a desire to share in a wider range of personnel functions than those which relate exclusively to wage matters. Thus the important Executive Order of June 24,1938 was interpreted by most employee organizations as a welcome and longsought extension of the merit system and position classification but it was hailed by the U F W A on the ground that it provided organized employees with an "opportunity to participate in the development of . . . personnel policy." 9 6 The union's journal announced: "We were invited by the implications of the Order . . . to advise on all the major points of policy." 9 7 A draft of official U F W A policy covering personnel questions deemed suitable for union-management collaboration was prepared. It was suggested ( a ) that a continuing relationship be established between personnel directors and union representatives and that the qualifications of the former should include experience and training in the conduct of labor relations, ( b ) that personnel policy be submitted to employee representatives for discussion prior to its formal adoption by agency personnel directors and by the interdepartmental Council of Personnel Administration, ( c ) that appeals machinery with employee representation be created for the redress of grievances and ( d ) that union in-service training committees be recognized in each agency to work with the personnel director. 98 In 1942, the U F W A submitted a plan to President Roosevelt for personnel reorganization in the Federal Service which called for the appointment of an Administrator of Federal Personnel to be assisted by an advisory board representing operating officials, the Civil Service Commission, the Bureau of the Budget, the Council of Personnel Administration, and the representatives of organized employees. The UFWA's unusual emphasis upon collective bargaining in the public service seems unfortunately to reflect either a rash impulsiveness derived from a failure to analyze the problems of personnel administration critically or alternately a demand for a scheme of joint consultation 85 Ibid., May 19, 1943, p. 3. " Ibid., July 22, 1938. " Ibid., August 5, 1938. 88Ibid..

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which breaks so radically with present practices as to provide a very dubious basis for successful experimentation. The UFWA program aspired to a transformation in public employee relations so extreme in its orientation that some of its leaders were led to a disparagement of the most progressive and successful experiment in public personnel administration which has ever been undertaken in the United States. Commenting on the celebrated Employee Relationship Policy of the Tennessee Valley Authority, which in the course of a few years has become a landmark in public labor relations," the union's journal remarked: The policies of the Authority . . . stem from the now obsolete Baltimore and Ohio plan of "union-management cooperation" which represents a compromise between unionism and company unionism . . . Thus perhaps the most fundamental problem of the TVA employees is to advance from the dependent relationships established under the present Employee Relationship Policy and obtain true independent collective bargaining on equal terms with management.100 In so far as associations of state and local employees are concerned, collective bargaining has long constituted an objective of primary importance. It has, moreover, been realized in a sufficient number of instances as to remove the issue from the area of remote objectives into the field of current public labor policies. At the First Constitutional Convention of the CIO held in 1938, a resolution was adopted which favored the extension of collective bargaining to state and municipal employees.101 The "quasi-citizenship" status of government workers, the curtailment of their political activities, their exemption from the benefits of social security legislation, and the failure to accord them the right to bargain collectively with their employers were equally condemned as an unwarranted deprivation of their civil and economic liberties. A similar stand was taken by the State, County and Municipal Workers of America ( CIO ) at its Second Biennial Convention in 1941. The Officer's Report to the Convention deplored a continued reliance "on the legislative process to improve wages and working conditions" and declared emphatically that "negotiations on collective bargaining (must) be recognized as the sine qua non for improving the living standards of government workers." 102 See Chap. X. Federal Record, July 22, 1938, p. 8. 101 First Constitutional Convention, Congress of Industrial Organizations, 1938, Proceedings, p. 212. 102 Officers' Report to the Second Biennial Convention SCMWA (CIO), 1941, pp. 9-10. 89

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At the 1944 convention of the same organization, collective bargaining was no longer discussed as an ultimate objective but rather in terms of the content and extent of existing bilateral relationships with various governmental authorities. These ranged from jointly signed agreements to unilateral statements of administrative officials which defined policies governing the conduct of collective negotiation with organizations of public employees. 103 The American Federation of State, County and Municipal Employees ( A F L ) has conducted a similarly vigorous campaign to secure the introduction of collective bargaining into the public service. 104 103Officers' Report to the Fourth Biennial Convention SCMWA (CIO), 1946, p. 21. 101 See "A Decade of A F L Unionism."

CHAPTER

VII

strikes and political activity in the public service C O M M E N T I N G in 1 9 0 9 upon a strike of French postal employees, President Nicholas Murray Butler declared:

To me the situation which this problem presents is, beyond comparison, the most serious which modern democracies have to face. It will become more insistent and more difficult as Government activities multiply and as the number of civil service employees increases. Now is the time to settle the question on right principles once and for all. 1 Although this critical issue in public personnel management was so astutely perceived some forty years ago, it is fairly evident that little progress has been made toward its resolution in any conclusive fashion either on the basis of generally accepted right or incorrect principles. The attempt to approach the problem through legal formulae or pronouncements which categorically deny government employees the right to strike has far from provided a satisfactory solution to this troublesome question. For, as Cahen aptly remarked many years ago, "A strike is not a matter of right, but a brutal and spontaneous fact precipitated by events." 2 The history of public employee relations has amply confirmed the truth of this observation. A recent survev of more than one thousand strikes of government employees in the United States has shown that the reality and the equally ominous threat of such action by government employees still constitute a critical problem in public personnel 1 New York Sun, M a y 18, 1909, cited in Spero, The Labor Movement in a Government Industry, p. 18. 2 Cahen, Les Fonctionnaires, p. 363. " L a grève . . . n'est pas un droit, mais un fait brutal et spontané. C e sont les événements qui l'imposent."

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administration.3

Within a single year transit employees in the nation's metropolis have expressed their determination on several occasions to resort to strike action. Teachers in the city of Buffalo not only waged a successful strike against the municipal authorities but gained widespread public support of their conduct. Employees of the Inland Waterways Corporation, an instrumentality of the United States Government, struck in violation of an express statutory prohibition of such action. 4 Workers at Oak Ridge, Tennessee, engaged in a public power program vitally related to the development of atomic energy, have threatened to enforce their wage demands through strike action. 5 In Great Britain the return of the Labour Government to power resulted in the almost immediate removal of stringent restrictions formerly imposed upon civil service associations. The elimination of these restraints unfortunately was not accompanied by any concrete program of public labor relations for a socialized economy. The resolution of the strike problem in particular remains disturbingly in abeyance. The civil service clerical associations have reportedly asserted the right to engage in strike action. In the United States the great proportion of the strikes in public employment has been short-lived and, according to Ziskind's exhaustive study, they have been undertaken only under extreme provocation. 6 Associations of public employees almost without exception have explicitly renounced the strike as a legitimate operational technique. The constitution of the N F F E provides that "under no circumstances shall the Federation engage in or support strikes against the United States Government." 7 Testifying before the Civil Service Commission of Inquiry, President Steward declared flatly that the strike question has "never for a moment . . . been a live subject" in the Federal Service. 8 The provisions of the constitution of the A F G E are equally forthright in proclaiming the association's resolve to refrain from all acts of militancy against the government employer. The American Federation of Government Employees is unequivocally opposed to and will not tolerate strikes, picketing or Ziskind, One Thousand Strikes of Government Employees, passim. Section 305 of the Government Corporation Appropriation Act for the fiscal year 1947. Information furnished in letter to writer from Oliver C. Short, Director of Personnel, Department of Commerce, February 6, 1947. 5 New York Times, December 10, 1947. ° Ziskind, op. cit., p. 200. 7 NFFE Constitution, Art. II. 8 Minutes of Evidence, p. 59. 3

4

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other public acts against governmental authority which have the effect of embarrassing the Government.9 Lest critics of the union be unaware of this declaration of policy, the clause concludes with the stipulation that "this provision of the constitution shall be printed in all issues of the official publication of this organization." 10 The constitutions of the postal organizations contain similar selfdenying provisions. A typical declaration is contained in the constitution of the United National Association of Post Office Clerks: "Under no circumstances shall this Association engage in or support orally or financially strikes against the United States Government." 11 Associations of public employees at the state and local levels, however, have exercised or asserted the right to engage in strike action. That the enforcement of union demands in this fashion has not been extensive is due largely to the fact that such tactics are deemed ineffective or inimical to organizational welfare rather than improper. President Zander of the AFSCME has declared that his association "recognizes that the use of the strike weapon would be fatal to accomplishment in public employee organizations. Therefore, the strike is not used." 12 A statement of this sort appears to imply that if circumstances should indicate that union ends might be served effectively through strike action, resort to such conduct might be undertaken. The policy of the SCMWA (CIO) as announced by a former president, reflects a similar approach to the strike issue in terms of expediency. We are confident that we can employ these methods (legislation, education and negotiations) with sufficient force and effectiveness to forward the interest of our members without having to resort to strikes.13 The constitution of this union prior to its recent amalgamation with the United Federal Workers of America declared: "It shall not be the policy of this organization to engage in strikes as a means of achieving its objectives." 14 A certain latitude was clearly intended, however, in the formulation " AFGE Constitution, Art. II, Sec. 3. 10 Ibid. 11 UNAPOC Constitution, Art. II, Sec. 2. "Zander, Public Management, September 1937, p. 260. 13 Flaxer, Public Management, September 1937, p. 264. " UFWA Constitution, Art. II, Sec. 2.

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of policy since another article of the constitution outlined specific procedures to be followed in the event of strike action. After a local union has exhausted all other methods to attain its collective bargaining objectives and is considering strike action it . . . shall be guided by the advice and decisions of the National Officers. The National Executive Board shall establish rules and regulations governing strike procedure.15 A somewhat similar provision was incorporated in the constitution of the recently formed United Public Workers of America. After a local union has exhausted all other methods to attain its collective bargaining objectives and is considering strike action, it shall immediately advise the International President of the contemplated action. The Local Union shall be guided by the advice and decision of the International President. Officers of the Local Union calling strikes not approved by the International President may be suspended for such violation.16 The UPWA denied that the strike procedure set forth in its constitution was intended to apply to the Federal Service. A letter sent to all members of Congress stated: "Authorization for strike action in federal agencies has never been given and never will be given." 17 The Executive Board of the union publicly reiterated this no-strike policy and asserted that the controversial clause of the constitution referred only to state and local jurisdictions. A veritable furore issued, however, over this alleged assertion on the part of a public employee union of the right to strike against the Federal Government. An immediate reaction was evidenced in the attachment of riders to appropriation bills which stipulated that no part of any appropriation contained in this Act shall be used to pay the salary or wages of any person who engages in a strike against the Government of the United States or who belongs to an organization of government employees that asserts the right to strike against the Government of the United States.18 Government employees were further required to sign an affidavit in which they individually repudiated the right to strike against the Government. The execution of this affidavit was held to constitute prima Ibid., Art. VIII, Sec. 15. " UPWA Constitution, Art. VIII, Sec. 15. " Public Record, June 1946, p. 7; July 1946, p. 8. 18 60 Stat. 595 ( 1 9 4 6 ) . 15

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facie evidence that the individual had complied with the statutory requirements.19 Violation of the law was declared a felony. It would reflect a dangerously limited awareness of the forces operative in the labor movement in the public service to dismiss recent manifestations of militancy as the product only of the aggressive and radical leadership which marked the growth of the UPWA. The generally conservative AFL union in the state and local field has adopted a somewhat similar position with respect to strike action and indeed has not refrained from such conduct out of any scruple regarding its basic propriety. It has sought to avoid such action wherever possible and has been unquestionably willing on occasion to submit to the rejection of demands deemed reasonable but whose enforcement through a strike would jeopardize the public interest or safety. Nevertheless it has sanctioned strike action in cases of extreme provocation. The expansion of the bureaucracy has in general provoked a heightened interest in developing more effective techniques for the realization of staff objectives. As the recruitment of an enlarged public labor force absorbs an increasing number of persons formerly employed in private industry and familiar with strike action as an accepted form of corporate conduct, the strike problem in the public service acquires a particular and critical urgency. The virtual absence of recognized procedures for the prompt and orderly dispostion of labor controversies makes it indeed remarkable that the incidence of strikes in public employment has been so slight. As Pfiffner has remarked: "It is hard to censure them [public employees] for using the strike weapon when all other means of securing tolerable working conditions and a living wage have been exhausted." 2 0 Attempts to prohibit strikes are by definition negative in their effect for they are not directed toward a consideration of the complex of factors responsible for the outbreak of employee unrest. The suppression of symptoms, however effective, will not eliminate deeply felt grievances. The recently enacted Labor Management Relations Act contains a provision which illustrates this barren approach to a critical problem. It forbids "any individual employed by the United States or 1 9 The Affidavit reads as follows: "I . . . do hereby swear (or affirm) that I am not engaged in any strike against the Government of the United States and that I will not so engage while an employee of the Government of the United States; that I am not a member of an organization of Government employees that asserts the right to strike against the Government of the United States and that I will not while a Government employee become a member of such an organization." x John M. Pfifiner, Public Administration, p. 247.

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any agency thereof including wholly owned government corporations to participate in any strike." 2 1 To believe that such proscriptions automatically eliminate the possibility of strikes in public employment is to indulge in dangerous selfdeception in matters where the public interest demands the highest degree of realism. During a discussion of the strike problem in France some forty years ago M. Massabruan declared in the Chamber of Deputies that "it is a veritable utopia on the part of the government to believe that it can prevent a strike of civil servants by declaring in a law that they may not strike." 2 2 Laws which are directed toward the prohibition of conduct by organized masses of people must be based upon a discriminating awareness of the possibility of group nullification. The application of effective sanctions to prevent mass work stoppages presents enforcement difficulties of great magnitude in a society in which the right to strike is recognized in extensive areas of economic life. If strikes are to be really eliminated in public employment, they must not only be declared illegal but the moral basis must be established for the mass acceptance of their illegality and social indefensibility. At the very minimum this demands the creation of procedures for the fair and orderly consideration of staff grievances. In an analysis of the strike problem in the public service Arthur Macmahon once wrote that with respect to activities that are peculiarly indispensable, where the injuries to the beneficiaries are immediate, inescapable and profound, a condition tends to arise in which the right to strike is neither denied nor utilized. The situation involves elements of balance that elude final statement. The condition seems unworkable to those who insist on logically tight systems, yet free institutions rest in part on just this sort of equilibrium. 23 To permit the resolution of the strike problem in the public service to be governed by a problematical and precarious social equilibrium is to invite the possibility of widespread social disruption should conflicting parties fail to reach agreement. The reality or even the threat of economic paralysis to the life of the community appears to represent a type of collective coercion which the public authorities may ° P . L . 101, 80 Cong., 1st Sess., Sec. 305; 29 USCA 188 (Supp. July 1947). See also Chapter 391, Laws 1947 New York State, Sec. 2 2 ( a ) . 22 Journal Officiel, May 9, 1907, p. 934. 23 Macmahon, "The New York City Transit System . . . ," Political Science Quarterly (June 1 9 4 1 ) , p. 198.

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enjoin without too delicate regard for an elusive and uncertain balance of forces. It may be true, as Spero has alleged, that a "continuity of governmental functions depends upon the cooperation of society as a whole quite as much as the rest of society depends upon the functioning of government." 24 It does not follow that public employees may claim a moral right to strike because workers in private industry engaged in functions of equal social importance enjoy this privilege. It is equally valid to contend logically and in terms of social necessity that the paramount obligation of government is to assure that continuity of vital functions, whether public or private, and hence to restrain conduct which would menace the uninterrupted provision of essential services. Public or private employees may measure the cost of strike action and employers may evaluate the relative cost of resisting or acceding to employee demands but the public employer cannot calculate the cost which would result from a rejection of staff demands which issued in a strike of governmental employees.25 Where the public service is vital, the cost of its interruption is incalculable. It is for this reason that strike action, as President Roosevelt once declared, "looking toward the paralysis of government by those who have sworn to support it is unthinkable and intolerable." 26 Even such a formerly hostile critic of the state apparatus as Harold Laski expressed the same thought, at least by implication, many years ago. "There are urgencies," he declared, "which cannot in the nature of things be withheld. The state must insure such a supply of them as will serve the total need of the community." 27 The supreme importance which Laski attached to these social needs led him to conclude that the "state cannot risk their production by private enterprise." 2 8 But by the same token it is equally apparent that society cannot risk their interruption by public servants charged with the responsibility of assuring their sustained provision. To contend otherwise is to invalidate the very justification of state enterprise. A different and more difficult situation arises in connection with state activities which lack any clearly apparent element of social urgency. Are employees engaged in such functions to be permitted to resort to strike action in the enforcement of their demands? The right 24 S. Spero, "Have Public Employees the Right to Strike—Maybe," 30 National Municipal Review 525 (September 1 9 4 1 ) . 25 See J. R. Hicks, The Theory of Wages, London, Macmillan, 1932, chap. 7, for a discussion of this issue in terms of its relevance in private employment. 26 New York Times, September 5, 1937. 27 Laski, A Grammar of Politics, p. 435. "Ibid.

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of certain groups of public employees to strike has been claimed on the ground that numerous services provided by government agencies are often no more or even less vital than many which are furnished under private auspices. Although it is recognized that the right to strike is "necessarily subject to limitation when employment is accepted in a business charged with a public interest," 29 it is urged that all government services are not so affected or that the presence of a "public interest" is so negligible as to render unwarranted the prohibition of strike action. This contention appears plausible on the surface but its validity is questionable on a number of grounds. The distinction between essential and nonessential functions would prove extremely difficult if not impossible to define to the satisfaction of the various parties involved. If park wardens may strike, are street cleaners entitled to the same privilege? If sanitation workers may strike, may employees in health inspection units or in public hospitals assert the same right? The attempt to draw a line of demarcation would provoke a continual struggle on the part of employee groups to secure inclusion within the privileged categories. Widespread union organization would accentuate these difficulties. Union leadership would be continually challenged to secure the widest possible extension of strike privileges. The prevalent broad jurisdictional basis of public-employee unions might mean in effect that certain subdivisions of the same organization would be permitted to resort to strike action whereas others would be compelled to abstain from militant conduct. Finally it should not be forgotten that a strike in the government service which does not impose immediate and profound injury upon the community still constitutes an open defiance of public authority. It is essentially the substitution of a private or group judgment for a government decision. Public acquiescence in such conduct implies the surrender by the government of the ultimate right to judge the merits of conflicting social claims which must of necessity include those disputes to which the government itself is a party. It was the syndicalist contention that only the free play of competitive social forces could provide an equitable solution to such controversies. The rejection of this assumption and the admission of the sovereignty of the state as a final court of adjudication and as a preponderant source of power precludes any sanction to overt defiance of the state's ultimate decision. The justification of strikes in private industry lies in the fact that 28 Wilson v. New, 243 U.S. 332, 1917. See also Society of New York Hospitals v. Hanson, 59 NYS ( 2 d ) ( 9 1 ) (NY Sup. Ct. NY Co 1945).

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they provide the only means thus far devised to resolve conflicts between parties of comparable legal and social importance. A test of strength in this context is a crude but reasonable and hence legitimate technique. Its rationale was expressed by the United States Supreme Court in the American Steel Foundries v. Tri-City Central Trades Council case in which a strike was defined as a "lawful instrument in the lawful economic struggle or competition between employer and employee as to the share or division between them of the joint product of labor and capital." 3 0 A different relationship emerges when the state and its agents become parties to a labor dispute. A public employer who becomes the coerced recipient of group commands has failed to retain that preponderance of authority which has been posited as an indispensable element of the state association. In this respect the magnitude of the challenge or the criterion of social urgency is essentially irrelevant in determining the propriety of strike action. The state qua state cannot permit group defiance and in so doing retain its quality of statehood. To wait upon consequences is to deny the validity of any particular priority to state decisions per se. In brief the resolution of the strike problem in the public service depends in the final analysis not upon an evaluation of social repercussions but upon a theory of the nature and value of the state. If its nature is held to demand a concentration of authority in excess of that possessed by any other group, a strike in the public service becomes almost a contradiction in terms. Its very rationale permits and indeed requires the state to suppress a challenge to its authority. If the prohibition of strikes in public employment is politically necessary, the imposition of such restrictions creates an urgent moral obligation on the part of the government to provide means for the equitable consideration of employee needs. The strike is the ultimate guarantee of labor's economic liberty in private industry. Its elimination in the public service when millions of persons have become government employees demands the establishment of alternate arrangements which will not destroy the substance of economic freedom and yet deny to its aspirants the exercise of their most cherished right in private employment. The solution to this major challenge which has arisen to confront modern bureaucracies lies, as Macmahon has pointed out, not in "stern negations but (in) positive preventives." 31 257 U.S. 184, 209 ( 1 9 2 1 ) . Macmahon "The New York City Transit System," Political Science (June 1941), p. 198. 30

31

Quarterly

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Moreover the issue cannot be resolved simply in terms of benevolence. It is unlikely that government employees will be satisfied with material compensatory benefits in exchange for their surrender of the liberties which organized labor has achieved in private industry.32 It is perhaps undesirable that they should adopt this point of view. Such an attitude is fraught with potential peril to the cause of associational freedom in a society apparently committed to an irrevocable expansion of the public power. The preservation of this freedom would appear to demand the establishment of some system of collective consultation which would recognize the right of public employees to share in the determination of their conditions of employment in exchange for the unequivocal surrender of the right to strike against their government employer. The development of a labor relations program in this direction would not eliminate the occasional impasse which negotiation and consultation would prove unable to resolve but under these circumstances the right of the state to prohibit strike action and to impose a unilateral solution would have been morally reinforced by the prior attempt to consult with employees in good faith. By the same token the defiance of the public authority would have lost that element of moral defensibility which now surrounds strike action resorted to as a measure of desperation in the absence of alternative remedies. POLITICAL ACTIVITIES

The prohibition of the right of civil servants to engage in political activity individually or collectively has generally been defended on the assumption that such restrictions are indispensable to the operation of a merit system and to the assurance of impartiality in the performance of public functions. The emergence of the labor movement in the public service has been responsible for a significant challenge to the commonly accepted justification of these restraints in terms of their necessity in the conduct of public personnel administration or their compatibility with the requirements of a democratic society. Clearly government employees must not be coerced to support political candidates or campaigns and they must discharge their responsibilities without discrimination or partisanship. But in their capacity as citizens some public servants have voluntarily desired to participate in political activities individually or in concert with fellow employees and they " See the editorial in the New York Times, March 6, 1947 for a typical expression of this point of view.

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have alleged that their resort to such action does not compromise the impartial fulfillment of their duties. Prohibitions notwithstanding, organizations of public employees have occasionally resorted to political action in the pursuance of their objectives. Two forms of collective staff participation in political affairs may be observed. Each derives its substance and direction from those fundamental interests which underlie the program and activities of the particular associations involved. The "bread and butter" unions typified by the NFFE have engaged in political activity of a sort which is basically distinct from that which has been undertaken by the CIO public-service unions in recent years. The former associations have entered the arena of political conflict almost reluctantly and in most instances as an extraordinary step to secure the attainment of critical objectives otherwise deemed impossible of achievement. In a few instances they have worked for the defeat of candidates openly hostile to the program of organized public employees. The party affiliation of the candidate in question, however, has never been a cause for intervention. In this sense the NFFE has remained nonpartisan. In 1918 the union was largely instrumental in securing the defeat in a Democratic primary election in Kansas City of Representative Borland who had attempted to introduce a statutory extension of the work day in the Federal service.33 Occasionally the union's journal has publicized the records of legislators who have adopted positions in fundamental conflict with its objectives. Thus in 1920 the Federal Employee censured Senator Hoke Smith of Georgia for his attitude toward minimum wage legislation for Federal employees. The union, moreover, publicized the Senator's record on Federal personnel legislation in general and distributed literature containing such information in Georgia prior to an election.34 The NFFE has always asserted the right to publicize in nonpartisan fashion the voting records of legislators. It has solicited statements of their positions with respect to public personnel matters. In 1934 more than five hundred local unions of the NFFE submitted the organization's legislative program to candidates in every Congressional district and sought an expression of their respective attitudes toward such issues as the restoration of pay cuts, the extension of classification and of the merit system, the establishment of overtime pay, and the liberalization of the retirement program. Despite occasional participation in political activity, the NFFE has 33 See the Federal Employee, September 1918, p. 872, for an account of this incident. 84 Federal Employee, June 12, July 31, August 28, 1920.

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generally refrained from overt involvement in election campaigns. As its lobbying techniques grew more" expert it became less necessary to resort to a direct appeal to the voters during election periods. Its constitution provides explicitly "that no discussion of any matter concerning partisan politics shall be permitted at any Convention . . . at any meeting of any union of the National Federation." 3 5 This provision does not constitute an outright repudiation of political action. It means simply that the organization will neither support nor oppose candidates to political office on partisan grounds and it expresses a collective resolve to remain free from identification with the program of any political party. Thus a resolution adopted at the NFFE 1944 Convention declared: "We should not be concerned as a group with defending or promoting Government policies." 3 6 This statement presumably is intended to refer to general political issues and not to those which relate to personnel administration. The union is manifestly interested in a very vital way with government policies in these matters. As long as issues concerning public personnel management do not become essentially partisan, organizations of the type represented by the NFFE will be unlikely to abandon their political neutrality. Should personnel questions become partisan in nature, these associations may well be led to a fundamental reorientation of their approach to the propriety of political activity within the civil service. If one political party, for example, should become definitely committed to a drastic curtailment of the size of the public bureaucracy and another to its maintenance or expansion, employee unions may find it increasingly difficult to draw a practicable line of distinction between a professed lack of concern in general governmental policies and the narrower nonpartisan promotion of staff interests. The policy of the AFGE with respect to political activities has been somewhat intermediary between the generally noninterventionist stand of the older union and the openly political assertiveness of its CIO rival. Resolutions have occasionally been introduced at AFL conventions calling for the repeal of the Hatch Act. Political restrictions have been attacked on the ground that they impose onerous disabilities upon employee unions in the promotion of their objectives and impair "the free exercise of citizenship rights by public employees." 37 NFFE Constitution, Art. IV, Sec. 7. 1944 Convention Proceedings, Note to Resolution 335, p. 146. 171942 AFL Convention Proceedings, p. 625, also 1943 Convention ings, p. 202. 35 38

Proceed-

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A resolution introduced at the 1944 Convention declared that public employees "should be in a position to do their full share in the campaign to secure the election of public officials friendly to their cause." 38 The Hatch Act was condemned as a "violation of the intent and purpose of the Bill of Rights." 39 The Federation, however, has not taken any action or even vigorous stand which would indicate a resolve to implement these general declarations of policy. The activities and aspirations of the UPWA injected radically new elements into the problem of civil service participation in politics. This union vigorously asserted the right of public employees to engage in political activity as a normal and desirable type of conduct. Moreover, it regarded the scope of appropriate political interests to encompass issues of broad national concern with particular emphasis upon those questions which concern the welfare of labor groups. The value which this union ascribed to its affiliation with the organized labor movement indicated a unique conception of the proper role of the organized civil service in political life. In its early years the NFFE defended its connection with the AFL on the express grounds that this relationship gave it "the political support and assistance we require" and relieves us of even the suspicion of engaging in partisan politics." 40 The UPWA prized affiliation, however, not as a stratagem to avoid political participation but as a desirable and welcome means whereby civil servants could join with the rest of an increasingly politically articulate labor movement in the advancement of causes of general concern. At its first constitutional convention the UPWA expressed this viewpoint succinctly and unequivocally: "Every group within organized labor has a direct and important stake in political action." 41 The union officially endorsed individual candidates for political office. In 1938 President Baker of the United Federal Workers of America sent a congratulatory letter to Representative Bigelow of Ohio upon his nomination in a primary election. "If by any chance," the letter stated, "there is any service . . . that we can render at this time be sure to let us know." 42 The union's journal openly announced: "Federal employees will feel no qualms in doing everything within their 38 Ibid., p. 68. "Ibid. 40 Federal Employee, July 1916, p. 6. " Convention Proceedings, Constitutional Convention United Public Works of America, 1946, p. 62. " Federal Organizer, August 20, 1938.

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legitimate power to see that (he) is returned to the House of Representatives." 43 In marked contrast to the scrupulous avoidance of partisan conflicts which has guided the political conduct of other employee associations, the CIO union consistently supported the New Deal program and even publicly endorsed President Roosevelt's attempted purge of dissident Democrats in Maryland, Georgia, and New York in 1938.44 Of even greater significance was its attempt to develop an articulate political consciousness among its membership. In the face of formidable legal restrictions, the union endeavored wherever possible to participate in the CIO's political action program.45 The political activities of the public union were formally distinguished from those undertaken by the CIO at large in order to avoid violation of the Hatch Act. Federal employees may only make but may neither solicit nor receive contributions to political campaigns. The UFWA leadership acted as a solicitor and recipient of contributions which were officially earmarked for "educational" activities rather than for the support of candidates to political office. The scope and nature of these "educational" activities were evidenced in the union's extensive program to secure widespread voter registration in the District of Columbia prior to the 1944 Presidential election. Two hundred union shop stewards were declared to have assumed charge of this project. Over 100,000 leaflets were distributed containing information relating to registration and voting procedures in the various states; similar data were furnished interested employees by union-maintained information centers. Summarizing its activities which it insisted were carried on without violation of the Hatch Act, the union declared: "There is enough here to show what the UFWA is capable of . . . and to indicate what it could do if the Hatch Act were repealed." 46 Again in 1946 the UPWA's political action committee recommended that the association "participate wholeheartedly in the activities of the CIO-PAC." 47 Government employees who were not subject to the provisions of the Hatch Act were urged to support the CIO Political Action Committee without reservation. The union sponsored the distribution of PAC literature dealing with various issues of national Federal " Federal 15 Federal 46 Federal " UPWA 48

Organizer, September 17, 1938, p. 4. Organizer, August 20, 1938. Record, August 30, 1944. Record, November 30, 1944, p. 3. Constitutional Convention, 1 9 4 6 , Proceedings,

p. 6 7 .

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concern and with the voting records of candidates. Political action directors were appointed to coordinate union political activity with the CIO-PAC local organizations as well as with national CIO headquarters. The political activities of the UPWA have raised at least two issues which merit specific comment. The first concerns the relationships which should obtain between public-employee associations, considered as collective entities, and their individual members whenever an official organizational position relating to political action is adopted. The second involves the permissible scope of political activity of a civil service group whose program or objectives are or reasonably appear to be in basic conflict with the established political order. The political policies and programs of such groups should above all represent the free and deliberate choice of the membership at large. They should never reflect leadership manipulation devoted to the furtherance of objectives not accepted or fully understood by the rank and file. The official position of the United Federal Workers and its successor, the United Public Workers of America concerning United States foreign and domestic policy followed without deviation the program of the extreme left-wing CIO unions which were allegedly under Communist domination. If the membership, recruited as it was on a rather extensive geographical basis and including a wide range of occupational groups, represented a fair cross section of the public, it is difficult to construe the uni-directional militancy of the union's political policies as the spontaneous emanation of the freely held convictions of the rank and file. It will be recalled that the case for employee organization was in part based upon the contention that no government less than totalitarian in its purposes could exhaust the diverse loyalties of its citizens. It would seem valid to assert a fortiori that no private association devoted primarily to the achievement of particular economic objectives should presume to represent the diverse points of view of its membership on broad matters of national concern at least until the collective opinion is clearly and democratically expressed. Referring only to the difficulty in achieving unanimity among public employees with respect to general labor policies, the president of an NFFE local has remarked: "Government employees differ widely among themselves in their viewpoints on the questions raised . . . We should split hopelessly were we to try to formulate what ought to be done for or about labor in industry." 48 48

Federal Employee, August 1937, p. 7.

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Should a government employee union become the instrumentality of a clique of officials and be used as a vehicle for the promotion of general political policies without reference to the wishes of its membership, it is clearly in the public interest not only to unmask such a perversion of corporate purpose and to reveal the ulterior motives which may underlie activities of this sort but to assist the rank and file in its efforts to maintain a leadership responsive to its wishes and preferences. This situation should be sharply distinguished from that in which the interests of effective staff organization require that the leadership of a public-employee association be accorded a broad mandate and extensive discretionary power in the promotion of personnel objectives. The peculiar conditions which attend the enactment and administration of personnel policy render such authority imperative for reasons discussed in the preceding analysis of union leadership. But the formulation of a union position on matters of general social concern does not proceed in an atmosphere of such compelling urgency. Ample opportunity is present for the unhampered expression of a free and representative point of view. The fact that the political program of a civil service staff association may havß been democratically formulated, however, does not, ipso facto, justify its admissibility. The public employer has the right and indeed the paramount duty to eliminate from the civil service any individual or corporate conduct or expression of opinion which may reasonably be regarded as subversive. Moreover, in the accomplishment of this task it is not bound by constitutional limitations which may confine the scope of measures designed to accomplish similar objectives in the field of private relationships. 49 The requirement that a "clear and present danger that will bring about the substantive evils that Congress has a right to prevent" 5 0 must be imminent to justify restraints upon individual or group conduct seems clearly inapplicable to measures intended to eradicate subversive influences within the public service. Public authorities may permit or deny to private individuals and groups the right to advocate the subversion of the existing political order. The decision to outlaw such behavior would probably encounter constitutional obstacles which would require a persuasive demonstration of an imminent challenge to the public safety. The precautions which the public employer may reasonably take "Friedman v. Schwellenbach, 159 F. 2d 22 (App. D.C. 1946), cert. den. 67 Sup. Ct. 979 ( 1 9 4 7 ) . 60 Schenck v. U.S. 249 U.S. 4752 ( 1 9 1 8 ) .

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to protect itself from any threat of internal sabotage are not bound by such generous concepts of the appropriate general scope of civil liberties. For example, mere doctrinal adherence to the view that the state apparatus, unless in the hands of the organized proletariat, is an instrument of oppression should constitute a sufficient bar to government employment even though this conviction may not issue in the advocacy or reality of subversive conduct. The records of the Canadian spy trials have strikingly shown that the "material difference" between treasonable action and the "mere doctrinal justification or prediction of the use of force under hypothetical conditions at some future indefinite time" to which the Supreme Court attached critical importance in the leading case of Scheiderman v. U.S.,S1 may become very attenuated should circumstances appear propitious for the realization of an event believed with intense conviction to form part of an inevitable and desirable historical development. The elaborate process of indoctrination by which a receptive intelligence may be led to bridge the gaps between "doctrinal justification," the advocacy and finally the commission of subversive acts even to the betrayal of vital national secrets cannot be afforded any opportunity to gain a foothold in public employment. Hence arises the justification of the standard of "reasonable doubt" in the determination of the loyalty of government employees or the subversive character of staff organizations. To require the government to prove its case in terms of a clear and present danger rather than with reference to this criterion is to place upon it a burden which may be carried successfully only at the risk of profound jeopardy to the public safety. In the application of this standard, the total pattern of behavior of a group or individual provides a satisfactory basis for a reasonable decision. In so far as a public employee association is concerned, those aspects of its organization and activities which must be examined include its leadership, the causes which it has espoused, and the extent to which it has shifted its stand in accordance with the policies of movements, reasonably deemed subversive, the limitation of its activities to issues reasonably related to its essential and announced purposes or its utilization as an instrument for the propagation of a social and economic philosophy in basic conflict with the prevailing constitutional system. Whether or not behavior of this sort is admissible in a private context, its irreconcilability with the imperatives of responsible bureaucratic administration seems sufficiently apparent to warrant careful and stringent restriction in public employment. 61

320 U.S. 118 ( 1 9 4 3 ) .

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Public action is required to conform only to the criterion of reasonableness in the generally accepted sense of manifesting a "rational connection between the remedy provided and the evil to be curbed." 8 2 The rational justification of special safeguards to protect the public services from the infiltration of subversive elements may be readily derived from the intrinsic character of bureaucratic activity. The holding of public office and the adherence to subversive opinions or affiliation with groups opposed to the preservation of the existing constitutional order are politically intolerable because they are inherently irreconcilable. The function of the bureaucracy is to maintain and never to subvert the constitutional system. A private citizen who advocates the overthrowal of the political order is at least not guilty of inconsistency in the sense that the expression of his social principles does not conflict with the duties of his vocation. A civil servant, however, may not by definition identify himself with subversive causes. This issue was faced many years ago in the French public service. The rebuke administered in the Chamber of Deputies in 1907 to the announced and implied pretensions of the syndicalists retains an urgent contemporary relevance: Dream if you wish, M. Jaurès, of a transformed society, but the public services are not charged with the responsibility of preparing its way; they are obligated to administer as best they can and defend if necessary the society now sheltering you.53 These considerations should not obscure the fact that many public employees may wish to engage in political activity which is patently free from any suspicion of subversiveness. Since conduct of this sort is generally prohibited it becomes important to examine the alleged justification for the current restrictions. Two kinds of restraints may be noted. The first is designed to eliminate acts which are clearly and intrinsically pernicious whether performed by government employees or private persons. Their commission is normally subject to criminal punishment. These measures are intended to protect the integrity of the merit system. They bar political intimidation of public employees, the promise of public employment in return for political support, interference with the exercise of the franchise, the levying of assessments for political purposes or discrimination in the appointment or promotion of M

bach.

Thomas v. Collins, 89 L. ed. 340 ( 1 9 4 5 ) , see also Friedman

v. Schwellen-

83 M. Ribot, Journal Officiel, May 14, 1907, cited in Walter R. Sharp, French Civil Service, p. 465.

The

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public employees because of their political opinions or affiliation. 64 The second type of restraint upon political activities of civil servants enjoins conduct which is not odious per se but which has been deemed incompatible with the demands of public employment. Indeed, activities which from the point of view of a democratic society are considered commendable when engaged in by private citizens are held to become objectionable when performed by government employees. Thus the rules of the Civil Service Commission and the provisions of the Hatch Act prohibit civil servants from assuming any active part in political management or political campaigns. Removal from office is prescribed as a mandatory penalty for their violation. 55 The term "active participation in political management or in political campaigns" has been held to preclude Federal employees from holding office in a political party or club, serving as a delegate to a political convention or as a member of a committee of a political party or club, or from distributing literature in support of a candidate or party or soliciting funds for a political organization or campaign fund. In addition, the statutory prohibition has been construed to prohibit public employees from addressing political gatherings or publishing any letter or article, signed or unsigned, in favor of or against any political party, candidate, or faction, or serving as a candidate for national, state, county, or municipal office in which partisan politics are involved. An exception is made in the case of elections in certain municipalities where the majority of voters are government employees. 56 The political activities in which civil servants are permitted to engage may be summarized briefly. Government employees may, of course, exercise their right to vote without interference; they may join political parties and clubs and attend meetings but only in the capacity of spectators; they may sign nominating petitions of candidates to political office but they may not institute nor circularize them; they may become identified with associations or educational groups "provided that their activities . . . are divorced from the campaign of particular candidates or parties." 57 They may even assume prominent roles in the public discussion of such issues as "constitutional amendments or referendums which are not specifically identified with any National or State political party." 6 8 " 4 3 Stat. 1070, Sec. 310; 54 Stat. 767, Sees. 1-7. 55 54 Stat. 767, Secs. 9A, 12; Opinions of the Attorney General, August 10, 1939 and October 26, 1939; Civil Service Commission Form 1236. M 54 Stat. 767, Sec. 16; 39 Op. Atty. Gen. 423, April 17, Í940. 57 See Department of Justice Circular 3301. 58 Federal Personnel Manual C2-11.

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In common with other citizens they may voluntarily contribute funds to political parties or individual candidates. The list of permissible activities indeed may seem fairly impressive upon first scrutiny but their substance is in fact negligible for the reason that they prevent civil service participation in political activity during election periods or the public expression of staff opinion upon issues which have become sufficiently vital as to be made the subject of partisan controversy. Their substance was strikingly summarized by Mr. Justice Black in his dissenting opinion in UPWA v. Mitchell in which the United States Supreme Court upheld the constitutionality of the Hatch Act. The result [he declared, is that] the sum of political privileges left to Government . . . employees and their families . . . seems to be this; they may vote in silence; they may carefully and quietly express a political view at their peril; and they may become "spectators" . . . at campaign meetings.59 Restraints of such extensive scope must clearly be justified in terms of a paramount and unmistakable public interest. As previously indicated, the integrity of the merit system historically has been deemed to require the imposition of restrictions upon the political activity of public employees. The civil service reform movement has tirelessly expounded this viewpoint and sought its implementation in public policy. Its efforts were first directed toward securing the elimination of the pernicious practices whereby political influence rather than merit governed appointment, advancement, and removal. In order to forestall the levying of compulsory assessments it was deemed necessary to prohibit all solicitation of political contributions from public employees. For as Mr. Chief Justice Waite pointed out many years ago in an opinion of the Supreme Court upholding the constitutionality of an act of Congress which sought to eradicate the evil of political assessments, solicitation which "may begin as a request may end as a demand." 6 0 The merit system was finally held to require not only the elimination of obnoxious assessments and other objectional practices but the prohibition of virtually all political activity on the part of civil servants.61 The assumption of an inexorable and inextinguishable connection between civil service political activity and the spoils system was 67 Sup. Ct. 556 ( 1 9 4 7 ) . «'Ex Parte Curtis, 106 U.S. 374 ( 1 8 8 2 ) . 61 "Under the merit system . . . permanency of tenure despite change of party control, is entirely inconsistent with partisan activity. Meriam, Public Personnel Problems from the Standpoint of the Operating Officer, p. 285. 69

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explicitly set forth in the 49th Report of the United States Civil Service Commission: If it is permissible for Federal employees to take active part in a political campaign to elect one candidate and defeat another, by the same token the successful candidate must be accorded the right to dismiss from the public service whom he will and fill the vacancy by appointment of whom he will.62 The position which is here elaborated seems to contain both moral judgments and an allegedly objective description of the inevitable consequence of political activity by civil servants. It asserts in substance (a) that civil service employees may not as a matter of moral right expect to retain positions under political administrations whose program and candidates they have individually or collectively opposed and (b) that they will not in fact achieve job security or impartial treatment if they assume any prominent role in political affairs. The first of these propositions is by no means self-evident. In a sense it constitutes a rather ironic affirmation of the basic rationale of the spoils system by a government agency charged above all with the protection of the career service. In so far as "right" is concerned, the principles of the merit system require only that appointment or promotion depend upon job fitness and not upon political opinion or even conduct. An essential purpose of the civil service reform movement was to free public employees from financial and other burdens which were placed upon them by spoilsmen and to protect them in rather than deny them the exercise of their political rights. From a constitutional viewpoint it is currently held, although in rather inconclusive fashion, that Congress may in its discretion bar civil servants from participation in political affairs. Only four members of the Supreme Court concurred with Mr. Justice Reed's opinion upholding the constitutionality of the Hatch Act63 as a proper exercise of legislative power. In his dissenting opinion in which Mr. Justice Rutledge concurred, Mr. Justice Black condemned the restrictive legislation as an unwarranted deprivation of political liberty. Mr. Justice Douglas attacked the Hatch Act for its failure to distinguish between administrative and industrial categories of public employment in its service-wide proscription of political activity. Where a choice must be made between constitutional rights of individuals and a community interest which sought to qualify those rights, we have insisted [de-

"* 49th Report, Civil Service Commission, 1932, p. 32. "UPWA v. Mitchell, 67 Sup. Ct. 556 ( 1 9 4 7 ) .

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clared Mr. Justice Douglas], that the statute be narrowly drawn to define and punish specific conduct as constituting a clear and present danger to a substantial interest of government.64 But these dissenting opinions run contrary to a series of constitutional precedents which vest Congress with extensive discretionary power "to promote efficiency and integrity in the discharge of official duties and to maintain proper discipline in the public service."65 Mr. Justice Bailey of the Circuit Court of Appeals of the District of Columbia recently expressed the conventional point of view when he declared in UFWA v. Mitchell: To say that the Congress has not the power to pass this legislation . . . is to say that it is not rational for Congress to conclude that it cannot take political activity out of the employment, promotion and dismissal of government employees without at the same time taking government employees out of political activity.06 Congress in brief is not constitutionally bound by the standard of the clear and present danger in the regulation of the bureaucracy but only by the criterion of reasonableness. It should nevertheless exercise extraordinary caution before proceeding with the political emasculation of several million citizens in its formulation of a "reasonable" public policy. It may be necessary in the interests of the merit system to restrict certain classes of employees from all participation in political activity and to deny to all employees the opportunity to engage in specified types of political conduct. But "taking government employees out of political activity" indiscriminately may extend the bounds of "reasonableness" to questionable limits. To eliminate the pernicious practice of coercion by the denial of the freedom to engage in activity which might be subject to such coercion destroys important privileges of citizenship. The civil service reform movement has attached such supreme value to the attainment of a merit system that it has been disposed to condone the impairment of political liberties where their exercise might militate against the achievement of a career service. It might be equally proper to insist that the merit system devise means for the maintenance of its integrity which do not infringe upon the enjoyment of fundamental political rights. In his opinion in UPWA v. Mitchell, Mr. Justice Black developed this position in very challenging and provocative terms. " 6 7 Sup. Ct. 582 ( 1 9 4 7 ) . 65 Mr. Chief Justice Waite in Ex parte Curtis, 106 U.S. 373 ( 1 8 8 2 ) . ""56 F. Supp. 621, 627 ( 1 9 4 4 ) .

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The law could punish those public officials who engage in the practice. To punish millions of employees and to deprive the nation of their contribution to public affairs in order to remove temptation from a proportionately small number of public officials, seems . . . to be a novel method of suppressing an evil practice. 67 Should the relative size of the bureaucracy continue to expand, and more significantly, into areas formerly within the domain of private enterprise, the continued imposition of restrictions upon the political activities of civil servants might have ominous consequences. Mr. Justice Douglas has pertinently inquired: If at some future time it should come to pass in this country, as it has in England, that a broad policy of State ownership of basic industries is inaugurated, does this mean that all of the hundreds of thousands of industrial workers affected could be debarred from normal political activity? 68 When the bureaucracy includes millions of persons a fundamental problem of citizenship is presented which seems to defy satisfactory resolution in terms of traditional formulae which demand complete abstention from political conduct. Carl Russell Fish pointed out many years ago that it was "practically impossible to draw a working distinction between the proper interest of the citizen and the obligation of the servant of government." 69 This observation has acquired a fresh and broadened contemporary relevance. If the civil service were permitted to exercise full political rights, the conduct of its members would be no more and no less exemplary than that of persons belonging to other interest groups. Political support, for example, would possibly be exchanged for promises of pay increases or the wasteful enlargement of the bureaucracy. Certainly the civil servant would support those candidates and that party whose policies least jeopardized his job security. The expression of these preferences, however, constitutes the essential and legitimate function of organized interest groups. A democracy is always open to the abuse of its instruments or the extraction of special privileges by interest groups which gain ascendancy among the conflicting social and economic forces operative within the community. The political neutralization of a specific group based upon the possibility of such undesirable consequences would seem to constitute a repudiation of institutional arrangements which have become an " 6 7 Sup. Ct. 576 ( 1 9 4 7 ) . 68 UPWA v. Mitchell, 67 Sup. Ct. 581 ( 1 9 4 7 ) . 99 Carl Russell Fish, The Civil Service and the Patronage, Cambridge, Harvard University Press, 1904, p. 179.

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integral part of the apparatus of a modern democratic state. In so far as curbing the potential predaciousness of any particular group is concerned, Mr. Justice Black pointed out in UPWA v. Mitchell "that the same argument might be applied to deprive five million farmers or a million business men of their right to participate in political activity." 70 The assumption that political activity on the part of civil servants inevitably produces objectionable partisan interference in personnel matters does not seem to be any more axiomatic than the proposition that such conduct vests politicians with the "right" to control the selection of personnel on political grounds. Do historical circumstances or the logic of the merit system indicate an inherent incompatibility between a career service and the exercise of political freedom? The imposition of political restrictions represented a response to a peculiar set of conditions. The exercise of political rights in fact was accompanied almost invariably by the injection of partisan considerations in personnel management. Restraints upon political conduct were thus justified as a "necessary evil" 71 indispensable to the integrity of the merit system. It should not be forgotten, however, that political activity on the part of public employees was not primarily responsible for the rise of the spoils system in American politics. The political domination of the bureaucracy may be attributed to a host of more significant factors such as the imperatives of party management which have traditionally demanded patronage for its effective functioning, the public distrust and fear of a permanent professional bureaucracy and the low esteem in which the public service has been held in a country which for so long was materially able to afford the luxury of governmental incompetence or corruption. It was for these reasons that the civil service was debased to serve the ends of the spoilsmen. It would be a palpable oversimplification of history and indeed a reversal of a causal sequence of events to contend that the political activity of civil servants was a principal factor in the emergence of the spoils system. It is neither reasonably certain nor logical to conclude that the exercise of political rights by civil servants in a professionalized bureaucracy would inevitably lead to its corruption by spoilsmen. If the other factors which have been of critical importance in preventing the development of a merit system should become less significant, it is at least questionable whether the mere fact of participation in political affairs would provoke political intervention m 71

67 Sup. Ct. 575 ( 1 9 4 7 ) . Ibid., p. 582. Mayers, The Federal Service, p. 166.

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in personnel management. Even such a stanch defender of the merit system as Lewis Mayers has remarked: Were the personnel system . . . thoroughly safeguarded from politics . . . it is difficult to see why there would be any impropriety in an engineer, a physician, a clerk or any other nonpolitical employee of the Federal government taking fully as active a part in political life as any other citizen.72 As the merit system becomes more firmly established, public policy may therefore experiment with the restoration of political privileges to the rank and file of the civil servants and be guided by the actual impact which their exercise has upon the integrity of the career service rather than by preconceived convictions of an inherent connection between participation in political affairs and the subversion of the bureaucracy to serve partisan ends. The political activity of government employees is further assailed on the ground that it threatens the neutral performance of bureaucratic functions. It is perfectly natural [remarked Civil Service Commissioner Flemming], for the party coming to power to believe that the civil servants who opposed it . . . will stand in the way of policies which the new administration desires to put into effect. As a result, some plan will be devised for getting rid of these career employees.73 The Commissioner concluded from this observation of -party practice that nonparticipation in politics was an "absolutely essential part of a career service." 74 It is at least questionable whether the enforcement of political neutrality may be justified on these grounds. The doctrine of neutrality demands first that public employees carry out official policies conscientiously and energetically regardless of their personal or collective opinion concerning their wisdom, practicability, or justice. Decisions made by supervisory officials responsible to the public or its representatives must receive unquestioning acceptance by the entire bureaucracy. Moreover public services must be provided without regard to the political or other affiliations of the recipients. Political activity or any other conduct on the part of public employees should therefore be prohibited whenever it threatens the preservation of the neutrality or Ibid., p. 165. Address, November β, 194Θ, Boston University 71 Ibid. 72 73

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impartiality indispensable to the functioning of a responsible bureaucracy. But by the same token activity which does not involve these consequences would appear to be permissible. In its brief submitted to the United States Supreme Court in UFWA v. Mitchell, the Government of the United States itself admitted that in so far as the "lowlier positions" in the Federal service were concerned, "the performance of work of these employees does not, by reason of the nature of the work, require political neutrality on their part." 75 In his dissenting opinion Mr. Justice Douglas defended the right of an "industrial worker . . . or skilled laborer . . . or artisan whose work or functions in no way affect the policy of the agency nor involved relationships with the public" 76 to engage in political activity in common with his fellow citizens. If the appellant in this case had not been a mint roller but an administrative employee even of the lowest clerical rank, Mr. Justice Douglas implied that he would have held differently on the ground that clerks, stenographers, or other public servants in similar categories have access to the files . . . meet the public . . . arrange appointments . . . prepare the basic data on which policy decisions are made. Each may be a tributary, though perhaps a small one, to the main stream which we call policy making.77 Mr. Justice Black, however, did not differentiate between these occupational groups in holding as unconstitutional restrictions upon the political activity of government employees. The question arises as to whether the distinction between industrial and administrative work provides a satisfactory line of demarcation in defining the compatibility of political participation and the neutral performance of official duties. A leadingman supervising hundreds of laborers and skilled workmen is probably as well equipped strategically to influence policy as a filing clerk. Moreover industrial employees who are generally organized in strong craft unions concerned with securing the adoption of policies favorable to their particular objectives would be permitted in this view to participate in political activity whereas the largely unorganized workers in administrative offices would be denied the same opportunity. Again the distinction is somewhat inconclusive with respect to the status of several hundred thousand postal employees who are neither clearly industrial nor administrative. Postal workers, 75 Brief for Appellees, UFWA vs. Mitchell, Supreme Court October Term, No. 34, p. 43. " 6 7 Sup. Ct. 580 (1947). •"Ibid., p. 581.

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of course, meet the public to a greater extent than any other class of government employees yet they probably do not exercise any greater influence upon official policy than do industrial employees. Possibly a more practicable line of distinction may be drawn between rank and file and supervisory personnel in practically all categories of public employment. Partisan political activity among the upper levels of the civil service, in Mr. Justice Douglas' analogy, would form substantial rather than minor tributaries to the stream of public-policy formation. The opportunity for the entry of partisanship or discrimination in the execution of policy or in the preparation of proposals for legislative and executive consideration is too great at this level to be permitted expression in the form of participation in political affairs. But in so far as the mass of public employees is concerned, the denial of fundamental political rights would appear to demand some convincing demonstration of a probable relationship between political activity and partiality in the performance of duties. If this were not forthcoming, the need for neutrality would be adequately met by disciplinary action directed at individual employees whose conduct violated service requirements but it would not necessarily demand a ubiquitous denial of political liberties by government employees. The preceding analysis of the problem of political activity within the civil service has endeavored to show that restrictions which are demanded in the interests of the merit system and of impartial bureaucratic management may prove compatible with a substantial measure of political participation by the rank and file of public employees. Although the traditional approach to this issue has generally supported the prohibition of virtually all such conduct except the exercise of the franchise, at least one public jurisdiction has recently viewed the question in a fresh perspective. Compelled by the logic of its generally socialist economic and political program to a conscious awareness of the dual capacity of government servants as public employees and as citizens, the provincial administration of the Province of Saskatchewan in Canada has recently enacted a public-service law granting government workers freedom to engage in political activity subject only to such restraints as are clearly necessary in the public interest. Restrictions stipulate that no person in the public service shall be . . . compelled to take part in any political undertaking, or to make any contribution to any political party; . . . or directly or indirectly use . . . the authority or official influence of his position to control . . . the political action of any other persons; or during

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his hours of duty engage in any form of political activity or at any time take part in political activities as to impair his usefulness in the position in which he is employed.78 Subject to these prohibitions, however, civil servants are as free as other citizens to participate in political affairs or campaigns. They may even be granted thirty days' leave of absence to run for public office and are permitted to retain their positions in the event of defeat. The unique features of the Saskatchewan Public Service Law consists therefore in its deliberate omission of any general prohibition of civil service participation in political activity. It proceeds rather upon the assumption that such conduct is intrinsically unobjectionable and will be made the subject of disciplinary action only if it violates the legislative proscription of specific acts designated as coercion, the abuse of official authority, the conduct of political activity during working hours, or a basic conflict between partisan activity and a discharge of public duties. It remains to be seen whether these restraints will be effective in assuring the preservation of a merit system in personnel management and satisfy the imperatives of an impartial bureaucracy. If they prove sufficient for these purposes the resultant exercise of political liberty by public employees may well exert a salutary effect upon the quality of administrative effort and upon the public consideration of issues of vital concern. For restrictions upon political activity, as Charles Beard remarked thirty years ago, "exclude from political life thousands of our best men and women." 79 The loss of the political contribution which they would otherwise make to the community is generally to be deplored. Moreover their political neutralization may prove internally injurious to the character and efficiency of the bureaucracy. Excessive restrictions may discourage civic-minded citizens from accepting employment under conditions which preclude the normal and voluntary expression of their political opinions or participation in political affairs. On the other hand individuals of merit may enter the service and suppress an otherwise normal interest in political matters. But in this case will the cause of effective and energetic administration be served particularly in the expanded bureaucracy of the present? "The ultimate test of a competent administrative organization for a planned democracy will be its capacity to produce new ideas." 80 It is doubtful whether a bureaucracy will prove a fertile source for the generation 78 79 90

Public Service Act 1947, Sec. 54. "A Governmental Employment Policy," 36 Good Government 17 ( 1 9 1 9 ) . A. N. Holcombe, Government in a Planned Democracy, p. 164.

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of original ideas if the principal means for their articulation in a democratic society are rigorously denied. Finally the exercise of political rights by public employees would advance the cause of democracy itself. For in such a political order, as Mr. Justice Bradley remarked in his opinion in ex parte Curtis, it becomes the duty of every citizen "to take an interest in public affairs and to further and promote those principles which are believed to be vital and important to the general welfare."81 Almost paradoxically the laws of the United States protect a public employee's right to contribute to political campaign funds but deny him the opportunity to participate as a citizen in the consideration of political issues. A public employee may voluntarily wish to spend his private time and contribute his effort as well as his financial aid to political campaigns for reasons which are essentially irrelevant to the fact of his public employment. His wishes may be derived primarily from his conception of the appropriate function of citizenship. And citizenship, of course, "is something bigger than . . . membership in a vocational group."82 This observation seems as relevant to the motives which govern the aspirations and conduct of public employees as of other citizens. The prohibition of political activity within the civil service is in part, at least, an attempt to eliminate issues of broad citizen concern from the range of legitimate employee interests. The result of such policies is to concentrate the attention of the bureaucracy upon a narrowly exclusive preoccupation with the material conditions of employment and virtually to assure the indifferent performance of public functions as well as to balk the emergence of a vital and creative citizenship among the ever-expanding ranks of government employees. 8 1 106 82

U.S. 376 ( 1 8 8 2 ) . Mary Follett, The New State, p. 291.

CHAPTER V i l i

public service unions and the legislature IN THE pursuance of their objectives public-employee unions have necessarily resorted to lobbying as their principal method of operation. President Stengle of the American Federation of Government Employees succinctly expressed the rationale of such conduct in the following terms: "We cannot engage in collective bargaining as that process is commonly understood. W e must achieve our most substantial gains through legislation, rather than negotiation." 1 The concentration upon lobbying activities may be as much a matter of deliberate preference as of institutional necessity. As relationships with legislative bodies are carefully cultivated, organizations of public employees develop a certain vested interest in the preservation of existing techniques of group representation. Militant union activity which would disturb assiduously nurtured legislative contacts by causing embarrassment to public officials is accordingly deplored. The AFGE, for example, has been "opposed to public expression of grievances or agitation by local unions because its President believed such demonstrations would interfere with his lobbying activities." 2 The constitution of the N F F E states that the association's program will be pursued through "petition to Congress, by creating and fostering public sentiment favorable to proposed reforms [and] by cooperation with Government officials." 3 1

"Objectives of an Employee Union," Personnel Administration (March 1 9 3 9 ) ,

p. 5. 2 Carol Agger, "The Government and Its Employees." Yale Law Journal ( May 1 9 3 8 ) , p. 1128. 3 Article II. See also the union pamphlet, "The Story of the N F F E , " p. 5, in which it is stated that one of the cardinal factors responsible for the formation of the association was the desire among many Federal employees to create "a national organization through which they would be able to present their case to Congress with the greatest efficiency and effectiveness."

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Almost identical statements of proposed operational techniques are contained in the constitutions of the United National Association of Post Office Clerks and the State, County and Municipal Workers of America.4 The major portion of the officers' reports to the various union conventions are invariably devoted to a recapitulation of legislative achievements and setbacks and to an outline of legislative programs to be promoted in the immediate future. Much of the additional money put into the pockets of government workers [announced the Officers' Report to the Fourth Biennial Convention of the SCMWA in 1946], has come as a result of our experience and skill in legislative lobbying, analyzing budgets and organizing mass support for our demands on the legislators.5 It is true, as was previously pointed out, that the CIO unions in the public service and the AFL union of state and local government employees have sought increasingly to evolve methods of collective negotiation with administrative officials but these activities are subordinate to lobbying before legislative bodies. Organized postal employees not only look to Congress for the attainment of their objectives but even seek to curtail the discretion of department officials in personnel matters. A lingering suspicion of administrative hostility born of earlier attempts to suppress the growth of postal unionism combined with the development of expert and effective lobbying techniques has led to a preference for this method of operation. The concentration upon lobbying activities has in turn contributed to an unmistakable penumbra of administrative indifference or hostility to the aspirations of employee associations. For the pursuance of staff objectives in this manner has conflicted with proposals for the centralized and coordinated executive control of fiscal matters and personnel policy. Attempts have been made, for example, to require Federal employee organizations to present their demands for pay increases through department heads and budget officials rather than through direct petition to Congress. It was this consideration as much as any allegedly insidious desire to suppress the growth of employee organizations which led to the so-called "gag orders" of Presidents Theodore Roosevelt and Taft.® During the 1901-02 session of Congress, Art. II, Sec. 2 of each constitution. Convention Proceedings, p. 25. 6 Executive Orders of January 31, 1902; January 25, 1906; November 26, 1909; April 8, 1912. 1 5

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employee lobbyists, particularly in the Postal Service, according to a former member of the National Federation of Post Office Clerks haunted the lobbies of the Capitol . . . The result was chaos and an impossible demand on the time of legislators to settle thousands of . . . grievances . . . President Roosevelt . . . found the White House flooded with petitions, telegrams and letters.7 Executive orders were consequently issued on January 31, 1902 and January 25, 1906, which prohibited all officers and employees of the United States . . . individually or through their associations to solicit an increase in pay, or to influence . . . any other legislation whatever, either before the Congress or its Committee . . . save through the heads of the Departments . . . in or under which they serve, on penalty of dismissal from the Government Service. That President Roosevelt himself was not motivated by considerations of hostility toward public-employee organizations but had rather been provoked to such action by the lobbying activities of administrative personnel in general was indicated in his sharp reply to the memorial addressed to him by President Gompers of the AFL requesting a rescindment of the "gag orders." I cannot have and will not have, when I can prevent it, men who are concerned in the administration of government affairs going to Congress and asking for increased pay without the permission of the heads of the department . . . This applies to postmasters, to Army and Navy officers, to clerks in the government departments, to laborers . . . and must apply as a matter of simple discipline.8 In like manner the "gag order" issued by President Taft on November 26, 1909 was not a malevolent attempt to impede the development of public-service unions but was apparently inspired by a desire to improve fiscal and administrative organization through the introduction of an "executive budget" in the sense in which this term was recommended in general principle by President Taft's Commission on Efficiency and Economy. The broad scope of the order clearly contemplated the imposition of restraints upon personnel in the executive service at all levels of responsibility. Its provisions were more restrictive than those of previous orders and forbade employees to respond 7 8

Baarslag, History of the National Federation of Post Office Clerks, p. 28. Quoted in Baarslag, pp. 29-30.

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to Congressional requests for information as well as to petition legislative bodies on their own initiative. Its relevant text was as follows: It is hereby ordered that no bureau . . . or subordinate in any department of the Government, and no officer of the army or navy or marine corps stationed in Washington, shall apply to either House of Congress, or to any committee . . . or to any member of Congress, for legislation or for appropriations, or for congressional action of any kind, except with the consent and knowledge of the head of the department; nor shall any such person respond to any request for information from either House of Congress, or any committee . . . or any member of Congress, except through, or as authorized by, the head of the department.9 However well-intentioned were the motives of those persons in higher places responsible for the promulgation of these orders, their enforcement produced an immediate and sharp conflict with the activities of organized employees who were bent upon securing the redress of legitimate and numerous grievances through the most expeditious means available. It seems fairly clear that the authors of the gag orders felt sincerely that considerations of administrative efficiency demanded that individual and collective staff requests for improved working conditions of employment should be directed through departmental channels. It was thought that only in this manner could Congress and the chief executive be relieved from apparently endless harassment by public employees. Presidents Roosevelt and Taft were doubtless of the opinion that organized employees could secure adequate consideration of their demands by simply presenting them to department officials. In this respect they overlooked or were grossly ignorant of a long and bitter history of departmental attempts, especially in the Postal Service, to suppress associations of public employees or to reduce them to a position of inept subservience and of failure to improve appalling working conditions even when it was within official authority to do so.10 The "gag orders" may have been designed to contribute to more effective internal fiscal control but in so far as public employees were concerned their effect was simply to cut off the only available method whereby they could in fact secure the redress of their grievances. The proponents of administrative reform should have accompanied their ' Executive Order, November 26, 1909. 10 See Spero, The Labor Movement in a Government Industry, for a documented account of the deplorable working conditions in the Postal Service during the first decade of the century.

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demand for a curtailment of lobbying tactics by specifying positive procedures which would assure to employees the appropriate consideration of their needs. Administrative experience abundantly indicated that mere appeals to department heads had not provided for the satisfactory expression of staff interests. As Spero remarked: The remedy for the situation [lay] in the establishment of a personnel system with adequate machinery for making employee demands heard . . . Should such machinery fail to function effectively it is hard to see how deference to some principle of efficiency could fairly be held to keep the workers from exercising their rights as citizens and appeal to Congress in matters of vital concern to them. 11 It is not surprising, therefore, that organized public employees sought to circumvent the restraints of the gag orders by affiliating with the outside labor movement and by the fullest possible utilization of its lobbying resources. In addition they campaigned ceaselessly to secure the restoration of the right to lobby without impediment. Their efforts met with eventual success in the enactment of the LloydLa Follette Act which not only recognized the right of association of public employees but gave express sanction to lobbying as a permissible technique of associational activity in the Federal service.12 In the conduct of lobbying activities the various unions function essentially as other organized interest groups. They attempt to secure favorable committee consideration of bills which they have sponsored and to bring them to a successful vote in both houses of Congress. Throughout this process the good will of individual legislators is sedulously cultivated on a nonpartisan basis. Union officials, moreover, are always ready to furnish interested Congressmen with extensive and expertly prepared data in support of their proposals, to defend their objectives, and to explain their potential impact upon existing personnel arrangements. Supporting such activities is the careful and diligent fostering of legislative contacts in less formal fashion. Prominent members of civil service committees are frequently invited to address union conventions or special meetings when important legislation is under consideration; testimonials are tendered in their honor upon appropriate anniversaries or upon their appointment to important positions; their photographs are conspicuously displayed in union publications and general evidence of the esteem in 11 12

Ibid., p. 23. 37 Stat. 555, 24 August 1912.

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which friendly legislators are held by the membership is furnished in a number of other equally impressive ways. In his report to the 1939 Convention of the NFFE, President Luther Steward elaborated upon the need for a continuing public relations program to implement legislative activities. "The primary problem . . . is . . . to educate all elements in the nation to an understanding of our objectives." 13 To this end the NFFE from its earliest years has used with considerable skill and to its marked advantage the various types of publicity media available to pressure groups. Its excellently edited journal and other literature have been distributed to important public officials, newspapers, and to private persons and groups interested in public personnel administration; press releases have been issued regularly and advertisements publicizing its demands inserted in newspapers; special care has been devoted to replying promptly and publicly to attacks upon the public service whatever their source of origin.14 The NFFE has moreover shown a discriminating awareness of the fact that an effective lobby must be active in the home districts of politicians if it is to gain sympathetic consideration of its demands by legislative bodies. It has carefully evolved methods whereby the cooperation of union locals is utilized to the utmost in fostering public support of its objectives.15 Its extensive campaign on behalf of the merit system in the mid-1930's has already been mentioned. During the same period the N F F E in collaboration with other organized government employees campaigned for the abolition of pay cuts imposed in the early years of the depression. In the furtherance of these aims the union, according to President Steward, undertook through the press, radio, and legislative contacts the "most far-reaching and comprehensive program of publicity education ever attempted by . . . any . . . organization dealing with questions of Federal personnel administration." 16 In sharp contrast to these pressure-group tactics diligently and expertly developed over a period of twenty-five years, the United Federal Workers of America has resorted on occasion to more militant action in order to promote its objectives. In 1946 it sponsored mass demonstrations in several large cities urging public support of wage increases for Federal employees.17 In a gesture of defiance, presumably Report to Fifteenth Convention, San Francisco, September 4, 1939. Report to Seventeenth Convention, 1944, Proceedings, p. 16. 15 Federal Employee, December 1922, p. 15. 19 President Steward's Report to the Thirteenth N F F E Convention, 1935. 17 New York Times, March 22, 1946. 13 14

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rhetorical, a UFWA pamphlet inquired: "What would happen if these 1.5 million Federal employees . . . were to act in unison for the improvement of wages and working conditions in the Government services?" The coexistence of a large number of employee organizations with overlapping interests makes essential some coordination of their individual lobbying activities. Rivalry between AFL, CIO, and independent associations creates formidable barriers which militate against the formulation of a unified employee approach to labor problems in the public service. Considerable progress has been made, however, within these larger collectivities. The unaffiliated organizations have formed the National Legislative Council of Federal Employee Organizations consisting of the National Federation of Federal Employees, the National Association of Rural Letter Carriers, and the United National Association of Post Office Clerks. Membership of the several associations represented is approximately 200,000. Spearheaded by the expert and skilled leadership of the NFFE, the work of the Council has been praised by legislators experienced in civil service affairs. Although the Council operates as a collective entity, its members reserve and exercise the right to speak individually on behalf of various proposals before legislative committees. As a result their testimony is generally coordinated albeit occasionally repetitive. Confronted with a more complicated problem of inter-union relationships, the public employee associations affiliated with the AFL have formed a coordinating organization known as the Government Employees Council of the American Federation of Labor. Its functions are primarily those of a clearing house on problems of common interest. It provides a regular means whereby information may be jointly gathered and strategy devised for future action. Membership in the Council is limited to national and international unions affiliated with the AFL whose members in part or in whole are in the employ of the Federal Government. Each Council member regardless of its individual size is accorded two representatives and dues are derived from a per capita tax of six dollars per month per thousand members of each union. The activities of the Council are headed by a full-time Operations Director. In a broad sense the Council is regarded in some quarters as a first step in the creation of an AFL Government Employees Department similar to the familiar Metal Trades and the Building and Construction Departments. In fact several of the constituent members have sought the establishment of such a Department for some

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time.18

In 1946 the Council claimed to represent a governmentemployee membership in excess of 260,000 organized in twenty different unions. Membership of eleven of these associations was composed of industrial employees in public and private employment, six of employees in the Postal Service, two of white-collar workers exclusively in the government service, and one of fire fighters. The manner in which a typical employee union conducts its lobbying activities was well illustrated in an article by William I. Horner, former legislative representative of the National Federation of Post Office Clerks, which appeared in an issue of the Union Postal Clerk.19 The article described associational activity designed to implement a resolution in favor of a salary increase which had been passed at the Federation's Convention in 1941. The proposal was first discussed in meetings of joint councils of AFL government-employee organizations and plans were made for concerted action to secure its adoption as public policy. Legislative committees set up in each union local were made "ready . . . at all times to follow instructions emanating from national headquarters." 20 Other committees were established to obtain favorable local publicity. The various activities of the local branches were coordinated and stimulated by the association's own state-wide federations. The facilities of local AFL Central Labor Unions and State Federations were used to advantage wherever possible. Particular attention was paid to the expert organization of a letter-writing campaign in which the women's auxiliary committees of the union assumed a leading role. With a meticulous appreciation of details essential to successful pressure-group activity, it was pointed out that letters written by women possessed a quality of individuality and spontaneity not generally reflected in those written by men. In brief a centrally organized and directed campaign was carried out on a nationwide scale with thoroughness and efficiency. A glance at the lobbying activities of other employee organizations will reveal that the acumen and enterprise displayed by the National Federation of Post Office Clerks were not exceptional. The 1928 campaign of the NFFE on behalf of an upward revision of the pay schedules of the 1923 Classification Act represents an almost classic instance of lobbying by a Federal employee organization. The organization had unsuccessfully attempted to secure the enactment 18 For an account of the Employees Council see the Twenty-Fourth Convention Report of the National Federation of Post Office Clerks, 1946, p. 10; Union Postal Clerk, May 1945, p. 14; June 1946, p. 10. 19 Union Postal Clerk, December 1941, p. 2. »Ibid,

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of a pay increase in the Sixty-ninth Congress. Extensive hearings were held, however, by the House of Representatives Civil Service Committee and the groundwork was laid for a further effort in the next Congress. A bill to amend section 13 of the Classification Act, in which the compensation schedules were contained, was introduced on December 8, 1927.21 Hearings were held from March 19 through March 22, 1928. On the first day of the hearings about one thousand persons crowded the committee room and an equal number remained outside. "Every member of Congress who appeared in support of the bill was given a rousing send-off as he left the room." 22 The Federation organized meetings in all Government departments and these were addressed by specially selected and experienced union spokesmen. Thousands of letters and telegrams were addressed to legislators. The Executive Council of the Federation arranged for committee appearances by prominent persons who testified in support of the bill. Professor Paul Douglas, a nationally prominent expert on wages, appeared before the House Civil Service committee on the first day of the hearings and submitted data which strikingly revealed the deterioration of real wages among Federal employees and pointed clearly to the need for "an appreciable increase in their earnings."23 The members of the Executive Council appeared on the following day and each representative in accordance with a prearranged plan devoted his remarks to an intensive and expertly prepared analysis of a specific aspect of the proposed legislation. Data were thus presented covering such matters as personnel turnover, cost of living changes, Federal and municipal compensation schemes; a comparison was made between Federal salaries and prevailing wages for similar work in private industry; the extent to which inadequate compensation had compelled many public employees to incur debts beyond their means was described in detail as were instances of acute economic hardship among employees in such agencies as the Indian Service, the Bureau of Prisons, and the Customs Service. "The entire hearing," according to the Federal Employee itself, "was engineered by officers of the Federation and the giving of testimony went off like clock-work." 24 Displaying an experienced awareness of the fact that a project which required legislative action was only half won upon the issuance of a favorable committee report, the Federation telephoned to its 21 H.R. 6518, 70 Cong. 1st Sess., Hearings, House Civil Service March 19-22, 1928, vol. 499, no. 2. 22 Federal Employee, April, 1928, p. 28. 23 Ibid. 24 Ibid., p. 5.

Committee,

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various locals the names of the House Speaker, the Chairman of the Rules Committee, the Majority Leader, and the Chairman of the House Appropriations Committee as soon as the bill had been reported to the House. The telegram and the letter-writing phase of the campaign were thus instituted at the most opportune moment. The support of the AFL, State Federations, and the Central Labor Unions was enlisted in the campaign. Throughout the entire period the NFFE leaders paid meticulous regard to every conceivable detail lest the legislation founder. The Washington Daily News remarked: "Moving around Capitol corridors to prevent any interest lagging may always be found Luther Steward and Gertrude McNally, president and secretary of the National Federation of Federal Employees." 25 The bill passed the House on May 7 and the Senate on May 16 in a special night session. According to the Federation, its enactment represented "a tremendous victory for the NFFE upon whose initiative and in accordance with whose plan of campaign . . . sole responsibility for the success rests." 26 That this self-congratulatory comment did not exaggerate its achievement was indicated in a letter addressed to the Federation by Mr. Lowell Mellett of the Washington Daily News in which he declared: "I have seen a good many campaigns in Congress and State legislatures . . . but I don't recall anything which for intelligent generalship surpassed the one you have just completed." 27 The occasionally spectacular achievements of employee organizations in the Federal service may convey the impression that pay scales and other working conditions are amenable to ready adjustment upon the application of well-organized employee pressure. The general history of salary legislation has indicated the contrary. Public salary levels have remained markedly rigid in the face of pronounced changes in general economic conditions. In a message to Congress in December 1942, President Roosevelt declared: The Government of the United States, which is the largest single employer in the nation, has permitted a condition to develop regarding rates of pay, hours of work and overtime compensation for its civilian employees, which is grossly unfair and which is one of the major causes of needlessly high personnel turnover and is impeding the successful prosecution of the war effort.28 "Ibid., June 1928, p. 10. 26 Ibid., May 1928, p. 3. "Ibid., July 1928, p. 10. 28 Congressional Record, 77 Cong. 2d Sess., December 11, 1942, p. 9469.

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Such maladjustments may often be attributed to legislative inertia or indifference to the economic needs of public servants. Such attitudes, however, are not wholly responsible for the apparently chronic inability of wages in the public service to adjust themselves to changing economic conditions. It would be idle, of course, to anticipate that revisions in the compensation of public employees will ever keep pace in frequency or in amount with the relative flexibility which prevails in private industry. Nevertheless the history of public salary determination has clearly pointed to the need for some means whereby the income of government employees may be adjusted with reasonable promptness in order to keep abreast of an appreciable rise in the cost of living. The Report of the Congressional Joint Commission on the Reclassification of Salaries recommended some twenty-five years ago that Congress establish a classification board to assume responsibility for the introduction and gradual extension of the proposed system of duties classification in the Federal service and to recommend to Congress such adjustments in the compensation of various classes of positions as it deemed necessary or desirable.29 Similar proposals with respect to salary administration were contained in the classification act of 1923.30 Section 12 of the Act entrusted the Personnel Classification Board with the duty of conducting periodic studies of salary rates and of submitting data and recommendations to Congress in support of such adjustments as appeared warranted. The 1948 Federal Personnel Manual states that the pay plan embodied in classification legislation is "revised from time to time to correspond with changes in the cost of living and other economic factors." 31 Unfortunately such adjustments have rarely been made with a responsiveness to economic conditions. Testifying before the House Civil Service Committee, President Steward of the NFFE concisely summarized the extent to which salary legislation and administration have failed to provide for the "just and reasonable" revisions in pay anticipated in the basic statute. The Classification Act of 1932 [he declared] has . . . never been carried out in accordance with its intent . . . The . . . Act specifically directed the administering agency . . . to make a study of rates of compensation provided in the Act, with a view 29 Report of the Congressional Joint Commission on the Reclassification of Salaries, House Doc. 686, 68 Cong. 2d Sess., March 12, 1920, pp. 18, 19, 32. 80 42 Stat. 1488; P.L. 516, 67 Cong. 2d Sess. 51 U.S. Civil Service Commission, Federal Personnel Manual, chap. P., pp. 2-3.

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to any readjustment deemed to be just and reasonable and at such times as may be necessary, report its conclusion to Congress with any recommendations it might deem advisable. Both the Personnel Classification Board and its successor, the Civil Service Commission . . . neglected this instruction.32 The failure of administrative agencies to carry out this declared purpose of the Classification Act should not be attributed entirely to negligence or to a deliberate resolve to ignore the terms of an explicit legislative mandate. The Personnel Classification Board and the Civil Service Commission have seldom been given adequate appropriations to attend properly to the primary problem of classification and have thus been compelled in large part to neglect the secondary function of undertaking a continuing study of compensation trends. The fundamental purpose of classification legislation was to eliminate gross inequalities in pay and to facilitate personnel administration and budgetary control through a rational system of duties classification and uniform nomenclature in job description. The report of the Wage and Personnel Survey of the Personnel Classification Board conducted several years after the establishment of the classification system indicated that it was the responsibility of the legislature to adjust salary scales in accordance with changes in economic conditions. "Broad differentials of this kind," it was asserted, "can as readily be . . . applied to the basic rate by the legislative authorities as they can by some administrative agency, once the base has been established." 33 The report further defended the legislative revision of pay scales on the grounds that cost of living changes usually developed slowly and allowed sufficient time for legislators to consider the need for revision directly. Experience has amply indicated, however, that the statutory revision of salary schedules has lagged conspicuously behind that of government workers whose pay is fixed by administrative wage boards. The testimony of Rear Admiral C. W. Fisher before a subcommittee of the Senate Civil Service Committee in 1943 is highly illuminating in this respect: The per annum employees [he declared], . . . have been suffering a gross injustice . . . The wages of their colleagues, on a per diem or hourly basis, have, since . . . 1940, increased greatly. In the naval service, such increases of wages have amounted to 33% in 32 Hearings, 79 Cong., 1st Sess., H.R. 2497 and H.R. 2703, House Civil Service Committee, May 18, 1945. 83 House Doc. 602, 70 Cong. 2d Sess., p. 75.

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the case of laboring groups . . . 28% in the case of the helper group and about 20% in the case of mechanics. During that time our loyal . . . white collar group with very few exceptions . . . have been paid salaries in accordance with the Brookhart Act ( 1930) without any increase at all.34 The President's Budget Message for the fiscal year 1946 testified pointedly to the contrast between the rigidity of salary schedules and the flexibility of wage board rates. The situation which Admiral Fisher had deplored three years earlier was still prevalent throughout the Federal service. With but minor exceptions, basic salary rates have not been increased during the war. In contrast to salaried employees, the skilled and unskilled workers . . . in navy yards and arsenals have had wage adjustments which have approximately kept pace with wage rates for comparable work in private industry. Even the highly organized postal employees failed to obtain a general increase in their basic salaries for almost twenty years after the enactment of postal salary legislation in 1925.35 The 62nd Annual Report of the United States Civil Service Commission for the year 1946 specifically acknowledged the fact that statutorily fixed pay scales throughout the service in general had not been properly adjusted to meet radically altered economic conditions. The Commission recommended that such revisions be made "whenever necessary . . . to recognize changes in living costs . . . and to keep pay levels for Classification Act employees reasonably consistent with pay levels for other Federal employees." 3 6 In his testimony before the House Civil Service Committee in 1945 Civil Service Commissioner Flemming described the anomalous position in which the Government had been placed as a result of public policies which precluded upward revisions in the pay of salaried government employees but permitted their introduction elsewhere. In spite of the fact that one million Federal employees [i.e., those whose wages were fixed by wage boards] and most industrial workers have received increases in basic rates in accordance with the Little Steel Formula, there has been no increase in the basic " Hearings, 78 Cong., 1st Sess., S. 635, Senate Civil Service Committee, February 26, 1943, p. 48. K Hearings, 77 Cong. 1st Sess., H.R. 7071, 7144, House Committee on the Post Office, p. 160. M 62d Annual Report, U.S. Civil Commission, 1945, pp. 1-10.

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rates of compensation for . . . 1,220,000 employees who come under the Classification Act of 1923.37 The subsequent passage of the Federal Employees Pay Act of 1945 3 8 granted classified employees their first general increase in annual base pay since 1928. An interesting instance of legislative neglect in the adjustment of compensation arrangements may be found in the prolonged campaign of public employee unions to secure the introduction of overtime pay for per annum employees. The program of the National Federation of Federal Employees had long called for the payment of overtime work. This demand was originally motivated as much by the desire to discourage administrative officials from exercising an almost unfettered discretion to require overtime work as it was to obtain additions to employee income. The indiscriminate exercise of this discretion had even aroused such criticism and opposition as to provoke an official investigation. A provision of the Act of March 14, 1936 3 9 requested the Civil Service Commission to advise Congress concerning the extent of overtime work in the Federal Service. The fact that some agencies had maintained inadequate or no records to show the number of persons who had worked overtime or the number of hours which they had been required to serve in itself reflected a certain administrative negligence and suggested the possibility of the abuse of managerial discretion. The report which was submitted to Congress in February 1938 indicated that overtime work for which neither compensation nor compensatory time was allowed was not an exceptional nor emergency occurrence but a normal practice. 40 The statistics which the Commission had been able to accumulate showed that from July 1, 1936, to December 31, 1936, 76,448 employees had worked a total of 10,613,698 hours of overtime without any remuneration whatsoever. Although the disclosure of this situation might have been expected to result in early remedial action, no redress was afforded Federal employees for almost five years. The 1942 Report of the Civil Service Commission recommended that Congress take steps to alleviate inequitable pay arrangements in public " T h i s formula which did not apply to classified per annum employees authorized an increase in wages of 15 per cent above average straight time hourly earnings in January 1941. See Hearings, 79 Cong., 1st Sess., H.R. 2497, 2703, May 1945, p. 15. 38 Federal Employees Pay Act 1945, P.L. 106, 79 Cong., 1st Sess. " Act of March 14, 1936, 49 Stat. 1161; 5 USC 31 ( a ) Supp. Ill, 1937. 40 See Hearings, 77 Cong., 1st Sess., H.R. 7071, 7074.

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employment and referred specifically to the need for satisfactory overtime legislation.41 Partial remedial legislation had been enacted in 1940 but the provisions were only temporary and limited principally to the War and Navy Departments.42 Mechanics, laborers, and similar industrial employees had received time and one-half since 1934 for hours worked in excess of the established work-week. Federal legislation had required the adoption of similar arrangements in many areas of private employment.43 Civil Service Commissioner Flemming pointed out that the failure to treat public employees with the same consideration meant that the Government was "day in and day out . . . violating the principle of the Wages and Hours Act" 44 from which it was legally but hardly morally exempt. At one period approximately half of the Government employees received overtime pay and the other half did not. Moreover these conditions were found to prevail not only between but within the same departments. In some instances the War Department was authorized to pay overtime to employees in Washington but not to others performing identical work in the field and vice versa. In the Navy Department legislation permitted the payment of overtime to lawyers but not to their secretaries.45 The first legislation designed to extend the principle of overtime pay in the Federal Service on a comprehensive basis was passed in 1943.46 More than six months previously, Mr. Edward Young of the Bureau of the Budget had called for the enactment of such a measure on the ground that it was the "most urgently needed change in the Federal personnel administration today." 47 Congress, however, continued to approach the problem by partial, makeshift devices with the result that "eleventh-hour joint resolutions and stop-gap legislation . . . kept the salaried employees on edge and tended to break down their morale." 48 The overtime legislation which was finally enacted contained a number of provisions which could find no basis in logic or in general public and private experience. Outstanding among these was the unique formula which was devised Report of the U.S. Civil Service Commission, 1942, p. v. 54 Stat. 678; 54 Stat. 1205. 48 48 Stat. 522, March 28, 1934, Sec. 23. " Hearings, H.R. 7144, p. 16. " Hearings, 77 Cong., 2d Sess., S. 2666, 2674, Senate Civil Service Committee, September 22-23, 1942. " P.L. 49, 78 Cong., 1st Sess., 57 Stat. 75, May 7, 1943. "Hearings, S. 2666, p. 19. 48 Hearings, 78 Cong., 1st Sess., S. 635, March 2, 1943, p. 87. Telegram sent to the Senate Civil Service Subcommittee by a group of unaffiliated employee organizations at the Philadelphia Navy Yard. u

12

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for the computation of the basic hourly rate upon which overtime pay was calculated and which provoked widespread criticism and understandable resentment among public employees. The obvious and common-sense procedure which had been evolved in private industry and which prevailed in the computation of the overtime rate among public employees under the jurisdiction of wage boards was not adopted. This familiar formula determined the hourly rate on the basis of a forty-hour, five-day work-week of 260 days per year. For reasons which were never satisfactorily explained, the legislation in question assumed that for the purposes of overtime calculation Federal employees worked 360 days per year.49 The computation of daily and hourly rates on this basis operated simply to decrease the overtime rate by more than 25 per cent and total weekly earnings under overtime conditions by approximately 10 per cent.50 The abandonment of this formula in the favor of the prevailing practice was urged to no avail before the Senate Civil Service subcommittee in charge of overtime legislation in 1943 by representatives of the Bureau of the Budget, the Civil Service Commission, and various employee organizations.51 It was not, however, until the passage of the Federal Employees Pay Act of July 1, 1945 that the amendment was enacted.52 In brief, overtime pay was established in the Federal service nine years after Congress had first requested the Civil Service Commission to investigate a problem which even at that time was palpably in urgent need of rectification. The rigidity of statutorily determined compensation schedules has not only imposed economic hardship upon employees but it has made more difficult the achievement of efficient personnel management. The existence of an inelastic salary structure alongside a relatively adjustable wage board system in the Navy Department in 1943 produced a 57 Stat. 75, May 7, 1943. Thus a person in private employment or a Government employee whose pay was fixed by a public wage board and who received $1.00 an hour would get $1.50 for every hour worked in excess of 40 per week. But a per annum employee in the Federal Service earning an equal base pay of $40.00 a week for a 40-hour week would receive only $1.08 per hour for every hour of overtime. For it was assumed that this employee who had earned $2080.00 per annum (40 χ 5 2 ) worked 360 48 80

days a year and therefore received $ ^ 8 0 p e r ¿|ay o r —$2080 _ e r }ί 0ι1Γ o r 72 7 1 360 360 X 8 cents base pay yielding an overtime "time and a half" hourly rate of $1.08 ( 7 2 + 3 6 ) . Commenting on this formula Senator La Follette declared in a radio address ( Union Postal Clerk, July 1942, p. 9 ) : "It is absurd on its face and I am surprised that any Government administrator should propose it." It is perhaps equally surprising that the Congress should have enacted it. 61 Hearings, S. 635. a Federal Employees Pay Act of July 1, 1945.

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personnel situation in which plant engineers with extensive experience and college training were earning less than apprentice mechanics.53 A detailed case study of wage inequalities between salaried per annum and wage board employees in a particular administrative unit revealed the existence of gross inequities.54 According to this survey storekeepers in an Army warehouse received less pay on a straight time and on an overtime basis than laborers and packers under their supervision.55 Under such circumstances it was difficult to persuade qualified mechanics to accept promotions to supervisory positions which would involve a substantial decrease in pay.56 The same factors operated also to weaken the disciplinary authority of supervisors over employees whose pay often exceeded their own. In addition the Government found itself at a marked handicap in its efforts to recruit a sufficient work force in competition with private industry particularly at the supervisory level. If public employees are adversely affected by the rigidity of salary scales whenever the wage level is rising, they have on occasion retained relatively favorable conditions of employment during periods of severe economic depression, widespread unemployment, and an appreciable decline in the cost of living. When wage cuts, compulsory and payless furloughs were imposed by the Federal Government in 1932, employee organizations immediately instituted an intensive campaign to secure the restoration of former salaries. As a result of vigorous and concerted effort they were able to secure the overriding of President Roosevelt's veto of the independent offices appropriation bill for the year 1935. The legislation substantially decreased the amount of the pay cuts then in effect. In his veto message the President stated: This bill increases the compensation for employees of the United States Government $125,000,000 over my Budget estimates for this purpose. I have great sympathy for the employees, but I cannot forget that millions of American citizens are today still without employment, and reduction in the compensation of Federal em63 Testimony of Rear Admiral C. W. Fisher, Hearings before the Senate Subcommittee on the Civil Service, S. 635, March 2, 1943, p. 99. 64 See Pearl Sutter, "Wage Inequalities in Government between Classification Act Employees and Wage Administration Employees," New York University, Graduate Division for Training in Public Service. Unpublished master's thesis, June 1943. K Classified as CAF-1, 2, 3, they received $1260, $1440, and $1620 per annum whereas laborers were paid 74 cents an hour or $1539.20 on a straight time and $2000.96 on an overtime basis. Packers received 80 cents an hour or $1664 and $2163.20 under parallel conditions. See Sutter, "Wage Inequalities, etc." M Hearings, S. 635, p. 48.

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ployees has been and still is on the average less than the reduction . . . that has been . . . endured by . . . citizens not in the employ of the . . . Government.57 The Congressional decision to override the veto furnishes, incidentally, an excellent example of the manner in which the inability of the President to exercise an item veto makes it exceedingly difficult for the executive to achieve effective budgetary control. Only a short paragraph of the veto message and a minor part of the debates in the Senate and the House of Representatives were devoted to a discussion of the public salary problem.58 The main point at issue concerned veterans legislation. The public employees secured a restoration of salaries through the attachment of their objective to a comprehensive appropriation measure which the President was compelled to accept or reject in its entirety. Other consequences of the rigidity of salary scales may be observed at this point. Shortly after substantial wage increases had been granted in the Federal Service, Herman Feldman expressed "disappointment that increases [in pay] should have brought so little discernible improvement in spirit and efficiency." 59 This condition may be readily explained. Indeed the attitude of public employees following these generally belated adjustments seems somewhat comparable to that of private workers following a successful strike. Employees apparently feel that the gains obtained were reluctantly granted in response to the application of persistent pressure. Accordingly they are scarcely disposed to manifest their "appreciation" in a heightening of job interest and efficiency. Moreover, employees who are unable to obtain a direct adjustment of their pay demands will attempt to secure satisfaction through whatever indirect means may be available. One of the most expedient and administratively objectionable stratagems resorted to is the not uncommon practice of pressing for the upward revision of classification allocations so as to permit increased pay to the incumbents of designated positions. Such activities do obvious and considerable harm to the integrity of a duties classification system which should be kept distinct from the scale of wage payments. Demands of this sort will emerge of course in any enterprise in which a classification scheme is operative. Employees will always endeavor to obtain the highest possible classification of their positions. But they will be less driven to seek pay in" Congressional Record, 73 Cong., 2d Sess., March 27, 1934, p. 5540. Ibid. M Feldman, Λ Personal Trogram for the Federal Service, p. 6.

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creases through the indirect device of "blowing up" classification standards if readier methods are available. In conducting their lobbying activities, unions of public employees frequently fail to reconcile their differences and reach some general agreement upon desired objectives. Inter-union disagreements are occasionally marked by extreme bitterness. A spokesman for the National Federation of Post Offic Clerks once vehemently denounced the activities of the rival clerks' association during a campaign for salary increases in language which bespoke a complete absence of organizational coordination. "The isolated [i.e., unaffiliated] UNAPOC . . . sank to an all-time low in back-stabbing and vicious anti-labor sniping. For every . . . Federation . . . sponsored bill [it] . . . introduced similar or parallel bills." 60 Union activities on behalf of retirement as well as of salary legislation have furnished frequent illustrations of associational inability to compose differences. The unsuccessful attempt in 1938 to secure the liberalization of retirement benefits was due in large part to the fact that the AFL and the independent unions were unable to reach an agreement concerning the maximum employee contribution rate. In his comment upon the failure of this retirement campaign President Steward declared before the 1939 Convention of the NFFE : "Without exception, the greatest obstacles were the leaders of certain employee groups." 61 The attempts to secure salary increases during World War II were marked by a similar display of union discord. The position of the UFWA was sometimes in sharp conflict with that of the independent and AFL unions. Denouncing the allegedly needless compromises of its rivals, the union's journal declared in 1941: "Mr. Stengle [President of the AFGE] gratefully accepted the legislative crumbs that had been placed before him. Mr. Steward likewise accepted the meager fare." 62 The unfortunate prevalence of inter-union friction and an interesting discussion of its consequences may be found in the 1945 Congressional hearings on salary bills. A conscientious member of the Senate Civil Service Committee asked Luther Steward: "What objections can there be to [union] officers getting together and appearing before the committee and advocating in one bill what is needed?" 63 No satisfacBaarslag, p. 150. " Proceedings, 1939 Convention of the National Federation of Federal Employees, San Francisco, September 4, 1939. 62 Federal Record, March 20, 1941. " Senator Langer in Hearings, 79 Cong. 1st Sess., S. 807. Senate Civil Service Committee, April 25-30, 1945, p. 171. M

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tory reply to this question was forthcoming. Pointing to the fact that numerous amendments were customarily proposed by the various unions, Senator Langer inquired: "Why aren't these amendments put in before the bill is brought before us?" 6 4 In more pointed fashion the Senator declared that if government employees were paying an alleged 1.3 million dollars in dues each year to public service unions and "not getting an increase when everybody else in America was getting it, there is something wrong some place." 6 5 The neglect of employee needs may not be attributed exclusively or even primarily to the uncoordinated activities of employee associations. In contrast to Senator Langer's criticisms of the confusion and delay attendant upon associational dissension, Senator Downey placed the responsibility for the inadequate consideration of compensation measures specifically "on the heads of agencies of the government and Congress." 66 Referring to the failure of executive agencies to formulate and submit to Congress broad policies or specific recommendations directed toward the improvement of working conditions in the public service, President Steward of the NFFE, who is invariably cautious and measured in his testimony, declared before the Senate Civil Service Committee in 1945 that the first time that a representative of the Bureau of the Budget ever appeared before a Congressional Committee advocating . . . constructive . . . personnel legislation was . . . in behalf of the Salary Advancement Act in 1941.6T Moreover the fiscal and personnel agencies support bills independently of and often in open antagonism to proposals sponsored by employee associations. Viewing this situation with particular reference to the Civil Service Commission, although its observations are as applicable to other agencies, the President's Committee on Administrative Management remarked: The Commission . . . does not seek in any organized way to reconcile its views with those of active employee organizations proposing legislation on the same topics. In consequence the formal legislative recommendations of the Commission . . . do little to lighten the burden of the Congress in giving adequate consideration to the proposals before it . . . The division of officials " Ibid. 85 Ibid. " Ibid. 87 Federal Employee, May 1945.

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and employees into two armed camps . . . is conducive to unfriendly relations . . . is disruptive of morale, and is in large part unnecessary. 68 The failure to achieve coordination in these matters may be attributed primarily to the absence of accepted procedures which could be utilized for this purpose. The resultant conflicts are also, of course, the responsibility of employee intransigeance as well as of official negligence or apathy. Commenting upon an administration-sponsored pay bill, an N F F E spokesman declared that if the measure as introduced does not square in some particular with the program of the National Federation, the National Officers are in no way committed to support [it] . . . and they can and will work for amendments to bring the bill into conformity with organization policy. 69 Congressional consideration of salary legislation proposed in 1943 presented a particularly illuminating instance of overt animosity between spokesmen of the Postal unions and administrative officials. The Postal organizations were seeking a bonus payment in addition to overtime pay which they were already receiving. 70 Mr. William H. McReynolds, Administrative Assistant to the President, declared before the House Civil Service Committee that it was not fair to the group of Government employees as a whole for any one group . . . to be given a flat bonus as has been proposed by many of these groups . . . and also authorize pay for overtime . . . and that is what they (the Postal unions) are driving for. 71 Mr. McReynolds further asserted that he would recommend the veto of the employee-sponsored measure if it were passed by Congress. The reaction of the Postal organizations to these comments was immediate and unrestrained. Appearing before the House Post Office Committee in support of the bonus bill, Mr. William Hushing of the A F L Legislative Committee was unsparing in his censure. Mr. McReynolds who occupies a glorified clerical position in the White House arrogated to himself unwarranted privileges M Report of the President's Committee on Administrative Management, Government Printing Office, Washington ( 1 9 3 7 ) , pp. 110-111. 68 Federal Employee, February 1945, p. 3. 70 Hearings, 78 Cong., 1st Sess., H.R. 1366, House Committee on the Post Office, February 1943. 71 Testimony of William H. McReynolds, Administrative Assistant to the President, Hearings, H.R. 1860, House Civil Service Committee, 78 Cong., 1st Sess., February 24, 1943, p. 7.

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when he was before another committee and threatened to veto the bill you have under consideration.72 A somewhat similar appeal to the committee to disregard the position of the administration was made by Mr. William I. Horner, legislative representative of the National Federation of Post Office Clerks. In an attack upon the Bureau of the Budget he criticized its alleged usurpation of legislative functions. "If its recommendations must prevail, then that is the same as making it a legislative body." 73 The committee and the Congress were apparently impressed for the bonus bill was passed in March 1943. It was signed by the President on April 9,1943 74 and the AFL Convention in the fall of that year looked with pride upon a successful public salary campaign despite the efforts of "administrative underlings" to oppose the "flat increase plan . . . and attempt to coerce Congress." 75 The resolution of labor problems in the public service essentially through pressure-group tactics has further resulted in the failure to evolve basic policies which might produce a rational and periodic revision of public salaries. In the absence of an explicit and coherent public wage program the activities of employee organizations will remain as opportunistic as the parallel conduct of the state employer is devoid of theoretical consistency. Thus during the inflationary periods of the First and Second World Wars employees demanded wage increases to correspond with the rise in the cost of living but in the early thirties the National Legislative Committee of Federal Employee Organizations representing the unaffiliated unions sent a letter to all Congressmen calling for the "elimination of cost of living as the determining factor in federal pay adjustment," and declared that "federal salaries should be stabilized and not be subjected to frequent change with its resultant uncertainties." 76 The Report of the Executive Council of the AFL to the Federation's 1935 Convention reiterated the same demand on behalf of the affiliated unions: "The Executive Council believes that any effort to enact legislation which provides that the wages of government employees shall be based on the cost of living shall be opposed in every way." 77 If salary determination in the public service is essentially in need of basic standards, it is clearly a function of the legislature to establish Hearings, H.R. 1366, February 18, 1943, p. 4. Ibid., p. 57; Union Postal Clerk, March 1943, p. 5. 74 P.L. 25, 78 Cong., 1st Sess. 75 Proceedings, American Federation of Labor Convention, 1943, p. 75. Published Letter of December 27, 1933. 77 Convention Proceedings, p. 141. 72

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them. The particular decisions governing their detailed administration present a different problem. The complex intricacies of wage fixing require an expert knowledge and skill not normally found among legislative bodies. Congress has long recognized this fact in the case of public industrial employees and it has arranged for the administrative determination and revision of their wages in accordance with the statutorily established standard of the "prevailing rate" for comparable work in private employment. If the legislature is ill-equipped to fix the pay scale of a mechanic's helper, it is scarcely more competent to determine the salary range of a clerk-typist. Similar considerations enter into the making of each of these compensation decisions. The conditions in the labor market, cost of living changes, promotional opportunity, the varying degrees of job security which attach to different classes of positions, prestige, health, and retirement benefits as well as the technical problem of duties classification must be considered in fixing proper pay levels. Experience with salary determination during the two World Wars amply revealed critical legislative shortcomings in these matters. In 1919 Representative Good declared that the satisfactory and equitable resolution of the pay problem demanded the appointment of a commission that would go into this whole question and then in a broad way, without taking dictation from any source, determine what was a fair wage for all of these employees in the various departments, and upon that report base legislation that would be . . . fair . . . both for the Government and those who work for it. 78 Procedures which would operate in this manner have never been prescribed although the need for them remains acute some thirty years after this observation was made. The consideration of overtime and bonus bills introduced during World War II revealed that Congress had made little progress in its ability to cope with the intricate details of public salary determination. The problems were simply too complex for analysis and resolution even by conscientious and informed members of Congress. Senator Langer declared in a committee hearing on proposed compensation legislation: "I am very ignorant about the situation . . . and don't pretend to know anything about [these matters]." 7 9 Aside from the issue of technical proficiency, Congressmen fre78 Federal Employee, February 1919, p. 116; Congressional Record, 65 Cong. 3d Sess., January 18, 1919, p. 1689. 78 Hearings, S. 635, p. 67.

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quently lack sufficient time to devote to salary measures which require exhaustive consideration. The Senate hearings on pay legislation in 1945 provide an interesting case in point. Addressing a Senate committee on behalf of an important public salary bill, Civil Service Commissioner Flemming asserted: "S.807 is the most far-reaching legislative proposal affecting the welfare of the employees of the Federal Government that has been placed before the Congress of the United States in recent years." 80 Despite its significance as well as its urgency, Senator Downey, Chairman of the committee in charge of the bill, was constrained to remark: "It is most regrettable that Senators are so heavily laden that they cannot attend these committee hearings." 81 In this respect Beyer's analysis of the factors which contribute to the unsatisfactory consideration of civil service problems in municipal jurisdictions is generally pertinent to the entire field of public employment. The hardships to which public employees are often subject was observed to be due not so much to "deliberate harshness on the part of governments as from their tardy action." 82 A further factor responsible for the almost chronic dilatory consideration of salary legislation was once aptly described by Pendleton Herring. "Questions as to the wage scale of a post office clerk or the bonus of a charwoman . . . are not calculated to attract the attention of statesmen." 83 To be sure legislative interest is sometimes solicitous with respect to equally undramatic issues relating to the material welfare of private groups. If these latter questions are hardly designed to invite the consideration of statesmen, they nevertheless occupy a substantial part of the legislature's normal agenda. For it is as much the source and sponsorship as the social importance of proposals which furnish the measure of their legislative appeal. It may generally be true, as Herring points out, that "every organized group of any importance can look to some few congressmen who are 'all right' . . . who may be relied upon to back the cause in which the association is interested." 84 But it is fortuitous circumstance rather than the existence of a common bond in economic interest or social outlook which occasionally 80 Hearings, Senate Civil Service Committee, 79 Cong., 1st Sess., S. 807, April 25-30, May 2, 1945, p. 5. 81 Ibid., p. 5. 82 W. C. Beyer, "Municipal Civil Service in the United States," in Problems of the American Public Service, p. 135. 83 Group Representation in Congress, Baltimore, Johns Hopkins, 1929, p. 60. 81 Ibid., p. 66.

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leads legislators such as Senator Mead or Representative Ramspeck in recent years to espouse the cause of civil service improvement or to act as spokesmen for public-employee groups. Even in these cases the legislator's interest is often the product of chance committee assignments and if it were not for the happy appointment of capable and conscientious persons to these positions, the civil service could hardly look with confidence even to a small core of unfailing legislative support. The promotion of the welfare of public employees provides a questionable basis for the development of a legislative reputation and this condition unfortunately will probably remain prevalent as long as the bureaucracy is held in low public esteem. Union officials have on occasion acknowledged the inadequacies of lobbying as the principal method to advance the interests of employees in the public service. As early as 1929 Luther Steward wrote: The organized employees sincerely desire that personnel matters be considered and decided on their merits, but have had to resort to the methods commonly used by seekers for special privileges . . . [They] are ready and even anxious to abandon the political tactics which they temporarily and unwillingly adopted and to aid in working out a scientific solution for the Federal Government's personnel program. 85 If progress has not been made in this direction the responsibility lies primarily with the government's failure to establish procedures whereby such a "scientific solution" might be effected. At the state and local level, however, employee associations have shown an increasing disposition to discard lobbying activities in favor of collective conferences with administrative officials. W e are opposed [the President of the American Federation of State, County and Municipal Employees ( A F L ) has declared], to fixing salaries by statute and want that done by an agency competent to make decisions based on accepted factors . . . subject to approval by the legislatures. 86 That such aspirations represent a fundamental reorientation in public-labor relations is strikingly evident from their comparison with an expression of union objectives announced by the same official nine years previously. During the early development of the AFSCME, President Zander declared: 85 M

1945.

Federal Employee, April 1929. Excerpts from an address delivered by Arnold Zander, Boston, September 12,

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The private employment agreement has its corollary for the public service in legislation . . . The Federation devotes itself to securing the passage of legislative acts. These constitute the agreements under which the local unions operate.87 The area of administrative discretion within which labor problems in the public service are being increasingly resolved will now be examined. 87 "Public

Employee Unions," Public Management (September 1937), p. 26.

CHAPTER

IX

administrative discretion in the determination of conditions of employment in the public service HISTORICALLY working conditions in the public service have not been determined exclusively by a series of statutes which fix the minute and detailed aspects of employment. On occasion the exercise of administrative responsibility in these matters has been appreciable. The point is significant in view of a frequent disposition to deny the possibility of meaningful collective consultation between administrative officials and employee representatives on the ground that the legislature must as a matter of inherent governmental necessity make all vital decisions in this field. A brief survey of the history of Federal compensation legislation will readily dispel this misconception. As early as March 3, 1795, legislation authorized department heads "to vary . . . the compensation . . . for clerks . . . in such manner as the services to be performed shall, in their judgment require." 1

Until 1818, salaries were paid from "lump sums" appropriations in which the departments were granted specific sums and permitted to determine both the number of clerks to be employed and the salaries to be paid to each. Their discretion was subject only to statutorily fixed maximum rates and could be exercised only, of course, within the limits of appropriated and available funds. Under these arrangements salary administration, as might have been expected, was uncoordinated and inequitable. Department heads proceeded to fix rates independently of one another. The ensuing confusion was so unsatisfactory that in 1818 Congress deprived department officials of their discretionary authority and enacted appropriation legislation which fixed both the number of clerks to be employed in the executive branch and the salaries 11

Stat. 443, 4 4 4 ; also 1 Stat. 730, March 2, 1799; 2 Stat. 396, April 21, 1806.

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to be received by each.2 This enactment of the "statutory roll," as it was termed, persisted until 1830 when "lump sum" appropriations were once more restored. To a greater or lesser degree, therefore, from 1795 to 1818 and from 1830 to 1853, department heads in the Federal Service were authorized to fix the rates of pay for clerical employees. Discontent with the inequitable administration of this pay policy led the clerks to petition Congress for the enactment of standard salary rates and for the relief of other unsatisfactory conditions of employment.3 The Civil and Diplomatic Appropriation Act for 1854 was in part a result of their efforts. It established four classes of clerks, specified salaries for each, and fixed the number of clerks in each department.4 The pay rates were revised slightly upward in the following year5 and the salary schedules as then issued constituted the fundamental basis of compensation for clerical employees until the passage of the Classification Act of 1923. Throughout this long period the white-collar employees in the Federal Government were confronted with the invidious alternative of accepting the inequitable and disordered administrative determination of salaries, albeit at least theoretically flexible, or a statutory arrangement which would confer some rudimentary uniformity but at the cost of extreme rigidity. Under these conditions it was not surprising that employees regarded a persistent uniformity as a lesser evil than the haphazard and uncertain exercise of administrative discretion which rewarded a few favored by the accident of place or the possession of political influence but discriminated against the majority of employees who were less fortunately located or unable to invoke political support. Of course the legislation of 1853 and its subsequent administration fell far short of establishing any genuine uniformity in salary arrangements. The four classes which it created were not clearly defined in terms of duties and the process whereby positions were allocated to the several classes was carried out at best with a conscientiousness rendered ineffective by a lack of understanding of classification principles and at worst with a rank favoritism which provoked widespread resentment. Employees accordingly pressed continuously for the amelioration of these conditions and the classification scheme contained in the legislation of 1923 represented a statutory attempt to evolve comprehensive and equitable salary arrangements in the Federal Service. 2 8 4 5

Act of April 20, 1818, Senate Document, vol. Act of March 3, 1853, 10 Stat. 276, April 22,

3 Stat. 445. I, no. 71, 25 Cong., 2d Sess., Jan. 5, 1838. 10 Stat. 189, 209. 1854.

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Although the desire to obtain equal pay for equal work has remained a paramount employee objective during this period, the nature of the classification and the pay problem in the public service has undergone a radical transformation since the clerks first petitioned Congress in 1838 to improve their conditions of employment. In 1836 the five departments in Washington employed but 336 clerks.6 With hundreds of thousands of persons now employed in a vast number and bewildering variety of classes, a question arises as to the adequacy or desirability of a single comprehensive legislative solution to the salary problems presented by a work force of this magnitude. In brief, must employees choose between inequitable and inept wage administration by operating officials and a uniformity imposed by legislative prescription at the cost of flexibility? It was previously shown that the legislative determination of salary scales has invariably been marked by an unresponsiveness to changing economic conditions. There is no apparent reason to expect a fundamental improvement in this aspect of public compensation arrangements as long as exclusive and detailed responsibility is retained by the legislature. It remains to be determined whether salary flexibility under administrative auspices can be achieved without inequitable and discriminatory practices and with adequate regard for ultimate legislative responsibility in money matters. To this end a number of instances in which wage rates have been determined by administrative action may be examined in detail. In keeping with the unprecedented augmentation of administrative powers which marked the early development of the NRA, hiring officials were frequently vested with authority to fix the pay of new employees irrespective of statutorily established compensation schedules. Thus the Farm Loan Commissioner was authorized to hire employees at such rates as he deemed sufficient without regard to existing pay laws but subject to a $10,000 maximum.7 Similar authority was conferred upon officials of the Securities and Exchange Commission,8 upon the Secretary of Labor, 9 the Administrator of Public Works,10 and upon hiring personnel in other designated agencies. Other statutes empowered executive personnel to fix rates of pay within maxima established by the Classification laws for comparable work11 whereas " House Reports, vol. 3, no. 641, 24 Cong., 1st Sess. 7 P.L. 10, 73 Cong., May 12, 1933, Sec. 33. 8 P.L. 22, 73 Cong., May 27, 1933. 8 P.L. 30, 73 Cong., June 6, 1933, Sec. 2. 1 0 P.L. 67, 73 Cong., June 16, 1933, Sec. 201 (a). 11 For example, Directors of the Farm Mortgage Corporation, P.L. 88, 73 Cong., January 31, 1934.

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still others required that the statutory rates should govern only "so far as may be practicable." 12 The decisions of the operating officials in these matters were not subject to effective review by any central personnel or fiscal agency. The result of this uncoordinated and virtually uncontrolled delegation of authority in salary determination was extremely unsatisfactory from the point of view of personnel management even though it may have contributed to the more expeditious recruitment of personnel during a period of economic emergency. Salaried employees with many years of service to their credit frequently complained that their pay was less than that of new appointees engaged in similar or even less responsible work. Inequalities were widespread both as among and within agencies where administrative discretion in salary matters was virtually unchecked. In brief the resultant chaotic compensation situation was simply an enlarged version of the disorder and maladjustment which had prevailed prior to the enactment of the basic classification legislation. Once more employees bent their efforts toward securing the restoration of uniformity as quickly as possible. These rather distressing experiments in administrative salary determination should in all fairness be viewed in the broader perspective of the widespread and exuberant delegation of authority which marked much of the early New Deal legislation. Responsibility for the disorder which gradually penetrated the entire structure of public compensation may in part, at least, be attributed to Congress which had failed to formulate any basic wage policy but had in fact invited a host of diverse salary arrangements in its enactment of hastily contrived enabling legislation. Experience with administrative wage discretion under other circumstances has been much more satisfactory particularly when it has been exercised in accordance with more carefully evolved legislative standards. Although administrative officials lack authority to fix the salary rates of positions which are under the various classification acts,13 they have on occasion been vested with important discretionary power to adjust employee compensation upon the ascertainment of certain predesignated conditions. A familiar instance of this type of authority is found in the administration of the within-grade salary increases which were contemplated in the basic classification legislation of 1923 14 and for which more satisfactory provisions were made in the Mead"P.L. 97, 73 Cong., February 23, 1934, Sec. 4. " 1 0 Comp. Gen. 110, September 24, 1931. " P.L. 516, 67 Cong., March 4, 1923, Sees. 7, 9.

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Ramspeck Act of 1941. The first of these laws permitted department officials to increase the compensation of employees to the next higher rate of pay within the salary range of the grade to which their positions had been allocated provided that their efficiency ratings met statutorily prescribed standards. The Personnel Classification Board was instructed to develop efficiency-rating systems which could be used as a basis of upward or downward compensation adjustments. Increases were made contingent upon the appropriation of sufficient funds for their payment.16 As a rule adequate money was not provided to assure an orderly and equitable administration of this program. Agencies which received lump-sum appropriations were frequently able to grant within-grade increases whereas those whose appropriations were voted in more specific fashion were prohibited from rewarding equally deserving employees. The inequities which resulted inevitably led to allegations of favoritism and discrimination. In its report on the Treasury and Post Office Departments Appropriation Bill for the fiscal year 1940 the House Committee declared: "There has never been any well-defined policy in the matter of affording salary step ups in the various departments and independent agencies of the Government within grades of the classification act." 17 Appreciating the need for a readjustment in existing practices, the House Appropriations Committee in 1939 requested the Bureau of the Budget to study this problem and to submit a report with recommendations for remedial action. 15

The survey conducted by the Budget revealed particularly flagrant discrepancies as between departmental and field employees, confirmed the suspicion of discrimination as between high- and low-salaried positions, and pointed to the complete absence of standards to control the exercise of official discretion in the administration of pay adjustments.18 The improvement of the existing arrangements was recognized to require a balance between administrative discretion necessary if the incentive aspects of the legislation were to be fully developed and the need for a comprehensive formula which would assure equitable treatment upon a service-wide basis. Legislation was subsequently introduced which established specific standards to govern the administration of these pay increases.19 A salary advancement bill provided for within-grade pay increases up to the maximum rate upon the comple15 P.L. 200, Cong., 1st Sess., Ch. 346, Sec. 2b, Executive Order 8842, August 1, 1941. 18 P.L. 516, 67 Cong., Sec. 7. " House Report 98, 76 Cong., 1st Sess., February 24, 1939, p. 7. 18 House Report 533, 77 Cong., 1st Sess., May 13, 1941, pp. 3-6. " H.R. 1073, January 3, 1941, 77 Cong., 1st Sess., S. 1634, June 16, 1941.

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tion of prescribed periods of service ranging from eighteen to thirty months, and upon the attainment of a prescribed efficiency rating.20 These provisions were further liberalized by the Federal Employees Pay Act of 1945.21 Administrative officials were entrusted with the responsibility of determining the eligibility of employees for periodic pay increases and of effecting revisions whenever they were in order.22 Theoretically at least, these adjustments were not intended to be automatic but were to be administered judiciously for the improvement of the service. Thus the Navy Civilian Personnel Instructions explicitly admonished supervisory officials that an employee "may not be given an efficiency rating for the purpose of making him eligible for a periodic pay increase." 2 3 As a practical matter, however, the sought-for degree of administrative flexibility as a technique of personnel control and as a means to spur employee effort was not forthcoming. The effect of the legislation was simply to confer a salary increase virtually upon every employee whose period of service formally satisfied the statutory requirement. Other instances of administrative discretion in salary matters affecting classified per annum employees may be noted briefly. The MeadRamspeck Act of 1941 conferred discretionary authority upon officials to grant certain pay increases for especially meritorious work. Such increases were to be reported to the Civil Service Commission which in turn was directed to present an "annual consolidated report to Congress covering the numbers and types of actions" 24 taken in pursuance of this authority. Similar provisions were contained in the Federal Employees Pay Act of 1945. Under the terms of this statute the exercise of administration discretion was somewhat facilitated. The Civil Service Commission was permitted to delegate authority to department heads or their representatives to make such increases "without prior approval in individual cases by the Commission." The Commission, however, was allowed to "withdraw or suspend such authority from time to time, whenever post-audit . . . indicates that standards . . . have not been observed." 2 5 On its part the Civil Service Commission formulated standards and issued regulations to guide the orderly and equitable award of these P.L. 200, 77 Cong., 1st Sess. Federal Employees Pay Act 1945, P.L. 106, Sec. 402, 79th Cong., 1st Sess. 22 Executive Order 9578, June 30, 1945. 23 February 22, 1945, Sec. 195, p. 6. 21 P.L. 200, 77 Cong., 1st Sess., Sec. 2 ( f ) ; E.O. 8882, September 3, 1941. 25 Federal Employees Pay Act 1945, P.L. 106, Sees. 403-404. 20 21

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increases. Employees who had attained efficiency ratings of excellent and who were deemed preëminent within this group or those who had performed some service of particular distinction beyond normal duty requirements such as devising superior work methods, improving employee morale, effecting savings in manpower, time, expense, or in the invention of devices which contributed to safety, or health or which facilitated staff training were declared eligible to receive additional within-grade salary advancements for exceptional accomplishment. A similar legislative delegation of discretion in compensation matters may be found in the Act of July 1, 19 18 27 which authorized the Secretary of the Navy "to pay cash rewards to civilian employees of the Navy for beneficial suggestions." This law furnishes an excellent example of the manner in which administrative officials have occasionally been permitted to develop in detail the broader terms of a statute governing employee compensation. The legislation in question provides simply that such awards may be made to persons whose suggestions contribute to "improvement or economy in manufacturing processes of plant or naval material," 2 8 and a recent naval appropriation act states that "the appropriations for the Naval Establishment . . . shall be available for . . . the payment of rewards to civilian officers or employees . . . for suggestions . . . as authorized by the Act of July 1, 1918." 2 9 26

The specific grounds upon which awards are made have been developed administratively with a thoroughness and appreciation of actual operating conditions which no legislative body may reasonably be expected to reveal. Awards are authorized for beneficial suggestions which reduce costs, waste, fire, health and accident hazards, eliminate breakage and duplication, conserve materials, improve methods, working conditions, housekeeping, employee morale, combine operations or increase production.30 During the early years of the depression the rigidity in statutorily fixed public salaries made it difficult to achieve desired reductions in personnel expenditures through the normal processes of legislative amendment. Congress, therefore, authorized the President to order the accumulation of data relating to changes in the cost of living and to re28

1943.

Civil Service Commission, Departmental Circular 321, supp. No. 1, March 30,

4 0 Stat. 718; 5 USC 416 (1934 ed.). Ibid. 28 P.L. 347, 78 Congress; 58 Stat. 301, June 22, 1944. 30 Naval Civilian Personnel Instruction 25, February 23, 1945. 27

18

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vise the pay scales of classified employees in the light of this information subject to prescribed legislative standards governing the range and frequency of adjustments. A base period and index were defined by statute to include cost of living data from 1928 through 1932. The President was instructed to issue executive orders which contained cost of living indices for succeeding periods and was authorized to impose such percentage reductions in pay as would equal the percentage by which the current index number was below the index for the base period subject to a maximum reduction of 15%.S1 Pay cuts were subsequently instituted by administrative action. 32 Employee organizations campaigned vigorously for the repeal or modification of this enabling legislation and it was largely as a result of their incessant pressure that the maximum allowable reduction was lowered to 10 per cent and eventually to 5 per cent for the fiscal year ending June 30, 1935. 33 Their opposition to this unique experiment in the administrative reduction of statutorily fixed salary scales is not difficult to understand. In previous periods when the cost of living was increasing, Congress had shown a pronounced reluctance to authorize upward revisions in pay but it acted with unprecedented speed in introducing the reduction scheme and in securing its immediate implementation by executive action. Nevertheless, as a device for the institution of orderly and equitable salary adjustments in the light of changing economic conditions the technique has much to commend it. Experience elsewhere has revealed that employees may even be induced to support such a program if it is efficiently and fairly administered over longer periods and not evolved simply as an emergency response to the demand for salary retrenchment during a period of economic crisis. During World War II the rigidity of the salary structure in the Federal Service presented such a serious problem in recruitment that the Civil Service Commission requested authority from Congress to permit appointments to critical jobs at within-grade salary rates rather than at the minimum rates. 34 The Classification Act required that original appointments be made at the minimum rates of the various grades. 35 In response to the urgency of a critical war situation the Overtime Pay Act of 1943 authorized the Civil Service Commission to prescribe intermediate rates as minimum rates if such adjustments were necessary in P.L. 2, 73 Cong., 1st Sess., March 20, 1933, Title II, Sec. 3. See Executive Orders of March 28, 1933, July 3, 1933, January 9, 1934. 38 P.L. 141, 73 Cong., March 28, 1934, Title II, Sec. 21. M 60th Report, Civil Service Commission, 1943, p. 40. 35 P.L. 516, 67 Congress, March 4, 1923, Sec. 6. 81

32

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227

order to eliminate "gross inequities" between Classification salaries and wage board pay levels. 36 This legislation represented a novel albeit indirect and partial awareness of the importance of fluctuations in the labor market as a compensation determinant in public employment. A similar provision was contained in the Federal Employees Pay Act of 1945. 37 As of May 1946 the Commission had not exercised its authority to establish minimum rates in excess of those prescribed in existing statutes. 38 The latitude afforded the Commission, according to the testimony of Rear Admiral C. W. Fisher of the Naval Establishment, represented at best "a very small step" in the mitigation of pay inequities. 39 Nevertheless the experience remains significant as an instance in which Congress did permit a central personnel agency to fix the pay of classes of employees between legislatively designated maxima and minima whenever specified conditions were administratively deemed to exist and to warrant such adjustments. The celebrated experiment of the city of Saint Paul with the annual adjustment of certain municipal salaries according to cost-ofliving changes has furnished convincing evidence of the workability of such arrangements through periods of prosperity and depression. For over twenty-five years, salary revisions have been made according to changes in the index numbers of the cost of living issued by the United States Bureau of Labor Statistics. The full percentage of any such change has been added or deducted from the base pay of lower-salaried employees and a proportionately smaller adjustment has been made in the higher level salaries. The scheme has been generally accepted by employees, taxpayers, and the public. Pay adjustments are viewed as "routine business." 40 The severity of the depression in 1931 placed an unusually critical strain upon the plan. Its automatic administration in normal fashion would have resulted in an appreciable reduction in pay during a period of acute economic distress. On this occasion employee pressure was successful in securing a temporary postponement of pay cuts. The integrity of the scheme, however, was not fatally compromised by this action. Reductions were again introduced in 1933. A Saint Paul municipal official has declared that the "adjustment of city " 57 Stat. 77. 87 P.L. 106, 70 Congress; 59 Stat. 295, June 30, 1945. 38 Letter to writer, May 14, 1946 from the Personnel Classification Division of the Civil Service Commission. 88 Hearings, S. 635, p. 53. " C. P. Herbert, "Saint Paul's Fair Wage System," National Municipal Review, October 1932, p. 590.

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salaries on a cost of living basis has stood the acid test of substantial downward revisions." 41 Arrangements such as these assure a regular and reasonably prompt adjustment of pay in an area of employment notorious for wage rigidities. Secondly the procedure tends to mitigate the otherwise incessant struggle of employees to obtain pay increases through the exertion of pressure upon legislative bodies which are usually ill-equipped or ill-disposed to appraise such requests objectively or occasionally to safeguard the public interest by resisting unreasonable demands of politically powerful groups. The political considerations which so often attend salary revision by legislative bodies are thus substantially avoided. Finally the revision of salaries on a cost-of-living basis furnishes at least one objective criterion of public-wage determination in a field where objectivity is generally absent in the struggle between employees, taxpayers, and public authorities. The process is of course susceptible of abuse. If employee pressure is sufficient to stave off pay cuts in periods of depression and to secure increases in prosperous times, the entire scheme loses its justification and becomes simply a device to ensure periodic pay increases under the guise of a rationally conceived and administered wage policy. But such results are by no means inevitable. Moreover, a pay plan which allows for cost-of-living adjustments should not preclude the possibility or desirability of conferring permanent increases in base pay on other grounds. The cost of living is but one of several factors which should determine salary levels. Improvements in efficiency and productivity as well as fluctuations in the demand for various types of labor may also warrant pay adjustments. The Saint Paul scheme does provide unusual flexibility in securing pay revision according to one wage factor but it does so, according to one of its enthusiastic supporters, in such a manner as to keep "the real purchasing power of the employees . . . constant." 42 Employees will not remain satisfied with such arrangements if they believe that their efficiency or the demand for their services elsewhere justify an increase in their real wages. The previous examples of administrative discretion in salary determination have been selected from areas of public employment in which statutory action had already defined compensation schedules. These illustrations accordingly revealed the extent of permissible administrative adjustments of legislatively prescribed pay scales rather than instances of administrative authority to fix basic compensation. A subIbid., p. 591. "Ibid. 11

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stantial part of the total number of employees in the Federal Service, however, is paid according to rates determined exclusively by administrative action subject only to the general legislative requirement that pay scales conform to prevailing rates in private industry. About one million Federal employees were paid in this manner in 1944 43 and the occupational groups which they formed ranged from highly skilled craftsmen and mechanics to common labor. Most of these persons were employed in the field establishments of the War and Navy Departments although personnel in numerous other agencies, such as the Bureau of Engraving and Printing, the Government Printing Office, and the Tennessee Valley Authority were also included in these groups.44 The various statutory formulae governing the functioning of administrative wage boards differ in their particulars but they generally conform to a basic pattern which was first outlined in legislation enacted in 1862. This law provided that the rates of wages of the employees in the Navy Yards shall conform as nearly as is consistent with the public interest with those of private establishments in the immediate vicinity of the respective yards, to be determined by the Commandants . . . subject to the approval and revision of the Secretary of the Navy.45 It is in accordance with this legislative standard that the Navy Department currently fixes the pay rates for its employees who are not subject to the Classification Act of 1923. Wages are determined in the light of "sound and tested going rates of pay being paid for comparable work within the local labor market area." 4 6 To this end procedures have been devised which assure an adequate sampling of plants and employee groups in given localities. Wage and other data relevant to conditions of employment are compiled and analyzed to determine their applicability to similar or identical positions in the Navy field establishments. These arrangements permit adjustment of wages to varying conditions in the labor market. The fact that these administrative pay revisions are made by agen43 Lucile Christman, "Determination of Wage Rates for Mechanical and Labor Positions in the Federal Service," Monthly Labor Review ( November 14, 1944 ). " For the various enabling statutes, see 12 Stat. 587, July 16, 1862; 34 U.S.C. 505, 1934 ed. (Navy Department); 18 Stat. 372, March 3, 1875 (Bureau of Engraving and Printing); 28 Stat. 608, January 12, 1895; 43 Stat. 658, June 7, 1924 (Government Printing Office); 48 Stat. 59 ch. 32 Sec. 3, May 18, 1933 (Tennessee Valley Authority). 15 Ibid. " See Schedule of Wages for Civil Employees in the Field Service of the Navy Department, Washington, Government Printing Office, 1944.

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cies acting independently of one another and upon a regional or more frequently local basis has on occasion produced inequities among various groups of public employees. Although the "principle of locality wage adjustment" may furnish "the best means of assuring our47 employees proper wages and at the same time maintaining fair relationships with local industry,"48 it does not if administered in uncoordinated fashion provide for inter-agency uniformity in particular regions. That existing procedures have operated unsatisfactorily in this respect was recognized in the 1943 Report of the Civil Service Commission. Arrangements whereby the pay schedules of wage-board employees might be determined or at least coordinated on a service-wide basis were recommended.49 The Commission requested that it be authorized to issue uniform regulations governing wage-board procedures and to review schedules submitted to it by wage boards of various agencies. An attempt to achieve inter-agency coordination in rate revision was undertaken in 1943 when representatives of the War, Navy, Commerce, and Interior Departments jointly gathered data concerning wage adjustments in the lithographic trades and agreed upon a uniform schedule of pay rates which was subsequently put into effect.50 Administrative authority to determine pay schedules according to prevailing rates carries with it the discretionary power to appraise data or requests for adjustment which may be presented by employees individually or through their representative organizations. Under these circumstances the processes whereby vital wage decisions are reached are clearly amenable to a substantial degree of meaningful consultation with employees. If opportunity for the development of consultative procedures clearly exists, it has been explored most unevenly. Divergent practices may be observed not only among various agencies but even within the same jurisdiction at different periods. Operating substantially within the same statutory framework, different agencies have set pay rates simply by unilateral administrative action or through wage boards which have permitted employee participation or representation in various advisory capacities, or through the recognition of arrangements which closely approximate the form and substance of collective negotiation in private industry. Thus the War and Navy Departments have usually fixed pay rates by unilateral action. The Tennessee Valley " The italics are mine. 48 Statement of Mr. Fletcher C. Waller, Director of Civilian Personnel and Training, War Department, New York Times, March 15, 1946, accompanying announcement of a wage adjustment. "60th Report, U.S. Civil Service Commission, 1943, p. 42. 50 Christman, op. cit., p. 1069.

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Authority has evolved an extensive scheme of collective bargaining with many of its employees. Other procedures have been developed in the Government Printing Office, the Inland Waterways Corporation, and the Alaska Railroad. A number of these arrangements will be discussed in detail in the next chapter. Wage boards are usually composed exclusively or principally of administrative officials. Employee representation is thus virtually precluded by the terms of the regulations governing the composition and functioning of the boards in the War Department. Local wage boards consist of five members who must possess such "poise and maturity" as to render them "fully competent to discuss intelligently the . . . wage survey with executives of large companies." 51 Rates are subsequently fixed on the basis of data collected by board members and their assistants. A fundamentally similar procedure is followed in the Navy Department, in the Bureau of Engraving and Printing, and in the Bureau of the Mint in the Treasury Department.52 Under these conditions employees or their representatives are normally limited to the submission of data and requests to local or national boards. They may perform important functions in the preliminary survey of wage rates or in the registering of protests against proposed rate schedules. Appellate boards may be designated for this purpose. The role which employees may assume individually or collectively under these arrangements is simply equivalent to the exercise of the right of petition at the administrative instead of the legislative level. In 1940, however, certain Navy Yards permitted representative employee committees to appear at the hearings of local wage boards and even to visit private plants with board members for the purposes of accumulating data to be used in the fixing of pay rates. A specified period was allotted for the local discussion of this data and for the submission of joint recommendations to the national board in Washington. The National Wage Board of Review which promulgated the final Schedule of Wages for the Naval Establishment also contained a measure of labor representation during the war years.53 The exercise of administrative discretion in wage fixing seems applicable to public employment on a wider scale than has heretofore been practiced. Moreover, it offers a technique which may be conveniently utilized in the evolution of a program of government labor 61 Army Service Force Manual M 202, "Wage Administration for Ungraded Civilian Jobs," p. 5. 52 Christman, op. cit., pp. 1066 et seq. 63 See the Federal Record, February 20, 1940, p. 2.

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relations incorporating elements of employee consultation. Such procedures have been specified by statute in the Government Printing Office and by administrative action in the Tennessee Valley Authority and the Bonneville Power Administration. Their extension to other areas of public employment might lead staff associations to be more disposed to accept administrative arrangements which would compensate them for the surrender of pressure-group tactics by providing an adequate opportunity to present and discuss staff demands with responsible administrative officials competent to reach decisions which would normally, at least, be ultimately approved by legislative authorities. Such arrangements are infrequent in government employment. A few experiments, nevertheless, have recently attracted widespread attention and should therefore be examined more closely prior to an attempt to formulate a more general approach to this and other labor problems in the public service.

CHAPTER

Χ

the present status of employee representation in the public service A N EXTENSIVE variety of employee relations policies has been developed by public agencies at various levels of jurisdiction. The marked divergences which they reveal may be attributed to the fact that they have generally been formulated by administrative officials acting independently of one another and exercising narrowly or broadly such discretion as lies within their competence. Thus some simply assert employee rights under existing laws and regulations whereas others embody as full-fledged collective bargaining as is likely to develop in public employment within the foreseeable future. Employee relations programs generally recognize the right of government workers to form associations for the advancement of their common welfare. 1 In this respect they merely reaffirm, at least in the Federal Service, rights already conferred by the Lloyd-La Follette Act of 1912. Secondly, they usually contain categorical or implied prohibitions of the closed shop and, in most instances, confine the right of any association to represent only those individuals contained in its membership. Accompanying these policy declarations are other stipulations suggesting that employees resolve their differences with management through direct contact with various supervisory officials before invoking the aid of their associations. Subject to these qualifications, employees are accorded the right individually or through their representatives to consult with managerial personnel on all matters affecting conditions of employment which lie within the province of administrative discretion. The personnel policies of the Navy and War Departments in so far as they relate to civilian employees furnish typical illustrations of the 1 For a well-known and unusually comprehensive employee relations policy, see Memo. No. 753, Rev. 2. U.S. Department of Agriculture, March 5, 1943.

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conventional approach to the problem of staff consultation in the public service. "Group Dealings," as defined in the official Navy Civilian Personnel Instructions, "implies nothing more than a recognition of the rights of employees to present in group meetings recommendations and suggestions . . . which will be courteously received and upon which management will render decisions within its administrative discretion." 2 The negative approach which underlies this conception of group relations is exemplified in the personnel instructions furnished to the heads of various Naval activities. In contrast to grievance machinery which permits individual employees to carry their claims up to the highest levels of the departmental hierarchy, the official policy governing group consultation specifically excludes any right to invoke appellate procedures. The heads of activities in the Navy Department are thus advised that, in so far as matters of collective interest are concerned, employees do not possess any "inherent right of appeal ( such as exists in the handling of individual complaints) nor is the head of the activity required to forward any appeal from his decisions." 3 In fact, operating officials are virtually invited to pay scant attention to collective activity upon the assumption that the "organization's own channels will be available to it for appealing . . . to the Navy Department." 4 It is true that the War Department has authorized a representative in the Civilian Personnel Division of the Office of the Secretary of War to meet with the national headquarters of the various employee groups on nation-wide problems involving policy and practices and for the resolution of problems which, while originating locally at one of our field installations, have failed of local resolution.5 This designation of an official in a central personnel agency to act as a court of last resort in the settlement of group problems indicates an official tendency to regard collective staff conduct as a rather unwelcome symptom of pathological personnel conditions which alert management should endeavor to eradicate. The will to organize on the part of our employees [according to an interpretation of collective staff action by a personnel official in the War Department] has been manifested temporarily and See Section 60, June 23, 1945, entitled "Group Relations." Civilian Personnel Instructions, Navy Department, 1945. * Ibid. 6 Letter to writer from Civilian Personnel Division, War Department. 3 8

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235

. . . our management levels are in general aware of individual problems before they manifest themselves as an aggressive expression of group will.6 Personnel policies in other agencies have, on occasion, proceeded from fundamentally different assumptions. They have been based on an explicit recognition of the fact that group problems are essentially distinct from individual complaints and that the most sedulous and conscientious resolution of the latter will not remove the factors which give rise to the former. A rather unique and elementary procedure which at least permits the expression of collective interests of employees has been evolved in the Postal Service. It has become the custom of employee organizations to submit a memorial to the Department incorporating those resolutions which have been adopted at their respective conventions. These petitions contain requests and suggestions relating to the entire field of Postal personnel administration. Diverse matters of collective concern such as seniority, night work, ratings, safety, lighting, substitute employees, and promotions are presented for official consideration.7 Conferences between union officials and an Assistant Postmaster General are sometimes held in an attempt to reach mutually satisfactory understandings concerning the points at issue. Usually, however, the Department simply replies in detail to the various demands and indicates its position with respect to the specific matters raised in the resolutions. Postal unions traditionally have been reluctant to identify themselves wholeheartedly with programs of joint consultation at the administrative level. Their impressive lobbying resources combined with a generally unrewarding experience with an employee representation scheme in the twenties and early thirties appear principally responsible for this attitude. The once celebrated and now defunct Service Relations Councils which were established during Postmaster General Hays's administration in 1921 and which functioned until 1934 originally represented a somewhat attenuated version of the Whitley Council experiment in Great Britain.8 Responsibility for its indifferent achievement and ultimate abandonment may probably be laid both to the directing officials and to the participating unions. The affiliated unions which contained a preponderant number of the organized employees apparently believed, with some justification, that the plan was motivated by the thought or hope that its successful operation would • Ibid. 7 Union Postal Clerk, August 1940; April 1946. * See Sterling Spero, "Employer and Employee in the Public Service."

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induce employees to regard their affiliation with the outside labor movement as no longer necessary.9 On the other hand there is some ground for suspicion that the unions were determined from the outset to confine the activities of the proposed councils to a narrow concern with "welfare" problems and to avoid their utilization as a medium for the furtherance of trade union objectives or Departmental efficiency. The staff reluctance to view the scheme with marked enthusiasm may again be attributed to the conventional policy of AFL bread and butter unionism which has generally drawn a sharp line between managerial problems of productive efficiency and union concern with working conditions. An avoidance of any recognized responsibility for the resolution of issues deemed the exclusive prerogative of management thus became a matter of trade union principle. Finally the Departmental insistence upon according equal staff recognition to associations which included supervisory as well as lower-level personnel and its decision to confer equal representation upon all national associations regardless of their numerical strength lent some weight to the union suspicion that the project was, in part at least, designed to discourage the growth of effective unionism in the Postal Service. The program of group consultation which has been developed in the Department of Labor stipulates that joint conferences and other forms of cooperation between employees or their representatives and the administrative staffs of the . . . Department shall be encouraged in order to improve the efficiency, working conditions and well-being of employees. It is recognized that . . . associations of employees can facilitate such cooperation.10 The fact that official consultation with rank and file representatives is to be "encouraged" bespeaks a point of view radically distinct from that which marked personnel arrangements in the Navy Department. Moreover, the officially expressed opinion that joint conferences may contribute creatively to the improvement of departmental efficiency is equally noteworthy when contrasted with the implication that * Spero, "Whitleyism and Collective Bargaining," Public Administration Review (Spring 1944). 10 U.S. Department of Labor, Personnel Instruction No. 6, October 17, 1946, p. 1. For a similar provision in the employee relation program of the Veterans Administration see "Personnel Policies of the Veterans Administration," July 1, 1946, Pamphlet 5-3, Section II. Almost identical provisions are contained in the employee relations policy of the Federal Security Agency, Personnel Bulletin No. 4.

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organizational activity is essentially a manifestation of an abnormal personnel situation. Finally, the announcement that no major changes in personnel policy, which would affect the welfare of employees, will be instituted without adequate advance notice and opportunity for comment having been given to unions or other employee organizations11 indicates a collaborative approach to the problem of group relations in public employment. The vital psychological and procedural foundation is here laid for the development of group relationships to the limit of official discretion. The widely publicized Personnel Relations Policy of the Department of Agriculture provides another instance in which employees have been permitted a limited degree of participation in the resolution of certain personnel problems. It is not so much the substance of the formal statement as the method by which it was originally drafted, revised, and administered which has given it a unique and noteworthy quality. Employees were invited to submit comments and suggestions from the outset and each proposed change was subjected to careful examination at a series of conferences conducted by the Director of Personnel with administrators, supervisors, non-supervisory employees and representatives of associations of employees.12 Hence the written statement of personnel policy finally adopted represented, to a degree uncommon in public employment, a "product of consultation [and] patient consideration of all points of view." 13 The provisions of the written instrument itself recognize the propriety of corporate staff activity at various points in the administration of personnel policy. Employees are granted the right (a) to join or refrain from joining any organization of public workers; ( b ) to consult with supervisory officials, individually or through their union representatives; (c) to designate representatives in appeals cases; (d) to select representatives to three member appeal boards which are convened to hear complaints if a satisfactory adjustment of grievances cannot be obtained at lower supervisory levels.14 Although these arIbid. Memo 753, April 4, 1940, p. 1. 13 Ibid. 14 Ibid., Secs. III-V. Basically similar grievance procedures have been by the following agencies: The Department of Labor, see Employee Policy, Personnel Instruction No. 6, October 17, 1946; The Federal Agency, Personnel Bulletin No. 5, Employee Complaints and Grievances; Administration Manual M-5-4, September 30, 1946. 11

13

adopted Relations Security Veterans

238

labor problem in public service

rangements do not deviate from the conventional pattern of publicemployee relations programs, personnel practices within the Department of Agriculture have sometimes proceeded beyond the limits of formally enunciated policies and experimented in tentative fashion with techniques of staff consultation. Personnel and operating officials in the Department have generally shown an unusual willingness in cooperating with employee unions in the resolution of issues of common concern.16 An inter-union council of three competing unions was established in an attempt to evolve a common program for joint negotiation with the Department. Associational rivalry with respect to objectives or tactics has not been exploited by administrative officials as a convenient situation to preclude effective employee consultation. Grievance adjustment arrangements in various agencies have recently enabled employees to obtain a more satisfactory review of administrative decisions concerning classification allocations, efficiency ratings, and dismissals than has hitherto been possible. In response to a demand for employee representation in these matters, several personnel relations policies provide for the creation of ad hoc boards of appeal. These committees are usually composed of official, employee, and occasionally impartial outside members. They are authorized to conduct fact-finding investigations of alleged grievances and to submit reports and recommendations to administrative officials charged with the responsibility of rendering final decisions. In practice the recommendations of these committees are almost invariably accepted. These boards generally function in informal fashion and legal rules of evidence and procedure are deliberately avoided. In its report for the year ending June 30, 1933, the Civil Service Commission recommended that public employees be accorded the right to an independent review of administrative actions which anticipated removal or severe disciplinary action. The Commission called attention to the rather novel experiment with a representative conciliation committee of six members established to hear complaints of its own employees. Three of the members were supervisory officials and three were selected from rank and file employees by employee organizations.16 An employee may appeal a decision of this committee to the Commission's Board of Appeals and Review and thence, if he desires, to the Commission itself. 15 Roy Hendrickson, "The Personnel Program of the U.S. Department of Agriculture," Civil Service Assembly Pamphlet No. IS, 1939. 16 Testimony of Civil Service Commissioner Harry Mitchell, Hearings before Special Committee of the Senate Civil Service Committee to Investigate the Administration and Operation of the Civil Service Laws of the United States, 76 Cong., 1st Sess., March 27, 1939, p. 7.

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The fact that the employee representatives of the conciliation committee are designated in this manner constitutes a relatively rare example of the official assignment of formal functions to employee associations. Statements of personnel policy issued in recent years by several government agencies have occasionally recognized a need for a type of official-staff cooperation which transcends the limited scope of employee participation in grievance procedures. Exploring this emergent phase of public personnel practice, Ordway Tead has remarked: Experience is conclusive that managers animated by good will have to take the initiative and go out and seek collective employee support for the discussion and ultimate agreement about . . . crucial issues.17 The pressure upon the bureaucracy during World War II led to the introduction of several experiments designed to promote cooperative relationships with employee organizations in various agencies of the Federal Government. The widespread creation of labor-management committees in private industry perhaps provided the principal spur to their introduction in the field of public employment. The joint consultative committees which were formed within the Civil Service Commission and the Railroad Retirement Board furnish typical examples of the general pattern of these personnel experiments. The former agency authorized the establishment of a Labor-Management Advisory Committee of twelve members. 18 Six of the members were representatives of the N F F E , the AFGE, and the UFWA. The remaining members were designated by the Commission. The primary function of the committee was to assist the Commission in its efforts to resolve the unprecedented manpower problems which confronted the Government's chronically understaffed and inadequately financed personnel agency during the war. The committee operated as an advisory body which served as a medium for the expression of employee suggestions or criticisms of proposed personnel programs. 19 It was not concerned with such matters as the redress of grievances or the improvement of working conditions but specifically with an effort to improve the quality of personnel administration. Its creation accordingly reflected a conviction that employee associations could make contributions of positive value in this field. Although experience with " New Adventures in Democracy, New York, Whittlesey House, 1939, p. 110. Civil Service Commission Minute of November 20, 1942. 19 60th Report, Civil Service Commission, 1943, p. 51.

18

240

labor problem in public service

these labor-management committees has been quite limited, their introduction remains significant as an indication of one area in which even the presently circumscribed bounds of administrative discretion in personnel matters permit officials to undertake experiments in staff consultation. That projects of this sort may be ventured under normal as well as crisis circumstances and become part of a continuing process of personnel administration is exemplified in the labor-management committee established by the Railroad Retirement Board in 1944.20 Although the four members of the committee are officially appointed by the Board, two of them were at one time designated by AFGE Lodge 375 and UFWA Local 13. The committee's functions are twofold. First, it serves as a channel whereby employee suggestions and recommendations may be jointly considered by representatives of management and of the staff prior to their submission to the Board for formal action. Secondly, the committee is specifically afforded an opportunity to "participate in the formulation and review" of a wide range of personnel policies and practices including efficiency-rating procedure, provisions for in-service training, promotions, reductions in force, and the announcement of vacancies. These experiments in employee relations do not provide machinery for the comprehensive collective consideration of personnel problems in public employment. They are confined in the main to specialized aspects of public administration such as grievance adjustment or labor-management cooperation. Moreover their scope is necessarily restricted in view of the limited authority of administrative officials to discuss vital conditions of employment with employee representatives in any responsible fashion. Finally, these arrangements lack those elements of regularity and explicit recognition in organic legislation or executive order which are indispensable to any permanent structure of staff consultation. A more comprehensive approach to labor problems in public employment has been made in a number of other agencies. The labor relations programs in the Government Printing Office and the Tennessee Valley Authority furnish typical illustrations of arrangements which have operated successfully for a number of years. A survey has recently been made of existing agreements between public employers at all levels of jurisdiction and employee organizations. As of September 1946, the Bureau of Labor Statistics of the Department of Labor reported that it had recorded twenty-one written agreements negotiated " See Employees

Handbook,

1945, p. 19.

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by the Federal Government, three which had been signed by various State governments, sixty-two by municipalities and seventeen by counties, townships, and villages in addition to numerous and diverse types of employee relations plans, ordinances, or other resolutions of law-making bodies which were unilateral in form but which in fact represented the product of prior bilateral negotiations with employee associations.21 Moreover this compilation did not pretend to embody a record of all written agreements in public employment but merely of those which had them come to the attention of the Bureau of Labor Statistics. The existence of an impressive and steadily increasing number of written agreements may surprise and confound many persons who have long regarded collective bargaining and government employment as inherently incompatible. Their content should therefore be examined closely in order to determine the basis for their legality and to provide the data necessary for an appraisal of their propriety and wisdom as a more general instrument of public policy. Although these understandings vary considerably in form and content, they bear many resemblances to labor contracts in private industry. In many instances they are not only bilateral in the sense of having been formally signed by official authorities and union representatives but they are in fact the product of considerable joint discussion and negotiation. Their provisions conform to the familiar content of union agreements and cover such matters as recognition, grievance machinery, hours of work, promotion procedures, and wage schedules. With a realistic appreciation of prevalent official misgivings concerning the validity of signed bilateral agreements, conditions of employment are sometimes determined through procedures of joint consultation but are formally promulgated unilaterally. These statements may or may not refer explicitly to the union which participated in their formulation. On the other hand they may sometimes designate a particular association as the exclusive bargaining agency for its members or for all employees within a given jurisdiction.22 The Officers' Report to the Fourth Biennial Convention of the State, County and Municipal Workers of America held in 1946 declared that 114 local unions had reached some form of "regular, mutually understood collective bargaining relationship with the units of government Letter from the Industrial Relations Branch, B.L.S. July 15, 1947. Most of the agreements at the state and local levels of government discussed here were negotiated by the SCMWA (CIO). This selective analysis is due simply to the fact that these agreements were more readily available to the writer than the equally significant and voluminous number of agreements which have been concluded by the rival AFSCME ( A F L ) . 21

22

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in which they are organized." 23 Of this total thirty-two were bilateral agreements; fourteen were unilaterally issued but were alleged to have been prepared in collaboration with union representatives; twenty-four referred principally to the right of employees to associate or to the establishment of grievance procedures; the remainder were essentially general statements of personnel policy in the formulation of which local unions had participated in varying degrees. The understanding reached between SCMWA Local 93 and the City of Fairmont, West Virginia signed on January 1,1941 furnished a clear example of a bilateral union agreement in public employment. It provided for the recognition of the union as the "sole collective bargaining agency for all employees of the City of Fairmont" and required that "as a condition of employment, all employees shall be members of the . . . Union" with the exception of certain designated classes such as elective officers, police, firemen, department heads, and temporary employees.24 Other clauses covered questions of pay, hours of work, grievance adjustment, vacations and sick leave. The official deduction of union dues was permitted upon the authorization of individual employees. The agreement was specifically made subject to the existing "provisions and limitations prescribed by law" for the municipality. Other agreements in public employment deviate in certain respects from the provisions contained in conventional union contracts. Some of them specifically ban the union shop or exclude the joint consideration of wage questions on the ground that these matters must be determined exclusively by budgetary officials and appropriating bodies. Thus an agreement between Local 14 of the SCMWA and the government of Jeannette, Pennsylvania recognized the union as the sole collectivebargaining agency for its members only.25 Another which was negotiated between the McDowell County Board of Education, Welch, West Virginia and Local 44 of the same union provided that such wages shall be paid as are "provided in the budget." A memorandum issued on August 16,1938 by the city of Newcastle, Indiana covering the subject of municipal labor relations contained several interesting and somewhat unique provisions relating to union recognition and wage determination. The statement declared that employees who at the time of its promulgation were members of SCMWA Local 185 and who in the future elected to join the organization "shall Proceedings, p. 21. Sections II-XV. See also the agreement of June 2, 1941 between the Board of Education, City of Hamtramck, Michigan, and SCMWA Local 257. 25 Agreement of February 23, 1938. w

24

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remain members during their term of employment," thus introducing a maintenance of membership arrangement in public employment. With respect to wage rates the memorandum declared that the laws of Indiana permitted only the City Council to fix the wages of municipal employees. The Board of Public Works was authorized, however, to submit proposed rates to the Council for its consideration. The Board's recommendations represented in fact the product of collective negotiation with organized employees. The decision of the City Council was issued in the form of a memorandum which incorporated the wage proposals which had been submitted to it in accordance with this procedure. The Council, of course, might have declined to concur in the Board's recommendations. But it is reasonable to assume that it would not have permitted the establishment of these consultative arrangements if it did not intend to lend considerable weight to the proposals. These various procedures which are intermediate between bilateral and unilateral wage determination reveal that experimentation in the field of public labor relations is not in fact precluded by the statutory prescription of the terms of employment. The prevalent exclusion of the union shop in agreements between public authorities and employee organizations suggests a consideration of the extent to which associations have been recognized as bargaining agents for the employees within particular administrative units. Public authorities may be doubtful of their legal competence or disinclined as a matter of policy to accord the right of majority representation. In such cases the recent memorandum jointly issued by United Public Workers of America, Local 625 and the City Manager of Yonkers, New York dated October 14, 1946 contains an interesting and practicable compromise which may conceivably emerge as a workable pattern in other jurisdictions. The agreement permits the union to act as a bargaining agent only for employees who are members of the local and reserves to others the right to bargain individually or collectively on their own behalf. However it takes explicit cognizance of the fact that Local No. 625 holds a predominant position in representing the interests of the employees of this Department for the purpose of discussion concerning wages, hours and working conditions and in the handling of grievances and will be given preference in respect to discussion with representatives of employees on these subjects. 26 28

Article I.

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This arrangement constitutes a concrete instance of the type of plural union recognition and negotiation unsuccessfully recommended by Mr. William Davis to the Board of Transportation of New York City.27 Its rejection by the Board has left unsolved a critical problem of union recognition which, it seems reasonable to assert, will continue to provoke disruptive labor conflict even in vital public services as long as the policy of equal recognition of all associations regardless of gross differences in membership is adhered to without modification. The increasing prevalence of collective bargaining among state and local governments may also be noted in the agreements negotiated in recent years by the American Federation of State, County and Municipal Employees affiliated with the AFL. At its decennial convention held in 1946 the union announced that it had concluded forty bilateral agreements with public authorities and that it had participated in the formation of fifty ordinances, resolutions, or similar statements concerning labor relations and employment conditions. The agreement of February 3, 1941 between Local 291 and the city of Alexandria, Louisiana furnishes an excellent example of comprehensive collective bargaining in municipal employment. Individual agreements were negotiated covering engineers, street, park and sewer, health and sanitation, light, water, and gas employees. The union was recognized as the sole bargaining agent; wages were declared a proper subject for negotiation and specific rates and working conditions were incorporated in the agreement; an impartial arbitration board was created for the consideration of employee grievances and it was empowered to order reinstatement with full pay in the event of an unjust discharge; other provisions related to seniority, hours, vacations, and sick leave. Apprehension concerning potential conflict between statutory provisions governing employment conditions and collective bargaining was relieved with the simple stipulation that any provision of the agreement conflicting with "existing law governing the relations between the parties" shall be null and void. The essential provisions of these agreements may now be summarized briefly. First, they explicitly accord varying types of recognition to employee organizations ranging from the admission of a closed shop to the requirement of an open one and from the acknowledgment of their right to represent all employees to the restriction of their right to negotiate only on behalf of their members. Secondly, they set forth in concrete fashion the vital aspects of employment such as wages, hours, seniority, vacations, and physical working conditions. In so far " New York Herald Tribune, March 27, 1947.

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as wages are concerned the provisions of these agreements vary from the detailed prescription of job classifications and attendant pay schedules to those which confine the union's role to advisory functions or declare unequivocally that compensation matters are beyond the area of permissible negotiation. Thirdly, most of the agreements provide for the establishment of grievance machinery in which provision is made for employee representation and a number of them authorize impartial arbitration as a final means of resolving disputes. Fourthly, they specify procedures whereby conditions of employment may be periodically discussed between officials and employee representatives. If they do not possess all the attributes or enforceability of legal contracts, they are nevertheless mutually arrived at understandings which define the substance of the public employment bargain and at least provide the foundation upon which a labor relations law for government employees may be developed in the future. Among agencies of the Federal Government, collective-bargaining procedures have been developed in a few instances with generally successful results. These experiments have been confined in the main to public corporations and independent establishments which employ industrial as distinguished from white-collar employees. A unique form of collective bargaining has long been in effect in the Government Printing Office. Under the provisions of the Kiess Act of 1924, the Public Printer was authorized to employ persons "at such rates of wages . . . as he may deem for the interest of the Government and just to the persons employed." 2 8 The discretion of the Printer was limited by a statutory requirement which prohibited more than one pay revision in a single year and prescribed a minimum hourly rate of ninety cents an hour. Subject to these restrictions the law declared that wages were to be determined by a conference between the Public Printer and a committee selected by the trades affected and (that) the rates . . . so agreed upon shall become effective upon approval by the Congressional Joint Committee on Printing.29 An unusual system of collective negotiation has been established to implement the administration of this legislative policy.30 Negotiating committees inform the Public Printer that employees wish to discuss the adjustment of existing wage rates. Bulletins are then circulated P.L. 276, 68 Cong., June 7, 1924; 44 U.S.C. 40. Ibid. 30 Information was furnished in a letter to the writer by Mr. A. E. Giegengack, Public Printer, May 20, 1946. 28

29

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labor problem in public service

throughout the Printing Office advising all employees of this request for wage negotiations and the journeymen of the several crafts are notified to elect new negotiating committees for this purpose. The names of the proposed candidates are posted for a period of two weeks during which the staff may express objections to individual nominees. The negotiating committees selected in this manner submit oral or written requests for wage adjustments to which the Public Printer replies in the form of written counter offers. Meetings are subsequently held in an attempt to agree upon a revised schedule of rates. Adjustments are generally based upon prevailing wages in private printing establishments in the District of Columbia and in large industrial centers. Mutually acceptable revisions are sent to the Joint Congressional Committee on Printing for final approval. If the negotiations prove unsuccessful, the points of difference are submitted to this Committee for their resolution. Following approval by the Joint Committee, the new rates are promulgated in an administrative order issued by the Public Printer. Although wages are thus unilaterally fixed in a formal sense, the terms of the order itself explicitly acknowledges the fact that they were determined through joint conferences. Thus Administrative Order 36 of October 15, 1945 declared: As a result of negotiations conducted under authority (45) of the Kiess Act . . . the following . . . pay rates agreed upon by the Public Printer and the negotiating committees representing the employees, were recommended to and approved by the Joint Committee on Printing.31 The extent to which genuinely bilateral negotiations will be developed under a scheme of this kind will depend principally upon the attitude with which public officials view their prerogatives. Their discretion under such legislation is sufficiently broad to permit an extensive amount of responsible joint discussion covering vital conditions of public employment. On the other hand officials may exercise their authority in such a manner as to give only the most perfunctory consideration to proposals submitted by employees. Union spokesmen have by no means lent their unreserved endorsement to the arrangements in the Government Printing Office. One of them has disparagingly referred to the "thin coating of collective bargaining" which they provide.32 The fact that the scheme has not explicitly recognized emThe italics are mine. " Letter to the writer from an AFL official, April 24, 1946.

31

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ployees in their corporate aspect as members of trade unions to which the great majority belong but has viewed them only as individuals is doubtless responsible in part, at least, for the qualified approval which it has received from staff organizations. It would not involve a sharp break with the realities of existing practices, however, to permit employee unions a more explicit role in the selection and functioning of the negotiating committees. If this step were taken, the form and substance of collective bargaining would largely be achieved in the Government Printing Office. Agreements have been negotiated for many years between the General Manager of the Alaska Railroad, which is under the control of the Department of the Interior, and representatives of the Railroad Brotherhoods of Engineers, Firemen, Trainmen and Conductors. It is significant to observe that these agreements have not been negotiated in pursuance of any specific statutory authorization to engage in collective bargaining. The organic act of March 12, 1914 3 3 simply empowered the President to fix the pay of all employees of the railroad. An executive order of June 8, 1923 3 4 delegated this authority to the Secretary of the Interior who in turn proceeded to issue basic regulations governing the organization and functions of the Office of the General Manager of the railroad. Wages and other working conditions were subsequently determined through bilateral negotiations issuing in agreements which conformed closely to standard labor contracts in the railroad industry. Thus the agreement of October 1, 1943 which was signed by the general manager of the railroad and representatives of the Brotherhoods covers in detail such matters as rates of pay, basic work day guarantees, seniority, promotions, hiring, grievances, and other related procedures.35 A more advanced form of collective bargaining has been developed within the Inland Waterways Corporation which operates barge lines for the Federal Government. Although this agency possesses a considerable degree of operating autonomy it is nevertheless an instrumentality of the United States Government. This fact was made evident in the discharge of several of its employees who participated in a strike in defiance of recently enacted riders to appropriation bills which make mandatory the dismissal of any employee who engages in a strike against the United States Government.36 In so far as collective bargaine e

Stat. 305; 48 U.S.C. 301.

Executive Order 3861, June 8, 1923. " Copy of agreement furnished the writer by the Department of the Interior. M Public Law 101, 80 Cong., 1st Sess., 305; 29 U.S.C. 188 (Supplement, July 1947). M

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ing is concerned, the basic act of June 3, 1924 simply authorizes the head of the corporation to fix the pay of its employees.37 In practice, working conditions have been determined by an extensive system of collective consultation. Bilateral agreements have been negotiated with the National Maritime Union, the National Organization of Masters, Mates and Pilots, the International Longshoremen's and Warehousemen's Union, and several other employee organizations. The extent to which collective bargaining has proceeded in this agency may be gathered from a glance at the provisions of several of these agreements.38 One of them stipulates that the company agrees to give preference in employment . . . to members of the Organization in good standing; all replacements and new personnel shall be secured from lists maintained by the Organization . . . In the event that there are no members . . . available, the Company may hire non-union men who shall be replaced by the Organization's members at the first opportunity.39 Almost identical provisions are contained in other agreements negotiated by the Corporation. That of November 2, 1944 recognized the Longshoremen's Union "as the sole and exclusive collective bargaining agency for all employees" at designated terminals "as long as the Union continues to represent a majority of the employees." 4 0 Until the recent enactment of legislation which prohibited strikes in the Federal Service, these agreements contained the conventional renunciation of strike action during the period of a contract but they did not repudiate the right to strike in the event of a failure to agree upon the terms of a new contract. In fact, two of the agreements respectively implied and expressly asserted the right to such action. One of June 25, 1945 negotiated with the National Marine Engineers' Beneficial Association stipulated that engineers . . . shall not be required to work behind a picket line recognized as legitimate by the Association,41 [and a contract with the Longshoremen's Union prohibited discrimination against any member because of his] participation in any manner in the formation of the agreement between the Company and the em43 Stat. 362. " Copies of agreements were furnished the writer by the Inland Waterways Corporation. 30 Rule 2 ( a ) of agreement of June 1, 1945 between the IWC and the National Organization of Masters, Mates and Pilots. " A r t . I, Sec. 1. 11 Rule 15 ( b ) of the agreement. 1,7

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ployees. This is to include the organizing, striking, picketing, or negotiating with the employers.42 The promotion of staff consultation as a vital and integral part of public personnel management has reached a unique degree of development in the employee relations policy of the Tennessee Valley Authority. The organic legislation creating the agency and defining the scope and limits of its authority does not contain any specific references governing administrative arrangements which would permit joint conferences with employee representatives concerning wages and working conditions. The act of May 18, 1933 43 provides simply that employees shall be paid according to prevailing private rates for comparable work. The methods whereby such rates were to be ascertained were not legislatively prescribed. Management was, therefore, endowed with an extensive degree of discretionary authority in the determination of wage levels and in the development of the employee relationship policy. The TVA personnel program was based upon certain presuppositions concerning the nature of the labor problem in a large public enterprise and the role which may properly be assigned to organized employees in its resolution. These principles have been set forth in a number of statements and addresses by the TVA's managerial personnel. 44 They may be conveniently summarized as follows. It was assumed that the management of a large number of employees by a relatively small supervisory force cannot be conducted effectively upon a basis of individual relationships. This consideration alone was deemed to dictate the need for some system of collective staff consultation and representation. Secondly, it was thought that the rank and file employees were capable of making significant contributions to the welfare of the enterprise. Hence it was necessary to provide arrangements whereby these contributions might be forthcoming with a minimum of obstruction. We took collective bargaining . . . for granted, [declared Mr. Lilienthal], but we wanted more . . . a new thing . . . we de12 Agreement of July 30, 1944, Art. VI. " 4 8 Stat. 59. 44 See David E. Lilienthal and Robert H. Maguire, "The Conduct of Business Enterprise by the Federal Government" 54 Harvard Law Review 545, February 1941 and also addresses by TVA General Manager Gordon Clapp before the American Economic Association, January 4, 1943, Washington, D.C., and by Mr. A. S. Jandrey, Assistant General Manager, before the Minnesota Chapter of the American Society for Public Administration, Minneapolis, May 10, 1944.

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labor problem in public service

sired Labor to sit in with Management and contribute its best brains to make a success of the big job. 45 Organizations of employees were selected as the best means of eliciting staff cooperation. Theoretically it would have been possible to designate other arrangements in the furtherance of these aims. Committees appointed by employees without regard to their membership in labor unions might have provided practicable instruments of staff consultation. But a further assumption concerning the proper pattern of employee relations precluded this approach. The TVA's personnel program was based upon an acceptance of the propriety of free and autonomous labor organizations among the work force. Scrupulous care was thus taken to avoid administrative control or interference in the formation or functioning of employee associations. Questions relatting to such vital issues as affiliation or the designation of representatives to confer with management were left to the discretion of the employees. Finally the entire scheme of staff representation was based upon an explicit recognition of fundamental distinctions between government and private employment. The introduction to the basic Employee Relationship Policy thus declared that the TVA was an agency of the sovereign government of the United States . . . The Employee Relationship Policy . . . must conform to national policy and the Federal Government must be in final control. In this respect TVA differs from a private employer.46 The original employee relations policy approved by the TVA Board of Directors in 1935 was the product of "long study and discussion in which both employees and management participated." 47 Approximately thirty drafts were prepared and extensively discussed by management, employees, and outside experts for eighteen months before the final statement was officially adopted. The Employee Relationship Policy was initially issued in the form of a unilateral document. It was not signed by the various unions which had admittedly participated in its formulation. In 1938 the Tennessee Valley Authority Trade and Labor Council, which represented the principal unions organized in the TVA region, requested promulgation of the Policy in the form of a written bilateral agreement. The management was advised by counsel that it was legally competent to conclude contracts with labor unions 46 Cited by Judson King in his pamphlet, The TVA Labor Relations Policy, issued by the National Popular Government League, Washington, 1940, p. 15. 48 Employee Relationship Policy, 1945 ed., p. 1. "Ibid.

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provided that they did not impair its statutory responsibility for the administration of the enterprise nor conflict with the provisions of existing legislation. Various plans were jointly discussed throughout 1939 and in the early part of 1940. These negotiations culminated in the signing of a General Agreement between the Authority and the Trades and Labor Council on August 6, 1940. Parties to the contract were representatives of fifteen affiliated unions and the general manager and other officials of the TVA. 4 8 In content as well as in form, the agreement constitutes an example of genuine collective bargaining in public employment. The principle of exclusive majority representation is firmly recognized; procedures are established for the resolution of jurisdictional disputes and employee grievances; annual conferences are designated as the means to determine wages, work standards, and other conditions of employment, and provision is made for labor-management cooperative committees to consider such matters as training, job efficiency, safety, and apprenticeship programs. The recognition of majority representation is extremely rare in public employment but its operation has been unqualifiedly successful within the TVA. The Employee Relationship Policy stipulated that the "majority of the employees . . . of any . . . appropriate unit, shall have the right to determine the organization . . . or persons who shall represent the employees as a whole." 4 9 Jurisdictional disputes which may arise are resolved through elections conducted under the auspices of the Personnel Department. Should its efforts prove unsuccessful, either party is authorized to invoke the services of the National Labor Relations Board for adjudication of the controversy. The adoption of majority representation does not, of course, imply an acceptance of the closed or union shop. In fact these forms of union organization are categorically prohibited. The right of employees to join or to refrain from joining any union is asserted unequivocally and discrimination because of membership or nonmembership in employee associations is specifically enjoined. 50 The vital aspects of the collective-bargaining procedures are found in the methods whereby the prevailing rates of pay for the various classes of trades and labor employees are collectively determined. 51 48 General Agreement between the TVA and the Tennessee Valley Trades and Labor Council, August 6, 1940. 4e E.R.P., Para. 6; see also Interdepartmental Instruction, Personnel Department, "Union Relations-Recognition," June 20, 1945. 50 E.R.P., Paras., 4, 5. 51 See E.R.P., Paras. 19, 21; General Agreement, Arts. IX, XIII; TVA Administrative Code, "Compensation of Trades and Labor Employees," August 2, 1946.

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Prior to the opening of formal wage negotiations, employees and officials jointly gather the necessary data upon which wage revisions may be based. This collaborative procedure may be distinguished sharply from the functioning of Army and Navy wage boards which perform essentially similar tasks. Instead of compiling statistics and other information unilaterally and permitting employees to file petitions or supporting material which are given varying degrees of consideration in accordance with official predispositions, the staff is here accorded a definite consultative status and assigned specific responsibilities. The Trades and Labor Council is authorized to request a wage conference to discuss rate revisions once a year. Such requests together with supporting data must be received within a stipulated period. They are subsequently referred to a Joint Committee on Wage Data which examines them in preliminary fashion and certifies requests for a formal Wage Conference if such action is deemed necessary. Various joint committees may be appointed to study and report upon particular points at issue. The Personnel Director of the TVA and the President of the Trades and Labor Council serve as co-chairmen of these wage conferences. Negotiations take place at this stage and the data, which had been previously assembled, provides an objective basis for suggested revisions in rates. Such adjustments as are agreed upon are submitted to the general manager for approval by the Board of Directors. These modifications are appended to the General Agreement in the form of supplementary schedules. In the event of disagreement, the Secretary of Labor is statutorily vested with the responsibility of making final decisions. Collective bargaining at TVA has not only permitted employees in trades and labor classifications to participate in the determination of their conditions of employment but it has produced several interesting and successful experiments in the field of labor-management cooperation which go beyond the scope of conventional, protective trade union functions. In this respect the aspirations expressed in 1935 by those who formulated the original employee relations policy have been realized. It was hoped that the introduction of consultative arrangements would lead eventually to the creation of joint conferences which would "devote themselves to furthering the objectives for which TVA was created." Specifically suggested for consideration and action were such matters as "improvements in the quality of workmanship and services," "the promotion of education and training," "the safeguarding of health," "the prevention of hazards," and the "elimination of waste and the conservation of materials and energy." 5 2 62

E.R.P., Concluding Statement, p. 10.

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The General Agreement went beyond the simple statement of these broad objectives and suggested concrete means whereby official-staff cooperation might be developed. It proposed that a series of joint committees be established on a decentralized basis at convenient points throughout the TVA region and that officers of the Authority and of the Trade and Labor Council meet "at least twice a year . . . in a joint Valley wide . . . conference for the purpose of reviewing the conclusions reached and actions taken by the local . . . committees." 53 A system of labor-management cooperation was subsequently devised and put into operation. Various committees performed important and valuable functions in assisting the output drives of the War Production Board, developing and administering schemes whereby staff suggestions to improve job efficiency could be received and acted upon expeditiously, making employees aware of vital information relating to war production through posters and slogan contests, identifying factors responsible for such hindrances to efficiency as absenteeism, turnover, and waste and proposing plans for their removal or mitigation.54 These experiments in labor-management cooperation were undertaken in twelve different areas of the TVA region. They appear generally to have been successful, and significant accomplishments are already matters of public record. Although the war emergency provided the principal incentive for their introduction, their enthusiastic acceptance by management and employees augurs well for their permanent retention. The most impressive achievements of the TVA in the field of collective bargaining have been developed among trades and labor groups of employees. Personnel policies governing official relations with white-collar workers have also been marked, however, by equally unique arrangements which may possibly prove of even greater significance in the evolution of employee relations policies in the public service. Collective bargaining, after all, is a generally established practice among workers in the craft unions represented on the TVA Trades and Labor Council. Its incorporation in personnel policy in some form or other under such circumstances is perhaps inevitable. The introduction of staff consultation demands simply adequate administrative authority and a conscientious desire to devise appropriate procedures for this purpose. Endowed with sufficient legal and administrative competence, TVA has pioneered in this task. But organ" General Agreement, Art. IX. 54 See various issues of the monthly bulletin Teamwork published under the auspices of the labor-management committee and also the Plan of the Central Joint Cooperative Committee for the Establishment . . . of Local Committees, January 15, 1943.

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labor problem in public service

ized consultation with white-collar employees presents an essentially different problem. Collective bargaining in this area is relatively rare in private or public employment and its achievement in a government enterprise requires the assumption of administrative initiative in the formulation of an employee relations program without the benefit of a body of existing experience or the sanction of widespread public acceptance. TVA employs thousands of white-collar workers engaged in a variety of functions ranging from clerical through technical, research, and professional categories. Early attempts to organize these diverse classes of employees into all-inclusive industrial type unions were not particularly effective. A more successful organizational approach was subsequently based upon an acceptance of certain broad functional lines of staff demarcation. The process of unionization was conducted in accordance with the principles contained in the Employee Relationship Policy. The principle of majority representation was recognized from the outset. Appropriate bargaining units were designated wherever staff sentiment was predominantly in favor of collective action. Multiple unionism with its confusion and lack of responsibility was thus largely avoided. In lieu of a number of competing associations representing similar groups of employees within each administrative unit, organizations emerged to exercise broad jurisdiction on functional lines. If they succeeded in attracting to their membership a majority of the employees in specified categories of employment, they secured recognition as exclusive representative bodies. Office, professional, engineering, chemical, hotel and restaurant, building, service, and safety employees were organized in this manner. Five of these associations are affiliated with the outside labor movement and two of them, representing professional chemists and engineers, have remained independent. The several organizations are represented on a Salary Policy Employee Panel. The functions of this Panel parallel those of the Trades and Labor Council of the industrial unions. Joint conferences are held on matters of common concern to all salaried employees but the member organizations retain the right to consult with management separately. The organization of employee associational activity in this manner neither impedes the emergence of an effective labor movement nor militates against the development of a professional spirit and pride in craft which are so vital to the maintenance of bureaucratic efficiency and morale. It may even tend to overcome the reluctance which civil servants sometimes feel in joining organizations which indiscriminately represent all employees without

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regard to their duties, skill, education, environmental background, social, or economic interests. The more significant aspects and implications of the TVA labor relations program may be recapitulated at this point. First, the General Agreement, which has remained in effect for a number of years, provides impressive evidence of the feasibility of collective bargaining in public employment. The Interdepartmental Instruction issued by the Personnel Department of the Authority to supervisory officials should remove any doubt which might be entertained as to the existence of genuine bilateral agreements between management and labor at TVA. The policies and procedures negotiated between the Authority and the duly authorized employee representatives represent contractual obligations which are binding upon the Authority and its representatives and the contracting unions.55 It is true that this enterprise possesses extraordinary autonomous powers but it is nevertheless a direct instrumentality of the United States Government and the precedents which it has established may, conceivably at least, be extended to other administrative areas by appropriate legislative or executive action. Secondly, the establishment of collective bargaining at the TVA has successfully challenged the conception of the public service as an integral and indivisible hierarchy. The employee-relations program has been based upon a frank recognition of the fact that two categories of personnel may be found in any working organization and that vital distinctions in interest exist between management and the labor force. TVA personnel policy has sought to recognize the validity of each of these interests. Thirdly, the program has sought to cultivate within the supervisory staff a sympathetic regard for employee needs. Consider the instructions furnished to managerial personnel in which it is requested "to select for promotion to supervisory positions only officials who are able and willing to cooperate with the Employee Relationship Policy." 56 To prescribe as a requisite for advancement to responsible positions an official outlook sympathetic to the acceptance and effective administration of an extensive system of collective bargaining, which includes not only wage and hour negotiations but a substantial measure of K Interdepartmental Instruction—"Union ties," December 27, 1943. a Instruction of December 27, 1943.

Relations; Supervisory Responsibili-

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labor problem in public service

labor-management cooperation, is indeed a rarity in public or private employment. Equally noteworthy in an open-shop organization, which is so often viewed by employers, public and private, as a welcome hindrance to the growth of effective unionism, is the extraordinary practice whereby supervisors are advised to inform such employees who may "ask for advice . . . that the Authority looks with favor upon affiliation with unions signatory to the General Agreement as being conducive to . . . efficiency." 57 Finally the introduction of collective bargaining at the TVA has not compromised the discharge by Congress or by administrative officials of their respective responsibilities. In like manner the government has not surrendered that preponderance of authority which it must retain in its relationships with other groups and which must serve as a criterion for the admissibility of any scheme of collective staff consultation in public employment. The legislature has prescribed the standard governing compensation levels. The determination of specific pay rates through joint negotiation or unilateral action is left to the discretion of administrative officials. The final adjustment of conflicts which bilateral conferences are unable to resolve is provided by the unilateral decision of the Secretary of Labor. Such contingent intervention may be regarded as the concrete expression of the government's ultimate authority but it is vital to observe that such external adjudication has not been invoked since the creation of the TVA. The Employee Relationship Policy explicitly recognized the supremacy of the sovereign power of the government. This authority, however, has been held in abeyance to permit the evolution of a substantial measure of bilateral negotiation. From the point of view of administrative responsibility, the employee relations plan reserves adequate powers of control and discipline to directing personnel. The ability of supervisory officials to demand efficient job performance, for example, has not been impaired by the creation of formal adjustment procedures or by granting to employees the right to a hearing in cases of severe disciplinary action. The former personnel manager of the Authority has denied that this latter requirement places the official on trial before his subordinates or that it operates as a deterrent to administrative initiative in imposing disciplinary penalties, including dismissal, wherever such action is warranted.58 In all such cases "the burIbid. Address, Gordon R. Clapp, Director of Personnel, "The Employee Relationship Policy," February 1, 1936, p. 7. 57 m

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employee." 59

den of proof must rest upon the But the fact that "the services of mediators, arbitrators, outside factfinders, although always available . . . have never had to be utilized by TVA labor and management" and that "surprisingly few disputes reach the Director of Personnel," 60 would seem to indicate that the staff has not disrupted the orderly channels of personal management through the presentation of a disproportionate number of petty grievances. It was a cardinal assumption of those who formulated the Employee Relationship Policy that the rank and file employees and their independently selected representatives would not abuse the privileges of collective consultation and staff representation. The successful operation of this unique personnel experiment has vindicated their confidence. The union agreement in effect between the Bonneville Power Administration and the Columbia Power Trades Council provides another instance of full-fledged collective bargaining in the Federal Service. Although its general outlines conform to the pattern established at TVA, several significant differences may be noted. The Bonneville agreement is predicated upon a clear and explicit recognition of the fact that, inasmuch as the Administration is an "agency of the sovereign Government of the United States," the processes and results of collective negotiation must necessarily regard as paramount all "applicable Federal laws, executive orders, regulations and policies." 61 Unlike the TVA, however, which constitutes an autonomous public enterprise, the Bonneville Power Administration under the provisions of the law of August 20, 1937 is placed under the general supervision of the Secretary of the Interior. A second distinction between the two undertakings and one which challenges the oft-reiterated assertion of an inherent incompatibility between collective bargaining and a civil service system may be found in the stipulation that all employees shall be elected "in accordance with the provisions of the Civil Service Act and the regulations of the Civil Service Commission from registers of eligibles supplied by the Civil Service Commission." 62 The agreement covering trades and labor classifications was the product of extensive consultation between management and employee mIbid., p. 7. °° Address, Otto S. Beyer, "Fundamentals of Labor-Management Cooperation," Wilson Dam, Alabama, September 10, 1946, p. 6. 61 Agreement of May 21, 1945 between the Bonneville Power Administration and the Columbia Power Trades Council, Art. I, Sec. 1. 62 Ibid., Art. Ill, Sec. 2.

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representatives. It posited as a fundamental requirement that cooperation between the Administrator and the employees on the basis of mutual understandings between them arrived at through the processes of collective bargaining is indispensable to the accomplishment of those public purposes63 for which the project was created. Union membership was recognized as "conducive to the furtherance of the purposes of this agreement and in consequence to the accomplishment of the purposes of the Administration." 6 4 Exclusive representation was accorded such employee organizations as included a majority of the employees in particular crafts. 65 The agreement explicitly provided that "rates of pay . . . shall be determined through processes of collective bargaining between the Council and the Administrator."66 In its preliminary stages, the wage procedure conforms closely to the arrangements developed at the TVA. In the event of officialstaff disagreement, however, a distinction of considerable importance may be noted. The latter agency provides for the resolution of such conflicts by the Secretary of Labor. Impartial arbitration has been designated at Bonneville as the final court of appeal in wage disputes. Should negotiations prove unsuccessful, either party is empowered to invoke the services of a mediator chosen from a jointly selected panel of five persons.67 Should the recommendations of the mediator be unacceptable, provision is made for the appointment of a threemember arbitration board whose decision is made final and binding upon both parties.68 This departure from the reserved power of ultimate unilateral official competence retained at the TVA is of substantial albeit as yet of theoretical significance. Such ultimate procedures have not thus far been resorted to at either enterprise. But the Bonneville arrangement raises in concrete fashion the extent to which a public authority may delegate to an external or neutral agency (e.g., an arbitration board) the power to make final decisions with respect to such vital matters as the pay of government employees even when its findings "Ibid., 61 Ibid., 65 Ibid., "Ibid., m Ibid., œIbid.

Art. I, Sec. 1. Art. Ill, Sec. 3. Preamble. Art. V, Sec. 1. Art. VIII, Sec. 2.

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are governed by such statutory standards as the prevailing rate which here shapes the substance of the pay scales in question. It is true that in Great Britain an arbitration court has been vested with the authority to resolve pay disputes within the Civil Service. 69 The general acceptance of this practice in the American public service is unlikely. It is more probable that such collective bargaining in public employment as will emerge in the United States will reserve the ultimate authority to resolve wage disputes either to the legislative branch, as in the case of the Government Printing Office, or to a political official, such as the Secretary of Labor, designated under the TVA system. The consequences of these experiments in employee relations will in large part determine the content and direction of public labor policy toward an expanding segment of the total national labor force. Moreover, they will materially affect the reaction of organized labor toward public-policy measures which contemplate the enlargement of the public bureaucracy. A number of powerful trade unions originally opposed public power development under the Bonneville Power Administration. Private power companies were quick to remind the unions . . . that government practice . . . stripped wage earners of the benefits of collective bargaining (and that) if permitted to grow, "bureaucracy" would make union membership unnecessary. 70 Union opposition became increasingly articulate and labor relations at the Administration were initially fraught with an uncertainty and staff dissatisfaction which could not but impair efficiency and morale. The joint formulation of a bilateral employee relationship policy and the establishment of collective bargaining contributed appreciably to a marked reversal in attitude which, in the opinion of qualified observers, has redounded to the benefit of the enterprise as well as the alleviation of rank and file discontent. To the extent that these arrangements provide working models of effective and responsible group consultation, they will doubtless be increasingly scrutinized with a view to their extension into other areas of public employment. 69 See Ε. N. Gladden, Civil Service Staff Relationships, London 1943; Leonard White, Whitley Councils in the British Civil Service, p. 99. 70 Otto S. Beyer, "Bonneville Power and Labor," 35 Survey Graphic 345 (October 1946).

CHAPTER

XI

proposed principles and methods of collective negotiation in public employment I N A W E L L - K N O W N analysis of the French civil service written some years ago, Harold Laski sought to demonstrate the proposition that autocratic control or full employee autonomy exhausted the range of feasible public personnel policies. In anticipation of a radical transformation of the nature of the state he urged that the civil servant must "attempt the domination of the services to which he belongs." 1 The syndicalists, as the proponents of this point of view were termed, focused attention upon the critical labor problem which confronted the state as a result of the emergence of vast modern bureaucracies. They anticipated that public employees would manifest a growing discontent with unqualified hierarchical personnel control and with unilateral determination of their conditions of employment. The challenge which syndicalism issued to traditional conceptions of public personnel management demanded the counter formulation of an employee relations program which would reconcile the needs and prerogatives of the state and the aspirations of its employees. This challenge has not been met successfully.

In commenting upon the recurrent labor crisis in the transit system in New York City, Arthur W. Macmahon has shown that both labor and management have failed to formulate a constructive approach to the problem of public employee relations. His conclusions are equally relevant in the greater number of public jurisdictions in the United States. Union leadership [he declared], has not been alert to the need for a reorientation of its thinking and methods in terms of public 1

Laski, Authority in the Modern State, pp. 336, 355.

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operation. The Board of Transportation, for its part, has neither a modern labor policy nor means for its administration.2 Several years ago Walter R. Sharp remarked in the course of an analysis of the problem of public employment: "The authoritarian tradition of sovereign control" appears to be merging into something akin to cooperative determination of personnel policy." 3 The preceding survey of labor relations in public jurisdictions in the United States can scarcely be said to confirm the validity of this observation. In lieu of cooperative projects, employees have elected or been constrained to put their faith "in the generosity of unilateral action or . . . reliance on the power of political pressure." 4 The formulation of any program of employee relations in the public service in which staff consultation or representation is to achieve any formal status must take into account certain basic conditions surrounding government employment. These may be summarized as follows. ( 1 ) The effective consideration of staff interests demands organized representation. "Government, no more than business, grants more benefits than are sought collectively." 5 It would be generally injudicious for staff organizations to formulate policies upon the assumption that a heightened sense of administrative responsibility in the conduct of personnel management would ever produce that solicitous consideration of employee needs which is provided by autonomous associational activity. Even in Great Britain where staff consultation in the civil service has reached an unusual degree of development, the primary impetus in the functioning of the Whitley Council system has been furnished by the employee associations. The official representatives have rarely assumed the initiative in presenting issues for joint discussion. A similar situation has been observed in the United States. "Unionization and affiliation," according to Meriam, "have been the major factors in getting the Congress to give serious consideration to measures of vital concern to the public employees of the national civil service." 6 It is primarily for this reason that the Assistant General Secretary of The Trade Union Congress in Great Britain recently declared: 'Political Science Quarterly (June 1941), p. 192. ' 13 Ency. Soc. Sc. 366. 1 Report of the Mayor's Committee of New York City established to investigate the labor problem in the municipal transit system, September 9, 1946. 5 AFGE Organizational Pamphlet. • Public Personnel Problem from the Standpoint of the Operating Officer, Washington, The Brookings Institution, 1938, p. 280.

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The question of wages, working conditions and hours of labor, will under nationalization still have to be settled within industry by the traditional process of negotiation . . . between trade unions and management. The nationalization of an industry does not mean that (these matters) will become the subject of an act of Parliament or of a Ministerial Order . . . The very essence of trade unionism in Great Britain is independence . . . of the State and of employers.7 These opinions reflect more than the vested interests of professional trade union officials determined to bend the processes of nationalization to serve the ends of conventional bilateral staff negotiation with management. The history of public personnel administration in virtually all jurisdictions has lent substantial justification to the view that an autonomous labor movement devoted to the protection and advancement of employee needs is as indispensable in public as in private employment. ( 2 ) The preponderance of state authority which has been posited as a fundamental requirement of any acceptable scheme of staff consultation demands that the government retain a sufficient reserve power to review or modify such understandings as may be reached in the normal process of negotiation between directing personnel and employee representatives. Opponents of collective bargaining in the public service have sought to deny its admissibility on the ground that "an unequivocal grant of power to the administrative agency over the matters covered in an agreement is necessary if the Government to which it is subordinate is to be bound by the agreement." 8 The implication that a choice must be made between complete legislative control or the unqualified surrender of authority to administrative officials is of questionable validity. A controlled and a contingent delegation of authority is not only theoretically compatible with collective negotiation but has in fact proved workable in public employment. The negotiation procedures in effect at the Government Printing Office seem to offer promising precedents for further experimentation. It is highly unlikely that Congress would ever confer upon operating or budgetary personnel throughout the Federal Service sufficient authority to determine employee relations policies and schedules of compensation in the manner practiced at TVA. But arrangements 7 George Woodcock, "Trade Unions Under Nationalization," Labor and Industry in Great Britain, V (June 1947), 123-124. 8 Employee Organizations in the Public Service, National Civil Service League,

p. 18.

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which would only become effective upon approval by a Congressional committee do not deprive the legislature of ultimate control over personnel and fiscal matters. In brief they recognize the competence of the Government to impose unilateral solutions in employment matters if it elects to do so but they proceed upon the assumption that this authority will not be exercised in the normal course of personnel administration. Moreover, they provide for specific and formal legislative approval as well as administrative consent before agreements may be regarded as binding. In this respect employee relations policies which may be evolved in the United States will probably differ radically from those which have been established in Great Britain. For in the latter country an extremely small number of personnel matters are regulated by Parliament. Sir Horace Wilson has pointed out: Rates of pay, conditions of work, hours of duty, holidays . . . are being looked after in an orderly way through discussion between their (staff) representatives and the senior officials . . . there is probably not much room for controversy about this. 9 But in the United States the statutes governing compensation, classification, retirement, veterans' preference, and other civil service arrangements occupy several volumes. The number of these laws conceivably may be diminished as administrative discretion in personnel management is enlarged and by the same token their form and content may become less prescriptive of the details which govern public employment. But even extensive delegation would still fail to produce a situation comparable to that which obtains in Great Britain whereby the most vital personnel decisions by administrative officials are not dependent upon statutory authorization but derive their validity from long-standing executive prerogatives rarely questioned by Parliament. Any feasible program of official-staff consultation in the United States must, in brief, reconcile itself to the fact of substantial legislative participation and unquestionable ultimate control. ( 3 ) To the extent that the principal locus of responsibility for the determination of the conditions of public employment is transferred from the legislative to the executive branch of government, the various groups which presently seek representation before legislative authorities should be accorded an adequate opportunity to present their viewpoints before appropriate administrative agencies. The institution of staff consultation should not operate to bar the civil service reform asso8

Ε. N. Gladden, Civil Service Staff Relationships, p. vii.

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ciations from exerting their traditional and salutary influence on behalf of the merit system. Other groups organized to achieve economy in the operation of government and a reduction in the size of the public bureaucracy should be permitted to scrutinize the functioning of consultative machinery lest administrative officials compromise the public interest through a capitulation to unreasonable staff demands or enter into an intolerable alliance with employee associations at the taxpayers' expense. Such representation is readily arranged. Officials may confer independently with such private groups prior to and even during negotiations with employees. These outside interests may even be accorded representation before official-staff conferences and an opportunity to criticize proposals or to suggest alternative policies. But it should be observed that either of these arrangements still permits a unique and preferential status to be ascribed to the representation of employee interests. Organized employees may thus participate in bilateral conferences with management and reach understandings upon the basis of collective negotiation subject to confrontation by other interest groups. The preferential position which is here assigned to the representation of staff interests rests upon certain assumptions which were outlined previously but which perhaps merit recapitulation at this point. Private groups promote their individual interests through a variety of expedients many of which are normally free from governmental oversight or regulation. As such they occupy an altogether different position with respect to public authorities than do groups which must look to the government employer for the fixing of every minute detail of their working conditions. The activities of the civil service reformer stem from a commendable interest in good government. The burdens of the taxpayer are indeed onerous but his concern with public personnel policy is still less immediate to his economic well-being than that of the civil service employee. It does not seem unduly discriminatory to permit the latter to consult with officials through more direct processes of negotiation than are made available to other individuals and groups in their relations with public authorities. (4) The fact that union members are also government employees compels the state to maintain a particular interest in the collective activities and aspirations of its work force. The internal aspects of trade union organization are not matters with which private employers need be concerned in the normal process of collective bargaining. The public employer, on the other hand, is under a unique compulsion to be aware of the real sources of authority within organizations of

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government employees. Associations should remain accountable to their memberships and not to any other source of external control. Autonomy of associational activity in the public service cannot be carried to the point where an organization falls under the domination of a self-perpetuating clique of office holders or becomes an instrument in the conduct of ideological warfare. Neither of these phenomena, which are not unknown in the American labor movement, can be tolerated in public employment. (5) In so far as the scope of collective bargaining in the public service is concerned, official-staff consultation should be permitted to encompass both economic and noneconomic aspects of employee relations. The abandonment of the Postal experiment in employee representation may be attributed in substantial part to the fact that the scheme was not and indeed under existing statutory provisions could not have been used to promote other than benevolent and welfare matters. As such it did not satisfy the economic objectives of the staff associations. On the other hand, the Whitley Councils in Great Britain have apparently been disproportionately preoccupied with a consideration of the material aspects of employment and have not fulfilled their original promise as instruments which might contribute to the enhancement of operating efficiency.10 In either instance the results are unsatisfactory. The collective interests of an administrative unit encompass such matters as wages, hours, health, safety, employee morale, and grievance adjustment as well as the elicitation of such contributions as employees may make toward the welfare of the enterprise in which they are engaged. These issues all present subjects fit for collective negotiation. (6) Effective staff consultation cannot proceed in the absence of a central personnel agency endowed with sufficient authority to supervise its administration. Lewis Mayers observed many years ago: The remedy for the wholly undesirable relationship that now exists between the employees' unions and Congress is to be found unquestionably only in the delegation by Congress of virtually all of its present control over personnel matters to an administrative body, the members of which, on the one hand would not be subject as are the members of Congress to political pressures from the employees, and on the other hand, would be free from domination by the administration.11 10 11

White, Whitley Councils in the British Civil Service, pp. 348-350. Lewis Mayers, The Federal Service, p. 560.

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The resolution of the labor problem in the public service may still demand such a substantial delegation of legislative authority but the desirability of conferring such power upon an allegedly disinterested personnel agency is open to serious question. The search for impartiality and objectivity may lead not only to a disinterestedness but to a remoteness from operating necessities and staff aspirations. The substance of employment conditions in the public service involves an ineradicable core of bargaining. The belief that its determination is essentially amenable to neutral adjudication attributes a questionable degree of objective omniscience to the alleged expert in the field of personnel management. The situation demands rather the creation of arrangements which will permit the recognition, expression, and compromise of divergent viewpoints and interests. Auxiliary personnel agencies must of course perform functions of critical importance in the conduct of employee relations. A central personnel agency composed exclusively of official members should be vested with responsibility for the development and supervision of the employee relationship policy as well as assume a vital role in its administration. Failing its establishment, the conduct of negotiations between official and employee representatives will find no central point of administrative reference to review and coordinate the policies and methods evolved in various agencies. A central personnel agency, as the President's Committee on Administrative Management declared, "would be the focus for cooperative and responsible negotiations between representative organizations of employees and the central management of the Executive Branch." 12 Such a body would perform functions similar to those undertaken by the Treasury in the operation of the Whitley Council scheme in Great Britain. It would participate in the deliberations of national conferences between officials and staff representatives. Its members might be designated as ex-ofRcio members of departmental consultative committees. They might also facilitate the processes of negotiation through expert assistance in reviewing the effectiveness of cooperative arrangements and in offering suggestions for their improvement. But the performance of these auxiliary functions would still reserve to operating officials and staff representatives the principal responsibility for the operation of consultative machinery. The collective-bargaining scheme in effect at the TVA furnishes a concrete working illustration of the role of the personnel department in the conduct of employee relations. It has been vested with the general supervision of the em12

President's Committee, p. 83.

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ployee relationship policy but operating officials and employee representatives have been entrusted with the responsibility of conducting collective negotiations and of reaching substantive decisions in the light of their detailed knowledge of working conditions. THE AREA OF COLLECTIVE NEGOTIATION IN PUBLIC EMPLOYMENT

1. Status: The content of private labor agreements refers broadly to four subjects concerned respectively with recognition and status, conditions of employment, the adjustment of individual and group grievances, and occasionally with the problem of labor-management cooperation. These issues define the substance of employee interests in the public service as well as in private industry. The problem of status raises such questions as the recognition which may be accorded public employee unions, their affiliation with the labor movement, the propriety of the closed shop and of such additional arrangements as the deduction of union dues by official authorities. These matters have been considered previously in so far as they relate to union objectives. The conclusions reached may be summarized at this point. The right of association may be recognized by public jurisdictions without impairment of essential sovereign authority or interference with effective administrative management. The closed or union shop has generally been considered an inadmissible form of union organization in public employment. The right of civil service associations to affiliate with the outside labor movement has been recognized in most public jurisdictions and it has not thus far imposed any discernible challenge to the maintenance of administrative discipline and responsibility in the American public service. The preservation of the right of affiliation with a labor movement which has become a major political force presents a challenge to the civil servant's sense of individual and corporate responsibility. The imposition of stringent restrictions would appear justified should the privilege of affiliation with a politically conscious and articulate labor movement be abused in such a manner as to violate the principle of civil service neutrality. In this respect the issue of affiliation is distinguished from that of the strike and the closed shop in public employment. In the latter instances it has been urged that the very nature of the state and the principles of a merit system in public personnel management preclude either resort to strike action or compulsory union membership. Whether the admission of such arrangements would in fact produce deleterious

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consequences was held to be essentially irrelevant. The question of affiliation involves fundamentally different problems of individual and corporate loyalty. It was alleged at the outset of this study that the demands of the state upon its own employees are not such as to exhaust the content of their allegiance. The state may not permit the reality or the threat of overt defiance to its will but it may and does allow and indeed protect the cultivation of other loyalties which do not issue in a challenge to its authority. Viewed in this light the allegiance which is expressed in affiliation with the labor movement involves no element of inherent but only of potential incompatibility with the requirements of political authority and bureaucratic management. Under these circumstances only an appraisal of consequences can furnish an equitable basis for the determination of its admissibility in public employment. The claim of associations representing a majority of public employees within a given administrative unit for exclusive recognition or at least a preferential status in the conduct of negotiations with administrative officials will probably be pressed increasingly in numerous jurisdictions. The open-door policy whereby all unions as well as individual employees may not only consult with management but do so upon terms of equality represents the prevailing dominant pattern of union recognition. Instances of exclusive representation are clearly exceptional. The experiments in employee consultation and in staff representation in grievance adjustment which have been undertaken in such agencies as the Civil Service Commission, the Department of Labor, and the Department of Agriculture have all proceeded upon the assumption that existing employee associations regardless of their numerical strength must be accorded equal recognition on joint boards and an equal voice in the deliberations which are held under their auspices. Personnel officials have shown little disposition to depart from these procedures. The proposed statement governing the relations of Federal agencies with organized employees which was recently prepared by the Council of Personnel Administration not only emphatically repudiated the principle of majority representation but it even stipulated that "when organization representatives are to be consulted, for each representative or group of representatives of employee organizations, there must be at least one unorganized employee consulted." 13 The consequences which would result from the adoption of this recommendation were acutely perceived in a discussion of this issue by field officials. "Federal Personnel Council of Boston, Meeting, June 27, 1947.

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If unorganized employees are actively requested to be present the administration in effect is asking employees to form rival employee organizations. A further effect of such a policy would be to discourage employees from joining associations.14 The policy in effect advises civil servants that no point would be served in their joining and contributing to the financial support of an organization which was precluded by the terms of the employee relations policy from securing any more recognition before administrative officials than was available to individual employees. Genuine collective negotiation may, of course, permit and indeed protect the right of individual employees to join or refrain from joining any labor organization. They may even, as in private industry, confer with employers upon individual employment problems. But negotiation machinery is designed for use by officials and representative employee organizations. Its effective operation demands that employees should not be permitted as individuals to participate in arrangements intended for use by groups. The most divergent viewpoints have been expressed concerning the propriety of majority representation in public employment. The civil service reform movement has opposed the principle on the ground that a contract for exclusive recognition of any one organization of employees is incompatible with the nature of public administration . . . the public administrator represents and is responsible to all men and must be free to hear and consider at any time the viewpoint of every group including minority groups.15 The President's Committee on Administrative Management on the other hand recommended the recognition of majority representation wherever the extent of employee organization warranted its adoption.10 Prominent public personnel administrators have enthusiastically defended the practice and asserted that its introduction might well benefit the service. Mr. Gordon Clapp of the TVA has declared: The whole practical point of majority representation is that it helps achieve orderly relations between groups of workers and the small few who administer the agency. Majority representation and exclusive recognition of the majority is a device for fixing responsibility and encouraging leadership and the acceptance of obligations.17 "Ibid. 15 Good Government, May-June 1941, p. 23. 19 Report, pp. 66, 99, 113. 17 Good Government, July-August 1941, p. 39.

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General unions in the Federal Service, as distinguished from Postal unions and from organizations of skilled employees, rarely possess a majority of the civil servants eligible to membership. Only occasionally does their combined membership include a preponderant number of the work force. Under these circumstances the possibility of establishing joint conference machinery on a service or agency-wide scale is remote. Therefore, the President's Committee on Administrative Management concluded that the present stage of group organization in the public service made it questionable whether any individual . . . organization or cooperating group of organizations . . . or any interdepartmental group [was] large enough to warrant the establishment of a national joint conference procedure. 18 The Committee, however, did recommend the development of such consultative arrangements wherever possible in individual agencies or their subdivisions and suggested that government employees be accorded the privileges of notice and hearing usually granted to private persons and groups in their relationships with administrative authorities. Concretely it was proposed that basic revisions in the civil service rules be subject to a public hearing conducted by a central personnel agency and that interested parties such as operating officials, employee organizations, and private groups be given an opportunity to advance suggestions or criticisms prior to the adoption of final policy. These arrangements probably represent the limit of employee representation under conditions of negligible or minority staff organization. If effective joint consultation requires that the majority of the employees in an administrative unit join staff organizations, it does not follow that this organized segment be identified with a single association. Experience of the Whitley Councils in Great Britain has shown that joint consultation upon the basis of multiple unionism is quite practicable. Membership data indicate those associations which are sufficiently representative of specific grades of employees to be recognized by the councils and permitted to participate in their deliberations. More than one association may thus represent a particular class of employees. The essential features of the scheme lie in the requirements that staff representatives must be selected exclusively by employee associations and that all associations are not given equal representation regardless of their individual membership. For the number of staff members of the various councils is limited and employee organizations 18

Report, p. 109.

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will thus secure representation proportional to their strength. Representatives thus selected are authorized to negotiate on behalf of all employees within designated jurisdictions. Such arrangements confer a privileged but not a monopoly status upon dominant employee organizations and render them subject to the potential competition of other groups. Exclusive recognition of a majority union does not theoretically preclude such competition but the likelihood of its emergence is in fact rather remote given the advantages of prior organization and acceptance. The public employer operates under a particular necessity to assure effective and continued freedom of choice to the rank and file to form such associations as they prefer for the representation of their interests. To extend recognition to these associations in proportion to their numerical strength would provide adequate protection for dissident minorities and at the same time permit dominant unions to exercise an influence commensurate with the degree of their preeminence. Such a procedure in private industry might well permit hostile employers to foster mischievous minority movements in an attempt to thwart effective organization. The same consequences might conceivably result in public employment but the possibility of their emergence is less likely if the employee relations policy is explicit on the issue of recognition procedures. To implement the principle of plural representation, elections might be held among competing unions in order to designate labor representation committees. Moreover, such arrangements might possibly lead to the eventual realignment of employee associations in such a manner as to produce groupings of decisive preëminence. To cite an example: The present pointless and, from the point of view of employee welfare, harmful dualism in the organization of the Postal clerks would probably be substantially mitigated if elections were held to determine employee representatives upon officialstaff councils. Most of the successful candidates would be chosen from that union which contained a majority of the total number of organized employees. Consequently many Postal workers who would otherwise belong to the minority union in the assurance that it would receive equal recognition with its rival would now be induced to join the dominant group. This procedure would not necessarily result in the extinction of the smaller association. An employee relations scheme of this type would require the designation of staff representatives at various intra-agency levels and the minority organization might retain the allegiance of a majority of the employees within field offices of considerable size. Alter-

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nately, it would be quite feasible to devise a system of proportional representation whereby minority groups with appreciable membership would be accorded a measure of representation on joint committees. The issue calls in brief for experimentation and the range of practicable schemes which might resolve the problem of union recognition is considerable. The situation does not demand an exclusive choice between simple majority representation and the present practice of according equal recognition to all groups of organized as well as unorganized employees. The latter policy encourages irresponsibility and dissension among employee groups. Its continuation renders effective associational activity virtually impossible. Its justification may be found only on the assumption of the desirability of this latter condition. Given an official resolve to exploit the possibilities of group consultation, its abandonment becomes inevitable in favor of arrangements which take some cognizance of the varying strengths of competing associations. In addition, the operation of any formal scheme of collective consultation would require the specification of procedures to designate appropriate units of negotiation. Broad functional organization might be developed within each department in the manner in which the representative panel of white-collar employees has been created at the TVA. Organized employee groups would thus evolve in a manner which corresponded roughly to the basic services of the classification system. Administrative, professional, clerical, postal, custodial, skilled trade, and unskilled labor occupations might provide a convenient basis for staff organization. Broad service groupings have never really been utilized in the conduct of various phases of personnel management. The comprehensive occupational category of the "service" has become a meaningless framework to which the classification system in its vital aspects is largely oblivious. Under these circumstances it is not surprising that employee organizations have developed without reference to broad functional distinctions. The class unit which forms the least inclusive grouping of positions will probably remain as the fundamental category of job differentiation as long as the examination and recruitment systems are compelled by statute to determine the fitness of candidates for specific positions rather than ascertain more general ability and capacity for growth. A public labor policy which provides for employee representation upon the basis of general but essentially homogeneous occupational groups might serve to deflect the course of personnel management from an excessively narrow preoccupation with classification distinctions to a more effective concern with broader service groupings.

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2. Compensation: In conducting its survey of personnel conditions in the Federal Service some twenty years ago, the Personnel Classification Board requested several prominent business executives to suggest measures which might aid in the formulation of a more efficient and equitable policy of public compensation. One of the comments received retains a striking contemporary relevance. "I have often hoped," wrote a businessman, "that some plan could be devised by which Congress would feel safe to adopt a wage policy rather than a scale of wages." 19 This brief statement summarizes the essence of the pay problem in the public service. Revisions in the statutory scales of wages will continue to be made haphazardly in response to pressure-group forces as long as a basic pay policy is not forthcoming. Fifteen years after the Personnel Classification Board had submitted its closing report, an experienced personnel official of the Navy Department was led to remark to the Senate civil service committee: I would like to express the hope that Congress . . . can address itself to this problem of doing away with the complicated mass of laws that have grown up during the past generation . . . applying to working conditions and remuneration of Federal employees . . . and write a simple uniform just and flexible law.20 Several suggestions may be ventured concerning the form which a governmental wage policy might assume and the extent to which employee associational activity may contribute to its substance and administration. The determination of basic wage policy and the promulgation of standards in accordance with which it must be executed are essentially functions of legislative bodies. In these matters employee associations must restrict their behavior primarily to lobbying activities. Even in agencies where collective bargaining has reached an advanced stage of development, the conduct of wage negotiations must proceed in accordance with predetermined legislative policy. Thus the standard of the prevailing rate serves as a criterion of compensation throughout many areas of public employment. The enactment of a basic wage policy does not preclude a considerable degree of flexibility in its administration. The remarks of a former director of the Bureau of the Budget concerning the determination of within-grade pay increases are of general applicability in this respect. " Closing Report, p. 69. Rear Admiral C. W. Fisher, Hearings, S. 635, p. 68.

M

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The problem of formulating recommendations for making salary advancements . . . calls for a compromise between the complete freedom of administrative action and the automatic operation of a rigid formula.21 The revision of public wage scales to conform to important changes in economic conditions would require the exercise of similar discretion. The prompt and equitable institution of wage adjustments demands the regular and continual accumulation and analysis of various kinds of data. It is this task which provides employee associations with their principal opportunity to make important and valuable contributions in the determination of such pay factors as productivity, cost of living changes, prevailing rates for comparable work in private employment, and the effect of pay scales on turnover and recruitment. The 1941 convention report of the State, County and Municipal workers of America called attention to the need for union wage studies which would supplement, "the research of Government agencies." 2 2 Such independent fact-finding activities are particularly justified under circumstances, unfortunately prevalent in public employment, in which official authorities are ill-equipped or disinclined to conduct these functions satisfactorily. The President's Committee on Administrative Management declared that the research functions assigned to the Bureau of the Budget were "practically undeveloped." 23 The Committee reported that statistics and other factual data sought by Congress or by the chief executive concerning conditions of employment were frequently unavailable and that in such instances it has often "been necessary to depend upon hurried compilation or upon estimates." 2 4 In marked contrast to these conditions it is interesting to observe the circumstances which led to the institution of cost-of-living salary adjustments in the British civil service following arbitration awards in 1940 and in 1941. Whereas the salaries of public employees in the United States remained unchanged for several years during World War II with relief usually accorded in the form of uncertain and last-minute compromises arrived at virtually in the closing hours of Congressional sessions, administrative machinery in Great Britain revealed a flexibility and responsiveness to prevailing economic conditions. Moreover, the determination of the pay revisions was materially facilitated by a staff21 Harold D. Smith, Director of the Bureau of the Budget, Testimony before the House Civil Service Committee, H.R. 1073, 77 Cong., 1st Sess., House Report 533, May 13, 1941. 221941 Convention Proceedings, p. 31. 23 Report, p. 16. 24 Ibid., p. 79.

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sponsored study of "the expenditure of 1360 British households in 193839." This survey was made by the Civil Service Statistical and Research Bureau and bore specific references to the income and expenditures of various classes of public servants.25 The closing report of the Personnel Classification Board declared that it was contrary to sound public policy . . . for Congress to delegate to an administrative agency its power over so broad and so fundamental a question as the general levels of rates of pay for Government employees, this question having . . . such a close connection with the function of appropriating from the Public Treasury.26 This objection loses much of its plausibility when it is recalled that the delegation of pay-fixing authority to administrative officials has been a familiar and accepted practice throughout the skilled-trade segment of the public labor force since 1862.27 A recent survey of the classified service concluded with the recommendation that a "central classification agency fix and adjust rates of compensation subject to the approval of the President." 2 8 Wilmerding has suggested that the solution to the pay problem demands the abandonment of the practice of detailed legislative salary prescriptions. In his opinion "the establishment of salary scales should be made a regular budgetary function rather than a legislative or departmental function as it now is." 2 9 Indeed, one of the specific recommendations contained in the Closing Report of the Personnel Classification Board contemplated the extension of the Board's own jurisdiction to fix the wages of apprentices, helpers, and journeymen in trade and crafts in lieu of their prevailing determination by separate wage boards operating within various departments.30 This advocacy of administrative discretion in establishing pay rates for industrial employees seems somewhat inconsistent with the Board's insistence upon the need for exclusive legislative responsibility in fixing the compensation of classified employees. On the surface at least it is not clear why "sound public policy" should dictate the need for Gladden, op. cit., p. 8. Closing Report, pp. 230, 76. 27 See the preceding chapter for a discussion of the extent of administrative discretion in these matters. 28 Wilson and Faulstitch, "If We Could Remake the Classification System." 5 Personnel Administration 11, November 1942. 28 Lucius Wilmerding, Government by Merit, New York, McGraw-Hill, 1935, p. 273. Closing Report, pp. 12, 13. 25

26

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legislative prescription of the salary of a night watchman in the protective service but be entirely compatible with the delegation to an administrative board of authority to fix the wages of a skilled mechanic whose pay might be several times that of the custodial employee. The distinction, however, is a valid one but not for the reason alleged by the Personnel Classification Board. The objection to the exercise of administrative authority in fixing the pay of salaried employees does not lie in any inherent inalienability of this power but in the fact that standards have not been evolved to govern decisions in this field. These conditions do not obtain in the case of skilled-trade employees. The prevailing rate in private industry provides an objective standard of reference which may be administratively applied without too much difficulty. The progress which has been made in the field of scientific job classification furnishes a rational basis for a more substantial measure of administrative discretion in salary matters than has hitherto been ventured. In addition, the applicability of the prevailing wage concept in public salary determination increases in direct proportion to the growing similarity among occupations in public and private employment. Other conditions might serve to guide the exercise of administrative discretion. Pay revisions could be confined to the adjustment of salaries which fell between specified maxima and minima. In this respect it is interesting to observe the extremely broad scope which the authors of the Report on Personnel Management issued by the Hoover Commission on the Organization of the Executive Branch of the Federal Government would extend to administrative officials in the field of public salary adjustment: The Congress shall be the source of the authority for all matters of Federal pay administration but should, in the interest of expeditious and efficient handling, limit its participation to establishing minimum and maximum rates of payment within which all general adjustments in Federal compensation are to be made. Authority for all other phases of pay administration should be delegated to the executive branch. 31 The approval of the legislature as well as of the chief executive should probably be required in some form before wage adjustments become final. Their promulgation might be made contingent upon explicit or implied legislative acceptance within a designated period. Official-staff consultation concerning pay adjustments could probably a

Report on Personnel Management, February 1949, Recommendation 17, p. 27.

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be held most expeditiously when the budget was in process of preparation. The amount and effect of proposed changes could be clearly indicated in the estimates submitted to the appropriating bodies together with supporting data covering their total cost. Finally, administrative adjustments in pay rates should not be made too frequently. A minimum period would appear essential within which important revisions would not be permitted. All collective negotiation, of course, depends upon this condition for its essential purpose is to resolve the pay problem in a given work unit for a prescribed interval. 3. Collective Bargaining Over Terms of Employment Other Than Wages: The conditions of employment other than wages which are usually incorporated in union agreements include seniority provisions, promotion, lay-off and dismissal procedures, and efficiency-rating techniques. The potential area of staff consultation in this field has rarely been explored in public employment. Present policy governing efficiency ratings illustrates the limited scope of such cooperative activity. The Ramspeck Act of 1940, subsequent legislation, and several executive orders32 authorized the establishment within each department of boards of review of efficiency ratings. These boards are composed of representatives designated by the Civil Service Commission, departmental officials, and employees. They are empowered to review and even to override ratings which they deem unreasonable. The Federal Personnel Manual33 calls specific attention to the importance of a thorough understanding of the rating system by individual employees. To this end administrative officials are advised to meet with their staffs to explain current procedures. Employee groups are equipped to perform valuable functions of communication and education in their widely circulated journals or in the discussion of official policy at union meetings and in the forwarding of staff suggestions for the improvement of the rating system. The most elaborate provisions have been made for staff enlightenment upon an individual basis but the development of collective cooperation remains virtually neglected. Officials are carefully briefed in the techniques of conducting personal interviews, with meticulous attention paid to such matters as timing and the degree of privacy which should obtain on such occasions. The elicitation of staff cooperation has been ignored, however, in the determination of performance requirements or in the selection of 32 Act of November 26, 1940, P. L. 880, 76 Cong. 54 Stat. 1215; Act of August 1, 1941, 55 Stat. 613; Executive Order 9252, October 9, 1942, Executive Order 8748, May 1, 1941, Federal Employees Pay Act, June 30, 1945, P. L. 106, 7 9 Cong. M Chapter E , pp. 1-13.

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relevant factors to be used by rating officials or in the provision of adequate instruction in rating techniques or in assuring the prompt and impartial selection of rating committees. Other aspects of public employment appear to lend themselves to joint discussion between officials and staff representatives. Seniority and promotion arrangements, the orderly execution of a reduction in force program and the prompt and adequate announcement of vacancies may be made the subject of collective negotiation without jeopardy to any of the prerogatives of management which must still discharge the substantive tasks of promoting, laying off, and dismissing employees under its supervision. 4. Collective Bargaining and Grievance Procedures: The machinery of adjustment which generally prevails in private industry appears suitable for the resolution of most grievances in public employment. Employee unions may designate staff representatives and participate in the formulation of procedures governing the operation of boards of appeal. A court of appeals would not necessarily interfere with the normal adjustment of grievances by supervisory officials. It is possible that employees might be led by irresponsible leaders to abuse adjustment machinery and to seek a disproportionate and controlling voice in the resolution of grievances to the point where essential disciplinary authority might be seriously challenged. But given a measure of representation in the composition and functioning of appeal boards, it is reasonable to assume that employees would be more disposed to accept their findings than adverse decisions rendered under circumstances which fail to create any vested staff interest in the operation of appellate procedures. Moreover, a bureaucratic organization of the complexity and magnitude of a modern public service has rendered obsolete personnel programs based upon the feasibility of resolving grievances through individual relationships. With some 50,000 employees under its supervision, the United States Department of the Interior has sought to base its "employer-employee relationship policy . . . mainly on . . . dealings with the individual employees." 34 With a realism which points directly to the transparent ineffectiveness of any program designed to function in this manner, the Maryland Circuit Court of Baltimore City recently inquired: Is it reasonable to expect to maintain the fiction of personal relationship between employer and employee in the municipal field " Letter received by the writer from the Division of Personnel Supervision and Management, November 27, 1946.

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among a large number of workers engaged in performing the same tasks as are performed in the industrial field? I think not. To maintain even a semblance of individual contact with a large force of workers would require an increase of supervisory workers who would still fail to detect and deal with grievances and complaints as effectively as an organization of workers could do.35 If the size of a municipal enterprise renders improbable the development of a satisfactory employee relationship policy upon the basis of personal contact between supervisors and employees, it is obviously less likely that a similar situation will emerge in a public agency employing thousands of individuals. Presently available experience with the operation of boards of appeal containing staff representation does not warrant the conclusion that these arrangements would clog the channels of communication with a host of inconsequential grievances. Herman Feldman once remarked in this respect that associational activity might relieve administrative officials of the burden of numerous trivial complaints.36 The pressing of groundless causes might be eliminated by experienced staff leadership and grievance machinery thus confined to a consideration of issues which possessed substantial merit. As a medium engaged in the sifting of major and valid from trivial and spurious staff grievances, employee organizations might perform valuable selective functions which would help make a necessarily limited number of contacts between the rank and file and top management rooted in issues of serious concern. In his testimony before the Commission of Inquiry on Civil Service Personnel, Mr. Luther Steward, President of the National Federation of Federal Employees, was especially emphatic in his denial of the validity of the oft-expressed charge that impartial appellate machinery would deprive supervisors of adequate authority to maintain discipline. A highly prized appeals system which would probably be swept away in the event of its abuse would rather lead, it was alleged, to the diminution than to the multiplication of groundless claims.37 In this respect it is interesting to recall John R. Commons' discussion of a grievance procedure introduced in New York City during the Seth Low administration. Following the recognition of a representative employee association and the establishment of grievance machinery in " 9 Municipal Law Journal 118 (1944). " Feldman, A Personnel Program, p. 225, cited in Employee Relations in the Public Service, p. 88. " Minutes of Evidence, p. 63.

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which provision was made for staff participation, a screening committee organized by employees in the street cleaning department eliminated in one year 830 of a total of 1100 complaints which were called to its attention by dissatisfied workers. The result of the experiment convinced this distinguished authority on American labor problems that arrangements of this sort would not increase the number of grievances, as was commonly supposed, but would in fact diminish their volume through the creation of a sense of staff responsibility. Indeed the innovation was termed "the most important practical contribution that has been made to Civil Service reform in a democratic government."38 If this observation is even partially relevant at the present time, it is as regrettable as it is true that the potentialities which were here indicated have been so inadequately developed. The jurisdiction which joint boards of appeal may exercise requires careful delimitation. Matters which concern groups of employees rather than individual complaints are not fit subjects for adjudication by grievance committees. Such issues are more properly resolved through machinery of joint consultation. Again disputes relating to compensation, whether individual or group in nature, are more appropriately discussed through wage conference procedures. Finally the jurisdiction of appeal boards should be confined to the consideration of specific kinds of grievances to the exclusion of others. The critical need of the public employer to compel the dismissal of employees of questionable loyalty provides an instance which requires special appellate procedures. These cannot in their nature admit of organized staff representation at higher levels. The degree of staff participation in the appointment and operation of appeal boards will be negligible in cases which preclude public disclosure of the sources of information obtained through confidential channels or which at most permit a selective divulgence of evidence to an impartial board. But only a minor portion of the total number of grievances will fall into this category. Public personnel experience has amply shown that employees have had reasonable ground in the past to complain of unwarranted disciplinary action resulting from personal prejudice, political discrimination or anti-union bias. These cases clearly permit a substantial degree of staff consultation and representation in their resolution. 5. Collective Bargaining and Labor Management Cooperation: The rationale of labor-management cooperation is simple. A prominent business executive, who has devoted a considerable talent to its prac88

Labor and Administration, pp. 109-112.

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tice as well as to its theoretical exposition, has summarized its essence in a few words. Practical experience has demonstrated that save in abnormal cases of rare managerial genius the pooled judgment, initiative, enterprise and ideas of an organization produce a better end result . . . than does autocratic administration. 39 If these assumptions are valid, it is patently unreasonable to deny their applicability to the field of public as distinct from private personnel management. Indeed experienced government officials have expressed the opinion that public employees may make valuable contributions to the efficiency of the enterprise in which they are engaged. No less a distinguished figure in the British Civil Service than Sir Horace Wilson has declared that staff representatives can play a "helpful part in the discussion to determine what are the best arrangements to make to insure that executive action fully carries out policy." 4 0 Moreover, they may aid constructively in the formation of personnel policy through the submission and discussion of data prior to the final consideration of various proposals by the political ministers. Consultation of this sort does not impair the authority of the minister nor does it challenge the power of the official to recommend such policies as he may deem advisable. It simply provides a responsible and effective outlet for the expression of the staff viewpoint. A recent statement of Civil Service Commissioner Flemming would seem to indicate that similar potentialities await development in the United States. "There is nothing," he declared, "in the way of law, rule or regulation which stands in the way of our working out with our employees statements of what constitutes a good day's work." 4 1 Assuming the feasibility of such collaborative activities, do employee organizations constitute desirable instruments whereby they may be undertaken? A public personnel officer who supervised the operation of several labor-management committees in the Federal Service during World War II has suggested a number of reasons in support of this type of staff consultation. Employee representatives designated by organized groups are more likely to possess skill and experience in the techniques of discussion than those who lack familiarity with associational activity. Moreover, employee unions provide a 39 William B. Given, "Freedom Within Management," Harvard Business Review (Summer 1946), p. 429. 40 Sir Horace Wilson, Introduction to Gladden, Civil Service Staff Relationships, p. viii. 41 Address, November 6, 1946, Boston University.

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ready means of communication with large groups of employees. A field member of the Federal Council on Personnel Administration has declared: My experience has been that meetings with employee organization groups are by no means a one-way street. On the contrary they afford management a unique opportunity to sell the program to the rank and file which management does not ordinarily reach. 42 Finally, the selection of representatives under union auspices avoids the need for special elections and fixes responsibility upon staff members who are less able to excuse negligent or ineffective performance on the ground that they could neither enlist nor retain the support of an unorganized rank and file.43 The Civil Service Commission has testified to the fact that employee associations have made contributions of value in the field of personnel administration. In a memorandum submitted to the President's Committee on Civil Service Improvement the Commission acknowledged that organized groups of Government Employees have performed some very constructive work in improving personnel practices. It is believed that such groups can be of real assistance in working out better procedures.44 The knowledge and experience which the NFFE has acquired during the past thirty years in the problem of classification, for example, can doubtless be utilized to advantage in securing needed improvements in this vital area of personal management. Mr. William E. McReynolds, administrative assistant to the President in personnel matters, declared in an address to the union's 1941 convention: We shall need the cooperation and assistance of all Government employees and nobody can be more useful than your organization in helping to develop procedures that will result in fair allocations of positions.45 In more general fashion, a well-known student of employee relations in the bureaucracies of several countries has remarked: Summary of Meeting, Federal Personnel Council of Boston, June 27, 1946. E. R. Rushin, "A New Frontier for Employee-Management Cooperation in Government," 3 Public Administration Review, 159 ( 1 9 4 3 ) . 14 Report of the President's Committee on Civil Service Improvement, vol. Ill, pt. I, p. 32. Memo submitted by the Civil Service Commission. 45 Address to the 1941 Convention of N F F E . 42

48

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One doubts whether there is any other single element more promising for the renovation of . . . bureaucracies than the reservoir of ideas and good will which corporate staff consciousness contains.46 The resources of this reservoir have scarcely been drawn upon. The potential scope of cooperative activity reaches into numerous fields of personnel management. The institution of in-service training programs, the accumulation of data necessary for the preparation of more accurate class specifications and their extension into broader areas of the service, the elicitation of beneficial suggestions, the survey of physical working conditions including such matters as health, safety, and sanitation, the provision of facilities for job-related and off-job information and counseling services, the creation of credit unions and benefit funds suggest a partial list of subjects to which labor-management cooperative arrangements might profitably be addressed. The principles and techniques of group consultation in public employment which have been suggested may be conveniently summarized at this point. The introduction of a practicable scheme of collective negotiation has been held to require: (1) Explicit statutory prescription of the permissible area of group consultation and of the criteria to be observed in the making of vital decisions affecting conditions of employment. ( 2 ) Expressed or implied legislative approval of important administrative revisions in the terms of public employment. ( 3 ) The maintenance of the open shop and unrestricted eligibility to union membership unless a denial were clearly warranted on such grounds as dishonesty or a betrayal of associational confidences. ( 4 ) The recognition of the principle of majority or plural representation which would take cognizance of the strength of rival organizations. (5) the unqualified renunciation of the strike as a means of enforcing staff demands in the public service. ( 6 ) The limitation of the duration of any understandings involving the expenditure of public funds to one year. (7) The retention by the staff of the right to petition legislative bodies directly for the redress of grievances in the event that the prior consideration of personnel issues at administrative levels is deemed unsatisfactory. The right of Federal employees to petition Congress is perhaps inviolate on constitutional grounds. The point has never been conclusively adjudicated. The acceptance of public employment might, it is true, be held to warrant the deprivation of this right even as it has " Walter R. Sharp, The French Civil Service, p. 506.

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been construed to justify the restriction of the political liberties which civil servants may enjoy. But the consultative arrangements which have been proposed here have not been framed with the thought of resuscitating the notorious "gag orders" of an earlier era. A basic purpose of collective negotiation conducted in good faith is to render the resort to lobbying less necessary through the substitution of more satisfactory administrative procedures. The right of petition would thus be exercised as a last resort even as in Great Britain the "leaders of the staff associations failing to receive satisfaction from the Government, may in great necessity appeal over the head of the Government to the House of Commons." 47 The results which might flow from the institution of consultative machinery in the public service are admittedly problematical. Several possible consequences, however, may be ventured in the form of concluding conjectures. A corporate staff outlook would emerge from the operation of any formally recognized scheme of staff representation. This collective consciousness might issue in what Herman Finer has termed "a group conceit" 48 with dangerous elements of defiant assertiveness. The ominous potentialities inherent in civil service unionism which Finer indicated were generally confined, however, in their theoretical presuppositions and in the empirical data upon which they were based to the syndicalist movement in France. Ordway Tead's investigation of the same problem in the United States has led him to entirely different conclusions on the basis of which he has enthusiastically heralded the advent of an organized public service marked by vigorous associational activity.49 The 62nd Annual Report of the United States Civil Service Commission pointed in more dispassionate terms to the role which staff organizations may play in the conduct of personnel administration. Declaring that "the assistance of representative employers in the formulation of policies affecting employees [was] vital to efficient public service," the Commission welcomed "the contribution that such representatives can make to sound management." 50 President Steward of the NFFE has asserted categorically "that the introduction in the American public service of some form of group consultation would improve the quality and quantity of the product of any department of this Government." 51 A personnel environment re" White, Whitley Councils in the British Civil Service, p. 21. Finer, The Theory and Practice of Modern Government, p. 1406. " New Adventures in Democracy. 50 62nd Annual Report, 1946. 01 Minutes of Evidence, p. 65. 48

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fleeting such arrangements might prove instrumental in leading the agencies of employee representation from the present preoccupation with protective and protest functions to a new concern with more constructive activities designed to enhance the welfare and efficiency of the enterprises in which their memberships are engaged. A program of employee consultation might contribute to the improvement of the notoriously low staff morale in the public service. Sir Horace Wilson has declared that departmental Whitley Councils in Great Britain "have gone a long way to create in the department a team spirit and sense of unity which cannot fail to promote efficiency." 52 The machinery of joint consultation which was only recently established at the Bonneville Power Administration has apparently already had a similar result. Otto Beyer has observed that employees have acquired a definite sense of participation in the processes by which their labor standards are determined . . . this sense of group participation has had a very salutory effect on morale.53 Moreover the recognition of staff responsibility makes it incumbent upon employee representatives to suggest practicable alternatives to those proposed by management and objected to by the rank and file. The hostile and critical role of the irresponsible outsider tends under these circumstances to be replaced by a more positive and constructive relationship. Again, it is at least a democratic assumption that individuals will be more disposed to acquiesce in decisions which incorporate the end product of a process of consultation than in those which are unilaterally imposed. Apart from any preference for democratic arrangements and with reference only to the criterion of operating efficiency, Mr. Gordon Clapp of the TVA has expressed this point of view in his opinion that the collective determination of conditions of employment "places upon employees a responsibility for maintaining . . . a high degree of compliance with regulations in the formulation of which they or their representatives participate." 5 4 In like manner a program of staff consultation might contribute to an enhancement of administrative enterprise and responsibility. In connection with the introduction of needed wage adjustments in the public service, Civil Service Commissioner Flemming has declared: "Trade Unions and Efficiency," 6 Public Administration 116, 1928. "Bonneville Power and Labor," Survey Graphic (October 1946), p. 348. 84 Address, February 1, 1936. 52

53

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The executive branch has abandoned the concept of . . . waiting for Congress to do something. It has accepted the concept that Congress should be kept constantly informed as to salary schedules which the executive branch believes should be in effect in order to attract and hold in the public service the nation's best qualified citizens.55 The administrative assumption of initiative under existing conditions, however, will remain a matter of fortuitous circumstance. Enlightened and conscientious officials may accept Commissioner Flemming's challenge but others may prefer more traditional and less demanding modes of conduct. The articulation of staff demands through formally recognized consultative machinery would provide an incentive to energetic administrative action in this and other fields of personnel management. An employee relations scheme designed in this manner would meet the requirements of the "constitutional" theory of state-employer which has been previously outlined. It would recognize the ultimate sovereign authority of the state in its legal aspect; it would not challenge its preponderant political power; it would not demand the habitual exercise of the sovereign power to its acknowledged limits but it would rather permit the functioning of representative machinery in the normal course of personnel administration. The unilateral determination of conditions of employment in the public service may have been necessary and justifiable in a bureaucracy confined substantially to the performance of police and protective functions. The emergence of a mass of government employees comprising essentially a bureaucratic proletariat demands the evolution of new and more democratic techniques. Any reorientation of public policy in this direction will demand an abandonment of what Senator Wayne Morse has aptly termed "the uncompromising and unenlightened attitude toward the problem of discussing labor relation problems with public employees." 56 The operation of a scheme of group consultation would finally replace the occasional and haphazard consideration of staff needs and interests by arrangements which would provide for regular and periodic action by responsible authorities. The evolution of employee organizations in the public service has progressed from the stage of initial suppression to the reluctant tolerœ Address before the 1946 Convention of the National Federation of Federal Employees. " See National War Labor Board Case 47, December 23, 1942, Rhyne, Labor Unions and Municipal Employee Law, p. 235.

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ance of pressure groups operating primarily at the legislative level to an increasingly articulate preference for collective negotiation with those officials who in a very real sense constitute the virtual employers of the rank and file members of the bureaucracy. It is at this point that critical and basic policy decisions must be made. For these associations, as Leonard White has observed, "are sure to exert substantial influence upon the conditions of public employment of the future." 57 Giving their existing and potential strength and an appreciation of their aspirations, the only practicable alternative, as Herman Feldman remarked several years ago, is whether unions and other groups of employees shall be regarded as an instrument of helpful cooperation with executives in a common service to the public, or shall be relegated to ordinary bargaining agencies engaged in lobbying for their own personal interests in Congress.58 Whether the power which organized employees may acquire will be exercised for the good or ill of the public service will depend, therefore, upon public policy and the wisdom with which it is administered as well as upon the quality of staff leadership and the sense of responsibility which it manifests in the performance of its representative functions. If we, as public managers [Arthur S. Jandrey, personnel manager of the TVA has declared], foster policies and practices designed to frustrate normal employee aspirations and merely to control their activities, we will, without question, provoke and promote the negative features and abuses of unionism. On the other hand, if we . . . have the vision and patience to meet their aspirations halfway, great benefit can redound to the public service or to the taxpaying public. 59 The principles and methods governing the operation of collective consultation in the government service which have been suggested above may shed some light upon the concrete labor problems with which public authorities will be increasingly confronted in the near future and possibly indicate the direction in which their resolution may be sought in a society which aspires to the widest extension of economic and political democracy compatible with its survival and the orderly achievement of its purposes. White, Introduction to the Study of Public Administration, p. 426. Feldman, op. cit., p. 226. 68 Address, May 10, 1944.

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Congressional Record, 76 Cong., 3d Sess., February 29, March 4-9, March 11-15, March 18, pp. 2145, 2338-2367, 2426-2442, 2466-2963, 2969-2988; July 9, 10, 9368-9380, 9426-9464. House Report 98, 76 Cong., 1st Sess., February 24, 1939. Senatorial Report 1236, 76 Cong., 3d Sess. February 26, 1940. House Report 533, 77 Cong., 1st Sess., May 13, 1941. Senatorial Document 105, 76 Cong. 1st Sess. Senatorial Report 989, 77 Cong., 2d Sess. House Report 2296, 77 Cong., 2d Sess. IV. Laws Relating to Strikes in Public Employment: P.L. 101-80 Cong, 1st Sess, 305, 29 U.S.C. 188 (Supp. July 1947); New York State Laws, 1947, Chapter 391, Sec. 22A. V. Laws Relating to Collective Negotiation in Public Employment: Washington Laws, 1935, Chapter 37. Ohio Laws, 1945, Chapter 258. VI. Legislative Hearings, House of Representatives: United States House of Representatives, Committee on Civil Service, H.R. 6518, 70 Cong, 1st Sess, March 19-22,1928. H.R. 1073, 77 Cong, 1st Sess, January 3, 1941. H.R. 1071, 7144, 77 Cong, 1st Sess, June 1942. H.R. 1860, 78 Cong, 1st Sess, February 24, 1943. H.R. 2497, 2703, 79 Cong, 1st Sess, May 18, 1945. Hearings on Bills Proposing the Establishment of Courts or Boards of Appeal for Civil Service Employees, House Civil Service Committee, 76 Cong, 3d Sess, April 16-18, 1940. Hearings before the Subcommittee of the Committee on Appropriations, House of Representatives, 78 Cong, 2d Sess, on the Independent Offices Appropriation Bill for 1945. Hearings before the Committee on the Post Office and Post Roads, House of Representatives, 78 Cong, 1st Sess, H.R. 1366, February 1943. 79 Cong, 1st Sess, H.R. 2071, March 20-28, April 17, 1945. 79 Cong, 2d Sess, H.R. 5059, February, March 1946. VII. Legislative Hearings, U.S. Senate: United States Senate Committee on Civil Service, Sen. Res. 198, 76 Cong, 1st Sess, April 20, 1939. S. 2666, 2674, 77 Cong, 2d Sess, September 22-23, 1942. S. 635, 78 Cong, 1st Sess, February 25, 1943. S. 807, 79 Cong, 1st Sess, April 25-30, 1945. S. 1415, 79 Cong, 1st Sess, May, June 1945. United States Senate Committee on the Post Office and Post Roads, S. 908, H.R. 3035, 79 Cong, 1st Sess, June 1945.

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VIII. Official Documents: Bonneville Power Administration, Agreement between Bonneville Power Administration and Columbia Power Trades Council, May 21,1945, August 18, 1946. Federal Security Agency, Personnel Bulletin No. 4, Employee Relations Policy at the Federal Security Agency. Federal Security Agency, A Personnel Program, Training Manual No. 3, 1944. Inland Waterways Corporation, Agreement between the IWC and the National Organization of Masters, Mates and Pilots, February 12, 1946. Agreement between the IWC and the National Marine Engineers' Beneficial Association, June 25, 1945. Agreement between the IWC and the National Maritime Union of America, CIO, December 17,1945. Agreement between the IWC and the International Longshoremen's Association, September 27, 1944, November 2, 1944. Personnel Classification Board, Closing Report of Wage ù- Personnel Survey, Washington, Government Printing Office, 1931. Report of the Congressional Joint Commission on Reclassification of Salaries. House Doc. 686. 66 Cong., 2d Sess., March 12, 1920. Report to the Mayor on the Labor Problem in the Transit Service, New York City, September 9, 1946. Report of the President's Committee on Administrative Management, Government Printing Office, Washington, 1937. Report of the President's Committee on Civil Service Improvement, 77 Cong., 1st Sess., House Doc. 118. Silver, Jonas, "Union Agreements with Municipalities," Monthly Labor Review (June 1943). Tennessee Valley Authority TVA Administrative Code, Compensation of Trade and Labor Employees, August 2, 1946. Employee Relationship Policy, 1945, ed. General Agreement between the TVA and the Tennessee Valley Trades and Labor Council, August 6, 1940. Interdepartmental Instructions, Personnel Department, Union Relations—Supervisory Responsibilities, December 27, 1943; Union Relations — Recognition, June 20, 1945. Plan of the Central Joint Cooperative Committee for the Establishment of Local Committees, January 15, 1943. United States Department of Agriculture Employee Organizations and Activities, Personnel Circular No. 123, August 26, 1942.

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INDEX Affiliation, 66 ff. Agriculture, Dept. of, 237 ff. Alaska Railroad, 247 Altmeyer, A. J., 4 American Federation of Government Employees, 119 ff., 158, 165, 175, 193 American Federation of Labor, 68 ff., 105, 115-119 American Federation of State, County and Municipal Employees, 95-97, 103, 128, 142, 244 Appeals, 154 ff. Baarslag, Karl, 194-195 Bailey, Mr. Justice, 185 Barker, Ernest, 28 Beard, Charles, 11 Beyer, Otto S., 10, 11, 285 Beyer, W. C., 216 Black, Mr. Justice Hugo, 183, 185, 187 Bonneville Power Administration, 257259 Borland, W. P., 105 British Trades Union Congress, 23 Cahen, Georges, 45-46, 53, 57, 143, 164 Civil Liberties and Unionism, 152-154 Civil Service Commission (U.S.), 13, 23-24, 32, 36, 78 ff., 184, 205, 224225, 230, 238 Clapp, Gordon, 19, 44, 60, 61, 91, 94, 267, 285 Classification, 106, 114 ff., 136 ff., 200 ff., 210 Closed Shop, 77 ff. Coker, Francis W., 2 Collective Bargaining, 84 ff., 159 ff. Commission of Inquiry on Public Service Personnel (Social Science Research Council), 18, 72 Commons, John R., 25, 32, 279-280

Congressional Joint Committee on Reclassification of Salaries (1920), 203 ff. Corey, Lewis, 79 Cost of Living, 226 Davis, William H„ 82, 244 Dewey, John, 19, 41 Dickinson, John, 55 Donovan, John L., 121, 155-156 Douglas, Paul, 131 Douglas, Mr. Justice W., 184, 186, 189 Drucker, Peter, 26 Duguit, Leon, 31 Economy and Unionism, 150-152 Efficiency and Unionism, 149 ff. Elliott, W. Y„ 15, 40, 43 Federal Employee (Journal), passim Federal Personnel Manual, 277 Federal Record (Journal), passim Feldman, Herman, 34, 131, 210, 287 Finer, Herman, 1, 46, 287 Fish, Carl, R., 186 Fisher, Rear Admiral C. W., 227, 273 Flaxer, Α., 103, 129 Flemming, Arthur S., 13, 36 ff., 109, 188, 205, 207, 285-286 Follett, Mary, 76 Frey, John P., 115 Friedrich, Carl J., 7, 20, 49, 60 Gladden, Ε. N., 263 Gompers, Samuel, 109 Government Employees Council (AFL), 199-200 Government Printing Office, 245-247 Grievance Adjustment, 278 ff. Harding, Warren, 139 Harmignie, Pierre, 2 Hatch Act, 173 ff. Herring, E. P., 216

304

index

Holcombe, Arthur N., 17, 18 Hoover Commission (Report on Personnel Management of the Commission on the Organization of the Executive Branch of the Federal Government), 276 Homer, William, 200, 214 Hoxie, Robert, 108 Inland Waterways Corp., 247-249 Jandrey, A. S., 287 Johnson, Eldon, 112 Johnson, General Hugh, 121, 155 Key, V. O., 35 King, Judson, 249-250 Labor, Dept. of, 236-237 Labor-Management Cooperation, 280 ff. La Guardia, Fiorello, 82 Langer, Senator W., 212 Laski, Harold, 7, 26, 45, 54 ff., 61, 170,

260

Lefas, Alex, 52 Leroy, Maxime, 10 Levine, Louis, 2 Lindsay, A. D., 16 Lippmann, Walter, 50 Lloyd-La Follette Act, 65 Lobbying and Unionism, 193 ff. Macmahon, A. W., 49, 80, 169, 172,

260

Majority Representation, 82 ff. Mayers, Lewis, 100, 188, 265 Mayo, Elton, 5 McReynolds, W. H„ 38, 132, 213, 282 Mead-Ramspeck Act, 223 Membership Statistics, 94 ff. Meriam, Lewis, 261 Merit System, 138 ff., 182 ff. Mosher, W. E. and Kingsley, J. D., 36, 127 National Association of Letter Carriers, 97 National Civil Service Reform League, 36, 88 National Federation of Federal Employees, 12, 71 ff., 102 ff., 158, 165, 174175, 193, 198, 200, 211-212 National Federation of Post Office Clerks, 83, 98-99, 157, 200, 211 National Labor Relations Act, 3

Navy Department, 79, 225, 227, 229, 233-234 Norris-La Guardia Act, 3 O'Dwyer, William, 37, 82 Paul-Boncour, Jos., 52, 143 Perlman, Selig, 21 Personnel Classification Board, 39, 71, 115-116, 223, 275 Pfiffner, J. M., 15, 168 Political Activities, 173 ff. Postal Supervisor, 67 Powell, Thomas R., 64 President's Committee on Administrative Management, 4-6, 212-213, 266, 269-270, 274 President's Committee on Civil Service Improvement, 282 Railroad Retirement Board, 239-240 Railway Labor Act, 27 Ramspeck, Robert, 139 Retirement, 134 ff. Rhyne, C. S., 77, 86 Robson, W. Α., 142 Roethlisberger, F . J. and Dickson, W. G„ 6 Roosevelt, F. D., 84, 170, 202, 209 Roosevelt, Theodore, 195 Saint Paul, Minn., 227 ff. Saskatchewan Public Service Law, 190191 Seniority, 144-146 Sharp, W. R„ 19, 261, 283 Simons, Henry C., 22-23 Spero, Sterling, 29, 30, 45, 69, 73, 100, 170, 197 State, County and Municipal Workers of America ( C I O ) , 37, 82, 103, 123, 129, 166, 194, 241-242 Status of Public Service Unions, 63 ff., 267 ff. Steward, Luther, 71-72, 105, 108-109, 112, 116-118, 137, 139 ff., 144, 165, 198, 202, 211, 217, 279 Strikes, 164-174 Taft, Howard, 195 Tead, Ordway, 7, 11, 15, 239, 284 Tennessee Valley Authority, 79, 162, 249-257 Transport Workers Union, 82

index Union Postal Clerk, 68, 100 United Federal Workers of America ( also United Public Workers of America), 68, 95, 103, 121 ff., 142 ff., 1 5 2 153, 158-162, 166 ff., 176 fi., 198 United National Association of Post Office Clerks (UNAPOC), 70-71, 84, 98, 152, 158, 166 Walker, Harvey, 102 Waller, Fletcher, 230 War Department, 234 Watkins, F. M„ 28, 4 3 - 4 4

305

White, Leonard, 59, 70, 124, 287 Whitley Councils, 2, 8 5 - 8 6 , 151, 265, 270 Wilde, Norman, 27 Wilmerding, Lucius, 275 Wilson, Francis G., 17 Wilson, Sir Horace, 263, 281, 285 Yonkers, N. Y„ 2 4 3 - 2 4 4 Young, Edward, 207 Zander, Arnold, 103, 128, 166, 217 Ziskind, David, 8, 29, 72