360 Human Resources Management for Public and Nonprofi t Organizations
Changes in the Legal Framework
In 1959, Wisconsin enacted the fi rst state statute permitting municipal
employees the right to form, join, and be represented by labor organiza-
tions. Three years later, President Kennedy issued Executive Order 10988,
which granted federal employees the right to join and form unions and
to bargain collectively. The order established a framework for collective
bargaining and encouraged the expansion of collective bargaining rights
to state and local government employees. Kearney and Carnevale (2001)
outlined the demise of the sovereignty doctrine: beginning in 1976, the
federal courts have ruled that the First Amendment ’ s freedom of associa-
tion prohibits states from interfering with public sector employees ’ right
to join and form unions ( Atkins v. City of Char1otte , 1969; Keyeshian v. Board
of Regents , 1967; Letter Carriers v. Blount , 1969; McLaughlin v. Tilendis , 1968).
These decisions invalidated the sovereignty doctrine, contributing to the
growth of unions.
The Supreme Court held in Smith v. Arkansas State Highway Employees,
Local 1315 (1979), however, that nothing in the Constitution requires public
employers to either recognize or collectively bargain with public employee
unions. Employees can form and join unions without the benefi t of pro-
tective legislation, but public employers are not compelled to recognize or
bargain with unions (Dilts, 1993). Public employers are required to bargain
only under laws that mandate bargaining. The duty to bargain can be
imposed only by statute.
Collective bargaining does occur, however, in states that do not provide
statutory protection and procedures. For example, in Arizona, local
governments have passed protective ordinances to permit de facto bar-
gaining. Indiana permits de facto bargaining, and in Louisiana and West
Virginia, state courts have in effect permitted collective bargaining in
limited applications (Dilts, Boyda, & Scherr, 1993). There have also been a
number of recent changes. A 2007 Missouri Supreme Court decision,
Independence - National Education Association v. Independence School District (2007),
held that Missouri public employees have the right to bargain collectively.
Missouri was previously a “ meet and confer ” state.
Governor Bill Ritter of Colorado signed an executive order on
November 2, 2007, authorizing partnerships for all state government
employees. Executive Order D 028 07 allows employees to choose an orga-
nization to represent them in discussions with the state regarding a vari-
ety of workplace issues. These certifi ed employee organizations (they are
not called unions ) are able to engage managers in discussions about ways