1. Stand Up: The Free Speech Rights of Public Employees
United Steelworkers Public Employees Conference
Pittsburgh, PA
July 13, 2015
USW Legal Department

2. COLLECTIVE BARGAINING RIGHTS IN THE PUBLIC SECTOR
PRIVATE SECTOR
1959: Wisconsin adopts the first state collective bargaining statute
1962: Executive Order established a process for union recognition and extended a very limited form of collective bargaining to federal employees in the Executive Branch
1935: National Labor Relations (Wagner) Act enacted

3. Public Sector Employees’ Rights under International Law
ILO Convention 87 (1948):
Freedom of Association and Protection of the Right to Organize
ILO Convention 98 (1949):
Right to Organize and Bargain Collectively.
PUBLIC SECTOR WORKERS ARE EXPLICITLY INCLUDED.

4. Public Sector Bargaining at the State and Local Level
Twenty-five states and the District of Columbia have comprehensive laws
Sixteen states (and the federal government) have statutes that protect collective bargaining or meet and confer rights for:
only specific occupations (police, fire fighters, teachers or nurses)
or classes (public safety or education)
only a specific level of government (municipalities)
Nine states have no legislation protecting either collective bargaining or meet or confer rights for any employees
Note: Employees in these states retain the right of freedom of association and may form or join a Union.

5. Provided by State Statute, Civil Service Law
State and Local Collective Bargaining Arrangements
Provided by State Statute, Civil Service Law
or Executive Order
State
Employee Coverage
Bargaining Rights
Independent Admin. Agency
Scope of Bargaining
Impasse Procedure
Alabama
Firefighters
Meet & Confer No
Wages & conditions of employment
None
Alaska
All (unless local government opts out)
Collective Bargaining
Alaska Labor Relations Agency
Wages, hours & conditions of employment
Mediation, Arbitration
Arizona
Arkansas
California
State Civil Service & Dept. Of Education Teachers
Collective Bargaining (law states meet & confer)
PERB
Mediation
Local
PERB or local agency
School District & Community College Employees
Mediation, Factfinding
Employees of UC, Hastings College of Law, and California State University & Colleges
Colorado
Connecticut
State Board of Labor Relations
SBLR
Teachers
State Board of Education; SBLR
Delaware
State & Local (cities of under 100 employees must opt in to be covered)
Wages, hours & conditions of employment: local government
Conditions of employment: state employees
Conditions of employment
Police Officers & Firefighters
District of Columbia
All
Florida
PERC
Mediation, Factfinding (local governments only)
Georgia
(pop. 20,000+)
Meet & confer
Factfinding
Atlanta RTA
Hawaii
Hawaii Labor Relations Board
Mediation, Factfinding, Arbitration
Idaho
Illinois
State & Local (employing 35 or more)
Illinois (Local) Labor Relations Boards
Education Employees
Illinois Educational LRB
Indiana
Indiana Ed. Emp. Relations Board
Iowa
Kansas
State and local government that opt in
State: Hours & conditions of emp. All others: Wages, hours & conditions of emp.
Kentucky
(pop. 300,000 if city opts in)
Kentucky State Labor Relations Board
Police (pop. 300,000 with merit system)
Louisiana
Maine
Maine Labor Relations Board
Local & Teachers
MLRB
University Employees
Judicial Employees
Maryland
State Employees
State Labor Relations Board (not independent)
Higher Education
Higher Ed. Labor Relations Board
Non-certificated School Employees
Park & Planning Commission Police
Massachusetts
Labor Relations Commission
Michigan
State by civil service regulations
ERB (Civil Service Commission) (Not Independent)
Wages, hours & conditions of employment (exc. merit)
Local & university system
Michigan Employment Relations Comm.
Minnesota
Bureau of Mediation Services
Mississippi
Missouri
All (except law enforcement & teachers)
Board of Mediation
Montana
All (except nurses)
Board of Personnel Appeals
Nurses
Nebraska
Local and county employees (except teachers)
Commission of Industrial Rel.
Mediation, Factfinding (binding)
Nevada
Local & County employees
Employee –Management Relations Board
New Hampshire
PELRB
New Jersey
Police & Firefighters
New Mexico
Mediation,
Arbitration
New York
PERB or local board
North Carolina
North Dakota
Teachers & School Administrators
Education Fact Finding Commission (Not Independent)
Ohio
State Employment Relations Board
Oklahoma
Teachers & Non-certified school employees
Conditions of employment
Arbitration (not binding)
Oregon
Employment Relations Board
Pennsylvania
Pa. Labor Relations Board
Rhode Island
State Labor Relations Board
Factfinding, Arbitration
SLRB
Police
South Carolina
South Dakota
South Dakota Department of Labor (Not Independent)
State: Hours & conditions of emp. All others: Wages, hours & conditions of emp.
Conciliation
Tennessee
Texas
Police & Firefighters if approved by voters
Utah
Vermont
Vermont Labor Relations Board
VLRB
Judiciary
Virginia
Washington
State and State universities
Local & state police (except for wages)
Academic Employees (community colleges)
West Virginia
Wisconsin
Wisconsin Employment Relations Comm.
WERC
Wyoming

6. Public Sector Collective Bargaining
Resolving Deadlock at the Bargaining Table
Mediation
Impasse Procedures
Arbitration

7. Your First Amendment Rights
United Public Workers v. Mitchell, 330 U.S. 75 (1947)
The Supreme Court firmly declared that public employers were free to attach extensive conditions to an employee’s employment that limited or perhaps even forbid the exercise of rights enjoyed by the general citizenry.
Justice Holmes famously said:
“A policeman may have a constitutional right to talk politics, but he has no constitutional right to be a policeman”

8. Your First Amendment Rights
Keyishian v. Board of Regents, 385 U.S. 589, (1967).
“the theory that public employment which may be denied altogether may be subjected to any conditions, regardless of how unreasonable has been firmly rejected.”

9. Your First Amendment Rights
Pickering v. Board of Education, 391 U.S. 563, 568 (1968).
Teachers could not be required to relinquish the First Amendment rights they “would otherwise enjoy as citizens” to comment on matters of public interest in connection with the public schools in which they were employed.

10. If the Speech is on a Matter of Public Concern, the Court must balance:
EMPLOYEE RIGHTS
The interests of the employee to engage in First Amendment expression.
EMPLOYER RIGHTS - The interests of the public employer in the efficient performance of its public responsibilities.

11. Garcetti v. Ceballos
Speech made by a public employee pursuant to his or her official duties must be made “as a citizen” on “a matter of public concern”
BUT: under Garcetti, there is no protection from retaliation in employment based upon expression that implicates matters of public concern, even with no disruption to the employer’s efficiency, if the speech is made pursuant to the employee’s official job duties.

12. Green v. Board of County Commissioners
Drug lab technician’s complaints about the lack of a confirmation testing procedure did not receive First Amendment protection.

13. Battle v. Board of Regents
Financial aid worker’s revelation of improprieties by supervisor did not constitute protected speech.

14. Spiegla v. Hull
Prison guard who raised issue of violation of search policy in staff meeting spoke as an employee pursuant to her official duties and not as a citizen on a matter of public concern.

15. If You Seek to Engage in First Amendment Protected Speech or Freedom of Association:
Make it Public.
Act as a Group.
Emphasize Due Process.