Collective Bargaining in the Public Sector: Why and How

Collective bargaining in the public sector has become a relevant topic over the last few months as the workplace is changing rapidly due to COVID-19 and the social justice movement. We thought it best to start with the basics so that as we continue to report on this topic, we all have an elemental understanding.

People often ask if collective bargaining isn’t required in the public sector since this sector is not under the jurisdiction of the National Labor Relations Act, why is it done, and how does it work?

First, employers do it because there is either an advantage in or a requirement to engage in collective bargaining. It may be because the citizens they represent want it or wanted it at some point in time, and there is no clear indication that citizens feel differently. It may be because a clear system is long-established, and it works from an administrative point of view. And, it may be because a state or local law requires that they bargain.

Public sector bargaining can be very different than what happens in the private sector, or it can mirror what is required under the National Labor Relations Act. That will depend on either the established practice or the legal requirements. It is not uncommon for public sector employees to be able to bargain about hours and working conditions, but have no real bargaining when it comes to wages.

In Arizona, public safety employees may form unions, and the Department of Public Safety must bargain with them if elected by the majority of department employees. Wages cannot be in the scope of bargaining. Public safety employees are prohibited from engaging in strikes, sickouts, work slowdowns, or any other action that would disrupt the delivery of department services.

Colorado just passed a law in 2020, clarifying state employees’ ability to bargain. Previously, there was only an executive order. Bargaining about wages is allowed. If voted on by a majority of employees, firefighters at the local level have a statutory right to bargain, but they must first have the citizens agree to it.

In Utah, there is no statute requiring any public sector entity to recognize a union. And, finally, in Wyoming, there has been a law for several years that specifically allows firefighters to bargain if they vote to form a union.

None of the states listed above prohibit bargaining, and in fact, bargaining in the public sector is at a higher percentage than in the private sector. Teachers, firefighters, and police officers are the three professions where bargaining is the most common, and there are many other professions also.

Collective bargaining agreements may start to look very different as health and safety issues in light of COVID-19 coupled with budget shortfalls begin to become an issue. The bargaining for police unions may change significantly, especially in states and cities that have passed police reform measures.