Compulsory Arbitration in the Public Sector: Constitutionality and Enforcement Issues

• Author: K. A. Houseman
• Date: 01 May 1973
• Published date: 01 May 1973
• DOI: 10.1177/009102607300200309
• Subject Matter: Article

COMPULSORY

ARBITRATION

IN

THE

PUBLIC

SECTOR:

CONSTITUTIONALITY

AND

ENFORCEMENT

ISSUES

K.A.

HOUSEMAN

"The labor relations tool of compulsory arbitration has been questioned on

legal grounds, as well as on whether

it

is a viable alternative to the right to

strike."

Legislation which would subject labor

contract negotiation disputes to final and

binding arbitration in the public sector has

been proposed as an answer to the problem

of public employee strikes. Ideally, the

utilization of the concept of compulsory ar-

bitration would outlaw the strike and lock-

out and provide another basis for assuring

abalance of power at the public bargaining

table.

This interesting

but

essentially unex-

plored labor relations tool has been chal-

lenged on legal grounds. In addition,

knowledgeable labor relations people have

questioned whether it is a viable alterna-

tive to the right to strike, regardless of

legal considerations.

This paper will focus only upon the legal

questions involved, and will leave to others

an analysis as to whether or not final and

binding arbitration can be designed to help

achieve contract equity. First, we shall

examine constitutionality issues and sec-

ondly, we shall explore the matter of

whether or not arbitration decisions can be

enforced.

The

Constitutionality

Issues

The

snail's pace growth of compulsory

arbitration in the public sector reflects the

reluctance of American courts to overrule

legal precedents concerning the delegation

of public authority. The main constitutional

hurdle has involved the question of wheth-

er the elected representatives of the people

could delegate to others the exercise of au-

thority conferred upon them by law.

As far back as the late 1800's, cases arose

concerning the problem of compulsory arbi-

tration in the public sector. The right of

public officials to submit discretionary mat-

ters to arbitration was the legal question in

Mann v. Richardson which was decided in

1873.1The Circuit Court of Illinois ruled

that

adispute between the commissioner of

highways and a homeowner over the price

of the latter's home could not go to arbi-

tration and thus bind the town. In discuss-

ing the status of the public official the court

said, "Where the law imposes a personal

duty upon an officer in relation to a matter

of public interest, he cannot delegate it to

others,

and

therefore, such officer cannot

submit such matters to arbitration."

The

1940's saw two decisions handed

down which illustrated the prevailing feel-

ing on compulsory arbitration in the public

sector. In

Mugford

et. al v. Mayor

and

City

of

Baltimore' the taxpayers sued to en-

• K. A. Housman is vice president for per-

sonnel administration, National Railroad Pas-

senger Corp. (AMTRAK). Prior to his govern-

ment service, he had extensive experience in

labor relations with the Union Carbide Corp.

which he had ioined on graduation, with hon-

ors in labor economics, from Harvard Univer-

sity.

194

PUBLIC

PERSONNEL

MANAGEMENT,

MAY-JUNE

1973