Any proposal to ban BART workers from striking is not a simple matter

The history of government employee strikes in California is complex and lengthy. Literal scores of BART union leaders, legal experts, letter writers to newspapers and editorialists have provided us with a virtual slumgullion of opinions, criticisms and assured solutions to the vexing strike by BART employees last month. After 15 years of service on the San Francisco Board of Supervisors, supplemented by 12 years in the state Senate, last month I heard and read no new revelations, except perhaps the dispute over BART’s 427 pages of so-called work rules, which reminds me of the number of pages in an Act of Congress. (If “keep it simple” means common-sense understanding of documents, hundreds of pages must mean the opposite.)

Most Californians don’t know or forget the history of the law governing government employee strikes amid conflicting rhetoric and a singular effort by an Assembly candidate in Contra Costa County to create a state law barring government transit workers from striking, just as California statutes prohibit police officers and firefighters from doing so.

Decades of wrangling

Historically, American and California common law and higher court decisions barred public employees from striking. That includes a resounding statement by President Franklin D. Roosevelt in a 1937 letter to the Federation of Federal Employees. Roosevelt declared: “Since their own services have to do with the functioning of the Government, a strike of government employees manifests nothing less than an intent on their part to prevent or obstruct the operations of Government until their demands are satisfied. Such action, looking toward the paralysis of Government by those who have sworn to support it, is unthinkable and intolerable. It is, therefore, with a feeling of gratification that I have noted in the constitution of the National Federation of Federal Employees the provision that ‘under no circumstances shall this Federation engage in or support strikes against the United States Government.’”

History also included a strong California Supreme Court decision in 1949. The essence of that idea characterizes President Ronald Reagan in 1982, who fired Federal Aviation Administration air traffic controllers who had decided to strike. Government employees, unlike their private-sector counterparts, possess statutory civil-service protections regarding discharge and other employment conditions. Federal and state civil-service employees are entitled to an administrative hearing before an independent hearing officer if confronted with notice of suspension or discharge, for example. Civil-service rules control state, city and county powers regarding their public employees.

In private industry, however, employment conditions are subject to collective bargaining if workers are union members. No statutory civil-service protection exists for either unionized employees or nonunionized workers in private-sector positions. Even the California Supreme Court noted in 1985 that because legislative bodies bear responsibility for governmental employee decision-making, such as pension and health care benefits, the right to strike would afford government employees “excessive bargaining leverage resulting in a distortion of the public process and an improper delegation of legislative authority.”

Public employees can and do, collectively through labor unions or individually, donate to city, county and transit district governing board members, plus legislators’ political campaigns. Those local, regional and state lawmakers can (and do) grant their government employees pay and other benefits. That’s not true with private industry; managers, administrators and CEOs don’t become managers, administrators and CEOs based upon employee votes or money donations.

In 1985, a divided California Supreme Court, however, in a case involving Los Angeles Sanitation District employees, rewrote and judicially created a new California law under the leadership of the late Chief Justice Rose Bird. It ruled government employees, except for public safety workers providing “essential public services,” can strike. (The California Legislature had previously banned firefighter strikes.) In 1986, Bird and two other California Supreme Court justices were recalled from office by voters, chiefly because of their reversal of death penalty jury verdicts.

Thereafter, in 1989, the California Supreme Court held illegal a strike by police officers because public safety was threatened. The Legislature can surely enact a law prohibiting a strike by BART or any other public agency employees. Based upon Bay Area legislators’ responses to San Francisco Chronicle inquiries, it doesn’t appear that such a law is likely next year or that Gov. Jerry Brown will call a special session for that purpose.

The arbitration issue

There is one other relevant shibboleth, the simplistic notion of allowing a nonelected person to decide disputes between BART and its employees, or any other public entity and its workers, meaning compulsory arbitration. Transferring responsibility to a “neutral” arbitrator was used by Vallejo years ago for its firefighters. Vallejo ultimately filed for bankruptcy based upon that and other mistakes.

Using a neutral mediator, as BART did for several months to secure agreement, constitutes a justifiable policy, but permitting an unelected arbitrator to render a decision that binds taxpayers and governmental employees represents abandonment of responsibility. An arbitrator doesn’t answer to taxpayers or public employees unless perhaps desiring future selection as an arbitrator. It’s a superficial way for elected officials to evade accountability. Historically an anathema to private-sector unions, binding arbitration tends to appeal to public employee unions for that very reason. It’s a facile but undesirable answer to the results of judicial law-making. Let your legislative representatives know your view.

Retired San Mateo County Superior Court Judge Quentin L. Kopp served on the San Francisco Board of Supervisors from 1972 until 1986 and in the California Senate from 1986 until 1998.

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