Monday, March 14, 2011

Collective bargaining run amok?

The New York Times editorial board lent strong support to the Wisconsin public employees' unions in their struggle to prevent Governor Scott Walker from stripping them of their collective bargaining rights.  The Times editorial board's opinions, needless to say, do not control news coverage at the Times. So it is that a massive Times expose of widespread, systemic Catholic Church-level patient abuse (physical, sexual and emotional) at New York State's group homes for the developmentally disabled laid much of the blame squarely on the state's Civil Service Employees Association -- and/or the work rules under which the union operates:
The Times reviewed 399 disciplinary cases involving 233 state workers who were accused of one of seven serious offenses, including physical abuse and neglect, since 2008. In each of the cases examined, the agency had substantiated the charges, and the worker had been previously disciplined at least once.

In 25 percent of the cases involving physical, sexual or psychological abuse, the state employees were transferred to other homes.

The state initiated termination proceedings in 129 of the cases reviewed but succeeded in just 30 of them, in large part because the workers’ union, the Civil Service Employees Association, aggressively resisted firings in almost every case. A few employees resigned, even though the state sought only suspensions.

In the remainder of the cases, employees accused of abuse — whether beating the disabled, using racial slurs or neglecting their care — either were suspended, were fined or had their vacation time reduced.
The union offered a defense of their defense of these employees that sounds reasonable at first blush:

The Civil Service Employees Association, one of the most powerful unions in Albany, makes no apologies for its vigorous defense of the group-home workers it represents.

But the union’s approach — contesting just about every charge leveled at a worker — has contributed to a system in which firings of even the most abusive employees are rare. Most disciplinary measures represent a compromise between management and the union, often reached at the urging of an arbitrator chosen by both sides.

Ross D. Hanna, the director of contract administration for the association, likened the union’s role to that of public defenders, saying it was required by state law to represent its members.

“If they’re brought up on charges, we have an absolute duty to represent them,” Mr. Hanna said. “That’s our job.”

He added: “When we know the person is guilty, we try to convince the person to get out of it by resigning. But if the person decides to go forward, we have to do our best job.”

That public defender model is a prescription for dysfunction. Employees need to be protected from arbitrary judgments and grudges on the part of their supervisors. But the protection can't amount to a litigation-level adversarial proceeding from the get-go.  A union that reflexively provides, or is compelled to provide, lawyer-level advocacy for an employee accused -- often serially -- of physical or sexual abuse of mentally and physically disabled charges - and let that employee determine the extent of defense -- is a union run amok (perhaps forced to run amok under the rules by which it operates).

Surely work rules could be implemented under which the union would enforce some lesser standard of due process, and accept the results of an internal investigation that follows prescribed procedure, and accept termination for an employee found to have engaged in horrendously damaging abuse.  The Times story makes me think that it may be easier for the state to take a child out of the custody of parents accused of abuse than it is to protect wards of the state from abusive state employees.

The current political battles over the terms under which public employees work should us all aware that there are no simple prescriptions for, one the one hand, protecting employees from discrimination, persecution and arbitrary exercise of authority while, on the other, empowering managers to hold employees accountable and terminate the incompetent or abusive. The balance can easily swing too far in either direction.  Public demonization campaigns by mostly GOP officials should not be allowed strip unions of their power to marshal their potential membership and bargain collectively.  But unions, now under the spotlight, are going to have to show flexibility, and recognize that there are legitimate issues beyond compensation that affect the performance of the public services they're paid by taxpayers to deliver.

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