Harry H. Wellington

The Limits of Collective Bargaining in Public Employment

Good lawyers are good critics. The nature of their discipline makes this skill necessary, and the content of their work brings it inevitably to bear upon doctrines and concepts laboriously constructed by their predecessors. In approaching questions involving collective bargaining and public employment, union lawyers and academic commentators have for some years been criticizing the concept of the sovereignty of the public employer, and its offspring, the doctrine of the illegal delegation of power. These two lawyer-made constructs once had imposed formidable obstacles to collective bargaining in the public sector

Common Law Rules and Constitutional Double Standards: Some Notes on Adjudication

* These notes arc dedicated to the memory of Henry M. Hart, Jr. Readers who know his and Albert M. Sackss unpublished coursebook, Tie LECAL PROCELs: BASIC PROBLEMS IN TlE MAKING AND APPLICATION OF LAW (tent. cd. 1958), will recognize that many of the cases I use as examples in Part I figure prominently in that work. And while my point of view is indeed different from what I take to be the perspectives presented in The Legal Process, it is a point of view that has evolved trom my having taught from their book. f Edward J. Phelps Professor of Law, Yale University.

The Constitution, the Labor Union, and “Governmental Action”

LEE Oliphant could not join the Brotherhood of Locomotive Firemen and Enginemen. Yet under the Railway Labor Act 1 this union represented him in negotiations with his employer. The Brotherhood took to membership white locomotive-firemen; by constitutional provision it excluded all others.2 Oliphant was by occupation a locomotive-fireman on the railroad; by race, he was a Negro. Undeterred by the shibboleth that the law cannot compel the spirit of brotherhood, Oliphant asked a federal district court to order his admission into the union. He argued that the due process clause of the fifth amendment to the United States Constitution requires no less. This should cause raised eyebrows for one important reason. The fifth amendment is a limitation only upon the actions of the federal government. 3 Certainly the actions of a labor union are not ordinarily considered those of the government in Washington. 4 Ostensibly private actions, however, may occasionally have a sufficient nexus with governmental action to justify use of the Constitution as an instrument of control. If Oliphant could show such a nexus, it is absolutely clear that his suit would succeed. 5 Oliphant failed to make such a showing.6 Yet the facts of his case may be susceptible to an anal-

Revisiting The People and the Court

Charles Lund Black at 70 has earned his reputation: He is unquestionably among a handful whose scholarship occupies prominence in the li? brary of the laws queen subject. During the past three decades, there have been few constitutional lawyers who have written as provocatively?and none as poetically?as Charles. To attend to his writing is to see public law afresh. No one can read him, for example, on the death penalty,1 impeachment,2 segregation8 or state action4 without gaining new perspectives on our political morality. And, after a few hours with Struc? ture and Relationship in Constitutional Law,5 one is bound to under? stand better the essence of our system of government. Yet, it is my impression that Charless book on judicial review (the queen topic of the queen subject) is sometimes cited primarily because it was written by an important scholar, with little reference to, or under? standing of, its central insights. The books teaching, about the well estab? lished practice of subjecting governmental action to constitutional examination in the courts, often is neglected. I have just discovered that this is a terrible oversight. The People and the Courf would be an important book no matter what its pedigree?the artistic worth of The Man With the Golden Helmet does not depend on its attribution to Rembrandt. Still, it is true that no one but Charles Black could have written his book on judicial review.

The Unions and the Cities.

These two interesting and provocative books supplement each other in exploring the growth and effect of collective bargaining in local government. The Wellington-Winter study is an assessment of the background theory and models of collective bargaining; the Stanley-Cooper study (which is the result of field studies of nine teen local governments) summarizes the impact of the rise of or ganized labor relations on the local government structure. From different vantage points the two volumes complement each other. The Wellington-Winter book explores the economic, politi cal and legal dynamics of labor relations, collective bargaining and the ultimate strike weapon at the local government level. The Stanley-Cooper research collates the specific effects of this bargain ing process: where and how the municipal budget has increased; the impact upon civil service and related recruitment, promotion and dismissal policies; who bargains for the municipality and why; and other specific examples of how the nineteen selected municipal ities have met the challenges of collective bargaining. The nineteen cities are in fourteen states ranging from New York City, whose labor negotiations have received nationwide coverage, to Bingham ton, New York, with a population of 76,000.