This article undertakes such a review with respect to one aspect of the potential conflict between merit systems and collective bargaining- employee discipline and the appeal of discipline decisions. Protection from arbitrary or unjust discipline is a primary motivation for employee unionization. As a result, achieving protection from unjust disciplinary action becomes a fundamental goal of unions in collective bargaining. Public sector unions in the United States are particularly interested in "discipline, grievance procedures and organizational due process"....
Section IV of this article reviews the approaches of the various states that have addressed the issue, analyzing them in light of the policies underlying the two statutory schemes-collective bargaining and civil service. In some states, statutory provisions address the question and resolve the conflict. In others, the statute is silent, but courts have addressed the issue and reconciled the two statutes. These resolutions run the gamut from giving priority to the collective bargaining agreement to precluding any negotiation of the discipline issue. In many states, the issue has not been addressed directly by the legislature or the courts.
Section V argues that the approach that best accommodates the policies of merit employment and collective bargaining is one that allows the parties to negotiate alternatives to civil service procedures and standards that will prevail over civil service upon agreement of the parties to the negotiations. Collective bargaining over disciplinary decisions and appeals procedures in no way threatens the merit principle or the public interest. Indeed, such bargaining may strengthen the merit principle in significant ways. At the same time, negotiation over discipline furthers the goals of public employee bargaining legislation. It ·allows employee participation in the determination of working conditions and permits the parties to determine the important issues for negotiation and the best ways to resolve such issues in light of the particular employment relationship, thereby promoting labor peace. Section VI concludes that, in most states where the law does not currently permit such negotiation, this result can be achieved easily by either appropriately interpreting existing statutes or implementing minor statutory amendments. Legislatures contemplating enactment of collective bargaining statutes should anticipate this issue and address it directly, thereby avoiding the difficult issues of statutory interpretation that have plagued courts in states with no explicit statutory provision.
Ann C. Hodges, The Interplay of Civil Service and Collective Bargaining Law in Public Sector Employee Discipline Cases, 32 B.C. L. Rev. 95 (1990).