The private sector-based, bilateral negotiations model is inadequate in addressing the varied complexities of public sector bargaining in that

it fails to properly account for the pluralistic character of the many publics within state and local government and its agencies. In the public sector, the public plays the dual role of both employer and customer; the taxpayer, through taxes, pays the wages and benefits of public sector employees. At the same time, though, the taxpayer is also the consumer. He or she is the end-user of the services that public sector employees provide.1 Further to the point, public employee bargaining by its very nature is not a private decision but a governmental decision; it is, to quote one labor scholar, not so much a contract as a legislative act, and therefore, collective bargaining is part of a governmental process affecting the delivery of services to its citizenry as much as it is the shaping of public policy. The weakness of bilateral negotiations, according to John Pisapia, Trilateral Practices and the Public Sector Bargaining Model, is the limited access to bargaining by groups having legitimate interests in bargaining outcomes. Given the natural proclivity toward an automatic imbalance of power within the public sector, particularly related to collective bargaining and the publics limited avenues for expression of concern and mutual interest, many labor professionals advocate in one form or another trilateral bargaining. A large majority of states, in responding to its citizens demands for transparency, access, and a right to know, have mandated a public role in collective bargaining through sunshine laws. While the extent of public participation and/or openness in collective bargaining practices varies from state to state, this paper contends that full and transparent collective bargaining in open public meetings and complete access to relevant information, with some minor exemptions, is the best policy; in that, by so doing it: 1) enhances the publics understanding of governance, its processes and responsibilities and encourages civic responsibility toward influencing the outcome of collective community interests; 2) increases government responsiveness towards public needs/interests; 3) helps moderate excessive union demands and control management tendencies toward easy capitulation due to increased exposure within the public venue and in the media; 4) mitigates the use of end-runs by unions and management in resolving contractual and policy issues; 5) deters misappropriation of funds and reduces conflicts of interest. It does not infringe upon the parties abilities (in any meaningful way) to effectively negotiate and conclude a

contract or otherwise prohibit the union and/or management from representing its interests with equitability and fairness. The recommended level of openness, however, would stop just short of public participation and/or access: 1) as appointed representatives on a negotiating team (except where the public has a vital, commonly-held interest and demonstrated, intimate participation in the provided services i.e. education and public safety); 2) in executive functions which pertain to the daily management of staff/operations (i.e. the screen-and-selection process; disciplinary and grievance actions for non-appointed/non-elected staff excluding public safety officials and educators); and 3) to bargaining strategy sessions, sidebars, caucuses, and bargaining notes. The disadvantages of bargaining in the sunshine such as posturing and politicizing of issues through the use of media (i.e. bargaining through the press); the delaying, stalling or breaking down of the negotiations process; and/or the promotion of rancorous conflict and stalemates are in reality, far outweighed to the point of negligibility by the benefits of openness in collective bargaining in the public sector. Collective bargaining is not merely the exchanging of proposals and counter-proposals; it is the equal and often heated exchange of principles, long-held philosophies and demands among groups with competing interests, priorities and values. Sunshing initial and subsequent proposals/counterproposals alone is not sufficient; the negotiations process brings to the surface existing inequalities and underlying nuanced issues frequently buried in the rhetoric of proposals. Providing open access to the very real and sometimes gritty machinations of the collective bargaining process affords the public an opportunity to better gauge the socio-political dynamics in real time, assess in a more meaningful way the relationship of the players, and parse the issues from varying vantage points and a multitude of concerns (outside their own). The resultant activity is such the general public walks away with a truer appreciation and understanding of government, and more importantly, a greater motivation and responsibility toward enacting change. Increased public awareness, understanding and measured activity, in turn, place additional and opposite pressure on the public sector (government) to be more responsive to the publics interests and concerns thereby more equally balancing the scale of competing and/or converging needs. Conducting collective bargaining and negotiating sessions in open meetings has the effect thanks in large part to media attention and subsequently applied public pressure on both the unions and

management officials -- of scaling down excessive union demands and pressuring management into making some hard decisions rather than merely capitulating to union-led demands. Generally speaking, government services are labor intensive and monopolistic, in nature; governments cannot simply shut down or relocate and although, in some cases such as education, alternatives (i.e. private chartered schools) may exist, alternative services are not immediately available. These characteristics, so intrinsic to the public sector, help feed union greed and their propensity toward excessive demands; if unionnegotiated compensation increases raise the cost of providing public services, the taxpayer must pay higher taxes. They cannot buy lower cost public services from a competing jurisdiction. Unlike in the private sector, where higher union pay necessarily raises costs and costs jobs, public sector unions can win higher pay and more employment if government spending increases. In a recent example, a teachers union demanded a 10 percent wage increase; it was only after its demands had been made public that the union reduced its initial wage proposal to 6 percent. Unions may also have advocates on both sides of the table elected officials who may owe their own positions to union support. Additionally, public sector managers have very little demonstrated financial incentives to minimize labor costs because they do not benefit from residual profits, as privately-held corporations do; in fact, according to Commonwealth Foundation for Public Policy Alternatives, public sector administrators have incentives to see their subordinate employees paid as highly as possible because their own and their immediate staffs salaries tend to rise in tandem with those of their unionized employees. Openness demands transparency; transparency often leads to action and a righting or re-alignment of agendas. In this way, public participation and medias involvement act as catalysts for reflection and change. Political motivations are relevant to contract negotiations; states grant public sector unions the right to bargain collectively, and because of this, the state legislature ultimately decides final contract terms. Therefore, according to Richard Kearney (Labor Relations in the Public Sector, 4th edition), both labor and management engage not only with one another but also with whatever political entities and individuals can help them realize their objectives. Given this heightened politicization within the process and among the participatory groups, end-runs by unions and management are common. However, conducting negotiations in open meetings where the actors and their actions are subject to

the scrutiny and censure of public opinion -- stymies this tendency and causes the respective parties to sit down and bargain in good faith, taking the full weight of the public interest into consideration. Hundreds of state, county and local employee contracts and an approximated half-a-billion dollars per biennium per state are negotiated by government entities and public employee unions. In fact, several sources estimate that 70-85% of city expenditures go towards labor costs. With so much money and power at stake, the environment is rife with the potential for misdeeds, misappropriations and conflicts of interest benefiting one or more parties. In this sense, opening up the collective bargaining process to the public makes sense; the community can and does, when given the opportunity, act as an unofficial regulatory commission of sorts by providing oversight and compliance in the areas of policy development, implementation and allocation of resources financial and otherwise by means of bearing its influence through the court of public opinion, and ultimately exercised by its electoral (voting) power. A resulting lack of public oversight on public-sector labor issues inevitably leads to more costly and less efficient government; a recent casualty resulting from the lack of public oversight and less permissive sunshine laws, is the village of Johnson City located just outside Binghamton, in upstate New York. As reported by Lise Bang-Jensen for Empire Center for New York State Policy:
Johnson City was once a thriving hub of the shoe manufacturing industry. Today, the manufacturing jobs have left and the local economy is struggling, but the village of 15,000 people retains an extensive municipal government infrastructure including a 41-member professional fire department. As of two years ago, the base salary for a starting firefighter was $44,722it was only after the village board approved a new contract with the firefighters union, that village residents discovered it would raise the firefighters already generous salaries by more than 33 percent over five years. Angry citizens packed the next board meeting to demand an explanation. But there was a bigger financial shock to come. Village officials disclosed that they had erred when calculating the raises. The five-year increase would actually come to just over 41 percent. A trustee who opposed the contract revealed (that the village) faces a major shortfall of $750,000 and it doesnt have the money to pay firefighters salaries (after January 29, 2009).

Opponents to bargaining in the sunshine carp that to do so will promote rancorous conflict and stalemates, resulting in the destruction of otherwise productive working relationships; they also postulate that the presence of the media will lead to posturing and bargaining through the press instead of constructive bargaining over the issues. The rancorous conflict assertion, while lending itself to some relative plausibility, is at the very least an over-dramatization of the possibilities. Negotiations, in general, are infamously plagued by posturing, acerbic conflict and breakdowns in communication. Public exposure, rather, has aided many negotiators in forcing a recalcitrant party into the embarrassing position

of defending its (otherwise insupportable) policies, philosophies and demands many of which have not changed for significant periods of time. As a result (of public shame), the party is then forced to reconcile its long-held biases, opinions and demands and institute swift and immediate change (through the give-and-take of collective bargaining). Representatives of both labor and management have feared that by opening the process to the public view their position with their respective constituents would be undermined to the extent that bargaining tactics and ultimate compromise could be misunderstood and misinterpreted by the inexperienced observer. 2 Under the fishbowl of public scrutiny and in the media sunshine, representatives must, of course, be more mindful in stating their respective positions, taking care to positively cultivate their relationship with their constituents, the public and the media (which acts as the voice of the public at large). This is not a bad thing; rather, the media spotlight requires the parties to take accountability and ownership in a very real and pragmatic way for what is said and the manner in which sentiments are relayed. Calculated and well-timed communications can serve to progress, rather than inhibit, collective bargaining. In fact, used correctly, the media can be a valued ally in helping the parties reach mutually sustainable goals and objectives. Lastly, some opponents believe that complete openness of the collective bargaining process to the public will fundamentally and irreparably harm the parties relationship. Disclosure of documents produced during negotiations and/or the opening up of the collective bargaining process to the public does not harm the integrity of the collective bargaining process nor does it impede the rank-and-file participation in negotiations and it most certainly does not prohibit the right of employees to organize. As evidenced throughout this paper and giving due credence to the oppositional arguments against bargaining in the sunshine, the benefits of relatively complete openness to the public in public sector bargaining far outweigh the negligible inconveniences and minor disruptions such transparency might cause. Everyone is a winner: the public is given an opportunity to participate in a very real way that has the potential to impact policy development, decision-making and fiscal expenditures for the services it receives as a consumer and pays for as an employer-taxpayer; the unions and the government have an opportunity to do the right thing and gain credibility and increased confidence with their constituency through thoughtful, reasoned and strategic negotiations.

APPENDIX 1. 2.
Clyde W. Summers, Public Employee Bargaining: A Political Perspective, 83 Yale Law Journal, 266 (1974). Donald D. Slesnick, General Labor Counsel, Florida Police Benevolent Association, Inc., What is the Effect of a Sunshine Law on Public Sector Bargaining: A Union Perspective, HeinOnline 5 J.L. & Educ. 487 (1976).