PERA is a legal mandate placed on local governments that they bargain collectively with unions that are recognized as the representatives of workers in a given bargaining unit. This legal obligation is entirely a creation of PERA itself — neither the state nor federal constitutions establish any requirement that local governments bargain collectively. This mandate presents numerous problems for local government officials and taxpayers. Absent the bargaining mandate, the problem of the “union veto” would be much less serious, as local officials would be free to break off negotiations as they veer into policy. The mandate also has the effect of encouraging unions to make extreme demands, as local officials may be pressured by union political influence and the risk of an unfair labor practice finding to continue with negotiations at a time when talks are likely to be fruitless.

In just about any other context where negotiations take place, either party is free to suspend or break off talks permanently. Even in private-sector labor relations under the National Labor Relations Act, lockouts and strikes are allowed when a bargaining impasse is reached. Once it becomes clear that further negotiation is likely to be fruitless, the rational action is usually to walk away. True bargaining is based on a “win-win or no deal” mindset, in which neither side is expected to agree to terms that do not advance its own interests. PERA is unique in that it presumes that bargaining will ultimately result in an agreement. In the case of police and fire bargaining, state law even provides that an arbitrator write an agreement if elected officials and unions are unable to reach one on their own.

Given the volume and severity of the problems we have identified with PERA, the Legislature might be better advised to scrap the law altogether. The question then would be what to put in its place.

One possibility would be to eliminate the bargaining mandate and instead allow collective bargaining to continue at the discretion of local governments. Local officials would be free to use the bargaining process to ensure that government employees have input on their wages and working conditions, but would not be required to do so.

Harmonious relations between government and its workforce, and the cultivation of a workforce that has a high level of morale, are important goals, and it is conceivable that bargaining could serve to advance those goals. But the interests of the government workforce are not paramount; when employee interests conflict with those of the public, the public interest must ultimately trump. In allowing local officials the discretion to engage in collective bargaining, the Legislature should create checks and balances to prevent the sorts of abuses we have seen under the current PERA. Specifically, there are three limitations that the Legislature can and should place on collective bargaining in the public sector if legislators end PERA’s requirement that local governments engage in collective bargaining whenever a local public employees union is certified.