미국 공공부문 근로자의 근로삼권 보장 법리와 대안적 분쟁해결(ADR) 절차

Abstract

While the U.S. Constitution does not specify the public employees the right to unionize, public employees' right to unionize is protected under the First Amendment of the U.S. Constitution. Right to unionize is a Constitutional right derived from the freedom of association, and employees in both the public and private sectors need not be treated differently. In the United States, however, there still exists a fine line between the private and public sector, and public employees continue to experience restrictions in areas of subjects of bargaining, and right to strike and concerted activities. According to statutes and case laws, the right to collective bargaining, for example, may be viewed and affirmed as a Constitutional right, but what is rightfully considered so in the private sector still does not necessarily apply in the public sector. Moreover, not only have numerous states' efforts to protect public employees' concerted activities and their right to strike been unsuccessful, statues and case law both prohibit such activities. Upon closer examination, however, 1) the right to collective bargaining should not be fully restricted but embraced and exercised by public employees as done by their counterpart in the private sector, and 2) strike and concerted activities may be restricted to employees in the so-called essential service sectors (e.g., law enforcement officers, fire fighters, policemen) where safety is at high risk. Further, most jurisdictions that allow public employees the right to collective bargaining, but prohibit them the right to strike, resolve the impasse of the negotiation process through ADR (Alternative Dispute Resolution) procedures. Jurisdictions that give public employees the right to strike also require ADR procedures. In jurisdictions that public employees have the right to strike, the ADR procedures mean mediation and fact-finding, which are not binding. Mediation and fact-finding are commonly used in the public sector rather than the private sector. Because of disfavor, interest arbitration is used for essential employees after fact-finding process. In the interest arbitration, the med-arb approach is preferred rather than the judicial decision-making approach, because advocates of med-arb regard interest arbitration as the extension of the collective bargaining process and shape the award to be acceptable to both parties.