Slater Collective Bargaining Essay

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The Assault on Public Sector Collective Bargaining:
Real Harms and Imaginary Benefits
By Joseph E. Slater
June 2011

All expressions of opinion are those of the author or authors.
The American Constitution Society (ACS) takes no position on specific legal or policy initiatives.

The Assault on Public Sector Collective Bargaining:
Real Harms and Imaginary Benefits
Joseph E. Slater
Perhaps the most striking political development in 2011 is the widespread and aggressive assault on public sector collective bargaining rights. While the most highly publicized and most significant changes have taken place in Wisconsin and Ohio, moves are afoot in a number of states. These changes represent the most radical revisions to labor law in the U.S. in decades, and they have set off a political firestorm.
This brief will argue that these attacks are deeply misguided. They serve no purpose beyond a partisan attempt to weaken a key supporter of the Democratic party and they do not address budget deficits. Instead, they take away a core right that has been recognized in the vast majority of the United States for up to half a century, a right that is considered fundamental in much of the industrialized world, a right that helps individual teachers, firefighters, police officers, and other public employees in their day-to-day lives at the workplace, a right that helps sustain a vital middle class, and a right that helps ensure talented and skilled people will find public service an attractive career option.
This Issue Brief will provide background on the development and functioning of public sector labor laws in the U.S., discuss the current political debates over such laws (including debates over whether public sector workers are “overpaid”), explain some of the most prominent recent legislation in this area (including, but not limited to, laws in Ohio and Wisconsin), and critique the proposed changes.
I.

History and Background of Public Sector Unions and Public Sector Labor Law
A.

Historical Underpinnings

Public sector labor law in the U.S. developed on a somewhat different track than private sector law. The National Labor Relations Act (NLRA) of 1935 gave private sector workers across the country the right to bargain collectively, but the NLRA excludes public sector workers. This was likely in large part due to constitutional concerns: back then, it appeared unclear whether Congress had the power under the Commerce Clause to pass the NLRA itself, and contemporary Tenth Amendment doctrine would have been a huge challenge to applying a national labor law to the states. Also, fear of strikes by public workers inhibited the development of public sector labor law.1 The U.S. was unusual in this regard. Notably, in other western democracies, public sector workers and their unions have long had mostly the same rights as private sector workers.
Despite having no legal rights to bargain collectively before the 1960s, public sector unions organized and represented their members in a variety of ways. Unions of postal workers


Eugene N. Balk Professor of Law and Values, University of Toledo College of Law.
For additional historical detail, see JOSEPH E. SLATER, PUBLIC WORKERS: GOVERNMENT EMPLOYEE UNIONS, THE
LAW, AND THE STATE, 1900-1962 (2004).
1

1

formed in the late 19th century. Some public sector unions that are prominent today, such as the
American Federation of Teachers and the International Association of Firefighters, formed in the first two decades of the 20th century. AFSCME formed in the 1930s. Interestingly, the Building
Service Employees Union (the BSEU, which today is the SEIU) has represented many public sector employees since as far back as the 1920s and 1930s.
These unions represented their members in a variety of ways, from lobbying for civil service laws which protected public workers from arbitrary discharge by political machines, to training and educating workers, to actual informal negotiations with public employers. Such
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