The sad reality of the recent spate of right-to-work laws, collective bargaining bans, anti-picketing laws, and other state level anti-union legislation is that, despite our victories in Ohio and the recalls in Wisconsin, the labor movement will never begin to make progress as long as we are fighting a piecemeal defense of an industry (the public sector) that is only 37% organized and reliant on state politics for its very existence.
In short, what we need is a Wagner Act for the public sector.
I’ve written before about the need to move beyond the status quo of labor law that governs private sector unions, and at only 8% union density, private sector workers are the most immediately endangered group of union members. However, at the same time, it’s the public sector unions that will be needed to provide the organizers, resources, and political support necessary for the revitalization of private sector unions. If these unions are defeated, outlawed, or so consumed by a struggle for survival that they can lend no aid to their brothers and sisters, there is no hope for change.
History of Public Sector Unionism
Unlike their private-sector brethren, public sector unions have never had a single breakthrough moment when it comes to legitimization and legalization – no 1935 moment, as Joseph McCartin writes in “Why No Wagner Act for Public Employees.” As a result, public sector union gains especially during the salad days of the 1950s and 1960s have depended on local and state piecemeal agreements, sometimes by legislative mandate and sometimes through direct bargaining with the executive. This has ultimately proved to be problematic for three main reasons – universality, enforcement, and legitimacy.
The lack of a national statute has meant that public sector unionism has concentrated in the blue states. The same process happened with private sector unions due to the history of industrial clustering in the Midwest, and it proved to be politically disastrous when the so-called rust-belt or snow-belt states were eclipsed in population by the rising Sun Belt. It’s been doubly difficult for public sector unions in that it means that their attempts for expansion take place in a context where management literally writes the rules for how labor organizing will work, and it’s also meant that the existence of public sector unionism now depend on partisan control of office. Even before 2010, Republicans and some Democrats have forced furloughs and layoffs, pension reductions and health care cuts, not to mention proposed more nakedly partisan attacks on the right to organize via card check, bans on dues check-offs, and bans on the right to engage in the political process. Since 2010, the very existence of collective bargaining has depended on the presence of Democrats in office – and even then, we see some Democrats using the opportunity to tack to the center by bashing public employees.
In a similar vein, the lack of a national statute has made enforcement of public sector union rights difficult because ultimately union members have to appeal their grievances and unfair labor practice claims…directly to the plaintiffs in many cases, the statutes by which public sector unions exist are interpreted in state courts, and basic legal rights and agreements are open to unilateral renegotiation by public referendum. In normal times, this isn’t necessarily a problem, but when hard times come and local and state governments have to make hard decisions about budgets, even the bluest of states have been willing to break contracts.
Finally, the lack of a natural statute denied public sector unions the popular legitimacy that came with a national statute. During the great surge of organizing in the 1930s, both the CIO and the AFL made patriotism a part of their appeal to potential members, rallying with American flags and the slogan that “the President wants you to join a union.” By contrast, public sector unions have always struggled under a cloud of suspicion.
And while they’re not the only factors, I think they are a major reason why membership rates in the public sector have only reached 37 percent as opposed to the 80-odd percent that used to be the case in industry – which would have given us a floor well above the 12% of the overall workforce we have today.
Defending Everyone’s Rights
However, I don’t think that the kind of national conversation that needs to happen if national legislation is going to pass can’t ever happen until we have a conversation within the ranks of the Democratic Party and the broader progressive movement about why public sector unions should have the legal right to organize. Because it’s not because cops, firefighters, nurses and teachers are heroes and should have collective bargaining lavished on them like tributes – most public sector workers do rather mundane office work or field work, and they have the same right to join a union and have that union recognized.
As I’ve discussed in my “In Defense of Public Sector Unionism” series, all workers have the right to form and join unions, no matter how elevated or prosaic their work is. It’s an international human right set down in the UN Declaration of Human Rights set down in in 1947. It flows directly out of our 1st Amendment right to freedom of assembly and association; this is recognized explicitly in the text of the Wagner Act, which states that it is intended to redress “the inequality of bargaining power between employees who do not possess full freedom of association or actual liberty of contract” and their employers by making it “the policy of the United States to [protect] the exercise by workers of full freedom of association, self- organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection.” And as we have seen in the Wisconsin and Ohio conflicts, it’s a right that dwells in the hearts and minds of most Americans, even if they put up a storm of complaints when the exercise of those rights complicates their lives.
I think the major mental block when it comes to the public sector has to do with the fact that we think of “we, the people” as the employers and we can’t conceive of ourselves as oppressing others or even of subconsciously leaning on the inherent power differentials between workers and their bosses. However, we forget that although the people are the state as Lincoln formulated it, politicians and appointed civil servants act as the actual managers. Politicians and professional managers can, have, and do abuse and exploit their workforce. The voters of Memphis weren’t exactly rising in protest when their (poor black) garbage workers were being crushed to death in their compactors because they weren’t allowed to duck out of the rain.
The reality – which has been recognized since the time of Adam Smith – is that there’s a basic inequality of power between all workers and all bosses, no matter how enlightened or well-meaning the boss or bosses might be. At the end of the day, the worker needs to work to live and the boss doesn’t, and this creates an all-encompassing fear on the part of the worker. This fear is stoked both explicitly (when a worker is told that they will be lose their job if they vote for a union, as happens in 49% of union elections) and implicitly (when a worker is either told or believes that they will be viewed as “not a team player” if they don’t follow informal standards when it comes to things like coming into work on the weekend). And it leads to self-exploitation, where workers work more (and more) hours than they get paid for, or pick up additional duties they don’t get paid for, or increase work effort again and again to live up to some Stakhanovite ideal.
It doesn’t mean that voters or politicians or appointees are immoral employers, just that they are employers. And if voters want to prevent exploitation or even the thought that they might be complicit in exploiting workers, the best way they can do that is to bring in unions, which act as countervailing forces and allow workers and bosses to negotiate and work together as equals.
A further complicating factor in passing a Wagner Act for the public sector is that most public sector workers work for state and local governments and we’re talking about a Federal bill to secure public sector union rights and the argument that this would be a violation of Federalism and state’s rights. I would argue that it isn’t. While it’s probably a stretch to fit state and local governments into the Commerce Clause, I would argue the 14th Amendment does fit. In addition to the Equal Protection Clause and the Due Process Clause, the 14th Amendment is supposed to ensure that “no state shall abridge the privileges and immunities of citizens of the United States.” The Supreme Court may have in the past decided in all their infinite wisdom that this clause is practically void, requiring nearly a century of clumsy, partial incorporation cases through those other two clauses, but the Supreme Court deserves an opportunity to rethink its mistake (at least after Obama appoints a few more justices).
A Wagner Act for the public sector would be incredibly simple to draft. All it would have to do is strike out the clause in the Definitions section that states “The term “employer”…shall not include the United States or any wholly owned Government corporation, or any Federal Reserve Bank, or any State or political subdivision thereof,” and adding in the phrase “providing services to the public” to the clause in the same section on what constitutes “Commerce.” The difficulty is passing it through Congress.
But even if we could pass it through Congress, it would just be the beginning. There’s still 63% of the public sector who need to be organized, and while we’re organizing them, there’s another 92% of public sector workers waiting for their turn.