Is it constitutional to outlaw collective bargaining for public employees?

it is totally obscene. American Politics is in dire need of a credible, political party that challenges the hegemony of the Dem/Republican coalition, because that’s more or less what they are. A party that really does represent the interests of working people, one that can also win over some of the Tea Party sympathisers where those interests overlap.

@mammal

Ever heard of the Libertarian Party? : )

@CaptainHarley some good policies, however laissez faire market and deregulation is disastrous, stricter migration control is very good, coupled with non interventionist foreign policy. Smaller government fine, if it entails a smaller military footprint and reinvestment in domestic infrastructure, alternative energy, domestic job creation and tax breaks for small business.

Government labor law is different from private sector labor law, and is not my specialty, but I do know that to forbid a union organization in most cases violates the freedom of association provisions of the Constitution.

The best option with governmental work stoppages is to simply fire the offenders.

What are the governors thinking? They are thinking that if they don’t stop the hemmorraging, the patient ( State government ) is going to die.

@CaptainHarley firing the offenders for lawful industrial action, is immoral, not to mention, the subsequent and very expensive law suits that will inevitably follow. in most of these types of cases a compromise is imperative. Negotiation is critical.

@mammal

By way of example:

August 1981 strike

On August 3, 1981, during a press conference regarding the PATCO strike, President Reagan stated: “They are in violation of the law and if they do not report for work within 48 hours they have forfeited their jobs and will be terminated.”
On August 3, 1981 the union declared a strike, seeking better working conditions, better pay and a 32-hour workweek. In doing so, the union violated a law {5 U.S.C. (Supp. III 1956) 118p.} that banned strikes by government unions. Ronald Reagan declared the PATCO strike a “peril to national safety” and ordered them back to work under the terms of the Taft-Hartley Act of 1947. Only 1,300 of the nearly 13,000 controllers returned to work.[4] Subsequently, Reagan demanded those remaining on strike return to work within 48 hours, otherwise their jobs would be forfeited. At the same time Transportation Secretary Drew Lewis organized for replacements and started contingency plans. By prioritizing and cutting flights severely, and even adopting methods of air traffic management PATCO had previously lobbied for, the government was initially able to have 50% of flights available.[4]

On August 5, following the PATCO workers’ refusal to return to work, Reagan fired the 11,345 striking air traffic controllers who had ignored the order,[6][7] and banned them from federal service for life. (This ban was later rescinded by President Bill Clinton in 1993.)[8] In the wake of the strike and mass firings the FAA was faced with the task of hiring and training enough controllers to replace those that had been fired, a hard problem to fix as at the time it took three years in normal conditions to train a new controller.[2] They were replaced initially with nonparticipating controllers, supervisors, staff personnel, some nonrated personnel, and in some cases by controllers transferred temporarily from other facilities. Some military controllers were also used until replacements could be trained. The FAA had initially claimed that staffing levels would be restored within two years; however, it would take closer to ten years before the overall staffing levels returned to normal.[2] PATCO was decertified on October 22, 1981.[9]

Some former striking controllers were allowed to reapply after 1986 and were rehired; they and their replacements are now represented by the National Air Traffic Controllers Association, which was organized in 1987 and had no connection with PATCO.

Constitutional? Arguably so. The only bearing the US constitution has on the matter is the guaranteed right to free speech and assembly, but that’s hardly a firm legal basis for the right to collectively bargain. The US declined to ratify international agreements that would have made this a right.

The employees could of course act collectively anyway and force a showdown, as per the scenarios in your details. That would put the government in a very awkward position with possibly negative PR consequences. Before Reagan used it in the PATCO strike, permanently replacing striking workers was considered the “nuclear option”, not the honorable way to handle the situation. But this display of machismo played well with Reagan’s base, so it came to be viewed as an acceptable tactic.

The budget crisis appears to be little more than a pretext for these attacks on the unions. That unions are saying that they are willing to make the monetary concessions. This all just panders to the conservative base that demonizes organized labor because of its historic support of the left.

@CaptainHarley yes i’m aware of that legendary act of chauvinism by president Reagan, which ultimately was more destructive than seeking reasonable compromise, but it is interesting to note that currently Egypt’s military is citing a similar accusation against Egyptian strikers along the lines of their actions posing a threat to national security, which is equally as hollow and unfounded.

@thorninmud The only reason why the unions are suddenly ‘willing’ to make concessions is because they know the time for their bullying is up, and that people support the actions of Walker and Kasich. F the unions and I hope other states follow WI and OH.

It’s probably constitutional, but it’s against international law to restrict labor organizing. However, since the U.S. basically has immunity from international law, it’s not surprising that it also has a bad record of protecting small unions (big ones do just fine, particularly when organized crime gets involved :\)

I often find myself wondering what sort of childhood the Constitution haterz must have had. It had to have been a sad one.

Lots of states have budget problems, as does the Fed. govt. How come everybody cries “Class warfare!” when somebody wants to fix a deficit with policies that make the rich pay a little more, but nobody says that when workers are attacked? If union-busting isn’t class warfare, then that phrase is meaningless.

Much of the power of the unions is routed in in legislation designed to support them. Whether you look at the Reagan example or any other place where striking is banned the right to speech or to organize is not prohibited. Unions rely on the legislation that prohibits an employer from firing those on strike. They also gain tremendous power with the ‘closed shop’ rules which force all employees to join the union. Without those tools the collective bargaining becomes much less effective. So what exactly would be unconstitutional here. The ability to fire someone that doesn’t show up for work? The ability to hire someone that doesn’t join the union? I fear the constitutional issues here are not what you may think and the ability to assemble nor join any organization you choose is not in jeopardy.

@Jaxk

Another great answer! You’re on a roll, dude! : )

FDR warned against collective bargaining for government unions. I think I agree with what he said.
“The process of collective bargaining, as usually understood, cannot be transplanted into the public service. A strike of public employees manifests nothing less than an intent on their part to obstruct the operations of government until their demands are satisfied. Such action looking toward the paralysis of government by those who have sworn to support it is unthinkable and intolerable.” -FDR

A strike of public employees manifests nothing less than an intent on their part to obstruct the operations of government until their demands are satisfied.

@wilma – I think that’s a very good point (from an oddly ironic source). One can reasonably claim that powerful unionization of the public sector empowers those working in government with a “more powerful vote” than those outside of it.

@mammal, I’m not sure why you are directing your ire at the Democrats over this issue.

@Jaxk, actually the constitutional issues you brought up have nothing to do with the question.

You are correct that laws have been made that give worker organizations certain rights. Are you arguing that such laws are unconstitutional? In the past, it seems like you believe any law you don’t like is unconstitutional.

Most reasonable people believe the worker-employer relationship is inherently unbalanced towards the employer, and thus workers deserve some rights and protection against abuse. This is generally what separates the United States from countries where employers operate sweatshops.

@Qingu

I think you’re going too far in the other direction. Labor unions, generally, have limited employer rights in a manner that often also has repercussions for employee rights.

The most prevalent examples are the seniority rules that are almost inevitably found in CBAs. The limit the employers ability to promote to require that the length of time the employee has been at the job be the primary factor. These are also the people who are laid off last. Of course, this means that talented people don’t get the promotions they deserved, and the best workers may be the first to go.

@Qingu

I can’t help but wonder if you even read the question. Or have any idea what is being proposed. The ability to assemble or organize or free speech is not impacted by any of the legislation and question clearly assumes it is. What is limited however is the ability to strike.

As for the constitutionality problem you have I no idea how you jump from the statement I made to the blanket statement you made. You want to attack me, OK I have no problem with that but what the hell, are you talking about.

@Jaxk

You’ll discover, if you haven’t already, that there are a lot of those on here who believe that the State is the source of all that’s good in the world, and who can’t understand why anyone else wouldn’t believe that.

@CaptainHarley

Discovered that my first day. But point well taken.

@CaptainHarley And I’ve discovered that there are a lot of people who can’t deal with political disagreement in any other way than by pigeonholing their interlocutors.

“Do you support universal health care? Then you must also want a ban on assault weapons. Pro-limited government? Congratulations, you are also anti-abortion. Luckily, all human opinion falls neatly into one of the two clearly defined camps. Thus, the two party system elegantly reflects the bichromatic rainbow that is American political thought.”
—America (The Book)

“Interlocutors.” Wow! Did you look that up?

I don’t allow myself to be pideonholed, and I try very hard to not pigeonhole anyone else, thank you very much. And if you had actually read some of my posts on here, you would know this.

“Strawman” anyone?

As an unrepentant and unreconstructed anarchosyndicalist, my answer is best reflected by a statement by fellow anarchosyndicalist Rudolf Rocker:

“Political rights do not originate in parliaments; they are rather forced upon them from without. They do not exist because they have been legally set down on a piece of paper, but only when they have become the ingrown habit of a people, and when any attempt to impair them will meet with the violent resistance of the populace.”

@CaptainHarley “Interlocutor” is a word that I use quite frequently. It’s neutral, whereas “opponent” strikes me as more negative (or at least potentially so). And while you may try very hard not to pigeonhole anyone, that doesn’t mean you always succeed.

I’ve read quite a few of your posts, by the way, so your accusation of “straw man” rings hollow. Just another attempt to not have to deal with criticism in any substantive way.

@Quingo, The Democrats and Republics are two cheeks of the same backside, to quote Gorgeous Galloway. But i’m guessing you mean the major protagonists in this sorry drama are of a Republican persuasion.

@SavoirFaire

Whatever. Suit yourself. I’m out of Fluther anyway… my blood pressure doesn’t need the additional 10 points it costs me.

When in the hell did I ever say anything about the State?

@mammal, are you even paying remote attention to what is happening on the subject you just commented on? The Republican governor and a Republican state congress unilaterally fucked over state workers and took away their right to bargain. The Democrats are the ones who are going to great lengths to stop this from happening.

But go ahead and keep on thinking they’re all the same, since that way you can continue to feel superior and above the fray.

@Qingu Teachers calling off ‘sick’ isn’t really helping their cause.

A Madison Radio Station explained the Governor’s proposed collective bargaining changes thusly:

Collective bargaining – The bill would make various changes to limit collective bargaining for most public employees to wages. Total wage increases could not exceed a cap based on the consumer price index (CPI) unless approved by referendum. Contracts would be limited to one year and wages would be frozen until the new contract is settled. Collective bargaining units are required to take annual votes to maintain certification as a union. Employers would be prohibited from collecting union dues and members of collective bargaining units would not be required to pay dues. These changes take effect upon the expiration of existing contracts. Local law enforcement and fire employees, and state troopers and inspectors would be exempt from these changes.

The reason why I asked about constitutionality is that it overturns and makes illegal many provisions that employers and employees have freely agreed to. In essence, it is limiting the boundaries of issues that employees and management can discuss.

Further, it limits the issues that public employees can bargain over to wages.

It is an attempt to take us back to the 20s in terms of labor relations, and it’s kind of silly, too. If the state doesn’t want to talk about working conditions, they don’t have to. If they outlaw discussions of working conditions, then workers can strike over wages, even though they are really concerned about working conditions. Even if the state says that, by law, they can’t increase wages more than the CPI, workers could still strike, presumably.

Unless they can’t. In which case, they are essentially being forced to work by the state. Slavery. But as long as they can strike or quit work, then they have the power to withhold their labor and it doesn’t matter what laws the state passes. You can’t force people to work. Unless you can.

To me, this is the height of stupidity. You only pass laws when you are trying to overcome a mistake you made. But it really changes nothing. You still have to bargain.

I think this is all grandstanding—on both sides of the aisle. The collective bargaining laws he wants to pass are meaningless. They do not stop workers from striking. They can’t force workers to work for less. They could fire them all and try to get new workers, but of course, that would be scraping the bottom of the barrel, and it would cost more in the long run.

And this is in a strong labor state. Unless things have changed very dramatically, this will not sit well with most citizens of the state.

It would be easier to talk about this if we knew how the NLRA affected state labor relations laws.

@wundayatta

Here’s the operative phrase “These changes take effect upon the expiration of existing contracts.”

That means that nothing agreed to is cancelled but rather the new agreements would adhere to these rules. No problem with contract law here. The issues are typically not working conditions but rather benefits. And that’s where (I think) this legislation is hoping to draw some guidelines.

The union can strike but the workers can be fired for it. The other major issue is “Employers would be prohibited from collecting union dues and members of collective bargaining units would not be required to pay dues.”

Between those two points the unions have their teeth pulled. You may think that’s a bad thing or a good thing but that’s the result.

As far as firing them all, it is unlikely. It’s one thing to go on strike when you know you can’t be fired and completely different if your risking your long term employment. Plus if they don’t have to pay union dues, you’ll see a lot of them drop out of the union.

Collective bargaining has been a disaster for Maryland state employees. Management officials have little decision-making authority when it comes to wages, hours or working conditions. For the most part, everything’s driven by federal and state laws and regulations. So, for all the really meaningful and important stuff, all management can promise employees through their bargaining reps is to “try”. Nothing’s been getting through our legislature that costs money and, if anything, they’re sharpening the axe and ready to continue chopping away at what little the employees have left. Right about now, the employee pension system is being whittled down to nothing special. As mentioned by someone else, local union groups often rely on their national-level parent for negotiators. It seems these veterans clearly understand the rules of the game when it comes to public employers. They knew the “negotiations” were a joke and didn’t hesitate to meet secretly with management to make backroom deals that helped both sides save face. Employees never realized they were just being treated to a show. Collective bargaining has done little to benefit state workers and what has been accomplished would have happened anyway. Wages, hours and working conditions continue to decline. Employees were recently presented with a new contract that, if approved, will require mandatory union dues. Most know so little about the process, the unions will probably manipulate their way into getting the money they so richly don’t deserve. Collective bargaining, done correctly, can be a very good thing. Done poorly, the workforce suffers.

@cletrans2col, I agree… tentatively… that teachers shouldn’t be faking sick to attend protests. That said, teaching is already a horribly underappreciated profession and if I had to put up with this kind of assault on my rights as a worker, I’m not sure what lengths I would go to in my reaction.

A person should be allowed to join groups and risk their job by protesting etc, but the employer should also be able to fire en mass if need be. Both sides in WIsconsin have much to risk here. This will get worse before it gets better.

I do enjoy when I hear people talking about how unions caused jobs to go overseas. It may have motivated companies to look elsewhere, but I am thinking finding out that slavery is free in china played a part in it as well.

One point my friend brought up today that I haven’t been hearing for the pro-union side is the fact that teacher’s unions generally insist on limits to classroom sizes. Without the collective bargaining, in times of budget cuts (which seems frequent in public education), teachers could be cut loose and those remaining could have 50 students. This does not bode well for teachers trying to effectively accomplish their jobs, makes public education worse, and could push quality education into the hands of only those whose parents have the means to buy it. Not good for the future if we want to be innovative, increase exports, and maintain a leadership role in the global market in 20 years.

Maybe I’m committing a slippery slope fallacy, but education is arguably one of our most important resources.

Oh I don’t know, @cockswain. The people voted in that governor. They knew what they were getting. I’m sure they know they were voting for increased class sizes. And if not, all they need do is vote to raise taxes. Hmmm, break the union, reduce quality of education or raise taxes?

Shit. Let’s break the union. Send our kids to Catholic school. We’re Republican. Public education is not for us. Who cares about them.

I feel the Democrats were a little apathetic in the 2010 election, after being very energized in the 2006 and 2008 elections. The conservatives were very fired up in 2010, and Wisconsin lost Russ Feingold and got Scott Walker.

In Wisconsin, you’ve got liberal Madison, parts of Milwaukee, then the rest of the state.

Having worked in the public and private sector I will admit that the public sector could stand to be cut. I would like to see the cuts happen at layers above the teachers and cops though.

To the original question, collective bargaining for public sector employees is not a right; it is a privilege. Some states (like Virginia) do not allow collective bargaining for any public employees. Compare the economic health of those states that allow collective bargaining by public employees, and those that don’t.