The majority of private sector labor law as it is known now started with the National Labor Relations Act, or Wagner Act, which President Franklin Roosevelt signed into law in 1935.[*] While the NLRA controls nearly all collective bargaining policies in the private sector, the law does not apply to public sector employees. With the exception of federal employees, public sector collective bargaining is primarily governed by state laws. Government employees at the state and local level did not begin gaining the ability to collectively bargain until the late 1950s.[†]
Most states modeled their public sector labor law after the NLRA, and today many states’ public sector union laws still resemble that model. This means that many state laws include policies about exclusive representation, election rules for establishing unions, and requiring employers to “bargain in good faith.” States still reserve the power, however, to set their own public sector labor laws and are not legally bound by federal precedent. As a result, public sector collective bargaining policies vary across the states.
For example, Virginia outlaws public sector collective bargaining altogether. Arizona limits public sector bargaining to a “meet and confer” status, which provides government employers “with information on employment and personnel issues and to aid in informed government decision making.”[‡] Missouri allows multiple unions to negotiate on behalf of different workers within the same employee group in some public school districts. Wisconsin passed legislation recently that significantly limits the topics of bargaining; unions there may only bargain over limited salary increases.
For states interested in providing workers with more freedom, these differing approaches to public sector laws may not be of much use as models for reform. For most states, it would require substantially revamping their public sector labor law, which may be a heavy lift politically. But providing public employees freedom of association with a right-to-work law and the freedom to represent themselves with Worker’s Choice could work well in many states. It requires only minor changes to state law and leaves untouched the unique and traditional policies on public sector collective bargaining in each state.
[*]The NLRA (29 U.S.C. § 151-169) was passed after the Supreme Court found its predecessor, the National Industrial Recovery Act of 1933, unconstitutional. Since the NLRA’s passage, it has been amended by statutes such as the Taft–Hartley Act of 1947 (29 U.S.C. § 401-531), which, among things, gave states the ability to enact right-to-work laws and the Labor-Management Reporting and Disclosure Act (Landrum-Griffin Act of 1959), which brought greater transparency to union finances. Robert P. Hunter, “Michigan Labor Law: What Every Citizen Should Know” (Mackinac Center for Public Policy, 1999), 9–11, http://perma.cc/ZH87-CNGV.
[†]The first state to allow collective bargaining for public employees was Wisconsin, in 1958. Federal workers were unable to collectively bargain until President John F. Kennedy signed Executive Order 10988 in 1962. Paul Moreno, “How Public Unions Became So Powerful,” The Wall Street Journal, Sept. 11, 2012, http://perma.cc/ 5URY-RY5U; Amity Shlaes, “How Government Unions Became So Powerful” (Council on Foreign Relations, Sept. 4, 2010), http://perma.cc/BZ7P-PGAS.
[‡]“Executive Order 2008-30: Establishing a Meet and Confer Process for Executive Agencies of State Government” (State of Arizona, Dec. 17, 2008), http://perma.cc/6W62-2GGK. Critics of meet and confer claim that it is not distinctive enough from collective bargaining, and negotiations are “conducted under the very real threat of costly litigation.” Nick Dranias, “Time to End the ‘Meet and Confer’ Shakedown” (Goldwater Institute, March 6, 2012), http://perma.cc/JBE7-CWS3.