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July 23, 2008
Collective Bargaining for Public Safety Workers
Earlier this month, Paul posted on the progress in Congress of the Public Safety Employer-Employee Cooperation Act. This proposed legislation would provide collective bargaining rights for law enforcement officers, firefighters, and emergency medical services personnel in state and local governments that do not already provide such rights. Charles Wheatley has a detailed analysis of the Act in the most recent edition of Local Government Law News.
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July 23, 2008 in Labor Law | Permalink
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Comments
I'm glad to see more discussion of this. I would argue that this law, if enacted, would in many ways be more "radical" than EFCA -- I don't mean that in a normative way, but rather in the sense of "departing from current and historical practices."
It also raises some pretty interesting and (IMHO) challenging constitutional issues. And policy questions, ranging from "why just public safety workers," to broad notions of federalism and economic policy.
Posted by: Joseph Slater | Jul 23, 2008 5:18:47 PM
Note the error in Mr. Wheatley's other fine article. He states on page 3 that "it has been only since 1959 that even one state (Wisconsin) provided collective bargaining rights to public employees."
New York's Taylor Law, Civil Service Law Sec. 200 et. seq. was enacted in 1967.
Mitchell H. Rubinstein
Posted by: Mitchell H. Rubinstein | Jul 23, 2008 9:49:47 PM
Mitchell: Isn't a plausible reading of that language something like, "it wasn't until 1959 that the first state law providing collective bargaining rights to public employees was passed, in Wisconsin"? If that was the intended meaning (and I suspect it was) that's correct.
And FWIW, there were a good number of other state public sector labor laws passed after Wisconsin's but before NY's.
Posted by: Joseph Slater | Jul 24, 2008 4:39:16 PM
I concur with Mr. Slater's suggestion of constitutional difficulties with this proposal.
To answer his question "why just public safety workers?", the answer is fairly obvious: proponents of forced-unionism (of which monopoly bargaining is an element) are creating the perception of such personnel as "victims," a particularly useful portrayal in the wake of the heroism of such workers on 9/11.
Of course, Professor Bales assertion that the "proposed legislation would provide collective bargaining rights for law enforcement officers, firefighters, and emergency medical services personnel in state and local governments that do not already provide such rights" is normative in itself.
What it would actually do would allow government to extinguish the rights of minority personnel to choose to bargain for themselves, and create a preferred class of competitors in the political dispute over scarce public resources. IMHO, creating an obligation on the part of public officials to listen to a preferred class of competitors for scarce public resources raises serious equal protection problems under the First and Fourteenth Amendments.
Posted by: James Young | Jul 24, 2008 11:46:56 PM
To James Young:
The plausible constitutional objections to this bill in no way include what you suggest. It is well-established that providing collective bargaining rights to public employees (and that is not, by the way, a normatively-charged way of putting it, it is merely descriptive) does not violate the First or Fourteenth Amendment. Public employees, including police and fire, have the right to bargain collectively in a clear majority of states already.
Still, the U.S. has no *federal* law on public employees generally. That is due in part to constitutional concerns over federalism (10th Am., maybe the 11th Am., etc.) I was referring to constitutional challenges made on those grounds. I'm not saying such challenges would or should be upheld, but they are serious and should be considered.
By the way, nice of you to grant that the unionized police, fire, EMT and other public workers acted heroically on 9/11. They are hardly portraying themselves as "victims," however. They are simply asking that all public safety workers be given a minimum set of collective bargaining rights -- again, most have them already.
Posted by: Joseph Slater | Jul 25, 2008 10:33:30 AM
JS, while I agree with your comments about what are probably the most serious constitutional concerns about this bill, and have no illusions about what are considered "plausible constitutional objections" in some quarters, I maintain that my argument --- which, beyond simply dismissing it, you don't address --- is a serious one. I suspect you would take it more seriously if, for example, a proposal to give taxpayers' organizations a preferred seat at the table were advanced.
As for your assertion that "most have [what you call "collective bargaining rights"] already," I'm not sure that a survey of state laws on the subject would sustain that assertion for a majority of states. Doubtless many do, but a large number --- perhaps a majority --- do not. Of course, "everybody does it" didn't persuade my mother, nor --- as I recall --- the Supreme Court when it considered things like laws restricting abortion and homosexual behavior. I'm surprised that you would rely on it.
The bottom line remains that, if serious about creating a mechanism for "collective bargaining rights" for such employees, one could easily craft a proposal which does not allow majorities to extinguish the individual bargaining rights of the employees at issue, thus removing at least one significant objection to the proposal as drafted. Similarly obvious, therefore, is the fact that the effort to confuse "collective bargaining rights" with monopoly bargaining power is "normative" and a values-based judgment. Those who oppose government-enforced monopolies well understand the tactic of their proponents to couch their efforts in euphemism, and find it entertaining when the pretense is defended (with oh such indignation!) even when debunked. Of course, that its authors and advocates have failed to craft a non-coercive method of "providing collective bargaining rights to public employees" demonstrates that their primary commitment is to coercion, not to the "rights" to which they make pretense to advancing.
Posted by: James Young | Jul 25, 2008 10:49:45 PM
James:
I agree with you that "just because everyone else does it" is generally not, in itself, a valid argument on the merits. And I'm not going to try to convince you re the entire system of labor law that pretty much every democracy has adopted.
Having said that, it is indeed true that a majority of states provide collective bargaining rights for a majority of their public workers. Surveys on this topic have been done. My articles cite them.
Also, it is fair, in legal circles, to say something is not a "serious" argument if it has been made and routinely rejected by the relevant decisionmakers. No court has accepted your constitutional argument. OK, you might think someday you will be vindicated, but there is absolutely no evidence that courts or legislatures are moving in that direction (in fact, quite the opposite). It is in that sense that your argument is not serious. Of course you still have the right to believe you are correct. For what it's worth, I believe some arguments are right that I don't think any court will ever buy.
Finally, as to "normative," the system you are describing, if I understand it (a right of minority groups to bargain semi-collectively?) has not been adopted in the U.S. or Canada -- something like it might exist in France. Instead, the U.S. has long had a system called "collective bargaining." Using a term that has been used not just since the NLRA but well before that is not a "normative" choice. It's merely descriptive -- unless you think all sorts of neutral bodies, hornbooks, treatises, ALR and Am.Jur. reports, etc., are being improperly "normative."
Posted by: Joseph Slater | Jul 29, 2008 8:27:12 PM
