All Commentary
Thursday, February 1, 2001

Congress and Public Safety Unionism

Congress Should Kill the Public Safety Union Bill

The National Labor Relations Act (NLRA) applies to unionism in private-sector employment, except in the railroad and airline industries, where the Railway Labor Act sets the rules. No federal statute regarding unionism applies to state and local government employees. Rather, each state adopts its own rules, and 20 states have chosen not to engage in compulsory collective bargaining with unions representing public safety employees (such as police, firefighters, and emergency medical personnel).

In 1985 the U.S. Supreme Court ruled, in Garcia v. San Antonio Metropolitan Transit Authority, that states have exactly the same legal standing as private employers when it comes to labor market regulation. Thus Congress may, if it chooses, impose minimum-wage, maximum-hour, and labor-relations regulations on the states in their role as employers. Almost immediately after the Garcia ruling, former Representative William Clay of Missouri proposed a federal statute that would force all states to adopt compulsory collective bargaining for all state and local government employees. That proposal got nowhere then, but it was resurrected for state and local public safety employees in the last (106th) Congress (S. 1016 and H.R. 1093). Worse, the idea drew substantial bipartisan support in the Senate as well as the House.

The record of disaster in the states that already give public safety unions such privileges is clear. Public safety disappears. When firefighters are prevented by their unions from fighting fires, and when police are prevented by their unions from maintaining order and pursuing criminals, civil society dissolves into chaos. The police and fire strikes in San Francisco during the 1970s illustrate the point. The proposed legislation would expose the 20 states that now deny NLRA-style privileges to public safety unions to similar disasters. Sure, the bill proscribes strikes by public safety personnel; but here, too, the record is clear. Public-sector unions with NLRA-style privileges are almost never deterred by laws that make strikes illegal, and they are never prosecuted for breaking the law. The 107th Congress should drive a stake through the heart of this idea as soon as possible.

Support from Democrats

It is no surprise that Democratic members of Congress support granting special privileges to unions. For example, in exchange for in-kind and monetary support from the unions at election time, those members have long supported giving unions the power to force workers to pay union dues and fees. The more money unions can take from workers, the more they can share with politicians.

But it is a surprise that the public safety union bill received substantial Republican support in the 106th Congress. Perhaps this is because police and firefighters are thought to be more politically conservative than other government employees. However, this is terribly myopic. To paraphrase Henry George, those who think this idea can be limited to just public safety workers are like those who tell you of tigers who live on oranges. If Congress commits this folly it will soon be besieged with demands from other state and local government employee unions for similar favors. The National Education Association has long sought such legislation on its own behalf. Surely it will argue that if it is all right to force states to empower public safety unions, it is also all right to force states to empower teacher unions. Teachers are just as vital as police and firefighters, aren’t they? What about garbage collectors and tax collectors? They are pretty vital too. In the end, states will lose control over all their government employee labor relations. This hardly seems consistent with the usual Republican rhetoric about federalism.

Congress not only should kill the public safety union bill, it should force the states that have granted NLRA-style privileges to any government employee unions, whether public safety or not, to rescind them. Congress has constitutional authority under the Fourteenth Amendment to prevent states from abridging the “privileges or immunities” of citizens of the United States.

The principles of exclusive representation and union security abrogate the First Amendment rights of government employees who wish to remain union-free. Government is the employer, hence there is sufficient government action to give rise to Bill of Rights concerns.

Under the Bill of Rights, government is not supposed to intrude on an individual citizen’s right to associate or not associate with any legal private organization. A voluntary union of government employees is a legal private organization. But forcing dissenting government workers to join, pay dues to, or be represented by such an organization is an abridgment of their freedom of association. No unionist would argue that a government should refuse to hire a worker who refuses to buy and consume snake oil, but every unionist argues that a government should refuse to hire a worker who refuses to buy and consume unwanted union representation.

Moreover, in government employment, mandatory bargaining in good faith (a feature of the NLRA incorporated into most state collective bargaining statutes) forces governments to share the making of public policy with privileged, unelected private organizations. Ordinary private organizations can lobby government, but only government employee unions have the privilege of laws that force government agencies to bargain in good faith with them. Good faith bargaining is conducted behind closed doors. It requires government agencies to compromise with government employee unions. Government agencies are forbidden to set unilateral terms and conditions of government employment (questions of public policy) without the concurrence of government employee unions. These unions actually share governmental authority.

Before the New Deal, the Supreme Court routinely struck down as unconstitutional legislation that delegated governmental authority to private groups. Since then the Court has ignored the Constitution (or reinterpreted it to suit the passions and prejudices of the moment) and upheld government employee unionism. Now only Congress can put things right. All it takes is courage and dedication to the Constitution as it was understood by those who wrote it.

I am not hopeful.

  • Charles Baird is a professor of economics emeritus at California State University at East Bay.

    He specializes in the law and economics of labor relations, a subject on which he has published several articles in refereed journals and numerous shorter pieces with FEE.