What Are the Restrictions on Limiting Collective Bargaining?

In the GD thread Will Wisconsin’s anti-union bill pass constitutional muster? Is it a good idea?, Snowboarder Bo asks a good question about whether the Wisconsin bill “that would strip government workers, including school teachers, of nearly all collective bargaining rights” is constitutionally sound. I assume that means whether controlling Supreme Court decisions make the ability to collectively bargain a guaranteed right that legislatures cannot strip.

The thread almost immediately went off the deep end into the usual yo’ momma partisan badmouthing about whether unions and taxes are wrong. That’s why I’m re-asking this in GQ, where I hope that there will be none of that.

Just the facts, ma’am, and the law. What have courts said on this subject?

From the other thread I was looking into this.

I am not an expert by any means. Also, IANAL of any sort.

So, this is just my minor Google Research and not even a whole lot of that.

The laws relating to this are both Federal and state. As such you can have 50 different answers.

At the Federal level it seems the National Labor Relations Act governs most of this. Obviously that would trump state law if they disagree.

Make of that what you will.

My (admittedly limited) research on this suggests it gets complex really fast beyond the above broad outline.

is it constitutionally? I think it will be. Government workers are not covered by the NLRB. They are mostly covered by state laws, so there would be no federal labor laws VS state labor laws.

Honestly I do not know.

President Reagan famously smashed the Air Traffic Controllers union.

Police and firemen are not allowed to strike.

That is just the “easy” stuff (obviously if police could strike they could hold a whole city hostage).

Like I said, it gets complex fast.

Excuse me if this is a hijack but… are school teachers clearly state government workers and why?

The school systems deal with all kinds of regulation and control from the Feds down to the local school boards.

They are employed by their local school district, not the state. So no.

They are public employees, and as such may be part of their state’s public pension program. But they are not employed by the state.

My understanding is that while teachers have to meet state-wide standards, they are employees of the specific school district they teach in. I believe all states have state-wide pension funds for ease of management.

Here is a link to the bill in question by the by - PDF - Senate Bill 11

As far as the NLRA, it does not apply to state workers.

From Wikipedia

The Public Safety Employer-Employee Cooperation Act has been introduced several times to grant them equivalent rights, but has never passed, but came very close in 2007.

I have no idea how the Supreme Court would rule if it came before them. Actually, I am fairly certain what the Roberts court ruling would be, but no idea on how they would do so.

Still reaching any relevant court opinions, and hope to see what others come up with as well.

The anti-union bill in WI includes ALL public workers state level and below (county, city, school district, etc), so yes, the teachers would be affected by this as well.

Of course, it’s barely reported that Walker created this “budget crisis” himself, by pushing through a $140 million tax break for businesses almost immediately after his inauguration. Funny how everyone’s talking about this $130 million shortfall instead, isn’t it?

ENGQUIST v. OREGON DEPARTMENT OF AGRICULTURE from 2008 appears to a good indication of the current court’s thinking on public employees. It deals with a case that sought to apply the “class-of-one” theory of equal protection under the 14th amendment, and ruled that it does not apply to public employees.

Relevant part:

I take that as they would affirm that states have the right to deny collective bargaining. Conversely, I do not think they would overturn various state’s constitutional protections to collective bargaining. While this case concerned 14th amendment protections, I think they would punt any public employee collective bargaining cases back to the states, possibly invoking the 10th amendment.

Police, firemen and state troopers are exempt from this bill.

They also happen to be the three unions that supported his election.

Does the Wisconsin constitution have anything specific to say on the subject, since that would appear to be controlling?

As Whack-a-Mole pointed out, the polestar of traditional labor law (the law of governing labor organizations and collective bargaining, as distinguished from employment law, which would include things like wage and hour claims or invidious discrimination) is the Wagner Act, which came about in 1935.

What the Wagner Act did, in a nutshell, is to endow labor organizations, workers, and employers with statutory (not constitutional) rights that they did not have before its enactment. In brief, the Wagner Act allowed a labor organization that won a certification election to bargain on behalf of all employees within the certified bargaining unit—including on behalf of those employees who did not want the union certified. It made the certified labor organization the exclusive voice for the bargaining unit employees (see, e.g., Emporium-Capwell, Co. v. Western Addition, 420 U.S. 50 (1975)). It required employers to bargain collectively with the elected union. Thus, the conventional individualistic employer-employee relationships that would have been set up by the traditional common law of contract and master-servant law was significantly altered in favor for the cartelization of labor. This was done to stave off industrial strife and to assure the continued productivity of American industry at a macro level, even if this meant that some firms would need to eat a loss.

Employees covered by the Act were protected from retailiation for attempting to organize or even for other concerted activities directed to mutual aid and protection (this, importantly includes employees’ discussion of wages, hours, and other conditions of employment — it was this facet of labor law that was implicated in the recent the NLRB settlement with an ambulance provider over a “Facebook firing”).

Here again, notice that the Act up-ends the traditional at-will employment rule. Neither at-will employment nor NLRA-protected employment are required under the Constitution. It is true that a government attempt to forbid employees merely from associating with other employees outside of work would be unconstitutional under the First Amendment. However, the additional protections are not required. Nor is it illicit state action for the government to take adverse employment actions against an employee who is exercising a constitutional right (there’s a NASA case on this which may or may not have the phrase “Merit Board” in its caption). This is the state undertaking acts qua employer, not qua government.


Glancing at the NLRB web site and there are case files involving state government employees.

[li]Federal employees cannot strike (5 USC 7311).[/li][li]They were federal employees who went out on strike.[/li][li]Regan exercised his authority and fired the striking workers. He even gave them 48 hours to return to work before exercising his authority.[/li][/ol]

Not that I could see. PDF. There does not appear to be a constitutional right in Wisconsin, just only a statutory one. (Don’t ask me how or when though.) There are several notes on what can be included in collective bargaining, but I don’t see any guarantees.

I did find this while searching for cases - Wisconsin Academics Get Expansive Bargaining Bill.

No wonder they are so pissed in Wisconsin. University faculty just got collective bargaining rights under the last administration, and this is what the new governor decides to go for first after manufacturing the budget crises.

Here is a listof state statutes on public sector collective bargaining, with Wisconsin near the bottom. It is not comprehensive, but notice the states that are not listed as well.