# What Are the Restrictions on Limiting Collective Bargaining? **URL:** \ **Category:** Factual Questions\ **Created:** [February 18, 2011, 4:12am UTC](https://boards.straightdope.com/t/what-are-the-restrictions-on-limiting-collective-bargaining/571780 "2011-02-18T04:12:22Z")\ **Posts on this page:** 15\ **Page:** 1
**Author:** ![Exapno\_Mapcase](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/exapno_mapcase/32/1051_2.png) [@Exapno\_Mapcase](https://boards.straightdope.com/u/Exapno_Mapcase)\ **Post date:** [February 18, 2011, 4:12am UTC](https://boards.straightdope.com/t/what-are-the-restrictions-on-limiting-collective-bargaining/571780/1 "2011-02-18T04:12:22Z")
In the GD thread [Will Wisconsin’s anti-union bill pass constitutional muster? Is it a good idea?](http://boards.straightdope.com/sdmb/showthread.php?t=597518), 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? ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [February 18, 2011, 4:26am UTC](https://boards.straightdope.com/t/what-are-the-restrictions-on-limiting-collective-bargaining/571780/2 "2011-02-18T04:26:28Z")
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. > [@](#): > > It explicitly grants employees the right to collectively bargain and join trade unions. The NLRA was originally enacted by Congress in 1935 under its power to regulate interstate commerce. See, U.S. Constitution Art. I, Section 8. It applies to most private non-agricultural employees and employers engaged in some aspect of interstate commerce. Decisions and regulations of the National Labor Relations Board, which was established by the NLRA, greatly supplement and define the provisions of the act. > > The NLRA establishes procedures for the selection of a labor organization to represent a unit of employees in collective bargaining. The act prohibits employers from interfering with this selection. The NLRA requires the employer to bargain with the appointed representative of its employees. It does not require either side to agree to a proposal or make concessions but does establish procedural guidelines on good faith bargaining. Proposals which would violate the NLRA or other laws may not be subject to collective bargaining. The NLRA also establishes regulations on what tactics (e.g. strikes, lock-outs, picketing) each side may employ to further their bargaining objectives. > > SOURCE: [collective bargaining | Wex | US Law | LII / Legal Information Institute](http://topics.law.cornell.edu/wex/collective_bargaining) Make of that what you will. My (admittedly limited) research on this suggests it gets complex really fast beyond the above broad outline. ---
**Author:** ![Snnipe\_70E](https://avatars.discourse-cdn.com/v4/letter/s/b5a626/32.png) [@Snnipe\_70E](https://boards.straightdope.com/u/Snnipe_70E)\ **Post date:** [February 18, 2011, 5:28am UTC](https://boards.straightdope.com/t/what-are-the-restrictions-on-limiting-collective-bargaining/571780/3 "2011-02-18T05:28:52Z")
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. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [February 18, 2011, 5:38am UTC](https://boards.straightdope.com/t/what-are-the-restrictions-on-limiting-collective-bargaining/571780/4 "2011-02-18T05:38:17Z")
> [@Snnipe\_70E](#): > > 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. ---
**Author:** ![What\_the](https://avatars.discourse-cdn.com/v4/letter/w/f4b2a3/32.png) [@What\_the](https://boards.straightdope.com/u/What_the)\ **Post date:** [February 18, 2011, 12:56pm UTC](https://boards.straightdope.com/t/what-are-the-restrictions-on-limiting-collective-bargaining/571780/5 "2011-02-18T12:56:22Z")
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. ---
**Author:** ![anson2995](https://avatars.discourse-cdn.com/v4/letter/a/c77e96/32.png) [@anson2995](https://boards.straightdope.com/u/anson2995)\ **Post date:** [February 18, 2011, 1:46pm UTC](https://boards.straightdope.com/t/what-are-the-restrictions-on-limiting-collective-bargaining/571780/6 "2011-02-18T13:46:56Z")
> [@What\_the](#): > > Excuse me if this is a hijack but… are school teachers clearly state government workers and why? 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. ---
**Author:** ![Agnostic\_Pagan](https://avatars.discourse-cdn.com/v4/letter/a/c4cdca/32.png) [@Agnostic\_Pagan](https://boards.straightdope.com/u/Agnostic_Pagan)\ **Post date:** [February 18, 2011, 1:59pm UTC](https://boards.straightdope.com/t/what-are-the-restrictions-on-limiting-collective-bargaining/571780/7 "2011-02-18T13:59:16Z")
> [@What\_the](#): > > 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. 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](http://legis.wisconsin.gov/JR1SB-11.pdf) As far as the NLRA, it does not apply to state workers. From [Wikipedia](http://en.wikipedia.org/wiki/United_States_labor_law) > [@](#): > > Federal law does not provide employees of state and local governments with the right to organize or engage in union activities, except to the extent that the United States Constitution protects their rights to freedom of speech and freedom of association. The Constitution provides even less protection for governmental employees’ right to engage in collective bargaining: while it bars public employers from retaliating against employees for forming a union, it does not require those employers to recognize that union, much less bargain with it. The [Public Safety Employer-Employee Cooperation Act](http://en.wikipedia.org/wiki/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. ---
**Author:** ![jayjay](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jayjay/32/6765_2.png) [@jayjay](https://boards.straightdope.com/u/jayjay)\ **Post date:** [February 18, 2011, 2:17pm UTC](https://boards.straightdope.com/t/what-are-the-restrictions-on-limiting-collective-bargaining/571780/8 "2011-02-18T14:17:44Z")
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? ---
**Author:** ![Agnostic\_Pagan](https://avatars.discourse-cdn.com/v4/letter/a/c4cdca/32.png) [@Agnostic\_Pagan](https://boards.straightdope.com/u/Agnostic_Pagan)\ **Post date:** [February 18, 2011, 3:22pm UTC](https://boards.straightdope.com/t/what-are-the-restrictions-on-limiting-collective-bargaining/571780/9 "2011-02-18T15:22:20Z")
> [@Exapno\_Mapcase](#): > > In the GD thread [Will Wisconsin’s anti-union bill pass constitutional muster? Is it a good idea?](http://boards.straightdope.com/sdmb/showthread.php?t=597518), 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… > > Just the facts, ma’am, and the law. What have courts said on this subject? [ENGQUIST v. OREGON DEPARTMENT OF AGRICULTURE](http://caselaw.findlaw.com/summary/opinion/us-supreme-court/2008/06/09/158588.html) 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: > [@](#): > > The Court concluded that extending the class-of-one theory to the public-employment context would lead to undue judicial interference in state employment practices and invalidate public at-will employment. 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. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [February 18, 2011, 4:39pm UTC](https://boards.straightdope.com/t/what-are-the-restrictions-on-limiting-collective-bargaining/571780/10 "2011-02-18T16:39:30Z")
> [@jayjay](#): > > 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. Police, firemen and state troopers are exempt from this bill. They also happen to be the three unions that supported his election. ---
**Author:** ![Exapno\_Mapcase](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/exapno_mapcase/32/1051_2.png) [@Exapno\_Mapcase](https://boards.straightdope.com/u/Exapno_Mapcase)\ **Post date:** [February 18, 2011, 5:21pm UTC](https://boards.straightdope.com/t/what-are-the-restrictions-on-limiting-collective-bargaining/571780/11 "2011-02-18T17:21:54Z")
> [@Agnostic\_Pagan](#): > > 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. Does the Wisconsin constitution have anything specific to say on the subject, since that would appear to be controlling? ---
**Author:** ![Kimmy\_Gibbler](https://avatars.discourse-cdn.com/v4/letter/k/bbe5ce/32.png) [@Kimmy\_Gibbler](https://boards.straightdope.com/u/Kimmy_Gibbler)\ **Post date:** [February 18, 2011, 5:33pm UTC](https://boards.straightdope.com/t/what-are-the-restrictions-on-limiting-collective-bargaining/571780/12 "2011-02-18T17:33:23Z")
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. ---
**Author:** ![Duckster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/duckster/32/1244_2.png) [@Duckster](https://boards.straightdope.com/u/Duckster)\ **Post date:** [February 18, 2011, 5:49pm UTC](https://boards.straightdope.com/t/what-are-the-restrictions-on-limiting-collective-bargaining/571780/13 "2011-02-18T17:49:00Z")
> [@Snnipe\_70E](#): > > 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. > [@](#): > > The NLRA applies to employees in most private-sector workplaces, including manufacturing plants, retail centers, private universities, and health care facilities. Agricultural workers and domestic workers are not covered. Also exempted are supervisors and independent contractors. The Federal Labor Relations Authority protects the collective bargaining rights of federal employees, while the National Mediation Board does the same for railway and airline employees. [http://www.nlrb.gov/faq/nlrb](http://www.nlrb.gov/faq/nlrb) Glancing at the NLRB web site and there are case files involving state government employees. > [@Whack-a-Mole](#): > > President Reagan famously smashed the Air Traffic Controllers union. [ol] [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] ---
**Author:** ![Agnostic\_Pagan](https://avatars.discourse-cdn.com/v4/letter/a/c4cdca/32.png) [@Agnostic\_Pagan](https://boards.straightdope.com/u/Agnostic_Pagan)\ **Post date:** [February 18, 2011, 6:03pm UTC](https://boards.straightdope.com/t/what-are-the-restrictions-on-limiting-collective-bargaining/571780/14 "2011-02-18T18:03:53Z")
> [@Exapno\_Mapcase](#): > > Does the Wisconsin constitution have anything specific to say on the subject, since that would appear to be controlling? Not that I could see. [PDF](http://legis.wisconsin.gov/statutes/wisconst.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](http://www.aftface.org/index.php?option=content&task=view&id=546). > [@](#): > > After 40 long years of advocacy and a roller coaster ride of hopes raised, then dashed, academic employees in the University of Wisconsin system finally have the right to decide whether they will be represented by a union. On June 29 [2009], Wisconsin Gov. Jim Doyle signed the 2009-2011 biennial budget, which includes a provision extending collective bargaining rights to more than 20,000 UW faculty, academic staff and research assistants. 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. ---
**Author:** ![Agnostic\_Pagan](https://avatars.discourse-cdn.com/v4/letter/a/c4cdca/32.png) [@Agnostic\_Pagan](https://boards.straightdope.com/u/Agnostic_Pagan)\ **Post date:** [February 18, 2011, 7:18pm UTC](https://boards.straightdope.com/t/what-are-the-restrictions-on-limiting-collective-bargaining/571780/15 "2011-02-18T19:18:14Z")
Here is a [list](http://www.afscme.org/members/11075.cfm)of 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.