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Labor's Enduring Divide: The Distinct Path of Public Sector Unions in the United States1

Published online by Cambridge University Press:  01 October 2014

Alexis N. Walker*
Affiliation:
Stetson University

Abstract

Why did public sector unionization rise so dramatically and then plateau at the same time as private sector unionization underwent a precipitous decline? The exclusion of public sector employees from the centerpiece of private sector labor law—the 1935 Wagner Act—divided U.S. labor law and relegated public sector demand-making to the states. Consequently, public sector employees' collective bargaining rights were slow to develop and remain geographically concentrated, unequal and vulnerable. Further, divided labor law put the two movements out of alignment; private sector union density peaked nearly a decade before the first major statutes granting public sector collective bargaining rights passed. As a result of this incongruent timing and sequencing, the United States has never had a strong union movement comprised of both sectors at the height of their membership and influence.

Type
Research Article
Copyright
Copyright © Cambridge University Press 2014 

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Footnotes

1.

For their helpful feedback, I would like to thank Suzanne Mettler, Michael Jones-Correa, Richard J. Ellis, Melissa Buis Michaux, Seth Cotlar, David Gutterman, Sammy Basu, Jonneke Koomen, Michael Marks, Casey Radostitz, Mallory SoRelle, Martha Wilfahrt, and participants of the 2012 Policy History Conference. I am also grateful for the detailed, invaluable feedback I received from two anonymous reviewers and the Studies in American Political Development journal editors. This research was made possible with support from the Horowitz Foundation for Social Policy.

References

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3. Estimates were provided by the Center for Economic and Policy Research using Bureau of Labor Statistics data originally compiled by the Labor Research Association. There unfortunately is no ideal data set that measures public and private sector union density over time. All of the available data has issues of comparison over time as the definition of what constituted a union and how membership was measured has changed. For example, public sector unions were not always distinguished from private sector unions and some public sector unions, such as the National Education Association, were not considered a union but a membership association. Taken together, these discrepancies mean we should be cautious in putting too much weight into any specific density level for a given year. Further, we need to recognize that although the trends illustrated in Figure 1 appear to bear out across a variety of different data sets measuring union density, we cannot be fully confident in the comparability of the measurements across time. For a description of these measurement difficulties (as well as public and private sector union density estimates that complement the data used in Figure 1), see Barry T. Hirsch and David A. MacPherson, “Union Membership and Coverage Database from the CPS,” UnionStats.com, 2013, http://unionstats.com.

4. Although scholars have noted the separate organizing environments in the public and private sector, including the role of public policies in shaping these environments (e.g., Henry S. Farber, “Union Membership in the United States: The Divergence Between the Public and Private Sectors” [Working Paper No. 503, Princeton University Industrial Relations Section, 2005]), these comparisons have not addressed the puzzle of the distinct development trajectories of both sectors—especially the delayed growth of the public sector.

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31. Exec. Order No. 12612, 1987 (Reagan).

32. The decision to target the state and local level for collective bargaining rights cannot be explained simply with the reasoning that this is the site of employment where the actual collective bargaining would take place. Private sector employees are organized by worksite—a highly localized form of organization—yet they pursued national level collective bargaining rights. Just as private sector employees sought collective bargaining rights across worksites and industries, public sector employees span the local, state, and national level suggesting their decision to target the state and local level for demand-making is beyond the exigencies of workplace location; workplace bargaining as well as political lobbying are separate enterprises from formal legal recognition.

33. National Labor Relations Act (NLRA) of 1935, U.S. Code, Title 29 §§ 151–69, section 7.

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36. NLRA 1935, section 2.

37. It was the central disagreement expressed in the minority viewpoint included in the report of the bill from the House Committee on Labor to the floor and an amendment seeking to strike the exclusion was hotly debated on the House Floor (US NLRB 1949, 2910, 3200).

38. These documents include (1) a full legislative history of the Act compiled by the NLRB (National Labor Relations Board [NLRB], Legislative History of the National Labor Relations Act, 1935 [Washington, DC: NLRB, 1949]Google Scholar); (2) the personal papers of Senator Robert F. Wagner and Leon Keyserling (the relevant papers of Leon Keyserling and Senator Wagner are held in the Special Collections of the Georgetown University library); (3) Kenneth M. Casebeer's analyses on the drafting of the Wagner Act, particularly Leon Keyserling's involvement (Casebeer, Kenneth M., “Holder of the Pen: An Interview with Leon Keyserling on Drafting The Wagner Act,” University of Miami Law Review 285, no. 42 [1987]: 285360Google Scholar; Casebeer, “Drafting Wagner's Act: Leon Keyserling and the Pre-Committee Drafts of the Labor Disputes Act and the National Labor Relations Act,” Industrial Relations Law Journal 73, no. 11 [1989]: 73131Google Scholar; Casebeer, “Clashing Views of the Wagner Act: The Files of Leon Keyserling,” Labor's Heritage 44, no. 2 [April 1990]: 4455Google Scholar); (4) Leon Keyserling's writings about the drafting process (Why the Wagner Act?,” in The Wagner Act: After Ten Years, ed. Silverberg, Louis G. [Washington, DC: Bureau of National Affairs, 1945], 533Google Scholar; Oral History Interview with Leon H. Keyserling, Washington, D.C., May 3, May 10 and May 19, 1971 [Independence, MO: Harry S. Truman Library, 1975]Google Scholar); (5) oral history interviews, conducted in the late 1960s to the mid-1970s, with the major drafters of the Wagner Act, namely Milton Handler, Lloyd Garrison, Philip Levy, Howard Smith, and Lee Pressman (“NLRB Oral History Interviews, 1968–1975” [Catherwood Library Kheel Center, Cornell University, Ithaca, NY, 2013]); and (6) the publications of some of the existing public sector unions of the time as well as the papers of the Wisconsin State Employees Association (WSEA), which became the founding local of AFSCME in 1935 (the relevant papers of the WSEA and AFSCME are held in the state archives of the Wisconsin State Historical Society).

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40. Public employee publications consulted were the Wisconsin State Employees Union Records (1932–1936, Wisconsin Historical Society, Madison), the Federal Employee (1934–1935), and the Post Office Clerk (1934–1935).

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42. The Wisconsin legislature was pursuing their own labor disputes bill at the same time as the Wagner Act, and the Wisconsin bill also excluded public sector workers (Padway, “Joseph A., “Wisconsin Labor Disputes Analysis,” in Wisconsin State Employees Union Records [Box 43, Folder A.F. Of S.C. + M.E. Wisconsin Historical Society, Madison, 1935]Google Scholar).

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45. ACLU, “Suggested Changes to the Bill,” 11.

46. NLRB, Legislative History, 2653.

47. This was the conclusion reached by labor attorney Joseph Rosenfarb in his 1940 in-depth study of the Act that included a glowing preface by Senator Wagner himself. Rosenfarb concluded that “the exception of the political entities of our federal system from the operation of the [Act] is in accordance with the prevailing tradition that labor unionism among government employees is hedged in by limitations on union activities, such as strikes and picketing, not applicable to labor engaged in private industry” (Rosenfarb, The National Labor Policy and How It Works [New York: Harper, 1940], 58Google ScholarPubMed).

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49. NLRB, Legislative History, 2653.

50. Moreover, the Supreme Court may not have been opposed to public sector collective bargaining rights. The Court did after all uphold the Wagner Act as constitutional in NLRB v. Jones & Laughlin Steel Corporation (301 U.S. 1 [1937]) under the Commerce Clause. The Court would use the Commerce Clause several decades later to extend the Fair Labor Standards Act (FLSA) protections to public hospital employees in Maryland v. Wirtz (McCartin, Joseph A., “A Wagner Act for Public Employees: Labor's Deferred Dream and the Rise of Conservatism, 1970–1976,” Journal of American History 95, no. 1–6 [2008], 130CrossRefGoogle Scholar). While the Court would go on to decide against extending the FLSA to all public sector employees in National League of Cities v. Usery, McCartin rightly points out that it was this decision, not the earlier decision about public hospital workers, that was surprising and highly contingent on the political events of the time (“A Wagner Act for Public Employees,” 130). This suggests that there was some ground for the Supreme Court to uphold public sector collective bargaining rights in the period after the Wagner Act, especially if they were defined in a way that took pains to differentiate them from the private sector (banning strikes, for example).

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63. President Andrew Jackson would grant the Washington, D.C., naval shipyard workers a 10-hour day in 1836 after a strike and mass demonstration (Kearney, Labor Relations in the Public Sector, 12).

64. Kearney, Labor Relations in the Public Sector.

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84. Slater, Public Workers: Government Employee Unions, 159–62.

85. Ibid., 131, 162.

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89. Ibid.

90. McCartin, “Bringing the State's Workers In,” 79.

91. Ibid.

92. Slater, Public Workers: Government Employee Unions.

93. Ibid., 158.

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95. Miller and Canak, “The Passage of Public Sector Collective Bargaining Laws,” 181.

96. Emma Schweppe argues that “by 1937 the nation-wide movement toward public service unionism appeared in New York City,” as employees sought to organize independent municipal unions and demand recognition (The Firemen's and Patrolmen's Unions in the City of New York, 165).

97. Bernstein, Promises Kept, 210–11.

98. Kahlenberg, Tough Liberal, 46.

99. Ibid., 48.

100. Ibid., 49.

101. Dick Turpin, “Report Card: Teacher Union Drive Expected,” Los Angeles Times, January 6, 1962; “A Union for Teachers,” New York Times, December 19, 1961. The agreement between the city and UFT was noted by newspapers across the country including major markets like Los Angeles and Chicago (Turpin, “Report Card”; “A Union for Teachers”; “Teacher Union Head Sees Rise in Bargaining,” Chicago Tribune, December 29, 1961).

102. Bernstein, Promises Kept, 206.

103. Ibid., 212–213.

104. Ibid., 214.

105. Ibid., 216.

106. The law was extended to state workers in 1967.

107. Slater, Public Workers: Government Employee Unions, 168.

108. Ibid., 179.

109. NIMLO (National Institute of Municipal Law Officers), Latest Developments on Labor Unions and Municipalities: Transcript of NIMLO Labor Relations Seminar (Washington, DC: NIMLO, 1968)Google Scholar.

110. Ibid., 25.

111. Ibid., 27.

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113. Valletta and Freeman, “Appendix B,” 406.

114. Ibid., 416.

115. Farber, “Union Membership in the United States.”

116. Ibid., 15–16.

117. It is unclear why Valletta and Freeman identify Illinois as unique in 1955. Their data set measures public sector collective bargaining law across the states over time. They look beyond legislation to also include case law and attorney general decisions that created state policy when legislation did not exist. They do not explain why Illinois was coded as the first state to authorize collective bargaining, but it is likely that this coding was a result of case law or an attorney general decision. Wisconsin's public sector collective bargaining legislation in 1961 is widely regarded as the first state to recognize public sector collective bargaining rights through legislation.

118. Robert G. Valletta and Richard B. Freeman, “NBER Public Sector Collective Bargaining Law Data Set,” National Bureau of Economic Research, 2002 (updated February 25, 2010), http://www.nber.org/publaw/, accessed May 15, 2012.

119. Freeman and Ichniowski, When Public Sector Workers Unionize.

120. Dave Jamieson “Union Membership Rate for U.S. Workers Tumbles to New Low: Union Membership 1948–2012 Table” (analysis by the Center for Economic and Policy Research, citing Bureau of Labor Statistics [BLS] and Labor Research Association analysis of BLS data), Huffington Post, January 23, 2013, http://huff.to/10wzlbz.

121. Estlund, “The Ossification of American Labor Law,” 1527.

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123. Bronfenbrenner and Juravitch, The Impact of Employer Opposition on Union Certification Win Rates, 21.

124. Freeman, “Contraction and Expansion,” 85.

125. Fischl, “Running the Government Like a Business,” 49.

126. Bronfenbrenner and Juravitch, The Impact of Employer Opposition on Union Certification Win Rates, 18.

127. Bronfenbrenner and Juravitch, The Impact of Employer Opposition on Union Certification Win Rates.

128. Ibid., 1.

129. Ibid.

130. Farber, “Union Membership in the United States”; Freeman and Ichniowski, When Public Sector Workers Unionize.

131. Public Service Research Council (PSRC), Public Sector Bargaining and Strikes (Vienna, VA: Public Service Research Council, 1982)Google ScholarPubMed.

132. Richard B. Freeman, “Will Labor Fare Better Under State Labor Relations Law?” in 58th Meeting of the Labor and Employment Relations Association Series (2006, http://lera.press.illinois.edu/proceedings2006/freeman.html, accessed July 10, 2012).

133. Warren, Dorian, “The Unsurprising Failure of Labor Law Reform and the Turn to Administrative Action,” in Reaching for a New Deal: Ambitious Governance, Economic Meltdown, and Polarized Politics in Obama's First Two Years, ed. Skocpol, Theda and Jacobs, Lawrence R. (New York: Russell Sage Foundation, 2011), 191229Google Scholar.

134. Warren, “The Unsurprising Failure of Labor Law Reform,” 195.

135. McCartin, “A Wagner Act for Public Employees,” 129.

136. Ibid., 130.

137. McCartin, “A Wagner Act for Public Employees.”

138. Ibid., 137.

139. National League of Cities v. Usery, 426 U.S. 833 (1976).

140. McCartin, “A Wagner Act for Public Employees,” 146.

141. Ibid., 130.

142. The Court's decision in National League of Cities was a close vote contingent on Justice Blackmun's agreement to support the majority. Joseph McCartin notes that Blackmun initially leaned toward upholding the extension of the FLSA, but political events including “the roiling nationwide fiscal crisis” and heightened confrontations between public sector unions and municipal and state governments ultimately led him to reverse his position (McCartin, “A Wagner Act for Public Employees,” 145). Had the Court taken up the issue of public sector collective bargaining in the Wagner Act or any time before the fiscal crises of the mid-1970s, it plausibly could have ruled in favor of public sector employee rights. Indeed, as McCartin rightly points out, the Court ruled in 1968 that the Fair Labor Standards Act's protections could apply to public hospital employees under the Commerce Clause (McCartin, “A Wagner Act for Public Employees,” 130). The Commerce Clause was the basis for the Court's upholding of the Wagner Act and thus the use of the Clause with regards to public employees suggests a legal precedent the Court could have drawn on to establish national collective bargaining rights for public sector employees. The decision in Maryland v. Wirtz “seemingly validated the principle that the federal government could regulate the labor relations practices of state and local governments” and illustrates that a national Wagner Act for public employees may have passed Court scrutiny prior to 1975 (McCartin, Wagner Act for Public Employees,” 130).

143. McCartin, “A Wagner Act for Public Employees,” 147.

144. The Supreme Court reversed much of the decision in National League with the 5-4 ruling in Garcia v. San Antonio Metropolitan Transit Authority (469 U.S. 528 [1985]), but future decisions have also reasserted some limits of federal regulation on matters not related to interstate commerce. Regardless, by the time of the ruling in 1985, the conservative backlash and the decline of union influence suggest that “by then the damage had been done” (McCartin, “A Wagner Act for Public Employees,” 146). A window of opportunity for a national Wagner Act for public sector employees has closed, at least for the time being.

145. The standard deviation of public sector union density is nearly six times as large as the standard deviation of private sector union density vividly illustrating that whereas private sector union density tends to cluster around one (low) level, public sector union density is marked by states with very high and very low densities. Standard deviations were calculated using union density data from Hirsch and Macpherson, “Union Membership.” Public sector union density tends to be higher than private sector union density across the board because, even in states lacking any public sector collective bargaining statutes, federal workers as well as some municipal workers possess collective bargaining rights.

146. Hirsch and Macpherson, “Union Membership.”

147. McCartin, “A Wagner Act for Public Employees,” 123.

148. Richard B. Freeman and Eunice Han, “Public Sector Unionism Without Collective Bargaining” (working paper, AEA Meetings, San Diego, CA, January 6, 2012, http://www.people.fas.harvard.edu/~ehan/AEA_2013_Han.pdf).

149. Mettler, Dividing Citizens, 13.

150. “Continuing the Fight to Bring Collective Bargaining Rights to All Public Workers: Resolution No. 20,” 35th International Convention, Las Vegas, NV, June 24–28,2002, http://www.afscme.org/members/conventions/resolutions-and-amendments/2002/resolutions/20-continuing-the-fight-to-bring-collective-bargaining-rights-to-all-public-workers, accessed February 28, 2012.

151. Slater, Public Workers: Government Employee Unions, 196.

152. Freeman and Han, “Public Sector Unionism,” 17.

153. U.S. General Accounting Office (USGAO), Collective Bargaining Rights: Information on the Number of Workers With and Without Bargaining Rights (Report to Congressional Requesters, U.S. Senate, September 2002), 14, http://www.gao.gov/assets/240/235562.pdf, accessed April 3, 2013; U.S. Census Bureau, “No. HS-46, Government Employment and Payrolls: 1946–2001.”

154. Percentage was calculated using the USGAO calculation of the number of state and local employees lacking collective bargaining rights, divided by the total number of state and local employees listed in the U.S. Census table.

155. Wildavsky, Aaron, “Federalism Means Inequality: Political Geometry, Political Sociology, and Political Culture,” in The Costs of Federalism, ed. Golembiewski, Robert T. and Wildavsky, Aaron (New Brunswick: Transaction Books, 1984), 5572Google Scholar.

156. Mettler, Dividing Citizens.

157. Ibid., 13.

158. NLRA 1935, section 7.

159. Robertson, David Brian, “Federalism and American Political Development,” in Oxford Handbook on American Political Development, ed. Lieberman, Robert, Mettler, Suzanne, and Valelly, Richard (Oxford: Oxford University Press, 2014Google Scholar, Oxford Handbooks Online, www.oxfordhandbooks.com).

160. Cannon, Lou, “Right Turn: Election Success Gave Republicans the Momentum to Push Key Conservative Issues in Many Statehouses,” State Legislatures (National Council of State Legislatures; July/August 2011): 1418Google Scholar.

161. Ibid., 14.

162. Wasserman, Donald S., “Collective Bargaining Rights in the Public Sector: Promises and Reality,” in Justice on the Job: Perspectives on the Erosion of Collective Bargaining in the United States, ed. Block, Richard N., Friedman, Sheldon, Kaminski, Michelle, and Levin, Andy (Kalamazoo, MI: W. E. Upjohn Institute for Employment Research, 2006), 5786CrossRefGoogle Scholar.

163. Slater, Public Workers: Government Employee Unions, 199.

164. It is certainly debatable how integrated the public and private sector union movements would have been if their development trajectories were in alignment in the postwar years. One thing that likely would have promoted cohesion is the postwar economic boom that contributed to the growth and success of private sector unions and would have meant less competition for scarce resources (Alexis N. Walker, “Solidarity's Wedge: How America's Federalized Labor Law Divides and Diminishes Organized Labor in the United States” [doctoral dissertation, Cornell University, Ithaca, NY, 2014]). However, a strong public and private sector union movement occurring simultaneously would have been influential even if there was little cohesion. First, the labor movement may differ on a variety of issues but shows strong solidarity on the fundamental issue of collective bargaining rights. Second, the labor movement has a larger effect that extends beyond any one union. Unions boost wages and benefits, and more significantly, prior to declining union density, “had a much broader and less appreciated effect on the distribution of American economic rewards” by offering “organizational counterweights to the power of those at the top” (Hacker, Jacob S. and Pierson, Paul, Winner-Take-All Politics: How Washington Made the Rich Richer—and Turned Its Back on the Middle Class [New York: Simon & Schuster, 2010], 57Google Scholar). Further, Radcliff, Benjamin and Davis, Patricia (“Labor Organization and Electoral Participation in Industrial Democracies,” American Journal of Political Science 44, no. 1 [January 2000]: 132–41)CrossRefGoogle Scholar find that higher levels of union density are associated with higher levels of turnout and Radcliff (Organized Labor and Electoral Participation in American National Elections,” Journal of Labor Research 22, no. 2 [Spring 2001]: 405–15CrossRefGoogle Scholar) finds that higher levels of union density increase the probability of all citizens to vote. Thus a larger union movement in the mid-20th century would likely have had an effect on political participation, wages and benefits, and the legislative agenda, whether working in concert or as separate movements.

165. Walker, “Solidarity's Wedge.”

166. Freeman, “Will Labor Fare Better Under State Labor Relations Law?”

167. Salvatore, Nick, “A Brief Ascendency: American Labor After 1945,” The Forum 10, no. 1 (2012): 126CrossRefGoogle Scholar.

168. Slater, Public Workers: Government Employee Unions, 200.