How can Wisconsin stop employees from bargaining collectively?

Answers to your questions about the news.
Feb. 28 2011 6:00 PM

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How can Wisconsin stop employees from bargaining collectively?

A small number of protestors continue to demonstrate in the capitol building in Madison, Wisconsin. Click image to expand.
Labor protesters in Wisconsin's capitol rotunda

Wisconsin Gov. Scott Walker defended his proposal to strip public employees of certain collective bargaining rights on the Sunday morning talk shows this week. But, practically speaking, how can the state stop workers from bargaining as a unit?

By refusing to talk to their leaders. The 1935 National Labor Relations Act gave private sector workers the right to form unions, obligated employers to negotiate with union representatives in good faith, and prohibited discrimination against workers on the basis of their union membership. But there is no corresponding, nationwide mandate for public workers, meaning state-employee rights vary across the country. In some states—Georgia, North Carolina, South Carolina, Texas, and Virginia—officials are actually prohibited from negotiating with most union representatives. If a spokesman for, say, the Service Employees International Union calls up North Carolina Gov. Bev Perdue and asks for a chat about across-the-board raises, Perdue isn't allowed to haggle with him. Additionally, most state employees lack the right to strike—a crucial piece of leverage in the collective bargaining process. Even if a rogue state administrator were to reach an agreement with union representatives, the contract might not be valid. In 1977, the Virginia Supreme Court voided (PDF) contracts that teachers unions signed with local school district officials.

If Wisconsin state workers lose their right to collectively bargain for employment benefits, they'll have little recourse. Federal courts have consistently held that the First Amendment rights to assemble and petition the government for redress of grievances do not include collective bargaining over employment conditions. (Some other countries' constitutions include the freedom of association, rather than assembly, which often does encompass the right to bargain collectively.)

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Theoretically, employees don't need a formal legal right to bargain collectively. American workers started forming unions in the mid-19th century, without any legal recognition. While employers at the time refused to speak with union representatives, the leaders often got what they wanted through economic pressure. The unions held strikes, walkouts, and work slowdowns. They launched boycotts of their employer's products, applied political pressure, and sometimes resorted to violence and destruction of property.

Modern day public sector unions also sometimes work outside the law. Teachers unions, in particular, have held strikes in cities around the country, despite laws prohibiting them from doing so. They know that, except in the most extreme circumstances, the state can't replace hundreds, or even thousands, of teachers on short notice, and a strike can give them significant leverage in negotiations.

But extra-legal labor strikes raise risks as well. Furious state officials often seek judicial injunctions forcing the strikers back to work. When the employees don't comply, the judge can hold them in contempt of court. Fines, or even jail time, are possible repercussions.

Some government officials are open to mass firings, despite the logistical challenges. In 1981, President Ronald Reagan fired more than 11,000 air traffic controllers who were holding an illegal strike. Reagan cobbled together a team of non-union supervisors and military air traffic controllers to plug the hole. While 7,000 flights were cancelled, there were no accidents. (The air traffic controllers eventually won collective bargaining rights from the FAA.) * Got a question about today's news? Ask the Explainer.

Explainer thanks Charles Craver of George Washington University Law School, Thomas C. Kohler of Boston College Law School, and Charlie Wilson of the Ohio State University Moritz College of Law.

Correction, March 1, 2011: The original stated that the TSA granted the air traffic controllers collective bargaining rights. In fact, air traffic controllers work under the authority of the FAA. Return to the corrected sentence.

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