Public-Sector Bargaining Privileges Are Not Inalienable Rights

Public-sector bargaining proposals in Wisconsin, Ohio and Idaho have prompted impassioned claims about “collective bargaining rights.” This reference to “rights” is commonplace, but it’s misleading. As the U.S. Supreme Court has observed, collective bargaining with government is not a fundamental right, but rather a statutory privilege — a privilege that gives government unions systemic leverage that private unions do not have.

In the 1979 case Smith v. Arkansas State Highway Employees, Local 1315, the U.S. Supreme Court discussed workers’ First Amendment right to join a union:

The First Amendment protects the right of an individual to speak freely, to advocate ideas, to associate with others, and to petition his government for redress of grievances. And it protects the right of associations to engage in advocacy on behalf of their members.

In that same decision, however, the court clarified that the states are not obligated to engage in collective bargaining with public-sector unions — in other words, that public-sector unions have no First Amendment right to engage in collective bargaining:

The First Amendment right to associate and to advocate provides no guarantee that a speech will persuade or that advocacy will be effective. The public employee surely can associate and speak freely and petition openly, and he is protected by the First Amendment from retaliation for doing so. But the First Amendment does not impose any affirmative obligation on the government to listen, to respond or, in this context, to recognize the association and bargain with it.

Thus, the decision whether to allow public-sector bargaining belongs to each state, and states can choose to permit no public-sector bargaining at all. A 2002 Government Accountability Office report indicates that at that time, 12 states did not permit public-sector bargaining; 12, including Idaho, allowed some public-sector bargaining; and 26, including Wisconsin and Ohio, permitted most public-sector employees to engage in collective bargaining. Given this national variation, the Wisconsin, Ohio and Idaho bills, which scale back (but do not eliminate) some public-sector bargaining laws, are not out of the mainstream.

Nor is it difficult to see why state governments might wish to limit the power of public-sector unions. In the 1977 case Abood v. Detroit Board of Education, the U.S. Supreme Court discussed “the important and often-noted differences in the nature of collective bargaining in the public and private sectors.” The court wrote:

A public employer, unlike his private counterpart, is not guided by the profit motive and constrained by the normal operation of the market. Municipal services are typically not priced, and where they are[,] they tend to be regarded as in some sense “essential” and therefore are often price-inelastic. Although a public employer, like a private one, will wish to keep costs down, he lacks an important discipline against agreeing to increases in labor costs that in a market system would require price increases. A public-sector union is correspondingly less concerned that high prices due to costly wage demands will decrease output and hence employment.

In addition to escaping market discipline, public-sector unions face a government that is typically divided. The court observed:

The government officials making decisions as the public “employer” are less likely to act as a cohesive unit than are managers in private industry, in part because different levels of public authority [—] department managers, budgetary officials, and legislative bodies [—] are involved, and in part because each official may respond to a distinctive political constituency. And the ease of negotiating a final agreement with the union may be severely limited by statutory restrictions, by the need for the approval of a higher executive authority or a legislative body, or by the commitment of budgetary decisions of critical importance to others.

And ultimately, the court noted, there is a third critical difference between public- and private-sector bargaining:

[D]ecisionmaking by a public employer is above all a political process. The officials who represent the public employer are ultimately responsible to the electorate, which for this purpose can be viewed as comprising three overlapping classes of voters [—] taxpayers, users of particular government services, and government employees. Through exercise of their political influence as part of the electorate, the employees have the opportunity to affect the decisions of government representatives who sit on the other side of the bargaining table.

These disparities between bargaining in the private and public sectors led the court to conclude, “It is surely arguable, however, that permitting public employees to unionize and a union to bargain as their exclusive representative gives the employees more influence in the decisionmaking process than is possessed by employees similarly organized in the private sector.” Given that the power of government employee unions in collective bargaining necessarily amounts to power over the people themselves, the people’s representatives can — and should — periodically scrutinize that power and curb excess. Public-sector bargaining is at best a privilege to be used with restraint; it is not an inalienable right. 

Patrick J. Wright is director of the Mackinac Center Legal Foundation, a public interest law firm that advances individual freedom and the rule of law in Michigan. Permission to reprint in whole or in part is hereby granted, provided that the author and the Legal Foundation are properly cited.