Congress to Impose Collective Bargaining

Published October 1, 2007

Congress is considering imposing unionism and collective bargaining on state and local public safety departments in states that have not given public-sector unions monopoly bargaining powers.

H.R. 980, the “Public Safety Employer-Employee Cooperation Act,” would apply to police, fire, and rescue departments. Analysts believe the bill would give unions at the state and local government level far greater powers than Congress has given to federal employee unions.

In June 5 testimony during a Congressional hearing, bill author Rep. Dale Kildee (D-MI) said the bill’s purpose is to “enable public safety employees to discuss work conditions with their employers.” That ignores the vast difference between being able to discuss something and negotiating a legally binding contract.

Mandates Union Power

The bill says the interests of employees “may be furthered” through collective bargaining and that the federal government is in a position to “encourage” conciliation. Those words are the velvet glove covering the iron fist of the bill’s provisions, which are entirely mandatory.

Proponents claim the bill exempts political subdivisions with less than 5,000 population or fewer than 25 full-time employees, but the bill doesn’t contain such an exemption. It does contain an exemption for state laws that contain such an exemption.

In short, the federal regulations would apply to these subdivisions, and the only way a state could escape federal regulation would be to enact a law that “substantially provides” the powers given to unions by the federal law.

Table 1: States that Do Not Grant Collective Bargaining Powers to Public-Sector Unions
Alabama North Carolina
Arizona North Dakota
Arkansas South Carolina
Colorado Tennessee
Indiana Utah
Louisiana Virginia
Mississippi West Virginia

At least 14 states (Table 1)–those without laws mandating public-sector collective bargaining and granting government unions monopoly bargaining powers–would feel an immediate, substantial impact from the legislation. Several other states (Table 2) have public-sector bargaining laws that probably would not qualify for an exemption from federal regulation.

Expansive Definition Likely

On June 5, R. Theodore Clark Jr., a prominent labor lawyer testifying against the bill on behalf of the National Public Employer Labor Relations Association (NPELRA), pointed out that even though the National Labor Relations Act provides for ceding authority to state laws not “inconsistent” with the provisions of the NLRA, “the NLRB has repeatedly refused to cede jurisdiction to the state boards.”

Table 2: States that Probably Would Not Qualify for an Exemption from H.R. 980
Georgia Missouri
Idaho Oklahoma
Kansas Texas
Kentucky Wyoming

On that basis, Clark speculated, “One could take virtually any of the 38 state statutory provisions providing collective bargaining rights for police officers and/or firefighters and come to the conclusion that there is something in each law that likewise does not meet the ‘substantially provides’ test.”

H.R. 980 was approved by the U.S. House of Representatives on July 17 by a vote of 314 to 97. When it reached the Senate it was expeditiously put on the General Calendar, from which it can be brought up at any time.

Constitutionality Questioned

Since passage of the Wagner Act in 1935, Congress has treated relationships between state and local government and employees as properly the prerogative of the states.

The new measure’s constitutionality was an issue on both sides of congressional testimony. Testifying in favor of the bill on June 5, Syracuse University law professor William Banks concluded it would not violate the Tenth Amendment because it does not “commandeer” state or local regulatory processes.

But his own testimony contradicted his conclusion: “The bill does not require state or local governments to enact or implement a federal regulatory program. Instead H.R. 980 places the onus on federal implementation through the Federal Labor Relations Authority (FLRA). If a state chooses not to enact a program that meets federal requirements, the FLRA steps in.”

Commerce Clause Issues Raised

Clark, on the other hand, said, “There is absolutely no doubt in my mind that the Supreme Court today would hold Congress does not have the constitutional authority under the Commerce Clause to enact H.R. 980 vis-à-vis states and thereby abrogate their Eleventh Amendment immunity.”

In discussing the Fourteenth Amendment implications of the bill, Clark noted, “The right of public employees to be represented for the purpose of bargaining collectively with their public employers, however, has never been recognized as a constitutional right. To the contrary, the courts have uniformly held that it is not a violation of the constitutional rights of public employees for public employers to refuse to engage in collective bargaining.”

Mark Mix, president of the National Right to Work Committee, said, “As has been seen in places where Big Labor has control over public employees, union bosses routinely demand more government spending, push for outrageous featherbedding that no union representing employees in a competitive private business would dare to seek, and block service improvements for taxpayers.

“Simply put, the Police and Firefighter Monopoly Bargaining Bill is yet another payback to Big Labor from their allies in Congress,” Mix concluded.

David Y. Denholm ([email protected]) is president of the Public Service Research Foundation, an independent not for profit organization that studies labor unions and union influence on public policy.