Even Franklin Roosevelt Thought Government Unions Had Limits

Here is a sentence that ought to stop the conversation at a certain kind of dinner party: the most important friend organized labor ever had in the White House wrote, in 1937, that collective bargaining could not be transplanted into the public service. Not a Republican. Not a banker. Franklin Roosevelt, who signed the Wagner Act.

We have spent sixty years drifting away from that sentence, and most Americans have no idea it was ever written. This is the story of how a principle that the left's own heroes accepted became a principle almost nobody remembers, and why a free people has good reason to ask whether the drift was wise.

Why the question is different

Start with a distinction the Founders would have recognized instantly. When a private employer and a private union bargain, each side spends its own money or its members' money. The employer must still sell to customers in a market, and if the settlement is too rich the company loses business and the jobs go with it. The market is the third party at the table, and it is a hard one.

When a government agency bargains with a union of its own employees, who is the third party? The taxpayer, who is not in the room. The public official who sits across the table has no money of his own at stake, serves for a time, and may owe his election in part to the very union he is bargaining with. The service the government sells is, by law, a monopoly. There is no competitor to lose business to.

There is a second, deeper difference. Public-sector bargaining is a political act. The subjects at the table, the budget, the staffing, the work rules, how a service is delivered, are the subjects that voters elect legislatures to decide. Every term a union wins at the table is a term the legislature has agreed not to change without bargaining. That moves a decision from the open arena of the legislature, where a citizen can petition, to a closed room where only two parties sit.

That is the argument, and it was not invented by conservatives. It came from men who loved unions.

What Roosevelt actually wrote

In August 1937, the president of the National Federation of Federal Employees, Luther Steward, wrote to the White House as his organization's convention approached. Roosevelt's reply, dated August 16, 1937, is the document everyone quotes and almost nobody reads. He expressed sympathy with the aim of organization among government workers and said that the employees were entitled to their organizations and to the right to present their views to the government. Then he drew a line. He wrote that the process of collective bargaining, as usually understood, cannot be transplanted into the public service, because the employer in the public service is the whole people, acting through their representatives. He added his conviction that militant tactics have no place in the functions of any organization of government employees, and he spoke of the unique relationship of government service to the public welfare.

Read the logic, not just the sentence. The employer is the whole people, acting through their elected representatives. A strike against that employer is not a labor dispute. It is a strike against the public. And a bargaining table that binds the legislature is a table at which the people's agents have signed away what the people never authorized them to give.

He was not alone. George Meany, who led the AFL-CIO, said in 1955 that it was impossible to bargain collectively with the government, and he was not the only labor leader to doubt it in those years. The federal government had also set the rule on strikes by statute: the Taft-Hartley Act of 1947 made it unlawful for federal employees to strike, a position later reflected in the oath of service and in Title 5 of the U.S. Code. If you were a public employee in 1950, you had the right to join an organization and petition, and the government did not bargain with you the way General Motors bargained with the autoworkers.

1962, the turn

Then came January 17, 1962. President John F. Kennedy signed Executive Order 10988, "Employee-Management Cooperation in the Federal Service." It gave federal employees the right to form and join employee organizations and set out a framework in which agencies would consult and, in a limited form, negotiate with them over working conditions. It did not authorize strikes, and it did not allow bargaining over pay, which Congress set by statute. It was meant as a modest step.

It is worth saying plainly that this was done by executive order and not by statute. A President who admired organized labor opened the door by himself, without a vote of the Congress. That is a lesson I will return to, because it is the pattern of the modern administrative state: a large change, begun by one office, that the legislature later ratifies because it has become too entrenched to reverse.

Presidents Johnson and Nixon extended and revised the framework with later orders. By the 1970s union membership in the federal workforce had grown a great deal, and a patchwork of orders governed the field. The unions wanted a statute. In 1978 they got one.

Title VII, 1978

The Civil Service Reform Act of 1978, signed by President Carter, reorganized the whole federal personnel system. It replaced the old Civil Service Commission with the Office of Personnel Management and the Merit Systems Protection Board. And in Title VII, now found in chapter 71 of Title 5, it wrote federal labor relations into statute. It created the Federal Labor Relations Authority to oversee the system, defined unfair labor practices, set out the scope of bargaining and gave an exclusive representative a legal footing. It kept the ban on strikes. It kept pay out of bargaining, because pay for most federal civilian employees is set by Congress under a statutory schedule.

You can defend this on the merits. You can also notice what it did. It converted a presidential courtesy into a permanent statutory structure and made the personnel system the subject of a continuing relationship between the bureaucracy and a set of organized interests. It also created, in section 7131 of Title 5, the practice of "official time," paid hours in which employees do union work. If you want the details on that, read Official Time Lets Federal Employees Do Union Work on the Taxpayer's Clock.

The effect over time was to give the unions a voice in how the government is run, a voice no citizen has. A voter can write a letter. An exclusive representative of federal employees has a seat at a table where the agency must negotiate over conditions of work before it changes them. The union, in turn, is a political actor. The largest federal-employee unions have long been active participants in elections, and it is not hard to see that the people they help elect are the people who later appoint the agency heads who sit across from them. That is not a scandal. It is a structure. A structure like that deserves a clear-eyed look from anyone who thinks the people, not the interested parties, should hold the power.

August 1981, the line is held

The principle that strikes against the government are unlawful was put to its hardest test in 1981. The Professional Air Traffic Controllers Organization, PATCO, had endorsed Ronald Reagan in 1980. In the summer of 1981 it demanded large pay raises and a shorter work week, and on August 3, 1981, about thirteen thousand controllers walked off the job in violation of the law and of the oath each had signed. President Reagan announced that those who did not return within forty-eight hours would be considered to have terminated their employment. Most did not return. Roughly eleven thousand controllers were fired, and the Federal Labor Relations Authority decertified the union.

The episode is remembered for what it said about presidential resolve. Its constitutional meaning is plainer. A union that had been politically friendly to the President struck against the nation's air traffic system, and the President enforced a law that Congress had passed and that PATCO's own members had sworn to obey. The rule of law means exactly that: friends and enemies alike are bound by the statute. Reagan did not need to like the controllers to enforce it. He needed only to take care that the laws be faithfully executed.

A fair account adds that the air traffic system was rebuilt over time, that the controllers who were fired had grievances about conditions that were not imaginary, and that critics see the episode as the start of a long decline in private-sector union power. I take the point that many Americans have mixed feelings. The legal question, though, was never in doubt: a strike by federal employees was against the law, and the law is the law.

The compelled dollar, and Janus

There is one more chapter, and it is the one that belongs to the First Amendment.

For decades, a public employee who did not want to join the union could still be required to pay what were called agency fees, on the theory that the union represented all employees in the unit and the non-members should not get a free ride. The Supreme Court allowed this in Abood v. Detroit Board of Education in 1977, so long as the fees covered only the union's bargaining costs and not its political activity.

In Janus v. AFSCME, decided June 27, 2018, the Court overruled Abood by a vote of five to four. Justice Alito, writing for the majority, held that requiring non-members to pay fees to a public-sector union violates the First Amendment. The reasoning was the one I just laid out. In the public sector, everything the union bargains over is a matter of public concern: wages, benefits, staffing, the shape of government. To compel a person to subsidize speech on matters of public concern with which he may disagree is to compel speech. The Court cited the old principle that to force a man to furnish contributions of money for the propagation of opinions he disbelieves is sinful and tyrannical, a line attributed to Jefferson.

The dissent, written by Justice Kagan, argued that the decision upended settled expectations and a forty-year precedent, and that the free-rider problem was real. That is a legitimate argument. It does not answer the point that a government employee has a First Amendment right not to pay for political advocacy. The Court's answer was that the right controls.

Notice the connection to the earlier story. If bargaining with the government is a political act, then the dues that fund it are political money. Nobody on the left of 1937 would have been confused about that. Roosevelt's sentence and Alito's opinion are the same thought, eighty-one years apart.

The strongest objection

Let me give the unions' case its best form, as a good lawyer would want it stated.

The objection runs like this: public workers are workers. They are teachers, nurses, firefighters, clerks, maintenance crews. They have the same human interest as anybody in a safe workplace, a fair process and a voice. When they have no union, they have no leverage, and the government as an employer can be as capricious as any private boss, with the difference that it is also the lawmaker. Federal workers are barred from striking and cannot bargain over pay, so the system already restricts them heavily. Collective bargaining in the federal sector is a limited institution, and many federal agencies run well with it. Besides, civil service rules exist because the government once ran on the spoils system, and a union is a check on a boss who wants to fire people for political reasons.

There is truth in that. A free society should respect the right of association, including among public employees. Nothing I have said denies government workers the right to join an organization, to petition, to complain to their representatives, or to seek redress. The First Amendment protects each of these.

Here is the answer, in four points.

1. The employer is the public, and the public is not at the table. The union sits across from an agency manager who is accountable only indirectly to voters, and who may have no strong interest in a hard bargain, because it is not his money. In a private company the owner has his own capital at risk. Nobody at the federal table does.
2. Existing protections already serve the legitimate purpose. The merit system, the Merit Systems Protection Board, whistleblower statutes and the Hatch Act already shield employees from political firing. A union is not required to guard against the spoils.
3. The scope of bargaining is a political question. When a statute commits a subject to bargaining, a future legislature or President who wishes to change it must go through a negotiation or obtain new law. A voter's choice at the ballot box is then partly overridden by a contract the voter never saw.
4. The right to associate is not the right to bind the sovereign. Citizens may form any organization they like. They may not, by organizing, acquire a claim on the legislature's power to decide how the public's money is spent and how the public's business is conducted.

Measured against the Founding

The Constitution begins "We the People," and the people delegate. Article I, Section 1 vests "All legislative Powers herein granted" in a Congress. Article II, Section 1 vests the "executive Power" in a President. Neither Article contemplates a third set of parties with a standing claim on the way public power is exercised, except the citizens who elect the first two.

Madison argued in Federalist 51 that the great difficulty of framing a government is this: "you must first enable the government to control the governed; and in the next place oblige it to control itself." The thing we ask a government to control about itself is its own cost and its own growth. An institution in which public employees and their representatives help write the terms under which the government works is a government that has been given an unusual number of reasons not to control itself. That is not an accusation of bad faith. It is a description of incentives, which is what the Founders thought good constitutions were for.

Hamilton wrote in Federalist 70 that plurality in the executive tends to conceal faults and destroy responsibility. The more a President must negotiate with organized interests inside his own branch about how to run it, the more he can say that the failure was not his. Voters need the opposite. They need someone to blame and someone to reward.

What is worth doing

This is a place to be careful and fair. You do not need to be anti-union to see the problem. You can respect a nurse, a teacher or an air traffic controller and still ask whether the structure of public-sector bargaining serves the public. The case is not about the people. It is about a design.

A conservative reform agenda here would be modest and constitutional. Keep the ban on strikes. Keep pay a matter for statute. Require that the cost of every collective bargaining agreement be disclosed, in plain figures, to the legislature that must fund it. Treat all union activity on the taxpayer's clock as a subject for public reporting. Protect every employee's First Amendment right to decline to subsidize a political organization, which Janus now guarantees. And above all, return the large questions to the people's representatives, who can be voted out. For a related piece of the same argument, see Schedule F Is Really a Fight Over Who Answers to the Voters, and for the wider theme, Conservatives Are Not Against Government, We Are Against Rule by Bureau.

The case in brief

1. Bargaining with a government differs from bargaining with a company: the employer is the whole people, there is no market discipline, and the taxpayer is not at the table.
2. Franklin Roosevelt said so in his letter of August 16, 1937, to the head of the National Federation of Federal Employees, and George Meany said much the same in 1955.
3. Executive Order 10988 in 1962 and Title VII of the Civil Service Reform Act of 1978 built the modern system, by presidential order first and by statute later.
4. Reagan's enforcement of the strike ban against PATCO in 1981 and the Court's decision in Janus in 2018 returned two principles to view: the law binds everyone, and no one can be forced to fund political speech.
5. Reform means respecting each worker's rights while returning the large questions to the voters' representatives.

What you can do: Read Title 5, chapter 71, on Congress.gov, then ask your member of Congress at My Representatives whether collective bargaining agreements for federal agencies should be reported to the legislature with their costs.