How Teacher Unions Won the Right to Bargain, and What FDR Warned About

Here is a bit of trivia that deserves to be better known. The president who gave American private-sector workers the strongest labor law in the nation's history, a man whose name is practically stitched into the union label, looked at the idea of collective bargaining by government employees in 1937 and said, in effect, hold on a minute.

I find that delicious, folks. It is the political equivalent of finding out that the founder of a famous diner thought hot food was a mistake. Franklin Roosevelt was no enemy of organized labor. He signed the National Labor Relations Act in 1935. And yet when he was asked about letting the people who work for the government bargain with the government, the man who was famous for his appetite for new programs had a very old-fashioned worry. This post tells the story of how his caution was set aside, how teachers' unions became one of the most powerful forces in school politics, and why the structure of the arrangement, not the character of the teachers, is the thing worth arguing about.

Terms, and a respectful word first

Let me say right at the top that this post is about structure. Teachers are, for the most part, serious people doing difficult work for modest pay, and nothing here is an attack on any of them. A teacher who joins a union is exercising a right, and a teacher who does not join is exercising one too. The argument concerns the system in which unions, school boards and elected officials interact.

Define the terms.

• Collective bargaining is negotiation between an employer and a union that represents a group of employees, over wages, hours and working conditions, resulting in a contract.
• The public sector means government employees, as opposed to the private sector, where employers are businesses spending their own money or their investors'.
• Exclusive representation means that one union is the sole bargaining agent for all employees in a unit, whether or not they are members.
• Sovereignty, in this context, is the idea that the government acts for the whole public and is accountable to it through elections, so it cannot be bargained with as though it were one party among equals.

One: the early associations

Teachers' organizations in America are older than most people realize. The National Education Association traces its origin to 1857, when a group of educators founded the National Teachers Association; it took the name NEA in 1870. For a long time it was a professional association, led heavily by administrators, concerned with standards, pay, pensions and the dignity of the profession, and it did not behave like a traditional labor union.

The American Federation of Teachers was founded in 1916 in Chicago, and from the start it affiliated with the American Federation of Labor and identified with the labor movement. It argued that teachers were workers who needed the kind of organized power that other workers had. The two organizations competed for decades, with the AFT closer to the trade-union tradition and the NEA closer to the professional one. In time, their methods converged.

Two: what Roosevelt warned

In August 1937, President Roosevelt wrote a letter to Luther Steward, the president of the National Federation of Federal Employees, which had invited him to speak at its convention. In it, Roosevelt took a position that surprises many who know only his record on private-sector labor.

I will paraphrase accurately rather than quote, since I want to be careful not to put words in his mouth. Roosevelt said that the process of collective bargaining, as it is usually understood, cannot be transplanted into the public service. His reasoning rested on the nature of government: the employer, he said, is the whole people, who speak through their representatives in the legislature. The administrative officials cannot bind the government by agreement in the way a business owner can bind a business, because the power to set the terms rests with the people's elected representatives. And he drew a hard line about strikes, saying that a strike of public employees amounts to an attempt to prevent or obstruct the operations of government until the employees' demands are met, which he regarded as intolerable.

He did not say federal workers should have no voice. He wrote that they were entitled to organize, and to make their views known through their organizations. His point was narrower and more interesting: that bargaining over the terms of public employment is different from bargaining in a private firm because the party across the table is not an owner spending his own money. It is the public.

That is the warning in the title of this post. It was a warning from a friend of labor.

Three: Wisconsin, 1959

Roosevelt's caution held for a generation. Then it began to give way, state by state, and the first major breakthrough came in Wisconsin. In 1959 the state enacted a law, signed by Governor Gaylord Nelson, authorizing municipal employees to bargain collectively with their local governments. It is generally treated as the first statute of its kind in the country. School districts were local governments, so Wisconsin's teachers were among those who gained bargaining rights.

The law was a template. Over the next two decades, state after state passed a statute authorizing some form of public-sector bargaining, with wide variation in the details. Some allowed strikes in limited circumstances. Many prohibited them. Many authorized the collection of fees from workers who did not join, a feature that was later challenged at the Supreme Court; see Janus v. AFSCME for Teachers, Eleven Questions About Union Fees.

Four: New York City, 1961 and 1962

The great turning point for teachers came in New York City. The ground had been prepared in 1958, when Mayor Robert Wagner issued an executive order giving city employees limited collective bargaining rights. Teachers were not initially covered. In the early 1960s, a new organization, the United Federation of Teachers, an affiliate of the AFT, was formed by the merger of several teacher groups and led by Albert Shanker, who became one of the most important labor leaders of his generation.

The UFT held a one-day strike in November 1960, in defiance of state law, which prohibited strikes by public employees. In December 1961 the city's teachers voted in a representation election for a bargaining agent, and the UFT won, defeating a rival group. In 1962 the union struck for a day in April, and the city's teachers ratified their first collective bargaining agreement that year.

Meanwhile, nationally, President John F. Kennedy signed Executive Order 10988 in January 1962, granting federal employees a limited right to organize and bargain, though not to strike. The two developments reinforced each other. By the end of the decade, public-sector bargaining had moved from the exotic to the established.

Union membership among public employees rose dramatically, and the share of public employees who belonged to unions grew to the point that they became a larger part of the union movement than private-sector workers. That is the arc: from a legal prohibition in the 1930s, to a handful of local experiments, to a national pattern.

The steelman: why bargaining makes sense

A fair statement of the case for public-sector bargaining runs like this. Public employees are employees. They are entitled to a say in their working conditions, and the experience of school systems with no bargaining was not always good: low pay, arbitrary dismissals and a wide gap between the burdens placed on teachers and the voice allowed them. Unions have helped win salary schedules, grievance procedures, due process protections and sometimes smaller classes. A teacher who is treated unfairly deserves a representative. And the right to organize is a right the Constitution protects as an aspect of the freedom of association.

I accept that. Teachers have every right to associate, and a school system that mistreats its employees will lose good ones. The point at issue is narrower than "should teachers have a union." It is whether the bargaining arrangement has a structural problem that private bargaining does not.

Five: the structural problem, in numbered points

1. The employer is the public, and the public is not at the table. In private bargaining, management faces a union and has every incentive to resist costs, because the money is the owners'. In public bargaining, the negotiators on the government's side are officials who are spending taxpayers' money, which is not theirs. The taxpayer, whose interest is at stake, has no seat.
2. The union helps choose the other side. This is the point FDR's logic anticipates. Public-sector unions are among the most active participants in school-board elections and state and local politics, because the people who win those elections will be on the other side of the bargaining table. A union that can help elect the officials who then bargain with it is negotiating with people it helped hire. In the private sector, a union does not appoint management. That asymmetry is the heart of the matter.
3. School board elections are low-turnout contests. In many districts, board elections occur in off-cycle years, when few voters turn out. An organized group with a direct financial stake can carry great weight in such a contest. That is not a conspiracy. It is how incentives work.
4. The costs are deferred. Pension and benefit promises made at the bargaining table come due decades later, long after the officials who made them have left office. A promise that costs nothing this year and a great deal in thirty is the easiest promise for an official to make.
5. Contracts tend to cover more than pay. A teacher contract can reach assignments, evaluation, transfer and layoff rules, and the use of time, which affect what a school can do for children. That is why every parent should read one, as What a Teachers Union Contract Says and Why Every Parent Should Read One urges. It is also why the question reaches beyond wages to who governs the school.

Let me stress what this argument does not say. It does not say any teacher is acting in bad faith. A union that bargains hard for its members is doing the job its members hired it to do. The reform conversation should be aimed at the structure, not at the people inside it.

A thought about leverage

There is one more way to see the difference, and it comes from asking what a strike does in each setting.

When workers at a private company strike, they impose a cost on the owner, who loses production and revenue and must decide whether the demands are worth it. The owner's own money is on the table, and the discipline of the market stands behind him: if the contract is too generous, the business loses customers and eventually fails. The settlement is pulled toward a point the business can survive.

When public school teachers strike, the owner who bears the cost is nobody in particular. The families bear it, scrambling for child care and watching a school year shorten. The elected officials bear it politically. But there is no market to discipline the settlement, because the district cannot go out of business and the families cannot take their custom elsewhere, since in most places the district is the only free option. The strike's pressure lands on the public, and the public's representatives are the people being pressured to settle. That is the situation Roosevelt had in mind when he described a strike against government as an effort to obstruct its operations until demands are met.

Public-sector law across the states reflects some of this unease. Many states prohibit teacher strikes by statute, and the penalties and enforcement vary. Whether such bans are enforced is a different question from whether the principle behind them is sound. The principle is that the people's government is not a party like any other, and that the people's children are not bargaining chips. A teacher who loves her students feels that tension more than anyone, which is one more reason to blame the arrangement and not the teacher.

Six: later chapters

The story continued. In 2011, Wisconsin, the state that had opened the door in 1959, enacted a law that limited collective bargaining for most public employees to base wages, which touched off one of the most intense political fights in the history of the state. The law has been litigated and debated since. Whatever you think of it, notice what happened: the state that pioneered public-sector bargaining decided, a half-century later, to revisit the terms.

And in 2018, in Janus v. AFSCME, the Supreme Court held that requiring public employees who decline to join a union to pay fees to it violates the First Amendment. The case was about the speech rights of individual workers, and it is the subject of a companion Q&A post. For a related fight over tenure rules, see Vergara v. California, the Lawsuit That Put Teacher Tenure on Trial.

The Founding angle

The Founders thought a great deal about factions, groups of citizens united by a common interest adverse to the rights of others or to the permanent interests of the community. Madison's Federalist No. 10 defines a faction in those terms. His solution was an extended republic with many competing interests, so that no one faction could dominate. A single interest that can reliably help elect its own counterparties is the structure Madison worried about, and the reason has nothing to do with the faction's sincerity. It has to do with the way power gathers where it is not checked.

Roosevelt's 1937 letter makes a Madisonian point in the language of the New Deal: government is the public's, and the public's representatives cannot bargain away the public's sovereignty as though it were a firm's property.

What to do with this

You do not have to oppose unions to take the structure seriously. You can respect the people and still insist on transparency: contracts published and easily found, board meetings in which the public can speak, elections held when voters are paying attention, and an honest account of the long-run costs of what is promised. Those are reforms a thoughtful person of any party should be able to support.

The case in brief

1. The NEA (1857) and AFT (1916) are old organizations, but public-sector bargaining did not exist at scale until Wisconsin's 1959 law and the New York City teacher election and strike of 1961 and 1962.
2. President Roosevelt, in his 1937 letter to the National Federation of Federal Employees, argued that collective bargaining as usually understood could not be transplanted into government service, and that public-employee strikes were intolerable.
3. The structural problem is that the taxpayer is not at the table, the union helps elect the officials across it, and costs are deferred.
4. None of this is a criticism of teachers, who deserve respect and a fair contract.
5. Transparency of contracts, meetings and elections is the remedy.

What you can do: find your school district's current union contract on its website, read the sections on evaluation and layoffs, and attend one school board meeting to see who speaks.