Public-sector unions, and why FDR doubted they could bargain at all

Here is a sentence that would get a candidate shouted off a stage in certain cities today: the process of collective bargaining, as usually understood, cannot be transplanted into the public service. The man who wrote it was not a Republican. He was not a free-market economist. He was Franklin Delano Roosevelt, the patron saint of the New Deal, writing in 1937 to a federal employees' union that had just invited him to its convention.

Let me do something unfashionable and take the sentence seriously. The question is simple enough to state in one line. Should the people who run the government, and the people who vote for the people who run the government, be able to negotiate the price of government against the taxpayer who is not in the room? Roosevelt thought the answer was no. By the time you finish this column I think you will see why he had the better of it.

Define the terms before you argue

Words first, because this debate is usually fought with the wrong ones.

Collective bargaining is a legal process in which a union, chosen by a group of employees, negotiates wages, benefits and working conditions with an employer as a single bloc. A private-sector union bargains with a company whose owners must earn a profit, face competitors and answer to customers. A public-sector union bargains with a government: a federal agency, a state, a county, a school district, a city. Those two things share a vocabulary and almost nothing else.

Here is the distinction that matters. In the private sector, the employer's money is the owners' money, and every dollar conceded in a contract comes out of a profit the owners would otherwise keep. The employer has a reason to say no, and a competitor ready to eat its lunch if it says yes too often. In the public sector, the money belongs to somebody else entirely: the taxpayer, who has no seat at the table, no vote on the contract and, in most cases, no idea the table exists.

What Roosevelt actually wrote

In August 1937 the National Federation of Federal Employees invited the President to its convention. He declined, and he sent a letter instead. The letter is a model of the courtesy FDR could muster when he wanted to be gracious while saying no. He praised the federation for writing a ban on strikes against the government into its own constitution. Then he drew the line. Collective bargaining, he said, cannot be transplanted into the public service. The reason he gave is the heart of the matter: in government, the employer is the whole people, acting through their elected representatives, and the representatives cannot be bound by a bargain struck with the employees against the public.

He went further on strikes. A strike by public employees, he wrote, amounts to an attempt to obstruct the operations of government until the demands are met. He called it unthinkable and intolerable. I will paraphrase here rather than quote at length, but you can read the whole letter yourself in the public papers of the presidents, and I recommend that you do. It reads like a document from another country.

Notice what FDR was not saying. He was not saying that civil servants are villains, or that they should be paid poorly, or that they should be powerless. Federal workers already had the right to petition Congress and to form associations under a 1912 law. He was saying that the particular machinery of negotiate-and-strike, built for factories, breaks when you bolt it onto a government. And he was saying it as the most pro-labor President in American history.

Coolidge and the Boston police

Roosevelt had a precedent in his mind, and so does anyone who reads American history carefully. In the summer of 1919 the police officers of Boston, wanting better pay and a union affiliated with the American Federation of Labor, went on strike. The police commissioner, Edwin Curtis, had forbidden the affiliation. On September 9 most of the force walked off the job. Boston was left short of police, and the result was looting and disorder severe enough that the governor called out the state guard.

The governor of Massachusetts was Calvin Coolidge. Samuel Gompers, the head of the AFL, wired him asking him to reinstate the strikers. Coolidge's reply, sent on September 14, contained the line that made him a national figure: there is no right to strike against the public safety by anybody, anywhere, any time. Curtis had dismissed the strikers and the state recruited a new force. Coolidge was elected Vice President the next year, and the lesson he had pressed, that a public servant's duty runs to the public and not to a bargaining unit, was part of why.

You can take from that episode whatever you like about police pay in 1919, which was by many accounts poor. The constitutional lesson stands apart from it. A police strike is not a labor dispute in the ordinary sense. It is a withdrawal of the government's basic function by the people entrusted with it. For a longer look at how Coolidge came up the ladder, see Calvin Coolidge Started on the Northampton City Council, a Lesson in the Ladder.

How the country drifted from FDR's line

For roughly two decades after Roosevelt's letter the rule held, more or less. Then it dissolved, and it dissolved at the state level first.

Wisconsin, 1959. The state enacted a law giving municipal employees the right to organize and to bargain with local governments. It is usually counted as the first statute of its kind in the country. Other states followed through the 1960s and 1970s, each writing its own rules, so that today the patchwork runs from states that bargain on nearly everything to states that forbid public bargaining altogether.

Executive Order 10988, January 1962. President John F. Kennedy signed an order giving federal employees the right to join unions and to have those unions recognized by agencies. It did not grant the right to strike, and it did not allow a union to negotiate pay, which Congress set by statute. But it moved the federal government from FDR's skepticism to institutional recognition. Later orders and the Civil Service Reform Act of 1978 built on it.

Put the two dates together and you can see the pivot. Between FDR's letter and Kennedy's order, the reasoning did not change. The politics did. Private-sector unions had peaked, and the movement looked for new members where it could find them: among the workers whom taxpayers, rather than shareholders, pay.

The numbers that tell the story

Here is the pattern in plain terms, from the Bureau of Labor Statistics series on union membership, which anyone can download. In the early 1980s roughly one in five American workers belonged to a union, and most of them worked in the private sector. Today the overall rate is about one in ten. Private-sector membership has fallen to a small single-digit share of private workers. The public-sector rate is several times higher, in the neighborhood of a third of public employees.

I will leave the exact decimals to the BLS release for the year you are reading, because the point does not depend on them. The point is that the movement shrank where employers could say no and held where they could not. The unions that survive in strength are the ones whose employer is a government. That is not a coincidence, and it is not a tribute to the persuasive powers of union organizers. It is what you would expect when the other side of the table is spending money that is not its own.

The steelman: bargaining is a right, not a favor

The strongest case for public-sector unions deserves a fair paragraph, so here it is, in words their defenders would sign.

Public employees are workers, the argument goes. They are citizens too, with a First Amendment right to associate. A teacher or a sanitation worker is no less entitled to a collective voice than a machinist at a private plant, and a government employer can be every bit as unfair as a private one. Without a union, a city can cut pay, change conditions and fire without cause. Bargaining also produces orderly settlement of disputes, which is better than the alternative of resignations and rumor. And the people who say all this are not asking to run the government: they are asking to be heard about their own hours, their own pay and their own safety.

That is a serious argument, and part of it is correct. Public employees have the right to associate and to petition. I would defend that right. It is exactly why the right to petition Congress was protected for federal workers as far back as 1912, and why no sensible conservative wants civil servants silenced.

The rebuttal, in numbered points

The trouble is what the argument leaves out, and I would put it in five points.

1. The employer is not the employer. In a private bargain, the people across the table are the owners or their agents. In a public bargain, the officials across the table are spending other people's money and answering to voters, not owners. They get no personal benefit from saying no and they face real costs, in the form of a strike or a hostile campaign, if they say it too hard. The structure rewards yes.

1. The union helps choose the other side. This is the point that Roosevelt's letter is remembered for, and it is the sharpest. A public union spends money and mobilizes members in elections, including the elections of the officials who will sit across the table from it. A private union cannot elect the board of directors of the company it bargains with. A public union can, in effect, help choose its own boss. Then it negotiates with the boss it helped to elect. No one seriously defends that arrangement in the abstract; they defend it as the way things are.

1. The taxpayer is a party with no representative. The family paying the bill is not at the table. Their only voice is the ballot, and the ballot is a blunt instrument, cast months or years later, on many issues at once. Meanwhile the union represents a concentrated interest with a full-time staff, a stake in every contract and a membership that votes in local elections at high rates. The old public-choice point holds: concentrated benefits and diffuse costs make for lopsided politics.

1. Strikes against government are different in kind. A strike at a factory hurts the owners and, in the end, the workers. A strike by police, firefighters, air traffic controllers or prison guards puts the public in danger and leaves them no alternative supplier. That is why federal law forbids strikes by federal employees, and why Reagan could act as he did in 1981 (see PATCO 1981, the strike that ended with 11,000 controllers fired). Even states that permit some public strikes tend to forbid them for safety workers.

1. Government does not compete. A company that agrees to a bad contract loses customers and, if it keeps at it, goes under, which disciplines both management and labor. A government monopoly in a given service has no such discipline. A school district's customers cannot easily take their business elsewhere, which is part of why What a Teachers Union Contract Says and Why Every Parent Should Read One makes such instructive reading.

Compulsory fees and Janus

Which brings us to the Supreme Court, and to the one place where the law has, in recent years, moved back toward Roosevelt's side.

For forty years, under Abood v. Detroit Board of Education (1977), public employees who chose not to join a union could nonetheless be required to pay it an "agency fee" covering the costs of collective bargaining. The justification was that a union must represent everyone in the bargaining unit and so everyone should chip in. The objection was that bargaining with a government is, by its nature, political: it is about how much to tax and spend, and that is exactly the content of political speech.

In Janus v. AFSCME, decided on June 27, 2018, the Court agreed, by a vote of five to four, in an opinion by Justice Samuel Alito. It overruled Abood. The holding: forcing a public employee to subsidize a union that he or she does not want to support violates the First Amendment, and a state may collect union dues or fees from a public employee only when the employee affirmatively consents. The logic ties directly to Roosevelt. When the subject of bargaining is the size and shape of government, there is no neat line between bargaining and politics, and the government cannot compel people to fund a side in a political argument.

I would not oversell Janus. It did not abolish public unions or end public bargaining. It said that a worker who does not want to pay may decline to. That is a modest rule, and it is still the kind of rule that the old system was built to avoid. For a closer look at what it meant in the classroom, see Janus v. AFSCME for Teachers, Eleven Questions About Union Fees, and for the history of how teachers got a seat at the table, How Teacher Unions Won the Right to Bargain, and What FDR Warned About.

What a Founding-era mind would notice

The Founders knew nothing of public-sector unions, but they knew the problem. Madison's argument in Federalist No. 10 is that a faction, a group united by a common interest adverse to the rights of others or to the permanent interests of the community, is the standing danger of popular government, and that the cure is to control its effects. The Constitution's answer is to divide power and set interest against interest.

A public union that can help elect the officials who set its pay pours the interest of one faction into the machinery meant to restrain it. That is not to say any union member is acting in bad faith. A union is doing what interest groups do, and doing it well. It is the structure that is at fault, and structure is what a constitutional thinker is supposed to examine. The Preamble speaks of "We the People" and not of "We the Contract". The people's government is supposed to answer to the people.

The reforms that follow, and what stays off the table

None of this means that public employees should be mistreated. Conservatives have good reason to want the government to be a fair employer: a well-paid, well-trained and accountable civil service is better than a bloated or demoralized one. The reforms that fit the argument are modest, and several of them are already law somewhere.

• Keep the ban on strikes by public employees, especially in public safety.
• Require that union dues and fees be opt-in, which Janus already demands.
• Pay unions' political activity from separate, voluntary funds.
• Hold bargaining sessions in public, so the taxpayer is at least in the room.
• Keep pay and benefits in the hands of legislatures that must answer to voters, not arbitrators who need not.
• Protect the merit system, and make it easier to remove a worker who cannot or will not do the job.

If those sound like a retreat from a right, remember that Roosevelt himself did not recognize the right in the form the movement later claimed. The people's government may treat its employees well. It may not hand over its authority.

The case in brief

1. Collective bargaining was built for private employers who spend their own money and face competition. Public employers spend the taxpayer's money and face neither.
2. Franklin Roosevelt, writing in 1937, said bargaining as usually understood cannot be transplanted into the public service, and that strikes against government are intolerable. Calvin Coolidge reached the same conclusion in 1919.
3. The shift began with Wisconsin's 1959 law and Executive Order 10988 in 1962, just as private-sector unions began their long decline, and public-sector unions are now the stronger part of the movement.
4. A public union helps elect the officials it bargains with, and the taxpayer has no seat at the table. That structure, not the character of any worker, is the problem.
5. Janus v. AFSCME (2018) held that compelled fees violate the First Amendment, a modest step back toward the principle Roosevelt stated.

What you can do: look up whether your school board, city council or county publishes its union contracts, read one, and attend the open meeting where the next one is approved.