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Labor's Enduring Divide: The Distinct Path of Public Sector Unions in the United States1

  • Alexis N. Walker (a1)

Abstract

Why did public sector unionization rise so dramatically and then plateau at the same time as private sector unionization underwent a precipitous decline? The exclusion of public sector employees from the centerpiece of private sector labor law—the 1935 Wagner Act—divided U.S. labor law and relegated public sector demand-making to the states. Consequently, public sector employees' collective bargaining rights were slow to develop and remain geographically concentrated, unequal and vulnerable. Further, divided labor law put the two movements out of alignment; private sector union density peaked nearly a decade before the first major statutes granting public sector collective bargaining rights passed. As a result of this incongruent timing and sequencing, the United States has never had a strong union movement comprised of both sectors at the height of their membership and influence.

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1.

For their helpful feedback, I would like to thank Suzanne Mettler, Michael Jones-Correa, Richard J. Ellis, Melissa Buis Michaux, Seth Cotlar, David Gutterman, Sammy Basu, Jonneke Koomen, Michael Marks, Casey Radostitz, Mallory SoRelle, Martha Wilfahrt, and participants of the 2012 Policy History Conference. I am also grateful for the detailed, invaluable feedback I received from two anonymous reviewers and the Studies in American Political Development journal editors. This research was made possible with support from the Horowitz Foundation for Social Policy.

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2. See Shaffer, Robert, “Where Are the Organized Public Employees? The Absence of Public Employee Unionism from U.S. History Textbooks, and Why It Matters,” Labor History 43, no. 3 (2002): 315–34 and McCartin, Joseph A., “Bringing the State's Workers In: Time to Rectify an Imbalanced US Labor Historiography,” Labor History 47, no. 1 (2006): 7394 on the exclusion of the public sector from labor history.

3. Estimates were provided by the Center for Economic and Policy Research using Bureau of Labor Statistics data originally compiled by the Labor Research Association. There unfortunately is no ideal data set that measures public and private sector union density over time. All of the available data has issues of comparison over time as the definition of what constituted a union and how membership was measured has changed. For example, public sector unions were not always distinguished from private sector unions and some public sector unions, such as the National Education Association, were not considered a union but a membership association. Taken together, these discrepancies mean we should be cautious in putting too much weight into any specific density level for a given year. Further, we need to recognize that although the trends illustrated in Figure 1 appear to bear out across a variety of different data sets measuring union density, we cannot be fully confident in the comparability of the measurements across time. For a description of these measurement difficulties (as well as public and private sector union density estimates that complement the data used in Figure 1), see Barry T. Hirsch and David A. MacPherson, “Union Membership and Coverage Database from the CPS,” UnionStats.com, 2013, http://unionstats.com.

4. Although scholars have noted the separate organizing environments in the public and private sector, including the role of public policies in shaping these environments (e.g., Henry S. Farber, “Union Membership in the United States: The Divergence Between the Public and Private Sectors” [Working Paper No. 503, Princeton University Industrial Relations Section, 2005]), these comparisons have not addressed the puzzle of the distinct development trajectories of both sectors—especially the delayed growth of the public sector.

5. For example, Farber, Henry S. and Western, Bruce, “Ronald Reagan and the Politics of Declining Union Organization,” British Journal of Industrial Relations 40, no. 3 (2002): 385401; Sloane, Arthur A. and Witney, Fred, “Labor Relations,” in Labor Relations, 12th ed. (Upper Saddle River, NJ: Prentice-Hall, 2007), 3.

6. U.S. Census Bureau, “No. HS-46, Government Employment and Payrolls: 1946–2001,” http://www.census.gov/statab/hist/HS-46.pdf, 2003, accessed February 28, 2012; Hirsch and MacPherson, “Union Membership.”

7. Freeman, Richard B. and Ichniowski, Casey, eds., When Public Sector Workers Unionize (Chicago: University of Chicago Press, 1988), 4.

8. Freeman, Richard B., “Contraction and Expansion: The Divergence of Private Sector and Public Sector Unionism in the United States,” Journal of Economic Perspectives 2, no. 2 (Spring 1988): 6388.

9. Hirsch and Macpherson, “Union Membership.”

10. This also calls into question the claim that rising temporary employment can explain these patterns. If easier-to-unionize longer-term employment is primarily in the public sector, then we would expect public sector union density to be robust wherever public sector employment is robust, which is not the case.

11. Lipset, Seymour Martin, “Comparing Canadian and American Unions,” Society 24, no. 2 (1987): 6070; Lipset, “Trade Union Exceptionalism: The United States and Canada,” Annals of the American Academy of Political and Social Science 538 (1995): 115–30; Lipset, American Exceptionalism: A Double-edged Sword (New York: W.W. Norton, 1996); Lipset, Seymour Martin and Marks, Gary, It Didn't Happen Here: Why Socialism Failed in the United States (New York: W.W. Norton, 2000); Lipset, Seymour Martin and Meltz, Noah M., The Paradox of American Unionism: Why Americans Like Unions More Than Canadians Do, But Join Much Less (Ithaca, NY: ILR Press, 2004).

12. Lipset and Meltz, The Paradox of American Unionism, 173.

13. Ibid., 174.

14. Streeck, Wolfgang and Thelen, Kathleen Ann, “Introduction: Institutional Change in Advanced Political Economies,” in Beyond Continuity: Institutional Change in Advanced Political Economies, ed. Streeck, Wolfgang and Thelen, Kathleen Ann (Oxford: Oxford University Press, 2005), 139.

15. Streeck and Thelen, “Introduction: Institutional Change,” 9.

16. Canada, Australia, the United Kingdom, Germany, France, Sweden, Norway, Finland, the Netherlands, Spain, and Japan.

17. Kearney, Richard C. (with David G. Carnevale), Labor Relations in the Public Sector (New York: Marcel Dekker, 2001), 45; Giuseppe Casale and Joseph Tenkorang, “Public Service Labour Relations: A Comparative Overview” (Paper No. 17, Social Dialogue, Labour Law and Labour Administration Branch, International Labour Organization, 2008), http://www.ilo.org/wcmsp5/groups/public/---ed_dialogue/---lab_admin/documents/publication/wcms_112942.pdf, accessed November 20, 2012; Public Services International, “Report on Trade Union Rights in the Public Services,” (Ferney-Voltaire, France, 1985).

18. Brewster, Chris, Dempsey, Michael, and Hegewisch, Ariane, “The Unions' Response to Change in the Public Sector,” in Public Sector Reform: An International Perspective, ed. Nolan, Brendan (Houndmills, England: Palgrave, 2001), 136.

19. Kearney, Labor Relations in the Public Sector, 47.

20. Pierson, Paul, Politics and Time (Princeton, NJ: Princeton University Press, 2004), 54.

21. Orren, Karen and Skowronek, Stephen, The Search for American Political Development (New York: Cambridge University Press, 2006), 6.

22. Sombart, Werner, Why Is There No Socialism in the United States? (White Plains, NY: International Arts and Sciences Press, 1976).

23. Pierson, Politics and Time, 70.

24. Freeman, Richard B. and Rogers, Joel, “The Promise of Progressive Federalism,” in Remaking America: Democracy and Public Policy in an Age of Inequality, ed. Soss, Joe, Hacker, Jacob S., and Mettler, Suzanne (New York: Russell Sage Foundation, 2007), 205–27; Skocpol, Theda, Protecting Soldiers and Mothers: The Political Origins of Social Policy in the United States (Cambridge, MA: Belknap Press, 1992).

25. Mettler, Suzanne, Dividing Citizens: Gender and Federalism in New Deal Public Policy (Ithaca, NY: Cornell University Press, 1998).

26. Robertson, David Brian, Federalism and the Making of America (New York: Routledge, 2012), 9.

27. Pierson, Politics and Time, 70.

28. The Court explained in a 1979 ruling that although public employees had the right to join a union, “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 [the union]” (Smith v. Arkansas State Hwy, Employees Local, 441 U.S. 463 [1979]). The Court went on to note that their decision would have been different, “[were] public employers such as the Commission subject to the same labor laws applicable to private employers, this refusal might well constitute an unfair labor practice.” Excluded from institutionalized national private sector labor law, public sector employees were denied such a right.

29. Volden, Craig, “Entrusting the States with Welfare Reform,” in The New Federalism: Can the State Be Trusted?, ed. Ferejohn, John and Weingast, Barry R. (Stanford, CA: Hoover Institute Press, 1997), 7879.

30. Exec. Order No. 12612, 1987 (Reagan); Exec. Order No. 13132, 1999 (Clinton); 74 Fed. Reg. 24693, 2009 (Obama).

31. Exec. Order No. 12612, 1987 (Reagan).

32. The decision to target the state and local level for collective bargaining rights cannot be explained simply with the reasoning that this is the site of employment where the actual collective bargaining would take place. Private sector employees are organized by worksite—a highly localized form of organization—yet they pursued national level collective bargaining rights. Just as private sector employees sought collective bargaining rights across worksites and industries, public sector employees span the local, state, and national level suggesting their decision to target the state and local level for demand-making is beyond the exigencies of workplace location; workplace bargaining as well as political lobbying are separate enterprises from formal legal recognition.

33. National Labor Relations Act (NLRA) of 1935, U.S. Code, Title 29 §§ 151–69, section 7.

34. Gross, James A., Broken Promise: The Subversion of U.S. Labor Relations Policy, 1947–1994 (Philadelphia: Temple University Press, 2003), 1.

35. Bernstein, Irving, The New Deal Collective Bargaining Policy (Berkeley: University of California Press, 1950), 91; Labor Department: Suggested Changes to the Bill,” in Leon Keyserling Collection (Box 1, Folder 9, Special Collections, Georgetown University, Washington, DC, 1934).

36. NLRA 1935, section 2.

37. It was the central disagreement expressed in the minority viewpoint included in the report of the bill from the House Committee on Labor to the floor and an amendment seeking to strike the exclusion was hotly debated on the House Floor (US NLRB 1949, 2910, 3200).

38. These documents include (1) a full legislative history of the Act compiled by the NLRB (National Labor Relations Board [NLRB], Legislative History of the National Labor Relations Act, 1935 [Washington, DC: NLRB, 1949]); (2) the personal papers of Senator Robert F. Wagner and Leon Keyserling (the relevant papers of Leon Keyserling and Senator Wagner are held in the Special Collections of the Georgetown University library); (3) Kenneth M. Casebeer's analyses on the drafting of the Wagner Act, particularly Leon Keyserling's involvement (Casebeer, Kenneth M., “Holder of the Pen: An Interview with Leon Keyserling on Drafting The Wagner Act,” University of Miami Law Review 285, no. 42 [1987]: 285360; Casebeer, “Drafting Wagner's Act: Leon Keyserling and the Pre-Committee Drafts of the Labor Disputes Act and the National Labor Relations Act,” Industrial Relations Law Journal 73, no. 11 [1989]: 73131; Casebeer, “Clashing Views of the Wagner Act: The Files of Leon Keyserling,” Labor's Heritage 44, no. 2 [April 1990]: 4455); (4) Leon Keyserling's writings about the drafting process (Why the Wagner Act?,” in The Wagner Act: After Ten Years, ed. Silverberg, Louis G. [Washington, DC: Bureau of National Affairs, 1945], 533; Oral History Interview with Leon H. Keyserling, Washington, D.C., May 3, May 10 and May 19, 1971 [Independence, MO: Harry S. Truman Library, 1975]); (5) oral history interviews, conducted in the late 1960s to the mid-1970s, with the major drafters of the Wagner Act, namely Milton Handler, Lloyd Garrison, Philip Levy, Howard Smith, and Lee Pressman (“NLRB Oral History Interviews, 1968–1975” [Catherwood Library Kheel Center, Cornell University, Ithaca, NY, 2013]); and (6) the publications of some of the existing public sector unions of the time as well as the papers of the Wisconsin State Employees Association (WSEA), which became the founding local of AFSCME in 1935 (the relevant papers of the WSEA and AFSCME are held in the state archives of the Wisconsin State Historical Society).

39. Keyserling, Leon, “NLRB Series: LK's Drafts of Bills to Establish NLRB,” in Leon Keyserling Collection (Box 1, Folder 18. Special Collections, Georgetown University, Washington, DC, 1934); Casebeer, “Drafting Wagner's Act.”

40. Public employee publications consulted were the Wisconsin State Employees Union Records (1932–1936, Wisconsin Historical Society, Madison), the Federal Employee (1934–1935), and the Post Office Clerk (1934–1935).

41. Zander, Arnold, “Letter to Senator F. Ryan Duffy,” in Wisconsin State Employees Union Records (Box 44, Folder Correspondence Miscellaneous, Wisconsin Historical Society, Madison, 1934); Zander, “Letter to Senator Robert M. La Follette, Jr.,” in Wisconsin State Employees Union Records (Box 44, Folder Correspondence Miscellaneous, Wisconsin Historical Society, Madison, 1934); Zander, “Letter to Congressmen C. W. Henney,” in Wisconsin State Employees Union Records (Box 44, Folder Correspondence Miscellaneous, Wisconsin Historical Society, Madison, 1934).

42. The Wisconsin legislature was pursuing their own labor disputes bill at the same time as the Wagner Act, and the Wisconsin bill also excluded public sector workers (Padway, “Joseph A., “Wisconsin Labor Disputes Analysis,” in Wisconsin State Employees Union Records [Box 43, Folder A.F. Of S.C. + M.E. Wisconsin Historical Society, Madison, 1935]).

43. Zander, Arnold, “Letter to J. F. Emme, Secretary Minnesota State Employees Association,” in Wisconsin State Employees Union Records (Box 44, Folder Correspondence Miscellaneous, Wisconsin Historical Society, Madison, 1934).

44. American Civil Liberties Union (ACLU), “Suggested Changes to the Bill by Organizations,” in Leon Keyserling Collection (Box 1, Folder 8. Special Collections, Georgetown University, Washington, DC, 1934), 1.

45. ACLU, “Suggested Changes to the Bill,” 11.

46. NLRB, Legislative History, 2653.

47. This was the conclusion reached by labor attorney Joseph Rosenfarb in his 1940 in-depth study of the Act that included a glowing preface by Senator Wagner himself. Rosenfarb concluded that “the exception of the political entities of our federal system from the operation of the [Act] is in accordance with the prevailing tradition that labor unionism among government employees is hedged in by limitations on union activities, such as strikes and picketing, not applicable to labor engaged in private industry” (Rosenfarb, The National Labor Policy and How It Works [New York: Harper, 1940], 58).

48. Sires, Ronal V., “The Repeal of the Trade Disputes and Trade Unions Act of 1927,” Industrial and Labor Relations Review 6, no. 2 (1953): 227–38.

49. NLRB, Legislative History, 2653.

50. Moreover, the Supreme Court may not have been opposed to public sector collective bargaining rights. The Court did after all uphold the Wagner Act as constitutional in NLRB v. Jones & Laughlin Steel Corporation (301 U.S. 1 [1937]) under the Commerce Clause. The Court would use the Commerce Clause several decades later to extend the Fair Labor Standards Act (FLSA) protections to public hospital employees in Maryland v. Wirtz (McCartin, Joseph A., “A Wagner Act for Public Employees: Labor's Deferred Dream and the Rise of Conservatism, 1970–1976,” Journal of American History 95, no. 1–6 [2008], 130). While the Court would go on to decide against extending the FLSA to all public sector employees in National League of Cities v. Usery, McCartin rightly points out that it was this decision, not the earlier decision about public hospital workers, that was surprising and highly contingent on the political events of the time (“A Wagner Act for Public Employees,” 130). This suggests that there was some ground for the Supreme Court to uphold public sector collective bargaining rights in the period after the Wagner Act, especially if they were defined in a way that took pains to differentiate them from the private sector (banning strikes, for example).

51. Murphy, Majorie, Blackboard Unions: The AFT and the NEA, 1900–1980 (Ithaca, NY: ILR Press, 1990).

52. Murphy, Blackboard Unions, 151.

53. Ibid., 162.

54. Farhang, Sean and Katznelson, Ira, “The Southern Imposition: Congress and Labor in the New Deal and Fair Deal,” Studies in American Political Development 19, no. 1 (Spring 2005), 1.

55. Pierson, Paul, “Increasing Returns, Path Dependence, and the Study of Politics,” American Political Science Review 94, no. 2 (June 2000): 251–67.

56. Hacker, Jacob S., “The Historical Logic of National Health Insurance: Structure and Sequence in the Development of British, Canadian, and U.S. Medical Policy,” Studies in American Political Development 12, no. 1 (1998), 57.

57. Bernstein, Irving, “The Growth of American Unions,” American Economic Review 44, no. 3 (June 1954), 304. These density levels are higher if the sample is restricted to nonagricultural private sector employees. According to Leo Troy (Introduction,” in Trade Union Membership, 1897–1962, ed. Troy, Leo [National Bureau of Economic Research, 1965, http://www.nber.org/chapters/c1707.pdf], 1–10), private sector union membership grew from just under 13.3 percent of the American workforce in 1935 to 20.7 percent by 193. Union density reached nearly 30 percent by 1945.

58. Slater, Joseph E., “The Court Does Not Know ‘What a Labor Union Is’: How State Structures and Judicial (Mis)Constructions Deformed Public Sector Labor Law,” Oregon Law Review 79 (2000), 990.

59. Kearney, Labor Relations in the Public Sector, 82–83.

60. “Federal Union Policy Told,” Los Angeles Times, September 6, 1937.

61. “Governed by Our Servants,” Wall Street Journal, August 1, 1928.

62. Slater, “The Court Does Not Know,” 996.

63. President Andrew Jackson would grant the Washington, D.C., naval shipyard workers a 10-hour day in 1836 after a strike and mass demonstration (Kearney, Labor Relations in the Public Sector, 12).

64. Kearney, Labor Relations in the Public Sector.

65. Ibid., 13.

66. Ibid., 14.

67. Slater, Joseph E., Public Workers: Government Employee Unions, the Law, and the State, 1900–1962 (Ithaca, NY: ILR Press, 2004).

68. Slater, Public Workers: Government Employee Unions, 82–88.

69. National Institute of Municipal Law Officers (NIMLO), Labor Unions and Municipal Employee Law (Washington, DC: NIMLO, 1946).

70. Slater, Joseph E., “Petting the Infamous Yellow Dog: The Seattle High School Teachers Union and the State, 1928–1931,” Seattle University Law Review 23, no. 3 (2000): 500.

71. Existing labor law hampers union organizing because it is out of date with modern labor relations (Cobble, Dorothy Sue, “Making Postindustrial Unionism Possible,” in Restoring the Promise of American Labor Law, ed. Friedman, Sheldon, Hurd, Richard W., Oswald, Rudolph A., and Seeber, Ronald L. [Ithaca, NY: ILR Press, 1994], 286; Carre, Francoise J., duRivage, Virginia, and Till, Chris, “Representing the Part-Time and Contingent Workforce: Challenges for Unions and Public Policy,” in Restoring the Promise of American Labor Law, ed. Friedman, Sheldon, Hurd, Richard W., Oswald, Rudolph A., and Seeber, Ronald L. [Ithaca, NY: ILR Press, 1994], 317; Estlund, Cynthia L., “The Ossification of American Labor Law,” Columbia Law Review 102, no. 6–10 [2002]: 1527; Lichtenstein, Nelson, State of the Union: A Century of American Labor [Princeton, NJ: Princeton University Press 2002], 120; Wial, Howard, “New Bargaining Structures for New Forms of Business Organization,” in Restoring the Promise of American Labor Law, ed. Friedman, Sheldon, Hurd, Richard W., Oswald, Rudolph A., and Seeber, Ronald L. [Ithaca, NY: ILR Press, 1994], 310) and incentivizes hostile employer resistance (Bronfenbrenner, Kate, “Employer Behavior in Certification Elections and First-Contract Campaigns: Implications for Labor Law Reform,” in Restoring the Promise of American Labor Law, ed. Friedman, Sheldon, Hurd, Richard W., Oswald, Rudolph A., and Seeber, Ronald L. [Ithaca, NY: ILR Press, 1994], 7589; Commission on the Future of Worker-Management Relations [CFWMR], Fact-Finding Report [Washington, DC: U.S. Government Printing Office, 1994] and Report and Recommendations [Washington, DC: U.S. Government Printing Office, 1994]; Clawson, Dan and Clawson, Mary Ann, “What Has Happened to the U.S. Labor Movement? Union Decline and Renewal,” Annual Review of Sociology 25 [1999]: 95119; Fischl, Michael Richard, “‘Running the Government Like a Business’: Wisconsin and the Assault on Workplace Democracy,” Yale Law Journal 121 [2011]: 3968; Freeman, “Contraction and Expansion,” 6388; Friedman, Sheldon, Hurd, Richard W., Oswald, Rudolph A., and Seeber, Ronald L., ed., Restoring the Promise of American Labor Law [Ithaca, NY: ILR Press, 1994]; Flynn, Joan, “A Quiet Revolution at the Labor Board: The Transformation of the NLRB, 1935–2000,” Ohio State Law Journal 61 [2000]: 1361–456; Gross, James A., “The Demise of the National Labor Policy: A Question of Social Justice,” in Restoring the Promise of American Labor Law, ed. Friedman, Sheldon, Hurd, Richard W., Oswald, Rudolph A., and Seeber, Ronald L. [Ithaca, NY: ILR Press, 1994], 51; Hurd, Richard W. and Uehlein, Joseph B., “Patterned Responses to Organizing: Case Studies of the Union Busting Convention,” in Restoring the Promise of American Labor Law, ed. Friedman, Sheldon, Hurd, Richard W., Oswald, Rudolph A., and Seeber, Ronald L. [Ithaca, NY: ILR Press, 1994], 6174; James C. Hyatt, “Firms Learn Art of Keeping Unions Out: Figures Indicate They're Passing Course,” Wall Street Journal, April 19, 1977; Klein, Janice A. and Wanger, E. David, “The Legal Setting for the Emergence of the Union Avoidance Strategy,” in Challenges and Choices Facing American Labor, ed. Kochan, Thomas A. [Cambridge, MA: MIT Press, 1985], 7588; Kleiner, Morris, “Intensity of Management Resistance: Understanding the Decline of Unionization in the Private Sector,” Journal of Labor Research 22, no. 3 [2001]: 519–40; Logan, John, “Consultants, Lawyers, and the ‘Union Free’ Movement in the USA Since the 1970s,” Industrial Relations Journal 33, no. 3 [2002]: 197214 and The Union Avoidance Industry in the United States,” British Journal of Industrial Relations 44, no. 4 [2006]: 651–75; Joann S. Lublin, “Labor Strikes Back at Consultants That Help Firms Keep Unions Out,” Wall Street Journal, April 2, 1981; Douglas Martin, “When the Boss Calls in This Expert, the Union May Be in Real Trouble,” Wall Street Journal, November 19, 1979; Rogers, Joel, “Divide and Conquer: Further ‘Reflections on the Distinctive Character of American Labor Law,’Wisconsin Law Review 1 [1990]: 1147; Tope, Daniel and Jacobs, David, “The Politics of Union Decline: The Contingent Determinants of Union Recognition Elections and Victories,” American Sociological Review 74, no. 5 [2009]: 842–64). Further, NLRB and judicial decisions have deradicalized many of the Wagner Act's protections (Block, Richard N., Wolkinson, Benjamin W., and Kuhn, James W., “Some Are More Equal Than Others: The Relative Status of Employers, Unions and Employees in the Law of Union Organizing,” Industrial Relations Law Journal 10, no. 219 [1989]: 220–40; Klare, Karl E., “Judicial Deradicalization of the Wagner Act and the Origins of Modern Legal Consciousness, 1937–1941,” Minnesota Law Review 62, no. 265 [1978]: 265339; McCammon, Holly, “Legal Limits on Labor Militancy: U.S. Labor Law and the Right to Strike Since the New Deal,” Social Problems 37, no. 2 [1990]: 206–29).

72. Kingdon, John W., Agendas, Alternatives, and Public Policies (Boston: Little, Brown, 1984).

73. U.S. Department of Labor: Bureau of Labor Statistics, Handbook of Labor Statistics (Washington, DC: Government Printing Office, 1980).

74. Ibid., 208.

75. Bernstein, Irving, Promises Kept: John F. Kennedy's New Frontier (New York: Oxford University Press, 1991).

76. Bernstein, Promises Kept, 205.

77. By 1955, 874 of 1,374 cities with populations more than 10,000 had municipal unions, but the presence of a union did not guarantee collective bargaining (Bernstein, Promises Kept, 208). Indeed, just a few years earlier Emma Schweppe commented on the lack of protection for public sector employee unions: “Public employee union experience is limited…Few locals have mustered the strength to demand collective agreements. In 1946, eighty cities were listed [as having agreements] whereas ninety-seven were claimed as having written agreements covering one or more employee groups” (Schweppe, The Firemen's and Patrolmen's Unions in the City of New York: A Case Study in Public Employee Union [New York: King's Crown Press, 1948], 19). There were a growing number of public sector unions but, absent legal protections, they remained largely unsuccessful in actually negotiating with their employers or increasing dramatically in size and scope.

78. Bernstein, Promises Kept, 209.

79. Donoian, Harry A., “The AFGE and the AFSCME: Labor's Hope for the Future?,” Labor Law Journal 18, no. 12 (1967): 727–38.

80. Moody, Kim, An Injury to All: The Decline of American Unionism (New York: Verso, 1988), 182.

81. Levy, Peter B., “The New Left and Labor: The Early Years (1960–1963),” Labor History 31, no. 3 (1990): 294321; McCartin, “Bringing the State's Workers In”; Moody, An Injury to All.

82. Kahlenberg, Richard, Tough Liberal: Albert Shanker and the Battles Over Schools, Unions, Race, and Democracy (New York: Columbia University Press, 2007), 42.

83. Public sector union ties with the Civil Rights Movement, the women's movement, and the antiwar movement grew even stronger into the 1970s. The election of Jerry Wurf as president of AFSCME in particular pushed the union to become a strident activist for these sister movements. Not coincidentally, public sector union strike activity grew in tandem with the rise of social protest more broadly.

84. Slater, Public Workers: Government Employee Unions, 159–62.

85. Ibid., 131, 162.

86. Greenstone, David J., Labor in American Politics (New York: Vintage Books, 1969).

87. Shefter, Martin, Political Crisis/Fiscal Crisis: The Collapse and Revival of New York City (New York: Columbia University Press, 1992), 7375.

88. Slater, Public Workers: Government Employee Unions, 180.

89. Ibid.

90. McCartin, “Bringing the State's Workers In,” 79.

91. Ibid.

92. Slater, Public Workers: Government Employee Unions.

93. Ibid., 158.

94. Miller, Berkeley and Canak, William, “The Passage of Public Sector Collective Bargaining Laws: Unions, Business, and Political Competition in the American States,” Political Power and Social Theory 7 (1988): 249–92.

95. Miller and Canak, “The Passage of Public Sector Collective Bargaining Laws,” 181.

96. Emma Schweppe argues that “by 1937 the nation-wide movement toward public service unionism appeared in New York City,” as employees sought to organize independent municipal unions and demand recognition (The Firemen's and Patrolmen's Unions in the City of New York, 165).

97. Bernstein, Promises Kept, 210–11.

98. Kahlenberg, Tough Liberal, 46.

99. Ibid., 48.

100. Ibid., 49.

101. Dick Turpin, “Report Card: Teacher Union Drive Expected,” Los Angeles Times, January 6, 1962; “A Union for Teachers,” New York Times, December 19, 1961. The agreement between the city and UFT was noted by newspapers across the country including major markets like Los Angeles and Chicago (Turpin, “Report Card”; “A Union for Teachers”; “Teacher Union Head Sees Rise in Bargaining,” Chicago Tribune, December 29, 1961).

102. Bernstein, Promises Kept, 206.

103. Ibid., 212–213.

104. Ibid., 214.

105. Ibid., 216.

106. The law was extended to state workers in 1967.

107. Slater, Public Workers: Government Employee Unions, 168.

108. Ibid., 179.

109. NIMLO (National Institute of Municipal Law Officers), Latest Developments on Labor Unions and Municipalities: Transcript of NIMLO Labor Relations Seminar (Washington, DC: NIMLO, 1968).

110. Ibid., 25.

111. Ibid., 27.

112. Valletta, Robert G. and Freeman, Richard B., “Appendix B: The NBER Public Sector Collective Bargaining Data Set,” in When Public Sector Workers Unionize, ed. Freeman, Richard B. and Ichniowski, Casey (Chicago: University of Chicago Press, 1988), 399420.

113. Valletta and Freeman, “Appendix B,” 406.

114. Ibid., 416.

115. Farber, “Union Membership in the United States.”

116. Ibid., 15–16.

117. It is unclear why Valletta and Freeman identify Illinois as unique in 1955. Their data set measures public sector collective bargaining law across the states over time. They look beyond legislation to also include case law and attorney general decisions that created state policy when legislation did not exist. They do not explain why Illinois was coded as the first state to authorize collective bargaining, but it is likely that this coding was a result of case law or an attorney general decision. Wisconsin's public sector collective bargaining legislation in 1961 is widely regarded as the first state to recognize public sector collective bargaining rights through legislation.

118. Robert G. Valletta and Richard B. Freeman, “NBER Public Sector Collective Bargaining Law Data Set,” National Bureau of Economic Research, 2002 (updated February 25, 2010), http://www.nber.org/publaw/, accessed May 15, 2012.

119. Freeman and Ichniowski, When Public Sector Workers Unionize.

120. Dave Jamieson “Union Membership Rate for U.S. Workers Tumbles to New Low: Union Membership 1948–2012 Table” (analysis by the Center for Economic and Policy Research, citing Bureau of Labor Statistics [BLS] and Labor Research Association analysis of BLS data), Huffington Post, January 23, 2013, http://huff.to/10wzlbz.

121. Estlund, “The Ossification of American Labor Law,” 1527.

122. Bronfenbrenner, Kate and Juravitch, Tom, The Impact of Employer Opposition on Union Certification Win Rates: A Private-Public Sector Comparison (Washington, DC: Economic Policy Institute, 1994).

123. Bronfenbrenner and Juravitch, The Impact of Employer Opposition on Union Certification Win Rates, 21.

124. Freeman, “Contraction and Expansion,” 85.

125. Fischl, “Running the Government Like a Business,” 49.

126. Bronfenbrenner and Juravitch, The Impact of Employer Opposition on Union Certification Win Rates, 18.

127. Bronfenbrenner and Juravitch, The Impact of Employer Opposition on Union Certification Win Rates.

128. Ibid., 1.

129. Ibid.

130. Farber, “Union Membership in the United States”; Freeman and Ichniowski, When Public Sector Workers Unionize.

131. Public Service Research Council (PSRC), Public Sector Bargaining and Strikes (Vienna, VA: Public Service Research Council, 1982).

132. Richard B. Freeman, “Will Labor Fare Better Under State Labor Relations Law?” in 58th Meeting of the Labor and Employment Relations Association Series (2006, http://lera.press.illinois.edu/proceedings2006/freeman.html, accessed July 10, 2012).

133. Warren, Dorian, “The Unsurprising Failure of Labor Law Reform and the Turn to Administrative Action,” in Reaching for a New Deal: Ambitious Governance, Economic Meltdown, and Polarized Politics in Obama's First Two Years, ed. Skocpol, Theda and Jacobs, Lawrence R. (New York: Russell Sage Foundation, 2011), 191229.

134. Warren, “The Unsurprising Failure of Labor Law Reform,” 195.

135. McCartin, “A Wagner Act for Public Employees,” 129.

136. Ibid., 130.

137. McCartin, “A Wagner Act for Public Employees.”

138. Ibid., 137.

139. National League of Cities v. Usery, 426 U.S. 833 (1976).

140. McCartin, “A Wagner Act for Public Employees,” 146.

141. Ibid., 130.

142. The Court's decision in National League of Cities was a close vote contingent on Justice Blackmun's agreement to support the majority. Joseph McCartin notes that Blackmun initially leaned toward upholding the extension of the FLSA, but political events including “the roiling nationwide fiscal crisis” and heightened confrontations between public sector unions and municipal and state governments ultimately led him to reverse his position (McCartin, “A Wagner Act for Public Employees,” 145). Had the Court taken up the issue of public sector collective bargaining in the Wagner Act or any time before the fiscal crises of the mid-1970s, it plausibly could have ruled in favor of public sector employee rights. Indeed, as McCartin rightly points out, the Court ruled in 1968 that the Fair Labor Standards Act's protections could apply to public hospital employees under the Commerce Clause (McCartin, “A Wagner Act for Public Employees,” 130). The Commerce Clause was the basis for the Court's upholding of the Wagner Act and thus the use of the Clause with regards to public employees suggests a legal precedent the Court could have drawn on to establish national collective bargaining rights for public sector employees. The decision in Maryland v. Wirtz “seemingly validated the principle that the federal government could regulate the labor relations practices of state and local governments” and illustrates that a national Wagner Act for public employees may have passed Court scrutiny prior to 1975 (McCartin, Wagner Act for Public Employees,” 130).

143. McCartin, “A Wagner Act for Public Employees,” 147.

144. The Supreme Court reversed much of the decision in National League with the 5-4 ruling in Garcia v. San Antonio Metropolitan Transit Authority (469 U.S. 528 [1985]), but future decisions have also reasserted some limits of federal regulation on matters not related to interstate commerce. Regardless, by the time of the ruling in 1985, the conservative backlash and the decline of union influence suggest that “by then the damage had been done” (McCartin, “A Wagner Act for Public Employees,” 146). A window of opportunity for a national Wagner Act for public sector employees has closed, at least for the time being.

145. The standard deviation of public sector union density is nearly six times as large as the standard deviation of private sector union density vividly illustrating that whereas private sector union density tends to cluster around one (low) level, public sector union density is marked by states with very high and very low densities. Standard deviations were calculated using union density data from Hirsch and Macpherson, “Union Membership.” Public sector union density tends to be higher than private sector union density across the board because, even in states lacking any public sector collective bargaining statutes, federal workers as well as some municipal workers possess collective bargaining rights.

146. Hirsch and Macpherson, “Union Membership.”

147. McCartin, “A Wagner Act for Public Employees,” 123.

148. Richard B. Freeman and Eunice Han, “Public Sector Unionism Without Collective Bargaining” (working paper, AEA Meetings, San Diego, CA, January 6, 2012, http://www.people.fas.harvard.edu/~ehan/AEA_2013_Han.pdf).

149. Mettler, Dividing Citizens, 13.

150. “Continuing the Fight to Bring Collective Bargaining Rights to All Public Workers: Resolution No. 20,” 35th International Convention, Las Vegas, NV, June 24–28,2002, http://www.afscme.org/members/conventions/resolutions-and-amendments/2002/resolutions/20-continuing-the-fight-to-bring-collective-bargaining-rights-to-all-public-workers, accessed February 28, 2012.

151. Slater, Public Workers: Government Employee Unions, 196.

152. Freeman and Han, “Public Sector Unionism,” 17.

153. U.S. General Accounting Office (USGAO), Collective Bargaining Rights: Information on the Number of Workers With and Without Bargaining Rights (Report to Congressional Requesters, U.S. Senate, September 2002), 14, http://www.gao.gov/assets/240/235562.pdf, accessed April 3, 2013; U.S. Census Bureau, “No. HS-46, Government Employment and Payrolls: 1946–2001.”

154. Percentage was calculated using the USGAO calculation of the number of state and local employees lacking collective bargaining rights, divided by the total number of state and local employees listed in the U.S. Census table.

155. Wildavsky, Aaron, “Federalism Means Inequality: Political Geometry, Political Sociology, and Political Culture,” in The Costs of Federalism, ed. Golembiewski, Robert T. and Wildavsky, Aaron (New Brunswick: Transaction Books, 1984), 5572.

156. Mettler, Dividing Citizens.

157. Ibid., 13.

158. NLRA 1935, section 7.

159. Robertson, David Brian, “Federalism and American Political Development,” in Oxford Handbook on American Political Development, ed. Lieberman, Robert, Mettler, Suzanne, and Valelly, Richard (Oxford: Oxford University Press, 2014, Oxford Handbooks Online, www.oxfordhandbooks.com).

160. Cannon, Lou, “Right Turn: Election Success Gave Republicans the Momentum to Push Key Conservative Issues in Many Statehouses,” State Legislatures (National Council of State Legislatures; July/August 2011): 1418.

161. Ibid., 14.

162. Wasserman, Donald S., “Collective Bargaining Rights in the Public Sector: Promises and Reality,” in Justice on the Job: Perspectives on the Erosion of Collective Bargaining in the United States, ed. Block, Richard N., Friedman, Sheldon, Kaminski, Michelle, and Levin, Andy (Kalamazoo, MI: W. E. Upjohn Institute for Employment Research, 2006), 5786.

163. Slater, Public Workers: Government Employee Unions, 199.

164. It is certainly debatable how integrated the public and private sector union movements would have been if their development trajectories were in alignment in the postwar years. One thing that likely would have promoted cohesion is the postwar economic boom that contributed to the growth and success of private sector unions and would have meant less competition for scarce resources (Alexis N. Walker, “Solidarity's Wedge: How America's Federalized Labor Law Divides and Diminishes Organized Labor in the United States” [doctoral dissertation, Cornell University, Ithaca, NY, 2014]). However, a strong public and private sector union movement occurring simultaneously would have been influential even if there was little cohesion. First, the labor movement may differ on a variety of issues but shows strong solidarity on the fundamental issue of collective bargaining rights. Second, the labor movement has a larger effect that extends beyond any one union. Unions boost wages and benefits, and more significantly, prior to declining union density, “had a much broader and less appreciated effect on the distribution of American economic rewards” by offering “organizational counterweights to the power of those at the top” (Hacker, Jacob S. and Pierson, Paul, Winner-Take-All Politics: How Washington Made the Rich Richer—and Turned Its Back on the Middle Class [New York: Simon & Schuster, 2010], 57). Further, Radcliff, Benjamin and Davis, Patricia (“Labor Organization and Electoral Participation in Industrial Democracies,” American Journal of Political Science 44, no. 1 [January 2000]: 132–41) find that higher levels of union density are associated with higher levels of turnout and Radcliff (Organized Labor and Electoral Participation in American National Elections,” Journal of Labor Research 22, no. 2 [Spring 2001]: 405–15) finds that higher levels of union density increase the probability of all citizens to vote. Thus a larger union movement in the mid-20th century would likely have had an effect on political participation, wages and benefits, and the legislative agenda, whether working in concert or as separate movements.

165. Walker, “Solidarity's Wedge.”

166. Freeman, “Will Labor Fare Better Under State Labor Relations Law?”

167. Salvatore, Nick, “A Brief Ascendency: American Labor After 1945,” The Forum 10, no. 1 (2012): 126.

168. Slater, Public Workers: Government Employee Unions, 200.

1. For their helpful feedback, I would like to thank Suzanne Mettler, Michael Jones-Correa, Richard J. Ellis, Melissa Buis Michaux, Seth Cotlar, David Gutterman, Sammy Basu, Jonneke Koomen, Michael Marks, Casey Radostitz, Mallory SoRelle, Martha Wilfahrt, and participants of the 2012 Policy History Conference. I am also grateful for the detailed, invaluable feedback I received from two anonymous reviewers and the Studies in American Political Development journal editors. This research was made possible with support from the Horowitz Foundation for Social Policy.

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