The Future of Labor Law: The Public Sector; and States as Laboratories of Democracy

Labor law, some conventional wisdom says, is dead. True, union density in the private sector has taken a long slide from around 35% in the 1950s to under 10% today. In reaction, a number of schools do not even regularly offer a labor law class.  This, I suggest, is a mistake. There are still over sixteen million workers in unions today, and last year overall union density actually increased a bit. And while labor law under the National Labor Relations Act (NLRA) has been increasingly hostile to unions, did you know, e.g. that despite the failure of the Employee Free Choice Act (EFCA), many unions have recently won the legal right to be recognized by showing majority support through a "card check"? There is a strong present and future in labor law – just not entirely as we traditionally conceived of it.

The key is the public sector. In the past fifty years, union density in the public sector has risen from under 10% to nearly 40%. Indeed, today of all union members in the U.S., around 40% are government employees. Thus the practice of labor law is increasingly in the public sector. Yet few schools teach public sector labor. This is a shame, and not just for students who want to represent unions or management in labor relations or ponder the legal and practical issues involved.

Public sector labor law also a wonderful opportunity to consider the states as laboratories of democracy, and to consider questions of democracy as well as workers’ rights. Public sector labor law varies tremendously. They are typically modeled in part on the private sector law, the NLRA, but they can vary significantly. For example, public employees in most states cannot legally strike, but about eleven states (including Ohio) allow most public employees to strike. A majority of states allow at least some public employees to bargain collectively, but some limit bargaining to a few types of employees (e.g., police, fire, and/or teachers), and a significant minority bar all public sector collective bargaining. In states which allow bargaining, some allow unions to bargain over basically the same subjects private sector unions can; but a number of states significantly limit the subjects over which they can bargain; and significant minority of states do not permit any public employees to bargain. This "scope of bargaining" issue raises interesting policy debates about democracy and workers rights: what issues should be beyond the scope of bargaining and rather be in the hands of elected officials? The public sector also features interesting Constitutional doctrines, since the state-as-employer is a state actor.

The public sector also is an opportunity to try out rules different from those in the private sector. Last year, in the EFCA, unions unsuccessfully sought to amend the NLRA to, among other things, provide that employers must recognize a union with a "card check" majority. The law then was that employers could voluntarily recognize unions with such a majority, but were not obliged to do so. Later in 2007, the NLRB in its decision in Dana Corp. made the use of card-check recognition even more difficult (for details, see an interesting new piece by Raja Raghunath). 

Meanwhile, in the public sector several states have recently passed card-check recognition bills (New York has such a rule; recently Illinois, New Jersey, and New Hampshire passed this rule; and Massachusetts is coming). Also, the NLRB recently reversed a Clinton Board precedent and held that graduate assistants generally were not "employees" covered by the Act; the majority of public sector jurisdictions disagree. Indeed, many public sector jurisdictions allow supervisors to form unions and bargaining collectively; the NLRA categorically excludes supervisors. Of course, as noted above, many states have laws which are grant employees and their unions much more limited rights than those in the NLRA. While the traditional question has been, "how much of the private sector law should public sector jurisdictions adopt," a new question is, "should the federal private sector law be informed by developments in state public sector law?"

The future of labor law is in both the public and private sectors. Course offerings should acknowledge this, and scholars should check it out. There is much to chew on.