In December 2010, I blogged about the travails facing public sector pension funds, and in March 2011 I wrote a bit about the general "upheaval" in public sector
collective bargaining. See Public
Sector Pensions -- The Times They are a-Changin' and Unions’
Role in “the New Normal”. Both of these subjects have now captured the interest of a number of commentators and my next couple of blogs will analyze some recent articles. This first blog in the series looks at the general climate change and "upheaval," and the idea that public sector labor is at a "crossroads." Review of three articles articles in particular, which represent more moderate, liberal, and conservative views of the issue, are a helpful orientation.
Martin H. Malin gives an overview of the recent changes in law passed in Wisconsin, Illinois, New Jersey, Oregon, New Hampshire, California and Massachusetts, and rejected by voters by referendum in Ohio. He argues that this is just another cycle in the life of public bargaining. Labor & Employment, The Legislative Upheaval in Public Sector Labor Law. Paul M. Secunda, focuses on the Wisconsin dispute in particular, and concludes that the so-called "budget repair bill," Senate Bill 10, was an "unprecedented attack on public-sector bargaining," politically motivated, and simply used the financial crisis to unravel employees' bargaining rights. Id., The Wisconsin Public-Sector Labor Disputes of of 2011. R. Theodore Clark, Jr. firmly grounds all of the changes, including that in Wisconsin, in drastic but ultimately prudent management to address budgetary crises, and to "scale[] back" public sector compensation packaged "back to something more reasonably in balance with the private sector." The Urban Lawyer, Public Sector Bargaining at Crossroads,
Somewhere in between or among these opposing views is the truth. However, "truth" may be impossible to discern where politics, ideology and crisis intersect. Any view can be argued with the use of statistics, and the "right answer" one settles on will likely derive more from your worldview or political stripe, than any objectively and indisputably verified "truth." Nonetheless, all three articles add important detail and nuance that can help us see a bigger picture and hopefully move beyond a purely mechanistic, ideological view.
Secunda believes "the economic circumstances surrounding the recession did not require the enactment of [Wisconsin's] Act 10" and was purely "punitive." He argues that "a number of provisions in the law, including an annual union recertification requirement and an anti-dues checkoff provision, ... had absolutely nothing to do with cost savings," and notes that it was passed under a "legislative procedure which could only be utilized if Act 10 did not have any impact on state fiscal policy." He sees Act 10 as part of an "orchestrated" movement by "anti-union groups" because "similar attacks against public unions took place simultaneously across the country." Ultimately, he believes, this movement is designed to make it "more difficult for public-sector unions effectively to organize their workers."
Secunda cannot see a connection between the Great Recession, documented growing public resentment of record deficits and public spending, and these changes. He apparently believes the "anti-union" drive is the sole produce of an extreme right wing fringe group, much like Reagan once asserted the rise in socialistic consciousness and desires for land reform in South and Latin America must be due solely to external communistic influences from the Kremlin and/or Cuba.
Malin puts the events in Wisconsin and similar communities in context of cyclic history of public bargaining's approval rating. He argues that "[r]ecent decades have seen major swings in the pendulum concerning public employee collective bargaining rights." He outlines 1990s reforms in Michigan, Wisconsin, Pennsylvania and Illinois, and the sunsetting of and failure to extend collective bargaining in my own state, New Mexico. He concludes this decade was "characterized by considerable backlash against public employee collective bargaining, particularly in public education." However, "[t]he first decade of the new century saw the pendulum swing in the opposite direction," as represented by a wave of pro-bargaining reforms in Illinois, Wisconsin, New Jersey, Oregon, New Hampshire, California, and New Mexico . Several state unwound the 1990s reforms, New Mexico reenacted collective bargaining, and the other states mandated "card-check" recognition and/or extended bargaining rights to home health care aids and in-home day care providers.
Malin observes that both the 1990s "backlash" and the 2011 "upheaval," were fueled by the same criticisms: "that public sector collective bargaining distorts democracy by giving one interest group--public emloyees and their unions--an avenue of access to goernment decisionakers that no other group enjoys; ... that collective bargaining is not conducted at arm's length because public officials desire the campaign support of the unions sitting across the bargaining table;" that this in turn, "results in bloated salaries and benefits, excessive staffing levels, inefficient work rules, job security for poor performers, the absence of merit in employment decisions, and the stifling of innovation in the delivery of public services." Clark has similar criticisms.
Compared to Malin, Clark takes a longer historical view. He outlines the concomitant rise of public sector bargaining and decline in private sector bargaining. He nods to the irony that in 1960s, Wisconsin was the first state to enact legislation extending collective bargaining rights to public sector employees--much as, today, it was the first state to ratchet those rights back. He points out that "between 1960 and 2010, the percentage [of overall American unionism rates] dropped from 28.6% to 11.9%," with percentage of private sector unions "declin[ing] more than five-fold, form 37.0% to just 6.9%, between 1960 and 2010," and "public sector unions increasing "over eight-fold" from 6% t 51.8% over the past 50 years since 1960s.
What Clark doesn't specifically detail is the general growth in middle-class and national GDP during the 50 year time period before the turn of the 21st Century, and the increased financial distress and declining growth in recent years. In any event, there's clearly a pattern here: when times are good and coffers are flush, largese has been shared with public servants; when the times are marked by severe financial stress, there are political calls for changes in collective bargaining. Is it diabolical in either event, or simply understandable and/or pragmatic? I wouldn't try to guess on this record.
But, for whatever reasons you believe the 1990s and 2011s backlash/upheavals derive, it is also clear that "upheaval" is not an exageration and public sector is indeed "at a crossroads," as Clark argues. Clark identifies substantial reform in eleven (11) states: Idaho, Illinois, Indiana, Massachusetts, Michigan, Nebraska, New Jersey, Ohio, Oklahoma, Tennessee, Wisconsin; and the aborted reform attempts in Ohio. Malin identifies two additional states: Oklahoma, Nevada, and he categorizes the changes into four basic, but overlapping, categories:
- repeal of right to bargain (Oklahoma, Tennessee, Wisconsin);
- limiting the scope of bargaining (Idaho, Illinois, Indiana, Massachusetts, Michigan, New Jersey, Ohio);
- impasse resolution (Idaho, Illinois, Indiana, Michigan, Nebraska, New Jersey, Nevada, Ohio, Wisconsin); and
- provisions related to financial distress (Michigan, Nevada, Ohio).
Malin notes that "[b]y far the most numerous changes made in the upheaval of 2011 concerned the scope of bargaining."
Recognizing that this movement--be it upheaval, cross roads, bump in the road, natural swing of the pendulum, or whatever--likely goes beyond the whims of a handful of isolated right wing legislators, Malin notes that the "future of public-sector collective bargaining laws largely depends on the voters." In light of the reversal of Ohio reforms through referendum, he ponders--perhaps presciently--"[w]hether the Ohio vote marks the start of another reversal of the pendulum," and forecasts that "[u]ltimately, the 2012 elections will likely determine the direction in which the pendulum swings."
If you have any labor
or employment matters
that you would like to resolve privately through a knowledgeable and experienced
arbitrator or mediator, please feel free to contact Pilar Vaile, P.C. at (505)
247-0802, or info@pilarvailepc.com.
Albuquerque, NM
Sources
Winter 2012 issue of the ABA Journal of Labor & Employment Law
Winter 2012 issue of The Urban Lawyer
Sources
Winter 2012 issue of the ABA Journal of Labor & Employment Law
Winter 2012 issue of The Urban Lawyer
