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Wisconsin labor unrest could have far-reaching effects

Assault on public-sector workers’ collective bargaining rights impacts all workers, says labor law expert Crain
By Jessica Martin

Wisconsin Gov. Scott Walker’s move to strip or significantly narrow his state’s public-sector workers’ collective bargaining rights has significant implications for all unionized workers, both in the public and private sector, says Marion Crain, JD, the Wiley B. Rutledge Professor of Law at Washington University in St. Louis and director of the Center for the Interdisciplinary Study of Work & Social Capital.

Crain

“A number of other states have taken legislative steps toward rolling back public-sector bargaining rights, and it is telling that these actions are now being taken in traditional Midwestern union strongholds such as Indiana and Ohio that have suffered the most in the de-industrialization process,” Crain says.

Wisconsin was the first state to authorize public-sector bargaining, and the state’s public-sector pension and health care obligations are moderate compared with those of some other states.

According to Crain, if Wisconsin public-sector workers lose bargaining rights, other states can be expected to follow.

Similar political and legislative pressure at the state level has been recently leveled against private-sector unionized workers.

“Four states have enacted laws that guarantee or require the use of secret ballots in union elections, an effort to deprive workers of union representation obtained through card-check processes,” Crain says.

“The NLRB is challenging these statutes on the basis that they are pre-empted by the National Labor Relations Act. Several states are also considering enacting ‘right to work’ legislation. News coverage suggests that conservative governors and legislators have been further emboldened by Walker’s strategy.”

Crain says that if public-sector unions lose strength, the labor movement as a whole will lose power — something that should raise a concern for non-union employees.

State and federal employees and unions

“Currently, the bulk of union strength is in the public sector: 36 percent of public-sector workers are unionized, while less than 7 percent of private-sector workers are unionized,” Crain says.

“In 2009, the number of unionized public-sector workers for the first time exceeded the number of unionized private-sector workers.”

Historically, public-sector workers accepted lower compensation in exchange for increased job security and more generous benefits than private-sector workers enjoyed. Unions have been successful in helping public-sector workers to hold state and federal governments to this bargain.

“Without unions or with a dramatically truncated right to collective bargaining limited to wages, public-sector workers will be unable to protect themselves against the erosion of the deal. They will be forced to accept reduced wages, reduced or no job security and loss of benefits,” Crain says.

“In this respect, of course, they will be just like non-union workers in the private sector — vulnerable to exploitation and powerless to resist except by exit, not a viable possibility for most in this recessionary era.”

Divided response to rollbacks

Crain says that perhaps the most poignant aspect of the public’s divided response to the rollbacks in the rights of unionized workers is that private-sector nonunion workers’ powerlessness and vulnerability to layoffs and volatile market shifts has engendered such deep resentment toward public-sector workers who appear to have more stable jobs and benefits.

“Walker’s action — and others like it — have succeeded in dividing workers against one another by encouraging private-sector workers to identify solely as taxpayers,” she says.

“Instead of banding together to fight abuses of corporate power and combating corporate greed, workers are engaged in internecine warfare that will ultimately harm workers as a class.”

Why should non-union workers care?

Crain offers a number of reasons why non-union employees should care about the strength of the labor movement:

  • Setting standards for wages, benefits and procedural due process at work. Unions have played an important role in establishing wage standards, obtaining paid vacation benefits, health insurance and pension benefits for workers, protecting job security and inducing employers to adopt progressive disciplinary policies and procedural protections in the workplace, and in pioneering the use of arbitration to resolve workplace disputes. These standards, established first in unionized workplaces, have been adopted by non-union employers as part of the effort to avoid unionization. The “threat effect” of unionization maintains these procedural protections, benefit and wage levels, but only as long as the threat is credible. If unions decline, the threat effect loses its credibility and the risk of a race to the bottom on wages, benefits and working conditions increases.
  • Unions as watchdogs. Unions function as watchdogs for workers’ rights, educating workers about their rights and enforcing statutory rights. Unionized workplaces are safer than non-union workplaces (in part because unions provide the enforcement mechanism for the Occupational Safety and Health Act), and unions have been instrumental in helping workers enforce their rights to minimum wage and overtime pay, to be free from discrimination, and to receive advance notice of a mass layoff or plant closing. As Wilma Liebman, chair of the National Labor Relations Board, has written, “an army of trial lawyers is no substitute for the institution of collective bargaining.”
  • The voice function of unions. The labor movement is the only vehicle that gives a voice to workers as a class in the legislative process. Unions are directly responsible for lobbying for enactment of nearly all of the federal statutes protecting individual workers’ rights today, including the Fair Labor Standards Act (minimum wage and hour laws), the Occupational Safety and Health Act, the Family Medical Leave Act and Title VII (anti-discrimination statute), as well as many state laws protecting workers’ rights.
  • Protection against dilution of statutory rights in the legislative process and the courts. Statutory rights are inherently unstable, as the current assault on public-sector bargaining rights demonstrates. Without an organized political constituency, workers are powerless to prevent cutbacks in statutory rights by legislatures or courts. Unions resist these cutbacks at both the legislative and judicial levels (through lobbying in state and federal legislatures, and by advocating for workers’ positions as parties or in amicus briefs filed with the courts of appeals and the Supreme Court in litigation over legislation affecting workers’ rights.
  • Organized labor’s role in political elections. The labor movement is also a powerful player in political elections at the federal and state levels. In 2008, for example, unions spent $400 million on ads and get-out-the-vote campaigns in support of efforts to elect President Barack Obama and other Democrats. A Democratic government means a higher likelihood of worker-protective legislation and the appointment of judges who take seriously the interests of workers.
MEDIA CONTACTS
Jessica Martin
Associate Director of University News, Director of News for Law and the Brown School
(314) 935-5251
jessica_martin@wustl.edu
EXPERTS @ WUSTL
Marion Crain
Wiley B. Rutledge Professor of Law and Director of the Center for the Interdisciplinary Study of Work and Social Capital
(314) 935-3459
mgcrain@wulaw.wustl.edu