Public Sector Collective Bargaining, Majoritarianism, and Reform

52 Pages Posted: 26 Mar 2013 Last revised: 16 Apr 2013

See all articles by Daniel M. Rosenthal

Daniel M. Rosenthal

Harvard University - Law School - Alumni

Date Written: March 1, 2013

Abstract

This article explores the claim that collective bargaining for public employees subverts democracy, focusing in particular on public school teachers. Critics note that teacher collective bargaining agreements cover countless policy topics including the length of the school day, teacher personnel policies, class size, and more. Critics further argue that bargaining supplants the ordinary democratic processes for setting policy, excluding the public and allowing teachers unions to exert disproportionate control on these issues.

I question the claim that collective bargaining allows unions to force their preferences on the public. For example, local legislatures must approve and fund all labor agreements, and state laws have long defined a broad class of topics as “permissive” for bargaining, meaning that the parties can bargain on the topics only if both consent. Although governments and unions often bargain over permissive topics, the permissive designation empowers governments to cease bargaining when mutually beneficial compromise appears unlikely, thereby shifting policy questions into the normal political process.

Reformers could embrace the permissive designation. Instead, many have promoted rules that prohibit bargaining altogether on many topics. Legislators in Wisconsin, Ohio, Indiana, Tennessee, and Idaho have recently adopted this approach. But these efforts badly miss the mark. The real issue for reformers is not how to limit unions’ involvement in policymaking but rather how to ensure that government officials use their power to advance the wishes of the public through bargaining.

I offer several recommendations in light of this new assessment of public sector bargaining. I suggest broad use of the permissive distinction together with heightened involvement of local legislatures in bargaining. The proposal is more majoritarian — and more supportive of public employees’ labor rights — than the bargaining prohibitions currently in vogue.

Keywords: collective bargaining, public sector collective bargaining, teachers unions, majoritarianism, education reform

Suggested Citation

Rosenthal, Daniel M., Public Sector Collective Bargaining, Majoritarianism, and Reform (March 1, 2013). Oregon Law Review, Vol. 91, No. 3, pp. 673-724, 2013, Available at SSRN: https://ssrn.com/abstract=2235084

Daniel M. Rosenthal (Contact Author)

Harvard University - Law School - Alumni ( email )

5163 Massachusetts Ave
Cambridge, MA 02138
United States

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