Teaching Private-Sector Labor Law and Public-Sector Labor Law Together

Abstract

This paper promotes an obvious but rarely-implemented idea in labor law pedagogy: teaching private-sector and public-sector labor law together in one class. Because the National Labor Relations Act excludes government employers, laws governing unions of public employees are typically at the state or local level, and these laws contain some significant variations from private-sector labor law. Yet even though public-sector law has become increasingly important in the actual practice of labor law (public employees make up roughly half of all union members in the U.S.), it is taught much less frequently than private-sector law. This is not adequately preparing law students for the practice of labor law in the twenty-first century. While public-sector rules as at least mostly the same as NLRA rules, important differences exist in key areas. In those areas, knowing the private-sector rules is not nearly sufficient for handling public-sector cases. Most famously, public-sector unions in most jurisdictions cannot legally strike, and the substitute procedures to resolve bargaining impasses (mediation, fact-finding, and interest arbitration) are a world unto themselves. Among other examples, the scope of bargaining in the public sector is frequently much more limited (and is often a more complicated topic) than in the private sector; some public-sector laws cover supervisors; and several states have authorized mandatory card-check recognition.

Keywords: labor law, public-sector labor law, law teaching, law pedagogy, casebooks

JEL Classification: J5, J50, J51, J52, J53, J58