Privatizing Government Services in the Era of ALEC and the Great Recession – Part IV – Unions and Collective Bargaining


Many ALEC bills target teachers and collective bargaining, and laws that
are similar to those bills have been enacted in the aftermath of the Republican victories in 2010.  For example, in Indiana, where Republicans had a 60-40 House majority and a 37-13 Senate super-majority, the Senate labor committee chair coupled limits on teacher collective bargaining with teacher merit pay and state-funded vouchers for students to attend private schools. 121  In addition, teacher collective bargaining was limited to salaries, benefits, and total number of work days. 122

A. Public Employee Freedom Act

ALEC Summary:  “Excluded from National Labor Relations Act (NLRA),
public employees are subject to state and local laws governing collective
bargaining.  Many of these laws are ‘monopoly bargaining laws,’ which means that even if an employee chooses not to join a union, he or she must accept the terms of the contract negotiated for unionized workers in the workplace.  This act establishes the workers’ right, in mutual agreement with the public employer, to representation by a public employee’s own choosing.” 123

CMD Assessment:  “This bill is aimed at weakening public sector unions
and altering public sector labor law.  It allows the government to bypass the union and hire non-union ‘scab’ employees, and prohibits unions from
negotiating contracts that require the union to negotiate on behalf of all workers (both of which are protected by the National Labor Relations Act for private sector unions).” 124

“The bill also prohibits automatic payroll deductions for union dues (see
also ‘Prohibition on Negative Check Off Act,’ ‘Political Funding Reform Act,’ ‘Public Employer Payroll Deduction Policy Act’).  It has the effect of limiting funding for public employee unions by prohibiting public employers from deducting union dues from worker paychecks.  Unions will have to collect dues directly from workers, reducing total dues that the unions will collect, and distracting from other workplace or union member issues by requiring unions [to] focus energy on the task of collecting dues.” 125

Assessment of Bill’s Operation:  This bill gives primacy to freedom-of-
contract over all other values.  The bill’s findings include:

A. An employer and employee should be free to contract on their own terms.

B. Mandatory collective bargaining laws violate this freedom.

C. As a result, it is against the public policy interests of this State/Commonwealth to impose mandatory collective bargaining laws on public employees and the organizations that represent them in the collective bargaining process. 126

However, while freedom of contract is an important value, it has been used to justify servitude and other conditions that have harmed both individuals and society as a whole. 127

This model bill appears to be motivated by anti-union sentiment, as well as promoting individualist liberty and free choice.  For example, it says, “Public employees shall have the right to represent themselves in their relations with the public employer.” 128  Although meeting with one’s employer might seem to be a private right, outcomes of grievances or bargaining can operate as precedent and thus degrade other employees’ terms and conditions of employment.  Only a collective bargaining representative has the ability to make decisions that take into account the full context in which decisions are made.

Section 4(B) says, “No provision of any agreement between an employee
organization and a public employer, or any other public policy, shall impose representation by an employee organization on public employees who are not members of that organization.” 129  This term promotes a conflict between individual and group rights and lessens the opportunity for the employees, as a whole, to achieve the best terms possible.  Collective bargaining laws have been enacted to restore the balance of power between employers, who are made more powerful by corporation and partnership law, and individual employees through the vehicles of unions and collective bargaining. 130  This bill upsets the balance
the NLRA and state collective bargaining laws attempted to promote.

Section 5 of the bill forbids using automatic payroll deductions to pay union dues or fees, even for employees willing to have their dues automatically deducted.  The bill not only forbids actions that would be helpful to employee union representation, it imposes criminal punishments, including fines and imprisonment, for any of these actions.
131   The intent behind this provision is to make it more difficult for public-sector unions to be effective.  The ultimate effect of this law is to take away employee choice and enhance employer power.

B. Public Employee Bargaining Transparency Act

ALEC Summary: “This model bill opens public-sector collective
bargaining sessions and documents to the public.”132

CMD Assessment:  “This bill is aimed at hampering public sector unions’
bargaining position during contract negotiations.  It opens contract negotiations and subjects them to public scrutiny, potentially hampering the efficiency and effectiveness of negotiations.” 133

“In 2011, Republican governors and others portrayed public employees as
overcompensated and greedy and used this as justification for limiting collective bargaining rights.  By framing public workers in this way, then opening contract negotiations to an angry public, the unions would have a difficult time bargaining for improved work conditions or compensation.”

“Wisconsin Governor Scott Walker went further than this Model Act in
2011 Wisconsin Act 10. Sect. 169/66.058(1m) limits the ability of local
governments to collectively bargain with its employees, and Sect. 167/66.056 requires any increase in base wages for municipal employees to be approved by residents in a referendum.” 135

Assessment of Bill’s Operation:  Much of the assault on public-sector
workers has taken the form of claiming that their pay and benefits have been a leading cause of the financial troubles of state and local governments.  Until recently, public sector employees’ benefits and protections under civil service laws and constitutional provisions have been widely justified as a tradeoff for lower pay.  However, during the Great Recession, claims were made that public sector workers received much higher pay than private-sector employees.   These claims were
often tied to attacks on public-sector employees, especially teachers, as
being lazy and incompetent.

Despite claims that public-sector employees are overcompensated, careful comparisons of public- versus private-sector pay and benefits showed that public sector pay was actually lower for the most highly
skilled than pay for comparable private-sector jobs, when levels of education, training, hours worked, and other relevant factors were taken
into consideration; but levels of pay were somewhat higher for lower skilled work.   In addition, public employees received a larger percentage
of their compensation in the form of higher benefits, especially pensions
and health care. 136  Many public employees are not entitled to Social
Security benefits or are only entitled to partial benefits for their retirement, even if they have paid enough into Social Security to qualify for benefits.  As a result, public employees tend to depend far more on their pensions than do private sector employees who have pensions and are also
allowed to draw on Social Security benefits. 137    One challenge in doing meaningful comparisons of working conditions is that in some cases, there are no comparable private- and public sector jobs.

One of the major drivers of the recent attacks on public-sector workers,
their unions, and their terms of employment may be the public’s misconception of how government spends our tax dollars.  A 2011 CNN survey showed that people made large overestimates of the government expenditures, including items that ALEC targeted in its draft legislation.  The CNN respondents thought education took up 10% of the budget, more than three times the actual cost at 2.7%.  Government pensions were thought to consume 10% of the budget but the figure was actually 3.5%.  Public broadcasting was believed to spend 5% of the federal budget, but the actual figure of 0.01% was a tiny fraction of the amount the public thought was allocated.  Similar misconceptions existed for all  government programs included in the survey with the exception of Social Security, which was thought to be 20% and which actually consumed 20.4% of
the 2010 budget. 138

Next installment:  Conclusion

This entire report by Ellen Dannin, published by the University of Toledo Law Review and re-posted here in sections due to its length, can be found at


121. Tom Davies, GOP Taking Wide Swipe at Hoosier Unions, POST-TRIB. (Mar. 13, 2011, 12:16 PM),

122. Id.

123. Public Employee Freedom Act Exposed, CENTER FOR MEDIA & DEMOCRACY, (last visited Mar. 5, 2012).

124. Id.

125. Id.

126. Id. § 2.

127. David Archard, Freedom Not To Be Free:  The Case of the Slavery Contract in J.S. Mill’s On Liberty, 40 PHIL. Q. 453, 455 (Oct. 1990).

128. Public Employee Freedom Act Exposed, supra note 123, § 4(A).

129. Id. § 4(b).

130. See, e.g., National Labor Relations Act, 29 U.S.C. § 151 (2006).

131. Public Employee Freedom Act Exposed, supra note 123, § 8.

132. Public Employee Bargaining Transparency Act Exposed, CENTER FOR MEDIA & DEMOCRACY,
(last visited Mar. 5, 2012).

133. Id.

134.  Id.

135. Id.

136. See Allegretto & Keefe, supra note 7, at 2; Keefe, Are Wisconsin Public Employees Over-Compensated?, supra note 7, at 2; Keefe, Debunking the Myth of the Overcompensated Public Employee, supra note 7, at 2; Keefe, Are N.J. Public Employees Overpaid?, supra note 7, at 2.

137. Ellen Dannin, Of Pensions and Piggybanks: The Challenges of Ensuring a Secure Retirement, EMP. POL’Y RES. NETWORK (Jan. 27, 2011),

138. CNN Politics: Reality Check: What We Really Know about the Budget (Mar. 31, 2011), available at http://