Historical Differences in the Development of Unions in the Public versus the Private Sectors

While there are similarities between how unionism developed in the private and public sectors in terms of the adversarial nature of union-management relations and the role of collective bargaining legislation, there are also significant differences. Three of these differences are (1) the manner in which collective bargaining is regulated in the two sectors, (2) the “scope” of collective bargaining, and (3) the level of employer opposition to unionization and collective bargaining. The effects of these differences are evident in today’s labor-management environment.

1.  Statutory Differences in Collective Bargaining Rights

The first significant difference between private and public sector labor relations is the legal framework that governs the processes. In the private sector, the vast majority of collective bargaining relationships are regulated by a single federal statute, the NLRA (a second law, the Railway Labor Act, regulates collective bargaining in the railway and airline industries). Thus, the rules and standards governing private sector labor relations are the same for most employees and employers across the country, regardless of geographic location or industrial sector.

In the public sector, on the other hand, collective bargaining is regulated by a variety of statutes which have established an array of collective bargaining systems that, in some cases, differ widely from one another. Collective bargaining for most federal employees is governed by the Civil Service Reform Act of 1978, with the exception of employees of the U.S. Postal Service who fall under the Postal Reorganization Act. The rights of state and local government (county, city, township, school district, etc.) employees to organize, bargain, or strike are determined by separate state laws, administrative orders, or court decisions in force in the states in which their employer is located. This absence of a unitary system has led to great inconsistencies in the collective bargaining rights enjoyed by public sector employees, depending on which branch of government they work for and where that government/employer is located.

2. Differences in the Permissible Scope of Collective Bargaining

Due to the variety of laws regulating collective bargaining at the federal, state, and local levels, the collective bargaining rights of public sector employees in some locales are broader than those accorded to private sector employees, and in some cases far more restricted. Generally speaking, however, the scope of subjects over which public sector employees are permitted to bargain is more limited than that of employees in the private sector.

Under the NLRA, unions representing private sector employees essentially have the right to bargain with employers concerning all aspects of wages, hours, and working conditions. However, federal government employees, with the exception of postal workers, are not permitted to bargain over compensation or employee disciplinary actions or discharges. At the state and local levels, some states place similar restrictions on the scope of bargaining while other states allow employees covered by their statutes to bargain over a range of issues similar to private sector employees. What are the reasons for these significant differences?

Two historical factors have played an important role in limiting public sector collective bargaining rights compared to those in the private sector—the principle of sovereignty and the existence of civil service systems in the public sector. Sovereignty is the idea that in a representative democracy such as the United States, the people, as represented by their elected government officials, are the highest power. Thus, if the government officials allow their decisions concerning their employees to be altered by bargaining with the employees, they will have illegally, or at least improperly, delegated some of the peoples’ power to the employees’ unions. The exclusion of wages, fringe benefits, and disciplinary decisions from the list of subjects upon which federal unions can bargain most probably reflects the federal government’s desire to preserve the “sovereign” right of the people, through their elected officials, to determine these aspects of the federal workplace without restrictions resulting from collective bargaining.

The historical presence of civil service systems governing employment in many federal, state, and local government entities prior to the enactment of laws permitting public sector collective bargaining may also have caused Congress and certain state legislatures to limit the scope of bargaining for many public sector employers. Civil service systems were established by many government employers in the late nineteenth and early twentieth century’s to help ensure that most government employees are selected for, and retained in, their government positions based on competence and merit factors, rather than political sympathies, nepotism, or personal favoritism. These systems generally included legal protection for employees from being discharged or disciplined without just cause, and sometimes established pay scales intended to ensure that compensation for different jobs within the government organization was fair across the board. The presence of civil service systems in the public sector has served to limit the scope of collective bargaining because some legislative bodies have concluded that matters regulated by civil service systems should remain governed by those systems rather than be subject to collective bargaining.