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February 18, 2011


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Paul M. Secunda


We all understand that you are a conservative - that is fine. But your blatant disregard of the idea of dignity and human rights in the workplace is really hard to take. Life is not an economic analysis, Calvin. Try as you might, you can't quantify ideas like justice and fairness.

Fairness in the workplace means that workers have a collective voice in that context. The need for that voice is obvious to most in the public and private workplace. It is this: without a collective voice, employees' terms and conditions of employment, not just wages and benefits, can be run roughshod over by employers. Whereas employers do not need to heed individual employee complaints, they do need to listen to a collective voice. It is this collective voice which has provided public and private employees with decent wages, benefits, and hours over 50 years in Wisconsin and other progressive states. In your world of the benevolent and all-powerful employer, none of this would exist.

So, I would love to be more collegial - this being the Faculty Lounge and all - but I find your vision of the public workplace appalling. Indeed, I hope that your view is contained to less civilized countries that do not recognize collective bargaining and other workplace right as human rights. I do not believe the United States is one of these countries.

Adjunct LawProfs

Unions are needed in the public sector to help prevent the political bosses from giving jobs to their supporters and family members. Unions are also an institution which demands equal treatment and justice. Without them, a lone employee often would not be able to challenge his or her discharge in arbitration or in court. The men and woman in unions, both in the private and public sectors, have helped build this country.
Section 7 of the NLRA as well as most state counter parts give employees the right to join unions and the right not to join unions. The legislate away the right of unions to exist is simply unamerican.
Mitchell H. Rubinstein

Eric Fink

This argument rests on the erroneous (but all too common) premise that the only, or even primary, reason for unions is to bargain for a greater share of revenue.

The reason for unions is to enable workers to act as equal partners with employers, and jointly determine the terms and conditions under which they labor. This goes far beyond wages & benefits, and includes fundamental matters of human dignity like not being subject to arbitrary and capricious treatment at the whim of some manager, or to further the ideological agenda of some politician.

In our society & economy, employers -- private and public alike -- are organized and bargain collectively. Without the ability to do likewise, workers are reduced to the status of machinery and raw material.

Unions are fundamentally about the premise that democracy and human dignity don't stop at the factory gates, or the office door. This is no less true in the public sector than the private.

Ruben garcia

And let's not forget that public sector employees are taxpayers too. This is the all too common separation of public employment from citzizenship a la garcetti


The appalling conservative Franklin Roosevelt also opposed public sector unions.


The author is exactly right, and the commenters exactly wrong. I doubt that the commenters have any actual experience in dealing with public sector unions. Public sector unions are anti-Democratic and un-American. It's ironic - a new collective bargaining agreement usually has to be ratified by the membership, but new costs imposed on the taxpayers are just that - not subject even to a vote of the legislature. The reality is that (1) it is about taking money from the taxpayers, and (2) the Unions do funnel that money back into political contributions, so that they can control "both sides of the bargaining table." Bargaining over conditions of employments is most often a mechanism to increase funds for overtime costs, litigation, and fringe benefits - great pension, gold plated health care, and a huge number of vacation days. This misses the job security from not only civil service laws (which would still exist and also deal with nepotism/favoratism), but from Union "owned" Arbitrators.

The illegally striking Wisconsin teachers earn an average of over $52,000 per nine months in salary, but over $100,000 per nine months when pension and benefits are calculated in. That's in a low cost of living state. It's far greater than that in east coast states or in California. And as for that favoratism, if you have worked in a Union environment, you know that the Union leadership, led by people just as flawed (usually more so) than civil service management, are far bigger culprits of favoritism and abuse to well-connected people, than is management.

To support public sector unions is to support stripping away the democratic rights of the public to determine its own budget, and instead to allow extortion and effectively mob-rule.

Orin Kerr

Paul Secunda,

Where did Calvin say that "the idea of dignity and human rights in the workplace" should be disregarded? Surely there are lots of ways to have dignity and human rights in the government employment setting without unions. Or, in your view, is unionization a necessary prerequisite for human rights and dignity? If so, are those those the only prerequisites, or are there others? And if there others, what are they? And how do you know what human rights and dignity require?

Paul M. Secunda

Paul Secunda, Orin? Really? Is there another Paul who commented here?

Dignity and human rights in the workplace are hard to establish when an employer has no check on its power. It is possible without a collective voice, but you are going up a steep hill.

Sorry, Orin, I am not your law student - your litany of questions sound pedantic. Suffice to say that unions greatly help to ensure human rights and dignity int the workplace.

Orin Kerr


Woah. I used your last name only because your comment was the first one, and mine was way down the list. In my experience, that makes it more likely that the returning initial commenter will spot the comment. No offense intended, if any was taken for any reason.

Anyway, I didn't mean to be pedantic. Your comment left the impression that you think it is simply out of bounds to argue against public unions. I wanted to know why you think that, as Calvin's argument struck me as a reasonable one and I was interested in hearing genuine responses to it. Of course, it may be that is it simply out of bounds to ask why you think it is out of bounds, in which case I suppose I'm just out of luck and I'll have to look elsewhere for the answer.

Paul M. Secunda

Thanks Orin for the clarification. Much appreciated.

And yes, I do think it is out of bounds when international human rights law, as recognized by the United Nations and the International Labor Organization (ILO), says that the ability to join a trade union, whether in the public and private sector, is a recognized human right in civilized society.

I think my response was genuine, even if tinged with some anger at his total economic argument.

And no, not out of bounds to ask why his statement is out of bounds. :) I hope my answer provides some clues.

Orin Kerr


Glad we're not coming to blows here. Although never having heard of the ILO, and not thinking very highly about conclusions of the United Nations, I suppose the argument from authority isn't going to work with me. (I've heard of ELO, and I would respect their opinion, but ILO is new to me.) As to the merits of your argument, it seems to be a conclusion rather than an argument: You start with the view that employees must have a voice, and then since the union is the only voice, there must be a union. I don't see how that is responsive to Calvin's argument.

Eric Fink

Grant is quite wrong to "doubt that the commenters have any actual experience in dealing with public sector unions." At least the first three of us have indeed had substantial experience--on both sides of the bargaining table in fact. The notion that public employers play softball with unions is simply laughable. Try telling that to my former clients who experienced some very tough negotiations with state and local governments--headed by Democrats and Republicans alike.


"...unions greatly help to ensure human rights and dignity in the workplace."

Odd--in my experience, public sector unions simply help to: ensure incompetent employees are extraordinarily difficult to fire, resulting in lower morale for the dedicated employee and lower overall productivity; do everything they can to elect Democrats to provide ever-greater unsustainable benefits to union employees; and provide outrageous salaries to union leaders who don't do much of anything other than threaten and cajole.

Human rights and dignity don't really factor into matters.

Joe Smith

Paul - so you are saying that arguing against public unions is out of bounds, maybe beyond the pale, even, because the United Nations says so?

Given all the other exceedingly ludicrous things the UN has said, how could an intelligent man even offer that as an argument?

David Hyland

What on Earth makes the labor of public employees less deserving of organizing and collective bargaining rights than private sector employees? If Wisconsin Republicans are bent on demonizing teachers, firefighters, police and others as greedy do-nothings, they ought to act like adults and sit across a bargaining table and say so directly.

Sanford Jacoby

1. You are right to point out that there are (at least) 2 faces to unions: providing employee voice and collective bargaining over pay, as Freeman and Medoff noted 30 years ago.

2. Forty years ago, Wellington and Winter (and others) made the same arguments as Professor Massey: that the absence of market forces in the public sector would allow unions to raise pay without limit.

3. In fact, that has not occurred, even in California. State spending relative to the size of the state’s economy is at its lowest levels since the early 1970s. In 1971, states taxes per $100 personal income were $6.45. This year they are $6.60.

4. So why is it that Wellington and Winter’s dire predictions never came to pass? I will leave it to others who have studied public sector unionism to point out the numerous forces that DO constrain pay in the public sector.

5. But here are a few. First, politicians do not set pay; it occurs through collective bargaining with civil service employers. Of course, politicians can influence pay – up or down – but they do not determine it. Second, strikes are usually constrained by law. Third, in many parts of the public sector there is arbitration of disputes over pay, unlike most of the private sector. Fourth, believe it or not, unions are sensitive to the employer’s willingness and ability to pay. One could go on and on.

6. The point is: Massey’s predictions – made by others 40 years ago – never came to pass.


I'm sure they will be happy to know that in California.


The classic responses to Calvin's arguments begin with the arguments in Clyde Summers, "Bargaining in the Government's Business: Principles and Politics," 18 University of Toledo L. Rev. 265 (1987).

Although I'm not sure it's all that important what FDR thought in the 1930s, there's a nice interview with excellent historian Joseph McCartin in yesterday's on the topic. I would also note FDR's actions were more sympathetic than his quote suggests: he actually gave proto-collective bargaining rights to TVA employees, which was quite radical at the time.

Orin, I think Paul's remark reflects that fact that in much of the rest of the industrialized word, and among many-most human rights types, the right to bargain collectively -- in the public or private sector -- really is considered a fundamental human right. I realize that some in the U.S. don't accept that or at least don't see why it's self-evident, but many of us believe it to be true. That doesn't mean it's out of bounds to disagree, of course.

Finally, Grant, trust me on this: at least some of the commenters on this thread who disagree with you have a considerable amount of experience with public sector labor law and public sector labor relations -- and I don't just mean academic experience.

Orin Kerr

Joseph Slater: "Orin, I think Paul's remark reflects that fact that in much of the rest of the industrialized word, and among many-most human rights types, the right to bargain collectively -- in the public or private sector -- really is considered a fundamental human right. I realize that some in the U.S. don't accept that or at least don't see why it's self-evident, but many of us believe it to be true."

This strikes me as the kind of issue on which the American polity is pretty evenly divided. As a matter of American politics, the Democratic party tends to be pro-union, and the Republican party tends to be anti-union. The political interests are so deeply entrenched that there isn't much motion on the issue year to year, but I can't recall the last time I heard a Republican politician speak positively about unions. I suppose that's part of what struck me as surprising about Paul's reaction: It suggested that Calvin had said something so extraordinary that it wasn't part of the debate. Of course, academia often draws from one side of politically polarized debates, so perhaps among academics there is a consensus of sorts. But the reaction struck me as surprising. Maybe it's just my quirky reaction.

Orin Kerr

Oh, and thanks for the link to the Clyde Summers article -- I'll check it out.

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