Over the last half-century, private sector union density in the U.S. would undoubtedly have declined because of larger economic forces and public sector union density could only go up given its diminutive starting point. However, this does not explain why public sector union density skyrocketed briefly in the 1970s and then plateaued; geographical concentrations of both private and public sector union density; and private sector decline not just in maintaining
members but also their inability to recruit new members. Instead, we need an approach that is sensitive to political institutions to explain how broader economic trends occurring in many advanced industrial countries have played out differently in the United States, particularly the unique trajectories of public and private sector union density.
Drawing on Kathleen Thelen and Wolfgang Streeck’s (2005) definition, institutions are defined here as: “socially sanctioned, that is, collectively enforced expectations” of behavior and typically “involve mutually related rights and obligations for actors, distinguishing between appropriate and inappropriate, ‘right’ and ‘wrong,’ ‘possible’ and ‘impossible’ actions and thereby organizing behavior into predictable and reliable patterns” (9). Thus we can think of political institutions—both formal institutions like Congress and more informal institutions like law—as active participants in politics that structure and constrain the behavior of individuals and groups, shaping a multitude of activities including where actors target their political activities, what policy alternative are considered, and the potential for change.
When comparing the United States to similarly advanced industrialized nations,8 American labor law is distinct in two relevant respects. First, while these countries all have national legislation dealing with private sector labor relations, none has left their original laws largely untouched since its inception. For example, substantial amendments to private sector labor law occurred in Canada in 1995, Finland in 2001, France in 1971 and 1982, Germany in 1972, 1976 and 2004, and the United Kingdom in 1999 (Casale and Tenkorang 2008). In contrast, the foundation of American private sector labor relations, the Wagner Act (1935) and Taft-Hartley Act (1947), has remained largely intact since their passage. The second important way the United States differs from other nations is with respect to the rights of public sector workers. In other industrialized nations, with very few exceptions, public sector workers possess the right to collectively bargain and “a single, national collective bargaining law prevails for all public workers” (Kearney 2001, 45; Casale and Tenkorang 2008; Public Services International 1985). As Chris Brewster et al. note, “[i]n most industrialized countries, public sector
employment is synonymous with unionized employment; union membership…has been just as much a feature of public service as employment security” (136). In contrast, there is no national level law governing public sector workers in the United States and various courts have held that public sector employees have no constitutional right to bargain collectively (Kearney 2001, 47).
These unique features of American labor law have had important consequences for the development of organized labor in the United States. In particular, the exclusion of public sector employees from the Wagner Act created a durable divide between public and private sector labor law. Private sector labor law was placed firmly at the national level with a growing body of case law to reinforce this position. In contrast, public sector collective bargaining was an open
8Canada, Australia, the UK, Germany, France, Sweden, Norway, Finland, the Netherlands, Spain, and
question. Public sector unions lacked the public acceptance and momentum to pursue national level protection before the window of opportunity for such legislation closed; thus the question of public sector collective bargaining rights was left up to the states and localities. Barring public sector employees from the cornerstone of private sector labor law delayed public sector union expansion as cultural fears and limited public sector organizing prevented immediate legislation at the state and local level. Further divided labor law relegated public sector employees’ subsequent political efforts to gain legal recognition to the state and local level— sites of demand-making where the fruits of their struggle would never compare to their private sector counterparts.
The role of federalism in constraining and shaping the development of organized labor in the United States both affirms and challenges existing research on federalism. There is a
tendency within federalism research to assume that federal arrangements that empower states and localities are either positive, enabling innovation at the local level (Skocpol 1992, Freeman and Rogers 2007) or negative, enabling bastions of prejudice to be formalized into law (Mettler 1998). As the following analysis will demonstrate, both assessments of federalism are accurate when looking at organized labor and David Brian Robertson’s conclusion that “[f]ederalism’s results are inconsistent; federalism has been used by and against Republicans as well as
Democrats, liberals as well as conservatives, and innovators as well as those who resist change” is fitting (2012, 9). However, previous research has underemphasized a central feature of American federalism that is clearly illustrated by the distinct paths of public and private sector labor in the U.S.: federalism’s results are inconsistent not just because states and localities have been laboratories for both liberal and conservative causes, but also because laws made at the state level lack the protections and egalitarianism of those set at the national level.
Rights and privileges granted at the state and local level are not only unequal but also inherently more tenuous compared to national level rights because: (a) at any time, a state or locality has abundant examples of policy alternatives in action, (b) groups engaged in political conflicts that have become intractable at the national level can find more success capturing politics at lower levels of government, (c) national level rights become reinforcing as case law over time creates path dependent pressures to maintain existing law, (d) federalism as a
governing structure welcomes even encourages variation and innovation at the local level, and (e) most fundamentally, states and localities lack the expectations of national standards and equality—in other words, a floor of protection—that have been central to rights protections at the national level. Thus, a floor of protection may not be ideal but is a crucial foundation for union growth. Thus, dividing public and private sector labor law not only set labor on two different paths but also made them inherently unequal: public sector labor law has had more room for innovation but the rights and standards established have been more vulnerable to outright retrenchment of collective bargaining rights.
These institutional arrangements—and the timing and sequencing with which they came to be—are not only the result of politics; they have themselves also shaped subsequent outcomes including the trajectories of private and public sector union density in the United States.
Federalism is not the single, causal factor affecting the development of organized labor, but the federalized nature of American labor law has channeled and constrained union behavior, particularly which sites public and private sector unions focus their collective bargaining rights demand-making. Thus, when public opinion turned in favor of public sector unionism in the 1960s, lacking a national level law, public sector unions targeted the state and local level for
recognition of their collective bargaining rights.9 The gains they were able to achieve at the state and local level were mixed, unequal and tenuous in comparison to the Wagner Act’s unswerving commitment to all private sector workers. In order to understand the development of organized labor, a seemingly private organization, over the last half-century, we must be attentive to the institutions that have patterned labor relations. Labor’s enduring divide began with an ostensibly minor decision within one clause of the Wagner Act that has had far-reaching ramifications.