The Truth About Wisconsin's Collective Bargaining 'Rights'

Right: noun: a just claim or title, whether legal, prescriptive, or moral. 

That's the definition of the word used in connection with Wisconsin's government union employees and their demands to retain collective bargaining privileges.  This issue more than any part of the Budget Repair Bill, has captured the nation's attention.

For weeks, we've heard demonstrators beating drums in Madison and equally vocal sympathizers in the media admonish anyone listening about "rights" of government union employees and the turmoil visited upon "the middle class" due to the Governor's Budget Repair bill.  We've also seen polls suggesting public support for some of their views. 

We do not believe that: 1) government employee collective bargaining constitutes a "right" by any reasonable measure, or 2) poll data spewed out by parts of the media has been properly framed, or useful to gauge public opinion. 

According to Encyclopedia Britannica, collective bargaining is

"A process of negotiation between representatives of workers (usually labor union officials) and management to determine the conditions of employment. The agreement reached may cover not only wages but hiring practices, layoffs, promotions, working conditions and hours, and benefit programs."

Further into the root of the issue, according to West's Encyclopedia of American Law, edition 2, in Constitutional Law rights are classified as natural, civil, and political. Natural rights are those that are believed to grow out of the nature of the individual human being such as rights to life, liberty, privacy, and the pursuit of happiness. Civil Rights belong to every citizen of the state, and are not connected with the organization or administration of government.

Political rights entail the power to participate directly or indirectly in the establishment or administration of government, such as the right of citizenship, the right to vote, and the right to hold public office.  Nothing in Wisconsin's Declaration of Rights (found in the State Constitution) guarantees a right to collective bargaining for any citizen, yet the reaction coming from government unions sounds as though the 1857 Dred Scott decision was dropped on them to enshrine slavery. 

One point appears lost in this discussion of "rights" (even coming from some commentators who supported the bill's passage).  Neither the U.S. Constitution nor Wisconsin's Constitution identifies collective bargaining as a right.  One can argue for an amendment at the state level - -and some advocates have recently done so -- but you can't credibly maintain that the legal equivalent presently exists. 

Therefore since collective bargaining is neither a natural, civil, nor political right, at best it is a right only in the colloquial sense of the term and merely a privilege in a purely constitutional sense.  It is a privilege in our view that has been badly abused in Wisconsin to the detriment of state taxpayers.  Collective bargaining actually denies the individual employee -- who might otherwise choose to decline a contract, or even decline the requirement to bargain collectively -- an ability to act independently, yet many continue to refer to this bargaining mechanism as a right.

While the recently enacted bill has caused much consternation, what it actually will do is replace collective bargaining with distributed bargaining and push down negotiations to the local school district levels -- where, in our view, they belonged in the first place.  We are bothered by the oft-used phrase of an "assault on the middle class" believing as we do, that it is not an assault on government employees who possess Cadillac health care benefits and retirement plans the rest of us only dream of.  Further, at 15% of the workforce (and even less of the populace), they hardly constitute the sweeping characterization we often hear as -- "Wisconsin's Middle Class."

The fact is, at the local level in many rural Wisconsin communities, public employment has become a fiefdom of privilege where, owing to binding interest arbitration based upon comparability, the never-ending spiral of wage and benefit improvements often results in local government compensation exceeding community "middle class" standards. The need to bargain virtually every operational issue makes implementing policy decisions and providing services a protracted struggle, often ending in grievance arbitration.

Perhaps this is why President Franklin D. Roosevelt, the patron saint of the American labor movement warned:

"All Government employees should realize that the process of collective bargaining, as usually understood, cannot be transplanted into the public service. It has its distinct and insurmountable limitations...The very nature and purposes of Government make it impossible for...officials...to bind the employer...The employer is the whole people, who speak by means of laws enacted by their representatives."

We believe by limiting Collective Bargaining, the legislature has enriched individual workers ability to work where they want and associate and negotiate with whom they choose and taken steps to rein in runaway costs.

We also take issue with the way poll takers have tried to report public opinion, and trumpet results.  Consider the USA Today/Gallup poll asking respondents, "Would you favor or oppose a law in your state taking away some collective bargaining rights of most public unions, including the state teachers union?"  Their poll data revealed that 61% of respondents said "oppose" and so the Feb. 22rd article title in USA Today blared, "Poll: Americans favor union bargaining rights"

We say -- not so fast.  In the first place, a more reasonably framed question would have been,

Would you favor or oppose a law in your state that substituted some collective bargaining privileges, including those of the state teachers union, with a move toward local bargaining with potential limits to government employee benefits?

The aforementioned USA/Gallup poll also indicated that 71% of us do not favor any tax increases as a means to reduce state budget deficits.  The problem with the USA/Gallup poll and those who like to seize only on responses to the first question mentioned above, is that they fail to ask respondents to choose between tax increases or spending cuts, as an either or proposition. Assuming we want present government employee staffing levels, we must choose between reducing costs, and levying tax increases for taxpayers.

A few commentators maintain that the $3.6B structural deficit Governor Walker inherited, does not actually mean our state is broke.  Of course the state can simply borrow more, raise taxes and user fees, engage in more accounting gimmickry (e.g. raiding segregated funds to close budget gaps), or some combination thereof.  That's what we have been doing for decades by kicking the proverbial can down the road. 

Change is never easy, but meaningful reform has come from duly-elected officials in Madison, Wisconsin.  We applaud our Governor and the Republicans for their leadership in standing for fiscal restraint and we remind our fellow taxpayers this boils down to a debate over controlling costs. Too much deficit requires lower and sustained limits on government employee benefits -- just like in real life where private businesses and taxpayers dwell.

Tim Peterson is a Milwaukee businessman and former Libertarian Party Candidate for US Senate, Robert Simandl is a Wisconsin attorney practicing employee benefit, labor and employment law and John Maddente is a Milwaukee businessman and former community columnist.
Right: noun: a just claim or title, whether legal, prescriptive, or moral. 

That's the definition of the word used in connection with Wisconsin's government union employees and their demands to retain collective bargaining privileges.  This issue more than any part of the Budget Repair Bill, has captured the nation's attention.

For weeks, we've heard demonstrators beating drums in Madison and equally vocal sympathizers in the media admonish anyone listening about "rights" of government union employees and the turmoil visited upon "the middle class" due to the Governor's Budget Repair bill.  We've also seen polls suggesting public support for some of their views. 

We do not believe that: 1) government employee collective bargaining constitutes a "right" by any reasonable measure, or 2) poll data spewed out by parts of the media has been properly framed, or useful to gauge public opinion. 

According to Encyclopedia Britannica, collective bargaining is

"A process of negotiation between representatives of workers (usually labor union officials) and management to determine the conditions of employment. The agreement reached may cover not only wages but hiring practices, layoffs, promotions, working conditions and hours, and benefit programs."

Further into the root of the issue, according to West's Encyclopedia of American Law, edition 2, in Constitutional Law rights are classified as natural, civil, and political. Natural rights are those that are believed to grow out of the nature of the individual human being such as rights to life, liberty, privacy, and the pursuit of happiness. Civil Rights belong to every citizen of the state, and are not connected with the organization or administration of government.

Political rights entail the power to participate directly or indirectly in the establishment or administration of government, such as the right of citizenship, the right to vote, and the right to hold public office.  Nothing in Wisconsin's Declaration of Rights (found in the State Constitution) guarantees a right to collective bargaining for any citizen, yet the reaction coming from government unions sounds as though the 1857 Dred Scott decision was dropped on them to enshrine slavery. 

One point appears lost in this discussion of "rights" (even coming from some commentators who supported the bill's passage).  Neither the U.S. Constitution nor Wisconsin's Constitution identifies collective bargaining as a right.  One can argue for an amendment at the state level - -and some advocates have recently done so -- but you can't credibly maintain that the legal equivalent presently exists. 

Therefore since collective bargaining is neither a natural, civil, nor political right, at best it is a right only in the colloquial sense of the term and merely a privilege in a purely constitutional sense.  It is a privilege in our view that has been badly abused in Wisconsin to the detriment of state taxpayers.  Collective bargaining actually denies the individual employee -- who might otherwise choose to decline a contract, or even decline the requirement to bargain collectively -- an ability to act independently, yet many continue to refer to this bargaining mechanism as a right.

While the recently enacted bill has caused much consternation, what it actually will do is replace collective bargaining with distributed bargaining and push down negotiations to the local school district levels -- where, in our view, they belonged in the first place.  We are bothered by the oft-used phrase of an "assault on the middle class" believing as we do, that it is not an assault on government employees who possess Cadillac health care benefits and retirement plans the rest of us only dream of.  Further, at 15% of the workforce (and even less of the populace), they hardly constitute the sweeping characterization we often hear as -- "Wisconsin's Middle Class."

The fact is, at the local level in many rural Wisconsin communities, public employment has become a fiefdom of privilege where, owing to binding interest arbitration based upon comparability, the never-ending spiral of wage and benefit improvements often results in local government compensation exceeding community "middle class" standards. The need to bargain virtually every operational issue makes implementing policy decisions and providing services a protracted struggle, often ending in grievance arbitration.

Perhaps this is why President Franklin D. Roosevelt, the patron saint of the American labor movement warned:

"All Government employees should realize that the process of collective bargaining, as usually understood, cannot be transplanted into the public service. It has its distinct and insurmountable limitations...The very nature and purposes of Government make it impossible for...officials...to bind the employer...The employer is the whole people, who speak by means of laws enacted by their representatives."

We believe by limiting Collective Bargaining, the legislature has enriched individual workers ability to work where they want and associate and negotiate with whom they choose and taken steps to rein in runaway costs.

We also take issue with the way poll takers have tried to report public opinion, and trumpet results.  Consider the USA Today/Gallup poll asking respondents, "Would you favor or oppose a law in your state taking away some collective bargaining rights of most public unions, including the state teachers union?"  Their poll data revealed that 61% of respondents said "oppose" and so the Feb. 22rd article title in USA Today blared, "Poll: Americans favor union bargaining rights"

We say -- not so fast.  In the first place, a more reasonably framed question would have been,

Would you favor or oppose a law in your state that substituted some collective bargaining privileges, including those of the state teachers union, with a move toward local bargaining with potential limits to government employee benefits?

The aforementioned USA/Gallup poll also indicated that 71% of us do not favor any tax increases as a means to reduce state budget deficits.  The problem with the USA/Gallup poll and those who like to seize only on responses to the first question mentioned above, is that they fail to ask respondents to choose between tax increases or spending cuts, as an either or proposition. Assuming we want present government employee staffing levels, we must choose between reducing costs, and levying tax increases for taxpayers.

A few commentators maintain that the $3.6B structural deficit Governor Walker inherited, does not actually mean our state is broke.  Of course the state can simply borrow more, raise taxes and user fees, engage in more accounting gimmickry (e.g. raiding segregated funds to close budget gaps), or some combination thereof.  That's what we have been doing for decades by kicking the proverbial can down the road. 

Change is never easy, but meaningful reform has come from duly-elected officials in Madison, Wisconsin.  We applaud our Governor and the Republicans for their leadership in standing for fiscal restraint and we remind our fellow taxpayers this boils down to a debate over controlling costs. Too much deficit requires lower and sustained limits on government employee benefits -- just like in real life where private businesses and taxpayers dwell.

Tim Peterson is a Milwaukee businessman and former Libertarian Party Candidate for US Senate, Robert Simandl is a Wisconsin attorney practicing employee benefit, labor and employment law and John Maddente is a Milwaukee businessman and former community columnist.

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