Wisconsin v. Wisconsin?
This article is not about Republicans or Democrats or Unions or Open Shops. It’s about the implications of a seldom heard phrase, perhaps now antiquarian, that seemed so important to the Founding Framers, “Social Contract.”
We have all read and heard multiple stories about the controversy in Wisconsin, about what is good, fair, necessary or evil. About who is right or wrong, moral or amoral, legal or criminal, the adverbs and adjectives fly of the page and out of the mouths of talking heads and commentators.
What I have not heard is a examination of the nature and condition of employment in the public sector in comparison to employment in the private sector. While both sectors have employee benevolent organizations called unions, might there be significant structural differences in the nature of the employee relationship to management that differentiates the conditions of employment?
I would posit that there are, and further that the difference between the public and private unions is as great as that between unions and guilds, and presents a significant difference in the nature of and condition of employment. The difference in nature is as different as that of our notion of the “social contract” and a legal contract, and the difference is well worth exploring.
Why a reference to the “Social Contract?” Because it is relevant to the nature and conditions by which we Americans govern ourselves. Unions do not ultimately seek benefits, they seek governance; they wish to decide the conditions of their employment.
At its most basic, the “social contract” is the statement that the people have a natural right to select how they are governed. At its most basic, a legal contract is an agreement between parties to allow their mutual behavior to be governed by law.
PRIVATE SECTOR EMPLOYMENT AND UNIONS:
The private sector is composed of businesses, primarily corporations, which accomplish the work necessary to sustain and grow the economy of our society. Corporations are legal entities which offer legal protection in return for equity investment. They provide a “corporate veil” or shield protecting investors from the negligent acts of a company’s employees, management and labor. That protection induces investment and creates the initial equity, or capital, of a business, allowing it to hire employees, managers and laborers, and create products that are offered for sale. Experience has shown that managers and laborers, while sharing a common employer, may have different expectations and goals, and may often sharply disagree. Employees may express their grievances individually to their manager, and the manager may or may not respond. Since the late 19th century, employees and managers have been involved in negotiating the conditions of employment.
A union representing employees in the private sector, employees of a corporation, has won the right to represent employee members, through a statutory vote of employees, in negotiations with the company’s management. These negotiations are commonly called “collective bargaining” and the result, the agreement or contract, is a legally enforceable document. Collective bargaining agreements, as with most contracts, have conditions and a term. These conditions are not normally imposed on either party by the other, but are the result of a compromise between the parties on matters relating to wages, benefits, and working conditions. Unions’ state they are necessary because many corporations act solely in their economic self interest, that is, they seek at all times and in all situations to maximize profit
Profit is the excess capital a company generates beyond its cost of doing business, or overhead. Companies may invest this excess capital in themselves, in other companies or distribute it to management and shareholders. We call this process Capitalism
We see that the relationship between employees and management is an economic transaction, a contract, regulated by law.
At its simplest, a private sector union exists because employees have no voice in management, do not normally invest their excess capital (buy or own stock) in the business, and have no control of the decisions or intent of management. Employees band together to have greater leverage in attaining the greatest compensation from their work, that is the best wages, benefits and working conditions. In a practical way, individuals have much less ability to maximize their economic return for the work they accomplish; together, in a union, they increase their ability through negotiations.
When an individual stops working because of wages, benefits or working conditions, we say they have quit, or been fired.
When a union stops working because of wages, benefits or working conditions, we say they are on strike.
In the private sector, the primary leverage that a union exerts is the threat of a strike, a work stoppage that also results in a revenue stoppage for the company, that is, a potential loss of profit.
In the private sector, the primary leverage that a company exerts is the threat of closure, the shutting down of a facility, and the transfer of some or all tasks to another facility or even to an off-shore facility. That means employees are laid off, or terminated.
In this simple description of labor relations in the private sector, it seems clear that employees have no recourse other than collective bargaining to see redress of grievances or to seek an increase in compensation for their labor. There are other alternatives, such as ESOP’s or employee stock ownership programs, but as a general rule, employees have no other means of altering the conditions of their employment other than collective bargaining. This activity is most certainly an expression of a desire to govern themselves, a least in part. The resulting agreements are legally binding contracts governed by law.
PUBLIC SECTOR EMPLOYMENT AND UNIONS:
Public sector employment is the necessary labor to accomplish the desire of the people to govern themselves. In America, it is a necessary outcome of the implementation of the Founding Framer’s notion of a “Social Contract.” When a people decide to govern themselves, as the colonists did in 1776, they assume the obligations to govern, and must decide on the means of governance. In our representative democracy, we decided upon a Federal system, which created multiple layers of government. Our national government is composed of elected representatives and an elected executive. Our state governments are also composed of elected representatives and an elected executive. The governance of states is further subdivided into units composed of elected representatives. These governmental structures do the work of the people, and the people who work for the government work for the people.
This is a very different structure from the private sector. Here employees are the agents of the governed, managed by elected officials, or their appointees. Here there exists no capital, no investment, no equity or stockholders. There is no profit, and no motive for profit. Government is tasked with carrying out the will of the people, and taxes all citizens in various ways, to do so.
All the money spent by government is collected through taxation, even fees and fines are a form of taxation, and all debt owed by government, whether due now or deferred, will be paid through taxation.
It should be clear that government employees work for the people, and are paid by the people. The term most often used for them in the past was “Civil Servants” or as we now describe them collectively, the “Civil Service”
That begs the question, “Why are their government employee unions at all?”
In the past, even the present, corruption exists in government. The Pendleton Civil Service Reform Act began a long process of eliminating patronage, establishing qualifications for public sector employees and preventing the termination of public sector employees with just cause. This Federal law, enacted in 1883, forms the foundation for current civil service protections, none of which exist statutorily in the private sector. The civil service acts subsequent to the Pendleton Act at first expanded the protections afforded government employees, but, for purely political reasons, Congress began restricting those protections beginning with the Hatch Act of 1938, and the politically motivated Civil Service Reform Act of 1978, which reorganized the United States Civil Service Commission into the Office of Personnel Management, and all but promulgated the notion of Public Sector Unions. Of course, this Act was signed into law by who else, the great moralist and reorganizer, Georgia’s own populist President, Jimmy Carter.
In this act, and subsequent amendments and bureaucratic interpretations, called Federal Regulations, Congress returned to patronage in a grand form, payola by “negotiation,” and public sector unions became an entrenched institutions.
“Oh, they can’t strike.” The law does not allow work stoppages, and there is no patronage or nepotism allowed. In fact all of the above has occurred, repeatedly, and the “sick –outs” of the current Wisconsin controversy attest to that.
Congress, to protect the re-election of its members, through laws allowing union contributions, has limited the constitutional rights of individual Federal employees, restricting their participation in political free speech, limiting their right to campaign to change their bosses through political activities while at work, and even limiting the right of some public sector employees to actively campaign when not at work!
It should be clear that the rise of Public Sector Unions is a direct result of the corrupt actions of elected officials, beginning with those in the Congress of the United States, who have used Public Service Unions as an unrestricted source of campaign funding and as a payoff to those special interest groups who “represent” the political will of union members.
Incredibly, these Public Service Unions, with their inflated wages and benefits, are stealing from themselves, as we the people of the United States are their actual employers.
We need to create an atmosphere of responsibility on the part of Public Service Unions to we, The People. And we must make certain that those we employ are held in the highest regard and are the most competent, efficient and responsible employees in America.
MY OPINION AS TO A SOLUTION:
We must begin the process of restoring public service to its inestimable place of honor in the workplace. We must create policies that lead to procedures which allow government to recruit the best and brightest Americans to help build a better America,
Their will be great debate about the ways and means Congress can achieve this, but it is clear that a system meant to protect the integrity of public service has become the system that allows the greatest abuse.
First, we must insist Congress repeal the Hatch Act, and all acts that impinge of the rights of all citizens to fully express their political views and participate in political activities outside the workplace. Americans, all Americans, must be free to be fully engaged in our vibrant political process, with the understanding that such speech may not interrupt the process of governing the country, and may not be disruptive to the conduct of government business. Congress should repeal significant portions of the 1978 CSRA and re-establish a Civil Service Commission whose purpose must be to assure that Federal employees are paid compensation, wages and benefits, equivalent to the private sector employee in the geographic region in which they live.
Second, we must insist Congress pass legislation that provides for mandatory criminal penalties for employees who are corrupt or coercive in their political activities. The public service employee must never be threatened with repercussion or rewarded with patronage. No American should ever be complicit in forcing their political views on any other American, and the re-established Civil Service Commission must be tasked with the obligation to see that any Federal employee found guilty of such action be immediately terminated.
Third, Congress must act to decertify all Federal unions, and deny federal funding to any State or local program that is subject to the rules of any public service union. States may continue to allow the participation of public service unions in their own affairs, but such unelected officials should not participate in the work of elected Federal representatives governing the United States America.
Fourth, Congress must pass legislation allowing the free employment of any citizen in any state for an open position for which they meet all qualifications, and must prevent the compulsory enrollment of any employee in an organized labor union. This is an appropriate and apt application of the Interstate Commerce Clause, and legislation should be carefully crafted to protect the rights of those who choose to be enrolled and those who choose not to be enrolled. Congress should insure private sector labor union members should have the right to vote on any policy which supports or expends funds on any hard or soft political activity; as union members, however, they must accede to the majority rule, or be allowed to resign from the union. Finally, Congress should insure private sector unions may negotiate for non union members only with their permission, and insure businesses may offer separate employment packages to union and non-union employees.
With comparable wages and benefits, fair and merit based employment practices, employment with 229 year old “Institution,” and the opportunity to serve our nation, there should be no reason why the Federal government, or any State or Local government should not attract and retain the best and brightest employees, dedicated to doing the people’s work, and doing it well