Sidelined: Collective Bargaining Bill Undermines the Power of the Legislature
February 2000
Once again Governor Locke has proposed a bill to bring mandatory collective bargaining to Washington state. This idea has been strongly advocated by government unions for the last six years, but as yet the proposal has failed to garner sufficient support to pass the legislature. Backers say the bill embodies sorely needed civil service reform that will boost efficiency and save money.
These claims, however, do not stand up to rigorous examination. As currently drafted, the bill would dictate a fundamental shift in the balance of power within our state government. The legislature stands to lose control of a significant portion of the state’s payroll budget, and the likely result will be a major increase in personnel costs to the state.
SB 6402 would empower the governor to negotiate, in secret, comprehensive and binding collective bargaining agreements with state employee unions. The agreements would determine wages, work hours, promotions, the number of applicants that can be considered for a job opening, and how much the state must spend on each employee for health benefits. In addition, the agreements would cover all “other terms and conditions of employment” including the “negotiation of any question arising under a collective bargaining agreement [emphasis added].[1]
All this would occur without public hearings, debate or oversight from the legislature. The bill’s sweeping grant of executive authority effectively shuts the legislature out of a large area of state policymaking. The amount of the budget involved is significant. The state spent $2.8 billion on wages and salaries, and another $705 million on employee benefits, in fiscal 1998.[2]
Once in place the terms of a collective bargaining agreement would have greater force than any other official policy except state law. The bill provides that “if a conflict exists between an executive order, administrative rule, or agency policy relating to wages, hours, and terms and conditions of employment” and a collective bargaining agreement, “the collective bargaining agreement shall prevail.”[3]
As we discussed in our 1999 study,[4] the bill represents a fundamental shift in power over the state’s budget, and therefore its tax policy, from the elected legislature to the governor or even to an unelected labor mediator.[5]
Once the governor had negotiated a final agreement with the unions, it would be submitted to the legislature for funding. The bill states, “The legislature shall approve or reject the submission of the request for funds as a whole.”[6] The legislature would be allowed a single all-or-nothing vote on the agreement with no amendments. The process would therefore supersede the legislature’s constitutional role in managing the state budget.
Given this restriction, the legislature would face tremendous pressure to approve full funding for the negotiated salary and wage package. To not do so would disrupt state payroll and could create severe hardship for workers’ families.
If the legislature did not vote to fund a proposed pay increase, the bill would set in motion an alternative process that shifts power even farther from the legislature. This process requires an “impartial third party to mediate” changes in the proposal.[7] But the mediator is chosen by agreement between the union negotiator and the governor, the two parties who had already reached agreement on the very collective bargaining package at issue. The legislature is again shut out of the process.
If a mediated solution is not reached in one hundred days, an “independent fact-finder shall be appointed.”[8] Again, the fact-finder is chosen by the union negotiator and the governor; the legislature is excluded from the selection process. After thirty days the fact-finder can file a report and recommend terms for a settlement. In addition, the governor and the union negotiator can at any time agree to their own arbitration process, which shall be binding on both parties if agreement is reached.
Throughout this process the legislature sits on the sidelines. Once a collective bargaining agreement is negotiated, the legislature faces two stark choices: 1) approve and fund a wage package it had no hand in creating or, 2) stand aside while a pre-set negotiation process takes over. In either case, the legislature would exercise no control over the details of the outcome.
The bill thus proposes to reverse the normal roles of the legislature and the governor. The governor would engage in a detailed policy-making process by working out wage and labor policy with unions. The finished package would then be presented to the legislature, which could only pass or “veto” the final result. The process excludes not only the current elected legislature, but it ties the hands of future legislatures as well.
The most important power the constitution grants the people’s representatives in the legislature is the power of the purse. The legislature has a fundamental duty to determine and to control public spending. So fundamental is this role that the state cannot pay for wages, salaries or job benefits without action by the legislature. The constitution says, “No moneys shall ever be paid out of the treasury of this state, or any of its funds, or any of the funds under its management, except in pusuance of an appropriation made by law.”[9] Collective bargaining places severe limits on this power in the area of state payroll costs.
Hawaii offers a dramatic demonstration of how mandatory collective bargaining can cause a state legislature to lose control of the budget. Earlier this year, state budget projections predicted a sizable surplus. But under current labor law, the state must first go through binding arbitration with the Hawaii Government Employees Association. The negotiations, conducted in secret, threaten to turn an expected $190 million surplus into a deficit. “If you crank in a 2% pay raise, you’re going to start running into red ink very fast,” says Budget Director Neil Miyahira, and there is little Hawaii’s legislature can do about it.[10]
If SB 6402 becomes law state employees below the level of supervisor would be required to become members of pre-determined collective bargaining units. Forced union membership will mean a serious loss of personal freedom for state employees.
Nationally, union membership has been in decline for decades, now amounting to barely 10% of the nation’s workforce. [11] The downturn in unions is evidence that in the modern workforce collective bargaining retains its relevance for an ever smaller number of employees.
Nor are state governments different. Only 23 states require full-scope collective bargaining for their state employees. Not since 1983 has any state except New Mexico adopted collective bargaining, and even that state eventually dropped the practice. In allowing the collective bargaining system to expire Governor Gary Johnson said, “New Mexico employees already enjoy full rights and benefits without having to pay union dues for them.”[12]
The workers in each “certified exclusive bargaining unit” would hold an election to determine by a simple majority vote whether to unionize. If the union prevails, the bill makes membership a “condition of employment” for all current and future workers in that unit.[13]
The bill thus calls for creation of a restrictive “closed shop” in which every worker must be a member of an approved union. In contrast, the freer “agency shop” system, which is the method used by the state’s largest government union, the Washington Education Association,[14] allows individual workers to choose not to join the union, although they must still pay the cost of being represented in labor negotiations.
Under a “closed shop” system enforcement is strict. The bill says that the failure of any covered employee to join a designated union within 30 days of being hired “constitutes cause for dismissal.”[15] Only an extremely narrow religious exception is permitted.[16] Disagreement with union policy, even policies and actions unrelated to collective bargaining like endorsing political candidates or causes, would not justify a personal decision not to join the union. Thus, accepting a job with the state would be voluntary, but joining a union would not.
Involuntary union membership carries major cost for workers. The bill requires employing agencies to withhold membership dues from workers’ paychecks and remit these funds to the union.[17] The union assessment on paychecks typically costs around 55 cents per hour worked.[18] Freedom of association also means the freedom not to associate, and no one should lose their job for failure to do a union’s bidding.
Another factor that adds to the potential cost of the bill is the greater likelihood of strikes. The bill says that nothing in the legislation permits or grants to any employee the right to strike. But the bill does not prohibit strikes either, nor does it provide any penalties if a strike occurs. But because the right to strike is expressly prohibited in existing collective bargaining laws concerning police and fire fighters (under RCW 41.56.49c), the absence of an explicit prohibition may imply the right to strike.
In this regard the bill lacks teeth. Technical prohibitions on public sector strikes have done little to prevent such actions in the past. Between 1983 and 1994, 43% of all major strikes in the country by public employees were illegal. Over the same period the nation suffered 78 public sector strikes, which together idled more than half a million workers.[19]
Strikes are expensive. In a public-sector walkout the state would incur not only the direct cost of disrupted services, but also the cost of back wages that would be included in any back-to-work settlement. Section 304 of the bill provides that any new collective bargaining agreement can be backdated to go into effect the day after the old one expired.[20] This provision allows employees to recoup full wages and benefits once the dispute has been resolved and a new agreement is in place.
SB 6402 would disrupt the normal constitutional balance by moving a large area of state policy out of the legislature’s regular appropriations process and assigning it to the governor and his appointees. As such the bill would hamper the legislature’s ability to control spending and to carry out its full constitutional functions.
The immediate impact of collective bargaining would be to undermine the constitutional checks and balances of our democratic system by shifting power from the legislature to the governor. Also, by mandating union membership the bill would deny state employees the same freedom of association enjoyed by other employees. The long-term risk is that collective bargaining will significantly ratchet up the annual cost of government by locking in a labor management system that promotes higher payroll expenses and discourages cost-saving innovation.
Click here to read more about the author Paul Guppy.
[2] Statewide Report of Salaries and Benefits, FY 1998, Office of Financial Management, Olympia, Washington, March, 1999.
[4] Policy Brief: “Governor’s Collective Bargaining Bill Challenges Separation of Powers,” by Paul Guppy, Vice President for Research, Washington Institute Foundation, Seattle, Washington, March 1999.
[6] SB 6402, Section 302 (3b).
[9] Constitution of the State of Washington, Article VIII, Section 4.
[10] “State looks to end up in the black – maybe,” by Gordon Y.K. Pang, Honolulu Star-Bulletin, January 17, 2000.
[11] “Background Information,” the National Right to Work Committee, February, 2000, www.nrtw.org.”
[12] Phone interview, Office of Governor Gary Johnson, Santa Fe, New Mexico, February 8, 2000.
[13] SB 6402, Section 202, (11a)
[14] As provided for by Revised Code of Washington 41.59.100.
[16] The bill provides a narrow conscience exception “based on bona fide religious tenets or teachings of a church or religious body of which such public employee is a member.” Such an employee must still pay the union an amount equal to the regular dues paid by members. SB 6402, Section 202 (11a).
[17] SB 6402, Section 311 (3).
[18] Laborers’ Master Agreement for Western and Central Washington, Association of General Contractors of Washington and Washington and Northern Idaho District Council of Laborers, 1997 - 2002; Wage and Fringe Benefit Rates for June 1, 1999 to June 1, 2000, payroll deduction for “Union Dues.”
[19] Public Sector Employment in a Time of Transition, Industrial Relations Research Association Series, Dale Belman, Morley Gunderson and Douglas Hyatt, editors, pp. 91-94, tables 3 and 4.