Governor’s Collective Bargaining Bill Challenges Separation of Powers
March 1999
Governor Locke has proposed a bill which would change the fundamental balance of power within our state government. Substitute Senate Bill 5363’s stated purpose is to revamp Washington’s civil service and create a collective bargaining system for government employee unions. It’s full effect, however, would be a radical shift of power from the legislature, the most representative branch, to the executive.
The nature of collective bargaining is at odds with the basic separation of powers structure of our state government. Detailed and binding labor agreements must be negotiated between unions and management, yet in our democratic system of government there is no single "management" entity to do the negotiating.
Instead government power is divided among three branches. The executive and the legislature share responsibility for the state’s governance through their joint law-making ability, most significantly over budget and taxes. They are answerable for their actions to the people at election time. The third branch, the judiciary, resolves disputes that arise over interpretation of the law.
The purpose of dividing power at the state level, as at the national level, is to prevent one part of the government from dominating the others. Alexander Hamilton pointed out in the Federalist Papers that a balance of power within the government provides "security against a gradual concentration of the several powers in the same department." He explained that separate powers and responsibilities allow the members of the executive and the legislature to act as a "check on each other" and to "be the means of keeping each other in their proper places." In a democracy, Hamilton concluded, such a divided arrangement is "essential to the preservation of liberty."
This point as it relates to labor negotiations was aptly illustrated by President Franklin Roosevelt. Years ago he recognized the inherent problem in applying the collective bargaining process to public employees.
"The very nature and purposes of government make it impossible for administrative officials to represent fully or to bind the employer in mutual discussion with government employee organizations. The employer is the whole people who speak by means of laws enacted by their representatives in Congress. Accordingly, administrative officials and employees alike are governed and guided, and in many cases restricted, by laws which establish policies and procedures or rules in personnel matters."
Roosevelt’s incisive comments go to the heart of the problem of requiring the use of traditional collective bargaining in the public sector. Labor agreements must be binding on workers and their employers. But in the case of public employees, their true "employers" are the people and taxpayers of Washington state. The people’s interests are represented by their elected representatives: the governor and the legislature working together.
So fundamental is the legislature’s role as the "employer" of the state workforce that the state cannot pay for wages, salaries or job benefits without action by the legislature. The state constitution provides that, "No moneys shall ever be paid out of the treasury of this state...except in pursuance of an appropriation made by law." The authors of the constitution did not intend this to be simply a check-writing function. Along with this authority goes the basic responsibility to determine how public money is spent.
As part of its appropriations work, the legislature ensures that tax funds are used to further and protect the interests of the people of Washington. To meet its obligation the legislature must be part of the policymaking process that determines how public money will be expended.
The amounts involved in a new collective bargaining system would be significant. The state spent $2.8 billion on wages and salaries, and an additional $705 million on employee benefits, in fiscal 1998. Consigning the legislature to the sidelines during wage negotiations, as SSB 5363 calls for, would deprive elected representatives of their ability to carry our their constitutional duties. Collective bargaining would ultimately move tax decisions outside the legislature’s control since, once payroll costs are fixed, they would have little alternative but to raise taxes.
The details of the bill describe the new powers that would accrue to the governor’s office.
The bill would empower the governor for the first time to negotiate comprehensive 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 to these specific items, collective bargaining agreements would also cover all "other terms and conditions of employment."
Summary of Powers Shifted to the Governor Under SB 5363
As broad as these areas are, however, the bill makes clear that this is not a complete list. The collective bargaining process would also include "the negotiation of any question arising under a collective bargaining agreement," (emphasis added). This provision of the bill creates an open-ended, "blank check" power within the collective bargaining process.
The terms of collective bargaining agreements would have greater force than any other official policy except state law. The bill provides that labor agreements would take precedence over any conflicting "executive order, administrative rule, or agency policy relating to wages, hours and terms and conditions of employment.
The legislature’s role in this new process would be reduced to an absolute minimum. 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 [governor’s] request for funds as a whole." Under this process the legislature would be allowed a single up-or-down, all-or-nothing vote on the final agreement with no amendments. In other words, the legislature could approve the wage package as presented or precipitate a strike by refusing to appropriate funds for salaries. This restricted process, in effect, would supersede the legislature’s constitutional role as budget setter.
Given these conditions, the legislature would face tremendous pressure to approve full funding for the union’s salary and wage package. To not do so on time would disrupt state payroll and create severe hardship for workers’ families. If not quickly resolved, the subsequent labor crisis could lead to a state government shut-down.
If the legislature does not vote funding for a total collective bargaining package, the bill creates an alternative process and shifts power even farther from the legislature. It states, "If the legislature rejects or fails to act on the [governor’s funding] submission," the unions can seek to implement the wage agreement through a separate dispute resolution process. This process requires an "impartial third party to mediate." The mediator is chosen by agreement between the union representatives and the governor, the two parties who already agree on the very collective bargaining package that is at issue.
If a mediated resolution is not reached after one hundred days, an "independent fact-finder shall be appointed." Again, the fact-finder is chosen by the unions and the governor, while the legislature is excluded from the selection process.
The fact-finder can meet with union representatives and state managers, conduct investigations, hold hearings and "take other steps as may be appropriate." After thirty days, the fact-finder can file a report and recommend terms for settlement of the dispute. In addition, the governor and the union can at any time agree to their own substitute dispute resolution process, which shall be binding on both parties if agreement is reached.
Throughout this lengthy settlement process, which would involve deciding how to spend billions of dollars in public funds, the legislature would play no role. Under the bill, once a collective bargaining agreement is reached between the governor’s representatives and the unions, the legislature faces two stark choices: 1) approve and fund the agreement in its entirety or, 2) stand aside while a pre-set negotiation process takes over. In either case, the legislature would exercise little control, or even oversight, over the details of the outcome.
Under the proposed collective bargaining process, the legislature would be reduced to approving or rejecting the expenditure of state funds. Beyond this, it would exercise little or no influence over how these funds are spent, and no ability on its own to change the union’s agreement once it is approved and funded. Any attempt by the legislature to change a collective bargaining agreement or its funding once it is in place could be blocked by the governor.
The bill would thus create a process under which the roles of the governor and the legislature would be reversed. The governor, through negotiations with labor representatives, would set policy and determine the details of how the state’s employee wage and benefits program would work. The legislature would be left to pass or veto the final result.
Collective bargaining for government workers brings with it a much greater likelihood that at some point part or all of Washington’s government workforce could go on strike.
The governor’s bill states that nothing in the legislation "permits or grants to any employee the right to strike or refuse to perform his or her official duties." But the bill does not prohibit strikes either, nor does it provide any penalties if a strike occurs. 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.
California law similarly prohibited strikes by public employees, but the state Supreme Court later granted government unions the right to strike. Once a collective bargaining system is in place and operating in Washington, government unions could sue in state court for the right to strike. If the courts rule in their favor, state employees could then legally strike without authorization from the legislature. Any broad-based strike by state employees of more than a day or so would cause a government shut-down.
Also, the bill authorizes any new collective bargaining agreement to go into effect the day after the old one expired, even if state employees had gone on strike in the meantime. This means government employees could retroactively recoup full wages and benefits to cover the time they were on strike once the dispute had been resolved.
Passage of SSB 5363 would disrupt the current constitutional equilibrium by moving a large area of state policy out of the legislature’s regular oversight and appropriations process and assigning it to the governor alone. Under the proposed system the legislature’s role in workforce policy would be reduced to no more than voting on the funding for a total labor package once it had been negotiated. As such the bill would hamper the legislature’s ability to carry out its constitutional functions.
In addition, experience in other states indicates that collective bargaining systems often result in lost efficiency and a decline in service to the public, while driving up labor costs. The language of the bill does not grant a right to strike, but the creation of collective bargaining in Washington would likely lead to heightened labor unrest because public sector strikes have occurred in other parts of the country even without legal authority.
Creating a collective bargaining system for government employees in Washington involves risk and uncertainty. Whatever the long-term costs to the people of the state, the immediate impact of collective bargaining will be to alter permanently the balance of power within our state government.