Why Public Sector Unions: Are Federal Labor Laws Applicable To States As States?

One of the unexplored issues (at least in my internet travels) regarding the importance of public sector unions is the issue of whether federal labor laws can be applied to States and their subdivisions. One of the principal arguments, I would posit, for the critical importance of public sector unions is the strong possibility that federal labor laws do not apply to States (and their subdivisions) as States. That is, to States as employers. Absent federal standards, public sector employees, more so than even private sector employees, strongly rely on their unions to guarantee their rights. In order to flesh out this proposition, a review of the pertinent case law is in order.

In 1976, relying on principles of federalism, the Supreme Court, in National League of Cities v. Usery, declared that federal labor laws can not apply to the States as employers:

The original Fair Labor Standards Act passed in 1938 specifically excluded the States and their political subdivisions from its coverage. [n6] In 1974, however, Congress enacted the most recent of a series of broadening amendments to the Act. By these amendments, Congress has extended the minimum wage and maximum hour provisions to almost all public employees employed by the States and by their various political subdivisions. Appellants in these cases include individual cities and States, the National League of Cities, and the National Governors' Conference; [n7] they brought an action in the District [p837] Court for the District of Columbia which challenged the validity of the 1974 amendments. They asserted, in effect, that, when Congress sought to apply the Fair Labor Standards Act provisions virtually across the board to employees of state and municipal governments it "infringed a constitutional prohibition" running in favor of the States as states. The gist of their complaint was not that the conditions of employment of such public employees were beyond the scope of the commerce power had those employees been employed in the private sector, but that the established constitutional doctrine of intergovernmental immunity consistently recognized in a long series of our cases affirmatively prevented the exercise of this authority in the manner which Congress chose in the 1974 amendments. [. . .] Our examination of the effect of the 1974 amendments, as sought to be extended to the States and their political subdivisions, satisfies us that both the minimum wage and the maximum hour provisions will impermissibly interfere with the integral governmental functions of these bodies. [. . .] This exercise of congressional authority does not comport with the federal system of government embodied in the Constitution. We hold that, insofar as the challenged amendments operate to directly displace the States' freedom to structure integral operations in areas of traditional governmental functions, they are not within the authority granted Congress by Art. I, § 8, cl. 3

Subsequently, Usery was limited by Garcia v. San Antonio Transportation Authority:

The present controversy concerns the extent to which SAMTA may be subjected to the minimum wage and overtime requirements of the FLSA. When the FLSA was enacted in 1938, its wage and overtime provisions did not apply to local mass transit employees or, indeed, to employees of state and local governments. §§ 3(d), 13(a)(9), 52 Stat. 1060, 1067. In 1961, Congress extended minimum wage coverage to employees of any private mass transit carrier whose annual gross revenue was not less than $1 million. Fair Labor Standards Amendments of 1961, §§ 2(c), 9, 75 Stat. 65, 71. Five years later, Congress extended FLSA coverage to state and local government employees for the first time by withdrawing the minimum wage and overtime exemptions from public hospitals, schools, and mass transit carriers whose rates and services were subject to state regulation. Fair Labor Standards Amendments of 1966, §§ 102(a) and (b), 80 Stat. 831. At the same time, Congress eliminated the overtime exemption for all mass transit employees other than drivers, operators, and conductors. § 206(c), 80 Stat. 836. The application of the FLSA to public schools and hospitals was ruled to be within Congress' power under the Commerce Clause. Maryland v. Wirtz, 392 U.S. 183 (1968).

The FLSA obligations of public mass transit systems like SATS were expanded in 1974 when Congress provided for the progressive repeal of the surviving overtime exemption for mass transit employees. Fair Labor Standards Amendments of 1974, § 21(b), 88 Stat. 68. Congress simultaneously brought the States and their subdivisions further within the ambit of the FLSA by extending FLSA coverage to virtually all state and local government employees. §§ 6(a)(1) and (6), 88 Stat. 58, 60, 29 U.S.C. §§ 203(d) and (x). SATS complied with the FLSA's overtime requirements until 1976, when this Court, in National League of Cities, overruled Maryland v. Wirtz and held that the FLSA could not be [p534] applied constitutionally to the "traditional governmental functions" of state and local governments. Four months after National League of Cities was handed down, SATS informed its employees that the decision relieved SATS of its overtime obligations under the FLSA. [n3]

The Court was confronted with the Usery precedent. Writing for a Court split 5-4, Justice Blackmun wrote:

Any constitutional exemption from the requirements of the FLSA therefore must rest on SAMTA's status as a governmental entity, rather than on the "local" nature of its operations. The prerequisites for governmental immunity under National League of Cities were summarized by this Court in Hodel, supra. Under that summary, four conditions must be satisfied before a state activity may be deemed immune from a particular federal regulation under the Commerce Clause. First, it is said that the federal statute at issue must regulate "the ‘states as States.'" Second, the statute must "address matters that are indisputably ‘attribute[s] of state sovereignty.'" Third, state compliance with the federal obligation must "directly impair [the States'] ability ‘to structure integral operations in areas of traditional governmental functions.'" Finally, the relation of state and federal interests must not be such that "the nature of the federal interest . . . justifies state submission." 452 U.S. at 287-288, and n. 29, quoting National League of Cities, 426 U.S. at 845, 852, 854. [p538]

The controversy in the present cases has focused on the third Hodel requirement -- that the challenged federal statute trench on "traditional governmental functions." [. . .] We therefore now reject, as unsound in principle and unworkable in practice, a rule of state immunity from federal regulation that turns on a judicial appraisal of whether a [p547] particular governmental function is "integral" or "traditional." Any such rule leads to inconsistent results at the same time that it disserves principles of democratic self-governance, and it breeds inconsistency precisely because it is divorced from those principles. If there are to be limits on the Federal Government's power to interfere with state functions -- as undoubtedly there are -- we must look elsewhere to find them. We accordingly return to the underlying issue that confronted this Court in National League of Cities -- the manner in which the Constitution insulates States from the reach of Congress' power under the Commerce Clause.

The Court enunciated the following standard:

the Framers chose to rely on a federal system in which special restraints on federal power over the States inhered principally in the workings of the National Government itself, rather than in discrete limitations on the objects of federal authority. State sovereign interests, then, are more properly protected by procedural safeguards inherent in the structure of the federal system than by judicially created limitations on federal power. The effectiveness of the federal political process in preserving the States' interests is apparent even today in the course of federal legislation. On the one hand, the States have been able to direct a substantial proportion of federal revenues into their own treasuries in the form of general and program-specific grants in aid.

In short, Garcia said that the political process is all the protection required for federalism purposes. While this seems accurate in reality, subsequent courts have flatly rejected this idea (see, e.g. Printz, Lopez, Seminole Tribe, Alden).That Garcia survives, at least in name, is more likely due to the fact that Congress has largely backed away from imposing regulations on state and local governmental employee relationships.

With that background, the importance of public sector unions becomes patent. If federal laws can not, as I posit the current Supreme Court would state, require that that states abide by federal labor laws (minimum wage, work week restrictions, child labor laws even), then who can defend these policies? Public sector unions, that's who.

Yes, it is true that the political process at the state and local level can also serve this purpose. But consider how well that is working in say, Wisconsin. Or Ohio. Or Florida. Or even New York. If I worked in the public sector, I would not have much confidence in the political process.

I would be fighting for, not only my union, but all public sector unions. After all, if first they come for the teachers, and you do nothing, then they will come for you.

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    Query: this diary is also on DK. Will (5.00 / 1) (#1)
    by oculus on Mon Feb 21, 2011 at 12:11:37 PM EST
    every diary posted by "Armando" also be posted here?  

    No (5.00 / 1) (#4)
    by Big Tent Democrat on Mon Feb 21, 2011 at 12:21:26 PM EST
    And vice versa.

    Good thing I'm retired. Quite time-consuming. (5.00 / 1) (#5)
    by oculus on Mon Feb 21, 2011 at 12:24:45 PM EST
    Oh, so my commitment to reading what (5.00 / 1) (#6)
    by Militarytracy on Mon Feb 21, 2011 at 01:47:09 PM EST
    you write will likely be even more obvious now?  And it will be even more obvious that I'm the sycophant that I have been told that I am?  Gee, thanks :)

    I promise not to tell S______ if you won't. (5.00 / 1) (#14)
    by oculus on Mon Feb 21, 2011 at 11:12:47 PM EST
    State sovereignty immunity does not extend to subd (none / 0) (#2)
    by Dan the Man on Mon Feb 21, 2011 at 12:15:34 PM EST
    ivisions of states.  See Lincoln County v. Luning (1890), Moor v. County of Alameda (1973), and Board of Trustees of Univ. of Ala. v. Garrett (2001).

    National League of Cities (none / 0) (#3)
    by Big Tent Democrat on Mon Feb 21, 2011 at 12:21:10 PM EST
    stands in contrast to that general proposition, which I agree is what the Court has stated.

    Tobe clear, that deals with the 11th Amendment, not the 10th, and does not preclude a limitation on federal power over subdivisions, merely a limitation on 11th Amendment immunity.

    But wait for the next case to feel confident even about that.


    Thank you for the SCt analysis, BTD (none / 0) (#7)
    by christinep on Mon Feb 21, 2011 at 02:20:03 PM EST
    Very, very helpful. I agree also that the older J. Blackmun position is going nowhere in this day...but, doesn't your penultimate paragraph referencing the uselessness of said political controls at the state level (in view of the Wisconsin illustration) suggest that political controls as to this issue and even at the national level might not work either? Or does it depend on the whether the political pressure now may work in the longer term--in Wisc., Ohio, Florida in 2012, e.g.?

    Lets just say I accept your premise. (none / 0) (#8)
    by Slado on Mon Feb 21, 2011 at 04:11:40 PM EST
    What about the law that requires the state to automatically deduct dues for said union out of the workers paycheck?

    If the workers want to unionize why not hold yearly elections where all members have to vote or let them pay their own dues?

    We all know why.  Most of the workers would opt out.

    So we have a rigged system in which the state that your so afraid of is actually facilitating or maintaining the union that it negotiates in good faith with (at least according to you).  

    It's a rigged system set up by democrats so that they can get the unions better benefits in return for political support.   The last person considered in this mess is the taxpayer.

    The idea that this rigged system is required to protect employees who work for the government is so laughable to me it defies belief.

    What are you afraid of?  Abuse of workers?  


    The loss of public sector unions would be the loss of the political machine that helps get democrats elected.  

    Nothing more noble then that.

    Would you want Governors, Senators, any (5.00 / 2) (#10)
    by christinep on Mon Feb 21, 2011 at 04:25:01 PM EST
    public official elected annually? Heck, we say election-cycles exista non-stop now...just think. Perhaps, the push for almost constant recertification (or anything else that might throw impediments into a functioning organization) by those not wanting to see nor  bargain with unions gives away the answer.  I'm only deducing--from a series of your comments in recent days--that your position vis-a-vis unions could be characterized as anti-union/anti-closed shop/anti-bargaining rights.  If that is so, I'll read your comments in that context.

    I am not anti union (none / 0) (#12)
    by Slado on Mon Feb 21, 2011 at 05:46:33 PM EST
    I am anti public sector unions as they exist in most states.

    As I lay out in my post below I don't feel they have a fair relationship with the taxpayer because they are almost exclusively supportive of one party and for that support they receive special benefits and even legislation in their favor that they could never receive in the private market.

    Look no furtherer then some of our "bluer" states for what that quid pro quo relationship can lead too.

    I wonder if progressives ever ask themselves how much that support is worth when it leads to the firing of workers to support the benefits and results in programs that support people not in a union to be cut.

    Unions have their place but the quid pro quo relationship between the democratic party and public sector unions is to me unfair and problematic.


    That's a closed shop issue (none / 0) (#9)
    by Big Tent Democrat on Mon Feb 21, 2011 at 04:20:21 PM EST
    Not a "should a union exist?" issue.

    As for elections, why not have yearly elections for Governor, if we like elections so much?

    Automatic deductions are negotiated issues as well.

    These objections, whatever their merit, are distractions to what is at stake here, the very existence of a union.


    The analogy is a liitle off (none / 0) (#11)
    by Slado on Mon Feb 21, 2011 at 05:40:58 PM EST
    Governors aren't coming back year after year asking for a pay raise and they don't strike.

    The simple fact that you equate government workers who are unelected to elected official shows to me that you've got a certain slant on this.

    Obviously voting on a yearly basis would be a little much so how about every two years?

    These are distractions but they're also realities that expose what a mess this whole situation is.

    Public sector unions almost unanimously support democrats.  In return rules and laws are passed that help maintain the union, that union then helps raise the benefit packages of the union members and in return makes donations and gives support to government officials (mostly democrats) and the cycle continues.

    You are not arguing that this reality doesn't exist are you?  

    If you submit that this reality exists then is it really a bad idea to bust the unions?  I have no problem with unions (believe it or not) when it is an equal bargaining relationship.

    I have a real problem with 1 side of our political system rigging the rules in the unions favor at the expense of the taxpayer.

    For my example I give you Detroit

    I wonder if those teachers unions have collective bargaining power?  Hmmmmmmm?


    Of course (none / 0) (#15)
    by jbindc on Tue Feb 22, 2011 at 10:33:41 AM EST
    If you are going to use Detroit as an example, you should also know that it is illegal in Michigan for teachers (as well as some other public employees) to go on strike, and if they do go on strike, each teacher can individually be fined for each day they are out.

    Unions support democrats (none / 0) (#16)
    by CST on Tue Feb 22, 2011 at 10:47:18 AM EST
    Because elected republicans will try to eliminate their right to exist.

    This isn't their first time at the rodeo.  Why would they support someone who doesn't support them?

    Corporations support politicians who support their economic interests every day.  In fact, the supreme court just gave them the ability to spend unlimited amounts of money on such a task.  Why would unions be any different?  Why should they have to be?


    There is such federal law? (none / 0) (#13)
    by Towanda on Mon Feb 21, 2011 at 06:09:19 PM EST
    Please, tell Wisconsin workers! since your comments was scripted by Walker in his so-called budget bill, point for point. . . .