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Ross Runkel

The Court Does Not Know "What a Labor Union Is": 
How State Structures and Judicial (Mis)constructions 
 Deformed Public Sector Labor Law

By Joseph E. Slater*   Bio    email 
Assistant Professor of Law
The University of Toledo College of Law

Oregon Law Review
Winter 2000 - Volume 79, Number 4
(Cite as: 79 Or. L. Rev. 981)

Copyright © 2000, University of Oregon, Joseph E. Slater

To tolerate or recognize any combination of . . . employees of the Government as a labor organization or union is not only incompatible with the spirit of democracy, but inconsistent with every principle upon which our Government is founded.

Railway Mail Ass'n v. Murphy (1943);
CIO v. City of Dallas (1946)[1]

The court, of course, knows what a labor union is . . .

King v. Priest (1947)[2]

Why and how American public sector labor law evolved as it did - separate from and much more restrictive than private sector law - is an important, fertile, and strangely ignored subject. Of most obvious instrumental importance, the glacier of frozen judicial rules that traditionally regulated government employment artificially obstructed the growth of public sector unions at least to the 1960s, thus affecting the entire labor movement and American society. While the National Labor Relations Act of 1935 (NLRA)[3] gave basic protections to private sector unions, no federal law ever covered public sector labor relations. Up to the 1960s, under court-made law, public sector unions generally had no right to strike, bargain, or arbitrate disputes, and government workers could be fired simply for joining a union. From the 1960s to today, more than half the states have passed statutes which provide some statutory rights for public sector unions, and courts finally have concluded that firing public workers for joining unions violates constitutional rights to associate.[4] With the glacier finally beginning to melt, the rate of unionization in government employment skyrocketed from about ten percent in the 1960s to nearly forty percent in the 1990s: a stark contrast to declining rates in the private sector.[5] Public sector unions now occupy prominent places in the AFL-CIO and in American politics. The critical role that law played in facilitating these stunning developments is clear, yet this leads to the question: Why was the development of public sector labor delayed and deformed for so long? This question has remained unexplored, despite a wealth of important and fascinating studies of the history of private sector labor law.[6]

Answering this question not only deepens our understanding of a significant body of law, but also offers an excellent case study of how law develops and sheds light on modern legal problems. As to modern issues, first, especially in the many states that still lack public sector labor statutes, key doctrines of the old legal regime still exert considerable force.[7] Second, recent constitutional litigation has revived doctrinal issues that never went away in public employment: limits on the delegation of government power and federalism. While federal courts abandoned non-delegation doctrine from the New Deal until recently, it has always been a live issue in state court public sector labor cases.[8]  Federalism, too, has enjoyed renewed judicial and scholarly interest.[9] Many of these cases involve the application of employment laws to public employees.[10]  But federalism has always been central to public sector law. It helps explain why the National Labor Relations Act could not have covered public employees and why public sector unions today still have only limited statutory rights in only some areas of the country. Related issues of the division of power within individual states help explain why, in the absence of statutes, courts limited the rights of these unions so greatly.

Further, and central to this Article, the history of public sector labor law provides an illuminating example of why law develops as it does. Private sector labor law has long been a source of raw materials in such inquiries,[11] but the public sector raises two fundamental questions these studies do not answer. First, why did judges continue to deny to public sector unions the most basic labor rights for so long after the NLRA? Second, why did statutory protections not even begin to cover parts of the public sector in America until decades after the NLRA and after other, comparable countries had provided much greater protections for government workers?[12] Recent scholarship has developed new and sophisticated tools for answering such questions, i. e., for understanding causation in the evolution of legal doctrine. Yet the very wealth of disparate ideas, and understandable caution about oversimplification, has too often led to accounts of causation which leave the actual reasons for legal developments too vague or cluttered with factors to be satisfying.[13] As Morton Horwitz ruefully asked in his most recent volume on legal history, "How does one explain anything objectively in a world of complex, multiple causation?"[14]

This Article provides an example of such an explanation by critically examining the history of public sector labor law in the first half of the twentieth century. It shows that this body of law can be understood by synthesizing some of the most important insights of new and old schools of legal historiography: the legal realist stress on judicial bias against unions; the methodology of law and society scholars in looking beyond federal appellate court decisions; the concern of the legal process school that courts follow neutral rules; the critical theorist insight on the importance of competing "constructions" of terms in legal discourse; and the "new institutionalist" emphasis on the importance of state structures and capacity. This Article, therefore, argues for a model of causation in legal history which synthesizes insights from different and sometimes competing historiographical schools, a model which neither depends entirely on one simplistic causal factor nor involves so many considerations as to be incoherent.

Part I briefly shows that causation has been an increasingly difficult problem for legal historians. Part II parses judicial opinions in public sector labor cases, analyzing the individual factors driving these cases, contrasting private sector law, and pointing out the continuing relevance of some old doctrines of public sector law. It shows that different schools of legal historiography can, together, explain public sector law, and also that this area of law can enhance the insights of the different schools. Part II, Section A shows that, as legal realists argued, courts were often simply hostile to unions generally, and that such hostility included unions of government workers. But since courts continued to endorse broad prohibitions on public sector labor for decades after they had at least grudgingly accepted private sector unions, this section concludes that other factors were at play. Sections B and C of Part II bring more recent theoretical tools to bear on the public sector. Section B uses a "new institutionalist" approach, investigating the role of state structure in legal developments. It argues that judges promoted a consistent conception of the powers of different arms of state governments that was particularly harmful to labor. Specifically, courts decided that they should defer to highly localized government bodies in labor matters, with the crucial caveat that such local officials did not have the power to "delegate" public authority to private bodies through bargaining or arbitration. Section C shows that, consistent with some critical discourse theory, judicial construction of the term "union" was crucial. Although contemporary unionists contested this judicial construction, renouncing strikes and bargaining in word and deed, courts "knew" that "union" could only mean groups that negotiated with and struck against capitalist bosses. Thus public workers could not be "unions" under statutes granting rights to unions, and no "union" could be permitted in the belly of the government. Part II, Section D demonstrates that all these factors worked together to yield a consistent theme: courts would not force government officials to deal with "unions" as judges understood that term; in fact, such officials lacked the authority to do so.

Part III discusses the curious absence of statutory protections in the public sector. It shows not only how federalism precluded any national public sector labor statute, but also why no state statutes protected public sector labor through the end of the 1950s. It argues that a fear of strikes, again based on judicial misconstructions, was also central. Part IV concludes with the lessons public sector labor law teaches about causation.

I

CAUSATION: "HOW DOES ONE EXPLAIN ANYTHING?"

Questions concerning causation - why and how law develops - are controversial and difficult, but also fundamental to legal scholarship. In broad brush, modern debates began with legal realists, who rejected the classical notion that judicial reasoning was or even could be a science. As to causation, realists often pointed to the political and other biases of judges.[15] The "law and society" approach, identified first with Willard Hurst and later with Lawrence Friedman and Kermit Hall, agreed that politics mattered, but it looked beyond the "mandarin texts" of appellate court decisions on which the realists relied. Explaining legal developments meant examining the records of administrative bodies, private litigants, and broad social trends.[16] For Hurst, the causation question centered on "the relationship of human agency and social structure."[17] Lawrence Friedman insisted that what is "crucial is the relationship of law to 'general values and process'...."[18] The more doctrinally-based legal process school emerged in the 1950s, based on the works of Herbert Wechsler, Henry Hart, Jr., and Albert Sacks. It shifted the focus back to traditional legal texts and internal, "neutral" rules in explaining how judges should and did operate.[19] More recently, structuralist and then post-structuralist Critical Legal Studies (CLS)[20] scholars and others have laudably engaged in serious interdisciplinary efforts to borrow or adapt new theoretical and methodological approaches used by historians, political scientists, and linguists.[21] In so doing, they encountered a theoretical storm in the humanities over issues of causation that is still very much alive.[22]

As legal historians became more facile with these diverse and complex approaches they increasingly found older causal models wanting. Christopher Tomlins and Michael Grossberg pilloried the metaphor, which law and society scholars Friedman and Hall used, that law was a "mirror" of society, arguing that this image was unhelpful in sorting out causation.[23] Critical legal scholars also deviated from traditional norms of progressive or left-leaning scholarship by criticizing "socio-economic" models of causation.[24] Instead, two prominent but quite different trends have emerged: a stress on the linguistic construction of terms and a focus on the independent significance of state structure.[25]

While modern scholarship has provided exciting new approaches and strong critiques of simplistic and overly-deterministic models, it has been less successful at replacing them with convincing alternative theories of how law develops. Some critical scholars, true to the most extreme implications of the post-modern critique of structure and narrative, disavow the very idea of causal explanations.[26] Most legal historians prefer the formulation that law is "relatively autonomous" from broader societal forces. But not only is the degree of autonomy at issue, the variety of forces which scholars argue affects law is wider than ever. This in turn raises questions of methodology.[27] Disputes continue between internalists, who point to doctrinal, intellectual causes in explaining legal changes, and externalists, who stress political or cultural reasons.[28]

So, formulations regarding causation remain problematic. Morton Horwitz's first volume on legal history suggests that "law is autonomous to the extent that ideas are autonomous."[29] Christopher Tomlins questions any neat distinction between "law" and "society,"[30] but also calls for a "greater analytic appreciation of the law's autonomy."[31] Tomlins and Andrew King characterize "legal forms" as "concepts" which have "multiple avenues of realization but in practice [are] conventionally realized in official discourse in ways that most accord with, or least depart from, prevailing structures of power."[32] Daniel Ernst allows that "the historical contingency of common-sense notions of causation has been demonstrated."[33] Robert Gordon agrees that legal rules are "contingent products of time and circumstances: contested in their content, multiple in their forms, variable across time, place, and social group in the ways they are put to practical use."[34]

These observations are all true, but scholars should try to go as far as they can to identify specific structures, causes and effects, and to explain why certain contingent results actually occurred. This history of public sector labor law cries out for a melding of old and new techniques, and studying this field casts a rewarding new light on recent and older approaches.

II

COURTS AND PUBLIC SECTOR UNIONS: BIAS, STATE STRUCTURE, AND FALSE CONSTRUCTIONS

Courts settled public sector labor law for a remarkably long time. Since state statutes did not even begin to supplant judicial rules until at least the 1960s, courts controlled labor relations in government employment for nearly thirty years after the NLRA set federal statutory rules for private employment. This means, first, that a study of public sector law must interpret and explain judicial opinions. It also means that these cases provide a rich source of materials for studying judicial decision-making. In analyzing these cases, it is instructive to compare private sector law. Prior to the 1930s, judges restricted the actions of private sector unions through common law conspiracy and tort doctrines, antitrust statutes, and the constitutional "right to contract." Still, private sector unions had managed to carve out spheres of operation in which they could organize, bargain, and strike well before the 1930s.[35] In the public sector, however, before the 1930s and through at least the late 1950s, judges across the nation were unwilling to permit government employees any rights to bargain or to strike, and courts routinely upheld bars on their organizing. Causation in public sector labor law is thus an especially intriguing question, because the law was so remarkably consistent over time and geographic area, and because it cannot be explained simply by reference to the factors driving private sector law. In the public sector, three themes recur and blend: hostility toward unions, concerns about state structure, and judicial misconstructions of the concept of a "union."

A. Bias Against Labor: Realism and its Revisions as A Partial Explanation

1. Bias as a Factor: Union Members as Disloyal and Inefficient

The claim by legal realists that judges in the progressive era were simply biased against unions has long been an influential critique of both the development of labor law specifically and of how and why judges make decisions generally. From the many decisions invalidating wage and hour statutes and bans on "yellow dog" contracts, to the thousands of injunctions issued against unions for strikes or boycotts, it seemed impossible to understand court behavior in the late nineteenth and early twentieth centuries without assuming that judges were imposing their own political bias in favor of employers, instead of using dispassionate and objective legal analysis.[36] Labor historians have generally at least implicitly accepted this view.[37] Modern legal scholars in the realist tradition explain these decisions as representing a "lag" period in which the law failed to deal with the realities of large scale capitalism and its effects, or a period in which corporate interests temporarily captured the legal system.[38]

In public sector labor cases, judges were quick to apply anti-union doctrines and rhetoric taken from private sector decisions. The constitutional "freedom of contract" that Coppage v. Kansas[39] and other cases used to strike down statutes outlawing yellow dog contracts (barring employees from joining or retaining membership in labor unions) was imported into public sector cases simply as a matter of policy. The actual holdings of the private sector rulings were not precedent on point, because no statutory bans on yellow dog contracts in the public sector existed. Nevertheless, in 1915, Frederick v. Owens[40] cited Coppage and related precedent to uphold a ban on Cleveland public school teachers joining the American Federation of Teachers (AFT). "We heartily concur in these decisions," Frederick emphasized. Freedom of contract "should surely apply with equal force to public officials."[41] In 1920, McNatt v. Lawther[42] upheld a ban on Dallas firefighters joining the International Association of Fire Fighters (IAFF), quoting Coppage: "If freedom of contract is to be preserved, the employer must be left at liberty to decide for himself whether such membership ... is consistent with the satisfactory performance of the duties of employment."[43] Indeed, "any restrictions upon the freedom of the employer in such matter ... would probably be held unconstitutional."[44] Courts cited private sector yellow dog cases until the Norris-LaGuardia Act of 1932[45] invalidated them.[46] Well after the Norris-LaGuardia Act, however, courts continued to uphold yellow dog contracts in the public sector.[47]

Frequently, courts equated union membership with disloyalty and inefficiency. In 1920, San Antonio Firefighters' Local Union No. 84 v. Bell upheld the power of local authorities to fire members of the IAFF, noting that the union had not specifically pled that union membership would not affect firefighters' loyalty or subject them to orders that would interfere with public service.[48] In 1917, People ex rel. Fursman v. City of Chicago sustained a rule in which the Chicago Board of Education declared it would not hire members of the AFT, because "membership by teachers in labor unions ... is inimical to proper discipline, prejudicial to the efficiency of the teaching force and detrimental to the welfare of the public...."[49] In 1923, Hutchinson v. Magee, approving a ban on the IAFF, quoted the assertion of the Pittsburgh Director of Public Safety that union membership was "in the very nature of things, inconsistent with ... discipline, ... subversive of the public service and detrimental to the general welfare."[50]

One judge even took the unusual step of noting that public sector labor cases had incorporated negative views judges held of unions. In CIO v. City of Dallas, the Texas Supreme Court upheld a yellow dog rule for city employees, citing cases from eight states in support of the decision.[51] On rehearing, Chief Justice Bond concurred but added that he did not join the court's "approval of the authorities from other jurisdictions, evidencing judicial prejudice against the Unions generally."[52]

Whether "freedom of contract" and related ideas that courts used in labor and employment cases reflected an explicitly conscious animosity toward labor can be debated, as can the significance of the judges' conscious understanding of their own motivations. Robert Gordon summarizes recent works that revise the realist interpretation, suggesting that judges in this era married Jacksonian, Free Soil, and anti-slavery ideology. In judicial minds, this combination led to the belief that some types of economic pressures (e. g. labor boycotts) were intolerable and others, such as employers' power to fire at-will, were "simply natural facts about the world."[53] Whatever the motivation, up to the mid-1930s courts frequently struck down laws that provided rights to workers in the private sector and held many actions by unions to be illegal.[54] Judges who decided public sector labor cases were part of this era and thus part of a mindset that generally did not look kindly on organized labor.[55]

2. Not Bias Alone: Outside Government "Their Merits are Fully Conceded"

Crucially, however, well beyond the "Lochner era" and even the New Deal, public sector decisions often took their tone and text from early private sector cases that portrayed unions in an unflattering light. The opinion in CIO v. City of Dallas was one of several to quote at length the extremely hostile view of Railway Mail Ass'n v. Murphy: "To tolerate or recognize any combination of Civil Service employees of the government as a labor organization or union is not only incompatible with the spirit of democracy, but inconsistent with every principle upon which our Government is founded."[56] Murphy was decided in 1943 and CIO v. City of Dallas in 1946, by which time private sector unions had won a considerable amount of acceptance and respectability. The years immediately after World War II saw some increased concerns over union power. But not even the rhetoric from the Republican Congress that passed the Taft-Hartley Act of 1947[57] matched the consistent judicial denunciations of public sector unions. Therefore, whatever prompted judicial skepticism about private sector unions in the Progressive Era or thereafter cannot by itself explain the extent to which courts continued to be horrified by public sector unions after World War II.

Indeed, well before and well after the New Deal, courts imposed greater restrictions on unions in the public sector than those in the private. Before the 1930s, courts had tolerated bargaining and even some forms of strikes.[58] After the NLRA was passed, judges generally made their peace with private sector unions and acknowledged the legitimacy of private sector labor and employment law.[59] In the public sector, without statutory guidance, judges had the discretion to rely on common law rules, state laws on related topics, constitutional doctrines, and their own predilections. From these sources, well after the NLRA, judges forged public sector rules that were much less generous than private sector law had been before the NLRA. Explanations for this must look beyond the attitudes of the judiciary toward unions in the private sector before the New Deal.

Courts sometimes explicitly distinguished public and private sector labor. In 1946, City of Jackson v. McLeod[60] upheld a bar on police affiliating with a union that was part of the American Federation of Labor (AFL). The opinion averred that the case did "not involve in any way the merits or demerits of labor unions when confined to private employment. In their place, outside of governmental agencies, their merits are fully conceded."[61] CIO v. City of Dallas stressed that it "should be understood at the beginning that the status of governmental employees, National, State and Municipal, is radically different from that of employees in private business or industry."[62] Murphy concluded that "we all recognize the value and the necessity of collective bargaining in industrial and social life, nonetheless, such bargaining is impossible between the Government and its employees, by reason of the very nature of Government itself."[63] What was it about the nature of government that made public sector unions so different?

B. "The Very Nature of Government Itself": The Obstacles of State Structure

Judges made this distinction partly out of concern for the division of state powers, which they couched in terms of the doctrines of deference and delegation. While judges would enforce rules which obligated unwilling private employers to deal with unions, they repeatedly insisted that it was not the role of courts to interfere in the labor relations of other branches of government. First, courts held that legislatures had delegated power over employment matters to subordinate public bodies and officials. Judges, therefore, should defer to their decisions regarding unions. Second, courts held that public employers could not delegate any power to a private body such as a union. Specifically, delegating to labor the power to bargain or to arbitrators the power to bind governments would violate non-delegation doctrines and, ostensibly, threaten democracy. Judges, therefore, promoted a state structure in which they uniformly deferred to the restrictive rules of public officials, the direct employers of labor, because such power had been delegated to such officials. At the same time, judges refused to allow bargaining or arbitration, on the grounds that this would constitute an improper delegation of power from such officials.

Recognizing such concerns fits well with the recent "new institutionalist" scholarship which is "bringing the state back in" to explanations of causation.[64] State structure and capacity affect, and are not merely affected by, society and groups within it.[65] This model has been applied to the development of private sector law. Surprisingly, though, works that stress the role of the state in labor matters generally ignore the state as an employer of labor.[66] Some studies have shown that the very structure of American federalism, with its myriad layers and exceptionally strong courts, fundamentally affected labor in the private sector.[67] But, although a very few scholars have at least noted that this void should be filled, none have described how state structure played out with an even greater vengeance in the public sector.[68]

1. Judicial Deference

The issue of deference to subordinate state bodies was increasingly important in the early decades of the twentieth century as the role of administrative agencies increased. Before the 1870s, such agencies were relatively unimportant in state government. From the 1880s to the early 1900s, states began forming agencies with at least investigatory powers, such as boards of public health, industrial commissions, and railroad commissions. By the early twentieth century, for example, thirty-two states had bureaus of labor statistics. Such trends continued at both the state and national level. By 1941 the federal government had fifty-one major administrative agencies. Courts had been wrestling with the proper extent of the authority of such agencies since the nineteenth century, famously refusing to enforce regulations imposed on railroads, and a burst of economic regulation by administrative agencies beginning around 1910 prompted another round of controversy on this issue. The power and independence of such agencies nonetheless continued to grow. A comprehensive law setting out the relations between courts, the public, and administrative agencies, the Administrative Procedure Act, would not be passed until 1946. In the meantime, courts had to decide such points for themselves.[69]

In public sector labor relations, courts always took a very deferential stand. In 1917, the Fursman court noted that the Chicago board of education's ban on teachers joining the AFT was an issue of first impression but opined that it "presents no great difficulties." By statute, the board had the power to employ teachers, so the court would defer to the board in all hiring decisions. It was

immaterial whether the reason for the refusal to employ ... is because the applicant is married or unmarried, is of fair complexion or dark, is or is not a member of a trades union, or whether no reason is given for such refusal. The board is not bound to give any reason for its action.[70]

In the 1920 San Antonio Firefighters case,[71] a Texas court denied an injunction the union sought after city commissioners threatened to fire IAFF members. The court held that the commissioners had discretion in removing employees and that it would presume that such actions were lawful absent a showing of bad faith or fraud. The court acknowledged that the mayor had made a campaign promise not to retaliate against the union, but still found no bad faith. A city had the right to determine that union membership rendered its appointees inefficient or untrustworthy. Courts had very limited power in reviewing removals, and here the commissioners had the authority to decide that the "rules of the AFL" were inimical to the interests of the city[72]2

Courts throughout the country employed this rationale for decades. In 1915, in Frederick v. Owens, an Ohio court held that a school board had sufficient discretion to impose a yellow dog rule and did not have to give reasons "that are satisfactory to the courts."[73] In 1935, in Carter v. Thompson, the Virginia Supreme Court upheld a ban that applied to the IAFF but not to a union that was not affiliated with the AFL. Although an applicable civil service statute required "cause" for discharge, the court held that the city manager could classify union membership as sufficient cause for removal. "He must, of necessity, be vested with a large measure of discretion ...."[74]

Courts also deferred to civil service agencies in cases denying rights to unions. In 1946, City of Jackson v. McLeod[75] overturned a unanimous jury verdict that had found the Mississippi city liable for discharging policemen who had joined the American Federation of State, County, and Municipal Employees (AFSCME). The local civil service commission had upheld the removals on grounds of insubordination and "acts tending to injure the public service."[76] The state supreme court ruled that its review was limited to whether the commission's actions were taken in good faith and for cause. If so, courts would have to defer.[77] It was "not competent ... for the Circuit Court and its jury to convert themselves into an administrative body and to become a civil service commission ...."[78]

The deference concern could also be cast as anxiety about the judiciary's capacity to handle these matters: judges worried about being overwhelmed by appeals from the decisions of government employers if they acted as a review board for dismissals from public service. In 1939, Levine v. Farely[79] upheld the discharge of a postal worker who had written newspaper articles protesting discrimination against other union members. The Postal Service fired him for bringing the Service into disrepute.[80] Despite the guarantee of the Lloyd-LaFollette Act that federal workers would not be discharged for union activities, the court refused to hear the merits: "Interference of the courts with the performance of the ordinary duties of the executive departments of the government, would be productive of nothing but mischief."[81]

Crucially, such judicial abnegation of any role in restraining anti-union acts by public employers under the rubric of deference doomed union rights because it took place in the context of the divided and diffuse structure of governments within individual states. In effect, courts gave local government bodies, the actual employers of labor, complete discretion to deny unions of their employees any rights. School boards issued yellow dog rules barring membership in the AFT;[82] fire chiefs, police boards, mayors, and heads of municipal departments created rules governing their own workers to which courts would then invariably defer. It is hardly surprising that these employers wrote restrictive rules.[83] It is arguably surprising that courts saw no potential conflict of interest in their authors.

2. Non-Delegation: Government Power in Private Hands

Judges used a second concern about state structure to limit the rights of public sector unions. Courts consistently held that collective bargaining, arbitration, and related activities by public sector unions constituted impermissible delegations of governmental power to private parties. While the famous "nondelegation" cases of the New Deal may be remembered for invalidating attempts to shift power from one government body to another, they also found improper attempts to shift government power to private parties. For example, in 1935, A. L. A. Schechter Poultry Corp. v. United States[84] invalidated provisions of the National Industrial Recovery Act partly because of an impermissible delegation of power from Congress to the president. But further, and more relevant here, Schechter also held that empowering representatives of business, labor, and the public to establish codes of fair dealing for various industries was an improper delegation of legislative functions to private parties.[85] Public sector cases typically relied on this latter branch of the nondelegation doctrine.[86] Notably, although this doctrine was largely abandoned by the U. S. Supreme Court and federal courts after Schechter, it recently seems to be making a comeback.[87] In state courts, especially in public sector labor cases, it never went away.[88]

Indeed, judges routinely applied this doctrine to public sector labor well after federal courts had apparently abandoned it and well after the NLRA authorized bargaining and arbitration in the private sector. In 1945, Mugford v. Mayor and City Council of Baltimore[89] held that a municipality could not bargain collectively or even agree to a dues check-off provision, because "city authorities cannot delegate ... their continuing discretion" over labor relations.[90] In 1946, Nutter v. City of Santa Monica[91] overturned a lower court ruling that permitted collective bargaining with city workers, explaining that the authority of public officials "may not be delegated or surrendered to others, since it is public property."[92] Dicta in the 1949 case of City of Cleveland v. Division 268[93] hinted that completely voluntary participation by a city in labor arbitration might not be an illegal delegation of authority. But the opinion stressed that employers had no legal obligation "to set up this kind of machinery. There is nothing in the law that says that employees may force ... [a] public employer ... to enter into any labor contract."[94]

No court ever faced the potential contradiction of whether to defer to a city that had decided to "delegate" authority by bargaining. As Nutter observed, it was not "an accepted practice for public bodies to enter into contracts with the employees of publicly owned operations...."[95] A report in 1941 concluded that no city had ever signed a collective bargaining agreement similar to those in private industry, and that "legal opinions ... are unanimous" that cities did not have the power to do so. A follow-up study in 1947 explained that the majority view was still that labor contracts with cities were "void as a delegation of public power to a private group," although a minority held that an agreement might be legal in certain cases.[96] In fact, a number of cities and municipal departments engaged in informal, limited forms of bargaining, or at least discussions, with their unionized employees.[97] Of course, judges were not likely to hear such cases. When cities chose to negotiate with their employees, no logical plaintiff to challenge the practice existed.[98]

Still, some courts strongly implied that they would not defer even if local governments voluntarily attempted to share power with unions. Here, judges invoked the most fundamental value of state structure: democracy itself. City of Springfield v. Clouse,[99] decided in 1947, refused to permit city workers engaged in street cleaning and sewage disposal to bargain. "Under our form of government, public office or employment ... cannot become a matter of bargaining and contract." This was true because wages and working conditions involved "the exercise of legislative powers."[100] Local officials could not bargain such power away.

This reasoning made the fundamental mistake of conflating bargaining over wages, which often were set by statute, with bargaining over a host of other terms of employment, which were not. For example, Clouse wrongly asserted that "working conditions of public officers and employees are wholly matters of lawmaking and cannot be the subject of bargaining or contract."[101] Incorrectly assuming that the text of legislation was dispositive of all or even most aspects of labor relations, the court insisted that laws "must be made by deliberation of the lawmakers and not by bargaining with anyone outside the lawmaking body."[102] Using the same flawed approach, Murphy asserted that collective bargaining "has no place in government service" because working conditions were guided by laws that could not be abrogated by agreement.[103] Yet as AFL general counsel Joseph Padway argued, while wages in government service could be covered by statute and therefore not be subject to negotiation, a union should still lawfully be allowed to bargain over other aspects of employment.[104]

Using this defective premise, Murphy made the "democracy" point most dramatically. Permitting unions in public employment would "sanction control of governmental functions not by laws but by men. Such policy if followed to its logical conclusion would inevitably lead to chaos, dictators, and annihilation of representative government."[105] CIO v. City of Dallas quoted this passage whole.[106] Murphy added that "nothing is more dangerous to public welfare than to admit that hired servants of the state can dictate to the Government the hours, the wages and conditions under which they will carry on essential services vital to the welfare, safety and security of the citizen."[107]

3. Not State Structure Alone: Neutral Rules?

a. The Rules in Other Contexts

In applying nondelegation and deference rules, judges were, to some extent, simply using "neutral" rules that had arisen partly outside the labor context. As with bias toward unions, however, use of neutral rules alone is not a sufficient causal explanation for public sector labor cases. Murray Nesbitt insists that public sector labor law was "singled out for special application" of the nondelegation rules and that contemporary doctrines could have allowed public employers to negotiate.[108] Courts were not necessarily demonstrably wrong in applying nondelegation rules, but the law in these areas was sufficiently unsettled that courts easily could have justified different results. Thus, courts were, in part, actively promoting specific types of power relations amongst state actors.

Judicial use of delegation and deference doctrines outside the labor context in this era were highly inconsistent, making it difficult to evaluate how "neutral" judges were in labor cases. State court opinions on the subject were so conflicting that Kenneth C. Davis, in a leading treatise on administrative law, concluded dryly that "identifiable principles do not emerge."[109] One review of the literature concluded that "neither federal nor state courts have developed consistent principles for use in deciding when delegations to private parties are valid."[110] Judges also varied widely in the amount of deference they gave to the decisions of administrative agencies. Rulings by state judges on the proper standard were "exceedingly diverse."[111] Yet courts consistently held against public sector unions.

How did labor cases fit into the underlying purposes of the doctrine prohibiting delegation to private parties? A central rationale for this doctrine was to avoid an end-run around democratic procedures by vesting legislative power "in a body dominated by self-interested groups."[112] Giving private parties legislative powers violates the basic principle that accountable public officials make the law. It also puts regulatory power in the hands of private parties who could regulate themselves or others in a manner that provides the private parties with maximum benefits, without consideration of broader effects.[113] Thus, for example, a state court struck down an attempt by the New York legislature to delegate to a private club the power to exercise licensing functions.[114] A court also found an improper delegation when the California legislature empowered a seven-member board to set minimum prices for dry-cleaning, where six of the members represented private industry.[115]

One could easily distinguish such grants of complete discretion to private bodies from collective bargaining in the public sector, which involves compromises between the employer and the union, or from arbitration, which involves enforcing provisions in a collective agreement to which the government employer had already agreed. Judges could have concluded, as they hold today, that arbitrators merely execute the law but do not actually make it.[116] In bargaining, as AFL counsel Padway observed, government officials retain significant discretion.[117] Lee Pressman, general counsel to the CIO, also observed at the time that bargaining involved matters "mutually determined."[118] In the first half of the century, courts rejected such arguments.

Of course, courts did allow governments to enter into contracts with some private entities, notably with businesses for goods and services. When the government "comes down from its position of sovereignty and enters the domain of commerce," the Supreme Court held in 1875, "it submits itself to the same laws that govern individuals there."[119] It had long been established that states and cities could form contracts on which private parties could rely.[120] Public officials had to have authorization - ultimately from a statute - to thus bind the government. But although broadly worded laws authorizing states to enter into a variety of contracts were common by the 1920s and 1930s,[121] labor cases inconsistently found that statutes gave local officials essentially complete discretion over relations with unions but did not give them authority to contract with them. In 1942, Pressman, general counsel for the CIO, argued in vain that municipalities had the implied power to enter into labor contracts just as they did other contracts.[122] Again, such pleas went unanswered.

b. The Enduring Impotence of Holmes's Constitution

Further suggesting that more than a neutral application of institutional rules motivated courts in public sector labor cases, unions of government workers failed in their attempts to rely on two aspects of the American state that potentially could have favored them: constitutional rights and the "proprietary function" doctrine. Until the late 1960s, judges repeatedly rejected claims that constitutional rights to association, speech, due process, or equal protection trumped bans on labor affiliation in public employment. In so doing, they often cited Justice Oliver Wendell Holmes's maxim in McAuliffe v. City of New Bedford, holding that a police officer could be fired for making statements that were within the ambit of free speech. "The petitioner may have a constitutional right to talk politics," Holmes declared, "but he has no constitutional right to be a policeman."[123] Thus, in 1946, the union in CIO v. City of Dallas argued that the ban on affiliation violated the employees' First Amendment rights of assembly, speech, press, and petition. The court approvingly quoted Holmes's 1892 decision in reply, adding that "these rights ... are purely personal and may be waived ... by voluntarily accepting employment with the City of Dallas.... While they have the right to these constitutional privileges and freedoms, they have no constitutional right to remain in the service of the City."[124] Courts relied on McAuliffe through the early 1960s.[125]

Since the late 1960s, courts have found not only that public employment constitutes state action sufficient to trigger the Bill of Rights, including the right to association, but also that public employment cannot be conditioned on a full waiver of such rights.[126] This in turn meant that public employment could not be predicated on a promise not to join a union. Thus, in 1969, a court found that a North Carolina law that barred public workers from joining unions violated the First Amendment right of free association.[127] Although unionists often urged this exact argument in the first half of the century, judges invariably dismissed such ideas.[128]

c. Unworkable Public/ Private Distinctions

Nor were unions very successful in urging a distinction between the "proprietary" role of government, in which it acted more as a business, and its "traditional" role, where its right to avoid dealing with unions was supreme. Some statutes did give more rights to labor in, for example, publicly owned utilities.[129] As a matter of common law, the proprietary/ traditional dichotomy survived in vague forms until 1985, when the Supreme Court denounced it as "unsound in principle and unworkable in practice."[130] But judges often treated this distinction skeptically, and it rarely benefited unions. For example, in 1946, Nutter repudiated it as judicial legislation without legislative foundation.[131]

Courts also typically resolved the question of what constituted a "government function" against allowing rights for labor. Most famously, in United States v. United Mine Workers,[132] decided in 1947, the Supreme Court sustained an action against the United Mine Workers for violating an injunction against striking. The union relied on the Norris-LaGuardia Act, which banned most labor injunctions in the private sector. The Court held that since the mines had been seized by the federal government, the miners were federal employees, and therefore Norris-LaGuardia did not apply.[133] At the same time, judges would analogize private sector workers in positions involving "public safety" to government employees. For example, in 1946, Beth-El Hospital v. Robbins[134] enjoined hospital workers from striking, despite a state anti-injunction law. Citing public safety, the court added that the workers "are discharging public functions, at least to the extent that they are performing functions which, in the absence of these agencies, would of necessity be assumed by the state."[135] In sum, no variation of the "private/ public" dichotomy involving state actions ever seemed to work in the favor of unions.

C. False Constructions of What a Union Was and Could Be

Public sector labor cases can be explained only by adding a third factor to the considerations of bias and state structure: judges falsely constructed the term "union." The "linguistic turn," originating in the writings of French theorists such as Michael Foucault and Jacques Derrida, asserts that language is central in constructing reality. This approach has been influential in recent studies of labor and labor law.[136] A moderate version of this approach reveals that judges in public sector labor cases misconstrued the concept of "union" to exclude organizations of workers performing waged labor for the government. Critical scholars would note that courts rejected a competing construction of these terms offered by labor in word and deed: even though public sector unions had all formally renounced strikes and most were willing to forego traditional collective bargaining, at least over wages,[137] courts insisted on seeing unions as institutions that inevitably bargained and struck. Especially in the aftermath of the infamous Boston police strike of 1919, judges could not imagine giving public workers such rights.[138] Nor could judges believe that statutes that granted rights to "labor organizations" or "unions" could possibly cover public sector unions, even in the face of legislative history that suggested they should. Judicial construction, in turn, had a dispositive effect on the outcome of cases and, therefore, ultimately on the reality of public sector labor relations. Critical scholars would also stress that modern scholars must reach beyond the cramped notions of contemporary judges.[139]

1. Judges Reject Competing Constructions (and Realities)

In forming their construction of unions, judges seemed, at best, blind to relevant events outside their courtrooms. First, public sector unions in this era, while not as large or prominent as in recent decades, did exist in significant numbers: union density in the public sector began to hold steady at around 10-13% by the late thirties. In 1934, public sector unions represented 9% of the nearly 3,300,000 government workers in the U. S., who in turn constituted 12.7% of all non-agricultural workers in the country.[140] Second, these unions took actions on behalf of their members, from representing employees in civil service proceedings, to lobbying government officials for better laws or working conditions, to electing more sympathetic employers, to providing information to their members and the public.[141] Third, these unions almost never struck. After the Boston police strike of 1919, AFL and later CIO public sector unions renounced the strike weapon, and in fact strikes by public sector unions from 1919 to 1945 were rare, small in scale, and short. But in the courtroom, unionists lacked the power to make this image of unionism real.[142]

Instead, judges clung exclusively to the private sector image of unions, ignoring the ongoing presence of active public sector unions that did not formally bargain or strike and rejecting the sworn statements and binding documents that unions proffered as evidence of their different nature. In 1947, King v. Priest[143] upheld a rule banning an AFSCME local that more than eight hundred police officers had joined. The union's charter barred striking and bargaining and stated that the oath that police officers took regarding their duties came before any obligation to the union. Instead of tactics used in the private sector, the charter continued, the local would, "by publicity, direct public attention to conditions that need correcting, ... seek legislative action, ... represent individuals in administrative procedure, and prevent discriminatory and arbitrary practices."[144]

The Missouri Supreme Court would have none of it: "The court, of course, knows what a labor union is ...."[145] Defining the institution, the court took judicial notice of the "common knowledge" that "some of the most common methods used by labor unions ... are strikes, threats to strike, [and] collective bargaining agreements ...."[146] Refusing to accept an alternate model of "union," but without claiming that any AFSCME local had ever attempted to strike or bargain, the court asserted that "all of the rights and powers ordinarily inherent in a labor union would exist actually or potentially" in the local, "regardless of the form of its charter and the present admissions of appellants."[147]

Similarly, CIO v. City of Dallas discounted the fact that the union had renounced formal collective bargaining and that its constitution and bylaws barred strikes "or other concerted economic weapons or procedures."[148] The court ruled that the "declaration of the local to abandon the usual procedure pursued by labor unions to accomplish their purposes, is in irreconcilable conflict with the declared purposes and objects of the unions."[149] The decision cited documents from the national CIO, not the public sector local involved, that stated that the CIO was organized to help locals bargain collectively and that such activities "constitute the only effective means possessed by organized labor to accomplish economic security ...."[150] The court also quoted President Franklin Roosevelt's statement that collective bargaining "cannot be transplanted into the public service" because of the "very nature and purpose of government" and that strikes in public service could never be allowed.[151] Even when labor specifically proposed a different, limited, and entirely plausible meaning for "bargaining" in the public sector, judges rejected it, maintaining that the private sector practice defined the term. Clouse rebuffed a union's argument that it could engage in some bargaining with a city. The union relied on section 29 of the Missouri Constitution, which provided that "employees shall have the right to organize and to bargain collectively through representatives of their own choosing."[152] R. T. Wood, the president of the Missouri Federation of Labor and the man who had originally proposed section 29, presented the court with a model of bargaining in the public sector that seemingly avoided the problems that judges had expressed. Wood stipulated that government workers could not bargain over wages and hours, because such matters were controlled by city officials and by statute.[153] Nonetheless, he contended that collective bargaining was applicable to other matters: "classifications, working conditions of all kinds, night work, day work, and a multiplicity of items aside from wages and hours ...."[154] Wood urged that "collective bargaining means a good many things"; there were "many types of collective bargaining."[155] When a "representative of the employees of the city sits down at a table and discusses ... relations between an employee and the city, that is collective bargaining."[156]

The court, however, refused to consider any alternative to the private sector model. "This is confusing collective bargaining with the rights of petition, peaceable assembly and free speech." Section 29 was "intended to safeguard collective bargaining as that term was usually understood in employer and employee relations in private industry."[157] Thus, the court pronounced a tautology that would continue to haunt public sector workers: since only workers in private industry had established collective bargaining rights, laws establishing collective bargaining rights could only apply to the private sector.[158] James Westbrook correctly labels the reasoning of the Clouse court the "All-or-Nothing Misunderstanding," and concludes that "Mr. Wood had a better grasp of the issues than did the Missouri Supreme Court."[159]

One lone dissent credited the claims of public sector unions that they would behave differently than private sector unions. In City of Jackson v. McLeod,[160] Justice McGehee of the Mississippi Supreme Court would have held that membership in AFSCME was not sufficient cause to discharge police officers under a civil service law. Among other things, the "jury was entitled to find... that there is a fundamental difference between [AFSCME] and the labor unions in general." McGehee noted that the union's charter denied policemen the right to strike and that no AFSCME local had ever struck a police department. Further, the union did not advocate negotiating contracts by collective bargaining or the closed shop.[161] McGehee even quoted a statement from former AFL president Samuel Gompers, issued in 1919 in response to the Boston turmoil, that it was the position of the AFL that police would neither strike nor assume any obligation that conflicted with their duty.[162] Yet beyond this single voice, which itself did not come until 1946, judges uniformly refused to accept that an organization of workers could be a "union" without striking or bargaining. In taking this stance, judges not only rejected what unions said they would do, but critically they ignored what public sector unions were actually doing.

2. Statutes Apply Only to Real Unions and Workers

Judicial reliance on the private sector model hurt public sector unions in two distinct ways. First, as shown above, courts refused to believe that organizations of public workers would behave differently than private sector workers. Second, courts held that public employees were not covered  by state labor relations acts, even if the law did not explicitly exclude them, because those acts mentioned "bargaining," "striking," or even "business" somewhere in its text. Courts reasoned that such acts were therefore meant only to cover "real" unions that undertook those activities, and therefore no part of the act could apply to public workers. The specific holding of Murphy was that the National Association of Railway Postal Clerks (NARPC), at that time a racially exclusive organization, was not a "labor organization" under a New York civil rights statute. The NARPC was not a "labor organization" because part of this civil rights law listed "collective bargaining" as a task of "labor organizations." So, despite having held an AFL charter since 1917, despite being composed of members who were engaged in a common occupation for a common employer, and despite the fact that it did represent its members in employment-related matters, the NARPC was not a "labor organization."[163]

Similar logic abounded in decisions that held that laws applying to "unions" or "labor organizations" or even to "employees" did not cover public sector unions. Frequently, these state laws did not, as the NLRA did, explicitly exclude the public sector in coverage provisions or elsewhere. In 1946, Miami Water Works Local 654 v. City of Miami[164] held that a statute granting rights for "employees" to organize could only apply to the private sector. The statute in other places discussed strikes and picketing, and such references "are strange and incongruous terms when attempted to be squared with the governmental process as we know it."[165] CIO v. City of Dallas refused to find that an ordinance forbidding city workers from joining a union violated a state law generally protecting the right to join unions.[166] The legislature could not have had public employees in mind, the court reasoned, because the preamble to the statute referred to "unions affecting ... practically every business and industrial enterprise."[167]

Even when legislative history appeared to support the union's position, judges reached the same result. King v. Priest held that a state constitutional provision guaranteeing "that employees shall have the right to organize" did not apply to the public sector, even though language limiting the clause to private employment was debated and dropped in drafting the provision.[168] The court reached this conclusion, in part, because the constitution also included a right to bargain, which, the court held, could not apply to public workers.[169]

Courts also constructed "union" to mean an institution that provided countervailing pressure to business. In the public sector, without capitalism and its potential abuses, unions apparently were unnecessary. Nutter, holding that a state labor statute was not meant to cover government workers, made this point most explicitly. The "legislature recognized that there has been, and is, oppression of labor in the field of private industry, where there has not been freedom of contract."[170] The incentive of personal gain could drive private employers to seek profits at the expense of their employees. So, private sector workers should be allowed to organize to protect themselves. But no evidence existed that this "incentive and its attendant evils are found in public employment."[171] The legislature had "not discerned in public employment the existence of the conflicts between labor and capital that exist in private industry ... 'altogether different conditions prevail. '"[172] Government officials did "not have the same incentive to oppress the worker ...."[173] Public employers echoed this type of objection in their legal arguments. In Miami Waterworks Local 654, the city's brief insisted that its officials were not "motivated only by the profit motive ... the same compelling necessity for private employees to organize does not exist as to public employees."[174]

Such quasi-Marxist analysis might seem surprising from a state appellate court and municipal attorneys. More broadly, public sector unions did not seem to have a place in the contemporary paradigm that justified the NLRA, "industrial pluralism." Industrial pluralism, among other things, granted that private sector workers and their employers had some opposing interests regarding wages, hours, and working conditions. Pluralists proposed that these interests be resolved as much as possible through private acts of self-governance: equalizing bargaining power through unionization, then collective bargaining and private contractual enforcement.[175] It is certainly understandable that the Great Depression and its attendant labor strife would put the practical and theoretical focus on the effects of unrestrained capitalism on labor in the private sector. Still, this approach ignored the fact that large numbers of government workers themselves had long felt sufficiently oppressed to form unions-not just to contest wages, but also over working conditions, dignity, and some measure of control over the workplace.[176] These unions also had a long tradition of attempting to represent their members and going to court as a result of such attempts. Judges again were unwilling to look at the realities outside their courtrooms.

3. The Misleading Memory of the Boston Police Strike

Even had judges thought that public employees needed unions to address workplace problems, the judicial construction of "union" solely along private sector lines meant that judges assumed that public sector unions would act to address these problems in exactly the same ways as private sector unions. This was especially frightening given the legacy of the Boston police strike of 1919. Thus, the consequences of this construction were harsh. In 1920, the court in McNatt v. Lawther,[177] upholding a ban on firefighters in Dallas joining the IAFF, referred to the "dire consequences" of the Boston strike. The court suggested that the ban may have been designed "to minimize ... the probability of some such calamity in the city of Dallas."[178] Such fears were rekindled after less dramatic public sector strikes in 1946. Again, however, these beliefs existed despite the fact that between 1919 and 1946, there were very few public sector strikes and none of any significance.[179]

Still, judges expressed their concerns rather theatrically. The Murphy decision, in a case that did not in any way present a factual or legal issue involving strikes, proclaimed that to "admit as true that Government employees have power to halt or check the functions of Government unless their demands are satisfied, is to transfer to them all legislative, executive and judicial power. Nothing would be more ridiculous."[180] Strikes against the government were always unjustified and represented "rebellion against constituted authority."[181] The court quoted Roosevelt: "[ A] strike of public employees manifests nothing less than an intent on their part to prevent or obstruct the operations of government until their demands are satisfied. Such action, looking toward the paralysis of government by those who have sworn to support it, is unthinkable and intolerable."[182] City of Los Angeles v. Los Angeles Building and Trades Council, decided in 1949, also insisted that strikes by government workers would be "rebellion against constituted authority."[183] City of Cleveland v. Division 268 similarly labeled such actions "rebellion against government."[184] The judge in that case continued: "The right to strike, if accorded to public employees, I say, is one means of destroying government. And if they destroy government, we have anarchy, we have chaos."[185] He added that a ban on such strikes was "merely expressive of the common law."[186] This was true: a study in 1953 concluded that "in every case that has been reported, the right of public employees to strike is emphatically denied."[187] But such reasoning by courts fundamentally misunderstood the actual nature of public sector unions; such unions, in fact, did not engage in any significant strikes between 1919 and 1946.

Nonetheless, the false constructions of terms such as "union" created a very different reality in the courtroom, which in turn affected the world of public sector unions outside the courts. Public sector workers continued to contest this construction, acting on their beliefs that they were real unionists. They created labor organizations and represented their members, even in a vacuum of legal rights. In modern times, some of their alternate understandings of what their rights were or should be have prevailed in the courts and legislatures. Still, the power of judicial construction was often crippling.

D. Synthesizing the Strands into a Coherent Theme

The factors listed above - bias against labor, concerns for state structure, and false constructions of "union" - did not exist in isolation from each other. Decisions made twenty-seven years apart by courts in Texas and California show how judges easily combined these three strands of reasoning into a consistent rule. In sum, given the type of organization they perceived unions to be, courts would at minimum not interfere with the decisions of government officials to avoid dealing with them. Two cases, McNatt v. Lawther and Perez v. Board of Police Commissioners demonstrate how judges synthesized the three factors into a remarkably constant body of law.

1. McNatt v. Lawther

In 1920 the Texas court of appeals in McNatt upheld a bar on union affiliation by firefighters. Showing concern for the capacity of state bodies, the court deferred to the local board of commissioners in labor matters. The board could decide what constituted "cause for removal" and court review of board decisions was limited or nonexistent.[188] Demonstrating palpable skepticism toward labor, the court quoted a private sector case for the proposition that "an employer cannot have undivided fidelity, loyalty, and devotion to his interests from an employee who has given to an association right to control his conduct."[189] A "man who is by agreement ... shackled in his faculties - even his freedom of will - may well be considered less useful or less desirable by some employers than if free and untrammeled."[190] Citing Coppage, the court stressed that all employers should be able to decide if union membership "is consistent with the satisfactory performance of the duties of employment."[191] Further, the court's construction of "union", specifically the assumption that public sector unions would use all the tactics of private sector unions, bolstered the conclusion. Despite the IAFF's disavowal of strikes, the court explained that the board "may have taken into consideration the effect of the increased probability of strikes by the policemen or firemen" if they were affiliated.[192]

2. Perez v. Board of Police Commissioners

Even after World War II, little had changed. In 1947, Perez upheld a ban on AFSCME membership by the Los Angeles police department.[193] The union claimed that the ban was unreasonable and arbitrary, and thus it exceeded the power of the board of police commissioners to make "necessary and desirable rules and regulations." Moreover, the ban violated the federal and state constitutions: it denied equal protection, free speech, assembly, and petition rights; it was impermissible "class legislation" and a deprivation of property without due process.[194]

Perez rejected these claims, refusing to compel government officials to deal with a union, as the court understood the term. Echoing the biased "disloyalty" charge from an older era of private sector cases, Perez approvingly quoted the city's argument that union membership could impair police "independence ... where controversies exist between employers and employees ... a divided responsibility would occur."[195] Second, the court rejected any construction of union not based on the private sector model. It slighted the no-strike clause in AFSCME's constitution, insisting that such rules could be amended,[196] even though it cited no example of an AFSCME police union striking or threatening to strike. Third, due to its misperceptions of labor and workplace realities, the court could not comprehend why government workers wanted or needed unions. "Nothing can be gained by comparing public employment with private employment; there can be no analogy in such a comparison."[197] This analysis made deference to another state body an easy solution. Whether union membership related to competency was for the board of police commissioners to decide. It was "not a judicial question." Reasonable rules must be held valid.[198] Given the court's views on unions, it would be unreasonable to force public officials to deal with them.

Finally, the reply of Perez to the union's constitutional claims confirmed how little progress public sector labor had made with judges in the first half of the century. In sweeping and dramatic language, the court indicated that concerns of delegation and democracy could bar any involvement by labor in government employment. While the union's argument "sings the praises of the Constitution on the one hand ... it presages its destruction on the other." Allowing the union to bargain would violate "the power of the people to establish and conduct the government, for it seeks to control governmental processes by indirection .... The people have sought no assistance from the labor union ...."[199] Allowing affiliation "would be a direct violation of the Constitution": public workers served the people, and there could be "neither alienation nor division of this allegiance if constitutional government is to continue."[200] Indeed, failure to prohibit affiliation "would have amounted to a surrender of power, a dereliction of duty, and a relinquishment of supervision and control over public servants ...."[201]

3. The Remarkable Consistency and Longevity of the Synthesis

The logic of cases such as McNatt and Perez determined the outcome of all public sector labor decisions in this era. Some opinions seemed to rely on the special nature of police and fire departments, stating that they were in "a class apart."[202] For example, nearly thirty years after the Boston strike, King v. Priest repeated the concern often voiced then that AFL police unions would aid private sector strikers. The court took "judicial notice ... of the fact that members of one union ordinarily refuse to cross the picket line of another union."[203]

But cases involving public workers who were not involved in "public safety" yielded identical results. The three factors blended together and did not distinguish between types of employees. The AFT was a popular target of yellow dog rules, which judges upheld,[204] and indeed all types of government employees were, in various times and places, barred from union membership  and otherwise restricted by regulations and courts.[205] Fundamentally, no court in this period struck down a yellow dog rule aimed at public workers or allowed them to strike or bargain. Well past World War II, courts uniformly upheld whatever bans on public sector unions local authorities thought to pass. They enforced yellow dog rules through the mid-1950s. Only in the late 1960s did courts generally begin to find constitutional infirmities in such rules.[206]

III

THE DOG THAT DIDN'T BARK IN THE NIGHT: FEDERALISM, FEAR, AND THE LACK OF STATUTORY PROTECTIONS

The next logical question is, why was this area left to judges for so long? Why did public sector unions not even begin to win some statutory protections in some states until decades after the NLRA had given rights to private sector unions and other western democracies had given much greater rights to public sector unions?[207] The absence of beneficial laws was clearly important.[208] Yet while statutory law set wages and hours for government employees, and civil service rules sometimes provided rights to individual workers, neither federal nor state law gave public sector unions institutional rights. Not only were such unions excluded from the coverage of the NLRA, but state statutes, passed soon after World War II, did little beyond formally barring public sector unions from striking.

Just as one theoretical tool is insufficient to understand judicial holdings decisions, the absence of statutes also can be explained only by understanding how bias, state structure, and false constructions combined. The long and difficult battles required to pass the NLRA show the power of anti-union groups and ideology generally.[209] But why were public workers not included in the NLRA or in state labor relations laws? First, federalism and the constitutional limits of Congressional power over the states greatly limited the opportunities for a national labor statute covering employees of states and local governments. Second, memories of the traumatic Boston police strike of 1919, unique though it was, reinforced the idea that public sector unions would inevitably act like private sector labor; this image helped prevent passage of beneficial state and local statutes. Thus bias, false constructions, and state structure ensured their unions would receive no institutional protections.[210]

A. Laws, but Not Labor Relations Laws

 Unions of government workers did help pass laws in the nineteenth and early twentieth centuries, but these generally were limited to wages and hours.[211] The lone statute that granted any institutional rights to public sector unions was the Lloyd-LaFollette Act of 1912, and this was limited to employees of the federal government: because of the federalist structure of the American state, a labor law covering the federal government did not extend to state and local governments.[212] Practically speaking, Lloyd-LaFollette gave federal sector unions the right to exist, petition Congress, and little else.[213] Unions in state and local government lacked even this minimal form of statutory protection. Civil service laws sometimes offered some rights to individual workers, but state structure and bias assured that these laws would not protect unions. Civil service rules were designed to protect merit principles: public workers should be hired, fired, promoted, or demoted because of their abilities, not as favors or punishments by political machine bosses. By 1944 nineteen states had adopted civil service systems, as had hundreds of cities.[214] Unions fought for these laws, and used civil service procedures and hearings to defend their members.[215] Still, civil service rules did not provide institutional rights for unions. Even though proponents and opponents of these rules were fighting about how the state would be structured through its employment practices, neither side had a brief for labor. Unions could pass civil service laws only with the aid of government reformers, but reformers typically held the biased view that unions were simply another improper power base that should be kept out of government.[216] Further, with the judicial attitudes described above in full force, civil service provided even less protection than unions had hoped. Even when civil service rules provided that public employers could discharge workers only for "cause," courts allowed local officials to determine that union membership was adequate cause.[217] These laws were no substitute for labor relations statutes.

Also, federalism strengthened the hand of the machine bosses that opposed civil service. The federal government created a civil service system for its employees with the Pendleton Act of 1883. But, given the diffuse structure of American government, individual states and cities set their own civil service standards. This often allowed local political machines to write or administer rules such that they in fact retained significant power. Many states accepted the merit principle in name only.[218] Further, well beyond the civil service context, federalism would turn out to be an enormous obstacle for public sector unions seeking statutory rights.

B. State Structure Redux: The Continuing Constitutional Impediment of Federalism and the Absence of a National Law

1. The Tenth and Eleventh Amendments, Then and Now

Why did public sector unions not win any federal protections in the burst of national labor and employment laws passed during the New Deal? The NLRA explicitly excluded public employees from their coverage,[219] but the legislative history of the NLRA does not explain this exclusion.[220] Nor do histories of labor law or New Deal legislation, including those written after the startling growth of modern public sector organizing, examine why New Deal initiatives did not protect government workers.[221] Unionists in the 1930s periodically called for a federal statute covering public sector labor relations.[222] In later years too, labor leaders decried the omission. "Congress ... has made its share of blunders over the years," AFL-CIO President George Meany wrote. "In the field of labor-management relations, one of the most grievous was the singling out of farm workers and government workers for exclusion from the protection of the [NLRA]. By that action the Congress trampled on the principle of equal justice under law."[223]

A large part of the answer, at least as to national legislation, is the constitutional scope of the federalist state structure. Under the constitutional doctrines regarding the division of power between the federal and state governments that existed in the first half of the century, Congress simply lacked the authority to regulate the labor relations of states and localities. Joseph Padway of the AFL in 1942 admitted that "Congress clearly is without constitutional authority to regulate labor relations between state governments and their subordinate bodies and all of their employees."[224] So, for example, in 1942 the National War Labor Board cited the "sovereign rights of state and local governments" in holding that it did not have jurisdiction over a labor dispute between New York City and the Transit Workers Union which represented public subway workers.[225] Indeed, in the 1930s, even the constitutionality of a federal statute governing private sector labor relations was questioned. Employers insisted that the NLRA was beyond Congress's Commerce Clause powers and violated the rights of states under the Tenth Amendment. The Supreme Court rejected these claims in 1937, two years after the NLRA was enacted.[226] Since the New Deal, courts have regularly upheld Congressional power to regulate private sector labor and employment matters against such constitutional objections.[227]

In the public sector, in contrast, federalism has been a crucial and continuing obstacle. Through to the present day, courts have resisted Congressional attempts to apply federal employment laws to state and local governments. The Supreme Court only grudgingly acknowledged the power of Congress to regulate public employment as it has private employment in two brief and recent gaps. First, between Maryland v. Wirtz[228] in 1968 (holding that the Fair Labor Standards Act of 1938 (FLSA)[229] applied to public workers) and National League of Cities v. Usery[230] in 1976 (reversing Wirtz and holding that the Tenth Amendment[231] barred Congress from applying the FLSA to public workers); and then between Garcia v. San Antonio Metropolitan Transit Authority[232] in 1985 (reversing National League of Cities) and Alden v. Maine in 1999 (limiting the ability of state employees to sue under federal employment laws, relying on the Tenth and Eleventh Amendments).[233] This underscores the validity of the belief in the first half of the century that a national public sector labor statute would have been held unconstitu