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A new initiative is currently being proposed in California:

On Aug. 9, 2021, venture capitalist Timothy Draper filed a proposal with the California attorney general’s office for an initiated constitutional amendment that would prohibit public-sector workers from forming unions. If supporters gather enough valid signatures, it will appear on the Nov. 8, 2022, ballot.

Are there countries/states that ban public sector employees from forming a union, but still allow private sector employees to form one? Or would California be the first such states if this initiative manages to pass?

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  • It seems like that would violate both federal law and the federal constitution. Nov 20 '21 at 5:03
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    @Accumulation there’s existing precedent saying it wouldn’t: en.wikipedia.org/wiki/Hatch_Act_of_1939#Provisions Nov 20 '21 at 7:02
  • I don't see what relevance you think that has. Ctrl-f on "unions" yielded only one result: "In 1976, Democrats who controlled Congress had sought to win support by adding protections against the coercion of employees by their superiors and federal employee unions had supported the legislation." Nov 20 '21 at 18:33
  • @Accumulation you misunderstand - the Hatch act was found constitutional despite violating the 1st Amendment. The Court ruled that restricting the freedom of speech and association of government employees has merit. Same would apply here. Plus as described in answers below, North Carolina and South Carolina have a similar law on the books that was never challenged. Nov 20 '21 at 18:38
  • If it was found to violate the first amendment, then it follows that it was unconstitutional. Perhaps you mean "It was found to be constitutional despite restricting speech". The answer below discusses specific union activities that are banned, and while that may effectively be a ban on unions, at outright ban on unions would almost certainly be found to be unconstitutional. The proposed ban you link to is extremely broad, and taken literally could be interpreted as banning headhunters, employment law firms, etc. Not that it has any chance of passing anyway. Nov 20 '21 at 23:44
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Arguably this somewhat depends on where you draw the line between a public sector employee and a civil servant. There may or may not be a difference between the two classes in your jurisdiction. In Germany, there is.

German law distinguishes between public sector employees (Angestellte im öffentlichen Dienst) and civil servants (Beamte). The former are regular employees as they would be in the private sector with the exception that their employer is the state or federal government or a municipality or local council. In general (but not always), these are the lower-paying positions. They enjoy the same rights as private sector employees, including the right to join or form a union and to go on strike for better pay. Possibly the most visible of these would be employees in public transport (bus or tram drivers) which are typically employed by a city or regional-government-owned company, often represented by the union Verdi and cause national headlines when they go on strike every two or so years.

On the other hand, there are civil servants. Unlike public sector employees, they swear an oath to uphold the constitution on their appointment. There are a number of differences in terminology (e.g. public sector employees receive a salary called Gehalt while for civil servants it is called Sold or Besoldung) but also important differences in their rights and obligations. Most notably (especially in the context of the question), civil servants cannot be dismissed but also cannot go on strike or form unions. Instead, their salary and working hours are determined by law (but tend to follow the development negotiated by public sector employees and their unions).

It should be noted that some positions can be employees first and transformed into civil servants later. For example, teachers are typically employees at the beginning of their career and become verbeamtet later.

Whether or not this example meets your criteria obviously depends on the line you drew above.

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    "In general, these [public sector employees] are the lower-paying positions" Well, I am a Angestellter im öffentlichen Dienst (software developer in a government-owned company) and I make more money than a Beamter in a middle-management position. The paygrades for Beamte and Angestellte on comparable positions are actually pretty similar.
    – Philipp
    Nov 17 '21 at 14:34
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    Note that this doesn't mean public servants can't form a union, it just prevents them from doing things unions do, for example, going on strike. The police have their "representation organization" called "Gewerkschaft der Polizei", which literally translates to "union of the police". They're not completely toothless either; while they can't start a strike, they can suggest to their members to do "Dienst nach Vorschrift" - "work to rule" - don't break any rules, but don't be any more enthusiastic than you have to be. Which, depending on the position, does not feel very different from a strike. Nov 17 '21 at 19:08
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    @JonathanReez They have unions (including the name), but the unions for state officers don't negotiate the pay or work conditions, nor can they strike. Nov 17 '21 at 22:30
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    @xngtng the proposed California amendment would indeed restrict any organization who's purpose is negotiate around working conditions. Since it would only apply to government workers, I presume it might hold its ground in court if it ever passes. The main problems with public sector unions is that they can influence the government to increase their wages/pensions, while also being immune from their employer going bankrupt as a result. Its the root cause of the fiscal crisis in many US states. Nov 17 '21 at 23:28
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    @xngtng the Supreme Court ruled that certain 1st Amendment restrictions for government employees are acceptable. Nov 18 '21 at 0:08
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There are many U.S. jurisdictions in which some public sector employees cannot unionize, and in the U.S. the right of most kinds of private sector employees who aren't part of management (although not all) to unionize, is secured by federal law (the National Labor Relations Act). Unsurprisingly, unionization of federal government employees is also governed by federal law.

Management workers in both government and the private sector are not generally permitted to unionize (including almost all government lawyers and judges and all military personnel, for what it is worth).

Federal law (other than the U.S. Constitution) does not apply to public sector unionization at the state and local level in the U.S., for federalism reasons.

Wikipedia reviews the relevant U.S. history. Postal service unions first arose in 1890 and have persisted to the present. Other public service unions emerged, such as the Boston Police Union, but a strike by that union in 1919 resulted in the elimination of public sector unionization in the U.S. (outside public schools and the post office) from 1919 to 1958. Public sector unions in the U.S. have expanded rapidly since then. Federal government unions outside the postal service were legalized in 1962.

In 2010 8.4 million government workers were represented by unions, including 31% of federal workers, 35% of state workers and 46% of local workers.

In the United States in the year 2020:

The union membership rate (the percentage of wage and salary workers who were members of unions) was 10.8 percent. . . . the union membership rate in the public sector . . . [was] 34.8 percent, while the rate in the private sector . . . [was] 6.3 percent.

Public sector unions typically afford a different mix of benefits for members than a typical private sector union does.

Public sector workers have had many union-like benefits such as defined benefit pension plans and the right to be fired only for cause (two of the main goals of many private sector unions), for much longer than public sector unions have been widespread. The federal civil service system was begun in 1883 in reaction to abuses of political patronage by prior administrations, especially that of President Andrew Jackson.

There continue to be many cases in the U.S. where government workers can unionize, but not strike, either due to a global rule that applies to every unionized government workplace of that type in that jurisdiction, or due to a widely adopted collective bargaining agreement term.

For example, unionized federal government employees don't have the right to strike, as a matter of federal statutory law.

Some Brief Comparative Observations About Private Sector Unions

What a union does and means varies from country to country.

For example, the main kind of private sector union in Japan, which is sponsored by the company itself, is prohibited under the National Labor Relations Act in the United States.

Similarly, while U.S. unions are organized primarily on an employer by employer basis (with a few notable exceptions like people in the live theater, TV and film industries), some countries have unions organized on an industry by industry basis.

Private sector unionization in the U.S., in contrast to public sector unionization, has declined more or less steadily since about 1970, mostly due to outsourcing and off shoring that is not feasible for many kinds of government workers (a full analysis of that point is beyond the scope of this question).

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In North Carolina, while I believe public-sector unions are not technically illegal, it is illegal for them to either strike or collectively bargain with any branch of the state government or its constituent local governments. This means that public sector unions are more or less de facto banned in the state. I understand the law is similar in South Carolina. Virginia also had a similar law prior to 2021, but it was since repealed.

Sources:
Freshmen state legislators want to overturn law that has held back unions for 60 years
Article 12: Units of Government and Labor Unions, Trade Unions, and Labor Organizations, and Public Employee Strikes.

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    Interestingly it looks like the union ban did help North Carolina's budget as their pensions are funded at 96% while it didn't help South Carolina where pensions are only funded to 63%. Seems like a public union ban alone wouldn't resolve the issue. Nov 18 '21 at 21:11
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    What exactly are the North Carolina public sector unions permitted to do then? Nov 19 '21 at 21:12
  • @user2617804 An excellent question. As in the days before unions were even legal, or had been institutionalized in any way, they are able to organize outside the context of the legal framework of formal strikes and negotiated contracts. For example, rather than repeated strikes, they may hold repeated "sick-outs" (everyone calls in "sick" at the same time, halting work) until the city/county/state passes a wage increase.
    – Anomaly
    Nov 29 '21 at 18:11
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Historically, this was in fact exactly the situation in France between 1884 (loi Waldeck-Rousseau, which made trade unions legal again) and 1946 (when it beame legal for low-level civil servants to form a union). Since then, union rights for public sector employees have been strengthened (it's anchored in the most recent constitution and in international law and the law now provides for specific resources to make that righ effective) but California would therefore not be the “first” jurisdiction to make that kind of distinction.

Note that, perhaps against some clichés, France has a rather low unionization rate (one of the lowest in the OECD, similar to the US), whether in the public or in the private sector.

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    "Public sector employees tend to be more unionised than those in the private sector, with 19,1% in the public sector belonging to a union compared to 8,4% of their private counterparts" compared to 34.8% and 6.3% respectively, in the U.S. thelocal.fr/20190920/… But French unions (especially in the public sector) have more power than comparable U.S. unions do. The overall rate is France is 11% which is about the same as the U.S.
    – ohwilleke
    Nov 18 '21 at 23:23
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    @JonathanReez As noted, public sector unions often can't strike in governmental functions where French ones can. Lots of conduct that is sometimes tolerated from French unions (like kidnapping a private sector CEO) would be harshly put down in the U.S. The details would take a law review article to spell out in detail. Dems used to be mostly private sector union based, the public sector union support has flowed from the overall decline in private sector and rise in public sector unionization in the last few decades.
    – ohwilleke
    Nov 19 '21 at 20:15
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    @ohwilleke In most cases, it's the local management or the director of a facility belonging to a larger concern who is being “detained”, rarely the CEO and I have never heard of anyone being kidnapped (in the sense of being transported somewhere they weren't already). At the end of the day, the actual sentence is often very light or nonexistent but such “detention” is still illegal and prosecuted. Perpatrors are sometimes (but not exclusively or mainly) union members or leaders but it's not exactly something the union as such unambiguously condones.
    – Relaxed
    Nov 19 '21 at 22:53
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    French unions also cannot strike, that makes no sense. Individuals can go on strike (or not, depending on their status, e.g. military). No need to be a member of a union. Unions can organise or push for a strike obviously but it's also a decision that is taken outside of the union and its success depends on the unions' ability to convince non-union members. As I said, membership is typically low and on top of that, much more divided that nearly everywhere else, it's not unusual to have 4 or 5 different unions for a given business.
    – Relaxed
    Nov 19 '21 at 22:58
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    It's a mistake to think labor conflicts or spectacular actions like mass protests or detention (which are real) reflect the strength of the French union movement or a positive attitude of the French state towards unions. The exact opposite is true.
    – Relaxed
    Nov 19 '21 at 23:07

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