Thomas B. Mooney, a partner in the law firm of Shipman & Goodwin in Hartford, Conn., teaches public-sector labor relations at Western New England College School of Law in Springfied, Mass. He has been counsel to several boards of education in Connecticut.
In the private sector, a unified federal law pre-empts state laws. Public-sector labor relations, however, are regulated by individual states. Some hold-outs still do not authorize collective bargaining for teachers, but increasingly state legislatures are embracing that concept. Unfortunately, basic differences between private production and public education make full-blown collective bargaining for teachers inappropriate at best and disastrous for the education process at worst.
The private-sector model requires that management negotiate in good faith with employees’ elected representatives over a contract governing wages, hours, and conditions of employment. If unexpected problems arise or are identified during the contract term, management is bound by whatever contractual promises it made in happier days. Contracts may be changed only by mutual agreement, and no union worth its salt will agree to modifications during the contract term without demanding a matching new concession from management.
The contract is not the only way in which collective bargaining may tie management’s hands. Since the parties cannot cover all possible concerns in the written contract (without interminably protracting an already lengthy process), the rule of “past practice” has evolved. Simply put, it means that major terms and conditions of employment that are not covered in the contract may not be changed without prior negotiation. Prohibitions against changes in conditions of employment by management without bargaining have been imposed in cases involving a broad range of matters from coffee breaks to Christmas turkeys.
Collective bargaining in the private sector has worked reasonably well. Most people accept that the employees’ right to choose to speak to management collectively more than outweighs the deleterious effects such collective activity may have on productivity, efficiency, or profits. The rules of the game have balanced the needs of both employer and employee. For example, the duty to bargain in good faith by law expressly excludes any compulsion to agree to a proposal or to make a concession or counterproposal. Similarly, management may make changes in past practices if the parties are at an impasse after the required negotiations.
That balance between employer and employee rights has often been lost in public education. Though there are exceptions, teachers’ unions are generally not permitted to strike. The bargaining statutes, therefore, often include lengthy procedures for resolving impasses at the bargaining table, including mediation, fact finding, and advisory or binding arbitration. These procedures distort the bargaining process and rob school boards of fundamental managerial prerogatives.
The private-sector employer may “hang tough,” provided it is willing to take a strike, and refuse to concede to union proposals that would erode its control over the enterprise. In contrast, in public education the ultimate decision on proposals for change is, with increasing frequency, vested in noneducator arbitrators who issue binding contract awards to the parties.
These arbitrators depend for their livelihood upon that rare commodity of “acceptability” to both sides. It is, therefore, far easier to deny local board proposals for change than to risk rocking the boat and alienating a statewide teachers’ union. Assuring that teachers and boards resolve their disputes amicably certainly sounds good, but the price has been terribly high. Innovation in education is held hostage to parochial union interests.
The Bell commission has identified many areas where the teaching process should be improved, but teachers’ unions in many states stand squarely in the way of such improvements. For example, the report recommends that “school boards, administrators, and teachers should cooperate to develop career ladders for teachers that distinguish among the beginning instructor, the experienced teacher, and the master teacher.” Good luck. While the majority of teachers as individuals may recognize the soundness of this suggestion, teachers’ unions are committed to “equality” at all costs. Teachers are of course neither equally gifted nor equally motivated, but efforts at the bargaining table to relate compensation to (dare I say the word?) merit are quickly rebuffed. The union must represent all teachers, including those who would be slighted by receiving less than their more energetic or committed colleague(s).
The Bell commission also recognized a critical shortage of teachers in areas such as mathematics and science. A major problem in attracting these teachers is, of course, competition with the private sector. But as with merit pay, unions adamantly oppose incentives for teachers in specific disciplines. One Connecticut district went months without an industrial-arts teacher. It tried in negotiations to change the contract to permit “step credit” for related private-sector experience. The union opposed this small change all the way to binding arbitration, and, true to form, the arbitrator left the contract unchanged and the problem unsolved.
Another recommendation made by the commission is that: “Salary, promotion, tenure, and retention decisions should be tied to an effective evaluation system that includes peer review so that superior teachers can be rewarded, average ones encouraged, and poor ones either improved or terminated.” Forget it. Attempts to implement this sound proposal will evoke bitter resistance from many teachers’ unions. Collective bargaining leaves little room for a system of reward or even encouragement. Rather, negotiations most frequently perpetuate the status quo: a predictable, lockstep progression through a growing number of salary steps. Compounding the problem is the political reality that unions are beholden to their majority. The admittedly limited amount of money is often inequitably diverted to the increasingly large group of teachers at the top of salary schedules in order to “buy” their agreement on a contract.
Also, the concepts of “effective evaluation” and “peer review” are antithetical to the union’s perception of its role. Participation by unions in developing evaluation procedures has led to requirements that eviscerate the process, such as advance notice of all observations or ridiculously narrow evaluation criteria. One union in Connecticut even proposed that administrators may not observe teachers in the classroom more than twice annually. I can only assume that this proposal was not made seriously, but it chillingly reflects the union approach to evaluation: Whether we are good, bad, or indifferent, leave us alone.
Similarly, “peer review” collides with another dimension of collective bargaining, the duty of fair representation--the requirement that all unions represent all members fairly. Misguided zealotry or fear of being sued by a member has led unions to defend all comers in termination proceedings brought by a school board. Rare is the school-board advocate who has not heard privately that the teachers recognize the need to dismiss a particular incompetent teacher, while publicly the union fights the action to the bitter end. Because of this blind allegiance to all teachers, union war chests (often gathered through mandatory dues deductions) are expended to defend poor teaching practices.
The picture painted here is bleak; the collective-bargaining process holds little promise for accomplishing the far-reaching changes recommended by the Bell commission. Many states have concluded that the right to have union representation should be extended to teachers, and I do not quarrel with that decision. Unfettered board discretion, particularly on purely economic issues such as salary, could harm education by driving good teachers out of their profession.
But the particular problems in the public sector (and education in particular) require that the traditional collective-bargaining rules be modified. The union’s first duty is to its members, not to implement the recommendations of the Bell commission. If boards of education are to implement those recommendations, two changes must occur. First, state legislatures must implement some recommendations by statute, removing such matters entirely from the bargaining process. Second, districts must be free to discuss and to implement other changes without bargaining, to respond locally to the challenges identified by the commission.
Opportunity for needed change must be freed of the dead weight of union resistance. To protect employees’ interests, unions should be able to seek negotiations over the impact of such changes, whether imposed by statute or by local board action. But the decisions themselves must be excluded from the collective-bargaining process, ill-suited as it is to the making of fundamental policy decisions. We must fairly consider both the teachers’ interest in representation and the public’s need to be free, through its elected representatives, to improve the educational process.
