Collective bargaining in public education does not work very well. Regardless of the outcome of contract negotiations, the citizen lacks any direct and meaningful influence over the process that produces the labor agreement. And if teachers strike to attain their bargaining demands, the students and parents who suffer the consequences have as their only recourse, political reprisal against the school-board members who precipitated the action. In addition, if the bargaining impasse is resolved through arbitration, any semblance of public accountability disappears. The collective- bargaining system accordingly should be modified to provide a greater degree of public participation.
In 1935, the Congress chose to exclude governmental employers from coverage under the National Labor Relations Act, and state and local governments were permitted to devise their own labor-relations policies.
At present, 42 states have enacted legislation conferring rights to collective bargaining on at least some groups of public workers. Ten states authorize strikes as one means of resolving bargaining impasses, and, in addition, the California Supreme Court recently ruled that public employees in that state have a common-law right to strike. The remaining states rely on some form of third-party intervention, such as arbitration, to resolve disputes. Neither method can be applied successfully to educational bargaining.
Strikes are effective in the private sector because they impose economic costs on recalcitrant or incompetent negotiators. In contrast, public education is monopolistic, and consumers--the taxpayer--have only limited alternative sources of educational services. They must pay for public schools, and therefore market forces cannot efficiently discipline the negotiating parties as occurs in the private sector.
Many academics have pointed out that the technique of arbitration successfully minimizes strikes. However, it does so at an extremely high price. The arbitrator, who determines the terms and conditions of employment, is necessarily removed from the influence of any interested party, and, by definition, citizens are precluded from any voice in the resolution of the dispute. One expert in the field, Raymond Horton, cogently observes: “No readily foreseeable reforms could overcome the objection to interest arbitration based on political democracy, short of eliminating arbitration or electing arbitrators.”
Theoretically, there is an alternative method of resolving impasses in negotiations while simultaneously preserving the positive benefits of collective bargaining. I propose a framework for public-sector negotiations I that includes a referendum election, which I refer to as the Referendum Model.
• Notice of Impasse. If the parties are unable to agree on the terms of a contract, they notify the appropriate state agency (the “Board”). The notification specifies the issues in dispute and the respective positions of the parties.
• Mediation. The Board appoints a mediator, who will attempt through mediation to resolve the dispute. If mediation is not successful within a specified period, the mediator files a report with the Board. The report may be made public.
• Fact-finding. The Board appoints, or the parties mutually select, a fact-finder, who conducts a hearing and prepares recommendations for a labor contract. The parties share the fees and expenses of the fact-finder.
• Referendum or Strike. Following fact-finding, the parties are given a short period within which to accept or reject the fact-finder’s recommendations. If the school board rejects the recommendations, then teachers will be permitted to strike. However, if the union rejects the recommendations, the impasse is submitted to a referendum election in the appropriate electoral unit, with the union paying the cost of the election. Voters choose between the fact-finders recommendation and the union’s proposal. In the event both parties reject the recommendations, the referendum election is held. The costs of the election are shared, and the voter chooses either the union’s or the school board’s final offer at the time of the impasse.
There are many advantages to the Referendum Model. The objective of collective bargaining is to encourage the voluntary and peaceful accommodation of interests, and by imposing substantial costs of disagreement on unions and school boards, the model promotes genuine bargaining rather than desultory and aimless discussions as a prelude to some further stage in the procedure, such as arbitration.
The costs to the union are economic. An election may be expensive, and a union victory is not assured, so only a foolhardy union would reject a fair and equitable recommendation in favor of a referendum election involving a known expenditure and an uncertain outcome. Indeed, for teachers, the model imposes greater economic injury than the pure strike model; teachers often recoup the loss of salary during a strike I through the addition of school days at the end of the normal year. They would not have such an advantage under the proposed model unless the school board chose to confer it upon them.
For the school board member, the costs are political. If the board rejects the fact-finder’s recommendations, it does so at the I risk of incurring a damaging strike. Because the strike option is under the sole control of the school board, the board cannot avoid public accountability for the consequences of a work action, and the electorate at the next general election can punish the board for an unwise decision.
The model also comports with ideals of democratic governance in local school systems. Presumably, citizens will have a significant incentive to become informed regarding the course of collective negotiations, and publication of the fact-finders recommendations will generate substantial public pressure on the parties to reach a settlement. Such pressure will promote the effectiveness of the fact-finding process.
One objection to the model is that political change at the state level is a momentous undertaking that must confront and overcome entrenched interests. But the Referendum Model could be implemented through the simple expedient of permitting a local option to the state collective-bargaining law. That is, during a general election, citizens within a given school district would be offered a choice of retaining existing procedure for public-school bargaining or selecting the Referendum Model.
State legislators could hardly oppose a procedure that allowed local taxpayers to express a preference for a specific form of collective bargaining. If school boards and teachers opposed the model, they could work to defeat the option by publicly defending the present methods. Indeed, the lo- cal-option strategy would occasion valuable debate regarding educational goals and priorities within the community.
The organized-labor movement in America faces grave challenges. A major factor in labor’s current deterioration is the lack of public awareness of the nature and function of unions. Teachers’ unions are often criticized and maligned along with other labor institutions, and students affected by a work stoppage may perceive unions in very negative terms. For that reason, encouraging public familiarity with and participation in the bargaining process seems a desirable end.
A version of this article appeared in the November 12, 1986 edition of Education Week