A Commentary of Public Education Without Romance The Impact of Collective Bargaining on Indiana Schools

Study by Charles M. Freeland, Indiana Policy Review*

Commentary of the Study by
David W. Kirkpatrick**

Introduction

Public Education Without Romance: The Impact of Collective Bargaining on Indiana Schools, a study by Charles M. Freeland, examines "the impact collective bargaining (has had) ... on the quality of public education in Indiana--and generally finds it harmful. Yet, Freeland says, "No effort to reform public education in Indiana, to 'change that system,' can hope to succeed until it addresses" the impact of collective bargaining.

At the time of Freeland's study, 291 of the 309 schools and special or vocational education districts in Indiana had collective bargaining agreements. Indiana's state constitution (like that of other states) has an article calling for the provision of public education, but doing so is affected by union contracts.

Freeland conducted the study to help policy-makers find a way to bring freedom and competition to Indiana's public schools, for the benefit of parents and children. Collective bargaining agreements with teacher unions, regardless of their merits, hinder the achievement of that goal.

Most public school officials and teachers lack adequate experience or expertise with teacher bargaining contracts. As recently as 1960, collective bargaining for teachers was rare, even illegal. In 1970, only 10 years later, 23 states had such laws, still less than half. By 1980, 31 states had joined the bargaining ranks. Indiana enacted its law in 1973, which became effective January 1, 1974.

State Laws Patterned After NLRA

While Freeland's study is restricted to Indiana, its implications and relevance are nationwide. This is most directly true for states with collective bargaining laws. While details of these laws vary, they have much in common because they are based on the National Labor Relations Act of 1935 (NLRA).

One major example is that the NLRA allows for exclusive representation for a group receiving one vote more than 50% of the votes cast in a representation election. This has become so commonly accepted in this nation that few seem to be aware that exclusive representation is rare in other nations.

Exclusive Representation Rare in Other Nations

An Alexis de Tocqueville Institution study, conducted a few years ago, disclosed that many nations only allow a union to represent its own members. Consequently, teachers may join any one of several unions, or even choose to refrain from joining any such group and bargain as an individual.

Common Effects of Collective Bargaining Laws

Freeland's study also has relevance for other states because the effects of collective bargaining laws are so similar around the nation.

One effect is that the interests of unions sometimes conflict with the interests of their members. One sad example is that agreements give unions exclusive access to certain school facilities, such as internal mail systems (84% have such a provision), copying machines, telephones, public address systems, bulletin boards and meeting rooms. One might think it is unconstitutional to grant use of public facilities to one private party. However, the U.S. Supreme Court has upheld such provisions. In doing so, though, it only said boards may agree to such requests, not that they are a constitutional right to which boards must agree.

Nor are these procedures mandated by state bargaining laws. At best it is something that laws permit to be subjects of bargaining discussions. Too many school boards, obviously ignorant of the implications of what they are doing, give in to such requests since they are "no-cost items." No direct cost in dollars, perhaps, but as Freeland states, such agreements provide no benefit to teachers, weaken the district board and administration, and strengthen the union.

Two other tactics, even more beneficial to the union, are to place in the contract provisions for what are termed "fair share" fees, and "maintenance of membership."

In the first, teachers don't have to join the union (it is illegal for the union to force them to join), but they must pay a "fare share" fee to the union in lieu of dues. The courts have ruled payments can be limited to that portion of dues required for negotiation purposes, but unions commonly get away with charging the full amount or close to it. Teachers refusing to pay can be fired, which should be unconstitutional but has been upheld by the courts.

In the second, maintenance of membership, teachers who do join the union voluntarily may withdraw their membership only during a stipulated period, such as 30 or 60 days immediately prior to the expiration of the current contract. Since the contract may run as long as five years, and the union doesn't remind members of the right to end their membership during this "window" period, membership in effect can become perpetual.

None of these "no-cost" tactics benefit teachers, yet they are agreed to by school districts because they think doing so saves money.

A union may come to the bargaining table with a proposal for, say, an 8% increase in salaries. The board may offer 2%. Eventually they get to 6% and 4% respectively. At that point, the union may say it will accept 5%, or even 4%, if the board will agree to one, two or more of the aforementioned provisions. The board, seeing a chance to save 1-2% for "no-cost" provisions, agrees.

What they have done is strengthen the union in return for nothing. The union may have been willing to agree to the final salary offer anyway. They may have come in with artificially high proposals--yes, that does happen--knowing they would trade some away to gain the "no-cost" provisions.

"Good Faith" Bargaining Rare

The reality of "good faith" bargaining is rarely achieved. In union negotiations, whether in the public or private sector, whether friendly or hostile, the give is by the employer and the take is by the union, with rare exceptions.

Consider the example above: the union initially proposes an 8% increase, the school district proposes 2%, and they settle on 5%. Each side "gives" up 3%. But the district's 3% actually costs them money; the union's 3% costs it nothing because it gave up what it never had.

Union Interest Put Above Member & Public Interests

Freeland's point about union vs. members interest is a common charge. Yet this is true of all organizations. As Milton Friedman and others have noted, every organization has, in general, three purposes: to serve the needs of the organization; to serve the needs of its members, whether individuals or groups; and to serve the public interest in varying degrees depending on the organization. They do this in that order: the organization; the members; and, finally, perhaps, the public interest.

New Indiana Law Prohibits "Fare Share" Fees

The situation is not hopeless! This was demonstrated in Indiana in 1995, when the state legislature passed a law prohibiting "fair share" fees in new contracts. A lower court ruled this to be unconstitutional, but it was overruled by a higher court. Yet some 35 school districts agreed to continue the fair-share clauses already in their contracts.

School Board Contract Pitfalls Benefiting Unions

This weakness of school boards, not confined to Indiana, is indicated by what they are willing to negotiate, even though bargaining laws commonly limit required bargaining to compensation, hours and compensation-related benefits. They are not required to agree to any specific terms. (Of course, on bargainable items they must agree to something or the courts would charge them with negotiating in bad faith.) In addition they may "discuss" other subjects. Yet contracts are full of provisions which boards have agreed to that limit their, and the administration's, freedom of action.

Many agreements have committees to which teachers appointed by the union may constitute at least half the members. One such committee selects the companies that will provide insurance and investment-related fringe benefits. The Indiana State Teachers Association owns its own insurance and fringe-benefit companies, from which it derives income, thus further strengthening the union. The Michigan Education Association has its own insurance subsidiary, even though studies there found the cost to districts was much higher than if they had gone to other insurance companies.

Another curious action by school boards is that every agreement contains a union rights clause, but rarely a management's rights clause clearly stating that the district's management retains all rights that it does not negotiate away. This is no minor error. Absence of such a clause can and does give rise to unfair practice charges, which are expensive and time-consuming, whether the district wins or loses.

The South Bend, Indiana, union contract contains an "academic freedom" clause that says,

Academic freedom shall be guaranteed to bargaining unit members, and no special limitations shall be placed upon study, investigation, presenting and interpreting facts and ideas concerning people, human society, the physical and biological world and other branches of learning subject to the course of studies in the (district).

Aside from the fact that "academic freedom" is a legitimate public concern, especially when the public is compelled to pay the costs and students are compelled to be in the classrooms, what does the above mean? Can a history teacher unilaterally and arbitrarily present and interpret facts because it is one of the "branches of learning subject to the course of studies in the district?"

It is common to use seniority when staff reductions must be made. Seniority requires that reductions be made on the basis of length of service, with most recently hired employees being the first to go. Many contracts provide for "bumping," whereby a senior teacher leaving a specific position is permitted to replace someone elsewhere in the system who has less service.

Seniority and bumping may or may not be sensible, depending on one's perspective. For unions, such policies permit them to avoid making, or agreeing to, judgments regarding the relative merits of its members. For teachers and the public, these policies prevent districts from arbitrarily firing senior teachers because they are higher on the salary schedule. Even so, seniority makes no distinction as to quality of teaching, and "bumping" may even reduce the quality by moving a more senior teacher to a new area or subject field for which he or she is less competent than the teacher whose job was lost.

Districts like to complain, sometimes with cause, about "unfunded mandates." Yet Freeland notes how they impose major mandates upon themselves. Commonly, districts pay retiring teachers for part of unused sick days, and perhaps for unused personal days. Severance payments for Indiana teachers average almost $20,000.

In every Indiana school collective bargaining agreement, districts made these commitments without setting aside the money to pay the self-imposed "unfunded" mandates. Finally, in 2001, Indiana law was amended to require districts to fund any future retirement or severance plan on an actuarially sound basis.

These are but some of the examples that deserve wider consideration and awareness. The common existence of these developments should lead to common awareness. Yet, as Freeland states, it isn't just taxpayers and the general public that are unaware of, or misinformed about, what is negotiated. Often the teachers are too. They may approve or reject a contract without knowing what's in it, beyond what the union officers and/or negotiators choose to tell them.

Freeland observed that, "As a rule, the more language that is included in an agreement, the more restricted are the board and administrators in making decisions." Contracts have become longer, more complex, and more restrictive on both management and the members the union represents. A survey in another state, where teachers could request waivers from restrictive policies, found that the greatest number of requests was for waivers from the union contract.

Proposals for Improvement

An analysis of this type would not be complete without some proposals for improvement.

State law must change before public schools will change, because rollbacks in contract provisions are rarely possible without the union's consent. Changes Freeland mentioned or implied include:

1. End mandatory exclusive representation by the unions.
2. Have collective-bargaining agreements expire at the end of their terms, while salaries continue unchanged. 
3. Except for salaries, have terms of the Teacher Tenure Law apply in the absence of a valid agreement.
4. Allow parents to send their children to the schools of their choice.
5. Public funding should follow the student, but parents might be responsible for transportation.
6. Allow schools to exist which have innovative funding mechanisms, such as universal tax credits, or contracts to operate for a profit, such as the Edison Schools, but which still satisfy the education mandate in the constitution.
7. Move to a market system in which everyone attempts to ensure the success of the process. (Freeland said that in non-market systems they attempt to ensure the failure of the process. That's a bit strong. They may not be equally motivated to ensure success, but that's not the same as saying everyone is attempting to ensure failure.) 
8. Include teachers in the state's Open Door Law. As public employees, paid with public money, by citizens who use the public system or are heavily affected by it, teachers should be included. 
9. Place collective bargaining agreements on the ballot for public approval before they can take effect.

Signs of Hope

Freeland is under no illusion about the inclination of politicians to accept these proposals, even though the problem with the system of public education is the system itself. Signs of hope are the 1995 Indiana prohibition of "fair-share" fees, and the public's recent willingness to discuss changes in Social Security--which for decades had been termed the "third rail" of American politics, political death to those who touched it.

In Indiana, about a dozen local associations are not affiliated with any state or national union. Several openly reject union labels or tactics, such as the use of the strike, or "fair share" fees. They are successful, as are a number in the neighboring state of Ohio, but most teachers are unaware of this. A teacher doesn't have to be anti-union to wonder why they should pay dues of $500-600 or more while other teacher locals function very nicely, including negotiating, on teacher dues of $150 or so annually.

Concerns About, and Contradictions In, Freeland's Study

As worthy as this study is, a few quibbles might be raised.

One concern is Freeland's view that, "The factory model does not work well in an educational setting." The statement is basically correct except for the implication that the word "education" is interchangeable with "school." The two are not the same. Collective bargaining was not adopted to deal with education. But "school" is another thing entirely.

The factory model was adopted for negotiations because schools are based on the factory model. Teachers are public employees. Public schools emerged as a way to "process" youngsters who move through the system as if on an assembly line, admittedly a very slow one. Unfortunately, unlike industry where a defective product is improved or removed from the belt, students continue the ride until they remove themselves or emerge at the end regardless of their condition. Both teachers and students are interchangeable parts. One leaving is replaced by another, almost at random.

Another quibble relates to the title: "Public Education Without Romance." There's nothing wrong with that as such, but in at least one instance the author falls for a bit of romance himself, and he's not the only one. Freeland said,

During the years preceding the early seventies, the National Education Association transformed itself from an association of professional educators into a labor union.

As one who was there, the National Education Association, founded in 1857, was never an association of professional educators in any meaningful sense. For the first 100 years of its existence, the great majority of teachers did not belong to the NEA. The teachers who did join prior to the 1950s had no meaningful role, rarely rising to any position of leadership. Even in the 1950s, when in Pennsylvania the state presidency began alternating between a teacher and an administrator, the position was still a one-year, unpaid position with little influence. When the man who was the Executive Director from 1939-1963 retired, he was hailed as "Mr. PSEA." Not one of the presidents who served under him--and they were under him--received such accolades.

A third, minor but glaring error, was a reference to Tracey Bailey, who was the 1993 National Teacher of the Year and former AFT member, but now a critic of unions and their political nature. All true, but then Freeland adds, "She (sic) calls them 'special interests protecting the status quo' and pillars of 'a system that too often rewards mediocrity and incompetence.'" Also true, except Tracey Bailey is not a "she."

Finally, there are a few possible contradictions.

At one point Freeland suggests, "Over time, Indiana's one-deal-fits-all, interchangeable parts system (a true factory analogy) is likely to result in a dumbing down of the teacher population." Shortly thereafter he issues the disclaimer that, "This report does not assert that all, or even most, Indiana public school teachers are poor teachers." Well now, which is it? The state's nearly 30-year-old bargaining law "likely" causes a dumbing down of teachers, yet most are not poor teachers.

Then he cites a professor of economics as saying, "The problem of teacher shortages ... begins in college. There, because education courses are notoriously easy, the worst students end up in the colleges of education." Notoriously easy courses might, and probably do, attract the worst teachers, but easy courses should also attract more than enough teachers to avoid any shortage. And, incidentally, there hasn't been a shortage of teachers in the United States, including in the 1960s when one seemed to exist. Even then there was a large supply of certified teachers. The shortage occurred because so many had no wish to actually teach.

Conclusion

Having said all that, Freeland's report deserves as much attention and discussion as it can get. At the very least it should generate discussion. At its best it could help bring about desired changes.

*Charles Freeland is an attorney in Indianapolis, Indiana, and an adjunct scholar at the Indiana Policy Review Foundation. Public Education Without Romance: The Impact of Collective Bargaining on Indiana Schools, was published by the Indiana Policy Review Foundation. Web site: www.inpolicy.com.

**David Kirkpatrick is an education consultant from Douglassville, PA, who was a career educator and teacher union member beginning in 1964