Collective Bargaining

The Impact of Mandatory Collective Bargaining Laws on a School Boards' Ability to Govern

Based on a survey of Illinois, Michigan and Wisconsin school board members to determine whether their perceived ability to perform legislatively prescribed duties is impacted by the type of collective bargaining legislation enacted within their state.
According to the results of the study, state laws governing collective bargaining significantly influence the perceived ability of school board members to carry out legislatively prescribed duties. Board members from states with mandatory bargaining felt a greater impact on their ability to govern than individuals representing boards from a non-mandatory state.

The Case Against Collective Bargaining in Public Education

Discusses the reason for Kentucky School Boards Association's opposition to collective bargaining legislation for teachers. Dr. Scott maintains that the KSBA has consistently opposed bargaining for school employees because: the public is opposed to it, it is expensive, it diminishes local control of education, and, in the final analysis, it is detrimental to the educaitonal process. 

Public Sector Bargaining: An Assessment

Dr. Sylvester Petro's study, " Sovereignty and Compulsory Public Sector Bargaining," published in 1974 in the Wake Forest Law Review, was perhaps the first definitive work on public sector collective bargaining. Now, 18 years later, he has updated his thoughts on the subject with another article, Public-Sector Bargaining: An Assessment. He writes:

"This survey of developments during the last fifteen years in public sector collective bargaining suggests two conclusions:

  1. Bad as our labor policies have proven to be in the private sector, where they originated, they may be producing even worse results in the public sector, where they have been transferred on the basis of a misleading analogy.
  2. The states and localities which have adopted public-sector collective bargaining (psb), despite its incompatibility with both effective government and the ideal of faction-free representative government which animated the founding of this country, find themselves in conditions less satisfactory than those which prevail in the states which have rejected collective bargaining in the public sector."

Collective Bargaining and the Freedom to Learn

Russell Kirk presents a further aspect of academic freedom to school personnel administrators, namely that of the freedom to learn. Although the speech was made prior to the November elections, we feel it still has a worthwhile message regarding teacher union political activity.

In an article that was originally published in Canadian Public Policy, Sandra Christensen tackles the subject of Canadian federal sector pay comparability and argues for a retrenchment in the current system in favor of independent pay boards which would apply certain criteria in setting pay scales.

The Costs of Collective Bargaining in the Modesto School Districts: A Case Study

According to the labor relations industry, the standard measurement for the success of any labor relations framework is the degree of resulting "labor relations harmony" and "labor peace." In public employment, however, another consideration is gaining equal, if not greater importance in the face of growing tax revolts and budget constraints on public officials. The cost aspect of the collective bargaining process is in dire need of accurate and reliable assessment techniques if forecast and fiscal planning are to be of any practical value. Local government fiscal insolvency, after all, has occurred often enough to deserve serious attention to its various causes and methods of avoidance. The Costs of Collective Bargaining in the Modesto City School Districts: A Case Study, is limited to the costs of the bargaining process itself and does not include results of bargaining, such as salary increases and fringe benefits.

Public Sector Collective Bargaining Substantially Diminishes Democracy

by Robert S. Summers

The conflict between political democracy and public sector collective bargaining manifests itself in a variety of important dimensions. First, laws providing for such bargaining divide governmental authority to make and administer law and budgets, and redistribute a share of this authority to private entities--mainly unions--who are not elected by or accountable to the public. This diminishes democracy, for it curtails the extent to which the public, through its elective and appointive representatives, determines the nature and manner of conferral of such government benefits as public school education, police and fire protection, and the like. Second, bargaining statutes restructure processes for the exercise of public authority. They substitute collective bargaining for democratic procedures securing the public an opportunity to participate in ongoing public law making and budget constructing processes. This, too diminishes democracy, for it eliminates or reduces opportunities for public participation in government activity, and denies those members of the public who turn out to be on the losing side a fair chance to be heard on matters of vital importance to them. Third, bargaining laws (with and without the right to strike) alter the outcomes of public processes for making and administering laws and budgets. This, too, curtails democratic self determination insofar as these outcomes vary from what the public otherwise would have chosen through its elective and appointive representatives. Fourth, public sector bargaining eliminates or reduces public accountability of participants for their share in the foregoing processes and outcomes. Unions cannot be voted out of office. Nor can collective bargaining agreements be "repealed" under these laws (without union concurrence). Further, bargaining blurs the lines of accountability of public officials who share the exercise of public authority with unions. All this decreases democracy, too, for public accountability of officials is one of the primary features of a democratic order.

The essentially non democratic and anti democratic character of public sector bargaining is, in substantial measure, inherent. It can be seen merely by reflecting on the various conflicts between the requirements of political democracy and the intrinsic demands of public sector collective bargaining. Yet bargaining is objectionable on still other grounds, too. In sum, public sector bargaining laws are not good for society.

I. Introduction

My thesis is that public sector collective bargaining (even without the right of union members to strike) substantially diminishes democracy. My aim is to demonstrate the validity of this thesis. I will also show that empirical studies of the actual social effects of public sector bargaining are not required to establish the validity of my thesis.

The conflict between political democracy and public sector collective bargaining manifests itself in a variety of important dimensions. Thus, public sector bargaining divides public authority and redistributes a share of it to private entities--mainly unions--who are not elected by or accountable to the public; restructures processes for the exercise of that authority to enable these unions to participate in its exercise according to the traditional mode of union functioning, namely collective bargaining--itself an adversarial process; alters in varying degrees the outcomes of these processes for the exercise of governmental authority and thereby modifies the benefits conferred (and their costs) and brings some discontinuation of benefits (strikes); eliminates or reduces public accountability of participants for their share in these processes and outcomes; and undermines the general conditions for healthy democratic governance within society at large.

Democracy is a high priority value in our society primarily because it secures the realization of important "process values."2 Such values are realized in the course of the workings of democracy, and are prizeable even where the outcomes of democratic processes are bad. These values include (1) determination by the public through elected representatives and their appointees of the nature and manner of conferral of public benefits, (2) direct public participation in ongoing governmental processes of lawmaking and law administration, (3) fairness of those processes, especially to the losing side, and (4) accountability to the public of participants in those processes. The various conflicts between political democracy and public sector collective bargaining entail significant sacrifices of all the foregoing process values. To develop my thesis in concrete and meaningful terms, it will be necessary to focus on a specific context. Thus, my illustrations will be drawn from the conflict between democracy and collective bargaining at the local level in the field of public school education. My thesis, however, also applies (mutatis mutandis) to public benefit conferral at the state and federal levels as well, and to benefits other than education.

II. Authority To Make Public Law (and Policy), to Create Public Budgets, and to Interpret and Administer Law and Budgets

Statutes establishing public sector collective bargaining redistribute governmental authority from elected officials and their appointees to private, non-elected and non-accountable entities called unions (and to various arbitrators and other third parties). This redistribution of political authority inherently diminishes democracy. Of course, such statutes do not in so many words recite that they are redistributing formal governmental authority. If a "truth in legislating" law had required such candor, the public sector bargaining statutes would probably never have been enacted. These statutes disguise the redistribution of public authority in the language of collective bargaining.3

Few would deny that the authority to make public law and policy, to create public budgets, and to interpret and administer the resultant law and budgets is governmental authority. Moreover, few would deny that in a political democracy this kind of authority is characteristically conferred upon publicly elected officials and their appointees, not upon private parties or entities who are neither representatives of nor accountable to the public. Yet public sector collective bargaining statutes carve out a vast portion of this authority and require that elected officials and their appointees share its exercise with private, non-elected entities--unions (and various third parties).

In the absence of bargaining statutes, public officials and their appointees are not required to share governmental authority with private entities in order to make and administer public laws and budgets. Rather, their authority is sole and exclusive. Under bargaining laws, however, elected officials and their appointees are required to share governmental authority with unions and other private entities who do not in any way represent the will of the public. This, in itself, substantially diminishes democracy. The basic democratic process value that is thereby sacrificed is simply that of public self determination of the nature and costs of governmental goods and services. It will be recalled that a "process value" is prizeable regardless of the nature of the outcomes of governmental processes for the exercise of authority. Even when these outcomes are not good, it remains a virtue of these processes that their outcomes are arrived at by the public rather than by a dictator or private syndicates.

Public sector bargaining statutes sacrifice the democratic process value of self determination with respect to the making of public law and policy, the creation of public budgets, and the interpretation and administration of these laws and budgets. The budgetary facet of the sacrifice is especially noteworthy. Would our founding fathers, who vigorously opposed "taxation without representation," today endorse the creation of public budgets partly by parties not themselves elected by the people (or appointed by elected personnel)? It is most unlikely. And would unions themselves be quick to oppose the conferral of public law making authority on private interest groups such as agricultural organizations in matters of agricultural policy or, at the local level, churches in matters touching the church-state relation, or textbook companies in regard to facets of the public school curriculum? It is almost certain that unions themselves would oppose such actions, and precisely on the ground that they would dramatically diminish democracy.

The redistribution of governmental authority pursuant to statutes establishing collective bargaining inherently diminishes democracy. That is, empirical studies are not required to confirm this. Of course, the diminution is not something that occurs merely upon formal enactment of such statutes. It occurs only when unions are formed and they step into the role of joint makers and administrators of public laws and budgets. But no one denies either that the relevant unions have been formed or that they have occupied the role spelled out for them in the statutes.

Observe also that the validity of this conclusion that public sector bargaining diminishes democracy does not depend on any showing that after the introduction of bargaining, public participation fell off from some previously high level.4

It is now important to anticipate and respond to several objections. To lend concreteness to the objections it will be well to illustrate them with examples from the public school context.

First, proponents of public sector bargaining may respond that when, for example, a school board engages in collective bargaining with a teachers' union the two are not making public law or creating public budgets. Nor are they interpreting and administering public law and budgets when negotiating with respect to the application of school policy to an individual teacher or when engaged in "grievance" arbitration. Rather, so the argument goes, they are merely bargaining over "terms and conditions of employment" to be embodied in a "collective bargaining agreement," or merely interpreting and applying the existing agreement, just as do employees in the private sector. Hence, the authority being exercised is not, on this view, essentially governmental authority anyway, and thus poses no threat of any kind to democracy.

The foregoing argument trades in labels and ignores reality. A public employee collective bargaining statute typically carves out a large portion of formerly exclusive legislative and budgetary jurisdiction and requires that the agency share that jurisdiction with unions in the guise of "bargaining over terms and conditions of employment." In the educational field, such matters as the length of the school day, class size, teacher recruitment and retention policies, wages and fringe benefits, and much else is taken to fall within the phrase "bargaining over terms and conditions of employment." Yet decisions on such matters are decisions of public law and policy. Indeed, collectively they go far to determine the very nature and quality of the benefit the government unit exists to provide. The fact they are not embodied in school board bylaws or regulations but in a stack of stapled paper called a collective bargaining agreement does not alter this fundamental fact. In public employment it simply is not possible to divide authority up in the way pro bargainists advocate without substantially diminishing democracy. What are, to bargainists, merely "terms and conditions of employment" to be bargained over in truth comprise the very subject matter of public law and policy. Public employment is fundamentally different from private sector employment. The "employer" is a public democratic agency representing the will of the public. The job of that agency is to confer a public benefit. It cannot do this without employees. Yet that agency cannot be required to forfeit to employees acting through their union basic authority over the nature and quality of the benefit to be conferred without substantially diminishing democracy.

The foregoing analysis is equally applicable to the budgetary side of democratic public benefit conferral. No teachers' union would be happy to learn that a process akin to collective bargaining had been instituted to determine the price of books supplied to the district with the district obligated to bargain in good faith and engage in impasse resolution with a previously screened panel of, say, three book companies. At this point, those teachers who are taxpayer citizens living in the district would be almost certain to rise up and say: "The book companies have no right to co-determine in this way how public money is to be spent. There can be no taxation without representation, and the book companies do not represent the public."

By the same token, teachers' unions do not represent and are not accountable to the public, yet when they bargain over wages or other economic items pursuant to a public employee collective bargaining statute they co-determine important items in the school district budget. This is not to say that what they thus co-determine will always be final. Some school districts put the entire budget up to a vote for approval or rejection. When this occurs, the public may have the last word (and even then it cannot discriminate within that last word between particular aspects of the budget). But in many districts, public votes on the budget are not taken, or when they are, salaries and other like items in any collective bargaining agreement are not reviewed because they are not yet agreed upon via collective bargaining at voting time.

Similarly, the interpretation and administration of public law and public budgets is characteristically a governmental function in a democracy. Yet union negotiation and outside arbitration have usurped this function to a considerable degree, not only in the public school field but in other fields of local governmental activity, too. Many interpretational and administrative issues of significance are now resolved not by public school administrators or school boards but through negotiation or arbitration pursuant to collective bargaining agreements calling for maintenance of standards and for "grievance" arbitration. Note that when an outside arbitrator decides school policy in the course of arbitrating a dispute, the relevant public officials--the school board and its appointees--do not even exercise authority to co-determine the outcome (except insofar as they present their case).

 

Second, proponents of bargaining may also claim that the public employee union--a teachers' association, for example--merely shares public authority under a bargaining statute and that the public officials involved--school board members, for example--are not forced by a collective bargaining statute to agree to any particular "term or condition of employment," or to any particular public law or policy. Hence, on this view, the essentials of democratic functioning are preserved.

In truth, the essentials are not preserved. It is little consolation to a school board that it need not agree to a proposal when failure to do so leaves it with no significant freedom of action anyway. Yet commonly a board will not be entitled to alter the status quo at all without securing union concurrence, for the existing contract will bind the board to the status quo. To move away from that position, bargaining norms require that the board give up something in return; hence the board may be induced to do something that it would not otherwise do. The board thus has to "buy" freedom of action. The democratic voice must pay a price to hold sway.

Furthermore, that the union merely shares authority must not be allowed to obscure the fact that the union nonetheless remains a private entity not elected by the public or appointed by public officials and not accountable to the public. The union, even when public spirited, sees its primary role to be that of an arms length negotiator on behalf of its own employee-members' interests. And on many issues--especially economic ones--there will be a genuine conflict of interest between the employees and the government unit. Indeed, the concept of "sharing" authority obscures the highly adversarial nature of much public sector bargaining. It is not too much to say that bargaining statutes set up countervailing power in the form of unions with various legal rights. But unlike in the private sector where this power exists to countervail private corporations seeking profit, public sector bargaining laws set up private power centers to countervail public democratic functionaries such as school boards and city councils.

Third, it may be said that the union is not really a private non-elective and non-appointive body. Rather, the individuals who make up a teacher's union, for example, are all public employees appointed by the board. On this view, when teachers engage in bargaining one public arm merely deals with another public arm. But this analysis is faulty. The individual teacher is not appointed as a prospective co-determiner of school policy and budgets who is accountable to the public. The individual teacher is appointed as a teacher. As such, the teacher cannot be viewed as even indirectly representing the public when exercising through bargaining various legislative, budgetary, and administrative jurisdiction. Moreover, it is not the individual teacher who engages in bargaining. Under the statutes, the employee bargaining representatives are union designates, and may even include persons who are not teachers employed by the district. Further, it is the task of union officials to represent the teachers in a genuine adversarial fashion under public sector bargaining statutes. Union officials are not elected, even indirectly, by the public, yet under such statutes they have joint authority to co-determine the law and the budget in relevant respects.

Fourth, it may be contended that unions in public employment should be viewed merely as pressure groups of the kind that traditionally figure in the American political process. Collective bargaining statutes merely recognize and regularize the pressure group status of unions. Democracy is thus facilitated, not frustrated. This line of argument also ignores the truth that a collective bargaining statute catapults the union into a unique position within the political process. In the educational field, the union ends up well ahead of the P.T.A., taxpayer groups, textbook companies, and all other "pressure groups" vying for influence upon educational decision making. Unlike these other groups, the union is by law entitled to have the governmental agency--the board--negotiate in good faith solely with the union on all issues falling within the scope of bargaining. Moreover, the union has close proximity to the board and thus is strategically situated to exploit the special advantage it has under the statute. Further, the union has a unique cluster of sanctions, including the threat (or actuality) of a strike. To a school board, a "strike" by a nonteacher organization is likely to cause little alarm. But a strike by the teachers is altogether different. The same is true of teacher "slow downs" or even teacher picketing. The union may also come to have significant local political power, too, and this may be brought into play.

 

III. Processes for Exercise of Governmental Authority

It is one thing to distribute political authority within a system of government and another to specify how--by what processes--it is to be exercised. The processes for exercise of authority, like the distribution of that authority, may be more, or less, democratic in character.

Statutes providing for public sector collective bargaining do not merely diminish democracy by redistributing political authority--the public's right of representational self-determination--to private, non-elected entities called unions (and to arbitrators). These statutes additionally diminish democracy by instituting nondemocratic processes for the exercise of governmental authority. The statutes generally modify preexisting democratic processes (1) to enable private, non-elected entities--unions--to participate in the exercise of governmental authority in accordance with the traditional mode of union functioning, namely, collective bargaining and its corollaries, and (2) to require elected public officials and their appointees to exercise much of their governmental authority only via these modes of union functioning. Again, virtually all would agree that the making and administering of public law (and policy) and public budgets constitutes the exercise of governmental authority. It follows that the processes for the exercise of such authority are essentially governmental, too. Furthermore, in the absence of collective bargaining statutes, these processes would themselves be (and by law) democratic in character.

Thus, in the absence of collective bargaining, governmental units such as school boards would usually be required by law to exercise their public authority to make laws, policy, and budgets in accord with procedures (often legally prescribed) generally having the following features:

 

  • only duly elected officials could vote
  • issues to be voted on would be defined (with or without discussion) by administrators, board members, or some member of the public
  • the public would often (though not always) have advance notice of at least important issues to be voted on
  • there would usually be considerable opportunity for interested members of the public and for board members to gather information and hear opinions prior to voting
  • as to important matters, some form of parliamentary procedure would be followed with its provisions for amendment of and deliberation on proposals
  • at least on important issues, there would usually be opportunity for opponents and proponents to use publicity, media, and other means to rally public support
  • final votes by board members would be taken, with the principle of majority rule controlling
  • resulting rules and policy would be embodied in minutes, board rules and regulations, policy statements, or the like

 

With respect to budgetary matters, important issues would also at least be subject to procedures of the foregoing kind, and in many places the law would provide as well for a public vote on the budget. With respect to the interpretation and administration of law and budgets thus made, the story is somewhat different. Generally, interpretation and administration would be left entirely in the hands of administrators appointed by the board, subject to some review by the full board in "policy" related matters. Of course, administrators might consult in advance with board members and with informal teacher groups. But there is scope for great variety here, and most generalizations are hazardous.

We may justly focus on procedures of the foregoing kinds for creating public law and policy (including budgets, to some extent). The values such procedures are designed to protect are important democratic values--"process" values. One of these values has already been introduced: self determination of the public through its elected representatives (rather than autocratic determination by a dictator or a private syndicate). Note that the democratic law making procedures outlined above provide for voting only by those who are elected by the public. Thus, any departure from this norm puts the process value of public self determination in jeopardy.

But the departures from the foregoing democratic law and policy making procedures (including budgetary ones) wrought by bargaining statutes put other vital democratic process values at risk, too. The two most important of these are public participation and fairness to those who lose on an issue of importance to them. The various procedures outlined earlier generally afford the public notice and an opportunity to be heard. This opportunity and its actual exercise are prizeable regardless of outcome. The potential and actual involvement of the public in this way in the functioning of its governmental processes is one of the hallmarks of a healthy democracy. Beyond the process value of participation there is also the process value of fairness to the losing side. This value, too, is independent of outcome. If a bad outcome is reached by a process in which the losers are not accorded a fair opportunity to be heard on a matter of genuine significance, then we have a double, not a single, vice: a bad outcome and a process that is, in democratic terms, unfair.

To be sure, when legislators passed public sector bargaining statutes they were not asked also to abolish democratic procedures applicable to the functioning of governmental units such as school boards. Such procedures (insofar as they were themselves embodied in statutory or local law) were not explicitly modified. Indeed, if advocates of public sector bargaining had openly asked legislators explicitly to modify these procedures in all the ways required fully to accommodate the intrinsic demands of collective bargaining, it is almost certain that far fewer public sector bargaining statutes would have been adopted.

It will be recalled that public sector bargaining statutes merely state that with respect to "terms and conditions of employment" of public employees, the order of the day would now be collective bargaining and its corollaries. Proponents of bargaining thus claimed that unions would not be engaged in making or administering public laws and budgets. They would only be engaging in collective bargaining over terms and conditions of employment, just as do employees in the private sector. Again, this "argument" trades in labels and ignores reality.

We have already seen that the bargaining statutes carve out vast segments of the legislative, budgetary, and administrative jurisdiction of democratic governmental units and subject the issues thus carved out to a process of co-determination through bargaining with private unions. We may now look more closely at the process of collective bargaining itself and consider how it and its intrinsic demands inherently conflict with the process values of public participation and fairness, and thus further diminish democracy.

The public sector bargaining statutes require that the relevant governmental units bargain with the union involved. Thus, for example, in the school setting, the statutes require that such vital matters as length of school year, length of school day, class size, teacher recruitment policies, and salaries be decided upon through negotiations with private unions. This requirement implicitly excludes third parties, including the general public, yet the democratic process values relevant here--participation and fairness--are ones to be realized by the public. Of course, it might seem possible to have "multilateral" (school board--union--public) rather than merely "bilateral" (school board--union) collective bargaining. This, however, would be inconsistent with the inner logic of union negotiations in which two-sided trading with respect to proposals is called for and would very likely be unworkable.

Although relatively few statutes (or court decisions so far) state that collective bargaining must take place in secret behind closed doors, this is in fact the usual practice. Moreover, leading labor experts insist that this is the only way the process can really work effectively, given its nature.5 (It remains to be seen how the process will work in the tiny handful of states that have recently required public sector negotiations to take place in public.) The secret making of public laws, policies, and budgets, ipso factothwarts the public, and thus drastically delimits the opportunity for members of the public to realize such process values as participation and fairness. It is no answer to say that board members are kept informed of the course of negotiations between the board's chief negotiator and union leaders. The relevant process values are those of the general public, not the board. Without notice and an opportunity to be heard, the public cannot realize these values.

Also, collective bargaining is often prolonged. Whether this is to some extent intrinsic to the process is not wholly clear. Certainly there are numerous features of the process that tend to prolong it, not least of which are (1) the tendency for the negotiators to "test" and "retest" each other, (2) the tendency of participants to review and reconsider various aspects of what is, of course, an inter-related agreement during each negotiating session, and (3) the common tactic of one side trying to wear the other down. Whatever the degree to which delay is intrinsic, the fact is the process is ordinarily drawn out and this wears down those members of the public who try to "follow it." Changes of mind on the part of the negotiators may also cause these members of the public to lose heart. There simply are limits on the extent to which members of the public can be expected to give of their time and attention even when significant process values are at stake. It is hardly an answer to say that the public is without right to complain when members of the public choose not to persevere. Alternative modes of making public law and budgets in the absence of bargaining do not similarly wear the public down.

For an opportunity to appear and be heard to be meaningful, the public participants must feel, too, that what they say will be seriously considered by those before whom they appear. Yet, if what they are saying to a board or at an open bargaining session conflicts with union interests or proposals, it is not likely to be taken seriously at the bargaining table unless there is a showing of support for what the public participants are saying. Although the school board may take what public members say seriously, the board also knows that the union has special legal status in the negotiations and, that even without the right to strike, the union ultimately has and may resort to that weapon on an issue of sufficient importance. (Many labor experts also claim that genuine collective bargaining cannot work without the right to strike.) A realization that unions have such leverage is almost certain to leave some members of the public with a diminished sense of the value of an opportunity to participate in a public meeting devoted to negotiations.

Impasse resolution procedures provided in bargaining statutes also reveal deep tension between collective bargaining and the realization of democratic process values. These procedures are designed to come into play when negotiations falter and call for mediators, fact finders, and even arbitrators to come into action. Some such procedures are intrinsic to collective bargaining, at least if it be assumed that bilateral negotiations alone will not always produce agreements. Yet, not only are these procedures normally conducted behind closed doors and without publicity; the governmental unit is not entitled to act on its own until these procedures have run their course. That the necessity (under the statutes) of following these procedures can seriously interfere with all relevant democratic values may be seen from the following simple illustration. Assume that all voting members of a small school district gather in the gymnasium during a fuel crisis and vote to instruct the school board (which also unanimously concurs) to change the hours of the school day to conserve fuel. If the teachers, union insists on its rights under the usual impasse resolution statutes, the union would be entitled to delay and thus frustrate this public decision, at least until the impasse resolution procedures have run their course.

In some states, impasse resolution procedures call, with respect to certain groups, for compulsory arbitration.6 This is the very antithesis of democratic self determination. Issues formerly resolved entirely by publicly elected bodies or their appointees are resolved instead by functionaries who are neither elected by nor in any way accountable to the public.

Observe that the conflict between the processes of collective bargaining and the realization of democratic process values of community self determination, public participation, and fairness to the losing side, is, in substantial measure, an inherent conflict. No empirical studies are required to confirm this conflict. It can be seen merely by comparing the nature of the procedures required for the realization of these values with the more or less intrinsic demands of collective bargaining as a process. As we have seen, these demands impinge, at a variety of points and in varying degrees, on the procedures required to secure the realization of democratic process values. Further, the conflict is demonstrable without comparing levels of public participation prior to the advent of collective bargaining with levels thereafter.

Again, it is important to anticipate and respond to several likely counter arguments. First, proponents of collective bargaining may reply that the general public will always get an adequate opportunity to be heard at the very end of the process when the school board is called upon to review and vote on the entire proposed collective bargaining agreement that the board's chief negotiator has negotiated over the preceding months. In truth, however, if the chief negotiator has been doing his job as he should, he will have secured board approval of significant concessions piecemeal over the course of the negotiations, and the entire agreement will, at this final meeting, be in no sense "up for grabs." Thus, the final meeting will usually not be one in which a majority of the board will be in a posture of open-minded willingness to hear argument directed for or against just any part of the package. Indeed, often the board chairman will be highly concerned that no one from the public say or do anything that will upset the "long fought out package deal." Of course, there are and will be exceptional cases.

Second, bargainists may argue that since the public's position on a major issue sometimes prevails (with the result that even a strike may be "broken") it follows that democracy remains sufficiently healthy.7Admittedly, when such an event occurs, this does, in the circumstances involved, demonstrate that, as to the issue (or issues) involved, the democratic process value of representational self determination is not only to some extent realized but also vindicated. Yet it does not follow from this that the other basic democratic process values of public participation and fairness have been similarly realized and vindicated, even as to the issues involved. The public may have all along been effectively excluded from the decision making pursuant to collective bargaining norms and corollary impasse resolution norms. Moreover, we should not make too much of the partial realization and vindication of the public's democratic right of representational self determination in such cases. For every such case, there are numerous others in which this right of the public is greatly watered down by virtue of the necessity of negotiated co-determination of issues, or sometimes even superseded by union predominance in the bargaining process.

 

It is sometimes said that public sector collective bargaining does not and has not significantly altered outcomes compared to what they otherwise would have been or are. Those who take this view may hold that democracy has therefore not been significantly curtailed. We now turn to this topic.

IV. Outcomes of Processes for The Exercise of Governmental Authority

Does public sector collective bargaining alter the outcomes of exercises of government authority? And what, if any, bearing does the answer to this question have on whether public sector bargaining substantially diminishes democracy?

There is now considerable evidence (some of it necessarily inconclusive) that bargaining changes outcomes from what they would have been in the absence of bargaining.8 In the school setting, for example, there is evidence of substantial impact on the content of relevant public law and policy. There is evidence of budgetary impact, too. The influence of bargaining on the interpretation and administration of relevant law and budgets is undeniable. Maintenance of standards provisions, and grievance procedures provided in collective bargaining agreements have become vehicles for substituting collective negotiations and arbitration for much of what was formerly administrative interpretation and application of relevant law and budgets.

That collective bargaining generally alters outcomes, often significantly, should surprise no one. This was the primary objective of its proponents. The introduction of public sector bargaining was designed and intended "to make a difference." Under the statutes, the governmental unit is obligated to bargain in good faith. To do this, the unit must be ready to make some trades. To make trades, the unit must move away from the status quo in some respect. Furthermore, if the governmental unit refuses to agree to union proposals within the scope of bargaining, the statutes provide, as we have seen, for "impasse resolution" procedures in which third party neutrals intervene. For this intervention to be effective--that is, for it to lead to "settlements," these third parties must work out accommodations that inevitably effectuate some union proposals. Legal or not, the threat or actuality of a strike may influence outcomes, too. When statutes mandate compulsory arbitration of unresolved issues (as they increasingly do in some areas), the outcomes commonly differ from what they otherwise would have been.

To the extent that public sector collective bargaining does alter outcomes of processes for the exercise of governmental authority, this alteration may be attributed mainly to (1) the influence of the non-democratic redistribution of authority that bargaining entails, and (2) the influence of non-democratic processes for the exercise of the authority that bargaining entails. It follows that the public, with respect to the altered outcomes, does not enjoy a full democratic right of self determination through its elected representatives and their appointees.

But, as we have seen, even if outcomes are not altered at all, public sector bargaining substantially diminishes democracy, inherently so. Bargaining requires the sharing of governmental authority with private entities. Bargaining--its intrinsic demands--excludes or restricts public access to law and budgetary processes and reduces opportunities for public influence on those processes. As a result, bargaining sacrifices vital democratic process values: public self determination through elected representatives, public participation in the exercise of governmental authority, and fairness to those members of the public who turn out to be in a minority. Recall that process values are prizeable regardless of outcomes. Even if outcomes remain as they would have been in the absence of bargaining, these process values are sacrificed under a bargaining statute.

V. Accountability for Outcomes and for The Functioning of Process

Public sector collective bargaining eliminates or diminishes the accountability of participants in governmental processes for their share of the responsibility for outcomes and for the way the processes function. Bargaining, therefore, diminishes democracy in a further fundamental way. Accountability is a vital democratic process value.9 It helps secure and is a corollary of the process value of public self determination through elected representatives.

How does public sector collective bargaining eliminate or diminish accountability? First, it redistributes governmental authority to one major participant--the union--who is not publicly accountable at all for its actions. Under a bargaining statute, the voters of a school district, for example, do not elect a union, nor can they vote a union "out of office" after it has successfully negotiated a collective bargaining agreement objectionable to the voters. This particular law making and budget creating entity is neither elected by nor accountable to the public. And even if the voters do vote out the school board or part of it, the union remains in place, and so, too, the objectionable collective agreement. Indeed, even if the voters vote in an entirely new board, the board will not have authority under the usual bargaining statute to repeal the objectionable agreement. That can only be done, term by term, via future collective negotiations with the union. This is not true, however, in the absence of collective bargaining. Where the governmental agency is not thus hamstrung, the public voice can be heard and translated into action. Existing law, policy, and budgetary matters can be amended, altered, even repealed, more or less freely, in accord with democratic will (to the extent feasible).

It may be argued that at least the publicly elected officials can be voted out and that this is sufficient. But, as already indicated, this is not sufficient to afford the public full accountability for past actions of the bargainers where "accountability" does not include relief from those actions. Furthermore, a bargaining set up significantly diminishes the extent to which the public can effectively vote out and thus hold to account even those participants in the process who are elected officials. For the bargaining process itself affords such an official a whole range of excuses for voting as he or she did--excuses which may distinctively blunt or deflect public criticism--and thus influence voting. These excuses include the following: "But if I had voted the other way, there would have been a strike or serious disruption--our alternatives were limited;" "A deal with the union had to be negotiated as a package--there were some things I liked and some I didn't, but I didn't have the choice to vote for these one at a time--I had only the choice of voting on them in the context of the parts of the package then being negotiated."

Beyond potentially credible excuses of the foregoing nature that are peculiarly attributable to the bargaining process and which may blur the lines of accountability and thus "save" an official from recall at the polls, the bargaining process undermines other conditions required for ready accountability at the polls. The public may find it difficult, given the extended and non public nature of the process, to accumulate reliable evidence of the piece-meal votes of officials over the course of the bargaining process. The public may be left only with the final general votes of approval or disapproval of the entire package embodied in the proposed collective bargaining agreement. Yet, at this stage, the demands of the bargaining process require that the entire package not be up for grabs. At least a majority of board members will at this point be more or less "committed." Although it may still be possible and justified to vote them out for having come to this position, the process itself could not work efficiently if such a state of affairs (majority board support on at least a number of matters prior to final vote) could not be achieved. It is possible that some voters perceive this predicament of the majority and decline later to vote them out partly because of it.

Lack of information, lack of clear cut issues, and the availability to officials of bargaining-generated excuses, then, all combine to diminish the accountability of public officials who are forced by statute to make and administer public law and budgets through collective bargaining (and its corollaries). Moreover, the other major partner to the process--the union itself--is not publicly accountable at all.

It may be argued, however, that as to monetary issues, the public can always hold the governmental unit accountable through public votes on the budget. This, however, is not the safeguard it is often assumed to be. First, it is a safeguard only when provided by law, and it is not generally provided for except in the field of public school education. Second, even within education, not all districts vote on the annual budget. Third, of those that do, often important monetary issues (including the salary feature) are still subject to negotiations at the time of voting. Fourth, a great deal of organized effort may be required to vote down a budget and it is at best a "blunderbuss tool."

VI. Conclusion

In all the foregoing ways, then, public employee collective bargaining diminishes democracy. It is not good for society in still other respects, too.10 And we have not yet told the whole story, even with respect to democracy. The most objectionable counter-democratic feature of bargaining may be that it undermines the conditions required for healthy democratic governance throughout the society. Democracy depends on such "citizen" virtues as public spiritedness and willingness to participate in community affairs. Yet, public sector bargaining does not lead to the nurture and cultivation of these virtues. On the contrary, it stifles them, and at the grass roots. Indeed, bargaining, especially when itself solemnly enshrined in public statutes, authenticates and positively symbolizes a fundamentally nondemocratic mode of decision-making--a form of interest group syndicalism (however peaceful).

In this essay, little has been said about the strike, and it is true that most states do not legally permit public employees strikes. Before noting the bearing of strikes and strike threats on democracy; it is important to stress that in the public sector there is a more apt name for this kind of occurrence, namely public benefit discontinuation (or some form thereof). When strikes do occur (and bargaining laws have made them far more frequent) the very functions of government are terminated (or put at risk). The public is often denied governmental goods and services. This is the very antithesis of democratic self determination of peoples. The discontinuation of public benefits, whether the union ultimately achieves its ends or not, diminishes social morale and leaves citizens with a sense of powerlessness that can only erode public spirit. The strike--especially the successful one contrary to law--may also teach social lessons, especially for the young. Indeed, it may even teach that democracy is a low-priority value.

The undemocratic character of public sector collective bargaining (as well as other objectionable features) is only now being clearly perceived. Many factors account for the delay: a false analogy to private sector labor relations, an egalitarian preoccupation with according equal rights (an power of control) to all types of employees--public as well as private, a belief that just any social process can be engrafted upon almost any other social process without significant sacrifice (or structural change), and perhaps above all else, the blinding and self deluding influence of labelistic thinking.11

Whether the future holds the immediate prospect of widespread repeal of bargaining statutes is difficult to say. The very institutionalization of such a process imports its own self-sustaining norms and entrenches supporting interests--interests that include not merely union members but state wide uion lobbies and state public employment relations boards.12 Nonetheless, we may hope that the recent and continuing efforts to restore democratic authority and procedures in a few states signify the beginning of a promising trend.

Robert S. Summers has been professor of law at Cornell University School of Law for ten years and McRoberts Professor of Research in the Administration of the Law since 1976. He is the author of numerous books and articles in a variety of fields. He took his undergraduate degree in 1955 at the University of Oregon, his law degree in 1959 from Harvard University, and has done two years of advanced work at Oxford University.

Professor Summers wishes to record his indebtedness to Mr. Stephen L. Goodman, Class of 1980 at Cornell Law School, for valuable assistance in the preparation of this article.

20n the nature of process values, see generally, R. Summers. Evaluating and Improving Legal Processes--A Plea for Process Values, Cornell Law Review, 60(1974): 1.

3See, for example, the following general state public sector bargaining statutes: Cal. Gov't Code §§ 3500 et seq. (West); Mich. Comp. Laws Ann. §§ 423.201 et seq.; N.Y. Civ. Serv. Law (McKinney) §§ 200 et seq. See also note 11, infra.

40thers appear to have failed to see how this is so. See, for example, S. Cohen, Does Public Employee Unionism Diminish Democracy? Industrial and Labor Relations Review, 32 (1979): 189.

5For further discussion of the intrinsic demands of bargaining, see, in particular, the remarks of Mr. Harold R. Newman, Chairman of the New York State Public Employment Relations Board, in R. Doherty, Public Access: Citizens and Collective Bargaining in the Public Schools, Ithaca, N.Y., New York State School of Industrial & Labor Relations, Cornell University (1979): 8-10, 26-7, 52-3.

6This is true, for example, in New York. See N.Y. Civ. Serv. Law (McKinney) § 209(4).

7For this viewpoint, see, for example, S. Cohen, Does Public Employee Unionism Diminish Democracy? Industrial and Labor Relations Review, 32 (1979): 189, 192-195.

8One of the most recent studies is Charles R. Perry, Teacher Bargaining: The Experience in Nine Systems, Industrial and Labor Relatjons Review,33 (1979): 3.

9A1most all students of democracy agree on this. See, e.g., J. Lucas, Democracy, London, Penguin Books (1976); C. Cohen, Democracy, New York, Free Press (1971); R. Dahl, A Preface to Democratic Theory, Chicago, U. of Chicago Press (1956).

10For discussion of some of the other respects in which public sector unionism is not good for society, see R. Summers, Collective Bargaining and Public Benefit Conferral: A Jurisprudential Critique, Ithaca, N.Y., New York State School of Industrial and Labor Relations, Cornell University (1976): chs. 2, 3, 5.

11The illegitimate tyranny of labels is so powerful in political life that it may be instructive to set forth by means of contrasting columns the comprehensive set of labels drawn from the world of unionism and collective bargaining that cloaked and, for many, still cloak the substitution of public employee unionism for democratic governance:

Democratic GovernancePublic Employee Unionism

Democratic Governance Public Employee Unionism
democracy"public sector"
government agency"management"
government employees"union
citizens"consumers"
legislative and budgetary jurisdiction"terms and conditions of employment"
public law and policy"the collective bargaining agreement"
public administration"grievance arbitration and maintenance
of existing employment standards"
public debate and public deliberation "collective bargaining with respect to
on public issuesterms and conditions of employment"
political decision making and public"impasse resolution"
compromise
benefit discontinuation"strike"

 

12Indeed, arguments are now sometimes even made against democracy on the ground that it interferes with collective bargaining! See, for example, R. Doherty ed., Public Access: Citizens and Collective Bargaining in the Public Schools, Ithaca, N.Y., New York State School of Industrial and Labor Relations, Cornell University (1979): 8-10, 25-7, 52-3.

Special Report from the Pennsylvania School Boards Association: A 10-year Review of Pennsylvania's Public Employee Relations Act

Presents a thorough and thought-provoking analysis of Pennsylvania's experience with teacher bargaining under that state's public sector bargaining law, Act 195. The report was first published in PSBA Bulletin by the Pennsylvania School Boards Association, and scrutinizes some pertinent provisions of the bargaining law, such as limited right to strike for public employees, their effects, implementation and costs. We reprinted this report to give readers outside the state of Pennsylvania the opportunity to compare that system with other states' and to provide information on one state's bargaining related experience that might prove to be of value in grasping some of the problems involved. One area of research in the field of public sector bargaining which has been seriously neglected and is in need of extensive and conclusive research is the cost aspect of bargaining and the development of a clear and useful method for computing such costs. This is the approach J. Curtis Rose has taken in his report on Pennsylvania's 10-year comprehensive cost of public sector bargaining.

Public Sector Collective Bargaining Substantially Diminishes Democracy.

The conflict between political democracy and public sector collective bargaining manifests itself in a variety of important dimensions. First laws providing for such bargaining divide governmental authority to make and administer laws and budgets, and redistribute a share of this authority to private entities - mainly unions - who are not elected by or accountable to the public. This diminishes democracy, for it curtails the extent to which the public, through its elective and appointive representatives, determines the nature and manner of conferral of such government benefits as public school education, police and fire protection, and the like.

HABIT 6: REFORM COLLECTIVE BARGAINING* by Kirk A. Johnson and Elizabeth Moser Mackinac Center for Public Policy

The sixth and final habit of fiscally responsible public school districts is collective bargaining reform.45 Michigan’s compulsory union law, the Public Employment Relations Act (PERA) requires collective bargaining where employees have unionized, but many of these collective bargaining agreements restrict school administrators’ ability to do their jobs, and therefore unnecessarily block fiscally responsible reforms.

This is not to say that individual employees should not be free to associate in any organization they choose. At the same time, school boards should not necessarily be forced to negotiate collective bargaining agreements and should be free to negotiate individually with teachers, if they so desire.

Every school day, the current widespread collective bargaining regime makes a financial difference in school’s operations, educational environment, and the ability of children to learn. School districts therefore have a fiduciary interest in assuring that collective bargaining is not so burdensome that it diverts precious resources from student learning.

From a 1998 analysis of more than 500 collective bargaining agreements, seven improvements (not already suggested in previous sections) are recommended to assure that these agreements allow effective school management. Many of these problems may be avoided by demanding well–worded contract language. Implementing the seven improvements will dramatically enhance the ability of public school districts to enact needed reforms.

Improvement #1: Strengthen Management Rights Clauses

Every collective bargaining agreement should specifically detail the rights and responsibilities that remain vested in the school board. As elected officials, school board members form the only public body with the legitimate responsibility and authority to operate a school district; neither teachers nor school employee unions have been granted authority by the electorate to undertake this responsibility.

The management rights contract language, or “rights of the board of education,” is the contract provision that establishes school board control over the operation of the school district. School districts should adopt strong management rights clauses that explicitly designate the specific, exclusive rights reserved to the school board, administrators and management.46

Improvement #2: Limit Exclusive Bargaining Representative Clauses

When a public employer recognizes a collective bargaining representative as the agent representing the employees in a defined bargaining unit, PERA grants exclusive recognition to that agent to act for those employees in issues involving wages, hours, and terms and conditions of employment.47 In addition to including such recognition, more than 500 contracts contain a separate provision by which the school board agrees not to negotiate with any other teacher organization.

In other words, if a school board wished to contract with a math, science or professional teacher organization for the purposes of professional development for its staff members (a term of employment), it would first require the union’s permission. School boards should remove exclusive bargaining representative clauses that require such permission before employees can explore opportunities with other professional organizations.

Improvement #3: Remove Mandatory Support Clauses

Many school board members and other citizens mistakenly believe that union membership is required for all teachers working under a collective bargaining agreement. The truth is that there is no statute that requires teachers to either become union members or pay union dues in the absence of a contractual agreement between a school district and a union.

The mandatory support clause (sometimes called a “union security” clause), if included in a collective bargaining agreement, is what forces school employees to pay union dues. School boards that agree to such a clause become union financial enforcers, often by agreeing to fire any employee who fails to pay dues.

School boards should negotiate mandatory support clauses out of their collective bargaining agreements. The coercive and unfair nature of such clauses negatively affects school employees’ morale, productivity and professionalism. Unions that excel in representing their members will have no difficulty attracting and keeping the voluntary support of those members.

Improvement #4: Limit Just Cause” Discipline and Discharge Clauses

“Just cause” refers to contractually established standards of conduct that an employee must breach before he can be disciplined or discharged. Due process is the legal procedure instituted when an employer wishes to discipline or discharge an employee who has breached the “just cause” standard.

“Just cause” is distinct from an “at will” employment arrangement. “At will” means either party may terminate the employment relationship at any time for any reason. The “just cause” standard, on the other hand, is typically applied to employees who have a property interest in the employment relationship. Teachers who have received tenure status, for example, enjoy property rights in their employment relationships.

The “just cause” standard and the resulting due process proceeding for employee discipline or discharge is a burdensome and time–consuming process for districts that wish to remove ineffective, unproductive or even criminal teachers from the classroom. Under this standard, a school board can face increased and unplanned expenses in processing employee discipline and discharge matters, including substantial liability for teacher re–instatement or back pay in the event of an unfavorable arbitration or tenure ruling.

School boards should limit the “just cause” standard to include only tenured teachers and provide a less rigid standard for probationary teachers, who are still being evaluated for their competence. Boards are legally obligated to provide “just cause” employment only to tenured teachers, so they should carefully review their collective bargaining agreements for any language that makes a “just cause” standard applicable to probationary teachers.

School boards and administrators should carefully follow the established seven–point test when building a case for the “just cause” discipline or discharge of a tenured teacher. The seven points include:

• Did the employer forewarn the employee of possible disciplinary consequences of conduct?
• Was the rule or directive involved reasonably related to the orderly, efficient operation of the business?
• Before administering discipline, did the employer properly investigate to determine that the employee did violate or disobey the rule or directive?
• Was the employer’s investigation done in a fair and impartial manner?
• Through the investigation, did the employer obtain enough evidence to prove the employee was, in fact, in violation of the rule or directive?
• Was the rule, directive, and penalty applied fairly and without discrimination?
• Was the discipline applied reasonably related to the gravity of the offense and was the amount of discipline reasonable given the employee’s overall record?48

Arbitrators are unlikely to uphold the discipline or discharge of an employee if the school district does not properly follow and document the steps showing “just cause.” School boards and administrators who adhere to the requirements for “just cause” will avoid unnecessarily costly and unfavorable arbitration rulings.

Improvement #5: Strengthen Teacher Evaluation Clauses

The teacher evaluation plays an important part in a school’s ability to effectively educate its students. School officials must be able to evaluate the competency and performance of each teacher in order to judge how well he or she uses professional skills to help students learn and achieve.

Because each evaluation is part of a continuum that builds over time, a proper teacher evaluation must go beyond the mere “performance” of an instructor in the classroom and address a teacher’s overall ability to establish and maintain a positive learning environment for students. School boards and administrators must keep this focus in mind as they bargain over contract language that affects these evaluations.

Collective bargaining agreements in Michigan, with few exceptions, place more restrictions on school administrators’ rights to evaluate their teachers than do any statutory requirements. Former NEA President Bob Chase acknowledged that, “The heart of education is this: the daily engagement between teacher and pupil, and the commitment that both parties bring to the task.”49 Yet unions such as the MEA (the NEA’s Michigan affiliate) often demand uniformity in the teacher evaluation process, a cookie–cutter approach that ignores the differences in goals, objectives, standards and style between elementary and secondary teaching.

School board members and administrators should use the five points established under the Michigan Teacher Tenure Act when evaluating a teacher’s competency. Unsatisfactory performance in any one of these five points is sufficient to determine that a particular teacher is not competent:

• knowledge of the subject;
• ability to impart the subject;
• manner and efficiency of discipline over students;
• rapport with parents, students, and other faculty; and
• physical and mental ability to withstand the strain of teaching.50

The course of action pursued by the school district with regard to a poorly performing teacher must be based on the extent or severity of the poor performance.

School boards should also remove from their collective bargaining agreements any language that allows teachers grievance rights over the content of a teacher evaluation. The content of teacher evaluations should be left to the sole discretion of school administrators, not to arbitrators in lengthy and expensive grievance proceedings. By making evaluation content a grievable matter, school boards wind up placing the judgment of arbitrators, who do not work with or see the teachers being evaluated, above the judgment of the school administrators, whose responsibility it is to observe and evaluate the teachers’ abilities.

Improvement #6: Replace Seniority-Based Salary Schedules with Performance-Based Pay Scales

Most public school teachers in Michigan are paid according to a seniority–based salary schedule, which awards compensation according to a teacher’s years of experience and level of education. This is in contrast to most other areas of commerce and industry, where employees working under a “merit–based” schedule receive compensation that is commensurate with their job performance and productivity.

Under a seniority–based, or “single salary schedule,” system, individual teachers have a reduced incentive to innovate or excel in the classroom since their level of compensation is not tied to their performance. Most collective bargaining agreements in Michigan establish teacher salary schedules based solely on a teacher’s level of education and years of experience.

These salary schedules are organized into a “grid” which provides for automatic pay increases based upon the number of years a teacher has spent in the district and the kind of college degrees or number of additional academic credit hours he or she has accumulated or both (commonly referred to as “step” increases).

In most school districts, entry level teachers with only a bachelor’s degree and no prior teaching experience receive the base negotiated salary; few districts reserve the unrestricted right to establish the starting salary for a teacher on any step of the pay scale. This makes it difficult for schools to hire high–demand positions such as special education, math or science teachers.

School districts attempting to establish performance–based pay schedules for their teachers have invariably met with union resistance. However some districts, such as Saginaw, have been successful in bargaining a portion of their teachers’ salaries based on the requirement that teachers meet certain district–wide goals adopted by the school board.51

The Michigan Legislature strengthened school districts’ right to create performance–based salary systems when it passed Public Act 289 in 1995, which states in part that, “A school district or intermediate school district may implement and maintain a method of compensation for its employees that is based on job performance and job accomplishments.”52

Improvement #7: Eliminate Class Size Limitation Clauses

The number of students per teacher in a classroom has been an issue in collective bargaining since the first contract negotiations began in Michigan more than 30 years ago. Unions maintain that smaller classes allow teachers to spend more time with each student, thus boosting educational achievement. Consequently, many of Michigan’s school districts have negotiated language that affects class size into their bargaining agreements.

Over a third of collective bargaining agreements in Michigan currently establish a maximum number of students for each class and provide for mandatory teacher salary bonuses any time this maximum is exceeded.

Negotiating smaller class sizes has proven to be a costly arrangement for school districts, especially those with growing student populations. Further, there is little good evidence suggesting that small classes predictably and systematically yield higher student achievement.53 Establishing class size requirements within a collective bargaining agreement restricts the school administration’s decision–making about the most effective use of staff, space and scarce financial resources.

In short, every school district now has the ability through careful collective bargaining to effect reforms that will help meet the demands of parents, taxpayers, students and teachers. School board members in all of Michigan’s school districts must seize the opportunity to transform the bargaining process from an adversarial one into one more focused on cooperatively improving the educational product, increasing value, and protecting the rights of all concerned.

* This text is part of the larger publication: The Six Habits of Fiscally Responsible Public School Districts. Copyright © 2002 by the Mackinac Center for Public Policy. Posted on the Mackinac web site on Tuesday, December 03, 2002. Republished here in the Government Union Reviewby permission. 

ENDNOTES

45 Much of this section is adapted from La Rae G. Monk, “Collective Bargaining: Bringing Education to the Table” Mackinac Center for Public Policy Report, August 1998.Back to Text

46 Ibid., pp. 23-24.

47 MCL 423.211.

48 Grief Brothers Cooperage Corp, 42 LA 555 (1964).

49 Bob Chase, “Running on Empty: Why Our New Unions Must Put Teacher Quality First,” Education Week, Jan. 21, 1998, p 14.

50 MCL 38.101, et. seq.; MSA 15.2001 et seq.

51 Saginaw Public School Master Agreement, 1995-1998, Appendix A, p 70.

52 1995 PA 289, MCL 380.1250.

53 See, for example, Kirk A. Johnson, Ph.D., “Do Small Classes Influence Academic Achievement? What the National Assessment of Educational Progress Shows” The Heritage Foundation CDA Report #00-07, June 9, 2000 at http://www.heritage.org/Research/Education/CDA00-07.cfm and Eric Hanushek, “Some Findings from an Independent Investigation of the Tennessee STAR Experiment and from Other Investigations of Class Size Effects,” Educational Evaluation & Policy Analysis, Vol. 21 (1999), p. 144.

Executive Summary of. Contract for Failure: The Impact of Collective Bargaining on the Quality of California's Schools Riley, Pamela A. with Fusano, Rosemarie, Munk, LaRae and Peterson, Ruben

This Executive Summary is of the most extensive study ever conducted of unionism in California schools, titled, Contract For Failure: The Impact of Collective Bargaining on the Quality of California's Schools, by Pamely A. Riley, Rosemarie Fusano, LaRae Munk and Ruben Peterson.

For far too long, the impact of collective bargaining on the quality of public education has gotten a free ride due to the lack of careful and thoughtful analysis.

In Contrct For Failure Pamela Riley, her co-authors and the Pacific Research Institute have done a thorough accounting, and the cost is a heavy one. This is a major contribution to a better understanding of this thorny issue.

It should be must reading for policy makers and academics who are concerned about public education. I can't imagine that a school board member or, for that matter, a teacher union official, would want to enter negotiations without having carefully read this important new work.

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

The Case Against Public Sector Unionism and Collective Bargaining By: David Y. Denholm

Public sector collective bargaining is a creature of the late 1950s and 1960s. The academicians and politicians who theorized about it and legislated its beginnings can be forgiven for having erred because they were working in a void with no empirical evidence as to how it would work.

Public sector collective bargaining as we know it in the 1990s is a failure. There is a very strong case against it, but the laws which mandate it have given political power to public sector unions, and they will not lightly relinquish the power they have gained. Therefore, the case against public sector unionism must have both theoretical and political dimensions.

To understand the utter futility of using the collective bargaining process to establish equity and harmony in public employment, it is necessary to briefly review the basic premises of our system of government and the fundamental nature of unionism and collective bargaining.

Differences between the Public and Private Sectors

We live in a society with two distinct sectors – the public and the private.

Unionism and collective bargaining are products of the economic decision making process of the private sector of our society. Despite this, the National Labor Relations Act, which was designed for the private sector, has been used, with minor variation, as a model for all public sector bargaining laws. Those who wish to impose collective bargaining on the public sector fail to appreciate the differences between the public and private sectors.

Monopoly v. Competition

The public sector is monopolistic; there is a single source of supply for government services. There is only one fire department, one police department, one system of public education. 

The public sector provides essential services.

 

The private sector is competitive; there are alternative sources of supply for the goods and services produced. There are a multitude of choices in everything from automobile dealerships to grocery stores.

The public sector provides essential services. It is the very nature of government to provide on a monopoly basis the public services which everyone needs.

The private sector provides nonessential services. There are choices involved as to what sort and how much of private sector goods and services to buy and use, whether it be an automobile or a television, or what brand of gas to buy or channel to watch, or whether to own a car or watch television at all.

This is not to say that some private sector goods, such as food, are not essential. But, in many cases, the government provides essentials through programs such as food stamps. Also, it may be argued that many government services are far from essential, but that is an argument against government providing that sort of service rather than an argument against the premise.

Political v. Economic

Public sector decisions are political decisions no matter how great their economic impact. Government makes decisions every day that have profound economic consequences, but these decisions are based on political, not economic, considerations. Decisions that are politically popular but economically ruinous can get a public official re-elected, gut decisions that are economically sound but politically unpopular can ruin a political career.

Private sector decisions are economic decisions no matter how great their political impact. In the private sector, economic decisions that have bad political consequences can make you unpopular, but political decisions that have bad economic consequences can put you out of business.

Sovereign v. Free Contract

Government – the public sector – is sovereign, and no other institution or enterprise in our society is sovereign. Sovereignty is the power to use force – to compel. Under our democratic system, governmental sovereignty is derived from popular sovereignty which we as citizens give to government, within constitutional limits, in the interest of security, and the public good.

Government's sovereignty is obvious in compulsory school attendance laws, the power to collect taxes, and the power to violate personal and property rights in the public interest.

 

A government which is not sovereign is a contradiction of terms

All economic and social activity in the private sector is governed by free contract. You only have a free contract when both parties want one. You cannot be compelled to buy the product of a particular company. Businesses cannot be compelled to join a business or trade organization. Support of churches is entirely voluntary. The list goes on and on.

Some say sovereignty is outdated because it is misunderstood. Some think of it in terms of the "divine right of kings." It is useless to argue that sovereignty is an outdated concept. Sovereignty is not something that government can choose to have. A government which is not sovereign is a contradiction of terms. No matter how pluralistic our society becomes, it is the sovereign nature of government which ensures the order necessary for participation in that pluralism by the individual citizens.

It may be argued that there are compulsory public sector bargaining laws in many states and public order has not broken down. This also misses the point. Whenever the representatives we elected to run the public's business are unable to carry public programs into effect because of opposition from public sector unions, our sovereignty has broken down which is a loss to us all.

That said, let's take a look at the nature and basic premises of unionism and American labor policy.

The Nature of Unionism

Adversarial

Unions view the employer-employee relationship as an adversarial one. Unions believe, or at least want their members to think, that employers are by their nature exploitative and that without the collective power of the union, the unorganized individual employee is helpless against the various forms of capital formation which employers represent.

While this may be true in the private sector, there is no reason to believe that it would be true in the public sector. The private sector is governed by an economic incentive – the profit motive. This system of economics has provided Americans with more goods and services, and a higher standard of living, than any other economic system in the world. But it is not applicable to many areas of the public sector of our economy.

Competition and the profit motive are at the heart of the union contention that employers are exploitative. That viewpoint leads the unions to an adversarial relationship. The absence of competition and profit motive from the public sector should cause us to then ask whether an adversarial relationship is necessary or desirable in public sector employer-employee relations.

It is likely that public officials, both elected and appointed, will find themselves as allies with government workers rather than adversaries in many instances.

Government is in the business of providing services. Providing these services efficiently is what gains votes – the bottom line in politics. This requires well trained and reasonably well satisfied employees. Government is in competition with the private sector to hire these workers. This gives government ample incentives to treat employees well and compensate them fairly. In fact, it is likely that public officials, both elected and appointed, will find themselves as allies with government workers rather than adversaries in many instances.

Monopoly

Unions insist upon a monopoly in representation. If a majority of employees in a bargaining unit desire representation by a union, the union then imposes its representation on the minority.

The effect of giving unions monopoly bargaining power is to make the union the workers' economic sovereign.

The effect of giving unions monopoly bargaining power is to make the union the workers' economic sovereign. The union decides the terms and conditions under which an employer may offer employment, and has the exclusive right to represent employees in grievances. This puts the public employee in the situation of having two sovereigns, the government and the union. Just as a non-sovereign government is a contradiction in terms, so is a dual sovereign.

In theory, collective bargaining brings the employer and the employees to the bargaining table as equals. This is a concept appropriate only to the private sector. Government, because of its sovereign nature, is in great peril when it views a small special interest group as its equal. Such an equal relationship causes broad public concern about the effectiveness of representative government, and can cause widespread voter/taxpayer dissatisfaction with government. Yet a less than equal role for the unions causes frustration for employees who have been led to expect too much from unionism.

Impasses

This brings us to the final element in the nature of collective bargaining – impasses. In collective bargaining it is the role of the unions to make demands and the role of management to respond to those demands. At some point management is bound to find itself unable to satisfy all the union demands. When an impasse occurs, the union must have some means of enforcing its demands. The traditional means of response to management recalcitrance is to threaten a strike.

In the private sector the strike is an economic weapon. The employer faces economic losses through a lack of business, and the employee faces economic losses through a loss of wages. If there is a strike at one provider of a good or service, consumers – the public – can shift to another provider or not purchase at all.

In the public sector the strike is a political weapon. The employer does not suffer an economic loss, and in many cases (e.g., particularly in education where most public sector strikes occur) neither does the employee.

Because of its political impact, the public sector strike is disruptive of the normal political process. Under normal circumstances, various interest groups within society, all of whom have a legitimate interest in public policy questions, exert pressure from various directions on elected representatives. Of these groups, a union of public workers is the only one that has the power, if not the legal right, to unilaterally deprive the rest of society of an essential service. Once this occurs, divergent political forces show a strong tendency to coalesce into a unified voice demanding a restoration of service.

By using a strike or the threat of a strike, the union can dominate the decision process and control the size, cost, and quality of government service.

The only way to restore the service, in most instances, is to give in to the union's demands. Thus, by using a strike or the threat of a strike, the union can dominate the decision-making process and control the size, cost, and quality of government service.

The proponents of unionism and collective bargaining in the public sector, who based the public-sector model on the private-sector model, ignored the essential differences between the

decision-making processes in the two sectors and the conflicts inherent between the nature of unionism and the nature of government.

The Public Interest

In order to fully appreciate the case against public-sector unionism, it is important to understand why public-sector collective bargaining is contrary to the public interest. We must first determine what is the public interest in public employment. This may be many things to many people, but there should be universal agreement that it include the following:

1. A peaceful, stable employer-employee relationship;

 

 

2. Protection of the rights of all public employees;

3. Protection of the right of the people through their elected representatives to control government policy and the cost of government; and

4. Governmental services provided in the most efficient and orderly manner possible.

Based on any objective standard, collective bargaining as it has developed in the industrial or private sector of America's economy, does not enhance any of the above in the public sector.

In 1959 Wisconsin was the first state to enact compulsory public-sector bargaining legislation. Since then more than forty states have followed suit in one form or another.

The proponents of bargaining were astute. They knew that if they told the public that unionism and bargaining in the public sector were intended to give unions a disproportionate amount of influence in the decision-making process, no one would have bought the idea. So they talked in terms of equity and ensuring harmonious employer-employee relations.

On both scores the results of compulsory public-sector bargaining have not only failed to fulfill their promise but have had an effect completely contrary to their intended purpose. As a result, public employees are increasingly hostile to their employers, and there is increasing public hostility toward public workers.

Harmony

The imposition of collective bargaining on public sector employer-employee relations results in an increase in strike activity. In 1958, before the passage of the first public sector collective bargaining law, there were 15 strikes against government. By 1980, after thirty-seven states had enacted compulsory public-sector bargaining legislation covering one or more groups of public, there were 53 6 strikes.

After President Ronald Reagan's firm handling of the PATCO strike in 1981, the number of strikes against government declined by about 50 percent, and the Bureau of Labor Statistics ceased reporting on strikes in the public sector, making further analysis of this issue impossible. Even so, it is worth noting that between 1958 and 1980 in no case did passage of a public sector bargaining law result in a decrease in strike activity.

Compulsory collective bargaining is destructive of a peaceful, stable employer-employee relationship.

Compulsory collective bargaining is destructive of a peaceful, stable employer-employee relationship. This is true statistically (from the facts available from areas which have experimented with it) and can be deduced from the very nature of the collective bargaining process.

Nevertheless, the proponents of compulsory public-sector collective bargaining have argued that such laws would serve to reduce public-sector strike activity. They claim that forcing government to recognize and bargain with unions would remove the cause of strikes by providing formal channels for the resolution of differences.

Some have claimed that collective bargaining legislation, by reducing the number of recognition strikes, would result in a net reduction in public-sector strike activity. Jack Stieber, author of a Brookings Institution study entitled, Public Employee Unionism, is often cited out of context to support this contention.

Clearly, there is little relationship between the incidence of government strikes and state laws regulating labor relations in public employment. Michigan, one of the three states with the largest number of strikes, has had a comprehensive law since 1965, while Ohio and Illinois, the other two, have no state statute providing collective bargaining for public employees. Other state patterns are similarly inconclusive. The one effect of laws that can be documented is that they reduce greatly the number of strikes over the issue of union recognition....

In fact, Stieber recognizes the true relationship between bargaining laws and strikes. The rest of the text indicates this: ... But other issues, particularly wages, have apparently increased the number of strikes sufficiently to more than compensate for the elimination of union recognition as an important issue in states with public employment laws. (Emphasis added)

 

In states which have adopted compulsory public-sector bargaining laws, there is a tremendous increase in the number of strikes – whether legal or illegal.

The Bureau of Labor Statistics of the U.S. Department of Labor began to keep detailed statistics on public sector strike activity in 1958. This database allows us to examine strike activity before and after enactment of bargaining legislation.

A study of this data covering all strikes against government from 1958 to 1980 shows that in states which have adopted compulsory public-sector bargaining laws, there is a tremendous increase in the number of strikes – whether legal or illegal.

A comparison of strikes before and after the enactment of a public-sector bargaining law shows a correlation between passage of such laws and a fourfold increase in strike activity on a national average. These figures are dramatized by examples such as Michigan where there was one strike against government between 1958 and 1964. In 1965, a public sector collective bargaining law was enacted which made strikes illegal. Between 1965 and 1980, there were 759 strikes against government in Michigan. In Pennsylvania, there were 72 strikes in the twelve years prior to the passage of a compulsory public-sector collective bargaining law which legalized strikes in 1970, and 767 strikes in the eleven years following enactment.

On a national average, there have been 1.34 public-sector strikes per year in states prior to passage of compulsory public-sector bargaining laws, and an average of 5.0 strikes per year after passage of such laws.

Equity

Unions in the private sector speak of equity in terms of the workers' "fair share" of the value of production.' No such measure is available to the public sector worker.

If we define equity for public sector workers as compensation comparable to their counterparts in the private sector, it can be easily demonstrated that unionism and collective bargaining have, as a natural consequence, inequity rather than equity.

In the private sector there is little argument that a unionized worker earns more than a nonunion worker doing the same work. Despite the obvious fact that our national labor law gives considerable advantages to unions in organizing campaigns, only about 10 percent of the workers employed in the private sector have elected to be represented by unions.

If a consequence of unionism is higher than average pay, how can this be called equity?

Since unionism is more concentrated in the basic industries where employment is in larger units, it is safe to say that far less than 10 percent of the employers offer employment under the terms of a union contract. The average compensation for work in the private sector is certain to be less than the union negotiated wage. If a consequence of unionism is higher than average pay, how can this be called equity?

Unionism has the same impact in the public sector. This can be shown by postal wage activity since passage of the Reorganization Act in 1971. In 1970 the average postal worker earned $7,777 per year, while the average manufacturing worker in the private sector earned $7,440 per year. The Reorganization Act imposed the NLRA on employer-employee relations in the postal service, ignoring the monopolistic, essential and political nature of the service. (The postal service workforce is very heavily unionized.) According to a report by the General Accounting Office, by 1976 the average pay of a postal worker had risen 69 percent to $l3,127, while the average manufacturing worker’s wage had increased only 57 percent to $11,703.

In 1996, the Fiscal Services Department of the Maryland Legislature did a study on the impact of proposed public-sector collective bargaining legislation. That analysis concluded that public-sector unionism results in an annualized increase in compensation costs of 1 to 1.5 percent. Comparing the compensation of state employees in Maryland to other similar employees covered by collective bargaining statutes over a period of 16 years, the report concluded that if state employment in Maryland had been subject to collective bargaining over that period of time, state employee compensation would have been 29 percent higher.

According to the Bureau of Labor Statistics, average hourly earnings in the public sector in 1996 were $15.06 compared to a private-sector average of $12.72 – a 13 percent difference. Average hourly earnings for unionized public-sector workers that year were $16.85.

Rising public discontent has focused on the public employee, while public employees have taken an increasingly hostile attitude toward the public. Because public-sector collective bargaining is a sacrosanct institution and is very poorly understood by both groups, it is not recognized as the source of the problem.

Employee Rights v. Union Privileges

Another widely held misconception is that compulsory public-sector bargaining laws somehow guarantee "rights" to public employees. Nothing could be further from the truth. In fact, close examination reveals that, if anything, the opposite is true and that compulsory public-sector bargaining laws give powers and privileges to unions at the expense of the rights of individual public employees.

Public employees, like all American citizens, have the right to join a union. This is a right protected by the First Amendment to the Constitution of the United States. No law is needed to guarantee it and no law should violate it. Beyond this, all the so-called rights contained in compulsory bargaining laws are union rights, not employee rights.

Compulsory public-sector bargaining laws give powers and privileges to unions at the expense of the rights of individual public employees.

To illustrate this point, almost without exception, such laws require that the union be the sole or exclusive representative of all the employees in a bargaining unit. This denies employees the right to represent themselves individually or to be represented by another organization of their own choosing. This monopoly power granted to the union is usually carried to the point of denying the individual employee the right to meet with the employer to discuss a grievance unless a union representative is given the opportunity to be present.

This is contrary to the fundamental guarantee of liberty under the Constitution. The First Amendment to the Constitution of the United States guarantees citizens the right to petition the government. Granting unions the exclusive right to represent government employees in their employment relationships with the government denies public workers this right in one of the most basic areas of concern – their jobs.

Unions commonly exploit their monopoly bargaining power by insisting that because they are "forced" to represent all employees, that all employees, having lost the right of representation to the union, should be forced to join or support the union as a condition of employment. This violates each employee's right to freedom of association and gives the union greatly increased power in determining the employment destinies of the employees.

Forcing public employees who are not union members to pay for union representation is based on the idea that union representation is a benefit. It is becoming increasingly clear that union gains for one group of employees often come at the expense of another group of employees, frequently within the same bargaining unit. Forcing an employee to pay for representation that is ultimately harmful to their interest is an injustice.

In addition to contract negotiations, unions also spend a lot of time defending individual employees in "adverse actions" regarding their own employment. These issues often involve absenteeism, insubordination, poor evaluations, etc.

Employees who are bargaining unit members but not union members may have decided not to join the union because they resent the union's role in defending the small minority of employees who are incompetents and chronic malcontents.

Typically, only a few employees in a bargaining unit require such representation and their need for it is chronic. Employees who are bargaining unit members but not union members may have decided not to join the union because they resent the union's role in defending the small minority of employees who are incompetents and chronic malcontents. For these employees, union representation may be the exact opposite of a "benefit." Requiring them to pay for the so-called "benefit" is a classic case of rubbing salt in a wound.

Granting unions monopoly bargaining privileges and the power to compel membership or support cannot be construed as guaranteeing any "rights" to public employees.

The proponents of compulsory public-sector collective bargaining laws play on the public's sense of fair play by saying that denying public employees the right to collective bargaining makes them "second class citizens." There is no constitutional "right" to collective bargaining in either the private or public sector. The U.S. Supreme Court has been quite clear about this in several decisions. All such "rights" are statutory.

Public-sector collective bargaining makes public employees "super citizens" and relegates the rest of the public to second class status.

Rather than the lack of collective bargaining privileges for public-sector unions making public employees second class citizens, the existence of public-sector collective bargaining makes public employees "super citizens" and relegates the rest of the public to second class status.

Public Control

Nor can it be said that public-sector bargaining laws protect the right of the public to control government policies and costs through their elected representatives.

The most fundamental violation of this principle is inherent in the very nature of the laws and leads to their designation as "compulsory" bargaining laws.

Public sector bargaining laws "compel" elected public officials to recognize and bargain with unions. This immediately deprives from the representatives of the people the power to determine whether such recognition and bargaining are, in fact, in the public interest.

Collective bargaining laws create an adversarial relationship between union and employer.

This compulsion to bargain is normally defined as an obligation to bargain "in good faith." There is no clear definition of "good faith," but experience with similar provisions in other laws leads to the conclusion that, despite legislative language to the contrary, the courts have ruled that in order to bargain "in good faith," the employer must be willing to grant some concessions to union demands. Thus, the elected official is in double jeopardy; not only must he bargain, he must make concessions.

By making the union a full and equal partner at the bargaining table, compulsory public-sector bargaining laws deprive the public of its right to participate in policy making. This point was emphasized in a U.S. District Court opinion which upheld the constitutionality of a North Carolina law declaring public-sector union contracts to be void. The Court said:

Moreover, to the extent that public employees gain power through recognition and collective bargaining, other interest groups with a right to a voice in the running of the government may be left out of vital political decisions. Thus the granting of collective bargaining rights to public employees involves important matters fundamental to our democratic form of government. The setting of goals and making policy decisions are rights inuring to each citizen. All citizens have the right to associate in groups to advocate their special interests to the government. It is something entirely different to grant any one interest group special status and access to the decision-making process.

By their very nature, collective bargaining laws create an adversarial relationship between union and employer. This makes strife inevitable. Most public-sector bargaining laws cause problems that result in an impasse which blocks resolution. Usually, this takes the form of mediation, fact finding and arbitration. These systems further serve to deprive the elected representatives of the people of their responsibilities.

The unions believe that no employer will seriously consider a union demand, if it knows that the union has no power to enforce it. To enforce their demands, unions must have the power to strike. As Sylvester Petro put it, "Collective bargaining unsupported by the strike is a sham institution; Government whose employees may strike is no less a sham." Another scholar from the opposite side of the ideological spectrum on the question of unionism, Theodore Kneel, expressed the same sentiment, "Collective bargaining and strikes are like Siamese twins."

Concern about strikes in the public sector has focused around the deprivation of public services. There is no doubt that this is a very real problem, but it distracts attention from an even more important consideration. Strikes against government are disruptive of the normal political process because they tend to coalesce divergent political views for a brief time into a single demand for the restoration of public service. This gives the union disproportionate power and results in government decisions which have short-term political benefits and disastrous long-term consequences.

Public-sector strikes enjoy a heightened degree of effectiveness not shared by private-sector work stoppages.

The usual reaction to the strike is pressure on elected officials to restore the disrupted service. Thus, the victim becomes the unwitting ally of the union. If the cost of restoring the disrupted service is capitulation to union demands, elected officials, caught between angry strikers and an angry public, usually must do so. Thus, public-sector strikes enjoy a heightened degree of effectiveness not shared by private-sector work stoppages.

Professors Harry H. Wellington and Ralph D. Winter, in their Brookings Institution Study entitled, "The Unions and the Cities," focus on this problem concerning the strike weapon:

The trouble is that if unions are able to withhold labor – to strike – as well as to employ the usual methods of political pressure, they may possess a disproportionate share of effective power in the process of decisions. Collective bargaining would then be so effective a pressure as to skew the results of the 'normal' American political process.

 

 

... Since interest groups other than public employees, with conflicting claims on municipal government, do not, as a general proposition, have anything approaching the effectiveness of the strike – or at least cannot maintain that relative degree of power over the long run – they may be put at a significant competitive disadvantage in the political process.

Collective bargaining as an institution is inappropriate to government.




 

There is no doubt that collective bargaining means strikes. There is also little question that strikes against government are intolerable. Therefore, collective bargaining as an institution is inappropriate to government.

Some states in an effort to avoid this problem have instituted compulsory, binding arbitration as a means of resolving labor disputes in the public sector. If anything, binding arbitration is worse than strikes.

Strikes destroy democratic government by giving the public sector union – a very small special interest group – disproportionate influence and therefore effective control of the public decision-making process. Binding arbitration completely removes elected officials from the process.

Binding arbitration, by the very nature of the process, is a 'no lose' proposition for the unions.

Binding arbitration, by the very nature of the process, is a "no lose" proposition for the unions. An arbitrator will never award a settlement that is anything less than management's final offer. The union is therefore able to obtain everything possible through the bargaining process, aided by its political influence, and then go to arbitration knowing that it can do no worse.

In many states which have enacted binding arbitration laws there are active movements to repeal them. But repeal is difficult because the collective bargaining laws greatly increase the political power of the unions.

State legislators often approve binding arbitration because its effect is felt at the local government level. One striking example of this is in Michigan where State Senator Coleman Young was the sponsor of a binding arbitration law. Later, as the Mayor of Detroit, Young said,

We know that compulsory arbitration has been a failure. Slowly, inexorably, compulsory arbitration destroys sensible fiscal management. (Arbitration awards) have caused more damage to the public service in Detroit than the strikes they were designed to prevent.

Clearly, laws which compel elected officials to recognize and bargain with unions in no way serve to protect the right of the citizen-taxpayer to control their government.

Efficient Delivery of Public Services

Finally, do compulsory public-sector bargaining laws in any way promote more efficient or orderly delivery of public services?

As already noted, there is a strong and direct correlation between collective bargaining and strikes which disrupt public services.

Beyond this, union contracts tie the hands of elected officials and make it impossible for them to respond in a timely fashion to economic or natural disasters and emergencies. One only need look at New York City's financial default in the 1970s to see how completely destructive absolute power can be in the hands of public sector unions.

In addition, public sector bargaining tends to telescope the government decision-making process. Contracts frequently deal with subjects beyond wages, hours, terms and other conditions of employment, and directly impact a broad variety of government decisions.

It is the nature of negotiations to make concessions and compromises when faced with a deadline. As a result, many contract agreements are made at the last moment. Elected representatives of the people are then faced with the need to consider, in a very brief time, a document which will affect a wide range of other decisions. There is not time under these circumstances for public review and for informed comment from other interest groups.

Because they create more problems than they resolve, most public sector bargaining bills provide for the establishment of a public employment relations board to resolve problems which arise under the law. These boards are cumbersome new bureaucracies which greatly increase government costs. They are given broad regulatory powers from which locally elected public officials have little or no recourse.

No matter what the real intent of these laws, by any objective standard, they are not in the public interest.

Public sector bargaining laws also lead to such inefficient practices as the collection of union dues at the taxpayers’ expense and giving union officials, who are public employees, time off at full pay while engaged in union negotiations.

It is clear, therefore, that no matter what the real intent of these laws, by any objective standard they are not in the public interest. They represent an expression of the selfish self-interest of public-sector union organizers and, indirectly, the interest of the politicians who enact them in order to curry favor with the union's political operatives.

Since public-sector collective bargaining is so contrary to the public interest, it is also essential to understand how it became so widespread. Public sector collective bargaining is a relatively new phenomenon.

In 1955 George Meany, the President of the AFL-CIO, said, "It is impossible to bargain collectively with the government." And as late as 1959, the AFL-CIO Executive Council was on record as believing that, "in terms of accepted collective bargaining procedures, government workers have no right beyond the authority to petition Congress – a right available to every citizen."

In the middle of the 1950s, some academicians began to toy with the idea that collective bargaining might lead to more harmonious and equitable employer-employee relationships in the public sector.

At about the same time, however, union membership as a percentage of the work force began to decline, and the number of people employed by government began to grow.

Union officials saw the emerging public sector as the new growth industry to replace the dues dollars and political clout they were losing from their decline in the private sector.

In 1958, public-sector union membership was only 1,035,000, or 12 percent of the public-sector work force of about 8.5 million. At that time the private-sector work force was about 43 million and union membership was 16,933,000 or 39 percent.

In the next two decades, the federal government and most states instituted compulsory public-sector bargaining schemes. In addition, the unions found that they could use their political power to prevent any resistance to union organization in the public sector at the local level, that is, once a compulsory public sector collective bargaining law had been enacted.

Between 1958 and 1978, the public-sector work force grew by 83 percent, while the private-sector work force grew by only 39 percent. Public-sector union membership grew to 6,019,000, which was 39 percent of a public-sector work force that by then numbered 15,630,000. By 1978, private-sector union membership had risen to 18,116,000, but was only 20 percent of the work force.

The decision to push for compulsory public-sector bargaining laws was indeed a profitable one for the unions. On the other hand, it was a failure for those who thought that it would lead to better government.

"Collective bargaining and the processes of democratic public benefit conferral are not felicitous bedfellows" – Professor Robert S. Summers.

In 1978, Cornell University law professor Robert S. Summers, concluded his monograph entitled, Collective Bargaining and Public Benefit Conferral: A Jurisprudential Critique, by saying, Collective bargaining and the processes of democratic public benefit conferral are not felicitous bedfellows. While it is possible to shore up these processes through the promulgation of codes for neutrals (and through other reforms), the extent its unhappy effects can be reduced or ameliorated by these means is limited. Abandonment of bargaining is necessary, for this and other reasons. Dr. Myron Lieberman, whose book Education as a Profession in 1956 was one of the first to advocate collective bargaining for teachers, and who was himself at one time a candidate for the presidency of the American Federation of Teachers, AFL-CIO, also became a bargaining practitioner. But in his book entitled Public-Sector Bargaining, published in 1980, Lieberman turns full circle, saying, It would be desirable to have a new organizational structure to replace public-sector unionism, but such a structure is not required to justify deunionizing public employment .... The choice is not between public-sector bargaining and something better. Without in any way idealizing what preceded public-sector bargaining, it was better. Even if one wanted to, it is impossible to go back to the way things were before the emergence of public-sector collective bargaining. It is time to move ahead. The collective bargaining laws have given enormous political power to public-sector unions. At the present time, repeal of these laws, no matter how desirable, is not feasible.

It is time for public officials and the people they serve to devise better policies and strategies for public employment matters. It is time to move beyond the failed nostrums of the past into a better future for public employees and the public they serve.

Teacher Unions and Collective Bargaining in Retrospect. Kirkpatrick, David W

When the Pennsylvania legislature passed Act 195 in 1970, giving teachers and other public employees collective bargaining privileges and the right to strike, David Kirkpatrick was serving as the preseident of the Pennsylvania State Education Association. In years prior to the enactment of the Public Employees Bargaining Act, he had been a teacher/unionist and a supporter of the legislation. He had knowledge and experience of the history of his profession and of the obstacles that teachers had to overcome to win public respect for their profession. Collective bargaining, at the time, seemed the best means for realizing that end.

But that was nearly twenty-five years ago. Today, the pendulum has swung so far in the other direction that teacher unions now present perhaps the greatest impediment to education reform. The intellectual journey that led Dr. Kirkpatrick from the one perspective on the significance of the act to its antithesis is reflected in his article Teacher Unions and Collective Bargaining in Retrospect. 

It has become apparent to him that what is needed to improve America's public schools is greater democracy, by giving the populace the decision of sending their children to private schools. That would result in a number of advantages that would ultimately "transform what teachers do from a job to a profession."

Reflections on the Rationales for Teacher Bargaining Lieberman, Myron Lieberman, Myron

Wisconsin enacted the first collective bargaining law for teachers in 1962. In the Spring of 1992, Louisiana legislators voted down union backed legislation that would have extended bargaining for state teachers. There are some analysts who contend that the decline in the quality of American public school education can be blamed on teacher bargaining laws. Dr. Myron Lieberman offers his Reflections on the Rationales for Teacher Bargaining from the perspective of an educator who has been intimately involved with the issue since its inception thirty years ago.

Stress and Anxiety of Administrators as Related to Collective Bargaining and Participative Management Crisci, Pat E.

A great deal of stress related research has been done to determine the types of stressors which most often affect teachers and school administrators. Involvement of teachers in the decision-making process has been seen as very stressful to administrators, but such participation is considered by teachers to be a major goal in their quest for professionalism.

According to the results of "Stress and Anxiety of Administrators as Related to Collective Bargaining and Participative Management," by Dr. Pat Crisci, et al., distinct differences exist in the attitudes of superintendents and principals toward teacher involvement in making educational policy decisions in Ohio public schools. For example, principals tended to favor collective bargaining as a legitimate means for teachers to settle economic and professional issues with management more than they supported participative management, while superintendents favored teacher involvement through participative management activities. These and other conclusions make this study informative reading.