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Practical Alternatives

Seeking a New Foundation: Legislative and Practical Alternatives to the Current Monopoly Bargaining Model that Will Enhance the Viability of Independent Teacher Groups

by Milton Chappell, Esq.* © 1995, M. Chappell, All rights reserved

Introduction

My work involves providing free legal aid to employees suffering violations of their human and civil rights because of injustices arising from the abuses of compulsory union membership arrangements. These arrangements require that, as a condition of employment, employees either join or pay monies to the exclusive bargaining representative and its numerous affiliates. Such provisions are known by various names – union security, agency shop, fair share, representation, and service fee requirements.

These thoughts result from twenty years’ experience battling the National Education Association/American Federation  of Teachers (NEA/AFT) unions on behalf of the thousands of courageous teachers I represent.[i] These teachers have inspired, and continue to inspire, me with the strength to continue the fight against compulsory unionism.

They are the bulwark against Edmund Burke’s truism:

“All that is necessary for the forces of evil to win in the world is for enough good men [and women] to do nothing.”

It is because such individuals have resisted conformity that the forces of evil have been, and continue to be, restrained.

Background

These views, therefore, express my own beliefs, not necessarily those of the Right to Work organizations. Nevertheless,  these views are not neutral; they contain a strong bias against all forms of compulsion and collectivism. My sole purpose in entering the legal profession was that of defending individualism against the forces of compulsion and collectivism. Nothing in my career has altered that purpose. Instead, my experiences have only reinforced my dedication to individualism and respect for “freedom of choice.”

Therefore, I will neither propose nor support models that help independent teacher groups compete with the NEA/AFT unions under the existing monopoly and compulsory bargaining systems prevalent throughout most of the states.[ii] In sum, I have no interest in creating alternative NEA or AFT unions.

It is also true that most of my experience has consisted of battling the most outrageous forms of monopoly and compulsory collective bargaining by the NEA and AFT unions. Thus, my involvement in more moderate forms of collective bargaining is limited. Moreover, I have no experience in either independent teacher collective bargaining or professional representation.

Accordingly, it is doubtful that I can authoritatively recommend a viable alternative to collective bargaining in public education that will enable independent teacher groups, with a well-organized campaign, to attract a substantial number of teacher members away from the NEA/AFT unions.

I can, however, discuss various bargaining models that exist and raise questions that independent teacher groups must answer as they ultimately decide which model or variation on those models will work for them.

Basic Principles

Before considering the various bargaining models, it would be wise to mention some basic principles that I consider relevant to this discussion. First, I believe strongly that independent teacher groups need to develop and support an alternative model for teacher representation and a governance structure for an alternative national professional teachers’ association.

The NEA/AFT monopoly, and its stranglehold on education and the teaching profession, must be terminated. [iii] Our country’s future and freedom depend on it.[iv] Second, I believe that the more government support there is for monopoly bargaining, the less chance independent teacher groups will have to become a viable alternative to the NEA/AFT unions. The unions wrote and administer the current laws that obviously benefit their monopoly immensely. Consequently, there is a direct inverse relationship between the amount of government support for collective bargaining and the viability of independent teacher groups. Thus, independent teacher groups are the most viable where there is no government support for bargaining at all.

My understanding is that the largest independent teacher groups are in Georgia, Missouri, and Texas, states that either prohibit collective bargaining or in which there is basically no collective bargaining.[v] Each of these three independent teacher groups has more members than the respective NEA affiliates.

Although I personally believe that independent teacher groups should only be professional groups with no government mandated authority to bargain about terms and conditions of employment, some independent teacher groups are understandably wary of allowing school boards and school districts to possess such unfettered power over teachers’ jobs and careers.

Accordingly, independent teacher groups may still want the government to support some limited forms of bargaining. They do so, however, at the expense of their own viability. It is precisely for this reason that I recognize that independent teacher groups, and not I, must make that final delicate choice between the degree of government support of bargaining and the viability of the independent teacher groups. It will involve a most sensitive fine-tuning.

Finally, no matter what model independent teacher groups choose to support, the NEA/AFT unions will remain a formidable challenge. They already operate in all of these models, except one, and they are incredibly adaptable. [vi] Independent teacher groups start, not at the beginning of public-sector or teacher collective bargaining, but after more than two decades of dominance by NEA/AFT unions. Therefore, short of the breakup of the NEA/AFT unions, similar to the breakup of “Ma Bell,” independent teacher groups will always start their organizing campaign “behind the eight ball.” Even under the most favorable model, independent teacher groups will not be operating on “a level playing field.”

Such a pessimistic assessment is regrettable, but this is the reality. Consequently, independent teacher groups will always have to try harder and be better. As long as they remain focused on the needs and empowerment of the individual teacher, however, surely the perseverance of independent teacher groups will yield results.

The Current Monopoly and Compulsory Collective Bargaining Model Is Out One must begin with the proposition that independent teacher groups do not wish to replicate the NEA or AFT operating under the current monopoly and compulsory collective bargaining model present in most states. All coercive power of the NEA/AFT unions rests on two state-imposed privileges: “exclusive” monopoly bargaining “representation,” which exist in thirty-four states[vii] and the District of Columbia, and forced-union dues, which exists in twenty of those states[viii] and the District of Columbia.

These combined privileges force teachers in public schools to accept the representation of the NEA/AFT unions at the bargaining table and then force them to pay for the unwanted “privilege” of union domination. Furthermore, NEA/AFT operatives legally become the only “voice” for all public school teachers, with individual teachers usually prohibited from speaking directly to their employers about their pay, working conditions, and grievances. Union bureaucrats seize control of curriculum and certification. Union lobbyists intimidate both school boards and the legislature into acquiescence. Parents, teachers, taxpayers, and school boards lose effective control over school management. Education and the teaching profession have gone down the tubes.

Of course, independent teacher groups know this. That is the reason they exist. Accordingly, state independent teacher groups in bargaining states must first agree upon, and then enact, legislative change that will end the NEA/AFT unions’ monopoly grip before they can become a truly viable alternative to the NEA/AFT unions.

The Five Broad Bargaining Models The Teacher Collective Bargaining & Union Security Table in Appendix A reveals that the states have basically two views on teacher collective bargaining. Either they have enacted mandatory monopoly bargaining legislation, as thirty-four states have done, or they have not, which is true for the remaining sixteen states.[ix]

Within each view, there is a further division. Among the states with mandatory monopoly bargaining, twenty permit union security requirements and fourteen prohibit them.[x] Among the states that do not mandate monopoly bargaining, nine allow bargaining, but do not compel it,[xi] and seven still prohibit collective bargaining by statute, court decision, attorney general opinion, or custom.[xii] However, the extent and status of compulsory unionism requirements in the four states without mandatory monopoly bargaining statutes and without Right to Work laws are unclear.[xiii]

Considering these divisions and subdivisions, the current teacher bargaining models can be separated into five broad categories:

1)      mandatory, monopoly, and compulsory exclusive bargaining and dues payment as present in twenty states and the District of Columbia – the California model;

2)      mandatory monopoly exclusive bargaining without compulsory dues payment as found in fourteen states – the Florida model;

3)      no mandatory bargaining statute, but bargaining is not illegal and occurs at the will of the local school board as exists in nine states – the Colorado model;

4)      collective bargaining illegal as found in the remaining seven states – the Virginia model; and

5)      member – only bargaining which exists in Europe – the Europe model. Within each model, there are numerous variations.

1. California Model & 2. Florida Model

The California and Florida models together are present in thirty-four states and the District of Columbia. The only real difference between the two models is that in the fourteen states with the Florida model, the union and school board are unable to require represented teachers to either join the union or pay monies to it as a condition of employment. The school board, however, is required to recognize an exclusive bargaining representative, to bargain in good faith over the terms and conditions of employment, and to reach a written collective bargaining agreement.

Nonmembers in both models are “out of the loop” which means they are basically disenfranchised from involvement in the terms and conditions of their employment, as well as the basic workings of the school system. Many nonmembers are denied both membership on school committees and any voice in the day-to-day workings of their school.

No wonder the NEA/AFT unions are so successful in recruiting members under these models. especially, when they are the only voice teachers hear concerning school policy. Of course, independent teacher groups are hardly viable under these stacked conditions. Independent teacher groups must oppose and eliminate the California and Florida models.

3. Colorado Model

The Colorado model has some appeal, as there is no collective bargaining statute or requirement. Whether there is bargaining or an agreement, however, is left up to the political pressure asserted on the school board. Moreover, because the dominant labor model in this country is the exclusive bargaining model, that is the model adopted at will by those school boards who are so inclined or pressured. Since there are no bargaining statutes, guidelines, or restrictions, anything goes.

The exclusive bargaining representative can get whatever its arrogance and political pressure can muster. Although the independent teacher groups can probably better compete against the NEA/AFT unions in this sort of “no man’s land” than in the California or Florida models, this “Wild West” lawlessness model is frightening and should be rejected.

It is based on “survival of the fittest,” which ultimately favors the NEA/AFT unions against the independent teacher groups.

4. Virginia Model

The Virginia model, which outlaws all collective bargaining, reduces the NEA/AFT unions and independent teacher groups to basically professional organizations, interest groups, and lobbyists. Because the NEA/AFT unions have no government support or role, independent teacher groups should and do have the easiest time being viable in this model. Moreover, the playing field in the Virginia model is the most level of any of the models. As has already been noted, the Associated Texas Professional Educators in Texas is more viable than the NEA affiliate, and the three largest independent teacher groups operate under this model.

This model has none of the problems and abuses of compulsion and monopoly. Teachers are professionals, not compulsory labor. Government does not support, nor is it corrupted by, teacher groups under this model. Basically, the Virginia model frees teachers, the profession, and education from the evils of the other three models. Naturally, I favor this model and urge independent teacher groups to consider it seriously.

Undoubtedly, the Virginia model would be the most difficult one to adopt in the thirty-four states following the California or Florida models. The unions are politically powerful in those states and will oppose this model with all their might, as it would be a fatal blow to their unparalleled and out-of proportion power. Moreover, it would take a longer time to change public and legislative opinion in those states to accept such an antithetic model.

Obviously, this model leaves the teachers’ working conditions and career not otherwise mandated by state law to the mercy of the school board, public opinion, and the persuasive powers of the teacher groups. Although I personally favor this model, it is questionable whether, in this day and age, independent teacher groups want both to place their trust in the fairness and goodness of the public employer and to operate on the outside. This is a policy decision that independent teacher groups must make.

Of course, the Virginia model does guarantee that the NEA/ AFT unions are also an outsider and removes the risk that the NEA/AFT unions are unilaterally setting and controlling the terms and conditions of teacher employment, the teaching profession, and education. However, it does so at the expense of independent teacher groups being “out of the loop,” too.

Simply put, independent teacher groups will have to decide which is more important – keeping the NEA/AFT unions out, even if it means independent teacher groups also must stay out; or, making it easier to involve independent teacher groups, despite the risk that the NEA/AFT will get in with, or, perhaps, instead of, independent teacher groups.

5. Europe Model

If independent teacher groups decide they must operate with governmental guarantees of some involvement and input in the terms and conditions of employment, there exists a compromise model – a model that does not currently exist in this country.[xiv] Under the Europe, member-only bargaining model, unions represent only those employees who affirmatively elect such representation in writing, given to both the labor organization and the employer. They do not represent every employee in the bargaining unit.

Accordingly, there can be more than one employee representative and collective bargaining agreement in a single bargaining unit. In some countries, every employee must choose to belong to one of the unions, while in other countries, an employee can refuse to join any union and, instead, negotiate directly with the employer. Some countries limit the number of bargaining representatives in a unit, while others have no limit.

The Europe, multiple, member-only bargaining model – the compromise model – would provide some degree of teacher protection from the unilateral control of the school board while providing teacher involvement in both setting the terms and conditions of employment and the teaching profession, itself. It immediately would allow independent teacher groups to represent and bargain for their members, giving them instant viability, to some degree, with the existing NEA/AFT unions.

It would also offer all teachers, at least where independent teacher groups exist, an alternative to NEA/AFT collective bargaining. Finally, it would provide bargaining protection and promote competition and freedom of choice, as there would no longer be any justification for compulsory unionism requirements.

Because it is not recognized and does not exist in this country, the Europe model would not obtain easy legislative approval. [xv] Much public education and acceptance would be necessary before it could be introduced in the state legislatures.

In addition, school employers would most likely oppose it, as it could require multiple bargaining and agreements within each bargaining unit. Unfortunately, too many school employers enjoy our current system of exclusive bargaining in which they must bargain with only one entity and can blame the union for an employee’s unhappiness with the working conditions. Everyone enjoys having a scapegoat.

Ten Transitional Recommendations

In addition to choosing the broad legislative model independent teacher groups wish to support, they should also support the following ten transitional features. These transitional features should be implemented immediately, while independent teacher groups continue to secure their long-term legislative model. Some of these features will become obsolete when independent teacher groups achieve their ultimate goal; others may continue to be useful thereafter.

1. Resignation at Will

Current members of the NEA/AFT unions should be able to resign and leave the union whenever they wish.  Although the United States Supreme Court in Pattern Makers’ League of North America v. NLRB, 473 U.S. 95, 105 S.Ct. 3064, 119 L.R.R.M. (BNA) 2928 (1985) held that private-sector union members have the right to resign their union membership at any time, Pattern Makers’ does not automatically apply to teachers and other public-sector employees.[xvi] Thus, the right of NEA/AFT members to resign may be limited by time and procedure restrictions contained in the union bylaws, membership application agreement, the collective bargaining agreement, or state statue.

Normally, the NEA/AFT unions have restricted the right to resign to the summer months, when teachers are not thinking about union matters. Of course, this allows the union to tell the teacher who decides to resign at the beginning of the school year that he or she has to wait a whole year – hoping by that time the teacher will have forgotten about resigning, or given up. Moreover, in several states, including California and Pennsylvania, “maintenance of membership” requirements contained in the collective bargaining agreement prohibit union resignation throughout the duration of the multiyear contract, which can be as long as five years. That time frame severely limits resignations.

Obviously, independent teacher groups will have no capability of attracting a substantial number of teacher members away from the NEA/AFT unions as long as those teachers are not allowed to resign at will. Unfortunately, oppression and severe constraints exists in NEA/AFT-dominated public education. NEA/AFT-dominated education must be eradicated before teachers can be free and independent teacher groups become viable. Thus, current monopoly collective bargaining acts should be amended to prohibit “maintenance of membership” requirements or any other restriction on the right of members to enter or leave an organization freely, including the NEA/AFT unions.

2. Mandatory Recertification Elections

There should be a mandatory recertification election once every three years.[xvii] Requiring recertification would allow independent teacher groups to compete more easily with the NEA/AFT unions. Thus, current monopoly collective bargaining acts should be amended to require the exclusive bargaining representative to be recertified (reelected) by a majority of the teachers in the bargaining unit every three years.

Any other bargaining representative, whether a group, organization, or individual, which so requests would be included on the ballot. If there are three or more representatives on the ballot and none receives an absolute majority, then a runoff election would be conducted between the two entities receiving the most votes.

If only one or two representatives are listed on the ballot, and none receives the absolute majority, then the bargaining unit would not have a representative for the next three years, or until 30 percent of the bargaining unit petitions for a new election, whichever comes first.

3. Contract Ratification by All Bargaining Unit Members

All members of the bargaining unit, whether or not they are members of the exclusive bargaining representative, should be able to either vote on or ratify the collective bargaining agreement that covers and affects them all. The current disenfranchisement of nonmembers is simply taxation without representation. It is another example of the tyranny of the NEA/AFT unions. Furthermore, it is a most persuasive recruitment tool for the NEA/AFT unions. Thus, current monopoly collective bargaining acts should be amended to require the ratification of all collective bargaining agreements by secret ballot of all members of the bargaining unit, not just union members.

4. Reduction of Mandatory Subjects of Bargaining

The subjects of mandatory bargaining should be reduced greatly to, for example, the salary, wages, hours, related monetary fringe benefits, and anything else independent teacher groups decided is absolutely necessary to maintain viability. This would greatly reduce the NEA/AFT unions’ power and hold on the profession. It would also greatly increase the independent teacher groups’ ability to compete with the NEA/ AFT unions, as the differences in bargaining ability would neither be so important nor consequential. [xviii] Thus, current monopoly collective bargaining acts should be amended to reduce the required mandatory subjects of bargaining to salary and a few related subjects.

Furthermore, such a reduction would return the obligation to educate children, the methods by which such education is effected, and the implementation of the changing and innovative educational function to the local governing bodies of school corporations, which are composed of citizens either elected or appointed under applicable law, a duty that these bodies should not delegate or bargain away. The relationship between public school employers and public school teachers is not comparable to the relationship between private employers and employees.

It is education and the children that should come first. Teaching is a profession, not menial labor.

5. Mandatory Discussion with Public and Independent Teacher Groups

All other matters previously subject to bargaining which independent teacher groups deemed important should be made subjects of discussion between the school board and administrators on one side, and the public – that is, bargaining representative, teacher, school employee, student, taxpayer, citizen, or any of their representatives, on the other. This would allow the other currently excluded concerned groups – students, parents, taxpayers, non union teachers, and teachers as individuals – to be more directly involved in education. Such a transitional recommendation could also be a permanent, compromise model for those who are reluctant to accept either the Virginia or Europe model, as it falls somewhere between the two.

This proposal will also reduce and dilute the NEA/AFT unions’ power and control over education and teachers. It will, likewise, increase the independent teacher groups’ involvement in the operation of the schools, education, and teachers’ working conditions.

Thus, current monopoly collective bargaining acts should be amended to change the nonsalary and related subjects from mandatory subjects of bargaining to subjects of discussion that the school employer must discuss with the public, including independent teacher groups, before implementation, so that various points of view will be entertained.[xix]

This effort to broaden the input and involvement in education and the matters that most affect teachers may be the most important goal that independent teacher groups adopt.[xx]

The most effective way to become a viable player in public education is to champion the rights of individual teachers, regardless of their affiliation, to affect their profession meaningfully.

This is the overwhelming need of teachers and is most vividly expressed by this Dade County, Florida, public school teacher: Number one, you just have to have teachers more directly involved in education. Teachers feel they’re the last ones to be asked. . . . You just don’t get the teachers’ input into these things. It always comes down from the administrators, from the politicians, from the union, from the public, whatever, but it always comes from the top down. It rarely gets from the bottom up. It’s like teachers aren’t respected, so why should they have their word? And you just get to the point that you really just don’t care about it.

Teachers want professionalism, not unionism. “The real problem facing organized labor is employee preference,” management attorney Andrew Kramer of Cleveland said at the 28th Annual Pacific Coast Labor Law Conference. A substantial number of American workers “have no interest in joining a union,” he continued. Instead, employees want to participate in the workplace “without third-party assistance.” 112 Daily Lab. Rep. (BNA) A-13 (June 12, 1995). Mitchell and Kerchner (1983) argued that union-structured labor relations produce predictable impacts on teacher work contexts and showed how of four alternative work structures – labor, craft, profession, or art – unions drive teachers’ work toward a labor-like condition grounded in technical-rational assumptions. Unions have never propelled teacher work toward profession-like conditions. Instead, according to Marilyn M. Cohn and Robert B. Kottkamp in “Teachers: The Missing Voice in Education,” with teacher union bargaining, “tasks become more rationalized, preplanned, routinized, and directed through inspection and monitoring.”

6. Bargaining, Negotiation, and Grievance-Handling Training

The viability of independent teacher groups requires more than offering liability insurance[xxi] or other member benefits. The alternative national professional teachers’ association must provide leadership and training in bargaining and negotiation techniques to the independent teacher groups and individual teachers. One of the most successful scare tactics used by the NEA/AFT unions against independent teacher groups is their claimed superiority in bargaining and negotiating skills and the corresponding lack of such among the independent groups.[xxii]

Similar leadership and training must be given in grievance handling and arbitration.

Along these lines, the national professional teachers’ association must conduct surveys and research concerning the reasons teachers join the NEA/AFT unions, stay with the unions, and the “needs” these unions fulfill. If independent teacher groups are ever going to have a chance to be viable, they must also be capable of meeting the professional and job related “needs” of teachers.[xxiii]

similarly, the independent teacher groups that are actually serving as exclusive bargaining representatives must be researched and surveyed.[xxiv] How did they become the exclusive bargaining representative? Is there any commonality in their success in defeating or in preventing the NEA/AFT unions from being the exclusive bargaining representative?

7. Independence and Local Control

The strength, appeal, and viability of independent teacher groups exist in their independence – their local control. The national professional teachers’ association endorsed by independent teacher groups must promote and ensure the independence and local control of the bargaining representative. Power and control must always arise from the individual teacher – the grassroots – not from “on high.”

Such a counter attribute to the NEA/AFT unions would be the most compelling trait in ensuring the viability of independent teacher groups. This difference must always be celebrated and championed. That is the key to the viability of independent teacher groups, which they must never forget.

Most of the thousands of teachers I have represented during the last twenty years did not have any major quarrels with the local NEA/AFT union. Their dispute and opposition were to the state and national teacher unions. They would have gladly paid all of the local’s dues or fees, if they had been freed from paying the state and national portions. This was true even if the local engaged in activities they did not wholly support.

Likewise, they would have gladly joined the local, if they had not been compelled to join the state and national affiliates, too. In fact, the unified membership requirement of the NEA is its Achilles’ heel, as it is one of its most despised features or requirements.

Although some have suggested that the unified membership requirement should be made illegal, this may be neither wise nor practical. Regardless of whether such legislation would be legal or constitutional, making unified membership illegal would be counterproductive for independent teacher groups, as it would remove one of the best recruiting tools or arguments independent teacher groups have against the NEA/ AFT unions. I suppose this legislation would only be wise or practical, if independent teacher groups decided they could not be viable and wished, instead, to try simply to improve the current untenable situation involving the unified structure of the NEA/AFT unions.

8. Competition and Freedom of Choice

Like the strength that comes from independence, the independent teacher groups, individual teachers, the teaching profession, and education all will be strengthened by competition and freedom of choice in teacher representation, whether in the bargaining or professional arena. Thus, independent teacher groups must renounce compulsory unionism in all forms and actively work toward the repeal of union security, agency shop, fair share laws, and the enactment or continuation of Right to Work laws.

Stated simply, independent teacher groups should be viable and equal players and spokespeople in education and the teaching profession, but they should never be the only player and spokesperson. To succeed, independent teacher groups must protect the rights of individual educators to join the professional organizations of their choice, including the NEA/ AFT unions. Competition and diversity produce the best product and are potent guarantors of freedom.

The strength and viability of independent teacher groups derive from protecting the individual autonomy of teachers to teach.

According to Cohn, the existing control structures,[xxv] including the controls imposed by collective bargaining and teacher unions,[xxvi] “have tipped the balance of autonomy and control too far toward control of both teachers and students.

The results have been a teaching-learning process stripped of much of its meaningfulness.” Instead, there exists a teaching controlling process, where everyone, including the NEA/AFT unions, wants to control the teachers.

9. The Forbes’ Recommendations

To dispel the NEA/AFT “nightmare,” it might be wise to consider and adopt some of the recommendations Forbes offered in its February 13, 1995, article, “The End of Arrogance.”

Those recommendations, some of which mirror or augment this author’s previous suggestions, entail:

Ensure “Right to Work.” Bar “agency shop” laws that compel non union members to pay public sector unions for the alleged costs of collective bargaining. * * * The teacher union would still exist under Right To Work. But it might turn out that many teachers don’t want to pay $400 to $600 dues a year.

Reform public sector collective bargaining statutes. The teacher union’s monopoly bargaining privilege is the basis of its power – even in Right To Work states, nonmembers cannot negotiate their own terms. * * * Most public sector unions inevitably end up bargaining policy with government. Other concerned groups are ignored – such parties as students, parents and taxpayers. * * * A state level approach to this problem: Allow teachers the right to opt out of union contracts * * * [o]r allow school boards to opt out of mandated collective bargaining.

End “unfunded mandates.” A common union-backed “school reform” tactic is the “unfunded mandate” – state legislation that end-runs local voters to impose duties and costs on school districts. * * *

End NEA headquarters property tax exemption. Unique among unions, this anomaly derives from the federal charter the NEA received [last century] in its professional association days – and is worth some $2 million a year, almost half NEA-PAC’s spending. * * *

End taxpayer funding of retirement benefits for union staff. Judging by Indiana’s example * * *, this could be worth as much as $4.6 million annually to the teacher union. * * *

End release time with pay for teachers to conduct union business.  Currently bargained into union contracts far in excess of private-sector equivalents, this could be restricted at the state level.

End teacher tenure – allow merit pay. Unions block recognizing teachers’ individual performance because it divides their flock. * * *

End government agencies’ collection of PAC contributions for private organizations. Currently, many school districts agree to deduct union PAC contributions from payrolls, cutting NEA fundraising costs and requiring individual teachers to take 20 positive, sometimes difficult, steps to opt out [and making it more burdensome to contribute to the teacher’s favored PAC].

End taxpayer funding of union-sponsored National Board for Professional Teaching Standards. The federal government has already coughed up $20 million, and several states have also kicked in. Author Myron Lieberman, senior research scholar at the Social Philosophy and Policy Center in Bowling Green, Ohio, says that the teacher unions have already repeatedly opposed standardized testing of teachers and students, and predicts that the “standards” will simply be an excuse to jack up salaries.

Give teeth to antistrike laws. Attempts to prohibit teacher strikes have been so ineffective that paradoxically strikes are at least as common in the 40 states where they are illegal. But real penalties can be imposed: A Michigan law now docks teacher pay for every day on strike – and in Iowa, not just the public employer but any district resident can sue if unions break no-strike agreements . . . so they don’t.

Apply private-sector-type restrictions to union encroachment on management. Public sector exemption often means that teachers, spouses of teachers and even spouses of union officials can sit on school boards and vote on salary increases – regardless of any conflict of interest.

Abolish Goals 2000. The NEA was intimately involved in this Clinton Administration initiative. Arguably the groundwork for federal curriculum control, Goals 2000 dangles funds before states in return for adopting [Outcome Based Education] -ish standards – and originally tried to discourage phonics.

Abolish the U.S. Department of Education. The NEA wanted this federal toehold. Chop it off.

Brimelow, supra note 7, at 127.

10. Additional Resources

Four recent books may further expand upon the areas already covered. Marilyn M. Cohn & Robert B. Kottkamp, Teachers: The Missing Voice in Education (1993); Richard Edwards, Rights at Work: Employment Relations in the Post- Union ERA (1993); Charlene Haar, et al., The NEA AND AFT: Teacher Unions in Power and Politics (1994); and Myron Lieberman, Public Education: An Autopsy (1993).

Conclusion

If independent teacher groups promote the freedom of teachers so teachers can go back to teaching instead of merely keeping school, they will be viable. To do so, however, independent teacher groups must listen to and promote individual teachers – the missing voice in education.

 

*Mr. Chappell is a Senior Staff Attorney with the National Right to Work Legal Defense Foundation, Inc., located in Springfield, Virginia. This article is taken from his remarks to the Education Policy Institute’s Alternatives to Collective Bargaining in Public Education Conference, June 29, 1995, at the Atrium Marquis Hotel, Irvine, CA.

 

 


[i] 1 Some of the reported teacher cases in which I have been involved include: Abbot v. San Ramon Valley Educ. Ass’n (NEA), 14 P.E.R.C. ¶91 21,068, 21,075, 21,089 (Ca. PERB, 1990); Albro v. Indianapolis Educ. Ass’n (NEA), 585 N.E.2d 666, 140 L.R.R.M. (BNA) 2406 (Ind.App. 1992), affd and adopted in its entirety sub nom.

Aldrich v. Ft. Wayne Educ. Ass’n, 594 N.E.2d 781 (Ind. 1992); Bromley v. Michigan

Educ. Ass’n (NEA), 815 F.Supp. 220, 142 L.R.R.M. (BNA) 2583 (1993), later proceeding, 843 F.Supp. 1147, 147 L.R.R.M. (BNA) 2423 (E.D.Mich. 1994); Chamberlain v. Federal Election Comm’n (FEC v. NEA), 457 F.Supp. 1102, 99 L.R.R.M. (BNA) 2263 (D.D.C. 1978); Chamberlain v. Garden City Educ. Ass’n (NEA), 1978 MERC Lab. Op. 1145, reh. den., 1978 MERC Lab. Op. 1283 (Mich.); Eastern Michigan Univ. Chapter, American Ass’n of Univ. Professors v. Morgan, 100 Mich.App. 219, 298 N.W.2d 886 (1980), rev. den., 411 Mich. 955 (1981); George v. Baltimore City Pub. Schs. (AFT), 117 F.R.D. 368, 127 L.R.R.M. (BNA) 2180 (D.Md. 1987); Grunwald v. San Bernardino City Unified Sch. Dist. (NEA), 917 F.2d 1223, 135 L.R.R.M. (BNA) 2873 (1990), reh’g granted and opinion withdrawn, 965 F.2d 804, 140 L.R.R.M. (BNA) 2685 (1992), on reh’g, 994 F.2d 1370, 143 L.R.R.M. (BNA) 2305 (9th Cir. 1993, cert. den., 114 S.Ct. 439, 144 L.R.R.M. (BNA) 2680 (1993); Jerabek v. California Pub. Empl. Rel. Bd. (NEA), 2 Cal.App.4th 1298, 4 Cal.Rptr.2d 181, 143 L.R.R.M. (BNA) 2717 (1991), rev. den. (Cal. 1992), cert. den., 113 S.Ct. 56 (1992); Jibson v. Michigan Educ. Ass’n (NEA), 719 F.Supp. 603, 137 L.R.R.M. (BNA) 2226 (W.D.Mich. 1989), remanded, 935 F.2d 270, 137 L.R.R.M. (BNA) 2568 (6th Cir. 1991) (Table), on remand, 143 L.R.R.M. (BNA) 2473 (1992), reconsideration den., 1993 WL 269642 (W.D.Mich. 1993), affd, 30 F.2d 723, 146 L.R.R.M. (BNA) 2969 (6th Cir. 1994); LaBare v. Oregon Educ. Ass’n (NEA), 127 Or.App. 607, 873 P.2d 485, rev. den., 319 Or. 406, 879 F.2d 1285 (1994); Lehnert v. Ferris Faculty Ass’n I MEA / NEA, 500 U.S. 507, 111 S.Ct. 1950, 137 L.R.R.M. (BNA) 2321, reh’g den., 111 S.Ct. 2878 (1991); McAulay v. Board of Educ. of the City of New York (AFT), 76 App.Div.2d 779, 429 N.Y.S.2d 2 (1980), affd, 442 N.Y.S.2d 508, 54 N.Y.2d 656, 425 N.E.2d 896 (1981); Mitchell v. Los Angeles Unified Sch. Dist. (NEA / AFT), 729 F.Supp. 511, 136 L.R.R.M. (BNA) 2823, later proceeding, 744 F.Supp. 938, 136 L.R.R.M. (BNA) 2827 (C.D.Cal. 1990), rev’d, 963 F.2d 258, 140 L.R.R.M. 2121 (9th Cir. 1992), cert. den., 113 S.Ct. 375, 141 L.R.R.M. 2600 (1992); Ping v. NEA, 870 F.2d 1369, 131 L.R.R.M. (BNA) 2082 (7th Cir. 1989); and White Cloud Educ. Ass’n v. Board of Educ. (NEA), 101 Mich.App. 309, 300 N.W.2d 551 (1980), appeal den., 418 Mich. 939, appeal dismissed sub nom. Jibson v. White Cloud Educ. Ass’n, 469 U.S. 875, 105 S.Ct. 236 (1984).

[ii] 2 Independent teacher groups refer to all groups or organizations representing teachers that are not affiliated with either the NEA or AFT. This includes independent teacher groups that are and are not certified as the exclusive bargaining representative.

[iii] 3 See Peter Brimelow and Leslie Spencer, The End of Arrogance, FORBES, Feb. 13, 1995, at 121; Peter Brimelow and Leslie Spencer, How the National Education Association Corrupts Our Public Schools, Forbes, June 7, 1993, at 72; National Right to Work Committee, Forced Unionism is Shutting Down American Education (1995).

[iv] 4 See Charlene Haar, et al., “The NEA and AFT: Teacher Unions in Power and Politics” (1994).

[v] 5 Professional Ass’n of Georgia Educators (PAGE), 3700 B Market St., Clarkston, GA 30021; Missouri State Teachers Ass’n (MSTA), 407 S. 6th St., Columbus, MO 65201; Association of Texas Professional Educators (ATPE), 505 E. Huntland Dr., #250, Austin, TX 78752.

[vi] 6 “The NEA 10 years from now is probably going to be a much different organization than we are today. There is no question in my mind that we are either going to change as an organization or we probably will and should go out of business.”

Keith Geiger, NEA President, quoted by Peter Applebome, “G.O.P. Efforts Put Teachers’ Unions on the Defensive”, New York Times, 4 Sept. 1995, A-1. The Times article also noted that Mr. Geiger “conceded that the NEA could not thrive in the future with the focus on salary and job security issues that largely characterized the organization in the past.”

[vii] 7 Alaska, California, Connecticut, Delaware, Florida, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Maine, Maryland, Massachusetts, Michigan, Minnesota, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Dakota, Tennessee, Vermont, Washington, and Wisconsin.

[viii] 8 Alaska, California, Connecticut, Delaware, Hawaii, Illinois, Indiana (fair share requirements are illegal in all teacher contracts entered into after June 30, 1995), Maryland (only in Baltimore City and four counties), Massachusetts, Michigan, Minnesota, Montana, New Jersey, New York, Ohio, Oregon, Pennsylvania, Rhode Island, Washington, and Wisconsin.

[ix] 9 Alabama, Arizona, Arkansas, Colorado, Georgia, Kentucky, Louisiana, Mississippi, Missouri, North Carolina, South Carolina, Texas, Utah, Virginia, West Virginia, and Wyoming.

[x] 10 Florida, Idaho, Iowa, Kansas, Maine, Nebraska, Nevada, New Hampshire, New Mexico (dues deduction a mandatory subject of bargaining), North Dakota, Oklahoma, South Dakota, Tennessee, and Vermont.

[xi] 11 Alabama, Arkansas, Colorado, Kentucky, Louisiana, Missouri, Utah, West Virginia, and Wyoming.

[xii] 12 Arizona, Georgia, Mississippi, North Carolina, South Carolina, Texas, and Virginia.

[xiii] 13 Colorado, Kentucky, Missouri, and West Virginia.

[xiv] 14 Section 9(a) of the National Labor Relations Act (NLRA) (Wagner Act, 1935), 29 U.S.C. § 159(a), the “exclusive representation” clause, was adopted for the express purpose of resolving the disagreement which arose under § 7(a) of the National Industrial Recovery Act (NIRA) (1933), whether it adopted plural, proportional, or exclusive representation. On February 3, 1934, the NIRA was construed to adopt plural representation, as representatives designated by the majority could act for the majority, but this did not prevent the right of minority groups or individuals to bargain for themselves. Then on March 25, 1934, President Roosevelt settled a threatened automobile strike by providing for proportional representation; namely, that each bargaining committee would be composed proportionately of representatives of each group existing among the employees. The Automobile Labor Board followed this policy. However, other labor boards created by executive order during this period adopted exclusive representation. Lorwin & Wubnig, Labor Relations Boards (1935); Labor and the Government (1935).

[xv] 15 In 1993 Representative Armey (R-Tex) introduced a bill in the 103rd Congress to amend the National Labor Relations Act to adopt the Europe model by repealing exclusive representation and removing the requirements that individual employees join or pay dues or fees to labor organizations. (Copies of the explanatory memo and the bill are contained in App. B.) A variation of the Europe model was also included in the “Home Rule School District Bill” introduced in the 121st (1995-96) Ohio General Assembly by a group of representatives. (A copy of the relevant passages of the bill is contained in App. C.)

[xvi] 16 It is my best legal opinion that any limitation on teachers’ right to resign their union membership is a violation of their constitutional rights. Although no test case has been filed to extend this basic right to teachers and other public employees, the Foundation is currently considering providing legal assistance to some teachers who wish to test their right to resign from the NEA.

[xvii] 17 Because exclusive bargaining representatives are “clothed with power not unlike that of a legislature,” Steel v. Louisville & Nashville Railroad Co., 323 U.S. 192, 198 (1944), they should be subject to the same requirements as the legislature. All our political leaders must stand for reelection periodically. They do not serve until the opposition is able to secure a certain percentage of petitions to call an election.

[xviii] 18 Of course, there are independent teacher groups certified as the exclusive bargaining representative under monopoly bargaining schemes. A report of four such groups in Ohio is contained in Appendix D. See also notes 17,22-24.

[xix] 19 “Discuss” means the performance of the obligation of the school employer through its superintendent to meet with the public at reasonable times to discuss, to provide meaningful input, to exchange points of view, with respect to the subjects of discussion and the operation of the schools; however, this obligation shall not require the employer to enter into a contract, to agree to a proposal, or to require the making of a concession.

[xx] 20 In June 1995, a survey by economists Richard B. Freeman of Harvard University and Joel Rogers of the University of Wisconsin demonstrated that employees generally view “efforts to involve them in company decision making and open-door policies as real and desirable.” According to Freeman-Rogers, the study “confirms that workers – while generally willing to concede power to management – want an active partnership with management, not a passive role.” This study follows an earlier study by Freeman- Rogers released last year that revealed workers wanting a greater voice in operations and working conditions, “but not so much independence from management as to be adversarial.” If they had to make a choice between cooperation and power at work, 67 percent of the workers in the first study would opt for cooperation. “See Frank Swoboda, For Most Workers, Sharing Power Is Just an Olympian Ideal”, Washington Post 25 June 1995, H-5.

[xxi] 21 Some state laws require school districts to insure all employees, including teachers, against any suits arising from their professional duties. Accordingly, teachers should determine whether they need the NEA/AFT unions’ or any other liability insurance. Moreover, the NEA/AFT union insurance specifically does not cover any act not authorized by the school district. Thus, it does not seem to offer any additional coverage that is not already mandated and provided by state law.

[xxii] 22 In fact, many of the independent groups certified as exclusive bargaining representatives do an excellent job of bargaining for a lot less than the NEA/AFT unions charge. A copy of the salary schedules of the collective bargaining agreement secured by an independent representative in Indiana is contained in Appendix E. For comparison, a copy of the salary schedules of the collective bargaining agreement secured by an NEA affiliate in Indiana for the same period may be found in Appendix F. It is interesting to note that the dues for the independent representative were $50 a year, while the NEA union charged $462. More important, the salary schedule under the independent representative’s contract is from $4,000 to $8,000 higher than the union’s.

[xxiii] 23 For instance, the Indiana Professional Educators (IPE), an independent teacher group, offers its members: 1) a philosophy that protects the children, teachers, and public; 2) a publication channel of newsletters, position papers, and special flyers; 3) a search for, and development of, new educational methods and materials; 4) a voice in promoting positive legislation; 5) an exchange of experiences and opinions with fellow professionals; 6) assistance with professional negotiations; 7) insurance programs, including professional liability of one million dollars, aggregate limit and $5,000 in attorneys fees that meets or exceeds the NEA’s liability policy; 8) retained attorneys for legal advice, assistance and representation in professional matters; 9) professional improvement programs, including a two-day fall conference; and 10) retained C.P.A. firm for IPE audit and control in fiscal matters and fidelity bonding of IPE officers. In May, 1995, years of membership recruitment, public relations and legislative lobbying paid off for this independent teacher group when the Indiana legislature overrode the Democratic governor’s veto and enacted Public Law 199, Acts of 1995, which prohibits “fair share’ requirements in teacher collective bargaining “contracts entered into after June 30, 1995.”

[xxiv] 24 There are ten independent teacher groups serving as exclusive bargaining representatives among the 200 school districts in Indiana. The other 190 districts are represented by NEA/AFT unions.

[xxv] 25 “While control has always been part of schooling (Cuban, 1984; Goodlad, 1984; McNeil, 1986), many of our teachers gave vivid reports of new controls and new pressures to reduce their autonomy, to reduce their use of formal, experience and craft-based knowledge in making decisions about students and their learning. The individual autonomy that teachers desire to exercise inheres in the basic uncertainty central to life in isolated classrooms [:] … instruction, which is always an interactive endeavor between teacher and student. Because student responses can never be fully anticipated when lessons are planned, teachers desire wide-ranging discretion to make on-line decisions during instruction. … Each layer [of control] puts limits on the decisions teachers can make to adjust to students under increasing conditions of uncertainty, and as the layers accumulate, teachers find their options for creative action diminished.” Cohn, Teachers, 200-201.

[xxvi] 26 “It seems a contradiction to say teacher unions create another layer of teacher and instructional control, but unions limit autonomy for members as well as management. [Al n unintended outcome of [the] adversarial process [of collective bargaining] in which conflicting concerns for fairness and accountability [is the] produc[tion of] a highly rationalized procedure that further control [s] instruction.” Cohn, Teachers,210 – 211. Moreover, studies (Cohn et al., 1988) have shown that “working to the contract” in terms of hours spent at school and taking work home constrained non union teachers who might not have desired to work to the contract and “further restricted the ways in which teachers could react to the forces of change carried by their students.” Ibid. 211.