Resident Scholar  Frederick M. Hess

Four decades after collective bargaining came to public education, school boards and the superintendents they hire still routinely blame teachers unions for causing massive inefficiencies, stifling innovation, and preventing changes designed to promote student learning. “Our hands are tied,” school boards commonly complain when school budgets are debated or far-reaching reforms are proposed. Unacknowledged is that every contract provision--from the lockstep salary schedules that reward longevity over excellence to the rigid work rules that dictate the rhythms of school life--was agreed to by those very same school boards.

You don’t have to be a conspiracy theorist to wonder whether collective bargaining in education hasn’t become something more like collusion. In fact, the best evidence to support that position may be the steady decline in labor unrest. Despite some high-profile incidents--like the teacher “sick-out” which shut down 53 schools in Detroit last spring--strikes by teachers have become increasingly rare since 1975, a high-water mark, when there were 241 nationwide. By 2004 there were just 15. During this same period, the number of public school teachers rose from 2.2 million to more than 3.1 million, several times the rate of increase of the students they serve, whose numbers edged up only slightly, from 45 million to 48 million.

The current era of labor peace is typically attributed to laws in 31 states barring teachers from striking and mandating mediation or binding arbitration procedures. In addition, both sides have gained negotiating experience. However, that’s not the whole story. Superintendents in cities like San Diego, Milwaukee, and Houston have reported being urged by civic officials, business leaders, and philanthropists to seek “consensus” and to “partner” with the local union.

Has all this labor peace actually been good for education? Is it perhaps time for some discord?

The suggestion at first seems absurd. Parents and the voting public frown on labor conflict and teachers’ strikes for good reason, not least among them the disruptions for family and schooling that are caused by even temporary school closings. Yet the public’s aversion to conflict, combined with the political heft of teacher unions, can make school boards unduly deferential to union demands.

Despite the National Education Association’s claims to be an advocate “for children and public education,” we should not expect unions at the bargaining table to be for anything but their own interests. Naturally enough, those interests favor existing arrangements, which protect jobs; limit the demands placed on members, including their accountability for student performance; and safeguard the privileges of senior teachers. Teachers who entered the profession under these rules and patiently served their time, waiting for the rewards of seniority, are understandably resistant to measures that would significantly alter pay scales, job protections, or work rules.

As Robert Barkley, former executive director of the Ohio Education Association, explained, “The fundamental and legitimate purposes of unions [are] to protect the employment interests of their members. It is the primary function of management to represent the basic interests of the enterprise: teaching and learning.”

These roles have been too often conflated.

What’s Good for the Goose . . . Is Good for the Goose

Collective bargaining agreements demonstrate the failure of school boards to fight for the interests of students and taxpayers, not to mention the principles of sensible management. The contracts are long, complicated, and replete with both tediously detailed and needlessly ambiguous restrictions on administrators. The 199 collective bargaining agreements for teachers on file at the Bureau of Labor Statistics in January 2005 averaged 105 pages in length. And the topics covered in those pages extend far beyond bread-and-butter questions of salary and benefits; there are dozens of clauses covering a district’s ability to evaluate, transfer, terminate, and manage the workload of teachers, all having potentially serious effects on the management of schools and student achievement.

The Jefferson County, Kentucky, contract, for example, mandates that the district may not use student test scores “in any way to evaluate the work performance of employees unless they agree voluntarily.” Restrictions on matters as important as teacher evaluation can also be maddeningly ambiguous. The Little Rock, Arkansas, contract, for instance, specifies: “An individual teacher’s lesson plan book shall be subject to the review of the principal at any time.” But then it clarifies: “Teachers shall not be required to make their lesson plan books available on a scheduled basis.”

Collective bargaining agreements also typically restrict the amount of time that teachers are required to spend working with students, the number of students a teacher will instruct, and the number of lesson plans a teacher will prepare. In some cases they stipulate, as in Multnomah County, Oregon, that professional development funds be allocated based upon seniority of those applying, thus converting these expenditures from a lever for school improvement into a perk for long-serving faculty.

Similarly, when it becomes necessary to fill a classroom vacancy or remove an ineffective teacher, district officials are often hobbled by contract language. A 2005 study by The New Teacher Project, a national nonprofit organization that works with school districts to recruit high-quality teachers, examined five urban districts and concluded that seniority-based transfer privileges written into contracts often force principals to “hire large numbers of teachers they do not want and who may not be a good fit for the job and their school.” All but five states have laws giving teachers lifetime tenure after three years or less. While procedures for removing tenured teachers for “just cause” appear in most contracts, the available procedures are so burdensome that they are rarely used. A recent study of Illinois public schools found that, since 1986, an average of just two tenured teachers per year have been removed--in a state with more than 95,000 tenured teachers. Similarly, the New Teacher Project report found just four tenured teachers out of 70,000 fired for poor performance in the five districts studied.

Tellingly, teachers themselves agree that current termination policies protect those who should not be in the schools. According to Public Agenda, 78 percent of teachers nationwide report that there are at least a few teachers in their school who “fail to do a good job and are simply going through the motions.” This study quoted one New Jersey union representative: “I’ve gone in and defended teachers who shouldn’t even be pumping gas.” A Los Angeles union representative bragged, “If I’m representing them, it’s impossible to get them out. It’s impossible. Unless they commit a lewd act.” While such admissions may be startling, they highlight an important aspect of the union’s role: having been granted the exclusive right to represent teachers in the district, the union is legally bound to advocate for all of them. This obligation limits the capacity of unions to serve as partners in reform.

More Pay and Benefits, Less Quality

If we assume that better salaries attract better candidates, it would seem that compensation is an area where collective bargaining advances the interests of students as well as teachers. However, while unions have fought to increase salaries and improve benefit packages, they have resisted efforts to ensure that this spending helps to recruit, reward, and retain the most essential or effective teachers.

Virtually all teacher collective bargaining agreements establish salary schedules based strictly on years of experience and accumulated graduate credits. These “step-and-lane” schedules, which legislatures and school boards have accepted, reflect union preferences for wage agreements that increase member solidarity and benefit the most members. Unfortunately, there is good reason to believe that they have contributed to the well-documented decline in the aptitude of new teachers and to shortages in high-need subject areas. At a minimum, the rigidity of existing salary schedules restricts superintendents’ options for remedying these problems.

Nearly all contracts also still call for defined-benefit retirement plans, which provide a traditional pension and disproportionately reward educators who stay in place for 20 years. As Matthew Lathrop of the American Legislative Exchange Council has noted, “The guaranteed benefit is only good for those who spend a substantial part of their career with one employer. That’s an enormous drawback in today’s economy, when even public employees are less likely to stick with a single employer.”

Evidence similarly suggests that teachers’ benefit packages are poorly equipped to deal with the rising costs of health care. A 2005 study by the Rhode Island Education Partnership, for example, found that public school districts in that state uniformly allowed employees to select their own health carrier and plan design and that 73 percent of districts offered no-cost health benefits for retirees; not one of the state’s private-sector firms that the study examined offered these perks. In short, much like troubled industrial-era firms, many school districts are sinking enormous sums into benefit plans that are poorly designed to attract new talent and may ultimately prove unaffordable.

Passive Implementation

Once negotiated, collective bargaining agreements do not implement themselves. And the manner in which superintendents, school boards, and district personnel interpret and apply the often ambiguous contract language has significantly aggravated the problem. As one former school board member from a large urban district noted: “Too often school boards and superintendents complain that they cannot do something because of the teachers union contract. Often what they complained was restricted wasn’t actually prohibited … but might cause some political difficulties or raise some public issues.” Boards and their appointed administrators seemingly find it easier to sink into this “zone of ambiguity” than to take stands that may provoke visible unrest, negative publicity, or a work stoppage.

How explicit is contract language really? In the most careful previous assessment of contract language to date, Vanderbilt University economist Dale Ballou examined contract provisions governing compensation, teacher evaluation, transfers, layoffs, and the school day in 40 Massachusetts districts in 2002. He concluded: “On virtually every issue of personnel policy there are contracts that grant administrators managerial prerogatives they are commonly thought to lack [yet] . . . administrators do not take advantage of [this flexibility].”

In a 2006 study, my colleague Andrew Kelly and I examined a sample of the contracts on file at the Bureau of Labor Statistics, coding each section of the contracts based upon whether the provisions were vague, somewhat restrictive, or highly specific/restrictive. Our examination yielded findings similar to Ballou’s. The vast majority of contract provisions, in states both with and without mandatory collective bargaining, are only middling in restrictiveness--which offers little evidence that formal contract language is as restrictive as district officials often claim. This is particularly true for class size, teacher transfers, and teacher involvement in curricular decisions.

Significantly, many contracts include both ambiguous language and strict prescriptions within the same contract article. The contract for teachers in the Denver Public Schools, for example, establishes a 40 hour teacher workweek and states that “the principal shall have authority to permit teachers to diverge from the regular school day.” This clause is directly followed, however, by one that asserts “the District’s scheduled student contact day will not be extended without applying the due process of collective bargaining.” It is not clear how the “student contact day” relates to the 40 hour workweek, nor how much discretion the principal has to shape the teacher work day.

With regard to district transfer policy, ambiguity is once again the rule. Springfield, Massachusetts’s seemingly more flexible contract reads, “In the determination of reassignments and transfers, the convenience and wishes of the individual teacher will be honored to the extent that these considerations do not conflict with the instructional requirements and best interests of the school system and the pupils.” If Springfield’s language translates into flexible policies depends, of course, on how language like “wishes of the individual teacher will be honored,” “instructional requirements,” and “best interests of the school system” is implemented in practice.

Transfer procedures in other contracts are even more ambiguous. St. Louis’ contract declares: “The Superintendent of Schools may deny or institute any transfer for the good of the system.” However, in the same article, the contract also provides that “system-wide seniority will be given due consideration in making transfers,” and if two employees are equally qualified, “transfers or promotion of the employee shall be made on the basis of system-wide seniority.” What constitutes “due consideration” or degrees of qualification are questions left unaddressed.

What might explain the gap between what contracts actually say and how restrictive they seem to be? In truth, administrators and board members may frequently find it easier to explain that controversial actions are “prohibited by the contract” than to slog through contentious efforts to change practices.

Some of management’s reticence is understandable and practical. When a union believes that management actions violate contract terms, it typically files an appeal or a grievance in accordance with procedures spelled out in the contract. In these proceedings, resources and specialized expertise can give the union a pronounced advantage. A striking example of union capacity is the NEA’s UniServ system, a nationwide network of 1,600 full-time and 200 part-time NEA employees who provide guidance to local affiliates on matters such as negotiations and grievance resolution. The NEA itself touts the UniServ program as “a vast cadre of human resources,” on which it spent some $50 million in 2001, but it also attempts to downplay the system’s impact, saying that each employee has multiple responsibilities and works with multiple districts. What UniServ offers, union proponents claim, pales beside the legal, financial, and staff resources available to school boards.

That said, why might district leaders be reluctant to exploit contract language or aggressively pursue greater managerial freedom--especially in districts where the sides seem more evenly matched? For one thing, the members of a district’s management team, composed of the superintendent and the district central office staff, are in a delicate position. They work for school board members desirous of avoiding labor-management conflict. They are typically also former teachers and, as former Milwaukee superintendent Howard Fuller has noted, “You don’t want to be antagonistic to the teachers. At the end of the day you need effective teachers, so you have a mindset to really do the best you can for them.”

Unions seem to navigate the grievance process more adroitly than district officials, but that is only partly due to resources. It is also because they aggressively exploit contract language, while school boards and superintendents are often more interested in avoiding confrontation than in asserting managerial prerogatives.

Unions and Education Politics

One reason school boards are hesitant to take a stronger stance in negotiations and in contract implementation may be the firm hand that unions exercise in education politics. Quite simply, school board elections offer teachers unions the unusual opportunity to influence the makeup of the management team they will face at the bargaining table. It is as if the board of directors of General Motors was not selected by its shareholders, but by the residents of Detroit. The result of such a scenario would be a management team focused on workers’ concerns more than on holding down costs or chasing efficiencies.

Actually, it is worse than that, as GM is ultimately subject to the discipline of the marketplace. If the company allowed efficiency to decline too far, it would be driven into bankruptcy by competitors, domestic or foreign. In public education, however, such market pressures are muted by the lack of market competition and organizational inertia. A union official in Cleveland offered a telling insight when discussing a negotiator who was demanding concessions after a state takeover. The union official recalled: “We looked at [the negotiator] and said, ‘Why do we have to do that?’ His background was in the private sector, where he can threaten, ‘If you don’t do this, we’re moving the factory to Mexico.’ Well, we knew the school system wasn’t moving to Mexico, so we just said, ‘No, we’re not doing that.’”

And since school board elections are typically low-turnout affairs, organized and energized interests, like teachers unions, can exert even more influence on the outcome than their raw numbers would suggest. Almost 60 percent of board members nationwide say the teachers unions are “very active” or “somewhat active” in their local elections, according to research published by the National School Boards Association. By comparison, fewer than one-third of the board members reported that business groups were “very” or “somewhat” active in elections in their districts.

Stanford political scientist Terry Moe has argued that this chilling effect is not just theoretical--it is a very real phenomenon. Moe has documented the teachers unions’ success in getting pro-union candidates elected: in California, school board candidates endorsed by the union win 76 percent of the time, while those the union does not endorse win 31 percent of the time.

Unions are also active in state and federal legislatures, using their lobbying clout to safeguard their collective bargaining muscle and ensure that negotiations unfold on a hospitable playing field. Union dues provide resources to pursue ever more favorable laws. And the dues are augmented by dollars deducted from the paychecks of nonmembers, in accordance with state laws. Ironically, even the No Child Left Behind Act offers a telling example of union influence as the first federal law to explicitly recognize, and ultimately defer to, collective bargaining’s role in education governance. In theory, the law empowers districts to replace staff members at persistently low-performing schools. But this provision was promptly eviscerated at the behest of the unions, and the Department of Education sheepishly allowed the authority to be exercised only if the contract allows it.

The False Promise of “New Unionism”

The case for reforming the collective bargaining process has become so strong that even some union supporters have persuaded union locals to abandon an industrial model of contract negotiations for a more collaborative “new unionism.” Well-intentioned advocates like Charles Kerchner and Adam Urbanski call for unions and districts to work together to foster professionalism, create pleasant working conditions, and involve teachers in governance and decision-making. The new unionists point to the 1996 formation of the Teacher Union Reform Network and to widely touted collective bargaining agreements in Dade County, Florida; in Seattle; and in Cincinnati and Toledo, Ohio.

Many union sympathizers contend that new unionism has already changed the character of the nation’s major teachers unions. Wayne Urban, an education professor and expert on teachers unions, notes that NEA president Robert Chase gave a pivotal address on behalf of new unionism at the National Press Club in 1997, calling for “the transformation of [the] organization away from the adversarial stance institutionalized in collective bargaining toward one that was more professional.” For the next half decade, Chase “tirelessly advocated his new union agenda.” Likewise, a handbook written in 2006 by Linda Kaboolian, a respected academic proponent of reform unionism, asserts that “a great deal of collaborative innovation exists and has been ongoing for many years.” In short, serious voices believe that the teachers unions have already committed themselves to new unionism.

In reality, sustained attempts to instill new unionism have occurred in just a handful of districts, and the results have been fairly disappointing. This bleak track record should be no surprise. Union leaders are elected by current members to protect their interests, and most teachers remain highly satisfied with their unions’ conduct of collective bargaining. A national poll of teachers conducted by Terry Moe in 2003 revealed that 84 percent of union members were either somewhat or very satisfied with the job their unions did representing their interests in collective bargaining. Predictably, incumbent union leaders who have embraced a strategy of collaboration or have simply been regarded as too cooperative have been voted out of office by teachers seeking more combative leadership.

For instance, several years ago Cincinnati Federation of Teachers President Rick Beck agreed to a modest merit-pay experiment. The new policy would have based teachers’ salaries in part on evaluations by the principal and outside evaluators hired by the district. It won the support of even die-hard opponents of market-based reforms. Then-New York Times columnist Richard Rothstein wrote, “A radical experiment in teacher pay here could become a national model if successful...Cincinnati’s experiment is the one to watch.” But in the next leadership election campaign, Susan Taylor accused Beck of failing to protect teachers. And she claimed the presidency in a landslide, winning 78 percent of the vote.
 
Similar circumstances led to the ouster of the union chief in Hartford, Connecticut. After being taken over by the state in 1997, Hartford Public Schools won widespread acclaim as an example of effective management and labor collaboration. The Hartford Federation of Teachers even served in 2001 as host of a national American Federation of Teachers conference on collaborating with school management to improve failing schools. It turned out, though, that a lot of Hartford teachers weren’t happy with their union playing the role of partner. As one teacher asked in a Hartford Courant article, “Does it really cost almost $700 a year [in dues] to say ‘yes, yes’ to administration?” In 2002, incumbent union president Edwin Vargas was defeated by challenger Tim Murphy. Murphy had previously served as Hartford Federation of Teachers president during a conflict-ridden period marked by troubled school performance. Murphy reclaimed the presidency, promising, “I will not allow what happened to Ed Vargas to happen to me.”

Unions in any industry are loath to contemplate givebacks. Even when firms have declared bankruptcy or are on the verge of doing so, as in the airline and automobile industries in recent years, union leaders frequently resist concessions on wages, benefits, or work conditions. Historically, unions have agreed to concessions only when the leadership calculates that the costs of holding firm outweigh the losses they’ll be giving up at the table--and when they can convince their members that is the case. Sometimes, as when the United Steel Workers chose to watch the American steel industry sink rather than accept concessions, this moment never comes--or comes far too late. In such cases, the only option is to watch the Titanic slowly go under and then repair to a shipyard with new blueprints. That option is not available in public education, at least not without disruption on a scale that would dwarf the fallout of even the most bitter teachers’ strike.

Getting Serious

Those looking to reinvent American education for a new century must recognize that unions are holding fast to contracts that were designed to address the challenges and inequities of an earlier era. Union leaders often invoke norms of justice when arguing for the same perks and protections that veteran teachers were implicitly promised when they entered the profession a quarter century ago. One can sympathize with union locals and simultaneously see that the contracts they’ve negotiated are enormous obstacles to retooling schools for the 21st century.

The answer is not fondly hoping that union leaders will be sweet-talked or shamed into embracing change. With rare exceptions, their position simply won’t permit it. At the same time, eliminating collective bargaining is not a useful goal. Not only is it unrealistic, but evidence from other industries suggests that unions can be a constructive force under the proper conditions.

Established practices in negotiating teachers’ compensation and the rules governing hiring, firing, and work routines need to come of age. Measures to promote accountability and competition are essential in this task--but they are only a start and, in any event, they are part of larger debates. What more immediate steps can help make this happen?

Promoting Transparency

The habits of district-union collusion are due in large part to the public’s ignorance of what collective bargaining agreements stipulate and to a strong desire for tranquility and smooth school operations. Experience suggests that when parents, policymakers, or civic leaders are made aware of the costs, rules, and protections that the agreements include, they are much less willing to accept the status quo and more willing to back hard-nosed district leadership.

The failure of the general public and more than a few policymakers to understand the stakes is largely due to the scant attention the media give these negotiations. A 2005 study of how newspapers cover collective bargaining revealed that in 12 out of 20 large school districts, the local daily newspaper printed no more than one article on the contract negotiations. A national union official explained, “Bargaining is conducted behind closed doors. Neither side ‘goes public,’ even to its own members, until the entire contract is done.” While productive negotiations require the confidence to float ideas without fear that they will appear in tomorrow’s headlines, greater transparency would force both the union and management to justify their demands in the face of public scrutiny.

Local officials can take a page from the playbook of former New York City councilwoman Eva Moskowitz, who held hearings on the local contract and invited public scrutiny and media coverage. The Moskowitz inquiry was especially valuable in providing reporters a context for writing about the contract’s implementation and its impact on district operations. Officials and civic leaders should also ensure that local beat reporters, editors, publishers, and producers are aware of the contract’s provisions and have information on the nature and outcomes of grievance and arbitration proceedings.

Acting Decisively

Most managers prefer to avoid conflict. However, when nimble competitors, irate stockholders, and the need for self-preservation demand it, executives in the private sector take a deep breath and accept the inevitability of painful fights over staffing, operations, and work rules. Only a similar firmness of purpose will enable school boards and superintendents to do what must be done. In particular, I want to suggest that reformers need to adopt four complementary strategies.

First, management consultants claim that if you haven’t missed an airplane recently you’re spending too much time in airports. Considering the contracts that school boards have come to accept, they might similarly conclude that boards that don’t provoke a work action once in a while aren’t pushing hard enough at the table. In the short run, schools may need more, fiercer, and uglier contract disputes. That would show that school boards and superintendents are fighting hard for the children, the community, and the taxpayers. Superintendents and board members are not independent agents, however. They can’t do it alone.

Second, newspaper editorial boards, local chambers of commerce, and parent groups have made it eminently clear that they want everyone to find a way to “get along,” and they expect district leaders to find a way to avoid upsetting the apple cart. These stakeholder groups need to rethink their belief that labor unrest is always a sign of leadership failure. Labor unrest can be a good thing when the alternative is to continue to accept an anachronistic, stifling, and perversely constructed status quo. Taking back prerogatives and language that unions have won in previous rounds of negotiations will inevitably be a bruising, unpleasant struggle--one that only the staunchest district officials will undertake, and one that they will win only if the community is committed to seeing it through. As long as they cannot count on community support in the face of labor unrest, sensible board members and superintendents will continue to fold on the important questions.

Third, some states, like New York, Pennsylvania, and Wisconsin, have well-defined arbitration procedures that kick in when the parties can’t reach agreement. These policies can effectively take the bat out of a school board’s hand, sometimes imposing mandatory settlement terms on even those boards willing to drive a hard bargain. While there is surprisingly little systematic research on the outcomes of the arbitration process, we know that arbitrators and mediators tend to be consensus seekers who frown on calls for radical changes to existing provisions. This tendency is aggravated in some cases by “past-practice” contract clauses, which treat established routines as controlling. This reality highlights two considerations: first, the need to scrutinize state laws governing contract impasses to ensure that they do not stack the deck in favor of union interests, and second, the importance of raising public awareness of contract provisions that arbitrators might otherwise leave untouched.

Finally, it’s not enough to stand firm at the table. District officials must also aggressively exploit existing language or interpret ambiguous language in whatever way provides the most flexibility to respond to student needs. The desire to maintain a cordial working environment, a fear of negative publicity, and concern about grievance proceedings frequently cause administrators to treat the absence of clear managerial prerogatives in contracts as an excuse for inaction. This means it is vital to thrash out at the bargaining table language that minimizes the “zone of ambiguity” on issues like compensation, termination, teacher transfer, and work rules. Ultimately, however, district leaders must ensure that their staff members know how to take advantage of management rights, and superintendents and senior staff need to adopt a new mindset when it comes to making use of managerial prerogatives.

Increasing Capacity

One last point. It’s vital to recognize that school boards are relatively weak governing bodies, composed of part-timers with other obligations, limited expertise, and little incentive to engage in contentious negotiations. A 2001 National School Boards Association survey found that most school board members are unpaid, devote fewer than ten hours a week to board-related business, and have served on the board for less than six years. It is asking a lot to expect these part-timers, even with the aid of experienced attorneys, to go toe-to-toe with seasoned union leaders in the kind of public controversy engendered by a contract standoff. Board positions need to be made more attractive and augmented with research and staff support, or districts need to move toward alternative forms of governance in which the costs of inefficiency and lagging achievement become intolerable.

Above all, school-board members and those who elect them must never lose sight of the fact that collective bargaining is an adversarial process. Ironically, the current crop of teachers union leaders seem less like such labor lions as Samuel Gompers and Walter Reuther and more like Charlie Wilson, the imperial president of General Motors. “What’s good for GM is good for the country,” Wilson blithely remarked in testimony before the Senate Armed Services Committee a half century ago. The NEA and the AFT have long argued that what is good for America’s teachers is good for America’s children--and, by implication, for America itself. The willingness of too many superintendents, school boards, and legislators to act as if this were true has been a crippling handicap for America’s schools. It is time to move beyond utopian dreams and overwrought efforts to goad unions into good behavior, and to recognize that labor strife may be the birth pains of real school reform.

Frederick M. Hess is director of education policy studies and a resident scholar at AEI.