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Teachers' strikes: A growing public policy dilemma
T E A C H E R S ' STRIKES: A GROWING PUBLIC POLICY DILEMMA ROBERT C. DUNCAN 53
In the past two years, and especially during the 1978-79 school year, over 145 teachers' strikes have occurred in some twenty-one states and have affected approximately two million students and over 75,000 teachers. l'he majority of these teachers' walkouts occurred in states that have legislation enabling teachers to bargain collectively with school employers. With only a very few exceptions, these teachers' strikes took place despite
R O B E R T C. D U N C A N is v i c e - p r e s i d e n t of R o b b i n s Associates M a n a g e m e n t Service, Inc., a B l o o m i n g t o n , I n d i a n a , c o n s u l t i n g f i r m serving p u b l i c - s e c t o r m a n a g e ment.
statutory provisions prohibiting t h e m ) Why is this the case?
WHY DO TEACHERS STRIKE? Since the last item to be settled in a strike is usually salaries, a cursory examination might lead to the conclusion that m o n e y benefits
1. States granting limited strike rights include Alaska, Hawaii, Minnesota, Montana, Oregon, Pennsylvania, and Vermont. Together, these states accounted for only twentysix (18 percent) of the noted 145 teachers' strikes, leaving 119 strikes which occurred in states either having no bargaining statutes or no legal prohibition against teachers' strikes. See Public Sector Bargaining and Strikes, Educators' Negotiating Service, July 1, 1978; also, Teacher Strikes, Educators' Negotiating Service, November 15, 1978.
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sought by teachers' unions are the primary cause for walkouts. But unions claim other grievances, too: large pupil-teacher ratios, student discipline, attempts by school boards to "roll back" benefits won by a union in previous contracts, union rights, and teacher evaluation systems. While one can never identify the single catalytic issue, there would appear to be one central reason why teachers' unions decide with increasing regularity to break off negotiations and resort to the strike: Teachers' unions have demonstrated the ability to strike a school system with little or no real expectation that they will be punished or otherwise made to answer for their action. In other words, teachers strike because they know they can get away with it, regardless of statutes to the contrary. In only a small number of strikes has an individual teacher been fined or punished in any way for his or her illegal action. 2 Thus it should come as no surprise to anyone that teachers continue to use the strike and threat of the strike to achieve their goals. It seems reasonable to expect an increase in strikes by teachers across the United States, 2. A notable exception exists in New York state, where provisions of the Taylor Act call for each teacher to pay a fine equivalent to two days' pay for each day on strike. This provision has gone far in minimizing the number of strikes by teachers in New York state. Similar provisions are being sought in other states, including Washington and Rhode Island. In most strike situations, however, individual teachers are commonly held harmless for illegal acts. For example, during a teachers' strike in Marion, Indiana, in the fall of 1978, the executive director of the Indiana State Teachers Association told news reporters that the ISTA would pay all fines levied against individual striking teachers. See the Marion Chronicle-Tribune, September 1, 1978.
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given the so-called "tax revolt," the call for more detailed accountability on the part of schools generally, inflation, and an escalation in the cost of living. One can anticipate demands for at least "cost-of-living" raises in the coming year, presidential guidelines notwithstanding. In addition, job security for teachers will probably increase in its negotiating impact, since school boards in the past five years have reduced the n u m b e r of teaching positions available in response to decreasing school enrollments.
PREVENTING TEACHERS' STRIKES Does Binding Interest Arbitration Work? In response to strikes b y unionized teachers in numerous states, an increasing amount of discussion and consideration is being given to an impasse procedure referred to as "final offer arbitration" or "last best offer" arbitration. This is a procedure in which each party submits a "last best offer" to the arbitrator, who chooses one of these offers in its entirety as his final decision. Under such an approach, the arbitrator is not permitted to make compromises or change in any way the parties' offers. This m e t h o d is intended to increase the risk to the parties involved if they do not settle b y themselves and to encourage negotiated agreements. 3 3. See Terms in Public Sector Labor Relations: A Practitioner's Guide (Bloomington: Indiana University Center for Public Sector Labor Relations, n.d.): 36.
Teachers' Strikes: A Growing Public Policy Dilemma
"The notion that binding arbitration, in whatever guise, is a valid deterrent to teachers' strikes assumes that the worst possible calamity that could happen to a school and community is a teachers" strike. But it isn't. Loss of control by the citizens over the public schools is a far worse catastrophe-and a much greater threat, since it is usually a gradual process which occurs at the bargaining table over several years; actual transfer of authority often lies buried in the language of numerous clauses which are quite undramatic and often shrugged off by board members as 'unimportant legalese.' As Paul Berninger, chief negotiator for Cincinnati, has said, 'arbitration only strips the city of control over salaries and spending. With arbitration, the unions truly have nothing to lose and everything to gain.' "
Governor Joseph P. Garrahy of Rhode Island has proposed a form of binding finaloffer arbitration to prevent teachers' strikes. Governor Hugh Carey and the New York state employees' union have also agreed to use the final-offer technique in the coming year, should the need arise. In each case, the individuals involved stress that the arbitrator must consider the state's ability to pay when making his or her choice. Lawmakers in other states, along with a number of experts in labor relations, education, and other fields, are also touting binding final-offer arbitration as the "credible deterrent" to strikes by teachers .4 The notion that binding arbitration, in whatever guise, is a valid deterrent to teachers' strikes assumes that the worst possible calamity that could happen to a school and community is a teachers' strike. But it isn't. Loss of control by the citizens over the public schools is a far worse catastrophe-and a much greater threat, since it is usually a gradual process which occurs at the bargaining table over several years; actual transfer of authority often lies buried in the language of numerous clauses which are quite undramatic and often shrugged off by board members as 4. Eugene McCarthy and James Kilpatrick have described a "credible deterrent" as follows: "The deterrent does not know, or care to know, what is coming. The theory is that anything or anyone, knowing that the 'deterrent' is waiting, will not come." See McCarthy and Kilpatrick, A Political Bestiary (New York: McGraw-Hill, 1979):
"unimportant legalese." As Paul Berninger, chief negotiator for Cincinnati, has said, "arbitration only strips the city of control over salaries and spending. With arbitration, the unions truly have nothing to lose and everything to gain. ''s A serious problem inherent in arbitration is that the weaker of the two parties at the bargaining table will tend to call for arbitra. tion as opposed to hard bargaining to reach a settlement. There is also the legitimate concern that arbitrators often apply Solomon's technique of "splitting the baby" in making an award. The practical effects of such a method would, over a period of years, trans. fer piece after piece of the school district's authority to control policy, instruction, and other matters which, in the private sector, would be considered at the core of the enterprise and therefore probably not man. dated for bargaining. Further, in the event that either party desired to roll back a given provision of a former agreement because of its particularly confining or "obnoxious" nature, there would be little chance of an arbitrator making such a decision. In a very real sense, compulsory binding arbitration would cause a community's elected or appointed governmental agency, the school board (and, by extension, the state government), to lose control of decision mak-
5. Quoted in the Cincinnati Enquirer, February 6, 1979.
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ing to a private self-interest group--the teachers' union--either through bargaining or through an arbitrator's award. Either way, the public loses and the union gains. Yet according to some politicians, academicians, and union leaders, this is the way to prevent teachers' strikes.
Instituting Due Process
56
School boards do have at least one alternative available to them to prevent teachers' strikes. This course of action, seldom utilized, involves the immediate institution of required due process and the termination of striking teachers under applicable state law. School employers, on behalf of the communities they serve, thus reserve the rights of citizens to control the schools they pay for and send their children to by doing no more than invoking the law. This school board alternative is, at this time, p r o b a b l y the only course of action which m a y be pursued to bring a halt to destructive and illegal strikes b y public school t e a c h e r s - a n d to prevent total capitulation to union demands and the transfer of authority over public schools from the public to union leaders.
COLLECTIVE B A R GA I N I N G: THE RECORD In the early 1960s, a period when teacherschool employer collective bargaining emerged, politicians, teachers' organizations, and an occasional academic argued that collective bargaining with teacher organizations was entirely appropriate and not an activity that local school boards should be too concerned about. Of course, at that time no one had any evidence either to support or refute the concept; thus the foundation of arguments pro or con was a mixture of intuition, speculation, and self-interest on the part of the "experts." Such is not the case today. There now exists a growing body of literature that ought to serve as a guide for municipal, state, and federal legislators. The public can now draw upon almost two decades of experience in the field of public sector bargaining to judge the merits of such a system, and it can only conclude that collective bargaining for employees in the public sector constitutes extremely undesirable public policy. 6
6. For a more detailed discussion of this point, see Myron Lieberman, "Eggs That I Have Laid," Phi Delta Kappan, February 1979: 415-419.
"School boards do have at least one alternative available to them to prevent teachers' strikes. This course of action, seldom utilized, involves the immediate institution of required due process and the termination of striking teachers under applicable state law. School employers, on behalf of the communities they serve, thus reserve the rights of citizens to control the schools they pay for and send their children to by doing no more than invoking the law. "This school board alternative is, at this time, probably the only course of action which may be pursued to bring a halt to destructive and illegal strikes by public school teachers--and to prevent total capitulation to union demands and the transfer to authority over public schools from the public to union leaders."
BUSINESS HORIZONS
Teachers' Strikes: A Growing Public Policy Dilemma
In its recent report, Public Sector Bargaining and Strikes, the Public Service Research Council concludes: "The data presented in this study would indicate the development of certain definite "-.5.' trends. Namely, public-sector unions representing bargaining units covered by collective bargaining legislation have exhibited a greater tendency to strike after enactment of legislation than before and a greater tendency than units not covered by legislation. While the levels of public-sector strike activity have risen across the country, they have risen higher and faster in areas covered by compulsory collective bargaining legislation . . . . it can only be concluded that compulsory public-sector bargaining is unsuited as a system of labor relations in the public sector."
TEACHERS' STRIKE PARTICIPANTS In most instances of teachers' strikes, there are several sets of participants. Obviously, the central actors are the school employer (or board of education) and the teachers' union. In addition, several other participants are seen to be involved to a greater or lesser extent: - The state labor relations board, 8 national/state teachers' union leaders, media representatives, and - school administrators and others not in the bargaining unit. -
-
The School Board During a teachers' strike, the citizens who support, finance, and patronize the public
7. Public Sector Bargaining and Strikes (Vienna, Virginia: Public Service Research Council, 1979). 8. In states where no enabling statutes exist, no labor board will typically be involved. Similarly, in some states, such as Tennessee, no such agency was created to administer negotiation; thus the court system is often involved. Courts also play a role when the employer seeks to enjoin striking teachers in some manner.
schools seem either not to realize or simply to ignore the reality that a teachers' union is not negotiating with the superintendent and other administrators (who are, after all, simply a different classification of employee), and that it is not attempting to wrest concessions from the five, seven, or n i n e individuals who comprise a board of education. In fact, the teachers' union is engaged in a struggle to obtain control of the public schools through the collective bargaining process. In effect,
the union is bargaining with the entire community. Citizens, however, appear to have taken the position that the schools "belong" to the school board, and sit passively by and watch the fireworks. In some instances, communities do not even take teachers 'job actions seriously. During a strike by teachers, rarely will a citizen or a group of citizens step forward in support of its board, its representatives. Thus board members who have no personal stake in the public schools, or at least no greater stake than other citizens do, find themselves under verbal and sometimes physical attack by Iocal union leaders and the usual "visiting" union officials, who seem always to sense the possibility of a fresh carcass. 9
School board members, drawn from a cross-section of the community, rarely possess the knowledge or time to carry out actual bargaining with their union counterparts. Yet in a growing number of communities, board members find themselves under pressure from the teachers' union to do the actual bargaining and writing of the contract. In the event of a teachers' strike, members of boards of education typically find 9. As an example, the St. Louis Globe-Democrat, in a story which appeared on January 16, 1979, in the midst of a teachers' strike in that city, noted that "forty-five representatives of various unions from throughout the country have been here for weeks, advising teachers concerning negotiations and what to do in the event of a strike . . . . A local union spokesman said 'those out-of-town representatives will be needed to keep up the strikers' fervor. In the public sector, we need to hold numerous rallies to maintain a good strike posture . . . . ' )'
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themselves isolated from their community. Even in instances where a board or community has been "targeted" for strike action by one or more levels of the teachers' organization, and seemingly could not avoid a strike short of total capitulation, citizens press for "peace at any price." "Isolation," pressure from the union, and a growing perception among board members that somehow they are the sole cause of the community upset seem to have the effect of weakening board resolve during a strike by teachers. A typical school board response to a teacher walkout is to obtain a court injunction to force teachers to return to classrooms, or to seek to limit strike activities such as picketing or interfering in other ways with school operations. Following such action, boards commonly take a "wait-it-out" posture. And waiting it out has been the conventional response in strike situations) 0 Such a response assumes that management cannot "win" a short strike by teachers; a long strike is preferable to cause striking teachers to feel an economic pinch. Such an approach, rooted in private-sector strike dogma, might be effective if in fact teachers' negotiations and private-sector bargaining were the same, but they are not. Privatesector bargaining is largely economic in its Impact. Negotiation by teachers, on the other hand, is a political struggle between two parties competing for control of a governmental institution. Economics is secondary in that both parties are fully aware of the finances bearing upon the schools, since they are a matter of public record. Teachers, and especially teachers' unions, simply assume that a given "share" of revenues available to a school system is rightfully theirs, and that
10. See, for example, The Strike Manual, jointly published by the Association of CaliforniaSchool Administrators and the Negotiation Support Service (1973), in which school employers are advised to "plan to take a long strike" (p. 2).
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they will get it anyway; thus the real union effort in bargaining focuses upon controlrelated policies like staff reduction, transfers, hours, and class size. Given the perceptions of community residents and the political nature of the struggle, school boards cannot "win" either a short or a long strike by teachers. Indeed, it is highly questionable that the school board can sustain any amount of public credibility once a strike Occurs,
The Teachers" Union As negotiators who deal with teachers' unions are aware, there is not simply one person or group representing the teachers in the local school system. There are indeed several, and they all have priorities. National teachers' unions, such as the National Education Association, have priorities, as do state teachers' organizations and local teachers' unions. And priorities for each of these unions may be different. The school board that ignores or is ignorant of the priorities at any given level increases its chances of experiencing protracted and perhaps bitter negotiations. A teachers' union which decides to strike in a given school district usually must devote considerable time, energy, and resources to "hyping" its rank and file. Thus such a strike decision usually involves some combination of the resources of local, state, and national organizations. Teachers' unions that strike are typically well organized, and their leadership-loca/, state, and national--is highly trained. Such training for bargaining, organizing, and strike actions usually has a strong philosophical basis and draws upon a wide range of published literature, including The
Anatomy of Revolution, Mao Tse-Tung on Guerilla Warfare, The Revolt of the Masses, and The True Believer. One approach to organizing and training of leaders of teachers'
Teachers' Strikes: A Growing Public Policy Dilemma
"When a teachers' strike is prolonged, local teachers cease to have primary control, and decisions come to be made by representatives of the state and national unions. These individuals have little or no concern for attitudes in the local community, since they are usually nonresidents. Thus community pressure on teachers to settle is effectively deflated. The same is true of any influence which might be brought to bear by local media on the teachers' union. This insulation provided to local teachers by state and national affiliates increases and grows stronger as a strike is prolonged. When the community and the local media cannot influence the teachers' side in a dispute, the full weight of criticism and pressure falls upon the school board, which is unable to 'insulate' itself."
organizations would seem to derive at least in part from the writings of Saul Alinsky. 1 When a teachers' strike is prolonged, local teachers cease to have primary control, and decisions come to be made by representatives of the state and national unions. These individuals have little or no concern for attitudes in the local community, since they are usually nonresidents. Thus community pressure on teachers to settle is effectively deflated. The same is true of any influence which might be brought to bear by local media on the teachers' union. This insulation provided to local teachers by state and national affiliates increases and grows stronger as a strike is prolonged. When the community and the local media cannot influence the teachers' side in a dispute, the full weight of criticism and pressure falls upon the school board, which is unable to "insulate" itself.
The State Labor Board State teacher-bargaining legislation often provides for the formation of a labor board, such as the New York Public Employment Relations Board (PERB), the Indiana Education Employment Relations Board (IEERB), and the Wisconsin Employment Relations Com-
11. Alinsky's published works include John L. Lewis; Reveille for Radicals; The Professional Radical: Conversations with Saul Alinsky; and Rules for Radicals.
mission (WERC). Generally, such labor boards provide mediation, fact-finding, and arbitration assistance upon request to parties in a bargaining dispute? 2 In the event of a teacher strike, the labor board will typically make it known to the parties that it is willing to assist them to end the strike through a mediated agreement or through binding arbitration if the parties are willing. Other than through such overtures, labor boards usually play a minor role in negotiations, unless unfair labor practice complaints are voiced. This is probably as it should be, since neither school boards nor unions would advocate that a labor board should have the power to impose a settlement.
Media Representatives The role played during a teacher strike by the news media deserves more attention than is possible here. But it can be said that very few journalists take the trouble to become fully informed about teacher-school board bargaining. Unfortunately, a number of media representatives take the view that collective bar-
12. Some statutes provide that the labor boar~t may assign neutrals to impasse situations; however, most often such intervention is made only upon request. See, for example, Indiana Code 20-7.5-1-12 (c) (d).
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gaining in the schools is a case of much ado about little, but any resultant conflict is often exploited in the name of circulation, listeners, or viewers. One editorial writer for a large daily paper in a southern city noted in an address to school negotiators that he viewed collective bargaining in schools as simply "an extension of the budgeting process." Another midwest daily saw nothing to be concerned about in its story captioned "Teachers Seeking Equality with School Board in Policy Making." Ignorance of what is at stake in school negotiations, and the c o m m o n misconception that local teachers and board members are engaged in little more than settling salaries for the coming year, combine to weaken media coverage of a strike. Public credibility is thus often lost and the media is unable to inform or influence the c o m m u n i t y in an accurate, meaningful way.
School Administrators For most administrators and other specialists employed b y the schools but not in the teachers' bargaining unit, a teachers' strike presents a nightmare of divided loyalty, upset, and confusion. In strike situations, such employees find themselves assigned to numerous tasks, some familiar and others not. T h e y are often criticized by striking teachers, by parents, by the superintendent, and by school board members for either doing or saying the wrong things. The problem, felt most acutely by building principals, is that these administrators and supervisors are often the least involved in bargaining while at the same time they are the primary contract and " c o n t a c t " administrators. T h e y work most closely with teachers and receive their grievances firsthand. This same group is then expected to lead in the effort to bind up the wounds once the dust of the strike settles.
BUSINESS HORIZONS
WHAT CAN BE DONE? Illegal strikes have occurred in too many communities too often to be swept under the rug with the sigh that "at least, thank goodness, it's over." An examination of the law prohibiting strikes may be in order, but if a decision is made to change the law, it should be through the legislative process and not through default by weak public officials who have been cowed by lawbreakers. Stated simply, the law should either be changed or enforced. To do otherwise is to take the position that the law doesn't matter when it tells you what you don't want t o hear. This would appear to be the lesson learned by teachers on strike. Events d o c u m e n t e d here and elsewhere show that teachers strike illegally because they have been shown that they c a n - w i t h impunity. But boards of education cannot long endure a teachers' strike, and citizens who have already paid taxes for educational services should receive what they paid for. In most teachers' strikes, boards of education, as a " s e t t l e m e n t " gesture, c o m m o n l y agree to what is referred to by unions as a "no reprisals clause" in which the board essentially agrees to forgive and forget the illegal acts of teachers during the walkout. Such an a g r e e m e n t - a n d it will be necessary for a board to agree to such a provision unless it is willing to invoke due process and dismiss teachers who strike-has the effect of encouraging the idea that what is done by a mob is permissible while individual acts should be punished. Is it feasible for a school board to initiate due-process proceedings against striking teachers and dismiss them if necessary? Is this a practical solution? The facts of school bargaining in recent years suggest that boards of education probably have only one other alternative in the short or the long run-total capitulation to teachers' union demands. [Z]
In the past two years, and especially during the 1978-79 school year, over 145 teachers' strikes have occurred in some twenty-one states and have affected approximately two million students and over 75,000 teachers. l'he majority of these teachers' walkouts occurred in states that have legislation enabling teachers to bargain collectively with school employers. With only a very few exceptions, these teachers' strikes took place despite
R O B E R T C. D U N C A N is v i c e - p r e s i d e n t of R o b b i n s Associates M a n a g e m e n t Service, Inc., a B l o o m i n g t o n , I n d i a n a , c o n s u l t i n g f i r m serving p u b l i c - s e c t o r m a n a g e ment.
statutory provisions prohibiting t h e m ) Why is this the case?
WHY DO TEACHERS STRIKE? Since the last item to be settled in a strike is usually salaries, a cursory examination might lead to the conclusion that m o n e y benefits
1. States granting limited strike rights include Alaska, Hawaii, Minnesota, Montana, Oregon, Pennsylvania, and Vermont. Together, these states accounted for only twentysix (18 percent) of the noted 145 teachers' strikes, leaving 119 strikes which occurred in states either having no bargaining statutes or no legal prohibition against teachers' strikes. See Public Sector Bargaining and Strikes, Educators' Negotiating Service, July 1, 1978; also, Teacher Strikes, Educators' Negotiating Service, November 15, 1978.
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sought by teachers' unions are the primary cause for walkouts. But unions claim other grievances, too: large pupil-teacher ratios, student discipline, attempts by school boards to "roll back" benefits won by a union in previous contracts, union rights, and teacher evaluation systems. While one can never identify the single catalytic issue, there would appear to be one central reason why teachers' unions decide with increasing regularity to break off negotiations and resort to the strike: Teachers' unions have demonstrated the ability to strike a school system with little or no real expectation that they will be punished or otherwise made to answer for their action. In other words, teachers strike because they know they can get away with it, regardless of statutes to the contrary. In only a small number of strikes has an individual teacher been fined or punished in any way for his or her illegal action. 2 Thus it should come as no surprise to anyone that teachers continue to use the strike and threat of the strike to achieve their goals. It seems reasonable to expect an increase in strikes by teachers across the United States, 2. A notable exception exists in New York state, where provisions of the Taylor Act call for each teacher to pay a fine equivalent to two days' pay for each day on strike. This provision has gone far in minimizing the number of strikes by teachers in New York state. Similar provisions are being sought in other states, including Washington and Rhode Island. In most strike situations, however, individual teachers are commonly held harmless for illegal acts. For example, during a teachers' strike in Marion, Indiana, in the fall of 1978, the executive director of the Indiana State Teachers Association told news reporters that the ISTA would pay all fines levied against individual striking teachers. See the Marion Chronicle-Tribune, September 1, 1978.
BUSINESS HORIZONS
given the so-called "tax revolt," the call for more detailed accountability on the part of schools generally, inflation, and an escalation in the cost of living. One can anticipate demands for at least "cost-of-living" raises in the coming year, presidential guidelines notwithstanding. In addition, job security for teachers will probably increase in its negotiating impact, since school boards in the past five years have reduced the n u m b e r of teaching positions available in response to decreasing school enrollments.
PREVENTING TEACHERS' STRIKES Does Binding Interest Arbitration Work? In response to strikes b y unionized teachers in numerous states, an increasing amount of discussion and consideration is being given to an impasse procedure referred to as "final offer arbitration" or "last best offer" arbitration. This is a procedure in which each party submits a "last best offer" to the arbitrator, who chooses one of these offers in its entirety as his final decision. Under such an approach, the arbitrator is not permitted to make compromises or change in any way the parties' offers. This m e t h o d is intended to increase the risk to the parties involved if they do not settle b y themselves and to encourage negotiated agreements. 3 3. See Terms in Public Sector Labor Relations: A Practitioner's Guide (Bloomington: Indiana University Center for Public Sector Labor Relations, n.d.): 36.
Teachers' Strikes: A Growing Public Policy Dilemma
"The notion that binding arbitration, in whatever guise, is a valid deterrent to teachers' strikes assumes that the worst possible calamity that could happen to a school and community is a teachers" strike. But it isn't. Loss of control by the citizens over the public schools is a far worse catastrophe-and a much greater threat, since it is usually a gradual process which occurs at the bargaining table over several years; actual transfer of authority often lies buried in the language of numerous clauses which are quite undramatic and often shrugged off by board members as 'unimportant legalese.' As Paul Berninger, chief negotiator for Cincinnati, has said, 'arbitration only strips the city of control over salaries and spending. With arbitration, the unions truly have nothing to lose and everything to gain.' "
Governor Joseph P. Garrahy of Rhode Island has proposed a form of binding finaloffer arbitration to prevent teachers' strikes. Governor Hugh Carey and the New York state employees' union have also agreed to use the final-offer technique in the coming year, should the need arise. In each case, the individuals involved stress that the arbitrator must consider the state's ability to pay when making his or her choice. Lawmakers in other states, along with a number of experts in labor relations, education, and other fields, are also touting binding final-offer arbitration as the "credible deterrent" to strikes by teachers .4 The notion that binding arbitration, in whatever guise, is a valid deterrent to teachers' strikes assumes that the worst possible calamity that could happen to a school and community is a teachers' strike. But it isn't. Loss of control by the citizens over the public schools is a far worse catastrophe-and a much greater threat, since it is usually a gradual process which occurs at the bargaining table over several years; actual transfer of authority often lies buried in the language of numerous clauses which are quite undramatic and often shrugged off by board members as 4. Eugene McCarthy and James Kilpatrick have described a "credible deterrent" as follows: "The deterrent does not know, or care to know, what is coming. The theory is that anything or anyone, knowing that the 'deterrent' is waiting, will not come." See McCarthy and Kilpatrick, A Political Bestiary (New York: McGraw-Hill, 1979):
"unimportant legalese." As Paul Berninger, chief negotiator for Cincinnati, has said, "arbitration only strips the city of control over salaries and spending. With arbitration, the unions truly have nothing to lose and everything to gain. ''s A serious problem inherent in arbitration is that the weaker of the two parties at the bargaining table will tend to call for arbitra. tion as opposed to hard bargaining to reach a settlement. There is also the legitimate concern that arbitrators often apply Solomon's technique of "splitting the baby" in making an award. The practical effects of such a method would, over a period of years, trans. fer piece after piece of the school district's authority to control policy, instruction, and other matters which, in the private sector, would be considered at the core of the enterprise and therefore probably not man. dated for bargaining. Further, in the event that either party desired to roll back a given provision of a former agreement because of its particularly confining or "obnoxious" nature, there would be little chance of an arbitrator making such a decision. In a very real sense, compulsory binding arbitration would cause a community's elected or appointed governmental agency, the school board (and, by extension, the state government), to lose control of decision mak-
5. Quoted in the Cincinnati Enquirer, February 6, 1979.
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ing to a private self-interest group--the teachers' union--either through bargaining or through an arbitrator's award. Either way, the public loses and the union gains. Yet according to some politicians, academicians, and union leaders, this is the way to prevent teachers' strikes.
Instituting Due Process
56
School boards do have at least one alternative available to them to prevent teachers' strikes. This course of action, seldom utilized, involves the immediate institution of required due process and the termination of striking teachers under applicable state law. School employers, on behalf of the communities they serve, thus reserve the rights of citizens to control the schools they pay for and send their children to by doing no more than invoking the law. This school board alternative is, at this time, p r o b a b l y the only course of action which m a y be pursued to bring a halt to destructive and illegal strikes b y public school t e a c h e r s - a n d to prevent total capitulation to union demands and the transfer of authority over public schools from the public to union leaders.
COLLECTIVE B A R GA I N I N G: THE RECORD In the early 1960s, a period when teacherschool employer collective bargaining emerged, politicians, teachers' organizations, and an occasional academic argued that collective bargaining with teacher organizations was entirely appropriate and not an activity that local school boards should be too concerned about. Of course, at that time no one had any evidence either to support or refute the concept; thus the foundation of arguments pro or con was a mixture of intuition, speculation, and self-interest on the part of the "experts." Such is not the case today. There now exists a growing body of literature that ought to serve as a guide for municipal, state, and federal legislators. The public can now draw upon almost two decades of experience in the field of public sector bargaining to judge the merits of such a system, and it can only conclude that collective bargaining for employees in the public sector constitutes extremely undesirable public policy. 6
6. For a more detailed discussion of this point, see Myron Lieberman, "Eggs That I Have Laid," Phi Delta Kappan, February 1979: 415-419.
"School boards do have at least one alternative available to them to prevent teachers' strikes. This course of action, seldom utilized, involves the immediate institution of required due process and the termination of striking teachers under applicable state law. School employers, on behalf of the communities they serve, thus reserve the rights of citizens to control the schools they pay for and send their children to by doing no more than invoking the law. "This school board alternative is, at this time, probably the only course of action which may be pursued to bring a halt to destructive and illegal strikes by public school teachers--and to prevent total capitulation to union demands and the transfer to authority over public schools from the public to union leaders."
BUSINESS HORIZONS
Teachers' Strikes: A Growing Public Policy Dilemma
In its recent report, Public Sector Bargaining and Strikes, the Public Service Research Council concludes: "The data presented in this study would indicate the development of certain definite "-.5.' trends. Namely, public-sector unions representing bargaining units covered by collective bargaining legislation have exhibited a greater tendency to strike after enactment of legislation than before and a greater tendency than units not covered by legislation. While the levels of public-sector strike activity have risen across the country, they have risen higher and faster in areas covered by compulsory collective bargaining legislation . . . . it can only be concluded that compulsory public-sector bargaining is unsuited as a system of labor relations in the public sector."
TEACHERS' STRIKE PARTICIPANTS In most instances of teachers' strikes, there are several sets of participants. Obviously, the central actors are the school employer (or board of education) and the teachers' union. In addition, several other participants are seen to be involved to a greater or lesser extent: - The state labor relations board, 8 national/state teachers' union leaders, media representatives, and - school administrators and others not in the bargaining unit. -
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The School Board During a teachers' strike, the citizens who support, finance, and patronize the public
7. Public Sector Bargaining and Strikes (Vienna, Virginia: Public Service Research Council, 1979). 8. In states where no enabling statutes exist, no labor board will typically be involved. Similarly, in some states, such as Tennessee, no such agency was created to administer negotiation; thus the court system is often involved. Courts also play a role when the employer seeks to enjoin striking teachers in some manner.
schools seem either not to realize or simply to ignore the reality that a teachers' union is not negotiating with the superintendent and other administrators (who are, after all, simply a different classification of employee), and that it is not attempting to wrest concessions from the five, seven, or n i n e individuals who comprise a board of education. In fact, the teachers' union is engaged in a struggle to obtain control of the public schools through the collective bargaining process. In effect,
the union is bargaining with the entire community. Citizens, however, appear to have taken the position that the schools "belong" to the school board, and sit passively by and watch the fireworks. In some instances, communities do not even take teachers 'job actions seriously. During a strike by teachers, rarely will a citizen or a group of citizens step forward in support of its board, its representatives. Thus board members who have no personal stake in the public schools, or at least no greater stake than other citizens do, find themselves under verbal and sometimes physical attack by Iocal union leaders and the usual "visiting" union officials, who seem always to sense the possibility of a fresh carcass. 9
School board members, drawn from a cross-section of the community, rarely possess the knowledge or time to carry out actual bargaining with their union counterparts. Yet in a growing number of communities, board members find themselves under pressure from the teachers' union to do the actual bargaining and writing of the contract. In the event of a teachers' strike, members of boards of education typically find 9. As an example, the St. Louis Globe-Democrat, in a story which appeared on January 16, 1979, in the midst of a teachers' strike in that city, noted that "forty-five representatives of various unions from throughout the country have been here for weeks, advising teachers concerning negotiations and what to do in the event of a strike . . . . A local union spokesman said 'those out-of-town representatives will be needed to keep up the strikers' fervor. In the public sector, we need to hold numerous rallies to maintain a good strike posture . . . . ' )'
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themselves isolated from their community. Even in instances where a board or community has been "targeted" for strike action by one or more levels of the teachers' organization, and seemingly could not avoid a strike short of total capitulation, citizens press for "peace at any price." "Isolation," pressure from the union, and a growing perception among board members that somehow they are the sole cause of the community upset seem to have the effect of weakening board resolve during a strike by teachers. A typical school board response to a teacher walkout is to obtain a court injunction to force teachers to return to classrooms, or to seek to limit strike activities such as picketing or interfering in other ways with school operations. Following such action, boards commonly take a "wait-it-out" posture. And waiting it out has been the conventional response in strike situations) 0 Such a response assumes that management cannot "win" a short strike by teachers; a long strike is preferable to cause striking teachers to feel an economic pinch. Such an approach, rooted in private-sector strike dogma, might be effective if in fact teachers' negotiations and private-sector bargaining were the same, but they are not. Privatesector bargaining is largely economic in its Impact. Negotiation by teachers, on the other hand, is a political struggle between two parties competing for control of a governmental institution. Economics is secondary in that both parties are fully aware of the finances bearing upon the schools, since they are a matter of public record. Teachers, and especially teachers' unions, simply assume that a given "share" of revenues available to a school system is rightfully theirs, and that
10. See, for example, The Strike Manual, jointly published by the Association of CaliforniaSchool Administrators and the Negotiation Support Service (1973), in which school employers are advised to "plan to take a long strike" (p. 2).
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they will get it anyway; thus the real union effort in bargaining focuses upon controlrelated policies like staff reduction, transfers, hours, and class size. Given the perceptions of community residents and the political nature of the struggle, school boards cannot "win" either a short or a long strike by teachers. Indeed, it is highly questionable that the school board can sustain any amount of public credibility once a strike Occurs,
The Teachers" Union As negotiators who deal with teachers' unions are aware, there is not simply one person or group representing the teachers in the local school system. There are indeed several, and they all have priorities. National teachers' unions, such as the National Education Association, have priorities, as do state teachers' organizations and local teachers' unions. And priorities for each of these unions may be different. The school board that ignores or is ignorant of the priorities at any given level increases its chances of experiencing protracted and perhaps bitter negotiations. A teachers' union which decides to strike in a given school district usually must devote considerable time, energy, and resources to "hyping" its rank and file. Thus such a strike decision usually involves some combination of the resources of local, state, and national organizations. Teachers' unions that strike are typically well organized, and their leadership-loca/, state, and national--is highly trained. Such training for bargaining, organizing, and strike actions usually has a strong philosophical basis and draws upon a wide range of published literature, including The
Anatomy of Revolution, Mao Tse-Tung on Guerilla Warfare, The Revolt of the Masses, and The True Believer. One approach to organizing and training of leaders of teachers'
Teachers' Strikes: A Growing Public Policy Dilemma
"When a teachers' strike is prolonged, local teachers cease to have primary control, and decisions come to be made by representatives of the state and national unions. These individuals have little or no concern for attitudes in the local community, since they are usually nonresidents. Thus community pressure on teachers to settle is effectively deflated. The same is true of any influence which might be brought to bear by local media on the teachers' union. This insulation provided to local teachers by state and national affiliates increases and grows stronger as a strike is prolonged. When the community and the local media cannot influence the teachers' side in a dispute, the full weight of criticism and pressure falls upon the school board, which is unable to 'insulate' itself."
organizations would seem to derive at least in part from the writings of Saul Alinsky. 1 When a teachers' strike is prolonged, local teachers cease to have primary control, and decisions come to be made by representatives of the state and national unions. These individuals have little or no concern for attitudes in the local community, since they are usually nonresidents. Thus community pressure on teachers to settle is effectively deflated. The same is true of any influence which might be brought to bear by local media on the teachers' union. This insulation provided to local teachers by state and national affiliates increases and grows stronger as a strike is prolonged. When the community and the local media cannot influence the teachers' side in a dispute, the full weight of criticism and pressure falls upon the school board, which is unable to "insulate" itself.
The State Labor Board State teacher-bargaining legislation often provides for the formation of a labor board, such as the New York Public Employment Relations Board (PERB), the Indiana Education Employment Relations Board (IEERB), and the Wisconsin Employment Relations Com-
11. Alinsky's published works include John L. Lewis; Reveille for Radicals; The Professional Radical: Conversations with Saul Alinsky; and Rules for Radicals.
mission (WERC). Generally, such labor boards provide mediation, fact-finding, and arbitration assistance upon request to parties in a bargaining dispute? 2 In the event of a teacher strike, the labor board will typically make it known to the parties that it is willing to assist them to end the strike through a mediated agreement or through binding arbitration if the parties are willing. Other than through such overtures, labor boards usually play a minor role in negotiations, unless unfair labor practice complaints are voiced. This is probably as it should be, since neither school boards nor unions would advocate that a labor board should have the power to impose a settlement.
Media Representatives The role played during a teacher strike by the news media deserves more attention than is possible here. But it can be said that very few journalists take the trouble to become fully informed about teacher-school board bargaining. Unfortunately, a number of media representatives take the view that collective bar-
12. Some statutes provide that the labor boar~t may assign neutrals to impasse situations; however, most often such intervention is made only upon request. See, for example, Indiana Code 20-7.5-1-12 (c) (d).
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gaining in the schools is a case of much ado about little, but any resultant conflict is often exploited in the name of circulation, listeners, or viewers. One editorial writer for a large daily paper in a southern city noted in an address to school negotiators that he viewed collective bargaining in schools as simply "an extension of the budgeting process." Another midwest daily saw nothing to be concerned about in its story captioned "Teachers Seeking Equality with School Board in Policy Making." Ignorance of what is at stake in school negotiations, and the c o m m o n misconception that local teachers and board members are engaged in little more than settling salaries for the coming year, combine to weaken media coverage of a strike. Public credibility is thus often lost and the media is unable to inform or influence the c o m m u n i t y in an accurate, meaningful way.
School Administrators For most administrators and other specialists employed b y the schools but not in the teachers' bargaining unit, a teachers' strike presents a nightmare of divided loyalty, upset, and confusion. In strike situations, such employees find themselves assigned to numerous tasks, some familiar and others not. T h e y are often criticized by striking teachers, by parents, by the superintendent, and by school board members for either doing or saying the wrong things. The problem, felt most acutely by building principals, is that these administrators and supervisors are often the least involved in bargaining while at the same time they are the primary contract and " c o n t a c t " administrators. T h e y work most closely with teachers and receive their grievances firsthand. This same group is then expected to lead in the effort to bind up the wounds once the dust of the strike settles.
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WHAT CAN BE DONE? Illegal strikes have occurred in too many communities too often to be swept under the rug with the sigh that "at least, thank goodness, it's over." An examination of the law prohibiting strikes may be in order, but if a decision is made to change the law, it should be through the legislative process and not through default by weak public officials who have been cowed by lawbreakers. Stated simply, the law should either be changed or enforced. To do otherwise is to take the position that the law doesn't matter when it tells you what you don't want t o hear. This would appear to be the lesson learned by teachers on strike. Events d o c u m e n t e d here and elsewhere show that teachers strike illegally because they have been shown that they c a n - w i t h impunity. But boards of education cannot long endure a teachers' strike, and citizens who have already paid taxes for educational services should receive what they paid for. In most teachers' strikes, boards of education, as a " s e t t l e m e n t " gesture, c o m m o n l y agree to what is referred to by unions as a "no reprisals clause" in which the board essentially agrees to forgive and forget the illegal acts of teachers during the walkout. Such an a g r e e m e n t - a n d it will be necessary for a board to agree to such a provision unless it is willing to invoke due process and dismiss teachers who strike-has the effect of encouraging the idea that what is done by a mob is permissible while individual acts should be punished. Is it feasible for a school board to initiate due-process proceedings against striking teachers and dismiss them if necessary? Is this a practical solution? The facts of school bargaining in recent years suggest that boards of education probably have only one other alternative in the short or the long run-total capitulation to teachers' union demands. [Z]