Collective Bargaining and Teachers' Unions
Collective bargaining is a process where a group of employees, such as teachers, come together to negotiate employment terms with their employer, often through a union. Teachers’ unions, prevalent across the United States, advocate for better wages, improved working conditions, and other employment-related matters. The two major unions, the National Education Association (NEA) and the American Federation of Teachers (AFT), emerged in the early 1960s, benefiting from legislative changes that allowed public sector workers to organize and bargain collectively. While negotiations can often be adversarial, strategies like collaborative bargaining aim to promote mutual gains and foster more positive relationships between unions and school administrations.
The impact of collective bargaining on education policy has been significant, especially with federal initiatives like the No Child Left Behind Act, which introduced accountability measures that unions have contested. Collective bargaining rights vary dramatically by state; while most states require school districts to negotiate if a majority of teachers support a union, a few states have made such bargaining illegal. The ongoing debate around the effectiveness of collective bargaining continues, with some arguing it enhances teacher quality and student outcomes, while others criticize it for creating bureaucratic hurdles that can hinder necessary reforms in the educational system. Understanding these dynamics is crucial for grasping the role of teachers’ unions in shaping educational policy and practice.
Collective Bargaining and Teachers' Unions
The process of collective bargaining is fundamental to the union movement. Teachers' unions in all but five states may use collective bargaining to negotiate for higher wages, improved work conditions and other terms of employment that are determined by state statutes. Negotiations are by their nature adversarial, but bargaining teams can use proven strategies to achieve mutual gains. There has been call for reform of the collective bargaining process, and the Bush administration, backed by the No Child Left Behind Act of 2001 (NCLB), has asserted pressure to include achievement goals in bargaining agreements, merit pay and more flexibility to transfer teachers. Unions have resisted and so far NCLB has had little impact at the negotiating table, but there have been other indirect changes outside of it. Union leaders contend that collective bargaining has in the long run improved student achievement.
Politics, Government & Education
Overview
Although each has roots going back as far as the mid-nineteenth century, the two largest unions in the United States, the National Education Association (NEA) and the American Federation of Teachers (AFT), did not flourish until the early 1960s. Until that time, public employee unions were restricted and did not have the right to bargain collectively. After President Kennedy issued Executive Order 10988 in 1962 that granted federal employees the right, many states followed suit and enacted legislation that allowed their public employees, including teachers, to organize.
The teachers' unions were modeled on the industrial labor unions that won their rights to organize in the 1930s. The early days of the labor movement were contentious and even violent, and industrial employers had the upper hand. Passage of the Norris-LaGuardia Act of 1932 and the National Labor Relations Act (NLRA) of 1935 ensured that labor unions and their members were protected and their First Amendment constitutional right to peaceable assembly was assured.
By the early twenty-first century, the power of industrial unions had waned and employees in public sector unions outnumbered those in the private; 35.9 percent of public employees belonged to unions in 2012 while only 6.6 percent of private employees did (U. S. Bureau of Labor Statistics, 2013). In 2010-11, the nation's two largest teachers' unions boasted a combined membership of 4.6 million (Winkler, Scull & Zeehandelaar, 2012).
The desire for a fair wage and improved working conditions are two issues that spawned the labor unions for both industrial workers and public sector employees including teachers and government workers. Consequently, in the 1960s, state laws were written that defined negotiable topics for public employees and laid out the often complex processes for forming, joining, and operating a union.
Negotiable issues vary from state to state but almost always include salaries and benefits, but other items such as evaluation and grievance procedures, job assignments, and education-related issues such as academic freedom and student discipline. Local units of the larger national and state union organizations are responsible for bargaining with local school districts, although some states, such as Oregon and Rhode Island (McComb, 2000; "Report Submitted," 2004), have explored state-wide negotiations.
Although membership in the large unions is not growing so rapidly and they have been challenged by non-union organizations, they are still a force. In June of 2007, the Missouri Supreme Court ruled that public employees in that state had the right to engage in collective bargaining, which overturned 60 years of legal precedent (Honawar, 2007a). On the other hand, as of 2009, twenty-three states had right-to-work statutes to counteract what is known as union security (U.S. Bureau of Labor Statistics, 2009). Teachers in those states are not compelled to join a union.
How Collective Bargaining Works
Collective bargaining is practiced when a group of employees with like interests join together and elect a single organization to represent them in contract negotiations with their employer. Negotiators work toward completing collective bargaining agreements, which are "… complex and often lengthy written contracts that are legally binding on both management and the union(s) representing its employees" (Lunenberg, 2000, p. 4).
Teachers may not be the only employees in a school district who are organized. Support staff, maintenance, and even administrators may belong. However, depending on state laws and local history, they may be members of the same or separate units. It is usually in the best interests of both unions and school districts to have a minimal number of bargaining units, but only those who share a "community of interests" as defined by state statutes may come together in a specific unit. Many states have a public employee relations board (PERB) that oversees the regulations (Imber, 2004, p. 233).
When it is time to negotiate a contract, each side selects its representatives to serve on a negotiating team. Negotiating parties are required to negotiate in good faith. An unwillingness of either party to bargain over an item that is mandatory by state law is considered negotiating in bad faith and a violation or "unfair labor practice." Teachers' union and school district representatives meet until a contract is negotiated for whatever period of time they determine. Negotiations take place in face-to-face meetings, and the parties exchange proposals and counterproposals. If an agreement cannot be reached, the parties are at an impasse and further procedures are followed until there is resolution. The sequence of alternative methods to reach resolution is mediation, fact finding, and arbitration (Lunenberg, p. 9).
Circumstances for Strike
A strike may be called when an impasse cannot be resolved and union members refuse to report to work. A lockout is the opposite of a strike; the employer does not provide work and shuts down the schools. Only a dozen states allow strikes (National Council on Teacher Quality, 2013), and there are conditions before one may be called, such as giving prior notice. Major strikes such as the September 10-18, 2012, teacher strike in the Chicago Public Schools can include tens of thousands of teachers and may address wide-ranging issues from health benefits to hiring and firing of teachers to curriculum oversight (Ashack, 2013). Strikes are increasingly rare and are outlawed in most of the country's major cities; however, even though strikes are illegal, that does not mean that a union will not initiate one.
After decades of experience, most of the nation's teachers unions and school districts have developed techniques and processes to improve the collective bargaining process and to avoid impasse and strikes, which are costly to all parties, not least of all to students.
Collective bargaining originated as an adversarial process, but increasingly professional educators and administrators who must negotiate a contract have been trained to defuse it and turn it into a positive for both sides.
Collaborative Bargaining
Collaborative bargaining has been used for quite some time as a strategy to lessen the stress of collective bargaining (Liontos, 1987). Also known as "win-win" bargaining, collaborative bargaining encourages problem solving between the parties and frequently uses joint committees that meet during the contract period instead of waiting until a contract expires and they meet at the negotiating table. The term "professional unionism" describes the processes that unions and schools have used to move the adversarial negotiating processes into expectations by both sides for mutual gains. It is a system that "connects teacher participation in educational decisions to taking responsibility for outcomes" (Lunenberg, 1996).
Principal-Centered Negotiations
The school principal is regarded as having the pivotal role in promoting professional unionism and encourages a proactive approach to dealing with human resources and other negotiable issues. The negotiated contract has a day-to-day impact as well as long-term affect on the activities of a school, and as front-line administrator, the principal is there to respond to the issues as they arise (Lunenberg, 1996).
Bennett and Gray (2007) advocate principal-centered negotiations. Their experience in California suggests that principals should be on negotiating teams and charged as advocates for quality educational services, which are often lost when "fiscal considerations become the primary focus of negotiations" (Bennett & Gray, 2007, p. 22). They argue that school districts spend more time on financial preparation for negotiations than on academic concerns and recommend that the schools become more proactive by making a link between the union's salary demands to student achievement. "Collective bargaining contracts must support and encourage the delivery of high-quality educational services for students and not impede or harm the delivery of those services" (Bennett & Gray, 2007, p. 24).
Advocating that site administrators be at the center of collective bargaining is further justified by Hewitt's (2007) research. He used Myers and Briggs Type Indicators (MBTI) to understand teachers' personalities and the school environment that they inhabit. Based on his analysis, the teacher populations exceeded the general population as predominately Sensory Judging (SJ) individuals (49%), who are tagged as givers, have a strong sense of duty, and meet their obligations, and secondly as Intuitive Feeling (NF) individuals (26%), who are sensitive, care for other human beings, and allow emotions to rule their judgment. He then offered specific recommendations for district officials for communicating effectively with teachers of these types. These personality types respond to "ongoing communication, personal contact and recognition of the valuable … individuals making up our teaching staffs … [and] … are the most important factors in successful collective bargaining" (Hewitt, 2007, p. 30). Who better to understand this than the school principal?
Effects of Federal Legislation on Union Negotiations
The No Child Left Behind Act (NCLB) has been a factor in all major educational policy decisions and actions in the U.S. since President George W. Bush signed it into law in 2002. The act mandates that schools meet improvement standards and that all children must be taught by a highly qualified teacher. Schools have struggled to meet the mandates, and teachers' unions have fought them, even bringing suits against the Department of Education.
There were early concerns that the provisions of NCLB might override collective bargaining agreements. Unions were wary that school districts would use NCLB compliance to undercut bargaining (Keller, 2006). Among the most provocative provisions of NCLB to teachers and unions was that if a school were found "in need of improvement" for at least four years, it might trigger disbanding an entire school staff and thereby run afoul of contract provisions offering job protection on the basis of seniority.
The NCLB does contain the provision that nothing in the law "shall be construed to alter … the terms of collective bargaining agreements" (cited in Keller, 2006, para. 4). Despite this, there were continued concerns among the union members that the door would be opened to negotiate around NCLB requirements in subsequent contracts. There were fears that the Bush administration would push to have unions relinquish some "seniority privileges, pensions, and performance pay" (Keller, 2006, para. 4). However, the Department of Education backed off, and it was acknowledged that collective bargaining and the unions had won the day.
By 2011, it had become apparent that NCLB was not working as intended, and waivers were made available for states that promised to set and meet achievable alternative benchmarks for progress in underperforming schools ("No Child Left Behind," 2011). The Obama administration changed the focus to its Race to the Top program, established in December 2009, in which states compete for funds based on student achievement. Much as NCLB did before it, Race to the Top measures achievement via student performance on standardized tests and ties it to teacher evaluations (Heitin & Cavanagh, 2011). Consequently, test-based accountability and teacher assessment have become hot-button subjects in teacher contract negotiations. Further, in early 2011, over a dozen states passed laws changing or restricting collective bargaining by teachers' unions, tenure policies, hiring and firing practices, and evaluations.
Further Insights
Collective Bargaining by State
The following graphic clearly illustrates the status of collective bargaining statutes in the fifty states:
Figure 1: Collective Bargaining Rights by State (From National Council on Teacher Quality, 2013)
State requires collective bargaining by school districts if a majority of teachers vote for union representation. (34 states and the District of Columbia) Collective bargaining is permissible. Teachers may petition for representation but district school boards decide whether or not to engage in collective bargaining. (11 states) Collective bargaining is explicitly illegal. Teachers may join professional association. (5 states) Source: http:://www.nctq.org/cb/search.jsp
State Statutes & Regulations
Each state government regulates rights for its public employees and employers, including teachers and school districts. Each has also enacted statutes that cover the rights to organize (or not) and collective bargaining. A collective agreement is enforceable under state law.
As an example, under its labor laws, New York State has a specific Labor Relations Law, article 20. The law establishes an employment relations board and defines the rights of employees and unfair labor practices.
Section 703 reads:
Employees shall have the right of self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities, for the purpose of collective bargaining or other mutual aid or protection, free from interference, restraint, or coercion of employers, but nothing contained in this article shall be interpreted to prohibit employees from exercising the right to confer with their employer at any time, provided that during such conference there is no attempt by the employer, directly or indirectly, to interfere with, restrain or coerce employees in the exercise of the rights guaranteed by this section (New York State Labor Relations Act, 1937).
The Labor Relations Law is followed by article 20-A, the Labor and Management Improper Practices Act, which was directed at union personnel and administration who abuse the system and fail to meet fiduciary obligations.
Teachers' Contracts
Most teachers' contracts cover a period of two or three years and are lengthy documents. An example is the Denver School District's for the time period from September 1, 2005 to August 31, 2008 (National Council for Teacher Quality, 2007). The contract was typically lengthy, running 134 pages. The Denver team employed "interest-based bargaining" in achieving the agreement, which they expected to "contribute to the joint ownership, enforcement and commitment of the resulting Agreement" ("Agreement," 2005, p. 4). It established committees to promote a collaborative approach to student achievement, instruction and educational reform, and a Task Force on School and District Climate. It also delineated a grievance procedure and includes procedures for handling assaults on teachers and by teachers. As expected, the contract also details salary, benefits, extra duty compensation, and leave policies.
Fuller and Mitchell (2006) use the Milwaukee Public Schools' 232-page contract from 1997, which had 2,000 supporting documents, to illustrate what is wrong with collective bargaining. They view the contract as a complicated guide for a school district that is steeped in "an endless debate about what is and is not allowed in the daily governance of the school system and the creation of an environment where interests of students are routinely subordinates to those of adult teachers."
There are those, however, who would argue that a detailed, presumably unambiguous, clearly written contract serves as an operating guide for teachers and administrators, and the length is not necessarily an indicator of bureaucracy. Fuller and Mitchell (2006) argue that the public should have greater awareness of the collective bargaining process, but do not recommend eliminating it.
Viewpoints
What impact does a unionized faculty and collective bargaining have on students and the educational system? Data can be found to support both sides of the issue. Some see teachers' unions and school boards as having the most entrenched and archaic procedures in the public sector, while others see that collective bargaining has been good for schools and that the best interest of students has been served.
The pressure for higher standards and accountability has forced both unions and administrators to rethink their approach to collective bargaining agreements. Superintendents in some school districts point to contracts as restricting improvements. Hess (2005) worries that "teacher contracts usurp managerial authority, stifle creative staffing, and protect ineffective educators" (p. 32). Those who defend unions claim that collective bargaining can be a tool to improve teacher quality and professionalism.
In his study, Hess (2005) looked at how collective bargaining affects improvement and reform in twenty school districts. He found that negotiations in the twenty school districts were generally quiet affairs and prompted little publicity. He also discovered that contracts were less restrictive than school district administrators perceived and their language was more ambiguous than expected. He advises that most school administrators are less assertive about exercising management prerogatives than the language in their contracts allows.
Hess and West (2006) indict collective bargaining agreements calling them "a harmful anachronism in today's K-12 education system, where effective teachers are demanding to be treated as respected professionals and forward thinking leaders are working to transform schools into nimble organizations focused on student learning" (p. 2).
The paper reiterates Hess's argument that school officials should not be afraid to spotlight and work to correct ambiguities in union contracts. Hess and West also advocate tracking student progress and tying it to teacher pay and professional development. Choice and competition are additional keywords that they use to advocate for creating more charter schools.
Kerchner and Koppich (2007) approach the issue from a different perspective. They agree that the labor union model is in need of some revision but think that it should be retained, and recommend drafting a new labor law that includes student achievement goals. They believe that professional unionism has waned and should be renewed as teachers are willing and capable to take on more responsibility for improving performance, more so than is commonly thought. Education, and the process that distributes money and authority, they say, "needs to attach … private interests to the larger public good of student achievement" (p. 356).
Terms & Concepts
American Federation of Teachers (AFT): The United States' second largest union of educators traces its origins to 1916 and is closely aligned with the labor movement as an affiliate of the AFL-CIO, the congress of labor unions. Most of its locals are in urban areas.
Arbitration: Usually the last step in the process when negotiators are at impasse and all other alternatives for resolution have failed. The arbitrator chooses one proposal or the other. "Binding arbitration" means that the decision is final and parties must accept it.
Collaborative Bargaining (or Negotiating): Involves techniques to deal with issues as they arise rather than waiting for them to be presented at the negotiating table. Schools frequently have committees that meet as problems surface, and the negotiators are trained to use cooperative processes and to expect mutual gains by both unions and administrators. Collaborative bargaining is synonymous with win-win negotiating.
Collective Bargaining: A process where a group of employees with like interests join together and elect a single organization (union) to represent them in contract negotiations with their employer.
Fact Finding: Using a group or committee to report on facts that are presented to both parties who are at an impasse in negotiations. Their "recommendations are generally made public, which places additional pressure on the parties to come to agreement" (Lunenberg, 2000, p. 9).
Good Faith/Bad Faith Negotiating: Union and administrative representatives are expected to join the negotiating table and bargain in good faith, i.e., they subscribe to following the state laws and procedures for negotiating. Negotiating in bad faith is an unwillingness to negotiate in violation with state law or proscribed procedures.
Lockout: Also called a shutout, rarely employed in education, occurs when the employer shuts down the organization so that the union members cannot work. It is the opposite of a strike.
Mediation: The process where a neutral party meets with negotiators who are at impasse and helps them work their way to compromise.
Myers-Briggs Type Indicator (MBTI): A popular and widely used personality-assessment tool. The test has been used for since the early 1940s and "both critics and supporters say that … [it] … endures because it does a good job of pointing up differences between people, offers individuals a revealing glimpse of themselves and is a valuable asset in team-building, improving communication and resolving personality-based conflict" (Shuit, 2003). It is used for personal and interpersonal understanding, organizational development, and career planning.
National Council for Teacher Quality (NCTQ): An independent organization that receives no federal funds but is privately funded by a number of foundations, including the Bill and Melinda Gates Foundation. Their website includes a large database of collective bargaining agreements, board policies, and teacher handbooks from the fifty largest school districts.
National Education Association (NEA): The largest teachers' union in the United States and has as its motto, prominent on its website: "Great public schools for every child."
National Labor Relations Act (NLRA) Wagner Act of 1935: The act protects employees who choose to organize and "to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid and protection." The law also provides for the National Labor Relations Board that enforces union member rights.
No Child Left Behind Act (NCLB): Federal legislation enacted in 2001. A primary goal of the act is to close educational achievement gaps and to bring underperforming schools up to higher, acceptable standards. This includes the requirement that every child should be taught by a highly qualified teacher. By 2011, waivers were available for all states, provided that they could set and meet achievable benchmarks for progress ("No Child Left Behind," 2011).
Public Employee: An employee who works for a public or tax-supported entity, such as school or government agency, as opposed to a private entity, usually a business or professional office that is owned by individuals or shareholders. Employment laws for public employees of state or local governments or school districts are set by the states and may vary.
Professional Unionism: A phrase used to describe the movement away from adversarial relationships and the mutual belief of union and management that negotiating can be a "win-win" process. Fred. C. Lunenburg cites Charles Kerchner's comparison of industrial versus professional unionism in his article on union-management relations: industrial unionism emphasizes separation of labor and management, adversarial relationship, and protects teachers; professional unionism emphasizes collaboration, the strength of the whole, and protection of teaching.
Right-to-Work States: States that have passed laws that ensure that unions cannot make being a member a requirement of employment either before or after hiring an employee.
Strike: Refusal to work. Strikes have historically been the most visible tactic of labor unions to achieve their goals in attempt to bring management to its knees. Teachers unions have held strikes when they have met impasse with their school districts, but it is not an effective public relations strategy as a teacher strike is viewed as denying school children their rights to receive a public school education. It is illegal for teachers to strike in most states, and although the law has not always stopped them, strikes have become increasingly rare in both public education and industry.
Unfair Labor Practice: May occur when an employer does not meet its obligation to the employee and violates labor law.
Union Security: Describes provisions in a contract that help ensure the survival of a union; i.e., requiring all employees to be members of the union and pay dues.
Bibliography
Agreement and partnership between School District No. 1 in the City and County of Denver, State of Colorado and Denver Classroom Teachers Association. (2005). Retrieved October 22, 2007, from http://www.nctq.org/contracts/27.pdf
Ashack, E. A. (2013). Profiles of significant collective bargaining disputes of 2012. Monthly Labor Review, 136, 50-53. Retrieved December 17, 2013, from EBSCO online database Education Research Complete. http://search.ebscohost.com/login.aspx?direct=true&db=ehh&AN=88863699
Bennett, R., & Gray, J. (2007). Principal-centered negotiations. Leadership, 36 , 22-24. Retrieved October 20, 2007 from EBSCO Online Database Academic Search Premier. http://search.ebscohost.com/login.aspx?direct=true&db=aph&AN=25151775&site=ehost-live
Department of Administration, State of Rhode Island. (2004). Cost / benefit analysis of a statewide teacher contract; report submitted to the General Assembly. Providence, Rhode Island: Department of Administration. Retrieved October 21, 2007, from http://www.budget.ri.gov/Documents/Special%20Reports/ 100%5FCost%20-20Benefit%20Analysis%20of%20a%20Statewide%20Teacher%20Contract.pdf
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Honawar, V. (2007a). Missouri's high court rules for union rights. Education Week, 26 , 17. Retrieved October 7, 2007 from EBSCO Online Database Academic Search Premier. http://search.ebscohost.com/login.aspx?direct=true&db=aph&AN=25383677&site=ehost-live
Honawar, V. (2007b). Online teacher-contract database launched. Education Week, 26 , 5-13. Retrieved October 16, 2007 from EBSCO Online Database Academic Search Premier. http://search.ebscohost.com/login.aspx?direct=true&db=aph&AN=23653843&site=ehost-live
Imber, M., & van Gell, T. (2004). A teacher's guide to education law (3rd ed). Mahwah, NJ: Lawrence Erlbaum Associates.
Keller, B. (2006). Report: NCLB law hasn't superseded contracts. Education Week, 25 , 8-9. Retrieved October 16, 2007 from EBSCO Online Database Academic Search Premier. http://search.ebscohost.com/login.aspx?direct=true&db=aph&AN=20493110&site=ehost-live.
Kerchner, C., & Koppich, J. (2007). Negotiating what matters most: Collective bargaining and student achievement. American Journal of Education, 113 , 349-366.
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Lunenburg, F. C. (1996). Union-management relations and school reform. Clearing House, 70 , 67. Retrieved October 16, 2007 from EBSCO Online Database Academic Search Premier. http://search.ebscohost.com/login.aspx?direct=true&db=aph&AN=9701212847&site= ehost-live
Lunenburg, F. C. (2000). Collective bargaining in the public schools; issues, tactics, and new strategies. Huntsville, TX: Sam Houston State University. (ERIC Document Reproduction Service No. ED452587). Retrieved December 15, 2007 from EBSCO Online Education Research Database. http://www.eric.ed.gov/ERICDocs/data/ericdocs2sql/content%5Fstorage%5F01/0000019b/80/17/00/ca.pdf
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Winkler, A. M., Scull, J., & Zeehandelaar, D. (2012, October). How strong are U.S. teacher unions? A state-by-state comparison. Washington, DC: Thomas B. Fordham Institute. Retrieved December 17, 2013, from: http://www.edexcellence.net/sites/default/files/publication/pdfs/20121029-Union-Strength-Full-Report%5F7%5F0.pdf
Suggested Reading
Casey, L. (2007). The quest for professional voice. American Educator, 31 , 20-47.
Cohen-Vogel, L., & Osborne-Lampkin, L. (2007). Allocating quality: Collective bargaining agreements and administrative discretion over teacher assignment. Educational Administration Quarterly, 43 , 433-461.
Hannaway, J., & Rotherham, A. (Eds.). (2006). Collective bargaining in education; Negotiating change in today's schools. Cambridge, MA: Harvard University Press.
Maciejewski, J. (2007). Broadening collective bargaining. District Administration, 43 , 34-39. Retrieved October 16, 2007 from EBSCO Online Database Academic Search Premier. http://search.ebscohost.com/login.aspx?direct=true&db=aph&AN=25782854&site=ehost-live
Wise, A. E., & Usdan, M. D. (2013). The teaching profession at the crossroads. Educational Leadership, 71, 30-34. Retrieved December 17, 2013, from EBSCO online database Education Research Complete. http://search.ebscohost.com/login.aspx?direct=true&db=ehh&AN=90424724
Wright, C., & Gundersen, D. E. (2004). Unions and teachers: Differences in the state of the nation. ALSB Journal of Employment and Labor Law, 10 , 1-12.