Avoiding the Ratification Trap

Published August 1, 2007

In 1971, I served as an expert witness for the National Education Association (NEA) in two legal cases.

In one, the North Carolina NEA affiliate was challenging a state law banning public-sector collective bargaining. The other involved an NEA effort to render Florida’s sunshine laws–those requiring public business to be conducted in announced meetings open to anyone–inapplicable to collective bargaining in public education.

In North Carolina, my side lost. In Florida, it won, and I received a congratulatory note saying my testimony played a significant role in the victory.

Today, however, I believe my testimony in both cases was wrong on the issues.

Were I to testify again on these matters, I would say collective bargaining in Florida and as proposed in North Carolina should be struck down unless dramatically revised. Because the issues are important and still active, let me tell you why I’ve changed my mind.

Lacking Information

Theoretically, school boards represent the interests of third parties–pupils, parents, vendors, taxpayers, etc. This is impractical in the bargaining context, however. School boards cannot elicit the reactions of others to last-minute union offers and counter-offers and meld them into a coherent position at the table.

Other parties have not been at the table and will not be knowledgeable about the data and reasons for and against the proposals, as these can change at any time. Bringing up-to-date new parties to the table would be highly disruptive.

In addition, the usual practice in such negotiations is that the union and school board agree neither will release any statement to the public on the progress of negotiations until agreement is reached on the entire contract or the parties have reached an impasse. Obviously, such agreements minimize the time available to others to study and express their views on the proposed agreement before it becomes public policy.

Once the parties reach agreement on a contract, the union wants it ratified as soon as possible in order to minimize opposition from union members. School boards share similar concerns–they do not want to give outside parties time to organize opposition. I have sometimes participated in situations in which the union ratified the agreement in the afternoon and the school board ratified it the same evening.

Deflecting Complaints

After school board ratification, the response to any parental complaint often is sympathy for the complainant … and then to point out that the contract with the teachers union precludes the remedy sought.

If the complaint is about teacher unavailability, the principal may note the contract defines the teacher workday to be from 8:30 a.m. to 2:30 p.m.–therefore, the administration cannot require teachers to be present after 2:30 p.m. or on weekends. If the complaint is about a teacher, the administration may respond that it must be given in writing, with specific dates, times, persons present, and remedy sought, so the teacher and his or her union representative can respond.

In short, the school district’s response may be, “We can’t do anything about it because of the contract,” or “You have to take actions A, B, C, D, and E before we can act on your complaint.”

This is how many parents and taxpayers learn about the provisions in a teachers union contract–but the learning comes too late to avert parental helplessness.

Different Process

To understand what happens in these cases, bear in mind that the agreement between the school board and the union is legally binding public policy for its duration. It is public policy, like speed limits, zoning restrictions, qualifications for public office, and thousands of other government policies. The difference is not in the status of the policies adopted in collective bargaining, but in the process leading to their adoption.

Under normal school board processes, proposed policies are submitted to the school board, which might refer them to a subcommittee for review. The proposals would go on school board agendas to be considered at scheduled meetings open to anyone. All interested parties would have time to submit their reactions before a vote on the proposal.

Public meetings are scheduled, agendas announced, supporters and opponents notified, and media are allowed to observe and comment on proposed legislation.

If adopted, there is no legislative bar to changing the policy at any time thereafter. There is no legal bar against any citizen attending a school board meeting and urging support or opposition to a proposal. Despite exceptions and qualifications, this is the common pattern.

Changing the System

The bargaining process, which sets the rules governing about half of school board expenditures, violates our basic norms for making public policy, but when the process is defined in bargaining terminology, the underlying violation of our political norms is obscured.

Absent judicial decisions restoring the public’s ability to control school district policy-making, the most helpful action relates to ratification. State law should require school boards to post collective bargaining agreements on their Web sites for at least 30 working days prior to board action on the proposed agreement.

Such action, with telephone numbers and e-mail addresses to respond to questions about the agreement, would provide a much-needed correction to the situation.

The most effective solution would be a state law mandating an interim period for interested parties to react to proposed contracts. This solution could also be a winning issue in school board elections. Activists at the local level would achieve some surprising victories, despite the inevitable opposition from public employee unions and their allies in government.

Myron Lieberman ([email protected]) is a union expert based in Washington, DC.