bargaining for better schools: an introduction to collective bargaining in illinois public...

8/9/2019 Bargaining for Better Schools: An Introduction to Collective Bargaining in Illinois Public Education

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BARGAINING FORBETTER SCHOOLSAn Introduction to Collective Bargaining in

Illinois Public Education


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About the Institute

Chicago Ofce

Illinois Policy Institute

190 S. LaSalle Street

Suite 2130Chicago, IL 60603

Phone: 312-346-5700

Fax: 312-346-5755

Springeld Ofce

Illinois Policy Institute

802 South 2nd Street

2nd FloorSpringeld, IL 62704

Phone: 217-528-8800

Fax: 217-528-8808

www.illinoispolicy.org

The Illinois Policy Institute is a nonpartisan research organization dedi-cated to supporting free market principles and liberty-based public policy

initiatives for a better Illinois. As a leading voice for economic liberty

and government accountability, we engage policy makers, opinion lead-

ers, and citizens on the state and local level.

Policy changes lives, and the Illinois Policy Institute is working to

promote responsible public policy that will generate better opportunities

for all Illinois citizens. For further information about education reform,contact Collin Hitt, our Director of Education Policy, at 217.528.8800 or

[email protected].


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6Introduction

8Chapter 1:Introduction to Collective Bargaining in the Public Sector

11Chapter 2:

Bargaining Collectively Under Illinois State Law

23Chapter 3:Illinois School Boards and the Bargaining Process

27Chapter 4:

Education Unions and the Bargaining Process

32Chapter 5:

Individual Teachers and the Bargaining Process

36Chapter 6:

Procedural Challenges in Public-Sector Collective Bargaining

43Chapter 7:

Employee Salaries and Benets

45Chapter 8:

Substantive Challenges to School Boards

49

Afterword:Final Thoughts for School Board Members and Taxpayers

50Endnotes

www.illinoispolicy.org

Table of Contents


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6 Bargaining for Better Schools

Introduction

Te most important policy adopted by any school or school district is its contractwith its teachers. Yet new and aspiring school board members in Illinois havefew accessible guides to a collective bargaining process that will determine how

teachers are hired, placed, compensated, rewarded and disciplined.

Tere are more than 5,500 active school members in Illinoiss 870 school districts.Additionally, tens of thousands of men and women across Illinois aspire, andindeed will, serve as a school board member over the next ve, ten or twentyyears. Tis primer, hopefully, will introduce them to the important task ahead that of collective bargaining.

Recognizing that harmonious relationships are required betweeneducational employees and their employers, the General Assemblyhas determined that the overall policy may best be accomplishedby (a) granting to educational employees the right to organizeand choose freely their representatives; (b) requiring educationalemployers to negotiate and bargain with employee organizationsrepresenting educational employees and to enter into writtenagreements evidencing the result of such bargaining; and (c)

establishing procedures to provide for the protection of the rightsof the educational employee, the educational employer and thepublic.1 - 115Ill. Comp. Stat. 5/1 (1984).

Trough the 1984 Illinois Education Labor Relations Act (IELRA), theIllinois General Assembly enacted collective bargaining requirements betweeneducational employees and their employers in order to create more harmoniousrelationships between the two. Unfortunately, the nature of collective bargaining

is adversarial and often serves to create tension between employees and theiremployers, rather than promote harmony.

While attempting to provide a level playing eld, the Illinois General Assemblyand subsequent judicial interpretations have altered and reformed the publiceducation collective bargaining process in ways that decidedly favor organizedlabor. Due in large part to the collective bargaining process, Illinois public schoolteachers now enjoy highly favorable benets and competitive salaries, as well as

tenure rights unheard of to private-sector workers. Many experts have noted thatunions have maintained their advantage in the bargaining process due to theirvast resources.2


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7The Illinois Policy Institute

axpayers and new or potential school board members often lack thetraining that would allow them to understand the collective bargaining process.As a result, procedural matters obscure the larger policy concerns at stake duringcontract negotiations. Understanding collective bargaining ahead of time shouldhelp level the playing eld between entrenched interests and relative newcomers

to the process.

By clarifying the collective bargaining process in general, we aim to help readerswho are hoping to impact local school district policy to feel more at ease doingso. By extension, perhaps more citizens will decide to run for school board,more journalists will understand the local balance of power between labor andadministration, and more taxpayers will understand exactly how many of thebiggest spending decisions are made.

Te majority of the content in this primer was developed by Sonya Jones. Alawyer by training, Ms. Jones has national research experience in collectivebargaining and organized labor. Te balance of the text was adapted from theexcellentMichigan Collective Bargaining Primer, published by the MackinacCenter for Public Policy and co-authored by Michael Jahr and TomasWashborne.

While this primer frequently focuses on statutes, legal negotiations and courtproceedings, none of the text should be interpreted by readers as formal legaladvice. Indeed, if this primer communicates no other message, it should beclear that neither teachers nor administrators are likely to achieve their desirebargaining process without eventually seeking direct, expert legal counsel duringthe collective bargaining process.

Please enjoy this primer for what it is a free and accessible introduction to thesubject of collective bargaining in Illinois public education.

Collin HittDirector of Education PolicyIllinois Policy Institute

Sonya JonesVisiting FellowIllinois Policy Institute


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Chapter 1:

Introduction to Collective

Bargaining in the Public Sector

In 1962, the United Federation of eachers gained the legal right to bargaincollectively on behalf of teachers in New York City. According to policyresearchers Frederick Hess and Martin West:

Te pivotal moment in those struggles came in 1960, when,following a one-day walkout by the United Federation ofeachers (UF), New York City Mayor Robert Wagner allowedteachers to vote whether to pursue formal collective bargaining.In June 1962, after another strike, the UF negotiated a formalcollective bargaining agreement the nations rst for teachers oering an across-the-board pay increase of nearly $1000 anda duty-free lunch period.3

Shortly thereafter, President John F. Kennedy issued Executive Order 10988,approving unionization of federal public employees. Te order did not forceemployees to join a union, but it did establish procedures like those of the

National Labor Relations Act (NLRA), allowing exclusive representation by aunion if a majority of employees voted in favor of such.4 Prior to 1983, publicemployees did not have the right to collectively bargain in Illinois. At that time,the General Assembly passed two separate pieces of legislation granting collectivebargaining rights statewide to both public education employees and other publicemployees.

The Dynamics of Public-Sector Bargaining

According to a report released in January 2009 from the federal Bureau of LaborStatistics, union membership across the nation in the private sector is 12.4percent of wage and salaried employees.5 Tat represents a decline from 20.1percent in 1983, which was the rst year such data were available.6 Te mostrecent numbers show a slight increase in union membership over the last twoyears.7 In Illinois, 17.5 percent of all workers belong to labor unions, ranking 10thbehind Hawaii, Alaska, New York, Washington, Michigan, California, New Jersey,

Nevada and Connecticut, respectively.8

Public-sector workers are now ve times more likely to belong to a union thantheir private-sector counterparts.9 Nationally, 36.8 percent of workers in thepublic sector are unionized. By contrast, only 7.6 percent in of workers in the


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private sector are unionized.10 As union numbers have declined in the privatesector, the unions have increasingly sought to unionize those in the publicsector, via state legislation, to maintain their political power. Tose in education,training and library occupations represent the highest rate of unionization at 38.7percent.11 Of the 8,451,250 employees in that category, 5,190,640 (61.4 percent)

are instructional employees in K-12 settings.12

Linda Kaboolian of Harvards Kennedy School of Government points out,Public education has, by every measure, the highest density of membershipand coverage by collective bargaining of any industry, public or private.13 As aresult, education unions have more power in their sector than their counterpartsrepresenting other industries.

Private-sector unions are governed by federal law (the National Labor RelationsAct) and public-sector unions are governed by state law. In the private sector, asTomas W. Washborne and Michael D. Jahr of the Mackinac Center for PublicPolicy have noted, a labor unions leverage to obtain the most favorable termsof employment derives from its government-sanctioned ability to organize andbargain as a group, even if some in that group object.14 Te union is permitted byfederal law to take action in furthering its position and, if necessary, to withholdlabor until its demands are met.15 Ultimately, the unions bargaining eectiveness

is measured by the employers ability to survive without the organized employees.

In the private sector, a unions strength is limited by the employerscompetitiveness in the marketplace, its ability to attract enough qualiedreplacement workers in the event of a strike, and its current nancial situation.Te public sector is markedly dierent.

The Impact of Bargaining in Education

Te public sector is limited by budgets,which are funded by tax dollars. In the caseof school districts, each school board isrestricted to a budget based on the amountof projected revenue that will be generatedby designated tax dollars collected withinthe boundaries of the district, and fromsupplemental state and federal funds, ifavailable. In reality, because schools may notsimply shut their doors when they run out ofmoney, school districts have no bottom line.Tis often means that school districts must


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propose levies, or additional taxes, in order to fund contracts already in place.

School board elections and recall petitions can put intense political pressure ona board member to capitulate to union demands. In many cases, board membersowe their seats to the work of the teachers union. For example, the local teachers

union and the Illinois Education Association (IEA) often contribute to andorganize on behalf of candidates that openly support their objectives. In fact,teachers unions are reportedly the most active interest group in board elections;almost 60 percent of board members nationwide say the teachers unions arevery active or somewhat active in their local elections.17 In doing so, the unionsreasonably expect reciprocal support at the bargaining table. Ironically, schoolboard members wield no similar power to aect union elections, in which onlyunion members vote.


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Chapter 2:

Bargaining Collectively Under

Illinois State Law

Collective bargaining is the performance of the mutualobligations of the educational employer and the representativeof the educational employees to meet at reasonable times andconfer in good faith with respect to wages, hours and otherterms and conditions of employment, and to execute a writtencontract incorporating any agreement reached by such obligation,provided such obligation does not compel either party to agreeto a proposal or require the making of a concession. - 115Ill.Comp. Stat. 5/10(a) (1984).

When the Illinois Education Labor Relations Act (IELRA) became law in1984, the state of Illinois ocially granted collective bargaining rights to publiceducation employees. While the IELRA provides the framework under whichcollective bargaining is conducted, neither the IELRA nor the Illinois EducationLabor Relations Board (the Board) creates or forces contractual agreements.Te IELRA sets out requirements and restrictions on collective bargaining

negotiations. Many of these are intentionally ambiguous so that individualschool boards and union representativesmay carefully construct contractualagreements to address their uniqueneeds and situations, which vary greatlyacross school districts. As discussedbelow, collective bargaining is mandatedonly for wages, hours, and conditions of

employment. In other words, not everypolicy administered by a school boardmust be developed through collectivebargaining.

As noted, bargaining collectively ineducation in Illinois is subject to theIELRA, and also to interpretations

of the IELRA by the state courts andthe Board. While not controlling, theBoard uses precedent generated byboth the National Labor Relations Actand the Illinois Labor Relations Board


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(governing all other public employees) to implement the IELRA. For example,if there is not a prior decision by the Board based on a similar fact pattern, thenthe Board may look to Illinois Labor Relations Board decisions with similar factpatterns, although not necessarily in public education settings, in order to resolvethe dispute.

Subjective Bargaining Standards: Good Faith

Some requirements for good faith bargaining are set forth in state law. Forinstance, the Board has determined that good faith bargaining requires thatnegotiations for a new contract take place for sixty days or more. State law alsocontains provisions for proper notice to be given at dierent points during thebargaining process a violation of any of these would be a violation of the duty

to bargain in good faith.

Beyond statutory requirements, the subjective standard of good faith incollective bargaining has evolved through judicial interpretations. In the privatesector, the determination of good faith bargaining can be answered with onequestion: Did either party come to the bargaining table without any intentionof reaching a contractual agreement? Public-sector bargaining is complicated bythe fact that public employees perform services that, by their very nature, cannot

merely cease to exist without signicant negative consequences for the public.

Te NLRB has set out some guidelines for good-faith bargaining determinationsthat are unique to public-sector bargaining dynamics:

1. Both parties should approach negotiations with an open mind and asincere desire to reach an agreement.

2. Te extent to which good faith is demonstrated will vary from case tocase, largely dependent upon the bargaining history of the parties.

3. Frequent and/or long meetings may not be enough to satisfy the goodfaith requirement.

4. It is not imperative that an agreement is reached; however, if anagreement is reached, it must be reduced to writing at the request ofeither party.

5. Neither the employer nor the union is required to agree to anyproposal or make concessions.

As long as the parties present and consider reasonable terms, they are bargainingin good faith. Good faith bargaining does preclude unilaterally dismissing amandatory subject at the bargaining table; however, there is no requirement that aparty accept any terms, and No is a reasonable answer to any oer.


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While good faith is at the heart of collective bargaining, it is not always aneasy concept to apply. Determining whether a party is acting in good faith iscomplicated, as it involves the proposals made by the parties, the procedures theyfollowed, and the manner in which they negotiate. Tus, courts will look to thetotality of the circumstances, including previous unfair labor practice violations,

in determining whether a party has circumvented its obligation to bargain ingood faith.20

A violation of the statutory requirement to bargain in good faith does notalways occur during contract negotiations. For example, in 2005, the Oak LawnCommunity High School District 229 notied a third-year teacher already onprobation that it would not re-employ him during the 2005-06 school year.21 Teunion representing the teacher requested the reasons for the non-renewal, but the

schools principal denied that request.22

Te union then led a grievance againstthe Oak Lawn District for violating its duty to bargain in good faith, basedon the assumption that the Oak Lawn District failed to follow bargained-forevaluation procedures in reaching its non-renewal determination.23

Relying on prior decisions, the Board agreed with the union: An employers dutyto bargain in good faith includes the duty to provide information to the exclusiverepresentative.24 Further, the Board reasoned, [t]he information must be directly

relevant to the unions function as exclusive bargaining representative and mustappear to be reasonably necessary for the performance of this function.25 In thiscase, the Board determined that the information requested concerned terms andconditions of employment, a mandatory subject of collective bargaining.26

Subjects of Collective Bargaining

Under Illinois state law, collective bargaining in education must includenegotiations for traditional terms such as wages and total hours worked. Subjectsunrelated to wages and hours such as class size, contracting out employeeservices to third parties, and frequency of sta meetings are subjects that maybe considered during negotiations. Illinois state law does not explicitly prohibitany subject from the bargaining table. By contrast, Michigan law expresslyprohibits bargaining over subjects such as decisions concerning inter- andintra-district open enrollment opportunities, provisions governing contractingprocedures with third parties for non-instructional services, and the use ofvolunteers in providing services at public schools.27 Notably, Illinois state lawallows a loophole in its largest school district to consider just about anythingas long as a connection can be made to wages and hours, however tenuous thatconnection may be.


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Mandatory Subjects

Once employees have certied an exclusive bargaining representative, the IELRAstates that Employers, however, shall be required to bargain collectively withregard to policy matters directly aecting wages, hours and terms and conditions

of employment as well as the impact thereon upon request by employeerepresentatives.28 Tis language not only provides for mandatory bargainingover wages, hours, benets and grievance procedures, but also the impact of suchdecisions. For example, within the connes of a school districts budget, wageincreases may be limited; however, if wage increases require a shift in districtfunds that aect class size or distribution (which are normally permissive subjectsof bargaining), then class size and distribution could also become a mandatorysubject of bargaining.29

Te fact that teacher layos are not a mandatory subject of bargaining raises aninteresting observation: Illinois collective bargaining law may actually work toencourage teacher layos as the favored solution to school funding dilemmas,as opposed to more incremental cuts to pay or benets. It is easy to imaginesituations in which it would be far easier for a school board grappling withbudgetary pressures to simply call for layos than go through the arduous processof negotiating an across-the-board reduction in teacher pay and/or benets. Fromthe unions perspective, the needs of the group might well outweigh the needs ofthe few teachers being laid o, further encouraging layos as a favored solution ina budgetary crisis.

Tere is no requirement to resolve any particular mandatory issue before another.However, a party may violate its duty to bargain in good faith by insisting uponthe other partys agreement on a single mandatory subject of bargaining beforeagreeing to meet on any other issue.

Permissive Subjects

Tose subjects of bargaining that are not considered mandatory, but are nototherwise prohibited, are considered permissive. Permissive items might includesuch matters as class sizes and the composition of site-based managementcommittees. Because they are merely permissive, the parties may not use theirstance on such issues to limit discussion on mandatory items. Moreover, neitherparty may be required to agree to a disputed permissive item.

For example, permissive subjects of bargaining, as evidenced by the collectivebargaining agreement between the Rockford School District and the localRockford Education Association, include the following:


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Te free access to and use of school equipment and facilities (fundedwith taxpayer money) by the union to conduct its business, so long asit does not interfere with the educational process;

Input from union appointees in the textbook selection process; Mutual agreement between the Board and the union on all forms

that directly aect the professional sta, including, but not limitedto transfers, leave policies, evaluations, and other personnel relatedforms (tasks traditionally reserved for management); and

Te creation of an Instructional Council comprised of sevenappointees of the union and three appointees of the schoolsuperintendent (the Council will monitor the creation and removal ofall forms and set the program for one in-service day per year).30

Tere is no need for school boards to bargain over permissive subjects since theyare not statutorily required to do so. Tese subjects may be addressed in boardpolicies or practices. Indeed, keeping board policies out of collective bargainingagreements is desirable, since changing an existing contract is much moredicult than modifying a board policy.

Because the IELRA does not expressly prohibit bargaining over any subject, thefollowing matters must be bargained for once the demand is made, usually by the

union: hours worked per day, class preparation time, lunch periods, retirementbonuses/incentives, workloads, types of leave, class size, evaluation procedures,employee discipline, discharge or termination, procedure for reducing workforce, fair share (discussed below), use of facilities, seniority, notication of workassignments, dues deductions, and transfers and reassignments.31 Te Associationof Illinois School Boards warns that these subjects should be avoided, and evensuggests modifying the list to exclude certain subjects.32

Te states largest district enjoys great latitude in bargaining. Te IELRA givesthe City of Chicago School District 299 the discretion to bargain over subjectsother than wages, hours, terms and conditions of employment, if it chooses todo so.33 Tose subjects include: contracting with third parties for instructionalservices normally provided by district employees (including establishing contractschools wherein the teaching force is employed by a private entity), including theprocedures for securing such contracts; decisions to lay o or make reductionsin the number of employees; and determinations of class size, class stangand assignments, class schedules, academic calendar, hours and locations of

instruction or student assignment policies.34 Te City of Chicago School District299 is not unique. Te average collective bargaining agreement contains dozensof clauses covering a districts ability to evaluate, transfer, terminate, and


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manage the workload of teachers, all having potentially serious eects on themanagement of schools and student achievement.35

Prohibited Subjects

Even though the IELRA does not explicitly prohibit bargaining over anysubject matter, it does excuse employers from bargaining over some subjects:Employers shall not be required [by the union] to bargain over matters ofinherent managerial policy, which shall include such areas of discretion orpolicy as the functions of the employer, standards of services, its overall budget,the organizational structure and selection of new employees and direction ofemployees.36 Practically speaking, these subjects include: supervisory duties,hiring practices, promotion, use of emergency days, fact-nding or interest

arbitration, maintenance of standards of board policies, discrimination,administrator evaluation, curriculum and program, textbook selection, studentdiscipline, evaluation criteria, grievance denition, stang standards (includingpupil-teacher ratio), professional qualications, in-service training, citizenshipand constitutional protections, student teachers, and committee assignments.37

Te statutory list does not include every prohibited subject. For example, itwould be impermissible to include a term in a collective bargaining agreementthat bargained away a federal employment right, such as prohibitions ondiscrimination contained in the federal Civil Rights Act of 1964.38

Other Contract Requirements

Contracts between employer school districts and the exclusive bargainingrepresentative of its employees must contain provisions covering grievanceprocedures for employees in the bargaining unit, as well as providing for bindingarbitration to resolve disputes concerning the administration or interpretation of

the agreement.39 Te contact must also contain language prohibiting strikes forthe duration of the agreement.40 (Strikes will be discussed further below.)

Midterm Bargaining

Even when a contract is in eect, it may become necessary to bargain whenthe school district wishes to take an action that impacts a mandatory subject ofbargaining. For example, if the district wishes to alter class sizes, reduce sta, or

adjust the length of the school day and if any of these is a result of budgetingissues then wages and hours may be adjusted and interim bargaining isrequired. Additionally, if the school board makes a decision that will aect wagesand hours, impact bargaining is required. (Essentially, the school board wouldhave to bargain both for the decision and its impact.) In these situations, and


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in accordance with state law, the union must be notied at least sixty days priorto any proposed change being acted upon in order to facilitate the good faithbargaining period required by law. Consequently, an employer may nd itselfperpetually bargaining.

One way to avoid such cumbersome processes is to include a zipper clause inany collective bargaining agreement. A zipper clause functions as a waiver ofunion bargaining rights during the term of the contract, and is an obviouslyimportant clause for the school board to get into the contract.41 Without it, theschool board may nd itself continuously bargaining over matters that are notthemselves mandatory subjects of bargaining, but become so as a result of theireect on mandatory subjects of bargaining. Such constant negotiations can fatallyundermine the productivity of school boards.

Mediation

Mediation is the process whereby an outside professional is brought in to helpparties determine the facts and come up with compromise solutions. It is oftenhelpful where strong personalities or intractable issues are thought to haverendered further negotiations impossible without outside help.

Collective bargaining negotiations must be conducted for no less than sixtydays.42 If a contractual agreement is not reached by ninety days before thescheduled start date of the upcoming school year, the parties are required tonotify the Illinois Educational Labor Relations Board (the Board) as to thestatus of the negotiations.43 Tis initial notication simply puts the Board onnotice that there are complications arising in the negotiations. No action is takenby the Board at this point.44

At any time during the negotiations, the parties may jointly make a writtenrequest to the Board to provide mediators.45 Te mediators must be madeavailable to both parties throughout negotiations. Tis is so they can monitorthe negotiations for any future arbitration of grievances, and also for any futurearbitration of contract disputes.46 If requested by the parties, the mediator mayalso conduct hearings for fact-nding, prepare written ndings of fact, and makerecommendations for dispute resolution.47 Tis type of mediation must beprovided by the Board and shall be held before qualied impartial individuals.48

Impasse

According to Illinois state law, once contract negotiations reach the forty-fthday before the scheduled start date of the forthcoming school year, and no


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agreement has been reached, either party may declare an impasse and petitionthe Board to initiate mediation.49 At the same point in negotiations, the Boardmay also act independently to initiate mediation.50 Te mediator should be animpartial observer with mediation experience agreed to by the employer and theunion representing the employees. If the parties cannot agree upon a mediator,

the Board may act on its own in providing a mediator. If the parties have still notreached an agreement by the fteenth day prior to the rst day of the upcomingschool year, the Board is obligated by state law to initiate mediation.51

Te costs of any fact-nding and mediation will shared equally between theschool district and the exclusive bargaining representative.52 If either partyrequests the use of services from the Federal Mediation and Conciliation Service,the other party must either join that request or bear the additional cost of

mediation services from another source.53

Te mediator acts in a limited, advisoryrole and attempts to persuade the parties to move closer to an agreement ondisputed issues.

If no agreement is reached during the mediation process, one of two scenarios willoccur. In the rare case of exclusive bargaining representatives that were establishedprior to the enactment of the IELRA (1983 and earlier), a fact-nding processis the next step in resolving disputes.54 Again, this is a neutral process in which

the fact-nder(s) investigate the situation to identify all unresolved issues andmakes recommendations to the parties for resolution of the impasse. If there arestill unresolved issues remaining after the fact-nding process, or in the case ofdisputes arising under exclusive bargaining representation established since 1984,the parties may mutually request the Board to impose nal, binding arbitration.55Tis is a permissive alternative since state law does not require that the partiessubmit to such arbitration. Alternatively, the dispute(s) in the proposed contractremains, the current contract expires, and the employees refuse to return to workwithout a new contract.

Teacher Strikes

Under Illinois state law, it is legal forteachers to strike, as long as the teachersunion adheres to certain proceduralrequirements.57 According the IELRBAnnual Report for the 2008 scal year,public education employees led thirty-four notices to strike and participated innine strikes. Public school employeesare prohibited from striking while under


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a negotiated contract. Public school employees may strike if: the most recentcontract has expired; mediation on the pending contract has failed to yield a newcontract; at least ten days have lapsed after a notice of intent to strike58 has beensubmitted to the employer, the regional superintendent or the Board; and, theparties have not yet mutually submitted unresolved issues to binding arbitration.59

If the employer school district believes that the strike is or has become a clearand present danger to the health or safety of the public, the employer mayinitiate an action for relief that may include petitioning the county circuit courtfor an injunction to force the employees back to work.60 Te court may grantappropriate relief, including an injunction ordering the employees back to workand daily nes and incarceration for each striking employee in violation of theinjunction, if it determines that a clear and present danger exists.61 Even though

the penalties for striking employees are potentially severe, the threat of a strikeremains a powerful bargaining strategy during negotiations. If a court believes theemployer has engaged in an unfair labor practice (discussed below) or nds otherevidence of lack of clean hands, it is a defense to the action for injunctive relief.62

Unfair Labor Practices

According to state law, educational employers are prohibited from:

1. Interfering with, restraining or coercing employees in the exercise ofthe rights guaranteed under [the IELRA].

2. Dominating or interfering with the formation, existence oradministration of any employee organization.

3. Discriminating with regard to hiring or tenure of employment or anyterm or condition of employment in order to encourage or discouragemembership in any employee organization.

4. Discharging or otherwise discriminating against an employee becausehe or she has signed or led an adavit, authorization card, petition orcomplaint or given any information or testimony under [the IELRA].

5. Refusing to bargain collectively in good faith with an employeerepresentative who is the exclusive representative of employees in anappropriate unit.

6. Refusing to reduce a collective bargaining agreement to writing andsigning such agreement.

7. Violating any of the rules and regulations promulgated by the Boardregulating the conduct of representation elections.

8. Refusing to comply with the provisions of a binding arbitration award.9. Expending or causing the expenditure of public funds to any external

agent, individual, rm, agency, partnership or association in anyattempt to inuence the outcome of representational elections.63


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Employee representatives (unions) are prohibited from:

1. Restraining or coercing employees in the exercise of the rightsguaranteed under [the IELRA], provided that a labor organization orits agents shall commit an unfair labor practice under this paragraph

in duty of fair representation cases only by intentional misconduct inrepresenting employees.

2. Restraining or coercing an educational employer in the selection ofhis representative for the purposes of collective bargaining or theadjustment of grievances.

3. Refusing to bargain collectively in good faith with an educationalemployer, if they have been designated in accordance with theprovisions of [the IELRA] as the exclusive representative of

employees in an appropriate unit.4. Violating any of the rules and regulations promulgated by the Boardregulating the conduct of representation elections.

5. Refusing to reduce a collective bargaining agreement to writing andsigning such agreement.

6. Refusing to comply with the provisions of a binding arbitrationaward.64

From July 1, 2007 through June 30, 2008, there were a total of 141 cases ledfor unfair labor practices, 110 against employers and 31 against unions.65 Understate law and subsequent judicial interpretations, many actions on behalf ofemployers and unions can give rise to an unfair labor practice complaint. Whilethe following examples do not exhaust the possibilities, they certainly highlightthe more common issues prompting such complaints.

Employer Duty to Bargain in Good Faith

In addition to statutory requirements for good faith bargaining discussed earlier,an employers refusal to process, or an unjustied delay in the processing of, agrievance violates the duty to bargain in good faith.66 Also, any evidence of priorunfair labor practices committed by the employer may be used in such cases toshow animosity or unlawful motivation in committing an unfair labor practice(such as a failure to bargain in good faith).67

Next, the failure of an employer to provide to the union reasons for non-

renewal of a probationary teacher, who alleges improper evaluation, can resultin an unfair labor practice.68 In a case arising in the Oak Lawn School District,when requested by the union, the Board stated that while the employers onlyarmative duty under the School Code was to provide timely notice to non-nalyear probationary teachers, the employer had a parallel duty arising under the Act


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to bargain in good faith and provide the reasons for a non-renewal, regardless ofwhether the employer followed proper procedures in the evaluation as outlined inthe collective bargaining agreement.69

Violation of Employee Rights

o establish an unfair labor practice for violation of employee rights, theemployee must show that the conduct by the employer was intentional, notmerely negligent.70 Te Board has also found a violation of an employees rightby the employer when an employer has threatened to contract out for work theemployee would perform in the regular course of bargained-for duties if theemployee were to strike.71

Union Duty of Fair Representation

When a union fails to le a grievance on behalf of an employee, the employeebears the burden of proving that omission was a result of intentional misconduct,not merely negligence.72 Even though the same employee received a verbaldeath threat from the union steward, the Board determined the threat was tooremote in time to provide evidence of the unions motivation in failing to le thegrievance.73 In order to establish a case against a union for failure to provide fairrepresentation, the employee must show that the unions conduct demonstrate[s]fraud, deceitful action, dishonest conduct or deliberate and severely hostile andirrational treatment.74 Tis is indicative of the great deference given to theemployee-representative relationship once established, earned or not.

Timeliness

Many cases for unfair labor practices presented to the Board are dismissedas untimely. Notably, the duty of the union and employer to bargain in good

faith attaches upon union certication as the employees exclusive bargainingrepresentative there need not be a contract in eect between the employer andexclusive bargaining representative. For example, if an employer cuts positionswithin a bargaining unit prior to initial contract negotiations, even due tochanges in budget, it will be considered an unfair labor practice. Remember, anymanagerial decisions aecting wages and hours of employees represented bythe union must be bargained for. Tis applies both prior to the existence of anycollective bargaining agreement, as well as while an agreement in is eect.

In the case of employee claims for violation of employee rights, or failure of theunion to provide fair representation, the claim must be led within six monthsof the rst occurrence giving rise to the claim.75 In other words, the clock beginsto tick with the rst instance of possible misconduct, not when the employee


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rst thinks prior misconduct may arise to the level of a claim. However, untimelyallegations of misconduct may be used as evidence in an unfair labor practiceproceeding to shed light on the true character of other matters occurring withinthe proper time period.76

Judicial Review

Any party adversely aected by an order from the Board may appeal directly to anAppellate Court in a judicial district in which the Board maintains an oce.77 Anotice of appeal must be led within thirty-ve days of the Boards nal order.78


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Chapter 3:

Illinois School Boards and the

Bargaining Process

The Role of Local School Boards

Te IELRA was enacted in 1984 to to promote orderly and constructiverelationships between all educational employees and their employers.79 Ingeneral, school board members are required by virtue of their positions to nda balance between the needs of the school systems employees and the systemscustomers, who are the students, parents, and taxpayers. However, in collectivebargaining, protecting the interests of these customers becomes paramount, aseducation personnel are represented by their unions.

Robert Barkley, former executive director of the Ohio Education Association,described the role of the school board this way: Te fundamental and legitimatepurposes of unions [are] to protect the employment interests of their members.It is the primary function of management to represent the basic interests of theenterprise: teaching and learning.80

School boards must know what they want to achieve, maintain the necessarybackup materials to support their position, and compromise only when necessary,as long as it does not harm the principle at stake or limit future action. Carryingout this role is, of course, a bit more complex.

One of the issues that must be confronted by a board is whether to hire aprofessional negotiator and/or a labor attorney. In more cases than not, thiswill prove advisable. Tat said, this decision is, of course, a matter of discretion

based on a district s size and circumstances, and the relationship between theadministration and sta bargaining team members. No matter who ultimatelyrepresents the school board, the communication between the board and thebargaining team must be open and timely, and the priorities and limitations mustbe clear.

Here, it is worth reprinting Ronald Booths articulation of school boards rolesin labor relations from his useful text, Collective Bargaining and the Illinois School

Board Member:


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As Policy Setter

Develop parameters based on district goals. Select negotiator and procedures. Insist on employee relations goals and objectives in bargaining, in

contract management, and in human relations.

Understand unionization.

As Individual Board Members

Develop a basic understanding of bargaining. Distinguish labor relations from human relations. Dont be co-opted or used by the union to further its goals. Realize that the boardspublicposition in labor disputes mustbe

unanimous.

Protect the condentiality of the boards strategy. Dont play mediator.

At Impasse

Understand and expect pressures. Establish a unanimous position with onespokesman. Know the legal limitations of individual board members. Dont stand alone; present a unied school board position and get

community support.81

(emphasis added)

Ultimately, the board is responsible for the nal product. Board members maynd that in yielding negotiating authority to a professional negotiator or toschool administration, agendas can arise that are not board-driven, and thereforenot necessarily in the best interest of the board or the district. o give an extremeexample, a superintendent nearing retirement might be inclined to give away an

item in exchange for labor peace.

Contract terms are real, and their impact is measurable. Consequently,professional negotiators, or negotiators gleaned from school administration, canbe important. However, blind faith in negotiators is not only unwise, it violatesthe school boards obligation to the community.

Board Strategies in Collective Bargaining

Te optimal strategy for any given school board across the state of Illinois isbeyond the scope of this primer. Every situation is dierent, and one of the realbenets of local control is the ability of school boards to take advantage of this


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fact. However, there are some common elements that should be addressed in anyboard strategy.

Be aware of the views and positions of the union that represents the school district semployees. Examine the materials generated by the union on the Internet, in print,

or elsewhere. Most signicant positions will not be kept hidden. Te educationunions work in a coordinated fashion to achieve their statewide goals. Identifyingthese goals early in the process will give a school board extra time to determinethe best approach to take.

In the private sector, human resource managers will provide boards and executiveswith detailed accounts of the full cost of employment. Tis would include the costof all benets, not just the major items such as salary and health benets. Paid

days o including sick days, bereavement, personal days and vacation days all have an associated cost. Moreover, salary is not the only direct compensationcost; others might include longevity pay and certication bonuses. Tere is also adollar value to uniforms provided to maintenance workers or custodians. Schoolboard members should expect similar details to be presented to them so that theycan fully understand their choices and make informed decisions. Unfortunately,far too many boards nd themselves working only from aggregated values ofsalaries with a proposed percentage increase.

Develop a unied and coherent board strategy. As best they can, it is necessary forschool boards to reach uniform conclusions as to what issues are critical andwhat the boards positions will be on those issues.82 If a board fails to develop aconsensus, it is likely to be divided and conquered by the union in the press orat the negotiating table. Where conclusions cannot be reached, it is importantto arrive at internal agreements regarding the necessity of board members in theminority on a position to refrain from publicly undermining the board duringnegotiations. Likewise, it is important for any school board member not toact as an independent broker with the education unions on contentious issues.Finally though it should go without saying it is important that the majorityof the board not impose its position on the minority.

In developing a strategy, a school board will often have a few early meetings toset parameters and then leave a negotiator or a team to reach a nal agreement.Accordingly, it is important to have these parameters set forth in writing for thenegotiator(s) so that there can be no confusion or misunderstandings.

Parameters are meant to serve as guideposts, not straitjackets. However, a schoolboard can nd itself in a dicult position if a negotiator oversteps the boundariesset by the board, either by accident or intentionally. In such situations, board


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members must choose between an agreement they didnt really want andforever keep quiet about it or damage the credibility of the negotiators by

directing them to reopen negotiations, an undesirable approach in a process thatis often built step by step.

Plan school board communications. It is important for a school board to havein place a clear strategy of communicating board positions to the media and,consequently, the public.83 In that regard, the board needs to speak with one voicein delivering its message to the general public. Accordingly, it is usually necessaryto designate a spokesperson through which the board addresses the media andthe public.

Keep in mind that appropriate internal communication can be just as importantas external communication, as it eliminates surprises. Te negotiators shouldprovide regular summary reports to the school board on the results of negotiatingsessions as well as future strategies. It is important to see the relationshipbetween the school board and those charged with the actual negotiations as apartnership. Under such a view, misunderstandings on the parameters presentedto the negotiators, especially if they were vague, can be avoided. o avoidmicromanaging, it is a wise practice to have school board members respond to

the updates only if they notice a deviation from the parameters. Otherwise, theyshould reserve their comments for discussion in closed session.

Never underestimate the eectiveness of the unions. Labor unions are multi-milliondollar operations with the overarching goal of advancing the interests of theirmembers. While unions may, at some level, care about the education of children,board members should remind themselves that the union representativesengaged in negotiating are paid professionals. Tey understand both the lawand the specic issues at hand, and often boast extensive experience in collectivebargaining. As discussed above, unless a board member has similar expertise andif nances permit, the board should consider hiring a professional negotiator.

IEA aliates have access to the expertise of the National Education Association,a massive organization of 2.8 million members that maintains, according toHess and West, a network of 1,650 full-time and 200 part-time employees whoprovide local aliates guidance on matters including negotiations and grievanceresolution. And tellingly, a full 45.6 percent of all dues paid to the IEA are

designated for UniServ eld services.84 Te NEA touts the UniServ program asa vast cadre of human resources, on which it spent approximately $50 million in2001. 85 Considering the vast resources available to unions, it is little wonderthat many school boards choose to hire a professional negotiator.


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Chapter 4:

Education Unions and the

Bargaining Process

Historical Background

We believe individuals are strengthened when they worktogether for the common good. As education professionals, weimprove both our professional status and the quality of publiceducation when we unite and advocate collectively. Mission,Vision, and Values of the National Education Association 86

Despite the National Education Associations claims to bean advocate for children and public education, we should notexpect unions at the bargaining table to be for anything but theirown interests. Frederick M. Hess, the American EnterpriseInstitute87

Te Illinois Education Association (IEA), named the Illinois State eachersAssociation until 1936, was originally formed in 1853 to discuss issues aecting

schools, exchange pedagogical views, and determine ways to further the cause ofeducation in the state.88 Te early goals of the IEA were to establish a highereducation institution (now, Illinois State University), gain full membership rightsfor women teachers, and improve access to education along racial lines.89 In 1970,control of the IEA shifted from administrators to teachers.90 Te following year,the IEA joined the ranks of the National Education Association and formed itsown Political Action Committee to lobby state legislators, inuence elections,and establish collective bargaining rights for teachers statewide.91 Success came

fteen years later when the Illinois General Assembly enacted the IELRA,granting collective bargaining rights to public school employees.92 Te IEA isnow the largest teachers union in Illinois, representing 133,000 members across870 school districts.93

Illinois is also home to the Illinois Federation of eachers (IF), an aliate ofthe national American Federation of eachers (AF). In fact, the IF-aliatedChicago eachers Union was issued the rst local charter by the AF when

the national organization rst formed in 1916 (at that time, it was known as theChicago Federation of eachers).


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Statutory Authority

Te IELRA recognizes unions as exclusive representatives of public schoolemployees through voluntary recognition by a school board or employeeelections.94 Once a union is established, it becomes the sole representative of the

employees in a particular unit. No longer can an employee work with a schoolboard to determine his or her own terms and conditions of employment.

In order to engage in the collective bargaining process, a bargaining unit mustbe formed and an exclusive bargaining representative must be certied. First,the Board is solely empowered to recognize units for collective bargainingpurposes.95 Te Board must be sure that the unit contains employees with anidentiable community of interest and that no unit includes both professional

employees and nonprofessional employees unless a majority of employees in eachgroup vote for inclusion in the unit.96 Once a unit is determined, the certicationprocess begins.

Te certication process begins in one of two ways. First, [a]n educationalemployer shall voluntarily recognize a labor organization for collective bargainingpurposes if that organization appears to represent a majority of employees in theunit.97 In such cases, the employer must post a notice of its intent to recognize

the labor organization for twenty days in places reserved for employee notices.98

Once a notice has been posted for twenty days, the employer may send writtennotication to the Board of its intent to recognize the labor organization and theBoard will make a nal determination of certication.99 If any dispute arises as tothe majority requirement, the Board must make a nal determination of majoritystatus.100 If during the twenty-day notice period another labor organizationpetitions the Board for recognition as the same employees exclusive bargainingrepresentative, and the Board determines that at least 15 percent of the employeesin the unit are in favor of such representation, then the Board shall proceed withthe election process.101

Alternatively, a labor organization may gain recognition as the exclusivebargaining representative by an election of the employees in the bargainingunit.102 A petition to the Board requesting an election may be led: (1) byan employee or group of employees or any labor organizations acting on theirbehalf alleging and presenting evidence that at least 30 percent of the employeesin a unit wish to be represented for collective bargaining purposes, or that at

least 30 percent of the employees believe that the labor organization currentlyrepresenting them no longer represents the majority of employees in the unit103;or (2) by an employer alleging that one or more labor organizations havepresented a claim to be recognized as an exclusive bargaining representative of a


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majority of the employees in a unit and the employer doubts the majority statusof any of the organizations claiming to represent the employees.104 (Evidence

consists of cards individually signed by employees in the unit in support ofspecied representation.)

Next, if the Board determines that a question of representation exists, it willgive notice and conduct a hearing.105 If the hearing reveals that a question ofrepresentation does indeed exist, then the Board will call for an election, whichmust be conducted within ninety days of the original ling of the petition tocertify the labor organization as the exclusive bargaining representative forthe unit.106 In 2007, the Board adopted a standard rst set out by the U.S.Supreme Court, and adopted by the National Labor Relations Board (NLRB),

requiring employers to show a good faith reasonable uncertainty of the exclusiverepresentatives majority status in order to obtain an election.107 Notably, nothingin state law prohibits the waiver of a hearing by the parties, allowing them toproceed directly to an election.

Elections must be conducted by secret ballot and in compliance with rulesand regulations set forth by the Board.108 An existing exclusive bargainingrepresentative must automatically be placed on the ballot.109 An intervening labor

organization must be placed on the ballot contingent upon a 15 percent showingof interest by the employees in the unit.110 Te Board must give at least a thirtyday notice of the time and place for an election and, if requested, shall provideto the parties a list of names and addresses of employees eligible to vote in theelection at least fteen days prior to the election.111 Te ballot must also includean option of no representative.112

Te labor organization receiving a simple majority of ballots cast will be certiedas the exclusive bargaining representative for the employees in the unit.113 Ifno representative receives a majority of votes, then no representative will berecognized by the employer for a twelve-month period.114 If none of the choiceson the ballot receives a simple majority of votes, a runo will be conducted forthe top two vote receivers.115 Te Board must certify the results of an electionwithin six working days after the nal tally of votes.116

In the case of previously unrepresented employees, either the school districtor newly certied exclusive bargaining representative for the employees in

that district may demand to engage in collective bargaining.117 Te contractnegotiations must begin within sixty days of the original certication of theexclusive bargaining representative.118 If an exclusive bargaining representativealready exists for employees in the school district, negotiations must begin within


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sixty days of receipt of a demand to bargain by the other party.119 Once collectivebargaining negotiations begin, the negotiations must continue for at least sixtydays, unless a contract is agreed to sooner.120 Rules of bargaining agreed to bythe parties in advance of negotiations will set out specics, such as the numberof members on each bargaining team, allowing for any observers, recording of

bargaining sessions, and recordkeeping.

Notably, a union is certied indenitely. Unlike our political system with itsregular elections, unions do not have to face periodic re-elections. Most Americanworkers with union representation have never had the opportunity to vote on it,since the union was certied before they were hired.121

In cases where employees seek to change or disestablish an existing union, the

same rules apply as to starting a union with one exception. A decerticationelection is not allowed where there is an existing, valid collective bargainingagreement of a xed duration. However, under the IELRA the Board maydirect an election after the ling of a petition between January 15 and March 1of the nal year of a collective bargaining agreement.122 Accordingly, collectivebargaining agreements in Illinois shall not exceed three years in duration.123

Union Collective Bargaining Strategies

Te Michigan Association of School Boards has developed a useful three-stagecategorization of union bargaining strategy, which is quite applicable to Illinoisand elsewhere: (1) the softening-up stage, (2) the near-impasse stage, and (3) thegive-in-or-else stage.124 During each stage, unions employ increasing pressure onthe school board to achieve a labor organizations desired ends.

In the softening-up stage, which begins before the start of formal negotiations,unions frame the issues for their membership. actics include the following:

An increase in the number of grievances, letters to the unionmembership indicating their wage ranking in the job market or even a letter requesting negotiations commence early due tothe number of serious issues needing to be addressed.125

Te object in this softening-up stage is to motivate the base of union membershipto put their trust in the unions bargaining team. Te process resembles a primaryelection in the political arena, where oce-seekers attempt to solidify the supportof party loyalists prior to the bruising battle of the general election campaign.


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After bargaining is underway, union tactics shift into a more confrontationalmode, the near-impasse stage:

Frequently employed strategies include union news releasesindicating the boards team is stalling, attacks on the integrity

and competence of the boards negotiating team, rumors andhalf-truths spread among union membership to leverage supportfor the unions bargaining team, direct pleas to individual boardmembers, phone calls to key people and groups within thecommunity, a mass attendance at board meetings, or the ling ofunfair labor practice charges.126

In the near-impasse stage, unions often try to increase the pressure for

concessions by enlisting the sympathies of the general public. It is largely for thisreason that a union will work to bring to public attention the disputes at issue,and cast the school board in as poor a light as possible. If a union can bring thepublic to its side, the political nature of public school management will work inthe unions favor.

If impasse occurs, or when it has become clear that the union has not managedto achieve the public support to push the school board to capitulate, the unionoften becomes desperate and moves to the give-in-or-else stage. Here the unionsoptions become somewhat limited. Tey may talk of a strike, but the realities ofthe IELRA concerning nancial penalties make an actual walkout unlikely. Atthis point, a school board can expect that the intensity of the unions activitieswill increase. Tis increase is often the result of conducting a media campaign,ling charges alleging an unfair labor practice, or holding demonstrations.


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Chapter 5:

Individual Teachers and the Bargaining

Process

Most collective bargaining agreements, if not all, contain provisions that requirethe payment of union fees as a condition of employment. Tis is known as aunion security clause, a contractual paragraph that requires employees either tobe members of the union and pay dues, or, if not a member, pay an agency fee tothe union.

A union security clause, where the school board and union have chosen to includeone, establishes what is often described as an agency or union shop. Generally,these clauses also require the school board to agree to re any employee whofails to join the union and pay dues, or refuses to pay the agency fee, unless theemployees religious beliefs bar such participation in which case they have topay a dues-equivalent fee to charity (discussed further below).

Union security clauses are not without consequence. In fact, as pointed out byHarvards Caroline Hoxby:

Laws permitting agency and union shops facilitate assertivecollective bargaining because they greatly weaken the positionof teachers in a district who oppose the union. Te tools anindividual teacher has to oppose the union are withholding ofnancial support and withholding of political support. Union andagency shops weaken these tools.127

It is the duty of the teachers union to represent the rights of teachers during the

collective bargaining process. However, it is undisputed that teacher unions dofar more than negotiate contracts on behalf of the teachers they represent. Tereare some circumstances in which the unions overall agenda may conict with theinherent beliefs of individuals they represent, presenting a dilemma for teachersrepresented by the union. In those cases, certain remedies are available.

Statutory Restrictions on Individual Teachers

Compulsory Union Membership: Fair Share Payers

All employees in a bargaining unit may be represented by a union, but that doesnot mean that all employees must be members of the union. Te famous U.S.Supreme Court casesAbood v. Detroit Board of Education and Chicago Teachers


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Local 1 v. Hudson both conrm that the U.S. Constitution prohibits such forcedmembership.128 In addition, itle VII of the Civil Rights Act of 1964 prohibitsmembership that conicts with an employees religious beliefs.129 However, asnoted, teachers who refuse to join the union may nevertheless still be requiredto pay an agency fee to the union for representing their interests in contract

negotiations. Te amount to be paid by such represented employees may notexceed the dues charged to union members.130 Te fair share fee is deducted bythe employer from the nonmember employees paycheck and paid to the exclusivebargaining representative.131 In order to better protect teachers, all contractsshould include a provision either limiting the amount of fair share fees to aportion of union dues or a clear denition of what the fair share fee shall includeand exclude.

Paycheck Protection: Political Contributions

Te fair share fee determined by the union cannot contain any fees for politicalcontributions in support of any candidate for political oce.132 Notably, Illinoisstate law does not expressly exempt political contributions made to support ordefeat ballot measures from the fair share fee.133

Paycheck protection refers to the rights of employees working under unioncontracts to refrain from paying any fees through payroll withholdings other thanthose actually required for representation. In the private sector, these rights aresometimes referred to as Beck rights for the famous 1988 Supreme Court casethat gave rise to them, Communications Workers of America v. Beck.

In Beck, the Court held that a union cannot obligate an employee to supportunion activities other than those germane to collective bargaining, contractadministration, and grievance adjustment.134 Tis decision largely mirrored thedecision inAbood v. Detroit Board of Education.135

On June 14, 2007, in the unanimous opinion Davenport v. Washington EducationAssociation, authored by Justice Antonin Scalia, the Court ruled that the FirstAmendment allows a state to require public-sector unions collecting agency-shop [or fair share] fees from non-union employees to obtain permission fromthe employees before using the money for political purposes. Te Courtsopinion held that [...] unions have no constitutional entitlement to the fees ofnonmember-employees.136

Paycheck protection is an important legislative remedy designed to diminish thepower of compulsory unionism and free public-sector workers from being forcedto subsidize union political spending with which they disagree. Sixteen stateshave some form of paycheck protection. Te best approach is an opt-in procedure,


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which requires individual union members to make a conscious decision abouttheir level of union political support. Some states have opt-out procedures, whichare more cumbersome but still provide some protection of individual politicalrights.

Paycheck protection requires unions to seek written permission from theirworkers before using their dues money for politics. Paycheck protection relieson the Jeersonian principle of freedom of association, the fundamental rightnot to subsidize political activities with which people disagree, or be forced toassociate with those people or ideas that conict with their own internal moralcompass.Mike Reitz, General Counsel, Evergreen Freedom Foundation

Until the state of Illinois follows suit, it is important that collective bargaining

agreements are clear in dening the scope of the fair share fee, to preclude thecollection of any monies to be used for political purposes.

Religious Liberty and Compulsory Union Membership

A contract that provides for fair share payments must also protect the rightof non-association of nonmember employees that are based upon bona dereligious tenets or teaching of a church or religious body of which such employeesare members.137 Such employees may be required to pay an amount equal to theirfair share payment to a non-religious charitable organization mutually agreedupon by the employees aected and the exclusive representative.138

A teacher with objections to union membership on religious grounds is free eitherto join the union or withdraw membership. Tis is because teachers are protectedfrom such employment discrimination under itle VII of the federal Civil RightsAct of 1964. Under federal labor law, a signicant issue in similar withdrawalsis whether the employee is a member of a religious sect that prohibits unionmembership.139

Occasionally, this standard has been raised as appropriate for itle VIIemployment discrimination claims. However, it has been established that itleVII claims may be supported by sincerely held personal religious beliefs. Forreligious objectors, itle VII requires that the unions allow withdrawal at anytime (unlike the usual window for fee-payers, as discussed previously), and theunion and school cannot require as a condition of employment the payment of

fees to the union. However, itle VII only requires that the union and schoolboards make a reasonable accommodation on the issue of religion.140

In that regard, the courts have found that it is a reasonable accommodation tothe needs of the religious objectors to require that if they do withdraw from a


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union, an amount equivalent to their dues may be required to be given to charity.Tis is to allay the unions fear that large numbers of employees might withdrawfrom the union, ostensibly on religious grounds, in an eort to save money.However, it is important to note that the charity is rarely the teachers choice.Some agreements specically spell out the charitable arrangement; others are set

by mutual assent. Seldom if ever will a religious objector simply be able todesignate the charity of his or her choice.

Voluntary Union Membership

Te Constitutions guarantee of free association supports the notion thatemployees should be able to band together to advance a common interest. Butthis same guarantee should also allow an individual to opt out of such banding.141

Such voluntary unionism would provide additional exibility in schoolmanagement and give a voice to those who do not share the positions taken by aunion.

wenty-two states have passed right-to-work laws for the private sector, whichat least forbid forced unionism and/or forced agency.142 Until Illinois joins thosestates in a voluntary system, only skilled collective bargaining by school boardmembers will keep union power in check. Unfortunately, as it stands, unions havethe potential to use their power to the disadvantage of taxpayers and the dismayof employees who are forced to yield to union-mandated employment.


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Chapter 6:

Procedural Challenges in Public-

Sector Collective Bargaining

Collective bargaining in Illinois has given rise to numerous challenges, bothprocedural and substantive. While a number of these challenges are not easilyaddressed except through legislation, awareness of the issues may help a schoolboard member to understand better the task before them.

Factory Model Bargaining and Quality Education

Collective bargaining, with its roots in the industrial, mass-production sector ofthe economy, operates under a factory model of bargaining: One size ts all. Inthis system, unions focus on securing for their members contracts with uniformbenets, working conditions, and salaries.Te factory model, however, does notwork well for individual professionals in an educational setting, as it places groupneeds over the needs and interests of a particular teacher.

In fact, the standard terms of a collective bargaining agreement seldom properlyaddress an individual teachers professional needs.143 For example, as previously

noted, it is forbidden to consider individual teacher salaries and terms ofemployment apart from the terms the union negotiates. Such uniform treatmentresults in a loss of individual freedom, motivation, and productivity, as theteachers divert their creative energy away from the classroom and toward union-related activities.144 Many quality teachers simply choose to leave their professionin favor of nding greater freedom to exercise their skills and abilities elsewhere.

Another consequence of the factory model is the creation of an atmosphere

of antagonism between school districts and employee unions. Albert Shanker,former president of the American Federation of eachers, explained theadversarial relationship between unions and employers this way:

Union contracts represent some attempt to limit and curtailthe powers of management. []he interest of unions, aslong as you have a factory model, is in seeing to it that salariesare adequate and that they are not subject to some individual

administrator who can use them politically or in a discriminatoryway.145

As noted by researchers Howard Fuller and George Mitchell:


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Former NEA president Robert Chase once worried that industrial-style, adversarial tactics conicted with education reform. But he wasntspeaking of the heated, intemperate comments and stern rhetoric thatoccasionally can be part of the process. He was referring to an almostrelentlessly negative aura in discussions between management and

union.146

Most importantly, the industrial or factory model of collective bargaining doesnot serve students. As Seattle, Washington, superintendent John Stanford noted,We lost our way when we became more interested in the employment of adultsthan in the education of children.147

Scholarly research shows that eective schools are born of exibility and

individual autonomy.148

But collective bargaining in general, and the factorymodel in particular, focuses primarily on group interests.

Pattern Contracts Do Not Meet the Needs of Individual

DistrictsTe nations two largest teachers unions, the National Education Association andthe American Federation of eachers, encourage their aliates, including the

IEA and IF, to use standard or pattern contract language in their collectivebargaining agreements.149 Tese pattern agreements do not adequately meetthe unique educational needs of individual schools and districts or teachers. Forexample, what may be an appropriate contract provision in an inner-city Chicagoschool may not be helpful or right for a rural district in Little Egypt. Moreover,such contracts discourage innovation and experimentation, subjecting creativityto an inecient, centralized bureaucracy.

Collective Bargaining Politicizes Local School Boards

School board members must swear an oath to faithfully carry out theobligations of their oces to the best of their ability.150 However, the collectivebargaining process frequently puts them at odds with their statutory and ethicalresponsibilities. Ronald Booth sums up the slings and arrows that board membersmust face when combining labor relations, human relations, and politics:

[I]f unions do not get what they want at the bargaining table,board members and superintendents can nd themselves injeopardy. If the politics of impasse or strike doesnt get thesuperintendent red, then sometimes its the loss of school spiritthat often follows the strike or the teachers refusal to maintain


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acceptable relationships with students and parents. Even withoutthe rigors of bargaining, superintendents can seal their own doomthrough neglect of faculty attitudes. odays teachers not onlytalk about their problems out of school, they organize campaignsto unseat board members and to remove the superintendent.

Tat leaves school boards and superintendents on the horns ofthis dilemma: How do they protect the public from the unionswithout making themselves the sacricial lambs? Some boardshave said, lets forget the public and give the unions whatthey want. Other boards have stood fast against the unionsdemands and been ousted at the next election, soon followedto the sidelines by their superintendents. Clearly, what is called

collective bargaining in the private sector is not necessarily thesame thing in the public sector.151

Unions routinely recruit pro-union candidates to run for public oce. Tey thenuse their considerable resources to get these candidates who often do notreveal their union support while campaigning elected to school boards. Onceelected, these board members give the union clout on both sides of the bargainingtable. racey Bailey, a former AF member and 1993 National eacher of theYear, is a frequent critic of the unions and their political nature, calling themspecial interests protecting the status quo and pillars of a system that too oftenrewards mediocrity and incompetence.152

Mediocrity and incompetence aside, the inuence of unions over some electedboard members is real. It is not uncommon for 10 percent or less of registeredvoters to cast ballots in o-cycle elections. In a purely hypothetical example, thiswould mean that in a district with 59,000 registered voters, fewer than 6,000actually vote. Considering a district of this size easily has 1,000 or more school

employees, and likely another 1,500 or so registered voters that are a part of theirhouseholds, one can imagine the impact: 42 percent of the voters could have avested interest in ensuring pro-union board members are elected. Trow in thefear of a recall election, and it is easy to understand the political pressures thatplague many school boards in Illinois.

Collective Bargaining Hinders School Management Decision

Making

Te agreements that arise from collective bargaining establish the respectiverights of school management and the employee union. Usually, the more


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language included in an agreement, the more restricted the school board andadministrators are in making decisions.

oo many school boards have agreed to include in collective bargainingagreements subjects that hamper their ability to make timely and crucial

decisions that aect the delivery of educational services. Te end result is thatadministrators and teachers alike become hamstrung by a rigid and cumbersomeset of work rules and procedures.

Illinois law only mandates bargaining wages, hours and other conditions ofemployment and resolution of disputes arising under collective bargainingagreements.153 But the collective bargaining process itself seems to invite thecreation of a whole host of work rules.

Frederick Hess and Martin West aptly describe the result of collectivebargaining:

Te contracts are long, complicated, and replete with bothtediously detailed and needlessly ambiguous restrictions onadministrators. Te 199 collective bargaining agreements forteachers on le at the Bureau of Labor Statistics in January2005 averaged 105 pages in length. And the topics coveredin those pages extend far beyond bread-and-butter questionsof salary and benets; there are dozens of clauses covering adistricts ability to evaluate, transfer, terminate and manage theworkload of teachers, all having potentially serious eects on themanagement of schools and student achievement.154

Besides being cumbersome, these complex requirements have also led to anineective and time-consuming accountability process for many districts. Te

burdensome contractual requirements for the evaluation, discipline, and dischargeof employees have frequently led administrators and school boards to determinethat the cost of maintaining high standards of employee professionalism istoo high. As a result, ineectual or even incompetent teachers are left in theclassroom, to the great detriment of students.

When school boards transfer too much decision-making power into thecollective bargaining agreements, they may very well remove the accountability

that was the goal of bargaining the provision in the rst place. Tis is a tragedy.oward the end of his life, Albert Shanker recognized that accountability isessential to providing quality education:


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Te key is that unless there is accountability, we will never getthe right system. As long as there are no consequences if kidsor adults dont perform, as long as the discussion is not abouteducation and student outcomes, then were playing a game as towho has the power.155

Te same holds true today.

Collective Bargaining and Open Communication

Te adversarial and political nature of the collective bargaining process frequentlydistorts or sties communication among key groups in a school district. Schoolboard members and administrators, fearful of being charged by the union with

unfair labor practices, are often wary of speaking openly and directly withteachers. axpayers and members of the community are frequently unaware of, ormisinformed about, what is negotiated between their elected school boards andthe unions.

For example, unions (and sometimes district negotiators) often make a concertedeort to communicate only the general employee salary increases and not thetotal bargained increase in compensation. Consequently, Illinois citizens tend

to lack a clear understanding of the true labor costs for their districts, whichtypically range between 75 and 85 percent of a school districts budget.156Moreover, great care must be taken when informing the public or the union willle an unfair labor practice charge, as was the case in 2006, when the school boardof the Leslie School District sent a newsletter to citizens explaining the districtsnancial status,.157

Poor communication has led analysts to argue that collective bargaining hasresulted in too much of the public interest being given away or ignored.158 Alongthose lines, researchers Howard Fuller and George Mitchell have proposed thatbargaining be made public:

We believe bargaining sessions should be public. Te specics ofunion contracts are one of the least reported, yet most important,aspects of American education. With the general public largelyshut out, the result is the uneven playing eld. In Wisconsin,legislation would be required to achieve transparency; currently, if

one party requests that the negotiations be private, that prevails.We propose altering those terms so that either party can stipulatethat the negotiations be public.159


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Te same is true in Illinois. More public and parental involvement in thebargaining process is key to ensuring that schools continue to deliver high-quality education. But while the state of Illinois does permit bargaining to takeplace publicly, few districts open their negotiations to the entire community.

Yet there is hope. Many other states are nowrequiringcollective bargaining to bedone in public. William Keane notes that:

Te public may tolerate being left out of the process when thingsare working smoothly. When trouble results, they will be heard. So-called sunshine laws in Florida and other locations, which require thatcollective bargaining be carried out in public, are on the books becausethe public interest can be ignored only so long.160

Collective Bargaining Fosters Numerous Conicting Agendas

Te collective bargaining process involves more than just the interests of schoolboard members and teachers. Many special interests are often represented at thetable, each with its own agenda. Te goals of these various interests are seldomthe same.

Te agendas on the union side, for example, may include th

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