Foreword
Chapter 1 -- Introduction
Chapter 2 -- Decertification
Chapter 3 -- Disaffiliation
Chapter 4 -- No Representation
Chapter 5 -- Resignation
Chapter 6 -- Deauthorization
Chapter 7 -- Professional association or union?
Chapter 8 -- Strategy and tactics in decertification campaigns
Chapter 9 -- Financing the decertification campaign
Chapter 10 -- Disassociation or participation?
Endnotes
The Education Policy Institute (EPI) is a 501(c)(3) (nonprofit) organization based in Washington, D.C. Pursuant to its mission of fostering a more competitive educational system, EPI provides assistance to efforts to establish teacher unions that can compete with the NEA/AFT, or systems of representation that can compete with collective bargaining. For more information, write or call:
Education Policy Institute
PMB 294, 4401-A Connecticut Ave., NW
Washington, D.C. 20008
Tel: 202/244-7535
Fax: 202/244-7584
Email: lieberman@educationpolicy.org
Email: sdchar@aol.com
Website:
http://www.educationpolicy.org
The Education Policy Institute gratefully acknowledges the support from the Sarah Scaife Foundation, Scaife Family Foundation, and the William H. Donner Foundation, Inc. for the EPI Series on Teacher Unions.
Single copies of this publication and others on representation issues are available at no charge from EPI.
Myron Lieberman
Chairman
This report explains how teachers and their unions can sever their ties to the National Education Association (NEA). The issues are discussed as they arise in the thirty-nine states that authorize teacher bargaining, but the discussion is often applicable to other states as well.
Although the discussion focuses on the NEA, it is applicable to the American Federation of Teachers (AFT) or to any organization that seeks to represent teachers on terms and conditions of employment. The focus on the NEA is due to the fact that it enrolls about 1.7 million teachers. The AFT enrolls about 550,000 teachers; no other teacher organization has a significant number of members in a bargaining law state. Thus, as a practical matter, more teachers are likely to be interested in severing their ties to the NEA than to any other union. Editorially, however, the discussion is easier to follow if confined to one union throughout.
Basically, teachers can terminate their formal ties to the NEA in three ways: decertification, disaffiliation, and resignation. These procedures will be referred to collectively as "disassociation." "Decertification" is ordinarily defined as the procedure by which a union is required to give up the right to serve as the exclusive representative for employees in an appropriate unit. Decertification is defined here, however, as the procedure by which a teacher union not affiliated with the NEA replaces an NEA affiliate as the bargaining agent for an appropriate unit. "Disaffiliation" is the procedure by which a union severs its ties to the NEA. "Resignation" refers to actions by individual teachers terminating their rights, privileges, and obligations to the NEA. The exception, to be discussed in Chapter 5, is the case in which nonmembers are required to pay agency fees to the union. Teacher unions not affiliated with the NEA or AFT are referred to as "independent" or "non-affiliated" unions. Also, "the NEA" refers either to the local, state, and national units combined, or to the local affiliate that serves as the bargaining agent; the context should clarify the intended meaning.
Decertification, disaffiliation, and resignation are not the only ways to express dissatisfaction with the NEA; for example, members often write letters and articles that criticize the NEA. The procedures discussed in this report are governed by the governance documents of the union and/or the contract, if any, between the union and the school district, the statutory provisions, and judicial opinions that bear upon the issues. Inasmuch as there would be no point to the discussion in the absence of dissatisfaction with the NEA, the report assumes that dissatisfaction exists.
This report is not intended to advise teachers on whether, individually or jointly, they should disassociate from the NEA. The issues involved in this decision have been discussed elsewhere in detail, and there is no need to repeat that discussion here.1 Instead, the purpose of this report is to explain how to disassociate and to point out the advantages and disadvantages of each mode of disassociation. Nevertheless, a summary of the reasons why many teachers are dissatisfied with the NEA may help to show what is at stake in disassociation. The reasons include the following:
It should be noted that the NEA has agreed with some of these criticisms or at least has accepted them as a reason to initiate changes within the NEA. For example, a study sponsored by the NEA included external interviews with NEA officers and staff, as well as analysis of press reports, polling data, and data from focus groups of both members and nonmembers. The report concluded that the following perceptions about the NEA "have begun to stick":
Not surprisingly, NEA state affiliates have sometimes reached the same conclusions. A 1998 report prepared by officers of the Kentucky Education Association asserted:
Typical KEA members do not volunteer to assist the Association, nor do they have much contact with itŠThe current perception of KEA is that we are an organization far removed from the rank-and-file membership. Some perceive that a few elite, power-hungry leaders and management personnel sit in Frankfurt in ivory towers making all the decisions. We are seen as uncaring toward the real problems of real teachers in real classrooms. Leaders and staff alike are seen as self-serving, disrespectful to one another, jealous, and sometimes resentful of one another.
In light of NEA's internal findings, it is understandable why a significant number of teachers are interested in disassociation from the NEA. Of course, dissatisfaction with the NEA is not necessarily grounds for withdrawing from or refusing to join it. Theoretically at least, dissatisfied members may be able to persuade the NEA to adopt different policies. Or because resignations may enable union officers to spend union funds for undesirable purposes, resignation may not be a desirable option. Also, dissatisfaction may be due to offensive conduct by association leaders, and changing the leadership may be the most expeditious way to remedy the situation.
The state teacher bargaining laws differ, frequently on important issues. Some prohibit teacher strikes, some allow strikes under certain conditions. Some require mediation and/or factfinding if the parties are at impasse; others do not. Some states allow principals to bargain, others do not, and so on. In short, there is no substitute for careful study of the state bargaining law that governs a particular situation. Although this report reflects the majority position among the states, the exceptions are too numerous to be safely ignored. Even resigning from the union, which appears to be a simple matter, can be a very complicated issue that must be resolved by the state public employment relations board (PERB) or by state or federal courts.
Section 2(3) of the National Labor Relations Act (NLRA) defines a labor organization as:
Any organization of any kind, or any agency or employee representation committee or plan, in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work.
Most of the state bargaining laws define "labor organization" or "union" as an organization that, among other things, represents employees on terms and conditions of employment. Legally and practically, therefore, the "professional" teacher associations that decry teacher unions are "unions" in this analysis. They may avoid the label and be several other things as well, but in the labor relations context, they are also "unions." In this report, they are referred to as "independent" or "nonaffiliated unions."
The NEA contends that a high proportion of its members approve NEA's policies and programs; otherwise, a much higher number of teachers would have resigned from the NEA. This contention cannot be sustained.
In many states, teachers who wish to resign from the NEA erroneously believe that they would be required to give up their jobs to do so. In many school districts, NEA locals have negotiated multiyear contracts that allow teachers to resign from the union only during a brief window period near the expiration of the contract. In other districts, teachers who resign must nevertheless pay fees to the union that are almost equivalent to union dues. Where this is the case, teachers who prefer not to be union members may feel that the small saving from resignation is not worth the risk of union refusal to support their grievances, even though such a refusal on the basis of nonmembership is illegal. In all of these situations, membership in the NEA is not tantamount to approval of it.
Estimates of the number of NEA members who would like to resign but do not for various reasons vary widely, but in the bargaining law states, twenty percent is a reasonable estimate. Of course, this estimate will be contested by the NEA, but its membership figures do not show the substantial number of teachers who become or remain members because they are not aware of their right to resign, or have been misled about the consequences of resigning.
Teachers who wish to sever their ties to the NEA, individually or collectively, often must devote time and personal resources just to find out how to proceed. In contrast, the NEA spares no expense in its efforts to render disassociation as difficult and as costly as possible. This huge imbalance of resources severely disadvantages teachers who wish to sever their ties to the NEA. This report is only a small step toward a more level playing field.
Decertification is ordinarily defined as a procedure whereby a union loses the right to bargain collectively for employees in an appropriate unit. As the term is used here, however, it will refer to the procedure by which an NEA affiliate is replaced as the bargaining agent by an independent union; however, the NEA affiliate can be decertified even though no union is certified to be the bargaining agent. Strictly speaking, both certification and decertification are actions by the state labor boards; the latter are the agencies that formally certify or decertify unions as the bargaining agent. The state boards may have several reasons to decertify an NEA affiliate, but our interest here is in the process by which teachers choose an independent union to replace an NEA affiliate as their bargaining agent.
When teachers choose a bargaining agent, they are not locked into this choice forever. Instead, state law allows teachers to replace an incumbent union with a different one, or reject exclusive representation altogether. The procedures involved are spelled out in state laws and the regulations of the state public employment relations boards (hereinafter PERBs) that administer the teacher bargaining statutes. In most states, the state laws require that regardless of the duration of the contract, teachers have an opportunity to decertify the incumbent union at least once every three years. Typically, the process must be initiated and completed within a specified number of days before the expiration of the contract between the union and the school board; the window periods in the states vary, but a 90-day window that ends 30 days before the expiration of the contract would be typical. Of course, the unions prefer the briefest possible window period.
Let us suppose that state law provides a 90-day window period ending 30 days before the expiration of the contract; during this period, teachers may petition to oust the NEA affiliate as the exclusive bargaining agent. This provides time for the NEA affiliate to negotiate a timely successor contract in case it is not ousted as the exclusive representative. The statutes usually provide that in order to trigger a decertification election, at least thirty percent of the teachers in the bargaining unit must sign authorization cards or a petition designating the independent union as their exclusive representative. This seems to be simple and straightforward, but that is often not the case.
Petitions signed by teachers in the bargaining unit, and only such signatures, are counted as meeting the thirty percent requirement. Thus, if the bargaining unit does not include substitute or part-time teachers, their signatures will not be counted toward the thirty percent requirement. Eligibility to vote is based upon the official certification of the incumbent union by the state public employment relations board (PERB). This certification states the positions that are covered; the union that is certified bargains for the employees in these positions. A petition designating a different union as the representative must be drafted carefully. It is not enough for the petition to state that the signatories request an election; the petition must state unambiguously that the signers wish to be represented by a specific organization. Model language on this point is usually available from the state PERB.
This is not the end of the matter. Suppose the district hires several teachers a few days before the date of the representation election. Are such teachers eligible to sign the petition and vote in the representation election? The contending unions try to ascertain how the new teachers will vote and then seek a decision on their eligibility to vote that will help them win the election. This issue is usually resolved in a meeting with a state hearing officer who supervises the election. If the incumbent and the nonaffiliated union cannot agree on the cutoff date for eligibility to vote, the hearing officer decides the issue. The hearing officer's decision can be appealed to the PERB, and from the PERB to the state courts if one of the parties decides to do so. Similarly, the hearing officer tries to resolve other election issues by agreement between the contending unions; in the absence of agreement, the hearing officer resolves the issues. A partial list of the issues to be resolved at the preelection conference includes the following:
The way these issues are resolved can affect what organization, if any, wins the election. For example, suppose that the high school teachers support decertification but most elementary teachers do not. Suppose also that the district includes one high school and four elementary schools. The challenging union will propose that all the voting and counting of ballots be conducted at the high school. The challenger will argue that fewer sites will reduce the likelihood of mistakes in monitoring the election and the counting of ballots. It will also render it easier to monitor campaigning at the election site. The NEA affiliate will emphasize the importance of convenient access to the ballot. It will point out that many teachers have family or outside employment responsibilities that will leave insufficient time to drive to a central site and wait in long lines to have their eligibility confirmed and cast their ballots. The real reason why the parties adopt these different positions is their common perception that the elementary teachers are less likely to vote if they must travel to the voting site. Similarly, on other issues, the positions of the contending unions are the positions that will enhance their election prospects.
The hearing officers are usually very experienced in resolving such disputes. If the distances to a single voting site seem to be unreasonably far for some teachers, the hearing officer may try to persuade the school administration to allow teachers at the faraway sites to leave earlier than usual. If only a few absentee ballots are anticipated, and the absentee teachers live in the district, absentee ballots may not be permitted, or they may be limited to teachers temporarily residing a long distance from the district.
Ordinarily, the PERB will not release the names of the teachers who sign the petition until it finds that thirty percent of the unit members have signed it. The PERB checks the signatures on the petition, but the incumbent union is entitled to a reasonable amount of time to challenge the validity of any signatures on the petition.
Obviously, resolution of the election issues is not a game for amateurs. The NEA affiliates send experienced personnel to the preelection conferences. These individuals are familiar with both sides of the issues since NEA affiliates will have been the incumbent union in some districts and the challenging union in others. Although it is not essential to be represented by an attorney at the preelection conference, it is essential to be represented by someone who fully understands the implications of the issues to be resolved.
In a close election, minor deviations from the election rules can be grounds for overturning the outcome and holding a new election. Here again, the financial dimension can be critical. The NEA and its affiliates are wealthy unions that can litigate issue after issue to block certification of an independent union as the exclusive representative. For example, the NEA affiliate may contend that the independent union promised special benefits for teachers who supported its election campaign. It may allege that teachers were coerced into voting for the independent union, or that the latter made false but damaging assertions about the NEA affiliate just before the election, when the affiliate did not have sufficient time to respond to the assertions. All such conduct can be grounds for overturning the election outcome and ordering that a new election be held.
These possibilities raise an important point. Supporters of the independent union should be alerted to the importance of documenting false statements or coercive conduct that may affect the outcome. To illustrate, the NEA affiliate may try to frighten teachers by telling them that the school board will abolish their health benefits if the independent union wins the election. The fact is that the school board cannot change the terms and conditions of employment without first bargaining about them with the union that wins the election. Whenever supporters of the independent union are exposed to opposition falsehoods, they should note the time, place, person(s) asserting the falsehoods, and the other parties present. The PERB may be unwilling to overturn the election outcome over an isolated incident but it will do so if there is a repetition of prohibited conduct. After the election, the parties have a specified number of days in which to challenge the election results and request a new election. If there is no challenge, the PERB certifies the winning union as the exclusive representative of the teachers in the bargaining unit.
Even if the independent union is certified, the terms and conditions of the contract remain in effect (1) until there is a new contract; (2) the winning union and the school board agree to implement changes before agreement on a new contract; or (3) the parties have bargained to impasse and the school district takes unilateral action to change the terms or conditions of employment. The latter option does not become available to the school board until the impasse procedures have been exhausted. Some states require mediation and/or factfinding if there is no agreement and more bargaining appears to be futile. These procedures often require several months, during which time the existing terms and conditions remain in effect.
Several troublesome issues relate to school board actions from the time it is known that a decertification campaign is underway. For instance, suppose the school board raises teacher salaries in the week before the election. Such actions raise the issue of whether the school board has interfered with the election process. The short answer is this: If the school board's action is consistent with its past practice, its actions will not be regarded as interference with the election; however, if the board's action is a clear deviation from its past practices, it will be considered interference with the election unless a good business justification for the deviation is forthcoming.
For example, suppose the election is scheduled for June 10, but the school board raises salaries on June 1. If the board has implemented such raises in the past around June 1, similar action will ordinarily not be regarded as employer interference that requires a new election. If, however, the school board has never implemented a salary increase in the spring, doing so just before an election may well be considered interference with the election requiring a new election.
When a petition meets the thirty percent requirement, the ballot may also include the option of "No representation." In some states, this option is on the ballot automatically; in others, it requires the support of a certain percentage of the bargaining unit to be on the ballot. Thus, if thirty percent of the unit members sign a petition for "No representation," an election will be held just as if another organization were on the ballot. It is not unusual, however, for the ballot to include three options: the NEA affiliate, the nonaffiliated union, and no representation.
"No representation" is somewhat misleading as a ballot option; the option should be labeled "No exclusive representation." If the "No representation" option wins the election, the teachers can still be represented by whatever organizations they prefer, but the school board will not be required to bargain or deal with any group as an exclusive representative.
For what period of time does "No representation" prevail? Usually, a victory for "No representation" precludes another election for only a year. Consequently, the NEA affiliate can try again one year later to become the exclusive representative; inasmuch as it can outspend the "No representation" forces by huge margins, the latter position is very vulnerable to repeated challenges. In public education, "No representation" seldom prevails more than a year or two as the majority preference.
When there are three or more options on the ballot, and none receives a majority of the valid votes cast, there is a runoff between the two options receiving the highest number of votes; the option with the highest number of votes is the winner of the runoff election. The majority required is a majority of all the votes cast, not a majority of the teachers in the bargaining unit. If there are 300 teachers in the bargaining unit, and only ninety-nine vote, the option with fifty or more votes would be the winner. If the low turnout was due to inclement weather, the PERB might refuse to certify the winning union and order that a new election be held. This differs from the principle involved in elections to public offices; inclement weather is never a justification for overturning an election to state or federal office. Although the preferences of the nonvoters usually reflect the preferences of the voters, there are many exceptions and qualifications to the general rule.
"Disaffiliation" refers to the termination of ties between an NEA affiliate and the NEA. With one qualification, disaffiliation is available to any NEA affiliate at any time. The qualification is that disaffiliation may be limited by a contract between the affiliate and the state or national association. Disaffiliation may also be subject to the local's constitution and bylaws governing local action; for example, if affiliation is required by the local's constitution, the procedures for amending the constitution must be followed to effectuate disaffiliation. These procedures may require a super majority vote, such as a two-thirds majority. There are pro's and con's to disaffiliation just as there are to decertification; however, since disaffiliation can be pursued if decertification fails, or vice versa, the order in which each is pursued must be considered carefully.
Disaffiliation by a local NEA affiliate is open to its members at any time within the limitations of the contract or union governance documents. In some states such as Michigan, notice of disaffiliation must be given to the state affiliate at least six months before a disaffiliation vote can occur. Disaffiliation does not affect the local's status as the bargaining agent or its rights and obligations under its contract with the school board. This is an important advantage over decertification because the union contract with the school board often provides the local with several important rights such as: the right to payroll deduction of dues, right to use the district mail system and school buildings for union meetings; right to establish union bulletin boards in each school; right to use district equipment; and right to leave of absence with pay to conduct union business. Frequently, these rights are not available to any other teacher organization. As we have seen, this is why it is sometimes very difficult to decertify NEA affiliates that have these exclusive rights.
Disaffiliation raises difficult strategic and tactical problems. For instance, agency fee payers usually support disaffiliation because they no longer will be required to pay state and national agency fees; however, because agency fee payers are nonmembers, they cannot vote for disaffiliation. In some cases, disaffiliation may eliminate the reasons for nonmembership. Thus, it may happen that a majority of all teachers favor disaffiliation while a majority of union members does not.
Suppose the disaffiliation issue arises in a local NEA affiliate that has 300 members, each paying $137 in local dues; $300 in state dues; and $123 in national dues. Suppose further that 50 nonmembers pay $420 in toto a year in agency fees. This means that disaffiliation will cost the NEA $189,000 a year; in addition, disaffiliation would send a powerful message to teachers elsewhere, especially in the same area. Understandably, the NEA and its state affiliate will make a strenuous effort to persuade teachers to reject disaffiliation. Also, the NEA and its affiliates can discipline members for supporting competing organizations opposed to NEA policies; also for actions unbecoming a union member. Union discipline can consist of expulsion or fines of as much as one year's dues.
Consider the issue in economic terms. The teachers are the buyers of union services. The NEA and the state affiliate are the producers, facing the loss of a valuable customer. There are very few businesses that would accept the loss of a customer paying $189,000 annually without a fight to retain the customer, and the NEA is not among them. For this reason, substantial resources may be necessary to effectuate disaffiliation; however, if the teachers supporting disaffiliation control the local association, they will have access to its resources to persuade other members of the local to support disaffiliation.
To summarize, decertification and disaffiliation involve different rationales, different strategies and tactics, different legal requirements and procedures, different eligibility to vote requirements, and different consequences. Local leaders must choose the most favorable option in the light of all the circumstances. Table 3.1 outlines the differences that must be considered.
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1. |
Involves a contest between unions |
Involves a contest within the incumbent union |
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2. |
Can be implemented only during brief window periods or in the absence of a contract |
Can be implemented at any time, but may have a waiting period before a vote can be held |
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3. |
Procedures are established and regulated by state labor boards |
Procedures are spelled out in the constitution and bylaws of the union local or state affiliate or affiliation agreement |
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4. |
Incumbent union loses right to exclusive representation |
Incumbent union maintains the exclusive right to bargain on behalf of all teachers |
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5. |
Contract between the incumbent union and the school board is no longer in effect |
Contract between the incumbent union and the school board remains in effect until expiration date |
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6. |
Organizational resources likely to be utilized to defeat decertification |
Organizational resources less likely to be utilized to support disaffiliation, but state and national resources will be used against disaffiliation |
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7. |
Out of pocket costs of decertification effort likely to be very substantial |
Out of pocket personal costs of disaffiliation effort are likely to be much less than the out of pocket personal costs of a decertification effort |
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8. |
Successful effort precludes challenge for at least one year |
Successful effort can be challenged at any time unless local constitution and bylaws provides otherwise. No legal barrier to immediate effort to reaffiliate |
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9. |
All members of the bargaining unit, both union members and nonmembers, are eligible to vote |
Only union members eligible to vote |
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10. |
Extensive legal services often required |
Extensive legal services seldom required |
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11. |
Legal challenges to the outcome submitted to and resolved by the state labor board |
Legal challenges to outcome submitted to state district court and resolved in litigation between supporters and opponents of disaffiliation under contract law |
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12. |
If no choice receives a majority in first ballot, runoff between top two choices determines the outcome |
Organization constitution and bylaws govern the margin required for a definitive outcome |
Obviously, these differences are a lot to think about. The effort to disaffiliate has a much better chance to win if its leadership includes one or more officers of the local association. In this situation, the disaffiliation forces are less likely to be perceived as influenced by external forces and may be able to utilize the resources of the local to support disaffiliation.
For various reasons, some teachers prefer not to be represented by any union. If a majority of teachers in an appropriate unit votes for "No representation," then no organization has the right to exclusive representation and to bargain collectively for at least one year from the date the election results are certified. For better or for worse, however, "No representation" will not be a viable option in most school districts. The reason is not any objection to "no representation" in principle, although this is a highly controversial issue in its own right. It is the practical difficulty of maintaining the "No representation" status for more than one year. Let us see why this is so.
As we have seen, the reasons why teachers prefer "No representation" vary widely. Some reasons are remediable by the union, and some are not. If most teachers vote for "No representation" for reasons that are remediable by the union, a victory for the "No representation" option may survive for only one year. This possibility calls into question the viability of "No representation" as a continuing status.
The fact is that most teachers like the idea of representation. Most probably prefer to stay with representation that is mildly flawed to "No representation." Obviously, the point at which individual teachers will opt for no representation will vary from teacher to teacher, but even the most devoted union members are critical of the union from time to time; criticisms of the union do not necessarily translate into votes for "No representation."
In any case, it is essential to take a long range view of the matter. A vote for "No representation" precludes another representation election for only one year. The incumbent union is likely to try to persuade teachers to sign a petition for a representation election before the end of the window period. In this way, it can be prepared to file its petition as soon as the window period opens. Thus, in less than a year, the "No representation" supporters will face another union effort to be the bargaining agent. This means that once again, individual teachers will have to devote more time and money (their own) to counter a union comeback. This scenario could materialize repeatedly, until the supporters of "No representation" are no longer able to devote the time, energy, and personal resources to defeat the union in a representation election.
In this connection, there is an important difference between union organizing efforts in the private sector and NEA efforts in public education. In the private sector, many unions have no members, or only a very few, when they are trying to organize private employers. If the union wins a representation election, it negotiates a contract that requires employees to either join the union or pay agency fees to it as a condition of employment. This insures the financial stability of the union.
The situation regarding union membership in public education is very different. When the NEA became a union in the 1960s and 1970s, it already enrolled many dues paying members in most school districts. If and when the NEA affiliate lost to "No representation" in a representation election, the NEA affiliate, unlike the private sector unions that lost to "No representation," did not disappear. Knowing that the NEA affiliate would maintain a presence in the district, school employers and teachers favoring "No representation" did not even try to defeat NEA efforts to win representation elections. As a result, the overwhelming majority of school districts in the bargaining law states were unionized very quickly in the 1960s and 1970s.
These developments help to explain why it is very difficult to maintain "No representation" in public education. The NEA usually has an organization in districts that have voted for "No representation." This organization can get substantial assistance from the NEA for a representation election. Meanwhile, the supporters of "No representation" are not members of organizations that can raise the money necessary to defeat repeated efforts to organize teachers in their districts; the costs of "No representation" campaigns must be absorbed by the teachers who support this option. These costs may be much more than even the most dedicated teachers can afford. Naturally, teachers do not wish to contribute very much to a campaign that culminates in a short-lived victory at best. Thus, no matter how strongly teachers believe the arguments for "No representation," the practical difficulties of maintaining this position are usually insuperable.
Paradoxically, the only practical way to maintain a "No representation" policy is to compete as a union against an NEA affiliate. The exclusive representative assumes the obligation to represent everyone in the bargaining unit fairly. The union cannot just say to unit members: "We do not intend to represent you." Unless unit members agree to nonrepresentation by the union, the latter would be committing an unfair labor practice by failing to represent all teachers in the bargaining unit. Nevertheless, the union might allow teachers or groups of teachers favoring "No representation" to negotiate their terms and conditions of employment. Another option would be to appoint such teachers to the union bargaining team when their issues were being negotiated.
Ordinarily, the board will want to avoid two or more sets of negotiations, one with a union and the other with teachers not represented by the union. In some circumstances, however, school boards might welcome the opportunity to negotiate separately with certain individuals or groups of teachers. For example, if the teachers who support "No representation" are mathematics and science teachers, the school board might prefer to negotiate separately with this group because shortages in these fields require special arrangements.
The existing practice is for the unions to bargain for various sub-groups in the bargaining unit. Nevertheless, both the union and the school board may prefer not to hold up bargaining over matters that concern most teachers in order to settle issues that concern only a small number of teachers in special circumstances. The school board may prefer separate negotiations because without union representation, the teachers in the specialized groups may not have as much bargaining power. The union cannot unilaterally waive its obligation to represent everyone in the bargaining unit, but one way or another, a union opposed to exclusive representation can probably accommodate teachers who do not want union representation.
What if a sub-group of teachers in the bargaining unit wanted to be represented by an NEA affiliate? Any such request should be denied. The likelihood is that these teachers would oppose any reasonable contract so that they can accuse the winning organization with "selling out" to the school administration. Any such sub-group would be liberally funded by its state and national affiliates, so it would have ample capacity to be a disruptive force. Apart from this, there might be protracted bargaining because every sub-group would be reluctant to settle without knowing what others had been willing to accept. Everyone would want to be the last to settle, hoping to get at least as much as the others, and perhaps more.
An acceptance of bargaining has one overriding advantage for an independent union; it can negotiate a multi-year contract during which time it cannot be challenged, except for the window period near the expiration date of the contract. This temporary respite from challenges may be essential to the long term survival of the nonaffiliated union.
Would acceptance of a bargaining role while conceding merit in "No Representation" be hypocritical? In principle, it would not be hypocritical at all. Many taxpayers receive benefits from IRS regulations that they believe should be abolished. Such taxpayers are not hypocrites because they take advantage of the same regulations. There is a world of difference between "Nobody should have the benefit" and "Critics of the benefit are insincere if they accept the benefit." For example, refusal to accept the benefit may put your business at a competitive disadvantage, whereas there would be a level playing field if nobody received the benefit.
The strongest argument against teacher bargaining is that terms and conditions of teacher employment are public policies, like speed limits, housing codes and penalties for murder and theft; therefore, collective bargaining by public employees constitutes the negotiation of public policies with one interest group in a process from which other interested parties are excluded. In political terms, a strike by public school teachers is the suspension of a public service until one interest group &endash; the teacher unions &endash; gets the public policies that it wants. When we describe collective bargaining and strikes by public employees in political instead of labor terms, as we should, the case against it is a strong one. Nevertheless, there is no conflict of principle in saying that a) collective bargaining is undesirable public policy, and b) you support replacing the NEA affiliate by a different union as the bargaining agent. This is especially true when the most feasible way to bring about change in the process is to participate in it. Purists contend that if you participate in collective bargaining as a different kind of union, you will end up becoming another NEA, but there is no basis for this defeatist attitude.
Of course, if a group of teachers believe that teacher bargaining is undesirable, other teachers may conclude from this that the first group would not provide effective leadership for a union. This is like concluding that your accountant cannot handle your taxes effectively because he/she believes that certain provisions in the code should be abolished. In fact, recognition of the negative consequences of collective bargaining may enable teachers to participate in it more effectively than persons who support it without reservation. Interestingly enough, this was precisely the NEA's position in the 1960s and 1970s. For years, the NEA had opposed collective bargaining by teachers; then it changed from opposing collective bargaining to asserting that it could bargain more effectively than the AFT. At no time did the NEA concede that its earlier opposition to collective bargaining rendered it less able to bargain effectively for teachers. The crucial point, however, is that teachers who believe that teacher bargaining is undesirable are not ethically obligated to abstain from collective bargaining, nor does their criticism of it necessarily render them unable to bargain effectively.
Resigning from a union is obviously a form of disassociation from it. The major advantage of resignation is that it can be implemented by individuals; there is no need to persuade other members to do anything.
Although private sector employees can resign at any time, teacher bargaining is governed mainly by state laws, and the state bargaining laws do not explicitly provide a right to resign at any time. Consequently, the extent to which state courts follow federal precedent may be decisive on resignation issues; however, there is the possibility that state laws and/or judicial decisions restricting the right to resign may violate the U.S. Constitution.
The unions try to restrict the right to resign for three reasons: 1) The longer the duration of membership, the more revenue for the union; 2) the need to preserve union solidarity, or the perception of it; and 3) the importance of preventing resignations over union policy or practice.
The second reason requires elaboration. Unions generally have the right to adopt rules and enforce penalties on union members who violate union rules. The practice is most important in large industrial unions where it is deemed essential to discourage union members from continuing to work in strike situations. Disciplinary action by unions against union members is rare in public education, but it may be more frequent in the future.
Suppose the union is trying to pressure the school board into concessions by requiring all members to refuse to accept any extracurricular activities, such as coaching athletic teams for pay. Teachers ordinarily have the right to refuse extra duties for additional pay. Suppose, however, that the football coach does not want to sacrifice the entire season; even if the union later revokes the restriction, the team would lose critical games and the opportunity for a successful season. Let us suppose also that the football coach cannot afford to lose the coaching stipend. For these reasons, the coach resigns from the union in order to coach the football team while avoiding any union discipline for doing so. Such resignations weaken union solidarity, hence teacher unions may try to prohibit or restrict them as much as possible. One way to do this is to adopt penalties for violations of union rules. As our example illustrates, the right to resign at any time can be a critical issue for the school board and the union as well as for the teacher who wishes to resign.
In the private sector, union members can resign at any time; however, if resignation occurred after the employee went back to work during a strike, the employee could be disciplined for violating the union rule while still a member of the union. This assumes that the union rule prohibiting members from going back to work did not require members to violate any law; union members cannot be disciplined for refusing to violate the law.
There is no prescribed format for resignation, but resignations must be clear and communicated to the union. The union's constitution and bylaws may prescribe the method of resignation; for example, to whom the resignation should be sent. Resignations are effective when received by the union, but if the timing is not clear, the employee bears the burden of proof that the resignation was timely.
In public education, the legality of restrictions on the right to resign has not been litigated very much. One reason is that it would cost teachers more to defend their right to resign than it would if they did not contest the issue. Where the NEA collects agency fees from the resigning teachers, there is less reason for the NEA to contest resignations. Nevertheless, resignation issues are likely to be more important in the future than they have been in the past.
The National Labor Relations Act (NLRA) protects the right not to engage in collective action:
Sec. 7. [§ 157.] Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a)(3) [section 158(a)(3) of this title].
If state statutes and court decisions follow NLRA precedents, the state courts will probably uphold an unqualified teacher right to resign at any time; however, in states that allow agency fees, the outcome will probably be to allow resignations at any time but uphold the agency fee requirement.
If the government does not require membership in a private organization through a statute or regulations, the unions place the restrictions on the right to resign in the union constitution or bylaws, or sometimes in the forms authorizing payroll deduction of union dues. These forms may provide that membership shall be renewed every year unless revoked in writing during a window period. In this way, the unions can argue that no state action is involved; the teacher has voluntarily agreed to the restrictions on resignation and should be required to adhere to the teacher/union contract. This argument is stronger in the private sector since union members in that sector can terminate their union membership at any time.
Another significant issue is whether NEA members can be disciplined for soliciting signatures for a rival union. In the federal cases on the issue, the courts have held that members can be expelled but not otherwise disciplined for this activity. To allow the unions to inflict any additional penalties would allow the unions to coerce members in the exercise of their rights under the bargaining statutes.
The most common method of restricting resignations in public education is to include a maintenance of membership clause in the contract between the union and the school board. A maintenance of membership provision prohibits resignations except during a brief window period; the window period is usually a certain number of days after ratification or before the expiration of the contract. In either case, the union tries to limit the window period as much as it can. In states that mandate or allow agency fees, maintenance of membership allows the union to collect agency fees, but it appears that the First Amendment to the U.S. Constitution prohibits unions from requiring employees to be and remain full members in either the public or private sector. Regrettably, the unions persist in incorporating contractual provisions that are misleading and cannot be enforced against employees who are not misled by union refusal to inform employees of their rights in plain English; unfortunately, the U.S. Supreme Court declined to prohibit union deception on the issue.
The basic principle relating to union efforts to punish members for violating union rules is that such punishment must be based upon voluntary membership in the union. If membership was based upon fraud or coercion, or was not voluntary, the union cannot punish members for violating union rules.
In allowing unions to negotiate and enforce agency fees in the private sector, the U.S. Supreme Court characterized agency fee payers as "financial core" members of the union. This language has enabled the unions to claim that language requiring employees to become union members is accurate, but the language obviously misleads teachers and school boards into believing that regular membership in the union is required as a condition of employment.
Agency fees are paid by nonmembers of the union. Legally, the fees are supposed to be the nonmembers pro rata share of the union's costs of collective bargaining, grievance processing, and contract administration (hereinafter, "the costs of collective bargaining"). The state and national affiliates of a local union are also entitled to agency fees. Although fee payers cannot be treated differently from union members regarding contractual benefits, the fee payers do not have the right to vote on whether to accept or reject the contract, or on other internal union matters.
Five states (California&endash;for university employees, Hawaii, Minnesota, New York, and Rhode Island) have mandated agency fees by statute. In these states, the teacher unions are not required to bargain or make any concession to receive agency fees; the fees are automatically deducted from nonmember salaries after the first month of employment.
The amount of the fee varies from state to state and district to district, but the range is from 60 to 95 percent of unified dues; in most states, the fees are from 70 to 85 percent of unified dues. Union dues tend to be higher in states where agency fees are statutorily mandated; the union can raise the dues, knowing that teachers who object to the increase will nevertheless have to pay almost as much as dues.
Resignation can be problematic for teachers in agency fee districts. Agency fee payers cannot participate in union affairs, and they are often criticized for allegedly not paying their "fair share" of the costs of union representation. Justified or not, fee payers often believe that the union will not pursue their grievances as they would for a union member. Quite often, the fee payer must renew his/her request to remain a nonmember every year during a narrow window period.
Under these circumstances, it is not surprising that many teachers who would prefer not to be union members nevertheless join the union. They join not because they believe that the union deserves their support, but because the disadvantages of nonmembership, including the agency fee, outweigh the objections to membership. This is why union membership has virtually always increased after agency fees are required.
Because agency fee payers are nonmembers of the NEA, they cannot participate in a disaffiliation effort, but they are eligible to sign petitions in the decertification process. Thus, the number of agency fee payers before and after agency fees became mandatory might provide useful clues to the extent of teacher support for decertification or disaffiliation; however, the proportion of unit members who are also NEA members is not necessarily indicative of support for the NEA affiliate in a decertification or disaffiliation effort. Since the early days of teacher bargaining, AFT locals have won several representation elections despite the fact that the NEA affiliate enrolled many more members.
Supervisors are ordinarily considered to be the front-line representative of management; however, in some states, supervisors are in the bargaining unit and may also be members of the NEA. In such situations, their management duties may conflict with their obligations to the union.
For example, suppose a supervisor crossed a union picket line in order to perform work that is ordinarily performed by teachers. The issue then becomes whether the union can take disciplinary action against the supervisor member. The answer is "probably not," but supervisors will want to consider this issue very carefully in deciding whether to be or remain NEA members.
The main conclusion to be drawn from the preceding discussion is that teachers who want to resign from the NEA should resign from it no matter whether or how the collective bargaining contract or the rules of the local association restrict resignations. By resigning, teachers force the local affiliate to state the basis for its refusal to honor the resignation. If the local refuses to accept the resignation, the teacher can call the National Right to Work Legal Defense Foundation (NRTWLDF) for assistance. The foundation provides legal assistance without charge to teachers who experience union stonewalling on resignations; however, their chances of getting help from the NRTWLDF are much better if a group of teachers are seeking to resign.
Deauthorization is a procedure whereby a majority of the teachers in a bargaining unit rescind union authority to negotiate union security provisions. This means that no teacher can be compelled to join or financially contribute to the union as a condition of employment; unionism would be voluntary.
Deauthorization in teacher bargaining is a carryover from the National Labor Relations Act (NLRA); however, it is controlled by state law and state labor board regulations. You should contact your state labor board to ascertain the deauthorization procedures, if any, in your state.
The relevant section of the NLRA (Section 9(e)(1)) reads as follows:
Upon the filing with the Board, by 30 percentum or more of the employees in a bargaining unit covered by an agreement between their employer and a labor organization made pursuant to section 8(a)(3), of a petition alleging their desire that such authority be rescinded, the Board shall take a secret ballot of the employees in such unit and certify the results thereof to such labor organization and to the employer.
Perhaps the most important advantage of deauthorization over decertification is that deauthorization petitions can be submitted at any time during the life of the contract. This advantage provides much needed flexibility in decisions to initiate a deauthorization campaign.
The signatures for a deauthorization election should be collected during off-duty time. If collected during work time, the petition can be challenged on the grounds that it reflects illegal employer assistance to a labor union; also, the school district may have the right to discipline employees who collect signatures during duty hours.
Figure 6 shows a petition form that should be adequate in any state that allows deauthorization proceedings; however, interested teachers should check with their state PERB to find out if a different form is required.
The undersigned employees, constituting 30% or more of the bargaining unit covered by a contract between _______________ (union name) and ___________________ (employer name), wish to withdraw the authority of _______________ (union name) and ______________ (employer name) to enter into and enforce the union security clause in the contract. The undersigned employees petition the [state] Labor Relations Board to hold a deauthorization election to determine whether the majority of employees wish to withdraw the authority of the union and the employer to enter into and enforce the union security clause in the contract.
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* Adapted from form provided by National Right to Work Foundation for use in private sector cases under the NLRA. | ||
The state teacher bargaining statutes were initially drafted by lawyers employed by the public sector unions; understandably, their draft legislation copied NLRA provisions that were union friendly, but omitted several others that could be used against unions. Consequently, only a few states allow deauthorization, but the procedures differ from each other and from the NLRA procedures in some ways.
A deauthorization effort can anticipate support from NEA members who joined primarily to avoid the problems associated with agency fee status; unit members who object to the NEA's political and social agenda; and unit members dissatisfied with the conduct of negotiations or the contract; however, because deauthorization is a one-issue program, it may lose opportunities to build a broader coalition.
Although deauthorization revokes any union security clause, the NEA affiliate is still the bargaining agent, but without authority to negotiate on organizational security. In the absence of such authority, union revenues typically decline substantially, often by a third or more. The fact that the incumbent union continues to be the bargaining agent is an important difference between deauthorization and decertification; another is that the election majority in deauthorization must be an absolute majority of the bargaining unit, not a majority of the valid votes cast, as is the case in a decertification election. In effect, any unit member who does not vote in the deauthorization election constitutes a vote against deauthorization. Another important difference is that agency fee payers, who are ineligible to vote in disaffiliation proceedings because they are not union members, are eligible to sign a deauthorization petition and to vote in the election on the issue.
Many teachers believe that "professional associations" are more worthy of support than "unions". To the extent that this is the case, or teachers believe that it is, teachers are likely to reject the appeal to a different kind of union. Their attitude will be that all unions share certain undesirable characteristics, hence the effort to forge a different kind of union is fatally flawed from the outset.
Teachers who feel this way are often members of teacher organizations that are not affiliated with the NEA. These organizations label themselves "independent" or "professional", often without clarifying the meaning of these terms. "Independent" is probably intended to mean "not affiliated with a national union," but what does "professional" mean? Presumably it means something different from a "union" but in what way(s)?
The attempt to answer this question must be preceded by a few caveats. One is the importance of focusing on what "professional associations" and "unions" do, not on what they say they do or what others think they do. A related point is that organizational titles are not an accurate guide to organizational activities. Unions sometimes include the term "professional" in their title, and professional associations sometimes use terms like "union" or "federation" in theirs. Organizations can adopt whatever title they wish, but it should require more than a title to be a "professional association." Nevertheless, semantics are important. A rose by any other name is still a rose, but we cannot so easily dismiss the semantic issues (if that's what they are) among teacher organizations. The public knows very little about what teacher organizations actually do, hence it may be influenced by their titles more than by their deeds.
The term "union" has a straightforward meaning in the context of collective bargaining: A "union" is an organization that represents or seeks to represent employees on terms and conditions of employment. This core function includes representing teachers facing disciplinary action for one reason or another. The union's role is not to protect incompetent or unethical teachers but to ensure that teachers receive due process (essentially, fair treatment) in the procedures and penalties associated with disciplinary action. In contrast, the concept of professionalism is associated with an organization that disciplines practitioners for incompetence or unethical conduct.
In practice, it is practically impossible for teacher unions to protect both the teacher interest and the public interest. Teachers pay dues to the union for protective services if the need arises. Suppose a teacher has taught for fifteen years, during which time he has always paid his dues. Suppose also that when the teacher faces termination for incompetence, he turns to the union for help, only to discover that in the name of "professionalism" his union represents the public interest in this situation. Aside from the morality of accepting the teacher's dues for defensive purposes for fifteen years, only to abandon this role at the teacher's time of greatest need, it is doubtful whether rank and file teachers would pay several hundred dollars annually in dues if they realized that they might not get the protection they need if and when they need it. The unions could minimize this conflict of interest by agreeing to prompt, inexpensive but fair ways of treating disciplinary action, but NEA leaders have not expressed any interest in such a solution.
In contrast to the protective role of unions, professional associations are thought to protect the consumers of member services from incompetence or unethical conduct. This point is illustrated by the prohibition against doctors receiving any kickbacks from pharmacists for prescriptions ordered by the doctors. The prohibition is intended to guard against the danger that physicians will prescribe on the basis of their kickbacks from pharmacists instead of the welfare of their patients. The other, less prominent feature of professions, is that they promote higher levels of skill and knowledge among their members.
Do these criteria distinguish "professional associations" of teachers from "unions" of teachers? There is little evidence that they do. In fact, their objectives are very similar to the objectives of the teacher unions. The independent teacher organizations seek higher appropriations for education, higher teacher salaries, shorter hours, more generous leave provisions, and the other benefits sought by teacher unions in the bargaining law states. The independents are also opposed to vouchers and tuition tax credits. They enroll support personnel and try to represent them to school boards. With some exceptions, they lobby in the state legislatures, and try to elect "pro-education" candidates to public office. Although the NEA does not take its Code of Professional Ethics seriously, the independent professional associations do not have a better record on this issue.
As a factual matter, the main differences between the independent teacher organizations and the NEA are that the independent organizations are not affiliates of a national organization and oppose collective bargaining and teacher strikes; also, they have not embraced the NEA's liberal political and social agenda. While these policies constitute a sharp contrast to NEA policies and frequently underlie teacher preferences for independent teacher organizations, they do not demonstrate that the latter are more "professional" than the NEA unless "professional" is defined in such a way as to get the desired result. That is, one can define "professional" to mean an organization that does not bargain collectively or strike, but this definition merely confuses the underlying issues. After all, the NEA/AFT can (and do) define "professional organization" to mean an organization whose members refuse to work where they are treated unfairly or disrespectfully. Both definitions are efforts to equate "profession" with organizational policies that have little, if anything, to do with commonly accepted criteria of professional status.
Several fallacies regarding professionalism result from failure to recognize the crucial differences between fee-taking occupations and occupations of salaried employees. For example, doctors do not bargain and strike because they are fee-takers. Although some are salaried employees, most are not. Fee-takers do not strike because they do not work en masse for the same employer. When doctors are employed in large groups by a single employer, they do resort to collective representation. In fact, as more and more doctors are employed by Health Maintenance Organizations (HMOs), a growing number of doctors support collective bargaining; indeed, the unionization of doctors is emerging as a major public policy issue.
A major problem here is that doctors are "independent contractors", and independent contractors do not have bargaining rights. Independent contractors are not supervised in their day to day work by employers. When independent contractors and employers differ on the terms and conditions of employment, both are free to seek other parties to buy or sell the services involved.
Teacher rhetoric frequently asserts that teachers should be free of supervision like doctors &endash; "Nobody tells doctors how to operate." The fact is that few teachers would accept the risks and obligations of independent contractors. The teachers would have to give up tenure, and "just cause" would not be a protection against dismissal. We can ordinarily fire our doctors, lawyers, dentists, and accountants for any reason, or for no reason at all. Clearly, there would be no collective bargaining and no teacher unions if teachers were treated as independent contractors. Despite their rhetoric, the teacher unions are adamantly opposed to having teachers treated as independent contractors; they want teachers to have classroom autonomy and tenure; in other words, they want the benefits of independent contractor status without the risks and responsibilities that are associated with it.
As a practical matter, it is impossible for patients (the employers) to supervise doctors. How would you supervise the doctor who has put you to sleep so that you can withstand the trauma of brain surgery? To do this, patients would have to hire another doctor (if they could find one) to be present, in which case the operating doctor would decline to serve. The teacher situation is very different. Large numbers of teachers are employed in the same school. Consequently, the cost of supervision is not prohibitive, as it is in the medical situation cited above.
Although doctors have not adopted collective bargaining in the past, their organizations have always pursued policies which were intended to enhance the economic welfare of doctors. The high standards for medical licensure are just one example. Ostensibly, they were adopted to protect the public (Sound familiar?), but they are actually utilized to protect doctors from competition. For example, the medical associations successfully limited the number of doctors from European countries, even when their qualifications were clearly comparable to those of U.S. doctors. And how, except for the economic benefit to Florida doctors, can we explain the severe limitations on doctors who move to Florida?
The reality is that the medical associations were so successful in restricting the number of doctors that doctors did not need other means of enhancing their economic status. Individual doctors could charge high fees because it was difficult to find other doctors who charged less for their services. In any event, the fact that doctors did not bargain collectively was not based on "professionalism." Organizations of doctors and teachers differ in how they promote the economic welfare of their members, but even these differences are diminishing as doctors consider collective bargaining and the teacher unions try to control teacher certification.
There are few organizations as confused as the NEA about "professionalism." Its support of "peer review" as a step toward professional status illustrates this point. In peer review, experienced teachers are released from classroom duties to observe and evaluate beginning teachers, with the operative power to deny tenure to the new teachers if their performance so warrants. The NEA asserts that this practice, which it is aggressively promoting, is "a major step toward professional status." The fact is that peer review procedures merely decide whether first year teachers will be reemployed in the peer review district, but the teachers denied reemployment there are free to accept teaching employment elsewhere. Such a procedure has little, if anything, in common with a state medical examination controlled by the state medical society; failure to pass this examination results in exclusion from medical practice anywhere in the state.2
The public relations problem facing teachers helps to explain the emphasis on being a "professional association." When auto workers strike, they do not try to conceal the fact that they are striking for the welfare of auto workers. When teachers strike, it is allegedly for the benefit of their pupils; for example, higher salaries are needed to attract better teachers. Smaller classes are allegedly needed to enable teachers to deal more effectively with individual students. The fact that smaller class size results in a reduced work load for teachers and more teachers paying union dues is hardly ever mentioned; likewise, the possibility that the funds used to lower class size might be better spent on other things such as air conditioning, is never raised by the teacher unions, despite their avowed concern for pupil welfare. Because teachers are paid from taxpayer funds, the teacher unions need a politically attractive rationale to justify their proposals; politically, they are reluctant to say: "We want higher salaries for the welfare of teachers," or "We must have solutions that benefit the unions." Instead, they must characterize improvements in their welfare as public interest objectives. Because public opinion accords "professions" a higher status than "unions," teachers understandably are eager to be considered "professionals" but the differences between "professions" and "unions" are not as clear as many teachers assume.
Our conclusions about the "professionalism vs. unionism" issue are simple enough. Teachers can give their organizations whatever title they wish. If the title or the rationale asserts "professional" status in the context of a decertification campaign, members should be prepared to point out the characteristics that justify the usage. In any case, an emphasis on the reasons not related to professional vs. union issues will help to avoid the perception that the contest is over a semantic issue.
Because the rightness of any cause is no guarantee that it will prevail, strategy and tactics are crucially important. I will discuss these matters in the context of decertification, but most of the discussion applies to disaffiliation as well.
There is no formula or recipe that ensures success in decertification campaigns. There can't be because all the parties would have the formula. What follows are some suggestions that decertification leaders may be able to apply to their local situation.
A decertification campaign is essentially a political campaign; the objective is to persuade a defined electorate to vote to replace an NEA affiliate with a nonaffiliated union as the exclusive representative. Let us see how such a campaign might materialize and be successful. A good way to start is by getting the basic documents that affect or govern decertification:
The following documents could be very helpful:
Except for the UniServ contract, all of these documents should be available in the district or on the web.
An important early step is to determine how many teachers are in the bargaining unit. The official certification states the positions that are included in the unit; the school districts can usually provide a list of unit members. Thirty percent of the unit is required to initiate a representation election and fifty percent plus one of those voting to win the election; however, a realistic plan will include a margin of safety to ensure success despite any setbacks or losses in teacher support. A petition that is signed by only 30 percent plus a few more will encourage the incumbent union to challenge some of the signatures. Furthermore, the more support assembled early in the campaign, the less fencesitting and backsliding among the signatories.
The existing contract must be reviewed carefully to 1) achieve a grasp of the issues; 2) identify additional reasons for decertification; 3) identify any of the incumbent union's exclusive rights that will be an obstacle in the campaign; 4) be certain that no contract bar exists; and 5) know the time available to campaign and to meet the appropriate deadlines. With the data in hand, it is possible to calculate the number of votes required to win the election. This number will provide clues to the strategy and tactics to adopt in the campaign.
The winning issues are usually the ones that affect every unit member. For example, the criticism that the local does not receive services commensurate with its state and national dues may resonate with all unit members. A comparison of total dues over the years can be a very effective way to frame the issues. Most teachers have not done this simple arithmetic but it would be a wake-up call in many local associations. Likewise, most NEA members are not aware of the salaries and fringe benefits paid to the UniServ directors who negotiate for their local associations. The UniServ directors are ordinarily employees of, and paid by, the state association, hence rank and file teachers are usually unaware of their excessive compensation. Many teachers will resent the fact that they have not been informed about it as much or more than the excessive compensation per se.
The UniServ/state association contract is useful for another reason. Differences between local associations and the state association often arise in bargaining. The UniServ directors do not inform the local that they will follow state policy in these situations. Instead, the directors try to present the issues to the local in such a way that the state association's policy seems to be the right one. The point is that the local association does not control the UniServ director who negotiates for it. The contracts between the state association and the UniServ union usually include a clause stating clearly that the UniServ directors will take orders only from the state association, not the locals for whom the directors negotiate. If the state association and UniServ director refuse to provide a copy of the contract, their refusal becomes a legitimate campaign issue.
Another useful document is the list of organizations that have received contributions from the NEA and the state association, and the amounts. These contributions are made from dues income, and it is likely that many members will be disturbed if not appalled by the list.3 NEA members should request the list for the past five years directly from the NEA.
The NEA's own polls of its members reveal a widespread perception that the state and national associations are detached from local needs and concerns. An emphasis on this issue will ordinarily receive a great deal of support from the members of the local.
Several factors affect the need for full-time leadership of decertification campaigns: the number of teachers, the number of schools, the distances between schools, the number and nature of media outlets, and district willingness to allow use of district facilities are among the most important. During a decertification campaign, media frequently submit inquiries during the day; there must be an authoritative leader to respond, or the opportunity may be missed entirely. Hearings and meetings with attorneys may be scheduled at times that preclude attendance by full-time teachers. Opposition communications may require an immediate response. Teachers who have not been involved in a decertification campaign are likely to underestimate the time required to visit schools before school opens, during the lunch hour, and after school, to prepare campaign literature and rebut the oppositions, meet with hearing officers and school administrators, consult with attorneys, sponsor fundraisers, and perform other tasks that cannot be delegated or left undone.
Full-time teachers, especially teachers with family responsibilities, cannot meet the demands of an intensive campaign. As a rough estimate, full-time leadership for three months should be available in bargaining units of 250 or more teachers. Obviously, the number must be adjusted up or down in the light of the factors mentioned above, but the importance of full-time leadership is likely to be underestimated.
The identity of decertification leadership is also a critical issue. Supporters of decertification can expect to be attacked as "a dissident clique interested only in power." (This may precede or follow being labeled as part of a "right wing conspiracy" or "right wing extremists" or "religious right.") The ideal way to neutralize or even to forestall these attacks is to include teachers who are, or have been, active in the NEA as part of the decertification leadership team. In some situations, such teachers are decertification activists from the beginning; in others, their inclusion may be a matter for negotiation.
Bear in mind that NEA leaders may have devoted a great deal of time and effort to achieve their leadership positions. Regardless of the merits, such leaders may be concerned about the prospect of losing their leadership roles completely. For other reasons as well, a strong effort should be made to encourage one or more respected local affiliate leaders to fill leadership positions.
An election victory means that the nonaffiliated union will be immediately responsible for bargaining on a successor contract. Teachers will naturally want to know who will represent them at the table. In many districts, the officers of the nonaffiliated association can bargain with an experienced labor negotiator available by telephone. At least one member of the former bargaining team should be asked to serve, unless the basis for dissatisfaction with the NEA is its poor bargaining record. Costs of an outside negotiator can be a difficult issue in small districts, but the costs are not so daunting if amortized over the life of the contract.
Like most membership organizations, the NEA does not inform its members about matters that would not play well among the rank and file. This is why the NEA does not take the initiative to inform its membership fully about such matters as the recipients of NEA contributions, compensation paid to NEA staff, or the deficiencies in NEA-sponsored reforms, such as peer review.
Requests for information from the NEA at any level should be drafted carefully to avoid evasion. For example, if your question is about the compensation of union staff, do not merely inquire about "staff salaries" or "staff compensation"; the answers will be incomplete. The better procedure is to ask how much staff members are entitled to and paid for:
Leaves:
The foregoing is only a partial list of benefits, but it may suffice to illustrate the point. Do not leave room for interpretation; add "any other benefit or compensation not included above." Also, keep a copy of your requests for information and the union's response.
Teachers who have not experienced it seldom appreciate the intensity of the NEA's opposition to decertification. The difference in incentives explain this intensity. To teachers, union dues are an inconvenience or a tolerable burden. To union officers and staff, however, union dues pay the rent and the grocery bills; any diminution of dues revenues is threat to their careers or their compensation. All of us would fight harder against a threat to our livelihood than a threat to losing $400-$700.
Most teachers go through their entire career without experiencing a decertification campaign. In contrast, UniServ directors have the benefit of such experience, if not personally, then through state association staff. To appreciate its importance, consider a similar difference in experience in other fields. Insurance companies have a wealth of experience in dealing with claims by insured parties. The insurance companies are "repeat players" who know the subject. The individual claimant does not have information from thousands of claims. Consequently, the claimant has to purchase the information and the skill of using it effectively, usually by employing a lawyer who has the requisite experience. The claimant runs the risk of employing a poor lawyer; the insurance company does not because it utilizes lawyers who are company employees or have a track record in dealing with claims.
Decertification supporters are invariably criticized for holding up negotiations on a new contract. Allegedly, they are creating division and delay, just when unity is critical to achieving a good contract.
This criticism has no basis whatsoever. The bargaining statutes typically provide that teachers can elect a new bargaining agent only during the window period just prior to the expiration of the existing contract. Virtually always, the local association and the school board will be negotiating on the successor contract when the window period begins; an incumbent union never waits until the existing contract has expired to commence negotiations on the successor contract. All unions try to have the successor contract become effective the day after the existing contract expires. In short, the only time that teachers can decertify the incumbent union is during a time when negotiations are going on. Teachers who do not try to oust the incumbent union when bargaining is going on are simply waiving the right to change their representative.
The school board will ordinarily be prohibited from bargaining with the incumbent union if and when the PERB declares that there is a question of representation. Until the representation issue is settled, as it will be in ample time to negotiate a successor contract, there is no point to bargaining. If the NEA affiliate loses the representation election, any agreements reached by it and the school board are not binding on the new exclusive representative. In short, the "disruption of bargaining" argument has no merit and is taken seriously only by teachers who do not understand the issues involved.
Volunteers are essential for a successful decertification campaign; however, most teachers who support decertification will not volunteer to work in the campaign. The analogy to participation in political parties illustrates this point. Most voters are not political activists. Even if they feel strongly for or against parties or candidates, most do not ordinarily serve as volunteer workers in the election campaigns; in fact, only about half even vote in the elections. Similarly, teachers who support decertification will not necessarily serve as volunteers in a decertification campaign.
Although no formula can predict how many volunteers will be needed, at least one committed volunteer is needed in each school to serve as the building representative. Any school that doesn't have a building representative is likely to vote overwhelmingly for the incumbent union. The building representative is needed to distribute literature; inform campaign leadership about opposition arguments; send opposition literature to campaign headquarters; attend open meetings sponsored by the incumbent union, and provide information about who supports decertification, who opposes it, and who is undecided. In the closing days of the campaign, the focus should be on the undecided teachers, not committed opponents.
Volunteers are needed to operate copy machines and telephone banks, schedule meetings, respond to telephone calls, answer correspondence, and do all the other tasks associated with political campaigns generally. Volunteers should be available to meet individually with teachers in their classrooms or homes, where they can't be intimidated by the opposition. In addition, volunteers will be essential to reach teachers, parents and taxpayers at community and/or school district events. For example, it might be helpful to hand out flyers at school athletic events, or to parents at community events.
Relationships with the school administration (including the school board) can have a decisive effect on the election outcome. Especially in smaller school districts and smaller schools, school administrators are likely to have an important influence in two ways. First, some teachers will be strongly influenced by the wishes of the administration, especially the principals with whom they work on a daily basis. Second, the administration may be required to resolve various issues that could affect the chances of success. Although the school administration is not allowed to assist one of the contending unions, unavoidable decisions will often help or hurt one of them. For example, the administration may not be obligated to allow brief announcements at faculty meetings, but it may have the discretion to permit them. If asked for permission to make such announcements, the administration will have to accept or reject the request; although all competing choices on the ballot must be treated equally at faculty meetings, equal treatment will help some organizations more than others.
Even when administrative action is not a campaign issue, teachers may believe that the nonaffiliated union will be too subservient to the administration in bargaining and processing grievances. Such a perception can be fatal to its chances of success. In the early years of teacher bargaining, NEA affiliates were under heavy pressure to demonstrate their militancy. As a result, they demonized administrators, submitted outrageous demands, and went on strike for no reason except to demonstrate that they were indeed "real unions." In recent years, the NEA's public relations rhetoric has emphasized cooperation, mutuality, and shared interests, while avoiding union terminology. For example, the NEA budget given to delegates at the 1999 Representative Assembly never refers to the NEA as a "union". Nevertheless, most school administrators would probably prefer to deal with an independent union that was not promoting an extreme left-wing social agenda at the bargaining table.
As a rule, the administration can state its views, including its preferences in the representation election. When it does more, it runs the risk of violating statutory prohibitions against involvement in the affairs of an employee labor organization. A pattern of favoritism could invalidate the election outcome.
School administration communications to teachers during negotiations and elections can be a recurring issue. The school board is allowed to communicate its views to the teachers, but it may not be coercive or promise any rewards for supporting its choice in the election. The school administration has the right to set the record straight if its policies are misrepresented. The fact that the truth helps one union and hurts the other is irrelevant if the administration has a valid reason for any communications that might affect the outcome of the election.
Dues paying teachers often support agency fees; in contrast, agency fee payers have already demonstrated their antipathy to NEA membership, hence they are likely to support decertification. If the independent union announces opposition to agency fees, it may lose support among teachers who support agency fees; if it endorses agency fees, it is likely to lose some support among teachers opposed to them.
In thinking about the dilemma, some crucial differences between agency fees under affiliation with the NEA and agency fees in an independent union should be noted. Agency fees in an organization not affiliated with the NEA and a state association will be much less than agency fees in the NEA. Second, whereas it is practically impossible to monitor how the NEA and the state association spend the agency fees, agency fee payers can monitor the way the fees are spent locally. Furthermore, the independent union may be able to overcome the objections to NEA membership, so that some agency fee payers will join the nonaffiliated union. For these reasons, it is not necessarily hypocritical or inconsistent to oppose agency fees under the NEA, but not under a nonaffiliated union. Most emphatically, the foregoing comments are not intended to be an endorsement of agency fees. Some teachers object to agency fees under any circumstances; the objections of others may depend upon the circumstances.
A similar issue often arises with respect to who is eligible to vote on ratification of the contract. To maximize support, some unions promise to allow all unit members to attend and vote on ratification of a new contract. This practice would allow a rival union to utilize the ratification meeting to promote its own agenda instead of participating in a serious discussion and vote on ratification. Furthermore, allowing any unit member to vote often antagonizes teachers who believe that only teachers who have paid their dues should be allowed to vote on ratification.
Let us now summarize the foregoing strategic/tactical considerations along with a few others that should be considered.
A one size fits all budget for a decertification campaign is obviously impractical. Even among districts with approximately the same number of teachers, financial needs can vary widely. A budget for 150 teachers who work at one or two sites will be very different from a budget for 150 teachers employed at ten sites dispersed over a large area. Consequently, the discussion here will be limited to some of the financial issues and realities of decertification campaigns.
Generally speaking, there will be two phases of a decertification campaign. The first is an exploratory/preparation phase in which a small group of concerned teachers discuss the feasibility of a decertification campaign. If the reaction is positive, several months will be needed to prepare for an intensive campaign, culminating in a representation election during the statutory window period for challenges to incumbent unions.
During the first phase, decertification per se is not proposed to other teachers. First, without a comprehensive review of the relevant factors, the leadership group cannot be confident that a decertification campaign is desirable; the first phase is an exploratory period in which other solutions such as disaffiliation may turn out to be more desirable options. Second, confrontations over decertification should be avoided until the leadership group is fully committed and prepared to deal with them. The appeal to the entire electorate takes place in the second phase of the campaign.
The two phases are distinguished by emphasis; there is no hard and fast line between them. For example, teacher polling may be essential to decide whether to conduct a decertification campaign; polling may also be essential to make strategic decisions during a campaign. For this reason, it is not practical to propose budgets for each of the two phases.
A budget for a decertification campaign must take into account the NEA's reaction to such a campaign. The reaction is predictable from the economics of the matter. Our previous example showed that the local, state, and national associations would receive $189,000 annually from a bargaining unit that included 300 teachers paying $560 in dues and 50 nonmembers paying $420 in agency fees. Understandably, the NEA will spend a great deal to maintain its position as the exclusive representative; in addition to the potential loss of revenues, it has a huge stake in discouraging decertification in other districts.
The first task is to identify needs, which include the following:
In small districts with only a few schools, expenses will be minimal because the decertification leaders can discuss the issues face to face with every teacher in the district. This is not as feasible in a district that employs 350 teachers in eleven schools. Just sending the 350 teachers a flyer two or three times a week for two months will require considerable time, paper, equipment, and volunteer help. Utilizing email might reduce the costs, but its practicability depends on how many teachers are accessible this way.
The school district might meet some of these needs for facilities, if not prohibited from doing so by the contract. Some contracts provide that "No other teacher organization shall have the rights granted to the exclusive representative." If a contract includes such a provision, an independent union would not be allowed to meet in school buildings, use school equipment, facilities, and supplies, or use the district mail system. Most contracts are not as crippling as the clause quoted above, but many include specific articles that deny access to district facilities and equipment that will be needed; meanwhile, the NEA affiliate will have access to them at minimal cost, if any.
Some costs are unpredictable. For instance, a losing NEA affiliate might file unfair labor practice charges, claiming that teachers were influenced by false statements made when there was no time to rebut them. Such unfair labor practice charges are usually decided by hearing officers; the contending parties have the right to call and cross-examine witnesses, examine relevant documents, and otherwise present their case in a quasi-legal procedure. The parties can appeal an unfavorable decision to the PERB, and then appeal a PERB decision to the state courts, sometimes to the federal courts as well. Any of these actions might require substantial expenditures. In the worst case scenarios, the NEA affiliate may stonewall every step of the way by:
Substantial expenditures may also be required if the independent union needs to initiate legal action in order to protect its rights. Legal costs can often be minimized if legal assistance is utilized before legal controversies arise. This approach may or may not require funding in hand to pay for legal advice. An independent union may be able to get pro bono legal assistance from the Federalist Society,4 an organization of conservative and libertarian attorneys who often provide legal services free of charge or at a discount for worthy causes in the eyes of the membership. Parties interested in receiving such assistance call the national office, which will identify lawyers in the caller's area who may be willing to provide the services under mutually acceptable arrangements. Naturally, several issues have to be discussed with these lawyers, such as:
If the effort is successful, the volunteer lawyer may gain a long term client, or receive some compensation from the independent union when it takes over as the exclusive representative. Another possibility is an agreement that provides a certain number of pro bono hours, followed by another block of time at a discounted rate, followed by the full rate or another discounted rate.
An independent union should be incorporated to avoid personal liability for acts that took place while working for or representing the organization. There may be liability for injuries in an automobile accident; libelous statements in a debate over representation rights, or negligence leading to a fire or theft. None of these things is likely to happen, but the possibility should not be ignored. In the absence of liability insurance, the opposition will try to frighten teachers with horror stories about their potential personal liability. There are companies that sell such insurance, and it is a worthwhile expense if the cost is reasonable.
Money management is extremely important. The governance documents should specify who has the authority to sign checks. This will usually be the treasurer but two signatures should be required for checks over a certain amount, such as $100. An invoice should be required for every purchase and a receipt for every expenditure from the petty cash fund. The officers who handle funds should be bonded and funds should be deposited in an interest bearing account.
The discussion to this point has emphasized the worst case scenarios, especially with regard to legal expenses. This emphasis is intended to guard against an overly optimistic assessment that visualizes weak opposition, hordes of volunteers, and minimal expenses. That said, the concluding chapter explains why the prospects for success may be much more favorable than the previous comments suggest.
This study is intended to help teachers who are considering disassociation from the NEA or who may consider it in the future. There are, however, a few arguments against disassociation from the NEA that emerge constantly and should be considered here.
One argument against disassociation does not necessarily challenge the validity of the criticisms of the NEA. Instead, it asserts that teachers considering disassociation should become active in the NEA to change whatever has caused the dissatisfaction. I label this as "the participation argument"; unfortunately, it is very unrealistic advice to the overwhelming majority of teachers.5 Changing union policies, especially at the state or national levels, requires several years attendance at dozens of meetings at convention sites, at considerable personal expense in time if not in dollars &endash; all with no assurance that the effort will be successful.
There is a two-fold fallacy in the advice to remain NEA members and work within the union to change its policies. First, it ignores the enormous practical difficulties facing teachers who try to work within the NEA to change its policies. Second, the argument ignores the fact that severing one's ties to the NEA is often the most practical way to influence NEA policies. As a matter of fact, one of the strong arguments in favor of disassociation is its probable impact on the NEA at all levels. Even if the effort is not successful, it sends a powerful message: Change your ways or you will lose members and their revenues.
No union can safely ignore member dissatisfaction that leads to disassociation in one way or another. Whatever the reasons, an effort to disassociate is more likely to bring about the desired changes than efforts to achieve the same result by working within the union. This is one of the strongest arguments to enlist the support of dissatisfied teachers who are doubtful that efforts to decertify or disaffiliate from the NEA will be successful.
Another reason for nonsupport (but not opposition) is teacher apathy. The idea conveyed is that the teachers don't care one way or the other. Only a few attend union meetings, and the union is controlled by a small clique that is impossible to remove.
Three potential responses to this argument should be noted. First, teacher apathy may be a result of teacher lack of information. Although teachers may continue to be apathetic with new information, there is no way of knowing unless they receive the information. Of course, much depends on the nature of the new information, but it is safe to say that a very large number of NEA members would be upset by some of its activities that are not known to the membership.
The second response also accepts the allegation of apathy, but points out that the absence of a feasible alternative is the main reason for it &endash; and a nonaffiliated union provides such an alternative. Very few teachers have never changed their grocery store, doctor, barber, department store, long distance carrier, airline &endash; but in all of these cases, there was an alternative at hand. It is unrealistic to assume that attitudes in the absence of alternatives will automatically be the same as attitudes when feasible alternatives are available. Again, there is no way to know unless the possibility is put to the test.
The third response is based on the distinction between private belief and public expression of belief. Publicly, many persons are reluctant to criticize what appears to be highly approved by others, especially others in positions of authority. As a result, widespread public approval of an organization frequently exists simultaneously with widespread private disapproval of the same organization. The classic case is the widespread public approval of totalitarian governments in conjunction with widespread private condemnation of them. Similarly, the expectation of social or professional disapproval or even merely of isolation may be sufficient to result in broad public approval simultaneously with broad private disapproval of the same organization.
What often happens in these situations is that a few individuals or groups express their disapproval publicly, but do not suffer the anticipated negative consequences. As this happens, criticism of the hitherto sheltered organization increases, sometimes very quickly and drastically with profound consequences.
Does this scenario apply to the NEA? A great deal of evidence suggests that it might. Inasmuch as the NEA's internal studies show considerable dissatisfaction with the NEA, alternative organizations might well attract a large number of NEA members.
It is easy to think of reasons why teachers might or do wish to disassociate from the NEA, but most will not have thought about alternatives very much. There is no reason for teachers to do so unless and until an alternative is feasible; at that point, teachers will begin to ask questions about the alternative. This is why supporters of independent unions must be prepared to answer questions about their union.
It is essential to be realistic about support for decertification. Teachers may express support just to be polite, but even teachers who support decertification may find that family responsibilities or after school employment or unforeseen developments preclude their participation in the campaign. Try to make active support, such as a telephone bank, an enjoyable experience; a little food and drink can go a long way.
Although overoptimism is a danger, the fact that the NEA enrolls more members than an alternative organization is not as important as one might assume. In the past, unions with small membership often defeated much larger unions in representation elections. In fact, this happened frequently in the 1960s when AFT locals defeated the NEA affiliates with much larger memberships in several urban school districts. Actually, the winning organization in a representation election need not have any members; nothing prohibits teachers from electing such an organization as their exclusive representative. Of course, an organization with only a few members will face funding problems, but winning the election usually solves them.
A final word. Never forget that what persons say publicly may be very different from the way they really feel about an issue. The fall of communist states in eastern Europe illustrates this point. While citizens were fearful of being punished for criticizing their regimes, everyone praised these regimes publicly while most detested them privately. As soon as it became clear that citizens would not be punished for criticizing their government &endash; because it could not longer rely on the police and the army to punish the critics &endash; there were huge waves of criticism and rejection of the government.
Similarly, teachers may feel that if they criticize the NEA or express support for an alternative, their grievances will be ignored or they will lose their extracurricular assignment or that they will be shunned by their fellow teachers. Nevertheless, it happens that their fellow teachers sometimes share both the criticisms and the fears, so that their public comments are a very misleading guide to their real sentiments. It may take only a few teachers, only one in some cases, to trigger a dramatic change. Teachers considering whether to be the catalyst may find more support than was anticipated for a change in representation. Like optimism, pessimism about the prospects for change may be an unrealistic assessment of the situation.
About the Author
Dr. Myron Lieberman is a life member of the NEA. In 1962, he was a candidate for the presidency of the AFT and received one-third of the national convention votes. Both the NEA and AFT have employed him as a consultant, as have several school management organizations.
Reactions to this publication are encouraged and should be addressed to the Education Policy Institute or to lieberman@educationpolicy.org.
1 See Charlene K. Haar and Myron Lieberman, NEA/AFT Membership: The Critical Issues (Washington: Education Policy Institute, 1999); and The Teacher Unions (New York: Free Press, 1997); and the arguments are discussed in Myron Lieberman, The Teacher Unions (New York: Free Press, 1997). Although this publication also includes arguments against disaffiliation, NEA publications are the best statement on the issues from the standpoint of the NEA.
2 For a more detailed analysis of peer review pointing out that it is flawed in virtually every respect, see Myron Lieberman, Teachers Evaluating Teachers: Peer Review and the New Unionism (New Brunswick, NJ: Transaction Publishers, 1998).
3 For an example, see Myron Lieberman, The Teacher Unions, 2nd ed. (San Francisco, CA: 2000), in press.
4 The Federalist Society can be reached at 1015 18th Street, NW, #425, Washington, D.C. 20036. Tel: 202/822-8138 Fax: 202/206-8061 Email: fedsoc@radix.net
5 Charlene K. Haar and Myron Lieberman, NEA/AFT Membership: the Critical Issues (Washington, D.C.: Education Policy Institute, 1999).
