Building a Competitive Education Industry
A Weekly Column by Myron Lieberman

On October 31, the Los Angeles Times carried an article about merit pay in the Los Angeles school district. The article discussed the union opposition to bargaining over merit pay. The situation arose as a result of the fact that the school district was the recipient of $6.1 million for merit pay. This amount was the district's share of the $100 million appropriated by the legislature for teachers in schools in which test scores had risen significantly in 1999-2000. Depending on the extent of the higher test scores, teachers in the improvement schools were to receive $25,000, $10,000, or $5,000. The law also provided that teacher unions and school districts were required to bargain over the distribution of the merit awards, but if no agreement was reached, the share going to each teacher would be based upon seniority - the teachers with the most seniority would receive larger shares of the awards.

Initially, the merit pay was distributed in a lump sum by the state for teachers collectively in the successful schools. Understandably, teachers who received smaller amounts because of their lack of seniority were upset over UTLA's refusal to bargain. Many teachers, including some who received large amounts, asserted that the money should have been distributed equally among the teachers at the successful schools; however, it does not appear that any teachers receiving larger amounts took any action to share their award with teachers who received less.

Unwittingly, the article revealed that the basic reason for union opposition to merit pay is that it would create problems for the unions. This reason is never articulated - the union can't say "We are opposed to merit pay because it is bad for the union." The expression of such sentiments would be a public relations disaster for unions, hence they assert other reasons for their position. Merit pay is "too subjective" or is a reward to administration friendly teachers or is likely to be characterized by racial discrimination etc., etc.

Typically, the senior members of teacher unions exercise much more power in the union than inexperienced teachers. The state formula if no agreement was reached between the union and the school district rewarded senior teachers more than less senior teachers. Therefore, UTLA's refusal to bargain meant that the senior teachers would receive more merit pay than others. The union could and should have bargained over the issues; in doing so, the union could have defended the position that senior teachers should receive more. Of course, such a bargaining position would have generated dissatisfaction among the teachers who would receive less. By refusing to bargain, UTLA ostensibly did not have to take a position but inasmuch as the state formula would prevail in the absence of agreement, the union clearly favored the state formula. Everywhere else in the state, the union and school boards negotiated an equal division of the award money. Because the union refused to bargain over the issue, two teachers have filed an unfair labor charge against UTLA; the charge is set forth in the Statement of Charge.

Undoubtedly, the state formula was a concession to the California Teachers Association, which was anti-merit pay but could not risk opposition to the $100 million for teachers. UTLA's opposition sends an interesting message to teachers. It doesn't matter how hard you work or how much you contribute to pupil improvement; your pay is the same as others who worked much less and contributed much less to the improvement. This is why teaching is not attractive to potential movers and shakers - they enter other fields where their energy and talents are not geared to length of service. Neither teacher unions nor school boards can admit this dreary fact, even to themselves. Admitting the truth would require sweeping changes in how teachers are paid, and the educational community is not prepared to deal with these changes.

The actual charge filed against UTLA follows. For copies of the exhibits referred to in the Statement of Charge, please contact Dr. Myron Lieberman.

1. I am a fifth-grade Teacher at Commonwealth Avenue School located in Los Angeles, California, which is part of the Los Angeles Unified School District ("LAUSD"). I have taught at Commonwealth Avenue School full-time since January, 1999.

2. The United Teachers Los Angeles ("UTLA") is the exclusive representative of the Teachers at Commonwealth Avenue School. I am a member of the UTLA and UTLA Co-Chair for Commonwealth Avenue School.

3. Shana Handy is a second-grade Teacher at Commonwealth Avenue School. She has taught there since November, 1995. According to an article which appeared in the February 19, 2001 Los Angeles Times:

"Shana Handy's second-grade students at Commonwealth have made the highest test scores in the school for the last three years. Her classroom average topped the 60th percentile in reading last year and the 93rd percentile in math in a class with students who spoke seven languages: English, Spanish, Cantonese, Korean, Arabic, Tagalog and Bengali."

4. Laura Whitmore is a first grade teacher at Commonwealth Avenue School and has taught there since July, 1999. She is a member of the UTLA and UTLA Chair for the Commonwealth Avenue School.

5. Both Ms. Whitmore and Ms. Handy support the filing of this Charge.

6. Under the Certified Staff Performance Incentive Act (AB 1114), certified employees at twenty schools in the LAUSD are eligible for cash awards based upon their 2000 API rank as determined by the California Department of Education.

7. Education Code Section 44652 provides:

"The Superintendent of Public Instruction shall allocate funds to school districts and charter school that have certified to the superintendent that they satisfy the conditions of subdivision (b) of Section 44651, based on the amount determined pursuant to subdivision (b) of Section 44650. At the time of the allocation the Superintendent of Public Instruction shall notify the exclusive representatives of the teachers and other certificated staff in each district of the availability of these funds."

8. Pursuant to Section 44652, on April 20, 2001, the Department of Education notified the UTLA of the awards for the 1999-2000 school year, (A copy of the notification is attached as Exhibit "A"). The UTLA did not inform the Teachers it represents that it had received such a Notice.

9. Education Code Section 44653 provides:

"Upon receiving the allocation for the Superintendent of Public Instruction for the purpose of awarding the awards, the governing board of the school district shall negotiate individual teacher and other certificated staff salary award amounts with the exclusive representative of the bargaining unit of the teachers and other certificated staff. In the event that the governing boards and the exclusive representative of teachers and other certificated staff do not reach an agreement regarding the amount of the award or if the teachers and other certificated staff are not represented by an exclusive bargaining representative, all teachers and other certificated staff at the school shall receive a salary award amount that is equal to a percentage of their base salary that is determined by dividing the total amount awarded to a school by the sum of the annual base salaries for teachers and other certificated staff at the school."

10. At a time unknown, the LAUSD notified the UTLA of the awards and offered to bargain with it as to the awards as required by Section 44653. The UTLA did not inform the Teachers it represents that it had received such a Notice.

11. At a time unknown, the UTLA rejected the LAUSD's offer and refused to negotiate as to the awards. (The UTLA did not solicit the views of the teachers at Commonwealth School as to this refusal.)

12. On October 25, 2001, the LAUSD informed the certificated staff at schools eligible for the awards that:

"Schools that meet eligible criteria are ranked according to their API growth minus two times their API target. About 1,000 certificated staff in schools with the greatest gains will receive $25,000 each; 3,750 certificated staff will receive $10,000 each; and 7,500 certificated staff will receive $5,000 each."

(A copy of this communication is attached as Exhibit "B") (emphasis added).

13. At no time did the UTLA solicit the views of those members eligible for the awards as to how the awards should be distributed among eligible employees. The only information disseminated by the UTLA as to the distribution appears on the UTLA's website and states:

"About 7,500 teachers and administrators will receive $5000 each; 3,750 will receive $10,000 and 1056 will receive the maximum bonus of $25,000 because their schools improved the most on the Academic Performance Index (API)." (emphasis added)

Based on this information from the UTLA and information from the LAUSD, the eligible Teachers at Commonwealth School believed they would receive $10,000 "each"- i.e. that each Teacher would receive $10,000.

14. On October 31, 2001, the President of the UTLA, Day Higuchi, sent a letter to UTLA Chapter Chairs and Co-Chairs, which I received on November 2, 2001. In the letter, Mr. Higuchi states that: "As UTLA president I did not negotiate with the District on the awards…." He stated that the UTLA's position was one of "default." (A copy of this letter is attached as Exhibit "C").

15. In his letter, Mr. Higuchi refers to an article from the October 30, 2001 Los Angeles Times. In that article (a copy of which is attached as Exhibit "D"), it was reported that other districts in the State had negotiated an even distribution of the award so that all eligible Teachers at a school received the same amount, which is what the UTLA led us to believe would happen at Commonwealth Avenue School.

According to the article, "the one significant holdout [from negotiating equal payments] has been United Teachers-Los Angeles."

16. As a result of the UTLA's refusal to negotiate, the eligible Teachers at our school will not receive awards of "$10,000 each." Instead, they will receive awards in amounts which differ substantially (from $6,900 to $13,900). The amount of the award has no relationship to the scores of a particular Teacher's class. Thus, even though Shana Handy's class had the highest scores at Commonwealth School, she will receive an award that is less than 60 percent of the highest award at the School. Laura Whitmore has been informed that she will receive even less than Ms. Handy.The UTLA admits that this result is "unfair" and could have been avoided if the UTLA had negotiated with the LAUSD as required by law. The effect of the UTLA's action is that the largest awards will go to those Teachers who have been members of the UTLA for the longest period of time.

17. The scope of representation is determined by law (Government Code Section 3543.2(a)), not the internal policies of one party. The fact that the UTLA disagrees with the incentive award program does not relieve it of the duty to negotiate about the awards as required by Government Code Sections 3543.2 (d) and 3543.6 (c) and Education Code Section 44653. Otherwise, either party to negotiations could determine the scope of representation based upon its internal policies and nullify the statutory requirements as to what subjects must be bargained. For example, the LAUSD could decide that as a matter of policy it would not bargain about wages and simply refuse to do so.

18. UTLA's actions are not excused by its belief that its position on incentive awards would not or could not change as a result of bargaining. For example, UTLA could not refuse to bargain about layoffs because of its firm belief that seniority should be the sole criterion in decisions regarding reductions in force. Nor is UTLA's refusal to negotiate justified by its wish to avoid antagonizing any members of the negotiating unit for which it is the exclusive representative. Resolving conflicts between members of the negotiating unit in a lawful manner is an essential part of the duty of fair representation.

19. According to the United States Supreme Court: "[A] union owes employees a duty to represent them adequately as well as honestly and in good faith." Airline Pilots Association V. O'Neil, 499 U.S. 65 (1991). The UTLA's actions fail in all respects. Its admitted default clearly was not adequate representation and its actions concealed from the Teachers it represents what it was going to do.

20. By its actions, the UTLA violated its duty of fair representation in multiple respects:

1. forfeiting the right of the Teachers under the Education Code to have their exclusive representative negotiate as to the amount of the bonuses;
2. defaulting on the UTLA's duty under the Education Code to negotiate as to the amount of the bonuses;
3. permitting substantial differences in the amount of bonuses to be paid at the same school, which the UTLA admits is "unfair;"
4. precluding the Teachers from utilizing the contractual grievance procedure to resolve claims that the amount of the bonuses paid to particular teachers is unfair. As a result, the UTLA forfeited the right of Teachers to have such claims resolved by a neutral third party. Instead, the UTLA's action leaves the disposition of such claims solely in the hands of the LAUSD;
5. deceiving the Teachers as to the amount of the awards eligible employees would receive; and
6. discriminating "between groups of employees solely on the basis of length of union membership". Teamsters Union No. 435 v. NLRB, 92 F.3d 1063 (10th Cir. 1966)

21. These actions by the UTLA were clearly arbitrary and were motivated by unlawful considerations (the UTLA's wish to prefer Teachers who have been UTLA members for the longest period of time and the UTLA's refusal to accept a lawfully enacted provision of the Education Code and thereby attempt to put itself above the law of the State of California). Moreover, the UTLA arbitrarily forfeited any grievances the Teachers might have as to the incentive awards.

22. The result of the UTLA's actions is to put the eligible Teachers in the same position as Teachers who do not have an exclusive representative: no say in the distribution of the awards, an unequal distribution of the award among Teachers at the same school, and no right to challenge the award payments before a neutral party. The UTLA's abdication resulted in no representation, the most extreme possible denial of the Teachers' right to fair representation.

23. The result of the UTLA's actions is to disadvantage new Teachers at a time when, as the UTLA acknowledges, it is critically important for the LAUSD to attract large members of new Teachers.

24. As a remedy, the Charging Party requests that the Board order the UTLA to comply with its duty to negotiate over the incentive awards for 2000-2001, to compensate eligible Teachers receiving lesser awards than others at their school for 1999-2000 in an amount equal to the highest award paid at that school, and to refund the dues and agency fees paid by Teachers during the period the UTLA has defaulted on its duty to represent the Teachers. In addition, the Charging Party requests that the UTLA be required to notify all persons it represents of its unlawful conduct and that any costs incurred by UTLA in defending against this Charge and any related proceedings be excluded in determining the amount of the agency fee collected by UTLA under Article VIII of the Agreement between the UTLA and the LAUSD.

25. This is a matter of great urgency. Test results for the 2000-2001 school year already have been announced and the Department of Education has declared that awards for the 2000-2001 school year will be announced in January 2002. Unless the Board acts immediately, the UTLA is certain to refuse to negotiate again. As a result, the awards for the second year of the incentive awards program again will be distributed unfairly because of the UTLA's breach of its duty of fair representation.