BETTER SCHOOLS

An Introduction to Collective Bargaining in Illinois Public Education

BARGAINING FOR

About the Institute
The Illinois Policy Institute is a nonpartisan research organization dedicated to supporting free market principles and liberty-based public policy initiatives for a better Illinois. As a leading voice for economic liberty and government accountability, we engage policy makers, opinion leaders, and citizens on the state and local level. Policy changes lives, and the Illinois Policy Institute is working to promote responsible public policy that will generate better opportunities for all Illinois citizens. For further information about education reform, contact Collin Hitt, our Director of Education Policy, at 217.528.8800 or collin@illinoispolicy.org.

Chicago Office Illinois Policy Institute 190 S. LaSalle Street Suite 2130 Chicago, IL 60603 Phone: 312-346-5700 Fax: 312-346-5755

Springfield Office Illinois Policy Institute 802 South 2nd Street 2nd Floor Springfield, IL 62704 Phone: 217-528-8800 Fax: 217-528-8808

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Table of Contents
Introduction Chapter 1: Introduction to Collective Bargaining in the Public Sector Chapter 2: Bargaining Collectively Under Illinois State Law Chapter 3: Illinois School Boards and the Bargaining Process Chapter 4: Education Unions and the Bargaining Process Chapter 5: Individual Teachers and the Bargaining Process Chapter 6: Procedural Challenges in Public-Sector Collective Bargaining Chapter 7: Employee Salaries and Benefits Chapter 8: Substantive Challenges to School Boards Afterword: Final Thoughts for School Board Members and Taxpayers Endnotes

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Introduction
The most important policy adopted by any school or school district is its contract with its teachers. Yet new and aspiring school board members in Illinois have few accessible guides to a collective bargaining process that will determine how teachers are hired, placed, compensated, rewarded and disciplined. There are more than 5,500 active school members in Illinois’s 870 school districts. Additionally, tens of thousands of men and women across Illinois aspire, and indeed will, serve as a school board member over the next five, ten or twenty years. This primer, hopefully, will introduce them to the important task ahead – that of collective bargaining. Recognizing that harmonious relationships are required between educational employees and their employers, the General Assembly has determined that the overall policy may best be accomplished by (a) granting to educational employees the right to organize and choose freely their representatives; (b) requiring educational employers to negotiate and bargain with employee organizations representing educational employees and to enter into written agreements evidencing the result of such bargaining; and (c) establishing procedures to provide for the protection of the rights of the educational employee, the educational employer and the public.1 - 115 Ill. Comp. Stat. 5/1 (1984). Through the 1984 Illinois Education Labor Relations Act (IELRA), the Illinois General Assembly enacted collective bargaining requirements between educational employees and their employers in order to create more “harmonious” relationships between the two. Unfortunately, the nature of collective bargaining is adversarial and often serves to create tension between employees and their employers, rather than promote harmony. While attempting to provide a level playing field, the Illinois General Assembly and subsequent judicial interpretations have altered and reformed the public education collective bargaining process in ways that decidedly favor organized labor. Due in large part to the collective bargaining process, Illinois public school teachers now enjoy highly favorable benefits and competitive salaries, as well as tenure rights unheard of to private-sector workers. Many experts have noted that unions have maintained their advantage in the bargaining process due to their vast resources.2

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Taxpayers — and new or potential school board members — often lack the training that would allow them to understand the collective bargaining process. As a result, procedural matters obscure the larger policy concerns at stake during contract negotiations. Understanding collective bargaining ahead of time should help level the playing field between entrenched interests and relative newcomers to the process. By clarifying the collective bargaining process in general, we aim to help readers who are hoping to impact local school district policy to feel more at ease doing so. By extension, perhaps more citizens will decide to run for school board, more journalists will understand the local balance of power between labor and administration, and more taxpayers will understand exactly how many of the biggest spending decisions are made. The majority of the content in this primer was developed by Sonya Jones. A lawyer by training, Ms. Jones has national research experience in collective bargaining and organized labor. The balance of the text was adapted from the excellent Michigan Collective Bargaining Primer, published by the Mackinac Center for Public Policy and co-authored by Michael Jahr and Thomas Washborne. While this primer frequently focuses on statutes, legal negotiations and court proceedings, none of the text should be interpreted by readers as formal legal advice. Indeed, if this primer communicates no other message, it should be clear that neither teachers nor administrators are likely to achieve their desire bargaining process without eventually seeking direct, expert legal counsel during the collective bargaining process. Please enjoy this primer for what it is — a free and accessible introduction to the subject of collective bargaining in Illinois public education. Collin Hitt Director of Education Policy Illinois Policy Institute Sonya Jones Visiting Fellow Illinois Policy Institute

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Chapter 1: Introduction to Collective Bargaining in the Public Sector
In 1962, the United Federation of Teachers gained the legal right to bargain collectively on behalf of teachers in New York City. According to policy researchers Frederick Hess and Martin West: The pivotal moment in those struggles came in 1960, when, following a one-day walkout by the United Federation of Teachers (UFT), New York City Mayor Robert Wagner allowed teachers to vote whether to pursue formal collective bargaining. In June 1962, after another strike, the UFT negotiated a formal collective bargaining agreement — the nation’s first for teachers — offering an across-the-board pay increase of nearly $1000 and a duty-free lunch period.3 Shortly thereafter, President John F. Kennedy issued Executive Order 10988, approving unionization of federal public employees. The order did not force employees to join a union, but it did establish procedures like those of the National Labor Relations Act (NLRA), allowing exclusive representation by a union if a majority of employees voted in favor of such.4 Prior to 1983, public employees did not have the right to collectively bargain in Illinois. At that time, the General Assembly passed two separate pieces of legislation granting collective bargaining rights statewide to both public education employees and other public employees.

The Dynamics of Public-Sector Bargaining
According to a report released in January 2009 from the federal Bureau of Labor Statistics, union membership across the nation in the private sector is 12.4 percent of wage and salaried employees.5 That represents a decline from 20.1 percent in 1983, which was the first year such data were available.6 The most recent numbers show a slight increase in union membership over the last two years.7 In Illinois, 17.5 percent of all workers belong to labor unions, ranking 10th behind Hawaii, Alaska, New York, Washington, Michigan, California, New Jersey, Nevada and Connecticut, respectively.8 Public-sector workers are now five times more likely to belong to a union than their private-sector counterparts.9 Nationally, 36.8 percent of workers in the public sector are unionized. By contrast, only 7.6 percent in of workers in the 8 Bargaining for Better Schools

private sector are unionized.10 As union numbers have declined in the private sector, the unions have increasingly sought to unionize those in the public sector, via state legislation, to maintain their political power. Those in education, training and library occupations represent the highest rate of unionization at 38.7 percent.11 Of the 8,451,250 employees in that category, 5,190,640 (61.4 percent) are instructional employees in K-12 settings.12 Linda Kaboolian of Harvard’s Kennedy School of Government points out, “Public education has, by every measure, the highest density of membership and coverage by collective bargaining of any industry, public or private.”13 As a result, education unions have more power in their sector than their counterparts representing other industries. Private-sector unions are governed by federal law (the National Labor Relations Act) and public-sector unions are governed by state law. In the private sector, as Thomas W. Washborne and Michael D. Jahr of the Mackinac Center for Public Policy have noted, “a labor union’s leverage to obtain the most favorable terms of employment derives from its government-sanctioned ability to organize and bargain as a group, even if some in that group object.”14 The union is permitted by federal law to take action in furthering its position and, if necessary, to withhold labor until its demands are met.15 Ultimately, the union’s bargaining effectiveness is measured by the employer’s ability to survive without the organized employees. In the private sector, a union’s strength is limited by the employer’s competitiveness in the marketplace, its ability to attract enough qualified replacement workers in the event of a strike, and its current financial situation. The public sector is markedly different.

The Impact of Bargaining in Education
The public sector is limited by budgets, which are funded by tax dollars. In the case of school districts, each school board is restricted to a budget based on the amount of projected revenue that will be generated by designated tax dollars collected within the boundaries of the district, and from supplemental state and federal funds, if available. In reality, because schools may not simply shut their doors when they run out of money, school districts have no bottom line. This often means that school districts must “You don’t have to be a conspiracy theorist to wonder whether collective bargaining in education hasn’t become something more like collusion.” - Frederick M. Hess, A Better Bargain: Overhauling Teacher Collective Bargaining for the 21st Century 16

propose levies, or additional taxes, in order to fund contracts already in place. School board elections and recall petitions can put intense political pressure on a board member to capitulate to union demands. In many cases, board members owe their seats to the work of the teachers union. For example, the local teachers union and the Illinois Education Association (IEA) often contribute to and organize on behalf of candidates that openly support their objectives. In fact, teachers unions are reportedly “the most active interest group in board elections; almost 60 percent of board members nationwide say the teachers unions are ‘very active’ or ‘somewhat active’ in their local elections.”17 In doing so, the unions reasonably expect reciprocal support at the bargaining table. Ironically, school board members wield no similar power to affect union elections, in which only union members vote.

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Chapter 2: Bargaining Collectively Under Illinois State Law
Collective bargaining is the performance of the mutual obligations of the educational employer and the representative of the educational employees to meet at reasonable times and confer in good faith with respect to wages, hours and other terms and conditions of employment, and to execute a written contract incorporating any agreement reached by such obligation, provided such obligation does not compel either party to agree to a proposal or require the making of a concession. - 115 Ill. Comp. Stat. 5/10(a) (1984). When the Illinois Education Labor Relations Act (IELRA) became law in 1984, the state of Illinois officially granted collective bargaining rights to public education employees. While the IELRA provides the framework under which collective bargaining is conducted, neither the IELRA nor the Illinois Education Labor Relations Board (“the Board”) creates or forces contractual agreements. The IELRA sets out requirements and restrictions on collective bargaining negotiations. Many of these are intentionally ambiguous so that individual school boards and union representatives may carefully construct contractual “The 199 collective bargaining agreements to address their unique agreements for teachers on file at needs and situations, which vary greatly the Bureau of Labor Statistics in across school districts. As discussed January 2005 averaged 105 pages below, collective bargaining is mandated in length. And the topics covered only for wages, hours, and conditions of in those pages extend far beyond employment. In other words, not every bread-and-butter questions of policy administered by a school board salary and benefits; there are must be developed through collective dozens of clauses covering a bargaining. district’s ability to evaluate, transfer, terminate, and manage the As noted, bargaining collectively in workload of teachers, all having education in Illinois is subject to the potentially serious effects on IELRA, and also to interpretations the management of schools and of the IELRA by the state courts and student achievement.” the Board. While not controlling, the Board uses precedent generated by both the National Labor Relations Act and the Illinois Labor Relations Board The Illinois Policy Institute -Frederick M. Hess, American Enterprise Institute18 11

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

Subjective Bargaining Standards: Good Faith
Some requirements for “good faith” bargaining are set forth in state law. For instance, the Board has determined that good faith bargaining requires that negotiations for a new contract take place for sixty days or more. State law also contains provisions for proper notice to be given at different points during the bargaining process — a violation of any of these would be a violation of the duty to bargain in good faith. Beyond statutory requirements, the subjective standard of “good faith” in collective bargaining has evolved through judicial interpretations. In the private sector, the determination of good faith bargaining can be answered with one question: Did either party come to the bargaining table without any intention of reaching a contractual agreement? Public-sector bargaining is complicated by the fact that public employees perform services that, by their very nature, cannot merely cease to exist without significant negative consequences for the public. The NLRB has set out some guidelines for good-faith bargaining determinations that are unique to public-sector bargaining dynamics: 1. Both parties should approach negotiations with an open mind and a sincere desire to reach an agreement. 2. The extent to which good faith is demonstrated will vary from case to case, largely dependent upon the bargaining history of the parties. 3. Frequent and/or long meetings may not be enough to satisfy the good faith requirement. 4. It is not imperative that an agreement is reached; however, if an agreement is reached, it must be reduced to writing at the request of either party. 5. Neither the employer nor the union is required to agree to any proposal or make concessions. As long as the parties present and consider reasonable terms, they are bargaining in good faith. Good faith bargaining does preclude unilaterally dismissing a mandatory subject at the bargaining table; however, there is no requirement that a party accept any terms, and “No” is a reasonable answer to any offer. 12 Bargaining for Better Schools

While good faith is at the heart of collective bargaining, it is not always an easy concept to apply. Determining whether a party is acting in good faith is complicated, as it involves the proposals made by the parties, the procedures they followed, and the manner in which they negotiate. Thus, courts will look to the totality of the circumstances, including previous unfair labor practice violations, in determining whether a party has circumvented its obligation to bargain in good faith.20 A violation of the statutory requirement to bargain in good faith does not always occur during contract negotiations. For example, in 2005, the Oak Lawn Community High School District 229 notified a third-year teacher already on probation that it would not re-employ him during the 2005-06 school year.21 The union representing the teacher requested the reasons for the non-renewal, but the school’s principal denied that request.22 The union then filed a grievance against the Oak Lawn District for violating its duty to bargain in good faith, based on the assumption that the Oak Lawn District failed to follow bargained-for evaluation procedures in reaching its non-renewal determination.23 Relying on prior decisions, the Board agreed with the union: “An employer’s duty to bargain in good faith includes the duty to provide information to the exclusive representative.”24 Further, the Board reasoned, “[t]he information must be directly relevant to the union’s function as exclusive bargaining representative and must appear to be ‘reasonably necessary’ for the performance of this function.”25 In this case, the Board determined that the “information requested concerned terms and conditions of employment,” a mandatory subject of collective bargaining.26

Subjects of Collective Bargaining
Under Illinois state law, collective bargaining in education must include negotiations for traditional terms such as wages and total hours worked. Subjects unrelated to wages and hours — such as class size, contracting out employee services to third parties, and frequency of staff meetings — are subjects that may be considered during negotiations. Illinois state law does not explicitly prohibit any subject from the bargaining table. By contrast, Michigan law expressly prohibits bargaining over subjects such as decisions concerning inter- and intra-district open enrollment opportunities, provisions governing contracting procedures with third parties for non-instructional services, and the use of volunteers in providing services at public schools.27 Notably, Illinois state law allows a loophole in its largest school district to consider just about anything as long as a connection can be made to wages and hours, however tenuous that connection may be.

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Mandatory Subjects

Once employees have certified an exclusive bargaining representative, the IELRA states that “Employers, however, shall be required to bargain collectively with regard to policy matters directly affecting wages, hours and terms and conditions of employment as well as the impact thereon upon request by employee representatives.”28 This language not only provides for mandatory bargaining over wages, hours, benefits and grievance procedures, but also the impact of such decisions. For example, within the confines of a school district’s budget, wage increases may be limited; however, if wage increases require a shift in district funds that affect class size or distribution (which are normally permissive subjects of bargaining), then class size and distribution could also become a mandatory subject of bargaining.29 The fact that teacher layoffs are not a mandatory subject of bargaining raises an interesting observation: Illinois’ collective bargaining law may actually work to encourage teacher layoffs as the favored solution to school funding dilemmas, as opposed to more incremental cuts to pay or benefits. It is easy to imagine situations in which it would be far easier for a school board grappling with budgetary pressures to simply call for layoffs than go through the arduous process of negotiating an across-the-board reduction in teacher pay and/or benefits. From the union’s perspective, the needs of the group might well outweigh the needs of the few teachers being laid off, further encouraging layoffs as a favored solution in a budgetary crisis. There is no requirement to resolve any particular mandatory issue before another. However, a party may violate its duty to bargain in good faith by insisting upon the other party’s agreement on a single mandatory subject of bargaining before agreeing to meet on any other issue.
Permissive Subjects

Those subjects of bargaining that are not considered mandatory, but are not otherwise prohibited, are considered “permissive.” Permissive items might include such matters as class sizes and the composition of site-based management committees. Because they are merely permissive, the parties may not use their stance on such issues to limit discussion on mandatory items. Moreover, neither party may be required to agree to a disputed permissive item. For example, permissive subjects of bargaining, as evidenced by the collective bargaining agreement between the Rockford School District and the local Rockford Education Association, include the following: 14 Bargaining for Better Schools

• The free access to and use of school equipment and facilities (funded with taxpayer money) by the union to conduct its business, so long as it does not interfere with the “educational process;” • Input from union appointees in the textbook selection process; • Mutual agreement between the Board and the union on “all forms that directly affect the professional staff,” including, but not limited to “transfers, leave policies, evaluations, and other personnel related forms” (tasks traditionally reserved for management); and • The creation of an “Instructional Council” comprised of seven appointees of the union and three appointees of the school superintendent (the Council will monitor the creation and removal of all forms and set the program for one in-service day per year).30 There is no need for school boards to bargain over permissive subjects since they are not statutorily required to do so. These subjects may be addressed in board policies or practices. Indeed, keeping board policies out of collective bargaining agreements is desirable, since changing an existing contract is much more difficult than modifying a board policy. Because the IELRA does not expressly prohibit bargaining over any subject, the following matters must be bargained for once the demand is made, usually by the union: hours worked per day, class preparation time, lunch periods, retirement bonuses/incentives, workloads, types of leave, class size, evaluation procedures, employee discipline, discharge or termination, procedure for reducing work force, fair share (discussed below), use of facilities, seniority, notification of work assignments, dues deductions, and transfers and reassignments.31 The Association of Illinois School Boards warns that these subjects should be avoided, and even suggests modifying the list to exclude certain subjects.32 The state’s largest district enjoys great latitude in bargaining. The IELRA gives the City of Chicago School District 299 the discretion to bargain over subjects other than wages, hours, terms and conditions of employment, if it chooses to do so.33 Those subjects include: contracting with third parties for instructional services normally provided by district employees (including establishing contract schools wherein the teaching force is employed by a private entity), including the procedures for securing such contracts; decisions to lay off or make reductions in the number of employees; and determinations of class size, class staffing and assignments, class schedules, academic calendar, hours and locations of instruction or student assignment policies.34 The City of Chicago School District 299 is not unique. The average collective bargaining agreement contains “dozens of clauses covering a district’s ability to evaluate, transfer, terminate, and

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manage the workload of teachers, all having potentially serious effects on the management of schools and student achievement.”35
Prohibited Subjects

Even though the IELRA does not explicitly prohibit bargaining over any subject matter, it does excuse employers from bargaining over some subjects: “Employers shall not be required [by the union] to bargain over matters of inherent managerial policy, which shall include such areas of discretion or policy as the functions of the employer, standards of services, its overall budget, the organizational structure and selection of new employees and direction of employees.”36 Practically speaking, these subjects include: supervisory duties, hiring practices, promotion, use of emergency days, fact-finding or interest arbitration, maintenance of standards of board policies, discrimination, administrator evaluation, curriculum and program, textbook selection, student discipline, evaluation criteria, grievance definition, staffing standards (including pupil-teacher ratio), professional qualifications, in-service training, citizenship and constitutional protections, student teachers, and committee assignments.37 The statutory list does not include every prohibited subject. For example, it would be impermissible to include a term in a collective bargaining agreement that bargained away a federal employment right, such as prohibitions on discrimination contained in the federal Civil Rights Act of 1964.38
Other Contract Requirements

Contracts between employer school districts and the exclusive bargaining representative of its employees must contain provisions covering grievance procedures for employees in the bargaining unit, as well as providing for binding arbitration to resolve “disputes concerning the administration or interpretation of the agreement.”39 The contact must also contain language “prohibiting strikes for the duration of the agreement.”40 (Strikes will be discussed further below.)

Midterm Bargaining
Even when a contract is in effect, it may become necessary to bargain when the school district wishes to take an action that impacts a mandatory subject of bargaining. For example, if the district wishes to alter class sizes, reduce staff, or adjust the length of the school day — and if any of these is a result of budgeting issues — then wages and hours may be adjusted and interim bargaining is required. Additionally, if the school board makes a decision that will affect wages and hours, impact bargaining is required. (Essentially, the school board would have to bargain both for the decision and its impact.) In these situations, and 16 Bargaining for Better Schools

in accordance with state law, the union must be notified at least sixty days prior to any proposed change being acted upon in order to facilitate the good faith bargaining period required by law. Consequently, an employer may find itself perpetually bargaining. One way to avoid such cumbersome processes is to include a zipper clause in any collective bargaining agreement. “A zipper clause functions as a waiver of union bargaining rights during the term of the contract, and is an obviously important clause for the school board to get into the contract.”41 Without it, the school board may find itself continuously bargaining over matters that are not themselves mandatory subjects of bargaining, but become so as a result of their effect on mandatory subjects of bargaining. Such constant negotiations can fatally undermine the productivity of school boards.

Mediation
Mediation is the process whereby an outside professional is brought in to help parties determine the facts and come up with compromise solutions. It is often helpful where strong personalities or intractable issues are thought to have rendered further negotiations impossible without outside help. Collective bargaining negotiations must be conducted for no less than sixty days.42 If a contractual agreement is not reached by ninety days before the scheduled start date of the upcoming school year, the parties are required to notify the Illinois Educational Labor Relations Board (“the Board”) as to the status of the negotiations.43 This initial notification simply puts the Board on notice that there are complications arising in the negotiations. No action is taken by the Board at this point.44 At any time during the negotiations, the parties may jointly make a written request to the Board to provide mediators.45 The mediators must be made available to both parties throughout negotiations. This is so they can monitor the negotiations for any future arbitration of grievances, and also for any future arbitration of contract disputes.46 If requested by the parties, the mediator may also conduct hearings for fact-finding, prepare written findings of fact, and make recommendations for dispute resolution.47 This type of mediation must “be provided by the Board and shall be held before qualified impartial individuals.”48

Impasse
According to Illinois state law, once contract negotiations reach the forty-fifth day before the scheduled start date of the forthcoming school year, and no The Illinois Policy Institute 17

agreement has been reached, either party may declare an impasse and petition the Board to initiate mediation.49 At the same point in negotiations, the Board may also act independently to initiate mediation.50 The mediator should be an impartial observer with mediation experience agreed to by the employer and the union representing the employees. If the parties cannot agree upon a mediator, the Board may act on its own in providing a mediator. If the parties have still not reached an agreement by the fifteenth day prior to the first day of the upcoming school year, the Board is obligated by state law to initiate mediation.51 The costs of any fact-finding and mediation will shared equally between the school district and the exclusive bargaining representative.52 If either party requests the use of services from the Federal Mediation and Conciliation Service, the other party must either join that request or bear the additional cost of mediation services from another source.53 The mediator acts in a limited, advisory role and attempts to persuade the parties to move closer to an agreement on disputed issues. If no agreement is reached during the mediation process, one of two scenarios will occur. In the rare case of exclusive bargaining representatives that were established prior to the enactment of the IELRA (1983 and earlier), a fact-finding process is the next step in resolving disputes.54 Again, this is a neutral process in which the fact-finder(s) investigate the situation to identify all unresolved issues and makes recommendations to the parties for resolution of the impasse. If there are still unresolved issues remaining after the fact-finding process, or in the case of disputes arising under exclusive bargaining representation established since 1984, the parties may mutually request the Board to impose final, binding arbitration.55 This is a permissive alternative since state law does not require that the parties submit to such arbitration. Alternatively, the dispute(s) in the proposed contract remains, the current contract expires, and the employees refuse to return to work without a new contract.

Teacher Strikes
Under Illinois state law, it is legal for teachers to strike, as long as the teachers union adheres to certain procedural requirements.57 According the IELRB Annual Report for the 2008 fiscal year, public education employees filed thirtyfour notices to strike and participated in nine strikes. Public school employees are prohibited from striking while under 18

“Teacher union leaders in Illinois and elsewhere have made it clear they will not settle for ‘meet and confer’ and have stood ready and willing to accept the martyrdom of jail sentences and heavy fines that have been imposed on public sector strikers.”56 -Ronald Booth, Labor Relations Consultant Bargaining for Better Schools

a negotiated contract. Public school employees may strike if: the most recent contract has expired; mediation on the pending contract has failed to yield a new contract; at least ten days have lapsed after a notice of intent to strike58 has been submitted to the employer, the regional superintendent or the Board; and, the parties have not yet mutually submitted unresolved issues to binding arbitration.59 If the employer school district believes that the strike “is or has become a clear and present danger to the health or safety of the public, the employer may initiate” an action for relief that may include petitioning the county circuit court for an injunction to force the employees back to work.60 The court may grant appropriate relief, including an injunction ordering the employees back to work and daily fines and incarceration for each striking employee in violation of the injunction, if it determines that a clear and present danger exists.61 Even though the penalties for striking employees are potentially severe, the threat of a strike remains a powerful bargaining strategy during negotiations. If a court believes the employer has engaged in an unfair labor practice (discussed below) or finds “other evidence of lack of clean hands,” it is a defense to the action for injunctive relief.62

Unfair Labor Practices
According to state law, educational employers are prohibited from: 1. Interfering with, restraining or coercing employees in the exercise of the rights guaranteed under [the IELRA]. 2. Dominating or interfering with the formation, existence or administration of any employee organization. 3. Discriminating with regard to hiring or tenure of employment or any term or condition of employment in order to encourage or discourage membership in any employee organization. 4. Discharging or otherwise discriminating against an employee because he or she has signed or filed an affidavit, authorization card, petition or complaint or given any information or testimony under [the IELRA]. 5. Refusing to bargain collectively in good faith with an employee representative who is the exclusive representative of employees in an appropriate unit…. 6. Refusing to reduce a collective bargaining agreement to writing and signing such agreement. 7. Violating any of the rules and regulations promulgated by the Board regulating the conduct of representation elections. 8. Refusing to comply with the provisions of a binding arbitration award. 9. Expending or causing the expenditure of public funds to any external agent, individual, firm, agency, partnership or association in any attempt to influence the outcome of representational elections….63 The Illinois Policy Institute 19

Employee representatives (unions) are prohibited from: 1. Restraining or coercing employees in the exercise of the rights guaranteed under [the IELRA], provided that a labor organization or its agents shall commit an unfair labor practice under this paragraph in duty of fair representation cases only by intentional misconduct in representing employees…. 2. Restraining or coercing an educational employer in the selection of his representative for the purposes of collective bargaining or the adjustment of grievances. 3. Refusing to bargain collectively in good faith with an educational employer, if they have been designated in accordance with the provisions of [the IELRA] as the exclusive representative of employees in an appropriate unit. 4. Violating any of the rules and regulations promulgated by the Board regulating the conduct of representation elections. 5. Refusing to reduce a collective bargaining agreement to writing and signing such agreement. 6. Refusing to comply with the provisions of a binding arbitration award.64 From July 1, 2007 through June 30, 2008, there were a total of 141 cases filed for unfair labor practices, 110 against employers and 31 against unions.65 Under state law and subsequent judicial interpretations, many actions on behalf of employers and unions can give rise to an unfair labor practice complaint. While the following examples do not exhaust the possibilities, they certainly highlight the more common issues prompting such complaints.
Employer Duty to Bargain in Good Faith

In addition to statutory requirements for good faith bargaining discussed earlier, an employer’s refusal to process, or an unjustified delay in the processing of, a grievance violates the duty to bargain in good faith.66 Also, any evidence of prior unfair labor practices committed by the employer may be used in such cases to show animosity or unlawful motivation in committing an unfair labor practice (such as a failure to bargain in good faith).67 Next, the failure of an employer to provide to the union reasons for nonrenewal of a probationary teacher, who alleges improper evaluation, can result in an unfair labor practice.68 In a case arising in the Oak Lawn School District, when requested by the union, the Board stated that “while the employer’s only affirmative duty under the School Code was to provide timely notice to non-final year probationary teachers, the employer had a parallel duty arising under the Act 20 Bargaining for Better Schools

to bargain in good faith and provide the reasons for a non-renewal,” regardless of whether the employer followed proper procedures in the evaluation as outlined in the collective bargaining agreement.69
Violation of Employee Rights

To establish an unfair labor practice for violation of employee rights, the employee must show that the conduct by the employer was intentional, not merely negligent.70 The Board has also found a violation of an employee’s right by the employer when an employer has threatened to contract out for work the employee would perform in the regular course of bargained-for duties if the employee were to strike.71
Union Duty of Fair Representation

When a union fails to file a grievance on behalf of an employee, the employee bears the burden of proving that omission was a result of intentional misconduct, not merely negligence.72 Even though the same employee received a verbal death threat from the union steward, the Board determined the threat was too remote in time to provide evidence of the union’s motivation in failing to file the grievance.73 In order to establish a case against a union for failure to provide fair representation, the employee must show that the union’s conduct “demonstrate[s] fraud, deceitful action, dishonest conduct or deliberate and severely hostile and irrational treatment.”74 This is indicative of the great deference given to the employee-representative relationship once established, earned or not.
Timeliness

Many cases for unfair labor practices presented to the Board are dismissed as untimely. Notably, the duty of the union and employer to bargain in good faith attaches upon union certification as the employees’ exclusive bargaining representative — there need not be a contract in effect between the employer and exclusive bargaining representative. For example, if an employer cuts positions within a bargaining unit prior to initial contract negotiations, even due to changes in budget, it will be considered an unfair labor practice. Remember, any managerial decisions affecting wages and hours of employees represented by the union must be bargained for. This applies both prior to the existence of any collective bargaining agreement, as well as while an agreement in is effect. In the case of employee claims for violation of employee rights, or failure of the union to provide fair representation, the claim must be filed within six months of the first occurrence giving rise to the claim.75 In other words, the clock begins to tick with the first instance of possible misconduct, not when the employee The Illinois Policy Institute 21

first thinks prior misconduct may arise to the level of a claim. However, untimely allegations of misconduct may be used as evidence in an unfair labor practice proceeding to shed light on the true character of other matters occurring within the proper time period.76

Judicial Review
Any party adversely affected by an order from the Board may appeal directly to an Appellate Court in a judicial district in which the Board maintains an office.77 A notice of appeal must be filed within thirty-five days of the Board’s final order.78

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Chapter 3: Illinois School Boards and the Bargaining Process
The Role of Local School Boards
The IELRA was enacted in 1984 to “to promote orderly and constructive relationships between all educational employees and their employers.”79 In general, school board members are required by virtue of their positions to find a balance between the needs of the school system’s employees and the system’s customers, who are the students, parents, and taxpayers. However, in collective bargaining, protecting the interests of these customers becomes paramount, as education personnel are represented by their unions. Robert Barkley, former executive director of the Ohio Education Association, described the role of the school board this way: “The fundamental and legitimate purposes of unions [are] to protect the employment interests of their members. It is the primary function of management to represent the basic interests of the enterprise: teaching and learning.”80 School boards must know what they want to achieve, maintain the necessary backup materials to support their position, and compromise only when necessary, as long as it does not harm the principle at stake or limit future action. Carrying out this role is, of course, a bit more complex. One of the issues that must be confronted by a board is whether to hire a professional negotiator and/or a labor attorney. In more cases than not, this will prove advisable. That said, this decision is, of course, a matter of discretion based on a district’s size and circumstances, and the relationship between the administration and staff bargaining team members. No matter who ultimately represents the school board, the communication between the board and the bargaining team must be open and timely, and the priorities and limitations must be clear. Here, it is worth reprinting Ronald Booth’s articulation of school boards’ roles in labor relations from his useful text, Collective Bargaining and the Illinois School Board Member:

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As Policy Setter

• Develop parameters based on district goals. • Select negotiator and procedures. • Insist on employee relations goals and objectives in bargaining, in contract management, and in human relations. • Understand unionization. Develop a basic understanding of bargaining. Distinguish labor relations from human relations. Don’t be co-opted or used by the union to further its goals. Realize that the board’s public position in labor disputes must be unanimous. • Protect the confidentiality of the board’s strategy. • Don’t play mediator. • • • • • • • • Understand and expect pressures. Establish a unanimous position with one spokesman. Know the legal limitations of individual board members. Don’t stand alone; present a unified school board position and get community support.81

As Individual Board Members

At Impasse

(emphasis added) Ultimately, the board is responsible for the final product. Board members may find that in yielding negotiating authority to a professional negotiator or to school administration, agendas can arise that are not board-driven, and therefore not necessarily in the best interest of the board or the district. To give an extreme example, a superintendent nearing retirement might be inclined to give away an item in exchange for labor peace. Contract terms are real, and their impact is measurable. Consequently, professional negotiators, or negotiators gleaned from school administration, can be important. However, blind faith in negotiators is not only unwise, it violates the school board’s obligation to the community.

Board Strategies in Collective Bargaining
The optimal strategy for any given school board across the state of Illinois is beyond the scope of this primer. Every situation is different, and one of the real benefits of local control is the ability of school boards to take advantage of this 24 Bargaining for Better Schools

fact. However, there are some common elements that should be addressed in any board strategy. Be aware of the views and positions of the union that represents the school district’s employees. Examine the materials generated by the union on the Internet, in print, or elsewhere. Most significant positions will not be kept hidden. The education unions work in a coordinated fashion to achieve their statewide goals. Identifying these goals early in the process will give a school board extra time to determine the best approach to take. In the private sector, human resource managers will provide boards and executives with detailed accounts of the full cost of employment. This would include the cost of all benefits, not just the major items such as salary and health benefits. Paid days off — including sick days, bereavement, personal days and vacation days — all have an associated cost. Moreover, salary is not the only direct compensation cost; others might include longevity pay and certification bonuses. There is also a dollar value to uniforms provided to maintenance workers or custodians. School board members should expect similar details to be presented to them so that they can fully understand their choices and make informed decisions. Unfortunately, far too many boards find themselves working only from aggregated values of salaries with a proposed percentage increase. Develop a unified and coherent board strategy. As best they can, it is necessary for school boards to reach uniform conclusions as to what issues are critical and what the board’s positions will be on those issues.82 If a board fails to develop a consensus, it is likely to be divided and conquered by the union in the press or at the negotiating table. Where conclusions cannot be reached, it is important to arrive at internal agreements regarding the necessity of board members in the minority on a position to refrain from publicly undermining the board during negotiations. Likewise, it is important for any school board member not to act as an independent broker with the education unions on contentious issues. Finally — though it should go without saying — it is important that the majority of the board not impose its position on the minority. In developing a strategy, a school board will often have a few early meetings to set parameters and then leave a negotiator or a team to reach a final agreement. Accordingly, it is important to have these parameters set forth in writing for the negotiator(s) so that there can be no confusion or misunderstandings. Parameters are meant to serve as guideposts, not straitjackets. However, a school board can find itself in a difficult position if a negotiator oversteps the boundaries set by the board, either by accident or intentionally. In such situations, board The Illinois Policy Institute 25

members must choose between an agreement they didn’t really want — and forever keep quiet about it — or damage the credibility of the negotiators by directing them to reopen negotiations, an undesirable approach in a process that is often built step by step. Plan school board communications. It is important for a school board to have in place a clear strategy of communicating board positions to the media and, consequently, the public.83 In that regard, the board needs to speak with one voice in delivering its message to the general public. Accordingly, it is usually necessary to designate a spokesperson through which the board addresses the media and the public. Keep in mind that appropriate internal communication can be just as important as external communication, as it eliminates surprises. The negotiators should provide regular summary reports to the school board on the results of negotiating sessions as well as future strategies. It is important to see the relationship between the school board and those charged with the actual negotiations as a partnership. Under such a view, misunderstandings on the parameters presented to the negotiators, especially if they were vague, can be avoided. To avoid micromanaging, it is a wise practice to have school board members respond to the updates only if they notice a deviation from the parameters. Otherwise, they should reserve their comments for discussion in closed session. Never underestimate the effectiveness of the unions. Labor unions are multi-million dollar operations with the overarching goal of advancing the interests of their members. While unions may, at some level, care about the education of children, board members should remind themselves that the union representatives engaged in negotiating are paid professionals. They understand both the law and the specific issues at hand, and often boast extensive experience in collective bargaining. As discussed above, unless a board member has similar expertise and if finances permit, the board should consider hiring a professional negotiator. IEA affiliates have access to the expertise of the National Education Association, a massive organization of 2.8 million members that maintains, according to Hess and West, “a network of 1,650 full-time and 200 part-time employees who provide local affiliates guidance on matters including negotiations and grievance resolution. And tellingly, a full 45.6 percent of all dues paid to the IEA are designated for UniServ field services.84 The NEA touts the UniServ program as ‘a vast cadre of human resources,’ on which it spent approximately $50 million in 2001. …”85 Considering the vast resources available to unions, it is little wonder that many school boards choose to hire a professional negotiator. 26 Bargaining for Better Schools

Chapter 4: Education Unions and the Bargaining Process
Historical Background
“We believe individuals are strengthened when they work together for the common good. As education professionals, we improve both our professional status and the quality of public education when we unite and advocate collectively.” – Mission, Vision, and Values of the National Education Association 86 “Despite the National Education Association’s claims to be an advocate ‘for children and public education,’ we should not expect unions at the bargaining table to be for anything but their own interests.” – Frederick M. Hess, the American Enterprise Institute87 The Illinois Education Association (IEA), named the Illinois State Teachers’ Association until 1936, was originally formed in 1853 “to discuss issues affecting schools, exchange pedagogical views, and determine ways to further the cause of education in the state.”88 The early goals of the IEA were to establish a higher education institution (now, Illinois State University), gain full membership rights for women teachers, and improve access to education along racial lines.89 In 1970, control of the IEA shifted from administrators to teachers.90 The following year, the IEA joined the ranks of the National Education Association and formed its own Political Action Committee to lobby state legislators, influence elections, and establish collective bargaining rights for teachers statewide.91 Success came fifteen years later when the Illinois General Assembly enacted the IELRA, granting collective bargaining rights to public school employees.92 The IEA is now the largest teachers union in Illinois, representing 133,000 members across 870 school districts.93 Illinois is also home to the Illinois Federation of Teachers (IFT), an affiliate of the national American Federation of Teachers (AFT). In fact, the IFT-affiliated Chicago Teachers Union was issued the first local charter by the AFT when the national organization first formed in 1916 (at that time, it was known as the Chicago Federation of Teachers).

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Statutory Authority
The IELRA recognizes unions as exclusive representatives of public school employees through voluntary recognition by a school board or employee elections.94 Once a union is established, it becomes the sole representative of the employees in a particular unit. No longer can an employee work with a school board to determine his or her own terms and conditions of employment. In order to engage in the collective bargaining process, a “bargaining unit” must be formed and an exclusive bargaining representative must be “certified.” First, the Board is solely empowered to recognize “units” for collective bargaining purposes.95 The Board must be sure that the unit contains “employees with an identifiable community of interest and that no unit includes both professional employees and nonprofessional employees unless a majority of employees in each group vote for inclusion in the unit.”96 Once a unit is determined, the certification process begins. The certification process begins in one of two ways. First, “[a]n educational employer shall voluntarily recognize a labor organization for collective bargaining purposes if that organization appears to represent a majority of employees in the unit.”97 In such cases, the employer must post a notice of its intent to recognize the labor organization for twenty days in places reserved for employee notices.98 Once a notice has been posted for twenty days, the employer may send written notification to the Board of its intent to recognize the labor organization and the Board will make a final determination of certification.99 If any dispute arises as to the majority requirement, the Board must make a final determination of majority status.100 If during the twenty-day notice period another labor organization petitions the Board for recognition as the same employees’ exclusive bargaining representative, and the Board determines that at least 15 percent of the employees in the unit are in favor of such representation, then the Board shall proceed with the election process.101 Alternatively, a labor organization may gain recognition as the exclusive bargaining representative by an election of the employees in the bargaining unit.102 A petition to the Board requesting an election may be filed: (1) “by an employee or group of employees or any labor organizations acting on their behalf alleging and presenting evidence” that at least 30 percent of the employees in a unit wish to be represented for collective bargaining purposes, or that at least 30 percent of the employees believe that the labor organization currently representing them no longer represents the majority of employees in the unit103; or (2) “by an employer alleging that one or more labor organizations have presented a claim to be recognized as an exclusive bargaining representative of a 28 Bargaining for Better Schools

majority of the employees” in a unit and the employer doubts the majority status of any of the organizations claiming to represent the employees.104 (“Evidence” consists of cards individually signed by employees in the unit in support of specified representation.) Next, if the Board determines that a question of representation exists, it will give notice and conduct a hearing.105 If the hearing reveals that a question of representation does indeed exist, then the Board will call for an election, which must be conducted within ninety days of the original filing of the petition to certify the labor organization as the exclusive bargaining representative for the unit.106 In 2007, the Board adopted a standard first set out by the U.S. Supreme Court, and adopted by the National Labor Relations Board (NLRB), requiring employers to show a “good faith reasonable uncertainty of the exclusive representative’s majority status in order to obtain an election.”107 Notably, nothing in state law prohibits the waiver of a hearing by the parties, allowing them to proceed directly to an election. Elections must be conducted by secret ballot and in compliance with rules and regulations set forth by the Board.108 An existing exclusive bargaining representative must automatically be placed on the ballot.109 An intervening labor organization must be placed on the ballot contingent upon a 15 percent showing of interest by the employees in the unit.110 The Board must give at least a thirty day notice of the time and place for an election and, if requested, shall provide to the parties a list of names and addresses of employees eligible to vote in the election at least fifteen days prior to the election.111 The ballot must also include an option of “no representative.”112 The labor organization receiving a simple majority of ballots cast will be certified as the exclusive bargaining representative for the employees in the unit.113 If “no representative” receives a majority of votes, then no representative will be recognized by the employer for a twelve-month period.114 If none of the choices on the ballot receives a simple majority of votes, a runoff will be conducted for the top two vote receivers.115 The Board must certify the results of an election within six working days after the final tally of votes.116 In the case of previously unrepresented employees, either the school district or newly certified exclusive bargaining representative for the employees in that district may demand to engage in collective bargaining.117 The contract negotiations must begin within sixty days of the original certification of the exclusive bargaining representative.118 If an exclusive bargaining representative already exists for employees in the school district, negotiations must begin within The Illinois Policy Institute 29

sixty days of receipt of a demand to bargain by the other party.119 Once collective bargaining negotiations begin, the negotiations must continue for at least sixty days, unless a contract is agreed to sooner.120 Rules of bargaining agreed to by the parties in advance of negotiations will set out specifics, such as the number of members on each bargaining team, allowing for any observers, recording of bargaining sessions, and recordkeeping. Notably, a union is certified indefinitely. Unlike our political system with its regular elections, unions do not have to face periodic re-elections. Most American workers with union representation have never had the opportunity to vote on it, since the union was certified before they were hired.121 In cases where employees seek to change or disestablish an existing union, the same rules apply as to starting a union — with one exception. A decertification election is not allowed where there is an existing, valid collective bargaining agreement of a fixed duration. However, under the IELRA “the Board may direct an election after the filing of a petition between January 15 and March 1 of the final year of a collective bargaining agreement.”122 Accordingly, collective bargaining agreements in Illinois shall not exceed three years in duration.123

Union Collective Bargaining Strategies
The Michigan Association of School Boards has developed a useful three-stage categorization of union bargaining strategy, which is quite applicable to Illinois and elsewhere: (1) the softening-up stage, (2) the near-impasse stage, and (3) the give-in-or-else stage.124 During each stage, unions employ increasing pressure on the school board to achieve a labor organization’s desired ends. In the softening-up stage, which begins before the start of formal negotiations, unions frame the issues for their membership. Tactics include the following: An increase in the number of grievances, letters to the union membership indicating their wage ranking in the job market … or even a letter requesting negotiations commence early due to the number of ‘serious issues’ needing to be addressed.125 The object in this softening-up stage is to motivate the base of union membership to put their trust in the union’s bargaining team. The process resembles a primary election in the political arena, where office-seekers attempt to solidify the support of party loyalists prior to the bruising battle of the general election campaign.

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After bargaining is underway, union tactics shift into a more confrontational mode, the near-impasse stage: Frequently employed strategies include union news releases indicating the board’s team is stalling, attacks on the integrity and competence of the board’s negotiating team, rumors and half-truths spread among union membership to leverage support for the union’s bargaining team, direct pleas to individual board members, phone calls to key people and groups within the community, a mass attendance at board meetings, or the filing of unfair labor practice charges.126 In the near-impasse stage, unions often try to increase the pressure for concessions by enlisting the sympathies of the general public. It is largely for this reason that a union will work to bring to public attention the disputes at issue, and cast the school board in as poor a light as possible. If a union can bring the public to its side, the political nature of public school management will work in the union’s favor. If impasse occurs, or when it has become clear that the union has not managed to achieve the public support to push the school board to capitulate, the union often becomes desperate and moves to the give-in-or-else stage. Here the union’s options become somewhat limited. They may talk of a strike, but the realities of the IELRA concerning financial penalties make an actual walkout unlikely. At this point, a school board can expect that the intensity of the union’s activities will increase. This increase is often the result of conducting a media campaign, filing charges alleging an unfair labor practice, or holding demonstrations.

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Chapter 5: Individual Teachers and the Bargaining Process
Most collective bargaining agreements, if not all, contain provisions that require the payment of union fees as a condition of employment. This is known as a union security clause, a contractual paragraph that requires employees either to be members of the union and pay dues, or, if not a member, pay an “agency fee” to the union. A union security clause, where the school board and union have chosen to include one, establishes what is often described as an “agency” or “union” shop. Generally, these clauses also require the school board to agree to fire any employee who fails to join the union and pay dues, or refuses to pay the agency fee, unless the employee’s religious beliefs bar such participation — in which case they have to pay a dues-equivalent fee to charity (discussed further below). Union security clauses are not without consequence. In fact, as pointed out by Harvard’s Caroline Hoxby: Laws permitting agency and union shops facilitate assertive collective bargaining because they greatly weaken the position of teachers in a district who oppose the union. The tools an individual teacher has to oppose the union are withholding of financial support and withholding of political support. Union and agency shops weaken these tools.127 It is the duty of the teachers union to represent the rights of teachers during the collective bargaining process. However, it is undisputed that teacher unions do far more than negotiate contracts on behalf of the teachers they represent. There are some circumstances in which the union’s overall agenda may conflict with the inherent beliefs of individuals they represent, presenting a dilemma for teachers represented by the union. In those cases, certain remedies are available.

Statutory Restrictions on Individual Teachers
Compulsory Union Membership: Fair Share Payers

All employees in a bargaining unit may be represented by a union, but that does not mean that all employees must be members of the union. The famous U.S. Supreme Court cases Abood v. Detroit Board of Education and Chicago Teachers

Local 1 v. Hudson both confirm that the U.S. Constitution prohibits such forced membership.128 In addition, Title VII of the Civil Rights Act of 1964 prohibits membership that conflicts with an employee’s religious beliefs.129 However, as noted, teachers who refuse to join the union may nevertheless still be required to pay an agency fee to the union for representing their interests in contract negotiations. The amount to be paid by such represented employees may not exceed the dues charged to union members.130 The fair share fee is deducted by the employer from the nonmember employee’s paycheck and paid to the exclusive bargaining representative.131 In order to better protect teachers, all contracts should include a provision either limiting the amount of fair share fees to a portion of union dues or a clear definition of what the fair share fee shall include and exclude.
Paycheck Protection: Political Contributions

The fair share fee determined by the union cannot contain any fees for political contributions in support of any candidate for political office.132 Notably, Illinois state law does not expressly exempt political contributions made to support or defeat ballot measures from the fair share fee.133 Paycheck protection refers to the rights of employees working under union contracts to refrain from paying any fees through payroll withholdings other than those actually required for representation. In the private sector, these rights are sometimes referred to as “Beck” rights for the famous 1988 Supreme Court case that gave rise to them, Communications Workers of America v. Beck. In Beck, the Court held that a union cannot obligate an employee to support union activities other than “those germane to collective bargaining, contract administration, and grievance adjustment.”134 This decision largely mirrored the decision in Abood v. Detroit Board of Education.135 On June 14, 2007, in the unanimous opinion Davenport v. Washington Education Association, authored by Justice Antonin Scalia, “the Court ruled that the First Amendment allows a state to require public-sector unions collecting ‘agencyshop’ [or fair share] fees from non-union employees to obtain permission from the employees before using the money for political purposes. The Court’s opinion held that ‘[...] unions have no constitutional entitlement to the fees of nonmember-employees.’”136 Paycheck protection is an important legislative remedy designed to diminish the power of compulsory unionism and free public-sector workers from being forced to subsidize union political spending with which they disagree. Sixteen states have some form of paycheck protection. The best approach is an opt-in procedure,

which requires individual union members to make a conscious decision about their level of union political support. Some states have opt-out procedures, which are more cumbersome but still provide some protection of individual political rights. Paycheck protection requires unions to seek written permission from their workers before using their dues money for politics. Paycheck protection relies on the Jeffersonian principle of “freedom of association,” the fundamental right not to subsidize political activities with which people disagree, or be forced to associate with those people or ideas that conflict with their own “internal moral compass.” Mike Reitz, General Counsel, Evergreen Freedom Foundation Until the state of Illinois follows suit, it is important that collective bargaining agreements are clear in defining the scope of the fair share fee, to preclude the collection of any monies to be used for political purposes.
Religious Liberty and Compulsory Union Membership

A contract that provides for fair share payments must also protect the right of non-association of nonmember employees that are “based upon bona fide religious tenets or teaching of a church or religious body of which such employees are members.”137 Such employees may be required to pay an amount equal to their fair share payment “to a non-religious charitable organization mutually agreed upon by the employees affected and the exclusive representative.”138 A teacher with objections to union membership on religious grounds is free either to join the union or withdraw membership. This is because teachers are protected from such employment discrimination under Title VII of the federal Civil Rights Act of 1964. Under federal labor law, a significant issue in similar withdrawals is whether the employee is a member of a religious sect that prohibits union membership.139 Occasionally, this standard has been raised as appropriate for Title VII employment discrimination claims. However, it has been established that Title VII claims may be supported by sincerely held personal religious beliefs. For religious objectors, Title VII requires that the unions allow withdrawal at any time (unlike the usual window for fee-payers, as discussed previously), and the union and school cannot require as a condition of employment the payment of fees to the union. However, Title VII only requires that the union and school boards make a reasonable accommodation on the issue of religion.140 In that regard, the courts have found that it is a reasonable accommodation to the needs of the religious objectors to require that if they do withdraw from a 34 Bargaining for Better Schools

union, an amount equivalent to their dues may be required to be given to charity. This is to allay the union’s fear that large numbers of employees might withdraw from the union, ostensibly on religious grounds, in an effort to save money. However, it is important to note that the charity is rarely the teacher’s choice. Some agreements specifically spell out the charitable arrangement; others are set by mutual assent. Seldom — if ever — will a religious objector simply be able to designate the charity of his or her choice.
Voluntary Union Membership

The Constitution’s guarantee of free association supports the notion that employees should be able to band together to advance a common interest. But this same guarantee should also allow an individual to opt out of such banding.141 Such voluntary unionism would provide additional flexibility in school management and give a voice to those who do not share the positions taken by a union. Twenty-two states have passed right-to-work laws for the private sector, which at least forbid forced unionism and/or forced agency. 142 Until Illinois joins those states in a voluntary system, only skilled collective bargaining by school board members will keep union power in check. Unfortunately, as it stands, unions have the potential to use their power to the disadvantage of taxpayers and the dismay of employees who are forced to yield to union-mandated employment.

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Chapter 6: Procedural Challenges in PublicSector Collective Bargaining
Collective bargaining in Illinois has given rise to numerous challenges, both procedural and substantive. While a number of these challenges are not easily addressed except through legislation, awareness of the issues may help a school board member to understand better the task before them.

“Factory Model” Bargaining and Quality Education
Collective bargaining, with its roots in the industrial, mass-production sector of the economy, operates under a “factory model” of bargaining: One size fits all. In this system, unions focus on securing for their members contracts with uniform benefits, working conditions, and salaries. The factory model, however, does not work well for individual professionals in an educational setting, as it places group needs over the needs and interests of a particular teacher. In fact, the standard terms of a collective bargaining agreement seldom properly address an individual teacher’s professional needs.143 For example, as previously noted, it is forbidden to consider individual teacher salaries and terms of employment apart from the terms the union negotiates. Such uniform treatment results in a loss of individual freedom, motivation, and productivity, as the teachers divert their creative energy away from the classroom and toward unionrelated activities.144 Many quality teachers simply choose to leave their profession in favor of finding greater freedom to exercise their skills and abilities elsewhere. Another consequence of the factory model is the creation of an atmosphere of antagonism between school districts and employee unions. Albert Shanker, former president of the American Federation of Teachers, explained the adversarial relationship between unions and employers this way: “Union contracts represent some attempt to limit and curtail the powers of management. …[T]he interest of unions, as long as you have a factory model, is in seeing to it that salaries are adequate and that they are not subject to some individual administrator who can use them politically or in a discriminatory way.”145 As noted by researchers Howard Fuller and George Mitchell:

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“Former NEA president Robert Chase once worried that ‘industrialstyle, adversarial tactics’ conflicted with education reform. But he wasn’t speaking of the heated, intemperate comments and stern rhetoric that occasionally can be part of the process. He was referring to an almost relentlessly negative aura in discussions between management and union.”146 Most importantly, the industrial or factory model of collective bargaining does not serve students. As Seattle, Washington, superintendent John Stanford noted, “We lost our way when we became more interested in the employment of adults than in the education of children.”147 Scholarly research shows that effective schools are born of flexibility and individual autonomy.148 But collective bargaining in general, and the factory model in particular, focuses primarily on group interests.

“Pattern” Contracts Do Not Meet the Needs of Individual Districts
The nation’s two largest teachers unions, the National Education Association and the American Federation of Teachers, encourage their affiliates, including the IEA and IFT, to use standard or “pattern” contract language in their collective bargaining agreements.149 These pattern agreements do not adequately meet the unique educational needs of individual schools and districts or teachers. For example, what may be an appropriate contract provision in an inner-city Chicago school may not be helpful or right for a rural district in Little Egypt. Moreover, such contracts discourage innovation and experimentation, subjecting creativity to an inefficient, centralized bureaucracy.

Collective Bargaining Politicizes Local School Boards
School board members must swear an oath to faithfully carry out the obligations of their offices to the best of their ability.150 However, the collective bargaining process frequently puts them at odds with their statutory and ethical responsibilities. Ronald Booth sums up the slings and arrows that board members must face when combining labor relations, human relations, and politics: [I]f unions do not get what they want at the bargaining table, board members and superintendents can find themselves in jeopardy. If the politics of impasse or strike doesn’t get the superintendent fired, then sometimes it’s the loss of school spirit that often follows the strike or the teachers’ refusal to maintain The Illinois Policy Institute 37

acceptable relationships with students and parents. Even without the rigors of bargaining, superintendents can seal their own doom through neglect of faculty attitudes. … Today’s teachers not only talk about their problems out of school, they organize campaigns to unseat board members and to remove the superintendent. That leaves school boards and superintendents on the horns of this dilemma: How do they protect the public from the unions without making themselves the sacrificial lambs? Some boards have said, let’s forget the public and give the unions what they want. Other boards have stood fast against the union’s demands and been ousted at the next election, soon followed to the sidelines by their superintendents. Clearly, what is called ‘collective bargaining’ in the private sector is not necessarily the same thing in the public sector.151 Unions routinely recruit pro-union candidates to run for public office. They then use their considerable resources to get these candidates — who often do not reveal their union support while campaigning — elected to school boards. Once elected, these board members give the union clout on both sides of the bargaining table. Tracey Bailey, a former AFT member and 1993 National Teacher of the Year, is a frequent critic of the unions and their political nature, calling them “special interests protecting the status quo” and pillars of “a system that too often rewards mediocrity and incompetence.”152 Mediocrity and incompetence aside, the influence of unions over some elected board members is real. It is not uncommon for 10 percent or less of registered voters to cast ballots in off-cycle elections. In a purely hypothetical example, this would mean that in a district with 59,000 registered voters, fewer than 6,000 actually vote. Considering a district of this size easily has 1,000 or more school employees, and likely another 1,500 or so registered voters that are a part of their households, one can imagine the impact: 42 percent of the voters could have a vested interest in ensuring pro-union board members are elected. Throw in the fear of a recall election, and it is easy to understand the political pressures that plague many school boards in Illinois.

Collective Bargaining Hinders School Management Decision Making
The agreements that arise from collective bargaining establish the respective rights of school management and the employee union. Usually, the more

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language included in an agreement, the more restricted the school board and administrators are in making decisions. Too many school boards have agreed to include in collective bargaining agreements subjects that hamper their ability to make timely and crucial decisions that affect the delivery of educational services. The end result is that administrators and teachers alike become hamstrung by a rigid and cumbersome set of work rules and procedures. Illinois law only mandates bargaining “wages, hours and other conditions of employment and resolution of disputes arising under collective bargaining agreements.”153 But the collective bargaining process itself seems to invite the creation of a whole host of work rules. Frederick Hess and Martin West aptly describe the result of collective bargaining: “The contracts are long, complicated, and replete with both tediously detailed and needlessly ambiguous restrictions on administrators. The 199 collective bargaining agreements for teachers on file at the Bureau of Labor Statistics in January 2005 averaged 105 pages in length. And the topics covered in those pages extend far beyond bread-and-butter questions of salary and benefits; there are dozens of clauses covering a district’s ability to evaluate, transfer, terminate and manage the workload of teachers, all having potentially serious effects on the management of schools and student achievement.”154 Besides being cumbersome, these complex requirements have also led to an ineffective and time-consuming accountability process for many districts. The burdensome contractual requirements for the evaluation, discipline, and discharge of employees have frequently led administrators and school boards to determine that the cost of maintaining high standards of employee professionalism is too high. As a result, ineffectual or even incompetent teachers are left in the classroom, to the great detriment of students. When school boards transfer too much decision-making power into the collective bargaining agreements, they may very well remove the accountability that was the goal of bargaining the provision in the first place. This is a tragedy. Toward the end of his life, Albert Shanker recognized that accountability is essential to providing quality education:

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“The key is that unless there is accountability, we will never get the right system. As long as there are no consequences if kids or adults don’t perform, as long as the discussion is not about education and student outcomes, then we’re playing a game as to who has the power.”155 The same holds true today.

Collective Bargaining and Open Communication
The adversarial and political nature of the collective bargaining process frequently distorts or stifles communication among key groups in a school district. School board members and administrators, fearful of being charged by the union with unfair labor practices, are often wary of speaking openly and directly with teachers. Taxpayers and members of the community are frequently unaware of, or misinformed about, what is negotiated between their elected school boards and the unions. For example, unions (and sometimes district negotiators) often make a concerted effort to communicate only the general employee salary increases and not the total bargained increase in compensation. Consequently, Illinois citizens tend to lack a clear understanding of the true labor costs for their districts, which typically range between 75 and 85 percent of a school district’s budget.156 Moreover, great care must be taken when informing the public or the union will file an unfair labor practice charge, as was the case in 2006, when the school board of the Leslie School District sent a newsletter to citizens explaining the district’s financial status,.157 Poor communication has led analysts to argue that collective bargaining has resulted in too much of the public interest being given away or ignored.158 Along those lines, researchers Howard Fuller and George Mitchell have proposed that bargaining be made public: “We believe bargaining sessions should be public. The specifics of union contracts are one of the least reported, yet most important, aspects of American education. With the general public largely shut out, the result is the uneven playing field. … In Wisconsin, legislation would be required to achieve transparency; currently, if one party requests that the negotiations be private, that prevails. We propose altering those terms so that either party can stipulate that the negotiations be public.”159

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The same is true in Illinois. More public and parental involvement in the bargaining process is key to ensuring that schools continue to deliver highquality education. But while the state of Illinois does permit bargaining to take place publicly, few districts open their negotiations to the entire community. Yet there is hope. Many other states are now requiring collective bargaining to be done in public. William Keane notes that: “The public may tolerate being left out of the process when things are working smoothly. When trouble results, they will be heard. Socalled sunshine laws in Florida and other locations, which require that collective bargaining be carried out in public, are on the books because the public interest can be ignored only so long.”160

Collective Bargaining Fosters Numerous Conflicting Agendas
The collective bargaining process involves more than just the interests of school board members and teachers. Many special interests are often represented at the table, each with its own agenda. The goals of these various interests are seldom the same. The agendas on the union side, for example, may include those of the national union (NEA, AFT, etc.), the state union affiliate (IEA, IFT, etc.), the local union representative, the local bargaining unit, and the bargaining team. The school district, on the other hand, has to consider the agenda of the school board, the superintendent, and the administration — not to mention the needs of the students. The presence of so many conflicting and competing agendas often leads to miscommunication and miscalculation. For example, some school boards hold the superintendent responsible for negotiations, but his or her objectives may not match the board’s and. As a result, he or she may attempt to “buy” labor peace by agreeing to a contract which may not be in the best long-term interest of the public or the students. Sometimes the superintendent and union negotiator exceed their authority during negotiations or give too little time for the board to properly review the terms they have negotiated. These are common ways a school board can find itself saddled with a contract it did not necessarily agree to or want. Teachers can likewise find themselves at odds with their own unions. Teachers in some districts have attempted to alleviate these problems by separating from their state and national affiliate parent unions in favor of bargaining for themselves. The Illinois Policy Institute 41

These locally organized teachers unions have determined that collective bargaining can fail when there is an imbalance of power at the negotiating table because one side (the union) is professionally trained, while the other (the school board) is composed of community lay people.

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Chapter 7: Employee Salaries and Benefits
One of the great challenges school boards face in contract negotiations is how to meet employee demands for increased salaries and benefits. Compensation in public education is viewed only relative to other schools, rather than in the context of the community at large. In other words, educators seem to live in their own economic world, where community, state, and world events are seen as irrelevant. Helping educators to understand they do not live in isolation, and that public backlash is entirely possible if the evolution of salary and benefits do not mirror the community’s, is a noble and necessary function of a board. Complicating the challenge of meeting employee and community expectations is the actual relationship between salaries and benefits, both substantively and strategically. Former teacher and union leader Myron Lieberman has noted that unions encourage increases in benefits over salary increases so that “the salary schedule doesn’t look as high, which helps unions maintain public support.”161 Some union leaders contend that they have already taken salary concessions in order to sustain their benefits.162 Likewise, the argument is sometimes set forth that teachers simply aren’t getting paid enough salary — giving voters the sense that schools are somehow underfunded.163 In any event, when benefits are raised to compensate for perceived lower salaries, teachers are then informed about the success of the union in obtaining a terrific deal on their behalf.164 In reality, Illinois teachers appear to be well-paid in comparison to their peers nationwide. The “Survey and Analysis of Teacher Salary Trends 2004,” released by the AFT, showed that Illinois educators were paid an average of $53,820 in 2004, placing them behind teachers in Connecticut, California, Rhode Island, New York and Michigan as the best compensated in America.165 The AFT study ranked Illinois seventh overall (at $35,114) in average starting teacher pay. A study released by the NEA in 2008 showed that “Twenty-six states and the District of Columbia saw real declines in average teacher salaries over those years, adjusting for inflation.”166 Meanwhile, those same numbers reveal that Illinois teachers ranked fourteenth overall with an actual increase in salary of 3.8 percent, adjusted for inflation, over the ten-year period. Finally, the average teacher salary nationwide for the 2007-08 academic year was $52,308, while Illinois ranked fifth in the nation with an average teacher salary of $60,474.167 Salaries and benefits are by far the largest expenditure in every school district. Health insurance is typically the second-largest item, just behind salaries and wages.168 Nationally, a 2004 Bureau of Labor Statistics survey indicated that The Illinois Policy Institute 43

the fringe benefits cost per teacher amounted to 20.2 percent of total salary, in contrast to 17.0 percent in the private sector.169 With health care costs rising while school district revenue projections remain flat, there are few easy solutions.

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Chapter 8: Substantive Challenges to School Boards
There are a number of substantive challenges that school board members are likely to encounter while negotiating a collective bargaining agreement.

“Just Cause” Discipline and Discharge
With some exceptions, government employees have a constitutionally protected interest in their continued employment that is subject to the due process clause of the Fourteenth Amendment, which provides that no state may take a person’s life, liberty, or property without due process of law.170 The protection in the present circumstance arises from a “property interest” that many government employees, such as tenured teachers, have been deemed by the courts to have in their employment. Accordingly, and unlike in the private sector, these employees may not be disciplined or discharged without cause, for to do so would be to violate the employee’s right to due process. In due process analysis, “just cause” refers to contractually established standards of conduct that an employee must breach before he or she can be disciplined or discharged. Many school boards seem not to understand the implications of the just cause standard, as evidenced by the number of contracts that extend this standard to all employees in the bargaining unit — including probationary teachers still being evaluated for competence. After all, it sounds reasonable that no employee should be disciplined or discharged unless there was both justice and cause. However, the legal standard is not that simple. The just cause standard and the resulting due process proceeding for employee discipline or discharge is a burdensome and time-consuming process for districts that wish to remove ineffective, unproductive, or even criminal teachers from the classroom. Under this standard, a school board can face increased and unplanned expenses in processing employee discipline and discharge matters, including substantial liability for teacher reinstatement or back pay in the event of an unfavorable arbitration or tenure ruling. Compounding the problem of discipline and discharge is the legal obligation of unions to represent their members. As explained by Linda Kaboolian, faculty chair of the Public Sector Labor-Management Program at Harvard University:

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In the evolution of labor relations law, the trade-off for the right to exclusive representation was the Duty to Fair Representation (DFR), a demand made by forces mostly hostile to unions to ensure that the unions treated their members fairly. When it was established, DFR was seen as strengthening democracy within unions; today, it is a legal obligation that seems, in the case of teachers unions, to hamper the rights of children. Every teacher union officer will tell you that 5-8 percent of the members consume 90 percent of their time and the union’s resources. The majority of these are people they would rather not defend.171 To improve the situation, it should first be noted that school boards are legally obligated to provide just cause only to tenured teachers. School boards would therefore gain more flexibility by limiting the just cause standard to include only tenured teachers and providing a less rigid standard for probationary teachers. In addition, the probationary status in the contract should not lessen the probationary period to below what is required by Illinois law, currently four years. 172 By avoiding just cause proceedings where they are not constitutionally required, elected school boards can manage their districts more effectively. Another improvement may be adding peers to the review process. According to Kaboolian, “Teacher unions in some districts (Toledo, Ohio) have bargained a Peer Assistance and Review Program, which, over 25 years, has allowed for the firing of many tenured teachers without long waits and legal costs.”173

Teacher Evaluations
Unions often demand uniformity in the teacher evaluation process — a cookiecutter approach that ignores the differences in goals, objectives, standards, and style between elementary and secondary teaching. This limits management options, and boards should avoid the practice. Collective bargaining agreements in Illinois, with few exceptions, place more restrictions on school administrators’ rights to evaluate their teachers than do any statutory requirements. For example, the way a school conducts an evaluation today may affect how that evaluation can be used in future decision making. If an evaluator fails immediately to identify and address a teacher’s known problems or deficiencies during the course of an evaluation, then that evaluator may be prevented by contract from mentioning these problems or deficiencies during future evaluations or discipline proceedings. 46 Bargaining for Better Schools

The Illinois School Code allows for the dismissal of a tenured teacher for “incompetency, cruelty, negligence, immorality or other sufficient cause” who also fails to satisfactorily complete a one-year remediation plan.174 Additionally, the Code allows for dismissal of tenured teachers who are not qualified to teach or if the “interests of the schools require it.”175 The determinative evaluation process must include “consideration of the teacher’s attendance, planning, and instructional methods, classroom management, where relevant, and competency in the subject matter taught, where relevant.”176 School boards should be careful to ensure that additional factors not mandated by an agreement do not erode their management prerogative. For example, school boards should remove from their collective bargaining agreements any language that provides for grievances over the content of a teacher evaluation. The content of teacher evaluations should be left to the discretion of school administrators, not to arbitrators in lengthy and expensive grievance proceedings. Making evaluation content a matter over which grievances can be filed has negative consequences. School boards wind up placing the judgment of arbitrators, who do not work with or see the teachers being evaluated, above the judgment of school administrators. It is the responsibility of school administrators to observe and evaluate the teachers’ abilities, with a view to the achievement and well-being of students.

Seniority-Based Salary Schedules
Good management also calls for flexibility when it comes to pay. A lack of flexibility limits the incentives management can offer to effect change. Most public school teachers in Illinois are paid according to a seniority-based salary schedule, which awards compensation according to a teacher’s years of experience and level of education.177 The same is true nationally.178 This stands in contrast to most other areas of commerce and industry, where employees working under a “merit-based” schedule receive compensation that is commensurate with their job performance and productivity. It also stands in contrast to a nationwide trend. According to the New York Times, Arizona, Florida, Iowa, New Mexico, and North Carolina currently have programs that reward teachers for classroom performance.179 It was also recently reported that a new Washington, D.C., teachers’ contract would provide a bonus program based on increases in student performance.180

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A procedural flaw in many seniority-based step salary programs is that growth is artificially accelerated early on in a teacher’s career, with a sudden stop at the top of the pay scale. Perhaps more importantly, only 5.5 percent of conventional public school districts use any kind of incentives, such as cash bonuses or salary increases, to reward excellent teaching.181 Indeed, some researchers have concluded that the failure to reward teacher ability is primarily responsible for the decline in the aptitude of women entering the teaching profession.182 Despite the lack of flexibility in teacher compensation based on seniority, many union officials maintain that the fairest system is the seniority schedules that punish the very teachers they represent. One contract provision even bluntly stated, “Under no condition shall a teacher be compensated above his/her appropriate step on the salary schedule.”183 A union leader in Massachusetts stated that merit pay is “inequitable, divisive, and ineffective.”184 Such contract language can serve only to dampen teacher motivation, initiative, and performance, and it leaves students on the losing end. To protect their management prerogative, school boards should remove senioritybased salary schedules from their collective bargaining agreements. In their place, the school board can institute performance-based pay scales that reward outstanding teachers, encourage innovation, and attract the best people for the important job of educating tomorrow’s leaders. In 1993, AFT president Albert Shanker himself proposed performance-based pay, acknowledging that such a system could be developed without being antiunion and its flaws “would be very small compared to what we have now or compared to what you would have without such a system.”185

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Afterword: Final Thoughts for School Board Members and Taxpayers
While this policy primer highlights challenges presented to school boards before, during and after collective bargaining negotiations, and general strategies for mitigation of those situations, a closer review of the resulting agreements is necessary to determine specific recommendations for future negotiations. Recent changes in state law require all public school districts to publish their collective bargaining agreements, which will allow the public a closer review of those contracts. Subsequent editions of this primer will more thoroughly discuss specific problems contained in collective bargaining agreements and how to avoid or alleviate them. Best wishes in your efforts, Collin Hitt Sonya Jones

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Endnotes
1 115 Ill. Comp. Stat. 5/1 (1984). 2 See discussion infra Parts II-V. 3 Frederick M. Hess and Martin R. West, A Better Bargain: Overhauling Teacher Collective Bargaining for the 21st Century (Cambridge, MA: Harvard University, Program on Education Policy & Governance 2006), p. 15, citing Richard D. Kahlenberg, The History of Collective Bargaining Among Teachers, in Jane Hannaway and Andrew Rotherhan, ed., Collective Bargaining in Education: Negotiating Change in Today’s Schools (Cambridge, MA: Harvard Education Press, 2006). 4 George C. Leef, Free Choice for Workers: A History of the Right to Work Movement (Ottawa, IL: Jameson Books 2005), p. 103. 5 U.S. Dept. of Labor, Bureau of Labor Statistics, Union Members in 2008, Table 1, USDL 09-0095, released Jan. 28, 2009, http://www.bls.gov/news.release/pdf/union2. pdf (accessed Sept. 21, 2009). 6 U.S. Dept. of Labor, Bureau of Labor Statistics, Union Members in 2008, USDL 09-0095, released Jan. 28, 2009, http://www.bls.gov/news.release/pdf/union2.pdf (accessed Sept. 21, 2009). 7 U.S. Dept. of Labor, Bureau of Labor Statistics, Union Members in 2008, Table 1, USDL 09-0095, released Jan. 28, 2009, http://www.bls.gov/news.release/pdf/union2. pdf (accessed Sept. 21, 2009). 8 U.S. Dept. of Labor, Bureau of Labor Statistics, Union Members in 2008, Table 5, USDL 09-0095, released Jan. 28, 2009, http://www.bls.gov/news.release/pdf/union2. pdf (accessed Sept. 21, 2009). 9 U.S. Dept. of Labor, Bureau of Labor Statistics, Union Members in 2008, USDL 09-0095, released Jan. 28, 2009, http://www.bls.gov/news.release/pdf/union2.pdf (accessed Sept. 21, 2009). 10 U.S. Dept. of Labor, Bureau of Labor Statistics, Union Members in 2008, USDL 09-0095, released Jan. 28, 2009, http://www.bls.gov/news.release/pdf/union2.pdf (accessed Sept. 21, 2009). 11 U.S. Dept. of Labor, Bureau of Labor Statistics, Union Members in 2008, Table 3, USDL 09-0095, released Jan. 28, 2009, http://www.bls.gov/news.release/pdf/union2. pdf (accessed Sept. 21, 2009). 12 U.S. Dept. of Labor, Bureau of Labor Statistics, Occupational Employment and Wages, Table 1, USDL 09-0457, released May 1, 2009, http://www.bls.gov/news. release/pdf/ocwage.pdf (accessed Oct. 9, 2009). 50 Bargaining for Better Schools

13 Linda Kaboolian, “Table Talk,” Education Next, Summer 2006 (Hoover Institution, 2006), p. 15. 14 Thomas W. Washborne and Michael D. Jahr, A Collective Bargaining Primer for Michigan School Board Members, Mackinac Center for Public Policy, http://www. mackinac.org/archives/2007/s2007-01.pdf, p. 5, 2007. 15 Friedrich A. Hayek, The Constitution of Liberty (Chicago: Henry Regnery Company, Gateway Edition, 1960), p. 267, et seq. 16 Frederick M. Hess, A Better Bargain: Overhauling Teacher Collective Bargaining for the 21st Century (North American Association of Education Negotiators 38th Annual Conference, March 12, 2007), available at http://www.aei.org/speech/25741 (accessed Dec. 18, 2009). 17 Hess and West, A Better Bargain, p. 33, citing Frederick Hess, “School Boards at the Dawn of the 21st Century: Conditions and Challenges of District Governance” (Alexandria, VA: National School Boards Association, 2002). 18 Frederick M. Hess, A Better Bargain: Overhauling Teacher Collective Bargaining for the 21st Century (North American Association of Education Negotiators 38th Annual Conference, Mar. 12, 2007), available at http://www.aei.org/speech/25741 (accessed Dec. 18, 2009). 19 Ronald R. Booth, Collective Bargaining and the Illinois School Board Member, p. 26-7 (3rd 2009). 20 Peoria Sch. Dist. 150, __ PERI ___, Case Nos. 2006-CA-0002-S, et al. (IELRB Opinion and Order, September 20, 2007), citing Cardinal Home Products, Inc., 338 NLRB 1004 (2003); J.R.L. Food Corp. d/b/a Key Food, 336 NLRB 111 (2001). 21 Oak Lawn Cmty. High Sch., Dist. 229, 23 PERI 167, Case No. 2005-CA0080-C (IELRB Opinion and Order, Dec. 14, 2007). 22 Ibid. 23 Ibid. 24 Ibid. 25 Ibid. 26 Ibid. 27 Thomas W. Washborne and Michael D. Jahr, A Collective Bargaining Primer for Michigan School Board Members, Mackinac Center for Public Policy, http://www. mackinac.org/archives/2007/s2007-01.pdf, pp. 18-20, 2007. The Illinois Policy Institute 51

28 115 Ill. Comp. Stat. 5/4 (1984). 29 115 Ill. Comp. Stat. 5/4.5(b). 30 See Professional Agreement between Rockford Education Association, Inc. and The Rockford Board of Education, Rockford Public Schools, District No. 205, available at http://webs.rps205.com/district/files/2D43DB309A014851977E8B06F5B53CBE. pdf (accessed Dec. 17, 2009). 31 Ronald R. Booth, Collective Bargaining and the Illinois School Board Member, p. 31, Table One (3rd 2009). 32 Ibid. 33 115 Ill. Comp. Stat. 5/4.5(a)-(b) (2003). 34 115 Ill. Comp. Stat. 5/4.5(a)(1)-(5) (2003). 35 Frederick M. Hess, A Better Bargain: Overhauling Teacher Collective Bargaining for the 21st Century (North American Association of Education Negotiators 38th Annual Conference, Mar. 12, 2007), available at http://www.aei.org/speech/25741 (accessed Dec. 18, 2009). 36 115 Ill. Comp. Stat. 5/4 (2003). 37 Ronald R. Booth, Collective Bargaining and the Illinois School Board Member, p. 31, Table One (3rd 2009). 38 42 U.S.C. §§ 2000(e)-2(a)(1)&(2). 39 115 Ill. Comp. Stat. 5/10(c) (1984). 40 115 Ill. Comp. Stat. 5/10(c) (1984). 41 Ronald R. Booth, Collective Bargaining and the Illinois School Board Member, p. 36, (3rd 2009). 42 See 115 Ill. Comp. Stat. 5/12(a) (2003). 43 115 Ill. Comp. Stat. 5/12(a) (2003). 44 See State of Illinois, Illinois Education Labor Relations Board, Status of Negotiations Notice (90-45-15 Day Notice), available at http://www.illinois.gov/ elrb/pdf/statneg.pdf (accessed Oct. 8, 2009). 45 115 Ill. Comp. Stat. 5/12(a) (2003). 46 115 Ill. Comp. Stat. 5/12(a) (2003). 47 115 Ill. Comp. Stat. 5/12(a) (2003). 52 Bargaining for Better Schools

48 115 Ill. Comp. Stat. 5/12(a) (2003). 49 115 Ill. Comp. Stat. 5/12(a) (2003). 50 115 Ill. Comp. Stat. 5/12(a) (2003). 51 115 Ill. Comp. Stat. 5/12(a) (2003). 52 115 Ill. Comp. Stat. 5/12(c) (2003). 53 115 Ill. Comp. Stat. 5/12(c) (2003). 54 Ronald R. Booth, Collective Bargaining and the Illinois School Board Member, p. 68 (3rd 2009). 55 115 Ill. Comp. Stat. 5/12(c) (2003). 56 Ronald R. Booth, Collective Bargaining and the Illinois School Board Member, p. 71 (3rd 2009). 57 See 115 Ill. Comp. Stat. 5/13 (1995). 58 State of Illinois, Illinois Education Labor Relations Board, Notice of Intent to Strike, available at http://www.illinois.gov/elrb/pdf/strike.pdf (accessed Oct. 8, 2009). 59 115 Ill. Comp. Stat. 5/13(b) (1995). 60 115 Ill. Comp. Stat. 5/13(b) (1995). 61 115 Ill. Comp. Stat. 5/13(b) (1995). 62 115 Ill. Comp. Stat. 5/13(b) (1995). 63 115 Ill. Comp. Stat. 5/14(a) (1996). 64 115 Ill. Comp. Stat. 5/14(b) (1996). 65 State of Illinois Education Labor Relations Board Annual Report, Fiscal Year 2008, p. 13, available at http://www.illinois.gov/elrb/pdf/AnnualReportFY08.pdf (accessed Nov. 1, 2009). 66 Peoria Sch. Dist. 150, __ PERI ___, Case Nos. 2006-CA-0002-S, et al. (IELRB Opinion and Order, Sept. 20, 2007). 67 Ibid. 68 Oak Lawn Cmty. High Sch., Dist. 229, 23 PERI 167, Case No. 2005-CA0080-C (IELRB Opinion and Order, Dec. 14, 2007). 69 Ibid. The Illinois Policy Institute 53

70 Illinois State Bd. of Educ. (Tropp), __ PERI ___, Case Nos. 2007-CA-0008-C, 2007-CB-0002-C (IELRB Opinion and Order, Sept. 19, 2007). 71 Cairo Sch. Dist. No. 1, 23 PERI 166, Case Nos. 2005-CA-0034-S, 2006-CA0003-S (IELRB Opinion and Order, Dec. 11, 2007). 72 Serv. Employees Int’l Union, Local 73, __ PERI ___, CaseNo. 2007-CB0005-C (IELRB Opinion and Order, Sept. 19, 2007). 73 See ibid. 74 Ibid. 75 115 Ill. Comp. Stat. 5/15 (1984). 76 Moore v. Illinois State Labor Relations Bd., 206 Ill. App. 3d 327, 564, N.E.2d 213, 7 PERI ¶4007 (1990). While the decisions of the Illinois Labor Relations Board are not controlling in cases involving educational employers or employees, the Board is required to consider such decisions. 115 Ill. Comp. Stat. 5/17.1 (2000). 77 115 Ill. Comp. Stat. 5/16(a) (1984). 78 115 Ill. Comp. Stat. 5/16(a) (1984). 79 115 Ill. Comp. Stat. 5/1 (1984). 80 Robert Barkley, letter to the editor, “Teacher Contracts, Student Needs,” Education Week, Dec. 7, 2005, p. 38, quoted in Hess and West, A Better Bargain, p. 6. 81 Ronald R. Booth, Collective Bargaining and the Illinois School Board Member, p. 60, Table Four (3rd 2009). 82 Hess and West, A Better Bargain, p. 14; see also, Ronald R. Booth, Collective Bargaining and the Illinois School Board Member, p. 58-9 (3rd 2009). 83 Hess and West, A Better Bargain, p. 17. 84 Your Dues Dollars, Illinois Education Association, available at http:// illinoiseducationassociation.org/benefits/your-dues-dollars/ (accessed Dec. 20, 2009). 85 Hess and West, A Better Bargain, p. 19, citing National Education Association, “A Vast Cadre of Human Resources,” NEA Today (Washington, D.C.: National Education Association, 2001). 86 National Education Association, NEA’s Mission, Vision and Values, available at http://www.nea.org/home/19583.htm (accessed Sept. 21, 2009). 87 Frederick M. Hess, A Better Bargain: Overhauling Teacher Collective Bargaining for the 21st Century (North American Association of Education Negotiators 38th 54 Bargaining for Better Schools

Annual Conference, Mar. 12, 2007), available at http://www.aei.org/speech/25741 (accessed Dec. 18, 2009). 88 Illinois Education Association, About, available at http:// illinoiseducationassociation.org/inside-iea/about/ (accessed Sept. 21, 2009). 89 See Illinois Education Association, About, available at http:// illinoiseducationassociation.org/inside-iea/about/ (accessed Sept. 21, 2009). 90 Ibid. 91 Ibid. 92 Ibid. 93 Ibid. 94 See 115 Ill. Comp. Stat. 5/7 (2004). 95 115 Ill. Comp. Stat. 5/7 (2004). 96 115 Ill. Comp. Stat. 5/7 (2004). 97 115 Ill. Comp. Stat. 5/7(b) (2004). 98 115 Ill. Comp. Stat. 5/7(b) (2004). 99 115 Ill. Comp. Stat. 5/7(b) (2004). 100 115 Ill. Comp. Stat. 5/7(b) (2004). 101 115 Ill. Comp. Stat. 5/7(b) (2004). 102 115 Ill. Comp. Stat. 5/7(c) (2004). 103 115 Ill. Comp. Stat. 5/7(c)(1) (2004). 104 115 Ill. Comp. Stat. 5/7(c)(2) (2004). 105 115 Ill. Comp. Stat. 5/7(c) (2004). 106 115 Ill. Comp. Stat. 5/7(c) (2004). 107 In the Matter of Flora Comm. Sch. Dist. No. 35 and Unit No. 35 Teaching Assistants Education Association, IEA/NEA, 2007-RM-0001-S, (IELRB Opinion and Order, Oct. 11, 2007), citing Allentown Mack Sales & Service, Inc. v. NLRB, 522 U.S. 359, 367 (1998) and Levitz Furniture Co., 333 NLRB 717 (2001). 108 115 Ill. Comp. Stat. 5/8 (2002). The Illinois Policy Institute 55

109 115 Ill. Comp. Stat. 5/8 (2002). 110 115 Ill. Comp. Stat. 5/8 (2002). 111 115 Ill. Comp. Stat. 5/8 (2002). 112 115 Ill. Comp. Stat. 5/8 (2002). 113 115 Ill. Comp. Stat. 5/8 (2002). 114 115 Ill. Comp. Stat. 5/8 (2002). 115 115 Ill. Comp. Stat. 5/8 (2002). 116 115 Ill. Comp. Stat. 5/8 (2002). 117 115 Ill. Comp. Stat. 5/12(a) (2003). 118 115 Ill. Comp. Stat. 5/12(a) (2003). 119 115 Ill. Comp. Stat. 5/12(a) (2003). 120 115 Ill. Comp. Stat. 5/12(a) (2003). 121 Leef, Free Choice for Workers, p. 19. 122 115 Ill. Comp. Stat. 5/7(d) (2004). 123 115 Ill. Comp. Stat. 5/7(d) (2004). 124 Michigan Association of School Boards Labor Relations Service, The Board of Education and the Collective Bargaining Process: A Practical Guide to Negotiations (Lansing, MI: Michigan Association of School Boards Publication, 2003), p. 16. 125 Ibid. 126 Ibid. 127 Caroline Hoxby, “How Teachers’ Unions Affect Education Production,” The Quarterly Journal of Economics, Aug. 1996, p. 683. 128 Abood v. Detroit Bd. Of Educ, 431 U.S. 209 (1977); Chicago Teachers Local No. 1 v. Hudson, 475 U.S. 292 (1986). 129 42 U.S.C. §§ 2000(e)-2(a)(1)&(2). 130 115 Ill. Comp. Stat. 5/11 (2005). 131 115 Ill. Comp. Stat. 5/11 (2005); 105 ILCS 5/24-21.1.

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132 115 Ill. Comp. Stat. 5/11 (2005). 133 See 115 Ill. Comp. Stat. 5/11 (2005). 134 Communications Workers of America v. Beck, 487 U.S. 735 (1988). 135 Abood, 431 U.S. 209. 136 The Oyez Project, Davenport v. Washington Educ. Ass’n , 551 U.S. 177 (2007), available at http://oyez.org/cases/2000-2009/2006/2006_05_1589 accessed Nov. 1, 2009). 137 115 Ill. Comp. Stat. 5/11 (2005). 138 115 Ill. Comp. Stat. 5/11 (2005). 139 Public Law 93-360; 88 Stat. 395 (1974) (so-called Section 19 rights). 140 EEOC v. Univ. of Detroit, 904 F.2d 331 (6th Cir. 1990). 141 Charles W. Baird, “The Government-Created Right to Work Issue,” The Freeman, Jan./Feb. 2006, p. 47. 142 National Right to Work Legal Defense Foundation, http://www.nrtw.org/rtws. htm (accessed Oct. 27, 2006). 143 Ronald R. Booth, Collective Bargaining and the Illinois School Board Member, p. 16 (3rd 2009). 144 Ibid. 145 Albert Shanker, “Al Shanker Speaks on Unions and Collective Bargaining,” Education Week, May 14, 1997, pp. 35-36. 146 Fuller and Mitchell, “A Culture of Complaint,” p. 21. 147 Damon Darlin, “To whom do our schools belong?” Forbes, Sept. 23, 1996, p. 66. 148 Kathleen Harward, Market-Based Education: A New Model for Schools (Fairfax, VA: Center for Market Processes, 1995), pp. 23-29. 149 MASB Collective Bargaining Practical Guide, p. 15 (“Settlement Patterns”). 150 MCL § 168.310; MCL Const. Art. 11, § 1. 151 Booth, Collective Bargaining, p. 15. 152 Quoted in Sol Stern, “How Teachers’ Unions Handcuff Schools,” City Journal, Manhattan Institute, Spring 1997, p. 35. The Illinois Policy Institute 57

153 115 Ill. Comp. Stat. 5/1 (1984). 154 Hess and West, “Strike Phobia: School boards need to drive a harder bargain,” p. 40. 155 Albert Shanker, “Al Shanker Speaks on Unions and Collective Bargaining,” p. 35. 156 MASB Collective Bargaining Practical Guide, p. 5. This corresponds well to a nonscientific survey of variously sized school districts across the state conducted by La Rae Munk in 1998, which showed that salaries and benefits of all employees consumed an average of 82 percent of total school budgets. 157 Dawn Parker, “Union files labor complaint,” The Jackson Citizen Patriot, Feb. 28, 2006; see also “Union unhappy with District newsletter to residents,” Michigan Education Digest, Mar. 7, 2006, http://www.educationreport.org/pubs/med/article. asp?ID=7639 (accessed Oct. 27, 2006). 158 Robert C. O’Reilly, “Things a Board Ought Never Bargain,” presented at the Annual Meeting of the National School Boards, 1983, p. 2, cited in Munk, Collective Bargaining: Bringing Education to the Table, p. 19, n. 66. 159 Fuller and Mitchell, “A Culture of Complaint,” p. 22. 160 William G. Keane, Win Win or Else: Collective Bargaining in An Age of Public Discontent (Thousand Oaks, CA: Corwin Press, Inc., 1966), p. 25. 161 Munk, Collective Bargaining: Bringing Education to the Table, p. 36. 162 “Republican Legislators Seek to Restrain Health Care Costs,” Michigan Education Digest, Mar. 1, 2005, http://www.educationreport.org/pubs/med/article. asp?ID=6991 (accessed Oct. 27, 2006), citing Booth Newspapers, “Legislators eye teacher benefit costs,” Feb. 25, 2005. 163 Matthew Robinson, “Across the Table from Unions,” Investor’s Business Daily, Mar. 19, 1998, p. 1A. 164 Munk, Collective Bargaining: Bringing Education to the Table, p. 36. 165 American Federation of Teachers, “Survey and Analysis of Teacher Salary Trends 2004,” Jan. 2006, http://www.aft.org/salary/2004/ download/2004AFTSalarySurvey.pdf (accessed Oct. 27, 2006). 166 “Inflation continues to outpace teacher salary growth,” National Education Association, Dec. 18, 2008, available at http://www.nea.org/home/29399.htm (accessed Dec. 20, 2009). 167 “Rankings and Estimates, Rankings of the States 2008 and Estimates of School Statistics 2009,” National Education Association, Dec. 2008, available at http://www. nea.org/assets/docs/09rankings.pdf (accessed Dec. 20, 2009). 58 Bargaining for Better Schools

168 Frank Webster, “Teachers Deserve Good Benefits; Schools Deserve to Know What They Cost,” Viewpoint on Public Issues, No. 98-20, July 6, 1998, Mackinac Center for Public Policy. 169 Hess and West, A Better Bargain, p. 25. It should be noted that some teachers are not covered by the Federal Social Security Act, possibly resulting in increased contributions. 170 U.S. Constitution, Bill of Rights, Article XIV. 171 Linda Kaboolian, “Table Talk,” p. 16. 172 105 ILCS 5/21-2(c)(1)(i). 173 Linda Kaboolian, “Table Talk,” p. 16. 174 105 ILCS 5/10-22.4. 175 Linda Kaboolian, “Table Talk,” p. 16. 176 105 ILCS 5/24A-5. 177 105 ILCS 5/24-8. 178 Hess and West, A Better Bargain, p. 11. 179 Michael Janofsky, “Teacher Merit Pay Tied to Education Gains,” New York Times, Oct. 4, 2005, http://www.nytimes.com/2005/10/04/college/coll04merit.html (accessed Oct. 27, 2006). See also “Massachusetts looking at teacher merit pay,” Michigan Education Digest, Oct. 11, 2005, http://www.educationreport.org/pubs/med/article. asp?ID=7380 (accessed Oct. 27, 2006). 180 V. Dion Haynes, “Bonuses, Relaxed Rules Proposed: Pilot Programs Are Response to Gains By Charter Schools,” Washington Post, June 6, 2006, B4. 181 Michael Prodgursky, “Personnel Policy in Traditional Public, Charter, and Private Schools,” NCSC Review 1, no. 1 (2003), pp. 10-13, cited in Hess and West, A Better Bargain, p. 24. 182 Eric A. Hanushek and Richard R. Pace, “Who Chooses to Teach (and Why)?” Economics of Education Review 14, no. 2 (1995), pp. 101-117, cited in Hess and West, A Better Bargain, p. 24. 183 See, e.g., Deckerville EA Contract, 1997-2000, p. 28. 184 Michael Janofsky, “Teacher Merit Pay Tied to Education Gains,” New York Times, Oct. 4, 2005. 185 Shanker, “Al Shanker Speaks on Unions and Collective Bargaining,” p. 37. The Illinois Policy Institute 59

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