Unions Adapt to New Rules, Even as They Fight to Reverse Them

  • January 12, 2012
  • By Ben Wieder

It took nearly a year for Dale Kleinert to negotiate his first teachers' contract. When Kleinert started his job as schools superintendent in Moscow, Idaho, the talks were already underway. Then, discussions reached an impasse. There were disagreements over pay and health care costs, and the pace slowed further when first an outside mediator and later a fact-finder didn't render a decision. It wasn't until May of 2011 that Kleinert and his union counterparts finally reached an agreement.

Just before then, while Kleinert and the teachers were still stuck, Republican lawmakers in Boise were finishing work on plans to take away much of the leverage that Idaho teachers had long enjoyed in these kinds of negotiations. So for Kleinert's next round of talks with Moscow's teachers, which began pretty much right after the previous ones wrapped up, the rules were very different.

This time, teachers were limited to bargaining over salary and benefits only. So a range of workplace issues, from class sizes to curriculum were off the table. Negotiations had to happen in public meetings rather than backrooms. Most important, there was now a June deadline on negotiations, so there was no room for foot-dragging on either side. Kleinert and the union struck a deal in just a month.

Arguably, Moscow's teachers made out alright in this latest agreement. They got a 1-percent pay raise at a time when tens of thousands of teachers around the country have been laid off and many more have seen their pay frozen. "That's not very much," says Kari Golightly, co-president of the Moscow Education Association, "but it's something." The school district agreed to pay more health care costs for teachers, too, and give them a large chunk of any unanticipated revenue received by the district during the session.

Where the labor battles were

Last year saw an unprecedented number of moves by states to limit the power of public employee unions. The battle isn't over: In 2012, Idaho will vote on whether to repeal the changes.

State What Passed Status
Idaho Restricts collective bargaining for teachers to salary and benefits 3 laws signed into law, but repealing them is on the Nov. ballot 
Indiana Restricts collective bargaining for teachers to salary and benefits Signed into law
Massachusetts In some instances, allows local governments to put workers on state health plan, rather than typically more generous local health plan Signed into law
Michigan Limits scope of collective bargaining for teachers, allows emergency fiscal manager to reject collective bargaining agreement Signed into law
Minnesota Eliminates collective bargaining on teacher salary issues, also restricts rights of teachers to strike Vetoed
Nebraska Narrows role of labor commission to set "prevailing wages" in labor disputes, gives local governments more power in negotiations Signed into law
New Jersey Increases employee pension and health contributions, takes them off the negotiating table for four years Signed into law
Ohio Eliminates collective bargaining over salary, bans strikes and prohibits unions from deducting dues from workers' paychecks Repealed by voters
Oklahoma Repeals law requiring cities above 35,000 to perform collective bargaining with non-uniformed public employees Signed into law
Tennessee Replaces collective bargaining for teachers with "collaborative conferencing" Signed into law
Wisconsin Removes most collective bargaining rights for all public employees and requires unions to seek annual recertification Signed into law

Source: Stateline research

Still, Idaho teachers are upset about how labor issues went down last year at the legislature. They feel that lawmakers, Republican Governor C.L. "Butch" Otter and state superintendent Tom Luna didn't consult with them, not only on the bargaining question, but also on the introduction of performance pay, the elimination of tenure, and a new requirement that high schools offer online classes. Hundreds of teachers protested at the Capitol when these changes passed last year — protests that fueled off of other labor rallies in Wisconsin, Ohio and other states. Now, Idaho teachers are hoping to springboard off labor's November win in Ohio — where voters repealed a controversial bargaining law — with a repeal vote of their own in 2012.

As public-sector unions across the country leave a tumultuous 2011 behind, the situation in Idaho is not unique. On one hand, labor is learning to live by a new set of rules governing collective bargaining and other matters, the product of new laws in nearly a dozen states. On the other hand, labor is fighting back in a number of states, hoping to reverse some of what was lost and in some cases to exact revenge on political opponents.

Most notably, unions are pushing to recall Wisconsin Governor Scott Walker, the Republican who pushed the state's new law restricting collective bargaining. If they succeed in getting a recall on the ballot, Walker, who was elected in the Republican wave of 2010, will have to face voters as early as this June. "There's an energy and a momentum generated about both the Ohio and Wisconsin fights," says Naomi Walker, director of state government relations for the AFL-CIO. "These attacks inspire a level of activism that we haven't seen before."

Election action

Labor's electoral strategy has had mixed success so far. Last year, national and local unions spentmillions of dollars trying to recall enough Republican senators in Wisconsin to flip the GOP-controlled chamber into Democratic hands. They failed in that quest. But in Michigan, the teachers succeeded in a campaign to recall Paul Scott, the Republican chairman of the House Education Committee. And in Ohio, the campaign to repeal Senate Bill 5 won 60 percent of the vote.

In Wisconsin and Ohio, the recall and repeal efforts seem to be heading off more anti-union bills, at least in the short term. The possibility of Walker's recall in Wisconsin has lawmakers there thinking twice about pushing new legislation, says Brett Healy, executive director of the MacIver Institute, a conservative Wisconsin think tank that supports Walker's changes. Healy thinks that concern about the recall will limit activity during the 2012 session. "Everyone's nervous," Healy says. "Politicians are naturally worried about the next election." In Ohio, Republican Governor John Kasich, bruised by the repeal of SB 5, doesn't have any plans to reintroduce it this year. "We heard the voters loud and clear in November," says Kasich spokesman Rob Nichols. 

In Michigan, however, the recall of state Representative Scott hasn't had the same chilling effect, according to Phil Pavlov, chair of the Senate Education Committee. Scott had earned the ire of the Michigan Education Association after successfully championing a package of bills that changed tenure laws and eliminated the policy of basing staffing decisions on seniority. One month after Scott's ouster, Pavlov, a Republican, pushed through a bill that lifted the cap on the number of charter schools allowed in the state, despite the opposition of the MEA. "The fact that Paul Scott was recalled certainly hasn't changed the agenda," he says.

In Idaho, the three bills responsible for education changes are all on the ballot for voter consideration in November. Both unions and supporters of the education overhaul say they anticipate national attention to build, and outside money to flow in, as the election nears. Whether it will be the next Ohio — and whether weakened unions can financially afford another big fight — remains to be seen.

Melissa McGrath, a spokeswoman for Idaho's Department of Education, says there's a crucial difference between Idaho and Ohio: In Idaho, voters will have a full year to assess the education changes before deciding whether or not to keep them. "By November 2012," she says, "the voters in Idaho will have seen the positive impact that these reforms are having on their education system."

Penni Cyr, president of the Idaho Education Association, disagrees. She says there is widespread dissatisfaction with the approach Idaho has taken, and broad support for repealing the three laws in the package. "We received almost 75,000 signatures on each of those," she says, far more than the number required to put the measure on the ballot. "I think Idahoans have spoken by their signatures."

Adapting to the new rules 

As the election dramas unfold in Wisconsin and Idaho, public-sector unions are navigating new realities at the bargaining table. For one thing, membership is down for some unions. The National Education Association lost nearly 120,000 members across the country last year, a 3.6 percent decline, according to the annual report filed with the U.S. Department of Labor. In Wisconsin, low morale in the wake of last year's legislative battles contributed to a 33.6 percent increase in retirements among public employees.

The Tennessee Education Association is also seeing a dip in membership as it adjusts to a new role following legislative changes. "We're in a transition phase now," says Gera Summerford, president of the state's largest teachers union. "We'll continue to do the best we can under the new laws to ensure that teachers are treated fairly." 

Those new laws replace "collective bargaining" with a new practice called "collaborative conferencing." Under the new process, local negotiations can involve a group of seven to 11 teachers meeting with an equal number of representatives from the board of education to reach a "memorandum of understanding" about wages, benefits and working conditions, among other things. The memorandum then goes to the board for approval. The law gives more power to local boards and also allows people other than union officials to negotiate on behalf of teachers.

"Under collective bargaining, there was only one group of teachers that represented all teachers," says Lee Harrell, director of government and labor relations at the Tennessee School Boards Association. "This opens the door for there to be multiple parties." 

In Tennessee, teachers were among the only public workers who still retained collective bargaining rights before the law passed. Harrell says that explains why Tennessee's change didn't get as much outcry as the overhauls in Ohio and Wisconsin did.

In Wisconsin, by contrast, the new law has dramatically changed the rules in what previously had been a very labor-friendly state. More than 90 percent of state employees who previously participated in collective bargaining opted out this year, according to Peter Davis, general counsel for the state's employment relations commission. The new law requires unions to "recertify" every year for participation in collective bargaining, a process that requires a costly annual voting process.

AFSCME's Council 24, which represents more than 20,000 state employees, is one of the unions that has decided to let its collective bargaining status lapse under the new rules. The union is shifting its focus toward providing more legal counsel for its members and representing them in the grievance and arbitration processes, says Martin Beil, the Council's executive director. "We felt our resources were better spent there than to be in permanent recertification mode," he says. And though the union isn't involved in official negotiations with the state anymore, Beil says that some union representatives are still maintaining informal relationships with managers to create departmental rules and handbooks.

In Indiana, another state where labor battles boiled over last year, Tony Bennett, the state superintendent of public instruction, has been speaking of the need to "mend fences" with teachers. But Brenda Pike, executive director of the Indiana State Teachers Association, says Bennett's conciliatory tone hasn't changed teachers' opinions about him: "I don't believe our people could dislike him more," she says. At the local level, however, Pike says talks with school administrators are occurring in good faith. "While a lot of our folks are unhappy with the situation," she says, "there's still a lot of bargaining going on." 

In Indiana, the collective bargaining changes were part of a broader legislative package that also introduced the country's most sweeping school voucher plan and an expansion of charter schools. In many school districts, that created a funny political dynamic between management and labor. While school administrators and teachers generally fell on opposite sides of the collective bargaining issue, they found common cause around opposing many of the other plans.

In Moscow, Idaho's contentious legislation seems to have actually improved relations between the local union and school administration. "It kind of drew us together, actually," says Dawn Fazio, who chairs the school board. Golightly, the local union co-president, says that board members clapped along with labor leaders when they were told during negotiations that the three referendums had gotten thousands more signatures than necessary.

Superintendent Kleinert says that the small raise and benefits were a way for the district to make clear to teachers that it supported them. "We wanted to do something for teachers," says Kleinert. "They'd been beaten up pretty badly during the legislative session." 

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