Psba Testimony To Senate Education Committee

TESTIMONY ON PUBLIC HEARING ON TEACHERS’ STRIKES IN PENNSYLVANIA AND IMPACT ON PUBLIC EDUCATION

PRESENTED TO THE PENNSYLVANIA SENATE EDUCATION COMMITTEE

BY JEFFREY T. SULTANIK, ESQUIRE, PRESIDENT OF THE PENNSYLVANIA SCHOOL BOARD SOLICITORS ASSOCIATION

THE GENERAL ASSEMBLY OF PENNSYLVANIA THE PENNSYLVANIA SENATE EDUCATION COMMITTEE Public Hearing on Teachers’ Strikes in Pennsylvania and Impact on Public Education April 22, 2009 – 1:00-4:00 p.m. Hearing Room 1

POSITION OF THE PENNSYLVANIA SCHOOL BOARDS ASSOCIATION

I.

INTRODUCTION. Good afternoon. I am Jeffrey T. Sultanik, Esquire, President of the Pennsylvania School Board

Solicitors Association, a Pennsylvania School Boards Association Board Member, and Chair of the Education Law Group of Fox Rothschild LLP, which is the largest law firm in the Commonwealth of Pennsylvania regularly representing school entities. For the past 30 years, I have been practicing education law in the Commonwealth of Pennsylvania and have negotiated hundreds of teachers’ and support staff contracts and have been involved as chief negotiator in school districts where there have been recent work stoppages, namely, Souderton Area School District (Montgomery County), Downingtown Area School District (Chester County), Pottsgrove School District (Montgomery County), Hatboro-Horsham School District (Montgomery County), West Chester Area School District (Chester County), Colonial School District (Montgomery County), Perkiomen Valley School District (Montgomery County), Penn-Delco School District (Delaware County), Upper Merion Area School District (Montgomery County), Council Rock School District (Bucks County), just to name a few. I have been involved in nearly form of dispute resolution either directly contemplated or arguably contemplated under Act 195, as well as Act 88 of 1992, as amended, including fact finding, non-binding arbitration, binding arbitration (by agreement), super mediation, mediation, win/win negotiations, and the like. I believe I can speak from direct experience as to both the impact of work stoppages in the

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Commonwealth of Pennsylvania, as well as potential improvements to our current legislative framework to mitigate the impact of a system that is still heavily stacked against the interests of the taxpayers, parents, students, administrators, and school boards in this Commonwealth of Pennsylvania. II.

PROBLEMS AND SOLUTIONS IN THE CURRENT BARGAINING CONSTRUCT IN THE COMMONWEALTH OF PENNSYLVANIA. A.

Problem. The union leadership/negotiating team often has specific pecuniary interests that may be

different than a majority of bargaining unit members they represent causing them to take positions that are ultimately not in the best interests of the District and even their own union. This is often manifested in the manner upon which union leaderships receive strike authorization in the Commonwealth of Pennsylvania (voice vote). 1.

Discussion. What appears below is the 2007-2008 salary schedule of a school district in the

Commonwealth of Pennsylvania that went on strike for a 16-day period. 2007-2008 SALARY SCHEDULE Step 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15

Bach 37,323 37,815 38,306 39,000 39,744 40,948 42,152 43,357 44,561 45,765 46,970 48,174 49,378 52,616 70,275

Bach + 12 37,856 38,800 40,221 40,948 42,152 43,357 44,561 45,765 46,970 48,174 49,378 50,583 51,787 55,122 73,203

Bach + 24 39,722 41,303 42,816 43,357 44,561 45,765 46,970 48,174 49,378 50,583 51,787 52,991 54,196 57,627 76,131

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Masters 41,046 42,679 44,243 46,271 48,006 49,740 51,474 53,208 54,943 56,677 58,411 60,146 61,879 66,171 83,451

Mast + 12 43,452 45,183 46,837 48,897 50,703 52,510 54,317 56,123 57,930 59,736 61,543 63,349 65,156 69,653 86,379

Mast + 24 45,860 47,686 49,432 51,306 53,113 54,919 56,726 58,532 60,338 62,144 63,951 65,757 67,564 72,159 89,363

The salary schedule speaks volumes about the demographics of the union and the history of bargaining in the union. If you look at this salary schedule, it is patently obvious that the union had historically negotiated a labor contract that put the most amount of the salary dollars on the maximum step of the salary schedule. The reason why this is obvious is that there is a huge “bump” step between Steps 14 and 15 of the salary schedule, which at points approaches $17,000.00 to $18,000.00. This is evidence that the union leadership had historically diverted large amounts of salary settlement dollars to go to where the union leadership was on the salary schedule or where they perceived most of their votes would be to resolve a labor contract. On its face such a salary schedule is an invitation to union division between the teachers populating the maximum step of the salary schedule and the teachers on the first 14 steps of the salary schedule. Such a situation encourages a shift in union leadership from individuals at the maximum step of the salary schedule to union leadership at earlier steps in the salary schedule (which is what happened in this district). The new union leadership will naturally seek to divert more dollars to the earlier portions of the salary schedule. This internal union conflict is not always democratically expressed to bargaining unit members. In many situations, the union leadership ultimately votes for improvements in their own salaries on the salary schedule to the detriment of other individuals on the salary schedule, which happened over time in this particular district. The use of peer pressure and strong arm tactics to have all bargaining unit members support whoever is the then current union leadership causes these extremes in the salary schedule that eventually become expensive, if not impossible, to fix. 2.

Solution. PSBA’s proposed labor relations bill requires that a labor union in which a

majority of the labor union members are present only vote to go on strike if a majority, through secret ballot, votes to support the strike. This will permit a more reasoned analysis of the union’s position and

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would give those bargaining unit members who would often be disenfranchised by louder union leadership voice to control their own destiny and to avoid a situation where the union leadership is “out for themselves.” (See Section 1113-A of the proposed PSBA Labor Relations bill attached as Exhibit “A”). B.

Problem. Section 1161-A of Act 88 of 1992 allows the Secretary of Education to initiate in the

Court of Common Pleas injunctive proceedings if the school entity cannot provide the period of instruction required under Section 1501 of the Public School Code by June 30. Under those circumstances, it would permit a Court of Common Pleas Judge the implied authority/power to strong arm a school board into a contract settlement, when such Court of Common Pleas Judge has little or no experience in teacher contract compensation issues or collective bargaining under the Public Employe Relations Act or Act 88 of 1992. Such intervention can only complicate a process and creates the real potential for a third party non-taxpayer to dictate to the taxpaying community what their costs for education will be over the term of a successor collective bargaining agreement. 1.

Solution. PSBA’s labor relations bill only allows a court of record to act on a Secretary of

Education injunction request but shall have no authority to require an employer or a union to bargain or meet and discuss wages or other terms and conditions of employment. The court would only have the ministerial authority to issue a labor injunction if warranted under the law. C.

Problem. A school district only has authority to utilize individuals to work during a strike who

have not worked for the school entity in the past twelve months under current Section 11-1172-A of Act 88 of 1992 after a non-binding arbitration panel award is rejected by either the school board or the

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teachers’ union (following a work stoppage) or when a legal strike will prevent the completion of the period of instruction required by Section 1501 by the later of June 15 or the last day of the school district’s scheduled school year. This would be typically during the second strike permitted under Act 88 of 1992. 1.

Discussion. This language is highly problematic for the following reasons: a.

School districts have an obligation to provide through the Pennsylvania

Constitution a thorough and efficient education. Though it is true that the number of student days must meet the statutory minimums even during the course of a work stoppage, the interruption in the educational programs and having teachers “work to rule” disrupts the educational continuity to such an extent that a thorough and efficient education is often impossible. Permitting school entities to hire “strike breakers” during the first strike who have not worked with the district in the past twelve months helps “level the playing field” and also enables a school entity to meet its constitutional obligations. b.

School entities in the Commonwealth of Pennsylvania are also required to

comply with the provisions of the federal Individuals with Disabilities Education Act (IDEA), as well as Pennsylvania regulations implementing the same. School districts are also required to abide by the provisions of the No Child Left Behind Act. The disruption in the educational program caused by a work stoppage substantively interferes with these federal laws. Having qualified strike breakers during the course of a labor stoppage would permit school districts to comply with their IEPs (Individualized Education Plans) for their exceptional students, their Section 504 plans, as well as fulfill the goals and objectives of the No Child Left Behind Act. c.

Act 88 of 1992 does not only cover professional employees’ strikes. It

also covers non-professional employees’ strikes. If, for example, the teacher aides or teacher

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paraprofessionals in a school district engage in a work stoppage, a district may not ultimately close school. Accordingly, under the current law, there can never be strike breakers brought in during the course of a paraprofessional work stoppage. This has a significant implication on the district’s ability to comply with IDEA because paraprofessionals are often the backbone in the implementation of the federally and state-mandated IEPs. A district’s failure to provide the required education pursuant to IDEA can result in a district being liable for compensatory education claims, as well as due process hearings. 2.

Solution. Section 11-1172-A of the PSBA proposed labor relations bill permits an employer

to hire employees for the duration of a strike by its employees and does not only limit it to those employees who had been actively employed by the school entity at any time during the period of the past twelve (12) months. D.

Problem. Unlike what is permitted under the National Labor Relations Act, the Pennsylvania

Public Employe Relations Act, through court interpretation, does not permit a public employer to unilaterally implement its last best offer upon reaching impasse with a labor union. In Philadelphia Housing Authority v. PLRB, 620 A.2d 594 (Pa. Cmwlth. 1992), the Pennsylvania Commonwealth Court articulated the well-established law in the Commonwealth of Pennsylvania that a public employer violates its good faith bargaining obligation by declaring an impasse in negotiations and implementing new wages, hours, and terms and conditions of employment proposed in prior negotiations. As the Court has stated: “It would not serve the legislature’s declared goal of promoting orderly and constructive relationships between public employers and their employees through good faith collective bargaining to allow a public employer to implement its final offer when the employees and the union have not disrupted

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the continuation of public services by striking. Unilateral action by an employer during a period of no contract while employees continue to work serves to polarize the process and would encourage strikes by employees who otherwise may wish to continue working under the terms of the expired agreement while negotiations continue.” Philadelphia Housing Authority v. PLRB, 620 A.2d. at 600, citing St. Joseph’s Hospital v. PLRB, 473 Pa. 101, 372 A.2d. 1069 (1977). What the Commonwealth Court did not understand is that a prolonged period of no labor contract is often as damaging as a work stoppage. “Working to rule” on a labor contract is the situation where teachers only work to the literal contractual language and refuse to volunteer to chaperone field trips, school dances, coach sports, work beyond the regular work day, act as student advisors, and the like. It is often easier for a labor union to engage in this process (which creates substantive parent and student consternation) insisting that the status quo be maintained following the expiration of a labor contract. This is particularly problematic if a district is experiencing double digit growth in the costs of its healthcare program. If a district is experiencing such growth in its health benefit costs, the districts often request higher premium shares from bargaining unit members. Bargaining unit members may be better off in just maintaining the status quo than accepting the board’s increased premium share, even though the premium share increase is coupled with a salary increase. Bargaining unit members who happen to be on the maximum step of the salary schedule and do not normally get the benefit of step movement usually receive the least percentage increase of members covered under the collective bargaining agreement. If there is a large number of bargaining unit members on the maximum step of the salary schedule, they very frequently are unwilling to absorb increased healthcare costs because they would often be in a negative income situation if they would accept the board’s proposal. This causes the union to engage in extended periods of living under the status quo contract, since the individuals on the maximum step of the salary schedule perceive that they are better off with the status quo than the changes asserted by the employer.

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1.

Solution. The ability to implement a final offer is something that has been in place in the

private sector for many years under the National Labor Relations Act. There is no reason why the Public Employe Relations Act should not be amended to allow an employer to implement its final offer. See Section 1128-A of PSBA’s proposed labor relations bill. E.

Problem. Most teachers’ contracts specify the number of work days that the teachers’ union must

work during the course of a school year. As the result of negotiations efforts over the years and the need for further professional development, many teachers’ contracts have extended beyond a 180-day work year. In many counties in Pennsylvania, the length of the contract work year for teachers may be as high as 194 or 195 work days. If a teachers’ union were to engage in a work stoppage in a school district that has 195 work days, the teachers could theoretically lose 15 work days if they are not student calendar days and are professional development days that the district would cancel in the event of a work stoppage. The problem is that the teachers’ unions will then file grievances under the collective bargaining agreement, which theoretically require the 195 work days, and a school district is ultimately forced to bargain with the union about what days would be made up in the event of a work stoppage. It has also created a situation where districts that take an aggressive stance in negotiations put all of their professional days at the end of the work calendar so that if there were to be a work stoppage, it would be possible for the days not to be made up. This is particularly significant, since in many school districts, a day of pay is often equivalent to a half of a percent in salary increase. Accordingly, if teachers could theoretically lose 15 days of pay, they could lose something in the neighborhood of a 7% salary increase during the year in which they engage in a work stoppage.

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1.

Solution. In order to have a balance in the negotiations process, there needs to be a true

penalty imposed upon a teachers’ union that decides to engage in a work stoppage. Unlike private sector days where the days are not ever made up, unions that elect to engage in a strike know that they are going to sustain a substantive financial penalty as the result of engaging in the process. On the other hand, teachers’ unions have historically been able to not lose any pay during the course of the work stoppage and have attempted to force districts, through either the collective bargaining process or through the grievance process, to make up all of the lost days as the result of the work stoppage. There absolutely needs to be financial implications for a teachers’ union engaging in a work stoppage. Section 1133 of the proposed labor relations bill does deal with the imposition of financial penalties on teachers for each day of strike that interrupts the delivery of scheduled educational services. F.

Problem. Further, Section 1133(h) of the proposed PSBA labor relations bill does impose a penalty

not only on the individual bargaining unit member, but on the labor union that recommends and implements the work stoppage. Currently, the association that represents the local bears no direct financial penalty for recommending a work stoppage, which might further the interests of the union that extends beyond the local itself. It is not unusual for a business agent or a PSEA UniServ Representative to recommend a course of action that is not always in the best interest of the local. Accordingly, a financial penalty should be imposed. 1.

Solution. Because the employee organization has a stake in the outcome of the negotiations

that may extend beyond the area of the local, an employee organization that strikes, incites a strike, or participates in strike should be prohibited from using a union dues checkoff privilege for the remainder

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of that calendar year and the subsequent three calendar years. There should be a prohibition for a school entity to collect dues on behalf of the union, and the union has to recognize that there will be consequences for engaging in a work stoppage. A union that recommends a foolish work stoppage (that is often the case) must bear the consequences of dealing with income flow issues when these types of decisions are made. G.

Problem. Historically, the Legislature has considered dealing with the alleged “strike” problem by

recommending the consideration of binding arbitration. Binding arbitration is not only an extreme remedy that cannot be imposed upon school entities, but is, in my opinion and in the opinion of the Pennsylvania School Boards Association and other practitioners in the field, violative of the Pennsylvania Constitution. 1.

Discussion. Article III, Section 31, of the Pennsylvania Constitution, only permits police and

firefighters to have their contract disputes settled through compulsory binding arbitration. The Pennsylvania State Legislature is not permitted to make a law that calls for teacher compulsory binding arbitration. A third party, that has no vested interest in a particular jurisdiction, such as an arbitration panel, a judge, or a fact finder, should not be permitted to impose his/her brand of industrial justice on a particular school entity and determine, in large part, what the taxes on the community will be over the duration of the labor contract. Our Pennsylvania Supreme Court in Erie Firefighters v. Gardner, 406 Pa. 395, 178 A.2d 691 (1962), the Erie Firefighters Union sued the City of Erie in an attempt to compel city council to implement the decision of an arbitration panel in a contract dispute. The Pennsylvania Supreme Court interpreted Article I, Section 20, of the then Pennsylvania Constitution, which stated:

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“The General Assembly shall not delegate to any special commission, private corporation, or association, any power to make, supervise, or interfere with any municipal improvement, money, property, or effects, whether held in trust or otherwise, or to levy taxes or perform any municipal function whatsoever.” The Pennsylvania Supreme Court ultimately ruled that the action of the arbitration panel would be an unauthorized delegation of municipal power. As the result of the Erie Firefighters case, in order to implement Act 111 that covers police and firefighters’ binding arbitration, on November 7, 1967, the Pennsylvania State Constitution was amended. A new Article III, Section 31, was created, which incorporated the language of former Article I, Section 20, and added the following: “Notwithstanding the foregoing limitation or any other provision of the Constitution, the General Assembly may enact laws which provide that the findings of panels or commissions, selected and acting in accordance with law for the adjustment or settlement of grievances or disputes or for collective bargaining between policemen and firemen and their public employers shall be binding upon all parties and shall constitute a mandate to the head of the political subdivision on which the employer or to the appropriate officer of the Commonwealth, if the Commonwealth is the employer, with respect to matters which can be remedied by administrative action, and to the law making body of such political subdivision or of the Commonwealth, with respect to matters which require legislative action, to take the action necessary to carry out such findings.” The bottom line is that such a proposal would be unconstitutional. Beyond the constitutionality, there are serious questions as to whether we should be delegating these types of decisions to outsiders who have no vested interest in the outcome of the proceedings, other than attempting to make both parties happy so that they would be selected again as a neutral arbitrator.

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2.

Solution. Do not consider a binding arbitration response.

Respectfully submitted,

By:_______________________________________ Jeffrey T. Sultanik, Esquire Chair, Education Law Group Fox Rothschild LLP 10 Sentry Parkway, Suite 200 P. O. Box 3001 Blue Bell, PA 19422-3001 610.397.6515 – direct 215.582.0714 – cell 610.397.0450 – fax [email protected]

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