Why binding arbitration must go: CCEA union wins by stalling

Victor Joecks

NPRI — and many other observers — told you so.

We told you that the collective bargaining system is rigged in favor of public-employee unions.

We told you that binding arbitration and "evergreen" clauses ensure that union contracts almost always get bigger, while avoiding needed reforms.

We told you that the education reforms passed during the 2011 Legislative Session, while an improvement, were so minor that, in practice, they changed nothing in many cases.

And, yesterday, when an unelected, unaccountable arbitrator from California sided with the Clark County Education Association in its dispute over salaries and other issues with the Clark County School District, our predictions were spot on, once again.

It's not pleasant to say, "We told you so." The whole point of analyses and forecasts showing negative outcomes looming is to prevent those negative outcomes. Forewarned, elected officials should change course.

But the CCEA union was able to "win" its contract negotiations simply by running out the clock. Now, according to the district, up to 1,000 teachers must be laid off.

And the union is already using the same strategy for next year's contract negotiations!

For the 2010-11 school years, CCSD and CCEA had agreed to a one-year contract — which meant they needed to negotiate another contract for the 2011-12 school year. Instead of starting from scratch, however, the 2010-11 contract contained an evergreen clause. Article 40 reads: "This agreement … shall continue from year to year thereafter … until a successor agreement is reached."

So when the district asked the union for a salary freeze, the union had every reason not to negotiate — since if there was no agreement, the current contract's mandated pay increases for steps and education, remained in effect.

Here's how CCSD Superintendent Dwight Jones described it at his press conference yesterday.

[O]ne thing that seemed clear to me in the arbitrator's decision was the fact that the union was successful in actually dragging this out until we had two months of school left. And the arbitrator, in his decision, made reference to, you've essentially paid all year, you can pay for two months. Well, the part that has us paying all year is a piece that has the contract move forward whether I can pay or not. …

So, I do plan to work with the legislature and to work with the governor to say, ‘Hampering one side in negotiations, where a contract moves forward regardless, whether you can pay or not, as you can see, plays out in a negative way, I think, on having it be a fair negotiation, in good faith, to say we've got to get a contract done as soon as we can.'

So what I'm asking for in the next contract round is let's not wait until April or May to get an agreement.

But the union has every reason to wait until April or May of 2013: The arbitrator just rewarded such stall tactics.

So the union is again stalling — offering and then withdrawing negotiating dates and pushing future negotiation sessions with CCSD a month or more into the future. NRS 288, Nevada's collective bargaining statue, rewards CCEA's union bosses for doing this, because an impasse can be declared only "after at least four sessions of negotiation."

The longer the union stalls the more likely an arbitrator is to rule — as this one just did — that "the District has already paid out" the salary increases, so they should remain, despite the number of teaching positions that will be eliminated.

Arbitrators are a union's best friend. Unelected and unaccountable, they usually side with union bosses. This happens everywhere.

Earlier this year, an unelected, unaccountable arbitrator rejected a Washoe County School District proposal to reduce teacher pay by 2.5 percent — even though teachers also received increases for steps and education. The arbitrator wrote:

The District proposes that the salary of WEA members be reduced by 2.5% for two consecutive years, for a cumulative reduction of 5%, at a time when no other similarly-situated teacher unit has accepted such a significant reduction. On the contrary, during the same year(s) at issue herein, the evidence establishes that the "prevailing practice" for the units most similarly situated to the WEA unit has been a freeze on salaries…

That's right: A district can't institute a salary decrease, because no other districts have. And those districts can't put in a salary decrease, because no other district has. That is how collective bargaining cripples school districts.

CCEA's arbitration victory also ensures that ineffective teachers will remain in the classroom while some of the best and brightest teachers receive pink slips. That's because the union was able to entirely neuter the section of AB 229 requiring that any reduction in force (RIF) "must not be based solely on the seniority of the teacher."

How? Set up three conditions specifying teachers who would be laid off first that apply to almost no one, then do layoffs based on seniority.

Condition 1: Teachers who volunteer to leave. Yes, really.

Condition 2: Teachers who've received a disciplinary note in the last two contract years, resulting in a five-or-more day suspension. Such a teacher, incidentally, could not be reduced in force if the case were pending appeal or arbitration.

Condition 3: Teachers who have received two or more unsatisfactory evaluations. The unsatisfactory evaluations must occur in different contract years and not within six months of each other. Also, the unsatisfactory evaluations "must be based upon just cause and cannot be pending the grievance process."

The grievance process itself is a complicated series of meetings and appeals that can take up to 80 days to even reach arbitration, with no deadlines specified for scheduling arbitration hearings or submitting documents. Moreover, arbitrators have as long as 30 school days after the close of arbitration or the submission of post-hearing docs, whichever comes later, to reach their decisions.

If that's not enough to protect ineffective teachers, the union also got this into the law: "Unsatisfactory evaluations prior to June 8, 2012, will not be considered for the purposes of this subsection." In other words, 2014 would be the earliest that a teacher could be RIFed for poor performance.

Once the union's pre-conditions that apply to virtually no one are exhausted, all that's left is the union's desired condition: seniority under the union contract.

The CCEA's actions to protect ineffective teachers hurt your children. The American Enterprise Institute has noted that:

Under the current seniority-based system, students lose about two to four months' worth of learning in the year following layoffs; retaining highly effective teachers would preserve that learning.

That doesn't matter to CCEA, however, because protecting ineffective teachers is job No. 1 for union bosses.

So, the consequences are painful, but we told you so. The good news? It's that we've also told you how to fix it.

Victor Joecks is communications director at the Nevada Policy Research Institute. For more visit http://npri.org.

Update (May 6, 2012): Fixed a typo.

Update (May 8, 2012): Condition 2 deals with teachers who have been disciplined in the past two years, not in each of the past two years, as originally stated.