Public Sector Unions – Part 5
Public sector unions’ adverse effects on accountability and manageability.
As Philip Howard writes in his book Not Accountable: Rethinking the Constitutionality of Public Employee Unions:
Although the extent of the interference varies somewhat by jurisdiction, public employee unions have disabled democratic governance in five principal ways. Public employee unions have: Severed the links of accountability; Rendered government substantially unmanageable with detailed rules and veto powers; Made government unaffordable with opaque benefit packages and compensation manipulations; Changed public policies to the harm of the public good; and, Entrenched these abuses, and made reform practically impossible, through organized political power.
In this essay, we’ll more closely examine the first two of these problems: lack of accountability and unmanageable rules.
As Howard writes:
Public unions have broken the chain of democratic accountability. Police chiefs, school principals, and government supervisors at all levels have lost their ability to make the judgments about who’s doing the job and who’s not … The rule in public union contracts requires that prior complaints and infractions be expunged from the record, in some jurisdictions after a few months, so it’s almost impossible for supervisors to terminate repeat offenders.
Regarding police:
A 2017 Washington Post report on police discipline examined data from thirty-seven large cities and found a dismissal rate of less than two-tenths of 1 percent, or 130 officers per year out of 91,000. The process is so stacked that police chiefs don’t even try for dismissal except in the most outrageous cases, and even then termination or discipline is often overturned by arbitrators … For police, the procedural trip wires typically include: inability to interview the officer about what happened without advance notice; allowing the officer to see other people’s testimony first so he can try to align his story; appeal to arbitrators who have been individually approved by the police union; no disclosure of past misconduct to arbitrators unless it occurred recently; several further levels of appeal, again to approved panels of arbitrators; a requirement to keep all evidence and proceedings private, so that the public has no transparency to how the police department is run; and continuing to receive full pay until all appeals are exhausted. With procedures like these, how could the Minneapolis police chief possibly succeed in proving that Derek Chauvin was too “tightly wound” to be on the beat? For federal civil servants, statutory procedures include a formal process where the supervisor creates a formal “performance improvement plan,” gives the employee a chance to remedy the problems, then another evaluation, and several levels of appeals. The National Treasury Employees Union collective bargaining agreement provides eleven factors the supervisor must consider before taking any disciplinary action. That’s eleven arguments for the union lawyer to make in the required legal hearings. Did the supervisor consider “the consistency of the penalty with those imposed upon other employees for the same or similar offenses”; “the clarity with which the employee was on notice of any rules that were violated”; the “potential for the employee’s rehabilitation”; any “mitigating circumstances … such as unusual job tensions, personality problems”; and so forth.
Regarding public school teachers:
Terry Moe compiled teacher termination data in his 2011 book, Special Interest. In New York City, “eight teachers out of a total teaching force of 55,000 were dismissed for poor performance in 2006–07: a dismissal rate of about one one-hundredth of 1 percent.” Illinois was even worse, with only two teachers out of 95,000 dismissed for poor performance annually over an eighteen-year study period. “Dismissing a tenured teacher is not a process,” as one superintendent put it. “It’s a career.” … Accountability became virtually impossible. Public supervisors could terminate no public employee without enduring a gauntlet of procedures, consuming several years of managerial time, with the burden of proof on supervisors. As a practical matter, except for lewd or criminal conduct, almost no public employee can be dismissed without a massive managerial commitment, and even then the chance of success is low. California, with 300,000 teachers, is able to terminate two or three per year for poor performance.
As Howard summarizes:
Democracy without accountability is a machine operating on low voltage, with all the parts and resources, but without the electricity required to make things work. By blocking the authority to hold public employees accountable, public unions drained much of the human energy from democracy … “If the contract were all about wages and benefits,” [Daniel] DiSalvo observes, “contracts would be about 10 pages long.” Instead, public choices are hamstrung by rules that function as if designed to make government work badly … More federal employees die on the job than are terminated for poor performance … Nor can executive branch officials leave candid critiques in personnel files, at least not without advance notice and an opportunity to challenge the evaluation in a grievance proceeding. The legal process over a file comment can stretch out over months. That’s why over 99 percent of federal employees receive a “fully successful” rating … Selfishness is probably the most corrosive value in any organization. When people get away with not trying hard, and taking sick days when they’re not sick, and gaming the system for higher pensions, the effect on work culture is lethal … Culture is far more important than structure or strategy. “Culture eats strategy,” as the management theorist Peter Drucker put it … [P]ride must be earned to be real. Happy talk about pride doesn’t work if the school is lousy or the department tolerates slackers. Only people who work hard, and see others similarly committed, and deliver services as well as they can, will feel genuine pride … [But] [t]he safe route today is to avoid responsibility, not take responsibility … One rookie teacher I interviewed recounted his surprise when, at the organizing meeting at the beginning of the school year, half the teachers got up and left in the middle of the presentation: the required forty minutes with the principal were up. Pity the teacher who actually wants to help out. A teacher I interviewed from Boston made the mistake of volunteering to supervise a new breakfast program for poor students and found herself dressed down by the union rep: “There is no breakfast duty. In the last contract, it didn’t come up. We didn’t negotiate it. There is no breakfast duty. I don’t care who wants to do it, there is no breakfast duty.”
Voters expect accountability not only for the behavior of individual officials, but also for poor outcomes that follow from bad public policy. But voters have also lost influence over policy decisions that are enshrined in public sector collective bargaining agreements. For example, as the Supreme Court wrote in the 2018 case of Janus v. AFSCME, the provisions teachers union demand in collective bargaining agreement are de factor impositions of particular policies on the jurisdictions in which they govern. In the Janus case, the Supreme Court listed the types of public policies enshrined in collective bargaining agreements:
Should teacher pay be based on seniority, the better to retain experienced teachers? Or should schools adopt merit-pay systems to encourage teachers to get the best results out of their students? Should districts transfer more experienced teachers to the lower performing schools that may have the greatest need for their skills, or should those teachers be allowed to stay where they have put down roots? Should teachers be given tenure protection and, if so, under what conditions? On what grounds and pursuant to what procedures should teachers be subject to discipline or dismissal? How should teacher performance and student progress be measured—by standardized tests or other means?
When policies are imposed by collective bargaining agreements, and not voters or representatives representing voters, democracy is weakened. As Howard writes, “[U]nion controls are far more destructive of democracy because they’re permanent. Public union entrenchment doesn’t change with the new party in power. At least the old spoils system had crude episodic accountability. The union spoils system, by contrast, is encased in legal entitlements and powers.”
As I’ve written previously:
The official positions of teachers unions, which are the same positions reflected in Democratic elected officials’ policies, don’t even reflect the education policy views of rank-and-file Democrats themselves. According to a survey by Education Next, run by two Harvard professors, in contrast to Democratic Party policies, 80% of rank-and-file Democrats who took a position on the issue said they backed the federal requirement that “all students be tested in math and reading each year,” with only 20% disagreeing. (Republicans had similar responses: 74% and 26%, respectively.) As for punishing and rewarding teachers, 57% of Democrats nationwide said they supported “basing part of the salaries of teachers on how much their students learn.” Fifty-nine percent said teacher tenure should be eliminated. Also, 61% of Democrats around the country oppose federal policies that “prevent schools from expelling and suspending black and Hispanic students at higher rates than other students.” (So do 86% of Republicans, and a majority of both African-American and Hispanic respondents who take a side.)
In his foreword to Howard’s book, former Governor of Indiana Mitch Daniels describes the policy results that followed when he exercised the unique authority his state gave to the governor to strike down public sector collective bargaining agreements:
In the days before commencing my one stint in elected office, I struggled with one decision above all the others then pending: whether to strike down Indiana’s long-standing collective bargaining agreement with state employees. Unlike in most jurisdictions, Indiana’s General Assembly had never codified the practice in statute, so the choice was mine to make. I tried to justify postponing the call, or splitting the difference somehow, out of concern that a huge reform agenda on which we had sought office might be jeopardized by a union-led uproar. But ultimately I concluded that the myriad changes we hoped to bring to a broke and broken state government could not be achieved if every step could become the subject of a rules-laden negotiation under a 170-page collective bargaining agreement. I may have faced more difficult decisions but probably never a more consequential one. After eight years with the freedom to recruit and place top talent in key jobs, separate some agencies for priority attention while consolidating or abolishing others, and reward employees for their performance rather than their seniority, government became not just solvent but effective. Tax refunds were received in two weeks or less, citizens were in and out of a motor vehicle license branch in twelve minutes or less, and a national survey found 77 percent confidence in the job Indiana state government was doing.
Next, Howard examines the problem of how collective bargaining agreements have accrued layer upon layer of unmanageable rules governing public institutions:
The granularity of work rules makes even the most rudimentary supervisory tasks difficult. The New York City teachers union contract is “an extraordinary document,” former schools chancellor Joel Klein observed, “running for hundreds of pages, governing who can teach what and when, who can be assigned to hall-monitor or lunchroom duty and who can’t, who has to be given time off to do union work during the school day, and so on.” Terry Moe reflected that “It’s too bad all Americans can’t just sit down and read the collective bargaining contracts their school districts have to live by. Many people, I hazard to guess, would be stunned.” Moe lists the following: Rules that require principals to give advance notice to teachers before visiting their classrooms to evaluate their performance, Rules that prohibit the use of standardized student tests for evaluating teacher performance, Rules that limit the number of parent conferences and other forums in which teachers meet with parents, Rules that give teachers who are union officials time off to perform union duties (which means their classes must be taught by substitutes) …
(Such rules exemplify the sort of diminishing marginal returns on complexity explored in previous essays.)
Researcher Terry Moe asks “Who in their right mind, if they were organizing the schools for the benefit of children would organize them in this way?” To which Howard responds “But schools are not organized to do what’s best for America’s youth,” a result required by teachers union collective bargaining agreements wherever they govern. Indeed, even the New York Times magazine notes in an article on Randi Weingarten, the president of the American Federation of Teachers union, that “Weingarten does in fact represent teachers, not students.”
Howard provides a summary of “the spider’s webs of union mandates that entangle public supervisors” in schools:
In many states, schools are more or less unmanageable. Work rules have removed principals’ authority to decide which teachers are best, or who should be given a different responsibility, or who should be laid off when there’s a budget cut. Those decisions must be made strictly on the basis of seniority. This ensures, Terry Moe found, “that excellent teachers will be automatically fired if they happen to have little seniority and that lousy teachers will be automatically retained if they happen to have lots of seniority.” For example, in 2012, the Sacramento teacher of the year, sixth-grade teacher Michelle Apperson, had to be laid off because she lacked seniority to survive budget cuts. Compensation is also out of the principal’s control. Pay is based on seniority and the number of degrees or certificates a teacher gets—even though studies show that teacher quality is not correlated with either seniority or degrees.
In the next essay in this series, we’ll explore the massive, hidden fiscal liabilities public sector unions place on taxpayers.