NJSBA: Eliminate ‘Decades of Laws’ that Favor Unions

NJSBA is calling for changes in “decades of laws” that, it contends, give organized labor the upper hand in school district bargaining and often prevent management from making personnel decisions that best meet the needs of students.

“We urge the Administration and the Legislature to act on proposals that will strengthen a local school board's position in collective bargaining and will enable school management to make staffing decisions without unnecessary constraints,” said Marie S. Bilik, NJSBA executive director. “In these difficult financial times, such changes will benefit students and taxpayers.”

To accomplish this goal, NJSBA proposes the following changes in law:

Restore “last best offer. Last best offer” is a concept prevalent in public sector labor law. It permits a public employer to implement its “last best offer” when contract negotiations and statutory impasse resolution procedures are fully exhausted.

In 2003, the Legislature eliminated the concept from New Jersey public school labor negotiations only.  Up to that point, “last best offer” had given local school boards a stronger position in collective bargaining. “First, it served as a counterbalance to union threats of job actions,” Bilik said. “Second, it provided an incentive for unions to bargain in earnest.

“The state teachers union successfully campaigned for its elimination, based on the incorrect premise that ‘last best offer’ had been the cause of teacher strikes,” Bilik noted. In fact, implementation of “last best offer” occurred approximately a dozen times between 1968 and 2003. In comparison, there were 205 teacher strikes during that same period.

The absence of “last best offer” has been a factor in a significant increase in the number of school district negotiations that become deadlocked and go to factfinding, according to NJSBA. Since its elimination, the difference between teacher contract settlements and the cost of living has further widened.

Set strong criteria for state-appointed factfinders. Close to 30 percent (54) of the school districts that entered negotiations for new contracts to begin in 2009-2010 are currently deadlocked.  The situation increases the influence of state-appointed factfinders over contract settlements.

NJSBA believes that, in recommending a settlement, factfinders should place more weight on the state of the economy and the community's ability to pay than on the settlements that exist in other school districts.  That has not always been the case, resulting in factfinders’ recommendations not reflecting what a community can afford.

“Legislation setting economic criteria upon which factfinders must base their recommendations would be a positive step in controlling employment costs in public schools,” said Bilik.

Enact anti-strike law with effective, uniform penalties. The illegality of teacher strikes in New Jersey is based on common law and court decisions that prohibit public employees from withholding services. Therefore, when teachers went on strike in the past, local school boards were able to secure back-to-work orders from Superior Court. If the teachers ignored the back-to-work orders, they were assessed fines or other penalties by the Superior Court judge. However, penalties varied widely and were often waived.

New Jersey needs an unequivocal prohibition against strikes, according to NJSBA.  “A statute that declares teacher strikes illegal, establishes uniform automatic fines and penalties against local unions – including their decertification if they continue the job action – would balance the negotiations process,” said Bilik.

Declare non-strike job actions illegal. Teacher unions frequently implement job actions to pressure the school board and the community during bargaining, according to NJSBA. “Certain job actions, such as refusal to assign homework or write college recommendations, affect students negatively and are not within a teacher's right of free expression.  They can disrupt the education program and may be threatening to the community,” said Bilik.

A law that declares such job actions illegal and establishes fines would balance the strength of unions and school boards in negotiations.

NJSBA is also asking the Legislature to eliminate current statute that, in effect, allows teachers to conduct job actions by refusing to work when school is in session on any of the 13 state holidays, such as Election Day or President’s Day. Enacted more than 40 years ago, this statute prohibits school districts from disciplining teachers who refuse to work on a state holiday, even if schools are open. Local teacher unions have used it to conduct one-day work stoppages, resulting in costs to the school district and disruption to education.

Overhaul seniority and bumping rights “In the current climate, with so many school districts forced to reduce personnel, it’s important that they be able to retain the best staff, but current provisions can prevent that from happening,” said Bilik. For example, under the existing process, a staff member needs only one day of experience in a certain discipline to exercise bumping rights to a position in that area. As a result, a staff member could “bump” an employee with far more experience in that particular field.

“We have to be fair to all employees and, above all else, we have to give priority to the education of children,” said Bilik. “That means changing statute and regulation so that school boards can retain the best qualified staff.”

Reform tenure. New Jersey law grants lifetime tenure to teachers after three years in a position. At that point, their removal is permitted only upon certain conditions, with the burden of proof placed on the board, and only if the school board undertakes complex, lengthy and expensive tenure proceedings.

NJSBA has long sought elimination of lifetime tenure. “Until such a change is possible, NJSBA would support other reforms, such as extending the period before a teacher can gain lifetime tenure from the current three years plus one day to five years, as well as streamlining tenure proceedings,” said Bilik.

“Going forward, the Administration and the Legislature will consider a number of cost-saving measures that involve negotiations, employee benefits reform and changes to school district operations,” concluded Bilik.  "A complete toolkit must also address tenure reform, changes in seniority regulations and the outlawing of certain job actions."

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