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Binding Arbitration

January 2006

PSBA presented testimony to the Senate Labor and Industry Committee regarding SB 910 that would require the use of binding arbitration to settle school strikes. Representing the association was Timothy M. Allwein, PSBA assistant executive director for governmental and member relations, who spoke in opposition to the bill. He pointed to Act 88 of 1992 as a law that has helped to reduce teacher strikes and produce reasonable settlements. Allwein emphasized that compulsory binding arbitration is not the solution to eliminating strikes, and that it leaves school boards with the responsibility of raising taxes to pay for settlements imposed by others. He was accompanied by Charles N. Sweet Esq., of Sweet Stevens Tucker & Katz, who spoke about some of the legal and technical aspects of the bill, including the point that a change to the state constitution would be required to establish binding arbitration. SB 910 makes no such provision.

The following is the text of Allwein's testimony.

For more than 30 years, Pennsylvania has had the misfortune of leading the nation in the number of teacher strikes. Act 195 of 1970 gave school employees the unfettered right to strike without limit on the frequency or length of work stoppages. The threat of a strike without limits was a strong motivator for school boards to succumb to the demands of unions, and the growth in school employee salaries in the 1970s and 1980s is stark proof of that. From 1975-76 to 1992-93, the average annual salary for professional full-time teachers increased from $12,615 to $41,215, an increase of almost 227%, or an average annual increase of 13.34%. More importantly, the number of students affected by striking school employees from 1970-92 numbered more than 3.7 million, or an average of more than 171,000 students per year.

After years of advocating for a change in the bargaining laws to protect students and to give board members better tools to help prevent strikes, and in the face of an increasing number of strikes, PSBA and others were able to convince the Legislature to pass Act 88 of 1992. This law accomplished several of the association's long-sought goals. It put into place a mandatory timeline for bargaining, allowed either negotiating party to unilaterally initiate fact-finding, allows for two periods of fact-finding, and provides for a nonbinding arbitration process whenever a strike threatens 180 days of instruction by June 15 or the scheduled end of the school year, whichever is later. Because no strikes can occur during this time, the law ensures that all students will receive a full year of school by requiring that striking employees return to the classroom at a given point. Additionally, the law allows the secretary of education to issue an injunction to end a strike that threatens the completion of 180 days of instruction by the end of June, and it outlaws so-called "selective" strikes: work stoppages that were called just hours before the start of the school day. In the final analysis, Act 88 puts greater emphasis on the provision of a full year of school for students than on the demands of striking employees.

After 13-and-a-half years, PSBA believes Act 88 still is working. Professional teacher salaries have grown at an average annual rate of 2.48% since the law's enactment. The average number of students affected by strikes each year has shrunk to less than 33,000, and the number of strikes per year has decreased from almost 37 per year before Act 88 to 12 per year since its enactment. In the last five years, 542 school contracts have been negotiated. In that same time period, there have been 50 school strikes. Less than one contract in 10 ends in a strike. While PSBA does not mean to diminish the effect that these recent strikes have had on communities and students, it is difficult for us to understand why anyone would want to replace a law that clearly has helped reduce the number and duration of strikes, as well as lowered the average increase in professional school employee salaries.

Compulsory binding arbitration is not the solution. This labor practice eliminates accountability and erodes school boards' management prerogatives. It undermines collective bargaining and the relationships that are developed using that process, and it undermines public accountability. Last of all, it is unconstitutional in Pennsylvania. Binding arbitration simply leaves school boards with the responsibility of raising the taxes to pay for settlements imposed by others who are not accountable to voters, the parents or school employees. With all the attention being paid to property taxes and school district spending, it is ironic, to say the least, that we have before us a proposal that would allow a third party to make a decision that has a drastic effect on a school district's budget, and, consequently, the taxpayers in a school district, and which states that the district has to "take whatever action" is necessary to comply with that decision. SB 910 could create the need for higher local taxes to pay for a cost that would be out of the hands of the school board.

Rather than repeal Act 88, we should be building on the positive strides it has allowed in this area. PSBA has, for a number of years, advocated that giving school employees a disincentive to strike might be effective at further reducing the number of strikes. School employees, unlike workers in the private sector, do not suffer any economic consequences for a strike. Because the strike days have to be made up, employees typically come out even in the end. We would propose a penalty of two days' pay for each day of a strike. That way, employees would be paid for the days made up, but still see a net loss of one day's pay for each day of a strike.

Another possible solution would be to help school districts with health care costs. It has become apparent that health benefits and employee contributions for those benefits increasingly have become the central issue of school labor disagreements. PSBA has been involved in discussions with House members and other education organizations on the possibility of initiating a statewide health care benefits plan for school employees that potentially could remove a divisive issue from the bargaining table and thus reduce the number of school strikes.

Still another potential solution is to require members of school employee unions to vote on strike authorizations by secret ballot. Many school employee organizations vote to authorize a strike by a public show of hands at a meeting of the entire bargaining unit. This tactic undermines individuals who would oppose a strike because of their fear of intimidation and retaliation. Finally, the General Assembly simply could outlaw the right to strike and continue to require collective bargaining. From a school board's point of view, this simply would maintain the current course of action as mandated by Act 88 without the threat of a strike. There are currently 24 states that allow school employees to bargain collectively but do not allow school strikes.

The issue of school strikes is one that must be addressed with great care. With back-end referendum looming for school districts, it is imperative that the General Assembly not take any actions that potentially could increase school district costs in this area. We've tried to point out that while the problem is not as pervasive throughout the state as it once was, it still can have dire consequences in communities where school strikes take place. We believe the solutions we have proposed could reduce the number of strikes while maintaining the progress that has been made in reducing increases in salaries. One of our primary fears regarding SB 910 is that the bill would sacrifice the right to strike for higher salaries. That is not an acceptable solution for PSBA.