Who’s afraid of teacher voice? Of union organizing in charter schools?
Not just the usual suspects on the anti-union, anti-teacher, anti-public education far right. Recent events in New York City provide compelling evidence that the NYC Department of Education of Chancellor Joel Klein and Mayor Mike Bloomberg is a player and a primary participant in this ‘camp of fear’ – and in ways that, at the very least, are skating on the edges of New York State’s Charter Law, which expressly forbids the use of public money to oppose the efforts of charter school teachers to organize and bargain collectively.
Our tale begins last Monday November 9, at a conference held in New York City’s Harvard Club that featured former Bush Secretary of Education Rod Paige as a luncheon speaker. It was there that the conference organizer, the Atlantic Legal Foundation, launched its “Charter School Advocacy Program.” This inaugural session was entitled “Leveling the Playing Field: What New York Charter School Leaders Need to Know About Union Organizing.” It marked the public ‘coming out’ of professional “union avoidance” and union busting law firms in the New York State Charter School field.
ATLANTIC LEGAL FOUNDATION
What is the Atlantic Legal Foundation [ALF]? In its own words, the ALF advocates “limited, effective government, free enterprise, individual liberty, school choice and sound science in the courtroom.” It is a legal arm of the most stridently anti-union corporations and allied far right interest groups. In addition to its work in the charter school field, ALF has played prominent roles in defending major chemical and oil companies against environmental and employee occupational health and safety litigation, in advocating the corporate right to “at will” employment, in which employees can be hired and fired without any due process, and in opposing affirmative action.
The ALF has received its funding from the Sarah Scaife Foundation, the Lynde and Harry Bradley Foundation, the Jacquelin Hume Foundation, the Claude R. Lambe Charitable Foundation, the F. M. Kirby Foundation, the John M. Olin Foundation, and the Phillip M. McKenna Foundation. The Bradley, Hume, Kirby and Olin foundations are major supporters of the anti-union National Right-to-Work Foundation. The McKenna Foundation is a major supporter of the Pennsylvania Right-to-Work organization. The Scaife and Lambe foundations provide support to a range of anti-union and far right causes – the Scaife name gained national notoriety during the Clinton presidency as Scaife owned media printed and Scaife family foundations financially supported some of the more scurrilous attacks of that period, most famously the accusation that the Clintons had White House Counsel Vince Foster murdered.
In its 2004 annual report, ALF boasted how it was successful in helping an unnamed New York charter school “resist a union’s organization petition.” The ALF has also been active on the New Jersey charter school scene. There ALF has fought to reverse the decision of New Jersey Commissioner of Education William Liberia to revoke the charter of the Paterson Charter School for Urban Leadership for deficiencies and irregularities in its fiscal operations, governance and compliance with education laws and regulations. [The Charter School Advocacy Program literature has a blurb praising ALF from the head of the Paterson Charter School.] The ALF has also defended the position of the Red Bank Charter School in litigation that charged it with adopting policies which significantly increased the degree of racial segregation in the public schools of a small Monmouth County borough by recruiting and retaining disproportionate numbers of white students. In New Jersey, the ALF is allied with E-3 [Excellent Education for Everyone], the state’s main voucher advocacy group.
In its Charter School Advocacy Program, the ALF relies almost totally upon the work of the anti-union, management law firm, Jackson, Lewis, Schnitzler & Krupman. Among such law firms, Jackson Lewis has one of the most notorious reputations. A December 14, 2004 New York Times article, “How Do You Drive Out a Union? South Carolina Factory Provides a Textbook Case [$],” describes in some detail a campaign waged at the EnerSys battery factory, under the direction of Jackson Lewis. It began in 1994, when the International Union of Electrical Workers began organizing support in the factory, after workers voiced dismay about “meager pensions, bullying supervisors, production speed-ups and safety problems, especially with the high temperatures and lead used in production.” The company brought in Jackson Lewis to mount an anti-union campaign, but on February 23, 1995, a majority of the workers still voted in a NLRB election to unionize.
After the union election victory, John Craig, the company’s president, told his senior staff “we need to do whatever we’ve got to get rid of this union, regardless of what it may cost us.” For the first two years after the election, the company refused to negotiate and fought the NLRB election results in court, until a federal appeals court ruled the results valid. Once negotiations began, the company said it would lay off workers unless the union agreed to a 10% wage cut, with the cuts offset by a gain-sharing plan. Under pressure from the national union, local union leaders reluctantly agreed. The cuts actually amounted to 16%, and the company manipulated the gain-sharing system to give workers “paltry bonuses.” The union brought these bonuses to an arbitrator, who, after another two years of delays, ruled against the company. But by now many workers became angry with the union, having received no raises for six years, and a union de-certification campaign was begun, illegally financed by company money and illegally advised by a company consultants. The company illegally fired the top seven union officials on such charges as having “lied” in arbitration testimony over the gain-sharing bonuses, illegally withdrew recognition of the union, began another round of layoffs in 2001, and on September 10, 2001, closed down the factory without giving legal notice.
While the NLRB is generally ineffective in responding to such anti-union campaigns, the situation at EnerSys was so egregious that the Board issued a complaint accusing the company of over 120 violations of federal law. Faced with the complaint, EnerSys paid $7.75 million in fines to settle the case, and sued Jackson Lewis, accusing it of legal malpractice and advising it to engage in illegal behavior. Although union local president Gailliard says “the company gave carte blanche to the law firm – the law firm was pretty much running the plant,” and EnerSys claims that Jackson Lewis conducted “a relentless and unlawful campaign to oust the union,” Jackson Lewis insists that it gave good advice and did nothing wrong in South Carolina.
Today, the EnerSys factory is quiet, and most of the workers who once worked there are now unemployed. “The firings, the lack of raises and the plant closing had all sent a powerful message,“ concluded the New York Times. “After all this,” said on the union’s strongest supporters, “I don’t think you could pay the people here to join a union.”
JACKSON LEWIS AT THE ALF CONFERENCE
Senior Jackson Lewis partner Roger S. Kaplan, an author of a number of publications on how to defeat union organizing campaigns, sits on the ALF Advisory Council. Kaplan chaired one of the two panels at the ALF conference, on the legal issues surrounding union organizing, with three colleagues from Jackson Lewis making the presentations.
The first presenter, Jackson Lewis partner Thomas Walsh, also appeared at last March’s annual convention of the New York Charter School Association, where, according to the ALF, he counseled charter school board members on “the practical and legal consequences for charter school administrators when faced with organizing efforts of the UFT.” Walsh warned that unions organize in “stealth mode,” so charter schools must do pre-emptive work, providing “honest information” on such matters as “the costs of unions” and “the problems of collective bargaining” before unions appear. There are anti-employer “quirks” to the NY Charter Law, Walsh complained: charter schools can not spend “public money” to prevent unionization. Consequently, the law does not provide “true choice.”
The second presenter was Jackson Lewis partner Jeffrey Corrandino. Teacher unions say they support charter schools, he announced, but they only support them so long as they are the same as traditional public schools. You will hear rhetoric that we are “union busters,” Corrandino allowed, but it is not true. However, collective bargaining is “cumbersome,” “time consuming,” and “the most inefficient process created by man,” in which you negotiate over “every comma, every period.” Contracts are discussed in the context of “economic warfare” by the union, he maintained, and so you are forced to “trade off” to “the detriment of your school’s mission.”
The third presenter, Jackson Lewis partner Susan Corcoran, focused on what schools should do to avoid unionization in terms of the development of personnel policies and a personnel handbook.
THE ALF/JACKSON LEWIS GUIDE TO PREVENTING UNIONS IN CHARTER SCHOOLS
The conference unveiled the ALF’s “legal guide” to preventing unionization in New York Charter Schools, which was published under the same title as the conference. It was written by Jackson Lewis LLP, with Kaplan and Walsh functioning as the main co-authors. It is replete with the most elementary errors of fact regarding New York Charter School law. One can not get past page 2, for example, before one reads that “up to ten schools are specifically designated by the SUNY Trustees as permanently non-union schools.” In point of fact, the NY Charter School Law does nothing of the sort. The law does have a provision in which teachers and other employees in charter schools which open up with over 250 students automatically have collective bargaining representation. In Section 2854, 3, Paragraph (b-1), ii, the chartering agency is given the power to waive the automatic collective bargaining opening provision for up to 10 schools who open up with over 250 students; however, the teachers and employees in those schools retain the same rights as the teachers in other charter schools to organize and seek collective bargaining representation once they are opened. [We restrict ourselves to one example here because we are not in the business of cleaning up the sloppy work of union busters.]
These errors of basic fact are not entirely unexpected: factual accuracy and a high regard for the truth are not exactly the strong suit of “union avoidance” professionals. But the provision of information, some factual, some not, is not the meat of this pamphlet. Rather, the substance is found in sections like the following check list of signs of union organizing activity that management needs to be looking for:
new employee cliques form; new employee “leaders” emerge; heated discussions erupt among employees; the “rumor mill” becomes very active – and unusually negative in tone; employees start meeting after work…
While the charter school law does contain a section [Section 2855, 1, paragraph (d)] which mandates the termination of a charter for “a practice and pattern of egregious and intentional violations… involving interference with or discrimination against employee rights,” the ALF pamphlet provides advice on how charter school management can circumvent the clear intention of the law. For this provision to become operative, the ALF opines, there must be
 more than one actual improper employer practice;  which indicate a common scheme or design by the employer;  to purposely commit acts which are unlawful; and,  which are of an extreme or outrageous nature.
You could drive a fleet of non-union trucks through that hole, which ALF and Jackson Lewis will gladly defend in court.
THE NYC DEPARTMENT OF EDUCATION – CHARTER SCHOOL – ALF CONNECTION
As offensive as it is, neither the Jackson Lewis pamphlet nor the Jackson Lewis presentations were unforeseen: no one expects that the leopard will change his spots. What was remarkable, however, was who appeared on the other panel at the ALF conference, and what they said. Among the scheduled presenters were Caryl Cohen, a representative of the NYC Department of Education’s charter school arm, the New York City Center for Charter School Excellence, and the founders and leaders of two charter school networks Chancellor Joel Klein has invited to New York City to start charter schools here, Norman Atkins of Uncommon Schools and Dacia Toll of Achievement First. [Becca Weinstein of Achievement First was a last minute stand-in for Toll.] Uncommon Schools runs the Williamsburg Collegiate Charter School and Excellence Charter School of Bedford Stuyvesant, both in Brooklyn, and Achievement First runs the Crown Heights Elementary Charter School, the Crown Heights Middle Charter School and the East New York Elementary Charter School, all in Brooklyn. All of these schools were started in September 2005.
The consensus of this panel was, in the words of Norman Atkins, “good charter schools organize themselves in ways that keep unions out.” Only slightly more circumspect than the Jackson Lewis panel, this group declared as non-negotiable an “at will” employment process, with the right to hire and fire without any due process, the elimination of tenure, and a lengthy school day, week and year. There was considerable frankness about the extraordinary rate of teacher turnover in even the best charter schools, including their own – not surprising when you consider that in some of the charter schools this panel called great, teachers are asked to work ten hour days, six day weeks and years of over eleven months. But there was no willingness to engage in any self-reflection, to ask if that really was the best way to teach children or to develop accomplished teachers, on that or similar subjects. When Cohen commented at the end of the panel that some of the very best charter schools in New York City were conversion charter schools with continuing UFT representation, it was as if her body had suddenly become a medium for a voice from another dimension, straight out of an educational twilight zone.
If there ever was a question over the motivation of Chancellor Klein and Mayor Bloomberg in their desire to start scores of new charter schools in New York City, if there ever was a reasonable doubt that their intention was to create as many non-union public schools in this city as they can, the November 7th conference – and the prominent role played in it by representatives of the DOE’s charter school arm and the charter school networks Klein has invited to New York City – makes it near impossible to sustain such skepticism.
EDUWONK AND THE UFT’S POSITION ON THE NY CHARTER CAP
All of which brings us to the spinmeister of the Klein agenda in the blogosphere, Eduwonk. While Klein’s Center for Charter School Excellence and the charter school networks he has invited into NYC were busy participating in the ALF conference to thwart union organizing in NY charter schools, Eduwonk was on his blog suggesting that there was no good reason for the UFT to be concerned about the right of teachers in New York charter schools to organize. The juxtaposition of these two developments has to be more than a little embarrassing for Eduwonk, and for a moment or two we felt sorry for him – until we remembered that no one forces Eduwonk to take up Klein’s cudgels, again and again, or to do so without making any attempt to discover if there is another side to the question. Not even so much as an e-mail inquiry to us.
The subject matter of Eduwonk’s blog was this Edwize post. We had taken on the NY Post editorial that blamed the UFT for the cap on the number of charter schools in New York. Contrary to the claims of the Post, Randi Weingarten had indicated that the UFT was willing to support an increase in the cap on charter schools in NYC, provided that the law was amended to allow for ‘card check’ union recognition. Behind the scenes, Klein opposed an agreement along those lines, because a pact which guaranteed the right to organize in charter schools would be a pact that worked at cross-purposes to his primary agenda – an entire legion of non-union public schools. The problem that Klein then faced was how to defend this rejection, without admitting openly that the issue at stake is the right for teachers in charter schools to organize themselves into unions.
The Eduwonk blog piece presents the argument Klein has come up with, modeled after the attacks union busting firms like Jackson Lewis and Bush NLRB appointees have mounted on ‘card check’ organizing. But it can only do so with a completely garbled, virtually unrecognizable account of what ‘card check’ union recognition entails.
CARD CHECK: THE REAL STORY
Here is the real story behind ‘card check’ organizing. Today, American unions face thousands of campaigns all over the US of the sort undertaken by Jackson Lewis at EnerSys, with a process clearly stacked against workers who want to organize themselves into unions – NLRB statistics show that companies illegally retaliate against 20,000 workers every year for supporting a union, and Cornell University’s Kate Bronfenbrenner estimates that half of all companies facing unionization illegally threaten to close their plants, and a quarter illegally fire union supporters. The attacks on the right of American workers to organize themselves into unions has become so widespread a scandal that the leading international human rights organization, Human Rights Watch, has issued a scathing report on the subject, Unfair Advantage: Workers’ Freedom of Association in the United States under International Human Rights Standards.
In this context, American unions have had to find new ways to organize. One of those ways is ‘card check,’ a long established voluntary method in the private sector which has been recognized for decades under the National Labor Relations Board. “As the name suggests,” Jonathan Tasini wrote at Tom Paine.COM, “workers literally sign a card that expresses support for the union; then, a neutral third party checks the cards, and, by previous agreement, if a majority indicate their support for the union, the employer recognizes the union and the parties sit down to bargain a contract over wages, benefits, job security and other issues.”
From the point of view of workers and their unions, the virtue of ‘card check’ organizing is that, far from being a open, public election, as Eduwonk and Klein claim, ‘card check’ organizing allows unions to keep the names of union organizers and supporters private and secret until such time as there is sufficient union support for certification. In this way, workers who want to organize can be protected from management retaliation until the union is in place to protect them. As well, this method forestalls the long, exhausting legal appeals and battles that union busting law firms like Jackson Lewis employ to thwart the democratic will of workers to organize – once the cards have been verified, the union is in place. Consequently, union organizers have a much higher rate of success with ‘card check’ than with the election process mandated by NLRB. And that is why union busters, joined by Joel Klein, are so adamantly opposed to ‘card check.’
Contrary to Eduwonk’s and Klein’s claims that the UFT is seeking ‘special rights’ for teachers in charter schools that don’t exist elsewhere, ‘card check’ recognition has been adopted in a number of states. In California and in Illinois, all public employees can use ‘card check’ authorization to unionize. In New Jersey and here in New York, ‘card check’ can be used for private and not-for-profit sector workers not covered by the NLRB, such as teachers in parochial schools. The experience in New York charter schools is that most school managements respond to teachers organizing themselves not with the neutrality that characterizes the public sector, but with the hostility that characterizes the most stridently anti-union corporations in the private sector. ‘Card check’ is essential to guaranteeing the right of teachers in charter schools to organize.
A FINAL WORD ON THE UFT, THE CAP, AND CHARTER SCHOOLS
Eduwonk also complains that Randi’s offer was only for charter schools in New York City, not for the entire state, and this would be a disservice to students in Albany, Buffalo, Rochester and elsewhere. Of course, the UFT represents New York City teachers, so we are in a position to make an agreement only for the city. But the sudden talk about charter schools in the rest of New York is part of a disingenuous ‘switch and bait’ on the part of ‘lifting the cap’ partisans. As we have pointed out here and here in some detail, when the case is being made for the superior academic performance of charter schools by these partisans, the terms of reference are always for New York City. There is a small number of outlier, high performing charter schools inside New York City – three of the four are conversion charter schools, represented by the UFT, and there is no cap for conversions – and they give NYC charter schools an advantage over NYC district schools when one compares performance on state ELA and Math exams. But when all of the charter schools in the state are brought into the picture, it quickly becomes clear that the overwhelmingly preponderance of them fall below the average state performance of district schools on the ELA and Math exams. What would best serve the interests of students in Albany, Buffalo, Rochester and elsewhere, Eduwonk, is a focus on improving the quality of the education provided by charter schools in those cities. Instead, we see open alliances with union busting law firms that have made their name in their charter school field by fighting the closure of low-performing charter schools. And we see the rejection of offers to support raising the cap on NYC charter schools because the UFT demands, as a condition for that support, securing the right of teachers in charter schools to organize themselves into unions.
The original conception of charter schools propounded by Al Shanker was a sound and worthy one. The idea that a public school could be freed of the suffocating micro-management and over-regulation of district bureaucracy, and allowed to dedicate itself in a single-minded way to delivering the highest quality of education to its students, remains a powerful, energizing educational vision. It was out of fidelity to that vision, and out of a need to challenge the ways that the Shanker conception of charter schools has been distorted beyond recognition at the hands of the far right in education, that the UFT began its own charter schools. We are intent to challenge, by our very example, those who deny the importance of accomplished teachers, democratic governance and organized teacher voice to quality education. And we will do so by serving students and communities with the highest academic need. Charter schools were our idea, and we are taking them back. The future of the students we teach, and of the teaching profession to which we have dedicated our lives, demands no less.
Thanks to Ed Muir of the AFT for background research on the ALF.