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.
JACKSON LEWIS
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 [the United Federation of Teachers].” 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
“[1] more than one actual improper employer practice; [2] which indicate a common scheme or design by the employer; [3] to purposely commit acts which are unlawful; and, [4] 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.
Leo Casey works for the United Federation of Teachers. A longer version of this article appeared on Edwize, the UFT blog, on Nov. 17, 2005. Thanks to Ed Muir of the AFT for background research on the ALF.
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