There are better alternatives. Recent proposals in Vermont concerning changes to collective bargaining in Vermont are both unnecessary and counterproductive. Defanging participants by prohibiting union strikes and board impositions is patently absurd because it strips the collective bargaining process of any means to force the two sides towards each other. Replacing strikes and impositions with binding interest arbitration certainly has the potential to turn down the temperature, and it provides a means of bringing the sides together, but doesn’t get at the systems problem underlying the issue: the collective bargaining process we have in education was never designed for education.
I worry that legislative energy spent on tinkering around the edges of collective bargaining will be wasted. It has the potential to create tremendous controversy without any payoff in terms of improved public policy.
It will distract educators and boards from their primary task of producing great student learning.
The real next step in moving Vermont education forward via collective bargaining is reforming the process itself, reform that cannot be performed by legislative fiat. Even as government leaders consider legalistic solutions to the chronic problem of strikes and near strikes in education, local leaders in Vermont are creating real solutions based on decades of research in alternative conflict management, using proven practices that can save districts and union tens of thousands of dollars, improve school climate, and make collective bargaining agreements into education improvement plans.
The main tool in this effort is Interest Based Bargaining (IBB.) IBB is the term used for methods developed by the Harvard Negotiation Project in the 1980’s. The classic formulation is found in the well known book Getting to Yes by William Ury. IBB needs to be adapted for education, and those adaptations are well represented in the practice of leaders who gather in the Teacher Union Reform Network.
Best of all, Vermont districts and unions do not have to go it alone. The Federal Mediation and Conciliation Service (FMCS) provides free support and training to teams of local leaders who want to create a negotiation process that speaks to the benefit of students. In the Washington Central Supervisory Union we are using FMCS mediators to reform our process. While the work is in its infancy, the early results have been a revelation to participants.
In a traditional adversarial negotiation, the two sides exchange proposals. They take positions and use whatever power or persuasion they can muster to win for their position. The result is massively time consuming and ritualistic, burning up thousands of hours of time of teachers, school board members and administrators, time which would be better spent thinking about students. The process inevitably wends itself to impasse, when the two sides admit that they can’t get any further. With extremely rare exceptions, it then proceeds to mediation and fact finding. Generally, private mediators are used at this phase, at a cost of thousands of dollars both to the board and the union. In addition, mediation and fact finding can generate tens of thousands of dollars in legal bills for boards, and huge amounts of work for VT-NEA professional staff.
In worst cases, the two sides resort to their nuclear options; boards impose and unions strike.
And the result? Usually a handful of contract language tweaks and a little bit of new money on the salary schedule. These tweaks are often fraught with unintended consequences that then need to be fought over in subsequent negotiations. In my experience positional bargaining is an expensive and wasteful way to preserve the status quo.
What does the alternative look like? In Washington Central we contacted FMCS, who provided a team of skilled and experienced Federal mediators to train the board and the union together in the methods of Interest Based Bargaining . Our training took a full Saturday. A mediator attends each session to advise both teams and keep the process on track. There is quite a learning curve, as the deeply ingrained habits of mind and practice of veteran negotiators have to be replaced by new, unfamiliar ways of doing business.
In a typical session now, using IBB, the work looks like this: the sides identify an issue they want to talk about and define the problem to be solved. Then participants identify their underlying interests and determine which interests are shared by both teachers and board. So far, we have discovered that the two sides share most interests.
The next step is mutual brain storming of options to resolve the issue. People are encouraged to contribute anything they think of at this stage, without criticism. Sometimes an option which at first glance looks impractical contains a kernel of something helpful. Only when the collective creativity of the team is exhausted is the list of options judged by a set of mutually agreed upon standards. There are a couple of ways to do this.
The way we chose is a three part filter:
- Is it feasible? For example an option which is illegal is not feasible. Therefore we do not apply the second test.
- Is it beneficial? Does it help solve the problem? For example, a committee to further study the problem may not, in the absence of other action, be beneficial enough to become part of the contract. But if an option passes this test, we move to the third one.
- Is it acceptable? This test asks whether the option under consideration violates any of the interests identified prior to the brainstorming of options.
An option which passes through all three of these filters can become the basis of a tentative agreement. A pair of negotiators from each side would then meet independently to draft contract language.
In many cases, the two sides simply agree that the collective bargaining agreement is the wrong tool to resolve the issue. This is quite normal – in an adversarial proceeding each side can arrive with a list of 20 or more positions, most of which never make it into the contract. Mutual agreement to exclude an issue is a far more efficient and civilized way to get to the same result.
As I said before, this process has been a revelation for the veteran negotiators in the room. One team member likened the old positional bargaining to “the two sides shouting at each other through a spokesperson.” Our new process has a group of sensible people from a variety of backgrounds working together to solve problems. The anger and rancor of the old process has been replaced by mutual respect, and the discovery that boards and teachers share most interests.
I am optimistic that the agreements that result from our IBB process will be superior to our traditional process. After all, a proposal in positional bargaining is simply an option attached to a set of interests. There is no guarantee that it is the best possible option, and positional bargaining provides very little space for the consideration of alternatives. A collective bargaining agreement is a means of creating local education policy. A better process is in the interest of great public policy.
Again, our process is in its infancy, and I write this with some trepidation. It may be that we reach a point, perhaps on economic issues, where positional bargaining is the correct tool, and we revert to that process. This would be normal, and it is the practice in many negotiations across the country. Nonetheless, I am confident that if we reach impasse having given IBB our best shot, the scale of the remaining disagreements will be greatly reduced, and the climate of our talks will allow a more civil result.
My other concern is sustainability: will this process outlast this particular set of leaders and this particular negotiation? The answer here has three parts. The first is how successful this particular group is in arriving at a new agreement. The more successful we are, the more sustainable the process.
The second is whether this process then becomes a template for other supervisory unions, and spreads across Vermont. If IBB becomes a cultural norm and an expectation in Vermont, sustainability becomes moot. This is part of the reason I am writing even as the result hangs in the balance. We need to do more of this work. I am committed to this vision.
Finally, while we can count on the continued support of the Federal government through the free services of FMCS, what supports will our state leaders provide those of us trying to reform process for the sake of great student learning? Or will our state government get distracted in desultory and destructive tinkering with collective bargaining laws, legalistic games that are irrelevant to grassroots reforms available to every community?
We do not need to change collective bargaining laws to use IBB and the FMCS. What is required is that teachers and their unions join with their communities, turn away from the mutually assured destruction of business-as-usual, and find reasons to do that business in new and better ways.