The contract for PS 30’s unionized teachers is 167 pages long, mostly detailing job protections, and what teachers can and cannot be required to do. The contract for Harlem 2’s nonunion teachers is one page long. Those teachers can be fired at will, and are paid 5 to 10 percent more than PS 30 teachers on the other side of the building.
This contrast is presented in Philip K. Howard’s new book “Not Accountable: Rethinking the Constitutionality of Public Employee Unions.” Think first, however, about this:
In the private sector, employee vs. employer bargaining concerns the allocation of profits. A private business facing extortionate union demands can relocate or go out of business. A government can do neither. Collective bargaining presupposes adversarial conflict, but in “negotiations” between government employee unions and government, the unions want government to do what government wants to do: expand, using money from a third party, the citizenry. In 2006, New Jersey’s Democratic governor — management — assured a rally of 10,000 government employees, “We will fight for a fair contract!” Who would fight whom?
Particularly at the state and local levels (e.g., school board elections), public employees wield union power to elect their employers, who reciprocate with contracts containing labyrinthine job protections. A 2011 book reported that over an 18-year period, just about two of Illinois’ 95,000 teachers were dismissed annually for unsatisfactory work. Because California’s 300,000 teachers are unionized, Howard says, two or three a year are terminated for performing poorly. Consider this from a pro-union blog: “We don’t need to swap out all the bad and mediocre teachers for better teachers, any more than we should swap out our struggling students for more advanced students.”
Burdensome grievance procedures discourage federal executive branch officials from filing negative assessment of employees, 99 percent of whom receive the “fully successful” rating. Public sector unions exist to make the world safe for mediocrity by opposing, as Howard says, any reform aimed at introducing merit or other forms of accountability.
Police unions, too, win contracts with thick layers of protections to shield substandard performers from accountability. Of the approximately 2,600 complaints the Minneapolis Police Department received in the decade before the murder of George Floyd, 12 led to discipline, the most severe being a 40-hour suspension. In 2017, a Post report on 37 large cities’ policing found a dismissal rate of 130 officers a year out of 91,000. Seventy percent of San Antonio officers fired for cause from 2006 to 2017 were rehired after contractually mandatory arbitration.
It is quaint that the 1939 Hatch Act bars “political activity” by federal employees, the unionized 25 percent of whom pay dues that fund unions’ political activities. Public sector unions are, Howard says, “a political force unlike any in American history — amassed and entrenched using state power.” These unions spend $1 billion to $3 billion a year influencing political decisions: “No other interest group, no industry, comes close to mobilizing that amount of political money.”
Public employee unions dictate rules for government with a beyond-satire granularity: Why was paint flaking off the top of the walls in New York City schools? Howard: “The union contract only allowed custodians to paint up to ten feet; any higher and the school would have to pay extra to hire a member of the painters’ union to complete the work.”
Elected federal, state and municipal executives lack effective authority. Although the unions have achieved this from officials selected by democratic processes, Howard thinks this fact does not nullify two constitutional defects:
The guarantee clause (every state is guaranteed “a republican form of government”) was written, Howard says, to prevent an aristocracy or other entrenched group from becoming a permanent power beyond the ability of voters to remove it. And the nondelegation doctrine should forbid government from ceding to private entities core decisions about governance.
This doctrine is, however, unenforced, and the Supreme Court has declared the guarantee clause “non-justiciable”: to be enforced by politics, not the judiciary. Howard’s book is, however, a potent summons to politics, which can still bring such unions to heel.