Art Chance: National Education Association has zero authority to bargain Critical Race Theory in curriculum - Must Read Alaska
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Wednesday, October 27, 2021
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Art Chance: National Education Association has zero authority to bargain Critical Race Theory in curriculum

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By ART CHANCE

1987 wasn’t the happiest year of my life. I got divorced after 16 years of marriage and became a single father of a teenage daughter. I had to give up a job I really liked because I needed a job with less travel so I could take care of my daughter.   

I was looking for a job, and the State was looking for a labor relations analyst 1. I had become a pretty good bureaucrat after three years at a professional level with the federal government. I had a background in labor relations on the union side and had the University of Alaska’s masters/professional level courses in labor law and collective bargaining practice.  

I used the tried and true Alaska method of conning my way into the job and seeing how long I could keep it. My time on the Boards of Laborers’ Local 71 and the Alaska District Council of Laborers and with the Anchorage Central Labor Council gave me a decent 10,000-foot level understanding of State politics and union relations, but while I wouldn’t have admitted it at the time, I didn’t have a clue about actual policy and practice at the State’s Division of Labor Relations, but I’d spent a lot of my life on a stage or behind a lectern, so I was confident that if you hummed a few bars, I could fake it.

I was a stranger in a strange land. The manager who hired me left for a new job in Oregon the day after I started.   My new co-workers were all people who went from school, mostly college, to work for the State or came up through the largest State employee union, the Alaska Public Employees’ Association and moved over to the State.   I came over from the very hierarchal and rule-bound Federal government. My culture was to start a letter or memo with something like; “pursuant to the authority granted me by 25 CFR nnn.nn I have determined that …”   

I quickly learned that the State was a cult of personality; if you were in the right place on the org chart, “because I said so” was the state of the law. It was only the rarest State employee who had a clue about the statutory or regulatory authority that authorized their actions; the State ran on the concept: “We’ve always done it this way.”   But, the State wasn’t doing what it had always done.

In response to the 1985 collapse of world oil prices and the resultant collapse of Alaska’s oil revenue, the Legislature had refused to fund the monetary terms of the third year of its 1984-1986 labor agreements with most of its unions.   Governor Steve Cowper, who’d been elected with heavy public employee union support, had famously announced that “all bets are off.”   

You can tell how much I needed a job in town to have walked into the 10th Floor of the Juneau State Office Building on April 14, 1987.  The State was at war and in court with its unions, the major contracts expired on June 30, 1987, and needed significant economic concessions from those unions, and it didn’t really have a clue how to get those concessions.   

The State’s labor relations policy since collective bargaining for all employees began in 1972 had basically been, “ask the unions what they want.”   

Gov. Jay Hammond got a little feisty with them in ’78 and the Supervisors and ferry unions went on strike.   Getting them back to work was pretty much like “The Ransom of Red Chief” and thirty years later I was trying to take or buy back stuff that the State had given them to settle those strikes.   

The State’s reticence to confront them was aggravated by the fact that the Bill Sheffield Administration had given them all sorts of goodies to try to placate them for the Legislature having refused to fund their promised 3.8% general wage increase for 1986. I spent 20 years being harangued by union reps about how the State owed them 3.8%.

The State had to learn something it had only barely contemplated: Understand its rights and duties under the Public Employment Relations Act (AS 23.40.070-260). When the law was passed in 1972, the State hired a nondescript Seattle arbitrator to analyze the law and brief them about rights and duties. By my time there wasn’t even a copy of his analysis in the Division; State Labor Relations ran by rote.   

I managed to acquire a copy from a departmental personnel office’s files; those people never learned nor forgot anything.   

It was useless, so we had to figure it out ourselves.   The bible of labor relations practice is an American Bar Association book called “The Developing Labor Law.” Its primary focus is private sector labor law and practice, but Alaska’s public sector law is pretty much the pre-1948 National Labor Relations Act with a few concessions to legislative authority. I don’t remember if we even had a copy in the office in those days, but we soon got one.   Since I was the only one in the office who’d ever had a labor law course, I did still have my old textbooks from my UA classes. We didn’t have anyone to ask what we’d always done, because nobody had ever done this before, and that was true not just in Alaska, but in every state that engaged in public sector bargaining.

But, once the private sector had actually challenged labor unions and there was a good body of law on that, and our law mirrored the federal law on fundamental rights and duties.  When I first joined the staff, the plan had already developed to take the APEA units, supervisors and general government, to impasse in bargaining and then impose terms on them, which they could either accept or strike.   

Looking back, the State’s plans were astoundingly naïve.  My boss and I didn’t like each other and my resignation got written a lot of times in those days, but I had a mortgage to pay and a kid to take care of. She spitefully gave me a “training” assignment of writing a briefing memo on the State’s rights and duties at impasse in bargaining and the necessary processes for the employer imposing terms of employment on the union. This, of course, was by design a critique on a decision that had already been made and approved all the way to the Department of Law and the Governor’s Office. I was born in the morning, but not that morning, so I saw the set up, and dived right in.

I pulled no punches in telling them that they couldn’t do what they planned but were stupid for thinking they could and were going to embarrass the Administration. I didn’t learn to tell people they were stupid from the safety of Facebook. There were screams of outrage and calls for my head up and down the org chart but nobody with the courage to do it since they’d already taken the initial steps and the unions had filed for a temporary injunction.  I got to bask in smug self-satisfaction on that fateful Friday afternoon when the judge handed down the TRO at about 4:15 pm and ended all the self-aggrandizing plans. Funny how much the judge’s order read like my memo that caused so much upset. Never heard much about that memo thereafter.

Somewhere in there – there was lots going on that spring – my boss came back to the office after APEA had walked out of bargaining and announced, “I just refused to bargain classification of jobs with APEA; somebody tell me why I did that.”  That spring and summer I laid the groundwork for what became my advocacy and managerial style for the next two decades; I worked hard at being underestimated. I wanted an arrogant and underprepared adversary, and my first significant adversary was my boss and her boss; they were the past and the problem. The upper levels of the State administrative and managerial bureaucracy, the State salary ranges that start with a two, are a clique, a social club, and I hadn’t been invited into the club house. So, without an invitation, you have to make smoke and noise and break things to get in.

The set-up memo about the events that led to the TRO was basic tradecraft; I just did what you were supposed to do and researched the facts and the law, albeit that was a foreign and controversial concept in the State’s cult of personality.   Answering the “… why did I do that” question was my, and I think the State’s first foray into seminal thinking on labor relations policy.   There was nobody to ask what we’d always done, because we’d never done it before.   Heretofore, if the union wanted to talk to you about it, you had to talk to them; we were seeking legal justification for refusing to talk to them.

Under most bargaining laws you have to negotiate with a union about wages, hours, and terms and conditions of employment.   Wages and hours are pretty easy. Lots of walls are lined with shelves of books reporting cases about just what is a term or condition of employment. Alaska’s law has an interesting and unique phrase that exempts “policies expressing the essential functions and purposes of the public employer” from the duty to bargain. We, well, to hell with modesty, I, developed the theory that how the State ranked the value of one job relative to another was an essential function and not subject to bargaining. And, funny thing, the Alaska Supreme Court agreed with us.

An essential part of the Supreme Court’s analysis in this case, styled APEA v. State, was a group of cases under the teacher bargaining law in Title 14, now supplanted by the teachers having been placed under the PERA. As I recall there are three of them called “The Kenai Cases,” in which the teachers sought to define the contours and limits of the right and duty to bargain.  The court articulated what it styled a balancing test to measure how much the issue affected the employee and how much it affected policy; if it more affected the employee, you bargained it, if it more affected policy, you didn’t.  It is a good test and it directly affects the current controversy about Critical Race Theory.

The National Education Association has precisely zero authority to bargain or dictate the curriculum of a school.   They are showing their true colors as a leftist political party disguising itself as a labor union.  No public employer has any duty to bargain with the NEA about what teachers teach. If you have a School Board bargaining with its union about curriculum, it is either stupid, owned by the union, or both. 

Americans are being fed union propaganda.  If a state says you can’t teach CRT in state law, and a teacher decides to defy that law, the teacher gets fired, and his/her only hope is getting before a judge that wants an appointment to a higher court from a Democrat; that’s really the way it works.

Art Chance is a retired Director of Labor Relations for the State of Alaska, formerly of Juneau and now living in Anchorage. He is the author of the book, “Red on Blue, Establishing a Republican Governance,” available at Amazon. 

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  • After the long, dry read, your last paragraph is right on!. Except that it is not ‘union propaganda’, it is brazen Marxist propaganda designed to destroy our nation and our way of life. Fire them all. But at the rate that they are self destructing the schools and driving responsible parents to other means of education, just let them die on the vine and be forced to learn how to do a real job twelve months out of the year for a real employer with real demands.

    • Unions came from Marxist propaganda to begin with. Unions are cancer. Especially public sector unions.

  • Nothing Art says or writes is dull. One-of-a-kind Art Chance, they don’t make men like him anymore. We always appreciate your well founded opinions, don’t ever stop writing!

  • “………If a state says you can’t teach CRT in state law, and a teacher decides to defy that law, the teacher gets fired, and his/her only hope is getting before a judge that wants an appointment to a higher court from a Democrat………”
    There it is. In fact, it would be worth it to pass such a law just to fire every one of the teachers who taught it anyway. That alone would be a good goal.

  • Amen!

  • I love the inside baseball stuff Art. This is a completely foreign world, and I like learning about it.

  • Art,
    Your writings and common sense analysis is always a breath of fresh air and on point. It just shows how far to the port we have strayed.
    Please keep up the good work.

  • @AK – There isn’t a lot of difference between public sector union propaganda and brazen communist propaganda. By the early ’90s that leather-bound copy of “The Developing Labor Law” was gathering dust and had been replaced by well-thumbed copies of Saul Alinsky’s “Rules For Radicals.”

  • Art states, “The National Education Association has precisely zero authority to bargain or dictate the curriculum of a school. ” Well, maybe not. But it begs the question, “Who does?”
    In matter of public health and medicine, whom do you want to make the decisions? An MD, a medical researcher, a politician. We live in a era where knowledge and wisdom and curiosity are denigrated at the expense of promoting dubious values. When you are sick, do you go to a Veterinarian. When your dog is sick, do you go to an MD, or a homeopath, or a Chiropractor? To whom do you refer when dealing with a question that could be a matter of life and death?

    People who have dedicated their lives to education are the experts in the field. Politicians and their minions, i.e. bureaucrats, are not the experts. The smart politicians try to figure out the best courses of action, such as a vaccine for a dangerous virus, a scheme that has saved millions over the decades (when is the last time you worried about polio or smallpox?), and the dumb ones come up with fake solutions that sound like they might be right but that appeal to a certain desire we all have to believe whatever it is sounds good is right and gives us a false but reassuring sense of safety.
    Let education be the purview of educational professionals. Those would be teachers who have chosen and studied that profession for many years. To say educational professionals have “zero authority to bargain or dictate the curriculum of a school,” again, begs the question, “Who does?” Think very carefully before you answer that question, because if we choose unwisely, we could be living with the consequences of those choices for a long, dangerous, dark time.

    • In our home we choose our values. We allowed public schools to provide curriculum materials and carefully refuted false secular beliefs. I found the Anchorage education experts shunting my son away from enriched materials and into curriculum materials for remedial classes held in in prisons. I had to do combat to get learning materials they presented to all white kids in Anchorage. It was not a joyful learning experience. I did always prevail however with God’s help.

    • “Let education be the purview of educational professionals.” Would that be the same education professionals that have landed Alaska students near the bottom of the nations educational standards? Those professionals? Sorry, but the drive to teach CRT is more about obfuscating the sorry performance of Alaskas “education professionals” than anything else. Unlike reading and math, it’s hard to quantify success/failure in teaching Marxist indoctrination like CRT. As a parent its my responsibility to teach my kids about racism and the other various ism’s. Educators should stick to foundational aspects of education such as reading, writing, math etc.

      • The reasons Alaska students have landed near the bottom of national educational standards are many and complex. It begs the question, “Who sets the standards and how are they determined.” The bane of learning and education is tendentious politics. When standards are set to satisfy a political standard, as they were under “No Child Left Behind,” they end up undermining the basis for learning, and thus, the bases of education. What we ended up with was “All Children Left Behind” because the emphasis was on standardized testing and rote memorization rather that critic thinking and problem solving. Alaska students ended up at the bottom of that educational barrel, but it didn’t have anything to do with the kids themselves. It had to do with what the teachers were required to do to try to meet the lily white standards imposed by the tests rather than teaching children how to learn.
        These problems are solvable. Finland has done so spectacularly. Norway, which uses a system more like the one we have here, not as much. The Finns are not necessarily smarter than the Norwegians, but they have a more effective educational system. In Finland, the educational system is run by true educational professionals, not politicians or people without any teaching knowledge who are making decisions based on inadequate information, either by ignorance or design. In Finland, the teachers have developed a system that makes it possible for every student to learn at his or her own level. That’s not Marxist or Woke or whatever else you want to call it, but it is effective.

    • The school board makes that decision. The school board is an elected body. Or the state legislature, an elected body, can also weigh into those decisions. Teachers & educators can weigh in too. But they are not elected. Our elected representatives make these calls…with input from whomever. But unelected educators do not have Carte Blanche to set curriculum or policy.

  • Bust the unions, period. Politics is not their sphere. “Terms and conditions” is a buzz phrase for the union running the business or govt their members work for. Though they have free speech rights, politically they misrepresent most of their members and defy them to change the unions’ political direction. So let’s fight back and “cancel” the unions. I am a union member who appreciates collective bargaining and structured discipline and grievance – but how I vote and what political views I hold are none of their *@#!! business. I refuse to allow any of my dues to be used for political purposes.

    • You are mislead if you believe you can “refuse to allow any of my dues to be used for political purposes”. How are you doing that? Please explain. In the Anchorage SD each teacher pays more than $1,100 per year into the union. They have no clue how their dues are being used. Many don’t really care. The teachers union uses intimidation to force its way on employees. AND why hasn’t the Supreme Court Janus decision been implemented in Alaska? The state is violating the law.

    • Collective bargaining or parasites demanding more from the host? Your labor only has so much value, make your labor more valuable and do not steal using threats. Unions are immoral and the fact that you defend holding a business hostage because you want more money, a common thief. Disgusting, you should actually be ashamed. Normal businesses also have discipline and grievances, sometimes yours are not valid. OSHA exists, so safety is taken care of. Now you just complain because you think you deserve more from those that actually deserve more than you.

  • No matter what Art writes about, it’s enlightening … and there’s plenty of dark humor if you know how to see it.

  • There is only one solution to the education problem; it is described by only one word. VOUCHERS!

  • @ Greg R – The National Extortion, excuse me, Education Association is not a think tank or even a professional association; it is a labor union. As such it has certain legal rights in about half of the states. In the states that don’t countenance public sector collective bargaining it tries to style itself as a professional group working “for the children,” but even there what it is really working for is money and power for the NEA.

    The people whose job it is to make policy decisions about curriculum and practices are school boards, state legislatures, governors and the administrators of departments of education and of school districts. In half the states NEA or AFT can compel an employer to bargain with them over “wages, hours, and terms and conditions of employment.” If an employer policy has an effect on wages, hours, or terms and conditions, the so-called mandatory subjects, the union can demand bargaining on the effect. Anything else is either a permissive subject of bargaining or an illegal subject of bargaining, though I believe that in public sector bargaining a subject is either mandatory or illegal. The private sector doctrine of permissive bargaining allows feckless or corrupted public sector managers to give a union authority over all sorts of things that are frankly none of the union’s business.

    • Sorry Art, the NEA came about to defend teachers from the school boards, state legislatures, governors, and administrators of departments, etc., etc., who were determined to impose their wishes and demands on a profession in which they had limited or no experience or knowledge. It was a survival strategy for teachers. As a lifelong bureaucrat you should recognize that, but that’s easy to forget if your paycheck depends on it.

      • My gg/grandfather, my g/grandmother, my grandmother, and my sister were teachers; I know a bit about teachers and teaching. Fortunately the State didn’t have to deal much with the NEA; we only had Edgecombe, the Correspondence School while it was around; they were a Grade A PITA, and AVTEC, also a Grade A PITA. The only time I ever took NEA seriously as an organization was on Election Day; they weren’t much of a union but they were very good at getting their mind-numbed robots out to vote for Democrats.

        I had this conversation with State employees and union reps so many times it is simply tiresome; if you want to make policy, put your name on a ballot or get yourself appointed to a managerial position. If you’re not an elected or appointed official, you do what you’re damned well told. If you have an opinion, you can express it at the ballot box.

        I endured getting four kids through Alaska public schools. The arrogance of both teachers, administrators, and union bought board members towards parents was simply astounding. We’re supposed to just turn our children over to the “educational professionals” because we’re just not competent to raise our children; we just didn’t have the right lesson plans for producing leftist mymidons.

        Teachers don’t need protection. Once they’re tenured not even blood on the floor or sex tapes will guarantee that they get fired or meaningfully disciplined. I was a part of firing a couple successfully, but then the government of the State isn’t a wholly-owned subsidiary of the NEA like most school boards.

  • Great article, Art. But one thing: The teachers unions don’t care about the law and the AK Constitution. Neither does the Anchorage School Board. There is only ONE way to fix this broken K12 system–defund it. How? Parents, keep your kids out of school during the 3 week student count period. The State funds school districts on the number of students counted during this period. What to do with your kids? Take them on field trips in AK, go to KhanAcademy.org for lessons in math, reading, writing, history, etc. Start learning pods with friends, neighbors, other students’ parents. They are YOUR kids, not the school districts; not the teachers unions. Be courageous and take that step to protect your kids and this Nation. Thanks.

    • They have that covered; they use last year’s count.

  • Thanks Art! I appreciate you calling out and explaining that “elephant” in the room. We have to wake the public up about our education system. We can do better!

  • Absolutely love Art’s brand of writing!

  • Right on! Thank you, Art.

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