War or Peace?

Now comes the endgame in the long drama over the Philadelphia public schools.

This is when the speeches, the marches, the propaganda and the political jockeying recede into the background.  This is when it will get real.

There are two possible scenarios: one I will call Peace, the other War.

Under the Peace scenario, the district and the Philadelphia Federation of Teachers will reach agreement on a new contract sometime in the next few days.  It will be ratified by an obviously reluctant membership and the divisive issues of recent months will be resolved, probably with major concessions being made by the union.

Under the War scenario, management and labor will talk and talk all this week and reach no agreement.

The date to fix in your mind is Monday, September 9, the first day of school for the 136,000 students enrolled in district-run schools.

If agreement on a new contract is not reached before then, the ultimate fate of the schools will likely be lifted out of the hands of the familiar players – Nutter, Hite, Jordan, even Corbett – and into the hands of a more obscure group: Baer, Eakins, Todd, McCaffery, Stevens, Saylor and Castille.

Those are the last names of the seven members of the Pennsylvania Supreme Court. They will become the deciders.

I hope I am wrong, but I think the odds are against the Peace scenario.

The demands made by the district – ranging from salary and benefit cuts to major changes in work rules – have put PFT President Jerry Jordan in an untenable position.  Because of the district’s financial plight, there is little room for give-and-take.

For instance, in his contract talks with city unions, Mayor Nutter was able to offer a sweetener – modest pay raises – in exchange for givebacks on health and welfare and pension benefits.

The district cannot offer sweeteners.  It has said it needs the PFT to put $103 million in the pot towards making up its $304-million deficit.  It wants members to agree to a pay cut averaging 10 percent, plus begin making contributions to defray the cost of health insurance.

On top of that it wants major changes in work rules: a longer school day, a total end to school assignment by seniority, merit-based pay increases and a half dozen other items. Overall, it would mean a major shift of power from labor to management.

This is not a give-and-take offer.  This is a take-and-take offer.

If Jordan presented a contract proposal that made wage-and-work rule concessions on every front his members would kill him.  I mean that metaphorically — but just barely.

In recent days, we have seen the PFT president maneuver for something that would move him out of the corner he is in. He simultaneously offered to make some concessions, while slamming Mayor Nutter in a TV ad.  The object, obviously, was to get Nutter to intervene and try to broker a deal.  I don’t see any evidence that it worked.

Besides, what Jordan has offered in public – essentially a one-year pay freeze, plus having  PFT members start contributing to their health insurance – doesn’t do enough financially.

If members began contributing 10 percent of their salaries towards their health insurance tomorrow (they currently contribute zero), it would save the district only between $10 million and $20 million, depending on which side you are talking to.  This is nowhere close to the $103 million the district needs from this union.

On the other hand, a 10-percent cut in PFT members’ salaries would yield $80 million, which would make a real dent in the $103-million goal.  But, Jordan has declared pay cuts out of the question. The average teacher salary is about $70,000 a year.

And so it goes.

Barring a sudden retreat by the district from its core demands, Jordan’s best hope would be to keep talking and talking and talking with the terms of the old contract still in place. It is the same rope-a-dope tactic used by the city unions for the last three years.

The district cannot let that happen.  If it opens the school year September 9 under the terms of the contract which expired August 31, it will not be able to bring back the workers it laid off and it will not be able to afford the salary-and-benefit package going forward.

In my view, the School Reform Commission will have to move to impose terms and conditions on the PFT. Towards that end, it has in its hands a low-yield nuclear weapon called Act 46.

Act 46 is the law that allowed for a state takeover of the district. It deliberately tilts the power towards the School Reform Commission in the event an old contract expires without a new one in place. Let us count the ways:

To use the exact words of the law, in the absence of a contract, the SRC “shall establish a personnel salary schedule to be used until a new agreement is ratified.” (In other words, it can cut teachers pay and eliminate automatic step ups.)

It can set “a school day for professional employees that is equal to or exceeds the State average…”  (Teachers currently work a 7-hour-four-minute      day.  The district could change it to an eight-hour day.)

It also can set new rules for “staffing patterns and assignments, class schedules, academic calendar, places of instruction, pupil assessment and      teacher preparation time.”  (In effect, this gives the district broad discretion to change a variety of work rules.)

And what happens if PFT members, in the face of these onerous changes decide to strike? Subsection 1 of Act 46 makes a strike Verboten. To underscore that prohibition it states: “The Secretary of Education may suspend the certificate of an employee who violates this subsection.” (Read: teachers who strike will have their teaching certificates lifted, thus preventing them from getting a job in any other public school in the state.)

In sum, Act 46 puts a gun to the head of the union and says: “Agree to a new contract or else…”

If the SRC does impose in some or all of these areas, stand back. The blow back from the union and its supporters will be intense. The rhetoric incendiary. The anger real and hot to the touch.

Naturally, the union will immediately file suit seeking redress against this imposed settlement.  Under normal circumstances, the case would begin locally and move its way up the appellate ladder, which could take a long time.

To expedite matters, Act 46 hands that suit directly to the state Supreme Court, giving it “exclusive jurisdiction to hear any challenge of render a declaratory judgment involving the constitutionality of [the sections] dealing with collective bargaining…”

The union will likely argue that Act 46 tramples on collective bargaining rights and, as such, represents an improper and illegal overreach by the Commonwealth.  It will seek to have the law declared unconstitutional.

It could also argue that the powers granted the SRC under Act 46 were a one-time thing, designed to cover the contract negotiations of 2004 and were not meant as a permanent device.

If all this comes to pass, we will enter into murky waters.  In most labor disputes, the goal is to avoid sending the issues to the courts because – and here I use a technical term – you never know what the hell a judge is going to do.  It is a wild card.  And unions and management do not like wild cards.

Act 46 envisions the Supreme Court making a quick decision. But what decision? Will it declare most of Act 46 null and void, thus handing a major victory to the union?  Will it uphold the constitutionality of Act 46, thus handing the reins of power to the SRC?

Will it do something in between? I cannot say. No one can.

If I were a bookie, though, I would give 3-2 odds the court would uphold Act 46.  This is not based on any inside information, but simply on the fact that the seven-member court tilts 4-3 Republican.

Judges like to say they leave politics outside the door when they put on their robes.

It is to laugh.

Would a Republican-majority court overturn a law passed by a Republican legislature, signed by a Republican governor and currently enforced by another Republican governor who oversees operations of the district via the SRC?

Is it better for the PFT to take a licking today and live to fight another day or possibly face its Waterloo at the hands of the Supremes?

Do Pennsylvania labor unions – or, for that matter, school and government managers – want a potentially precedent-setting ruling on collective bargaining rights?

So many questions, so little time.

Source: AxisPhilly