COMPULSORY BINDING ARBITRATION FOR TEACHERS IS UNCONSTITUTIONAL
Under Article 3 Section 31 of the current Pennsylvania Constitution only police and firefighters can have their contract disputes settled by compulsory binding arbitration. State legislators are not allowed to make a law that calls for teacher compulsory binding arbitration without first stating they want to amend the Constitution. To suggest otherwise would be to violate heir sworn oath of office to uphold and defend the Constitution.
Step-by-step explanation
Prior to 1967 Article 3 Section 20 of the Pennsylvania Constitution read in its entirety:
"The General Assembly shall not delegate to any special commission, private corporation or association, any power to make, supervise or interfere with any municipal improvement, money, property or effects, whether held in trust or otherwise, or to levy taxes or perform any municipal function whatever.”
What does this mean in layman’s terms? It means that the state government is not allowed to make a law that delegates a legislative function. Separation of powers in the U.S. means the legislative branch of government makes laws; the executive branch implements laws, and the judicial branch interprets laws. A school district is a local government agency i.e. it makes laws. A school district is specifically referenced as a “unit of local government” in Article 9 Section 10 of the current PA Constitution. Another example of local government would be a city under the oversight of a mayor.
Interpretation of the language contained in the former Article 3 Section 20 is a matter of settled case law. The landmark PA Supreme Court ruling is Erie Firefighters Local No. 293 v. Gardner (1962) and remains the precedent. The Erie Firefighters Union (plaintiffs) had sued the city (defendants) to force the city council to implement the decision of an arbitration panel in a contract dispute. In other words the union was pushing for binding arbitration. The PA Supreme Court ruled on what the words of Article 3 Section 20 actually meant. Here are relevant parts of that ruling from page 6:
“Without reviewing the host of cases in which this problem has arisen, the basic distinction between delegable and nondelegable functions (apart from the proscription against levying taxes) seems to be this: If the delegation of power is to make the law, which invlolves a discretion of that the law shall be, then the power is nondelegable. If we are correct in this interpretation of the rule, then there is no question but that the power to fix municipal salaries and to create a pension plan is nondelegable under our Constitution.”
“What is more, any attempt on our part to interfere with council’s legislative function would be an unwarranted usurpation of power which, by law, has been reposed in the legislative branch of government and not the judicial branch. If the defendants have acted unwisely in refusing to take the desired steps, they are answerable to the city electorate but not to the court. The judicial arm of government is equal to the legislative arm but not superior to it. We are convinced that had defendants refused to submit the current disputes to conciliation as required by the Act, or had they refused to consider the recommendation of the panel, we could compel them to follow the directions of the statute, but since they have followed the statute in this regard, the power of the court to interfere has passed into nothingness”
In other words, it doesn’t matter whether the people who might perform compulsory binding arbitration in public employee contract disputes are arbitrators or Judges. The PA Supreme Court ruled in Erie Firefighters that the setting of public employee salaries is a discretionary legislative function and cannot be delegated.
What happened after this landmark 1962 PA Supreme Court ruling?
The state legislature essentially said “we would like to pass a law that allows for police and firefighters to have compulsory binding arbitration but the Supreme Court has just ruled this to be unconstitutional so I guess we’ll have to to amend the Constitution.” And that’s exactly what happened. On November 7, 1967 after a lengthy process the Pennsylvania State Constitution was amended. A new Article 3 Section 31 was created. The language of the former Article 3 section 20 was kept intact but a second sentence was added as follows:
"Notwithstanding the foregoing limitation or any other provision of the Constitution, the General Assembly may enact laws which provide that the findings of panels or commissions, selected and acting in accordance with law for the adjustment or settlement of grievances or disputes or for collective bargaining between policemen and firemen and their public employers shall be binding upon all parties and shall constitute a mandate to the head of the political subdivision which is the employer or to the appropriate officer of the Commonwealth if the Commonwealth is the employer, with respect to matters which can be remedied by administrative action, and to the lawmaking body of such political subdivision or of the Commonwealth, with respect to matters which require legislative action, to take the action necessary to carry out such findings."
The two sentences combined are what make up today's Article 3 Section 31 of the Pennsylvania Constitution which can be read in its entirety here. School employees were not part of the 1967 constitutional amendment and remain bound by the constraints of the Erie Firefighters precedent.
In 1968 Act 111 was born for police and firefighters
Once the State Constitution was amended in 1967 the general assembly passed a law that says police and firefighters could have their contract disputes resolved via compulsory binding arbitration.
SUMMARY
Enacting a law to have compulsory binding arbitration for teachers would first require a constitutional amendment to add teachers into the same category as police and firefighters. This is extremely unlikely to happen. Amending the PA Constitution is a difficult and long process. Any politician who introduces a bill that does not call for a constitutional amendment to enact compulsory binding arbitration for teachers is VIOLATING the constitution. Their bill would get thrown out in court if it ever passed the general assembly.
CONSTITUTIONAL EXPERTS' HAVE ALREADY TESTIFIED IN HARRISBURG
Q. Some legislators believe that having a Judge perform compulsory (last-best-offer) binding arbitration for teachers is constitutionally sound because a Judge is an elected official not an unelected arbitrator. What is wrong with that thinking?
A. Whether the final decision-maker in any compulsory binding arbitration situation is elected or appointed is irrelevant. Under Article 3 section 31 of the PA Constitution, a legislative function e.g. the setting of public employee salaries cannot be delegated to a third party (the execption being police and firefighters). To give a Judge the power to 'make law' would be to vest in that Judge the authority of a special commission. Judges are not allowed to perform a legislative fucntion. The Erie Firefighters ruling makes this clear.
Q. In 2006 a Senate Bill (SB 910) was introduced that called for "last best offer" binding arbitration to resolve teacher contract disputes, in which a County Judge was the final decision maker. Who testified that the bill was unconstitutional at a public hearing on January 9, 2006?
A. Private practice attorney, Charles Sweet Esq., a renouned labor law expert testified that this proposal was unconstitutional. Attorney Sweet's full written testimony can be read here.Quote:
"The Bill, if passed, would constitute an unconstitutional delegation of legislative authority in violation of Article III, Section 31 in the same manner as was present in Erie Firefighters Local No. 293 v. Gardner, supra. It would certainly be subjected to such a challenge, and would just as certainly be invalidated."
Q. In 2006 a House Bill (HB 2635) was introduced that called for "last best offer" binding arbitration to resolve teacher contract disputes, in which an arbitration panel was the final decision maker (subject to court review). Who testified that this bill was unconstitutional at a public hearing on August 23, 2006?
A. Testifying on behalf of the Pennsylvania School Boards Association, Attorney Charles Sweet, Esq. returned and again testified that this proposal was unconstitutional. Attorney Sweet's full written testimony can be read here.
A. In addition PSEA (teacher union) attorney Richard Burridge testifed alongside PSEA Tresurer Grace Bekaert that this proposal was unconstitutional. The minutes of that hearing can be read here. Quote:
"Asked to comment on prior statements by Sweet that binding arbitration would not be constitutional, Richard Burridge, an attorney for PSEA, replied that any binding arbitration that is mandated without the agreement of both sides would require a constitutional amendment."
Q. In 2009 the State Senate Education Committee held a public hearing on the issue of teacher strikes. Which other legal expert testified on April 22, 2009 that compulsory "last-best-offer" arbitration was unconstitutional?
A. The President of the Pennsylvania School Solicitors Association, Jeffrey Sultanik Esq., testified that any proposal which empowered a Judge to decide a teacher contract dispute would violate the Constitution. Attorney Sultanik's full written testimony is here.
Q. In other words, lawyers from the teachers' union and the school boards association have all testified in Harrisburg that binding arbitration for teachers would violate the Constitution?
A. Correct. In fact, an attorney Jack Neurohr from the Pennsylvania Labor Relations Board also testified to the same effect at a House hearing in 2006.
Q. But in 2008 State Rep. Steve Santarsiero campaigned here on a platform of enacting compulsory (last-best-offer) binding arbitration for teachers, where a Commonwealth Court Judge would act as the final decision-maker. He said his plan was constitutionally sound under Article 5 Section 4 of the PA Constitution.
A. Under such logic the legislative branch of government wouldn't need to exist! The general assembly could simply pass any or all authority over making laws to the judicial branch of government and close up shop. Santarsiero's supposedly "more comprehensive" plan is unconstitutional and amending the Constitution to enact binding arbitration for teachers doesn't even begin to approach being realistic.
It is also an absurd idea to force elected officials into 24/7 negotiating where they have to make a multi-million dollar decision that taxpayers must finance, while suffering from exhaustion. And a Commonwealth Court Judge is not elected to study school budgets and make complex decisions. It is equally absurd to suggest that a Commonwealth Court could study and resolve (potentially) hundreds of teacher contract disputes in any given year.
Q. Has State Rep. Santarsiero modified his 2008 campaign position?
A. It appears that Rep. Santarsiero is now saying that a County Judge should be the final decision-maker on last-best-offer arbitration instead of a Commonwealth Court Judge i.e. just like SB 910 from 2006. Of course 2010 is an election year so politicians will be flip flopping and saying strange things. As detailed above ...regardless as to whether a County Judge or a Commonwealth Court Judge is used, Santarsiero's "proposal" still seeks to violate the Constitution.
Q. Why do politicians keep coming out with bills to enact compulsory binding arbitration for teachers if those bills are unconstitutional and can never become law?
A. Because they assume the public are uneducated and easily hoodwinked, and will not do the reserach you have found on this webpage. And also because they have no respect for the Constitution they solemnly swear to uphold and defend. It allows them to play politics and say "I'm trying to do something about teacher strikes" while privately knowing their bill would be thrown out as unconstitutional by the courts if it ever passed the general assembly.
Q. Can teacher strikes be banned without amending the Constitution?
A. Yes. Don’t require binding arbitration to resolve teacher contract disputes! Simply ban strikes and let elected school officials retain ultimate decision-making authority over the teachers’ contract. Having the people's duly elected school officials decide multi-million dollar contracts that taxpayers must finance is also the only democratic solution. We don't elect arbitrators or Judges to make these decisions. This is what HB 1369 seeks to do.
Q. Isn't it true that in those states that have banned teacher strikes they still occur anyway, and this is a flaw of HB 1369?
A. No. This is not a flaw of HB 1369. Strikes only occur in states that do not have tough penalty provisions for illegal strikes. HB 1369 was modeled after those states that have tough penalty provisions. In these states, illegal strikes do not occur. For a side-by-side comparsion of different state laws please click here.
Q. I've heard that certain other public employees like prison guards and court reporters can have their union contract disputes resolved via compulsory binding arbitration, and they are not allowed to strike. Yet I don't see any mention of them in the Constitutional amendment that applies to police and firefighters. Can you explain?
A. That law is Act 195 of 1970. Section 805 reads as follows: "Notwithstanding any other provisions of this act where representatives of units of guards or mental hospitals or units of employes directly involved with and necessary to the functioning of the courts of this Commonwealth have reach an impasse in collective bargaining and mediation as required in section 801 of this article has not resolved the dispute, the impasse shall be submitted to a panel of arbitrators whose decision shall be final and binding upon the parties with the provisio that the decisions of the arbitrators which would require legislative enactment to be effective shall be considered advisory only."
Translation: it is compulsory binding arbitration but not really. Only disputes that do not involve a discretionary legislative function can be imposed on the employer under Act 195. If a panel of arbitrators tried to impose a settlement that involved determining employee salaries and benefits, then the employer would not be bound by the arbitrators' decision.
