Union busting isn't usually the subtlest activity. The weapons tend to be blunt (mass firings and intimidation), and the culprits tend to be obvious (big corporations with deep pockets). But anyone concerned about the future of New York City's teachers' union ought to look past the recent battle over Edison Schools to a loophole in the state's charter school law that could do as much to undermine unions as any for-profit corporation.

The New York Charter Schools Act of 1998 includes a provision exempting new schools that open with fewer than 250 students from honoring collective-bargaining agreements. Conversion schools, like the low-performing ones Edison Schools hoped to take over, are not exempt from existing union contracts. "That would be union busting," says Sy Fliegel of the Center for Educational Innovation, a conservative think tank, who was involved in drafting the legislation. The reasoning is that the obligations of a union contract would unnecessarily burden a small school that's just getting started. But even after the school grows beyond the 250-student threshold (most add one grade a year), the exemption remains in place, effectively creating a new category of non-unionized schools funded by public dollars.

Perhaps more surprising than the lack of public discussion about the exemption is the union's resignation to it. When the charter school law was being drafted, "we recognized that there was going to be some sort of provision to keep unions out," says Ron Davis, a spokesman for the United Federation of Teachers, the union representing New York City's 38,000 public school teachers. "We noticed it, but we didn't object." Instead the UFT has taken a conciliatory position, pledging to work with charter school operators, including Edison. "We've always said that we can work with this if this is what the parents want," Davis says.

The UFT is focusing its efforts on conversion schools and is not making any concerted effort to organize teachers at the new schools, waiting instead for teachers to initiate organizing efforts. "We really want to be invited," Davis says. This approach allows the union to avoid being perceived as an obstacle to reform but stops short of wholehearted support of charter schools. Ultimately, though, the union runs the risk of shutting itself out of the charter school movement. Of the 16 charter schools approved so far in New York City, more than half are new schools; of the 37 statewide, more than two-thirds are. Most of the new schools fall below the 250-student ceiling.

While the charter school law allows teachers to request union representation, even charter school operators who are sympathetic to organized labor are equivocal about the union's role, particularly in schools where salaries match union scale. Victor Morisete, executive director of the Community Association of Progressive Dominicans, which runs the Amber Charter School in Harlem, says his group is "100 percent in favor of organized labor" and would not oppose an organizing effort. And yet, he adds, "having a union or not-it's not an indicator of having a good staff."

Peter Rose, president of the board of trustees of the Clearpool Children's School in Brooklyn, says that because the school already honors the general conditions of the union contract, "for our school the union as a financial protector and advocate [for teachers] is irrelevant." Instead, he sees the union's role as political, acting as the public voice for teachers. Kristin Kearns Jordan, director of Bronx Preparatory Charter School, is less enthusiastic. Jordan says that the school pays above union scale, and because her teachers are not unionized, she has the option to negotiate "creative job descriptions," arranging a teacher's schedule around a new baby, for example. If the teachers were unionized, she says, "they would lose a lot of money, and we would lose a lot of flexibility."

It is over those "creative" work rules, though, that teachers may most need the union. In December 1998, the union representing an Edison charter school in the Bay Area filed a grievance against the company for requiring members to work a longer school year for the same pay. Where does flexibility cross the line into unfair working conditions? The teachers' union in New York City may not be there to judge. That worries Deanna Duby, senior policy analyst for the National Education Association in Washington, D.C., who says some states have been able to pass laws that give charter schools the flexibility to negotiate work rules with unions, without their teachers giving up union representation altogether. The New York State law "puts an educator in a tough position," she says. "In order to join a charter school, they have to be willing to walk away from the protections of a union."

If this is the price of the UFT's compromise, it remains to be seen how high it will be. As much as 80 percent of a charter school's operating budget may go to teacher salaries, and charter school operators, even those sponsored by nonprofit organizations, are likely to come under increased pressure to reduce costs as they eventually face capital repairs and staff raises. Rather than waiting for teachers to organize themselves, the UFT might take a bit of advice from a rather unlikely source, the Center for Educational Innovation's Sy Fliegel. He calls it "amazing" that the union exemption was included in the first place. "If I were the union, I would try to repeal that provision," he says. "That's the first thing I would do."

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