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SEE YOU IN COURT! - March 2010

March 1, 2010

The dazed employees of the Nutmeg Public Schools were calling it Black Tuesday. That was the night that the Board of Education adopted its revised budget, cutting twenty-five teaching positions and thirty non-certified positions after Seymour Dollars and the Nutmeg Board of Finance cut its budget increase to zero. Last year, the Board had made all the “easy” reductions, and to get to zero this year, the Board had to cut deeply into personnel. As a result, a cloud hung over the district as those identified for layoff at the end of the school year bravely soldiered on.

Joe Broom, President of the Nutmeg Federation of Workers, representing custodial and maintenance employees, decided to take action to save jobs. After a contentious membership meeting, the Federation authorized Joe and his team to negotiate wage concessions with the Board. Joe called his old adversary, veteran Board member Bob Bombast, with an offer to renegotiate wages for the coming year.

Bob invited the other Board members to his house on a Sunday for a secret meeting to discuss the Federation’s offer. After a large number of celebratory glasses of wine, the Board members cheerfully agreed to offer a no-layoff pledge in exchange for a zero increase. Bob and his committee then met with the Federation, and in fairly short order the Federation agreed to give back the wage increase it had negotiated in better times provided that no unit members are laid off. Bob was only too happy to shake hands on the deal, and he announced the agreement at the next Board meeting as a model of a “win-win” for the Board and its employees.

Bob then set his sights on the Nutmeg Union of Teachers, and the fat settlement that it had achieved two years ago before the bottom fell out. Bob called Mal Content, the local NUTS president, and offered the same deal to the teachers. After a week, Mal got back to Bob with the bad news. Much as it would like to, Mal explained apologetically, NUTS would not negotiate concessions, because any concessions would put the contract at risk.

Bob was infuriated at what he believed was a disingenuous response from NUTS – after all, non-certified units, municipal units, administrator units and state units have all made concessions in this unprecedented times. So after another secret meeting at his house (without wine this time), Bob announced a new plan for teachers. Teachers who wanted to help the district (and their colleagues identified for layoff) were invited to contribute their raise to the Board of Education. All funds received from teachers through this voluntary program would tax-deductible, and they would be placed in a special fund that the Board would use to restore teaching positions.

The response was underwhelming, and only six teachers donated their salary increases to this fund. Since not even one teaching positions thus could be restored, the Board returned the funds to the six kind souls, and it went ahead with the planned layoffs. The Board was shocked, however, when it then received an unfair labor practice charge from NUTS, alleging interference with protected activity and individual bargaining. Did the Board do anything wrong here?

*        *        *

Though drinking wine during strategy discussions is questionable, the Nutmeg Board of Education has actually gotten through this situation without any significant faux pas. The Board members are free to conduct “strategy and negotiations with regard to collective bargaining” outside of posted meetings. Thus, both meetings at Bob’s house were proper, as long as the Board members stayed on the topic of negotiations strategy.

Similarly, the Board’s interactions with the custodians and their Federation were appropriate. The Federation might have been better off to seek informal discussions rather than negotiations, because it could have found itself in arbitration had there been an impasse in the concession negotiations. Typically, parties should explore concessions and related job savings through informal discussion, not negotiation. If they reach an agreement, they can sign an appropriate memorandum of understanding. Moreover, since non-certified employees negotiate under the Municipal Employees Relations Act, the board of education does not have to file the resulting agreement with the town. If they don’t, however, neither party is put at risk of arbitration because informal discussions do not trigger impasse procedures of mediation and arbitration.

The real question here is whether and how the Board can reach a similar agreement with its teachers. The legal situation is different, in that agreements between boards and their certified employees must be filed with the town under certain circumstances. Any such filing does raise the possibility of a rejection, and to date teacher unions have claimed that this possibility makes concession agreements too risky. However, school boards can address those concerns in two ways. First, the board of education can involve municipal officials to get their support for a concession agreement. Second and more important, the parties can expressly agree that any action by the municipality to reject a concession agreement will cause that agreement to be null and void. Such an agreement would fully protect the parties.

Adding insult to the injury of its refusal to discuss concessions, NUTS upped the ante by claiming that the Board engaged in individual bargaining. To be sure, boards of education may not change working conditions without the agreement (through negotiations or otherwise) of the teacher’s bargaining representative. However, employers may communicate with employees as long as such communications do not undermine the bargaining representative. In addition, employers can establish voluntary programs that do not affect working conditions.

Here, the Board simply invited donations after it paid teachers the salaries to which they were entitled under the contract. Any donations made by teachers to the Board’s fund would be voluntary, in the nature of charitable contributions. Here, the Board simply communicated with its employees; it was not bargaining with any individual teachers. Thus, the NUTS charge will fail.

Finally, the Board announced that such donations would be tax-deductible. The Internal Revenue Code permits deduction of amounts paid to government entities as long as the payments are voluntary and not in discharge of an individual’s obligations. Soliciting donations from members of the school community is hardly a good long-term strategy, but in these difficult times they can be part of the overall strategy for survival.

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