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SEE YOU IN COURT! - September 2009

September 1, 2009

Authors: Thomas B. Mooney

Bob Bombast was pleased that Mr. Chairperson had recognized his bargaining acumen and named him to head up the Board team in negotiations this year with the Nutmeg Union of Teachers. When the team met to plan its strategy, he assured his fellow Board members that this year the teachers would be realistic in their proposals, given the financial meltdown last year and the huge state deficit.

At the first meeting with NUTS, Bob started out by recounting his personal struggle to do the work of three after layoffs at his company, and he explained that the Board is making a first, last and final offer –add a year to the contract with no general wage increase, no step movement, and no other changes. “Given that the CPI is down, state funding is flat at best, the private sector economy is weak, and Congress is mortgaging our future to China,” Bob said gloomily, “we presume you will agree to this modest proposal to extend the contract and see where things are next year.”

Bruno, long-time negotiator for NUTS, thanked Bob for his proposal. He then passed out the NUTS proposals, and calmly explained. “Things are not so bad, Bob, at least for teachers. You will note from this chart that many of our neighboring districts settled last year or the year before with step movement and GWI of 2.5% to 3%. Surely, Nutmeg would not want to fall behind. Our opening position is 3.5% plus step, but we have a little flexibility as long as you don’t change our insurance plan.”

Bob couldn’t believe his ears. Two Board members had been laid off, and several others were just hanging on. How could NUTS dare make such a proposal? Without benefit of caucus, Bob responded immediately. “I don’t think you heard me. The Board has already decided that there will be no salary increases this year. First and final means just that.” Bob started straightening his papers officiously.

Bruno became agitated. “Are you saying that you won’t negotiate with NUTS over salary increases? This could get ugly fast.”

Board member Penny Pincher was no fan of NUTS, but she saw things going from bad to worse. “Can’t we all just get along? I think we should caucus.”

Bob was not mollified. “There is nothing to caucus about as long as NUTS has its irresponsible proposal on the table. When NUTS agrees that this is not the year for salary increases, we will have something to discuss. Bruno, you have my number.”

With that, Bob stood up, gathered his papers and walked out. Penny looked apologetically at the NUTS team, shrugged her shoulders, and she and the other members of the Board team followed Bob out.

Given the NUTS proposal and Bob’s response, what is the next step here?

* * *

Replacing Bob as chair of the negotiations committee would be a good start. When employers negotiate with employees, there are some basic rules, starting with the duty to bargain in good faith. That duty is defined by the Teacher Negotiation Act as “the performance of the mutual obligation . . . to meet at reasonable times . . . and to participate actively so as to indicate a present intention to reach agreement with respect to salaries, hours and other conditions of employment, . . . but such obligation shall not compel either party to agree to a proposal or require the making of a concession.” In these difficult times, that last provision – that good faith bargaining does not require making concessions – is particularly important.

Where, then, did Bob go wrong? In at least three ways. First, the Board’s position that its first proposal was also its last proposal was antithetical to the concept of good faith negotiations, because the premise of the proposal was that further discussion would be pointless. The Board is free to say no, over and over. But an employer may no tell the union that it will not even consider the union’s proposals.

Bob’s second mistake was to try to impose conditions on further negotiations. The union has every the right to make proposals that the Board finds ridiculous, and the Board is required to deal with them. Bob and the Board team should simply say no, and they should explain their objection to salary increases at this time. However, Bob refused to negotiate unless the Union modified its proposal. That Bob could not do.

Bob’s third mistake was to make decisions without consulting his team. His emotional and inappropriate response could have been tempered by a prior, thoughtful discussion in caucus. If a team member suggests a caucus, it is almost always a good idea to do so. At the bargaining table, safe is better than sorry.

The major question is whether and how boards of education may conduct teacher negotiations this year to avoid salary increases for teachers and administrators. With pressure on boards of education from every level – local, state and federal – a year without salary increases is more than reasonable. However, though concessions have been common in both the private and public sectors, most teacher unions in Connecticut have been intransigent this past year, at times even using scare tactics to discourage teachers from supporting concessions. Will negotiations be any different?

It may be that the only hope to avoid salary increases for teachers and administrators will be through the arbitration process. Sadly, that too may be difficult because arbitrators carefully guard their “acceptability” to both sides. However, the Teacher Negotiation Act provides that the arbitrators must “give priority to the public interest and the financial capability of the town.” That must be the focus this year. From the outset, boards of education must share with the union the compelling information available this year to explain why no increases are justified. It may be that such evidence will convince the unions to forego an increase, at least for one year. If not, such bargaining history and the related information may be persuasive in arbitration.

Finally, we must recognize the arbitration dynamic. When some boards of education settle because of the risks of arbitration, they empower arbitrators to impose similar results on others. Comparable settlements are a major factor in negotiations, and each such settlement gives the arbitrators more cover to impose salary increases on other boards in arbitration. This year, widespread insistence that further increases are not justified may be the only answer. Arbitration panels may or may not agree. But the more school boards that are willing to arbitrate over union demands for salary increases, the better the chances of success for all. If the arbitration panels go ahead and impose salary increases anyway, such awards in this climate may help convince the General Assembly to make meaningful reform in the binding arbitration process.

Thomas B. Mooney is a partner in the firm's Labor and Employment Law Practice and heads the firm's School Law Practice.

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