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SEE YOU IN COURT! - January 2013

CABE Journal

January 2013

Last summer, the Nutmeg Board of Education voted to freeze paraprofessional salaries for the third year in a row. Mr. Superintendent had warned that the Board would thereby be inviting another union to town. Sure enough, the paraprofessionals promptly moved to unionize, and last August, Mr. Superintendent received a petition from the Nutmeg Organization for Paraprofessional Equity (NOPE) seeking recognition as the bargaining representative for Nutmeg paraprofessionals.

The State Board of Labor Relations promptly verified the signatures on the petition and called an election. Board member Penny Pincher was in high dudgeon when she heard about the pending election, and at the next meeting of the Board, she warned that the Board could not guarantee continued employment of paraprofessionals in Nutmeg if they voted to elect NOPE to represent them. However, despite Penny’s speech, NOPE was elected bargaining representative by a vote of 43 to 1.

At its next meeting, the Board went into executive session to discuss negotiation strategy. Veteran Board member Bob Bombast loves to be in the thick of things, and he lobbied hard to head up the Board negotiations committee. After considering even worse alternatives, Mr. Chairman gave in and appointed Bob negotiations chairperson. Then the trouble started.

Bob immediately sent an email out to Mal Content and Red Cent, the other members on the committee. “Let’s do this ourselves,” it began. “There is no need to get lawyers in involved. In fact, let me see what I can do on my own. I don’t think we need to worry about the language as long as we can keep the costs low. I will do my best to keep the increase below 2% and I will let you know how it goes.”

Without waiting for a response, Bob invited Bruno, the union negotiator, out to lunch. Bruno proposed that the Board adopt the union’s standard contract, and Bob took it, saying that he was sure it is fine. “The big issue,” Bob explained, “is salary. If we agree to your language, can we keep the salary increase at 2%?”

Bruno stepped away from the table to make a call, and he promptly came back to respond. “We can do the 2%. Of course, it should apply to each of the last three years as well, when the Board gave us bupkis. We will be reasonable and not look for retroactivity, but we need to make up that lost ground.”

Bob was relieved that the Board not going to have to pay retroactively for those past years, and he figured he should take the deal while he could. Bob wrote “2%/yr 2010-2011, 2011-2012 and 2012-2013 no retro” on the cover of Bruno’s model contract, and he and Bruno initialed it as a tentative agreement. What happens next? 

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In the normal course, a tentative agreement would be brought back to the board of education for ratification. However, nothing about this situation was normal. Collective bargaining is one of the most important responsibilities boards of education have, and a clear understanding of the process is essential.

Starting at the beginning, we note that school employees in Connecticut have a broad right to designate bargaining representatives. That right imposes concomitant obligations on school officials. First, it is improper to threaten adverse consequences if employees exercise this right, and Penny’s comments at the Board meeting may be seen as illegal interference with the protected right to organize into a union. Second, once a union has been elected or otherwise designated to represent employees in the bargaining unit, the employer must deal solely with the union to make changes in working conditions. Individual negotiations (e.g., “Sally, would you work Saturday for $200?”) are prohibited.

Boards of education must also think carefully about its bargaining representatives. Often board members are included on the negotiations team, and their participation is appropriate. However, it is important that the negotiations team include the people with the right experience to make informed decisions about proposals, particularly language proposals. Board members may not always know the implications of certain proposals, and the administrators and other employees who must work with the covered employees and the contract should be key members of the team.

Bob made a serious error in presuming that language was unimportant. Language provisions govern working conditions, and when and how employees may be required to work, directly affect district operations (and costs). Here, Bob was penny-wise and pound-foolish in figuring that he didn’t need legal counsel and that language was unimportant. As but one example, the definition of grievance is very significant; a broad grievance definition delegates broad authority to a grievance arbitrator, while a narrow definition limits review to specific contract provisions.

A fundamental problem here is that Bob and the Board did not have a clear understanding in advance of the procedures for moving through negotiations to the final agreement. Typically, the Board, generally acting through the chairperson, appoints an appropriate committee, and the full board gives that committee guidance, especially on the financial terms of the agreement. The full committee, not a lone ranger, then meets with the union and negotiates the new contract. The committee periodically reports back to the full board. When a comprehensive agreement is reached, the committee signs a tentative agreement, which then comes back to the full board for ratification.

The tentative agreement has great significance. If it is rejected, the negotiations proceed to arbitration. In arbitration, the panel will give great weight to the tentative agreement. Accordingly, it is important that a committee sign a tentative agreement only if it is quite certain that it will be ratified by the full board of education.

Finally, we note that Bob sent emails about negotiations out to the committee. Significantly, email communications concerning negotiations do not pose the usual email problems of confidentiality and potentially-illegal meetings. First, such emails are not subject to public disclosure because they relate to collective bargaining strategy. Moreover, since the FOIA definition of a “meeting” excludes “strategy or negotiation with respect to collective bargaining,” board committees or even the full board can communicate and even make decisions concerning collective bargaining over email without worrying about their having an illegal meeting.

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