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SEE YOU IN COURT! - July/August 2015

CABE Journal

July/August 2015

Authors: Thomas B. Mooney

Mr. Superintendent couldn’t believe that it is already again time for negotiations with the Nutmeg Union of Teachers (NUTS).  However, when Mr. Superintendent told Mr. Chairman that teacher negotiations are coming up and suggested a private Board meeting to discuss strategy, Mr. Chairman demurred.  “Nope!  We need transparency,” he said.  “The Board will be discussing these negotiations in open session.  After all, our taxpayers have a right to know where their money goes.”

Sure enough, the next Board meeting included the agenda item “Teacher Negotiations,” and veteran Board member Bob Bombast could hardly wait to share his negotiation strategy with the world, including givebacks on longevity, health insurance and other benefits, as well as performance-based compensation.  Mal Content, newly-elected President of NUTS, listened to Bob’s speech with alarm and girded for battle.

Mr. Chairman appointed Bob Bombast, Penny Pincher and Red Cent to serve as the negotiations team.  Mr. Superintendent asked to be included, but Bob waved him off, confident that he and his Board colleagues would do just fine without him.  At the first negotiation session with NUTS, Bob pooh-poohed the need for ground rules, and he jumped right in with the Board proposals for health insurance plan design changes. 

Mal responded on behalf of NUTS.  “Let’s not waste time here.  Our teachers are sick of being hit with new costs for health insurance.  We are done.  We will not be negotiating any further changes in health insurance this year.”

Bob Bombast was taken aback.  “None??” he asked.  “That is not fair.”

“You heard me,” Mal said.  “We will not be negotiating further on health insurance.  We do want a salary increase of course, as well as step movement for all teachers in each of the contract years.  But we do want to work with the Board.  So we are proposing that there be a joint committee at each school with equal representation by the Board and the Union that will make all of the decisions necessary to run the school.  Collaborative decision-making between management and labor will be great for morale.   A happy teacher is a good teacher,” Mal said with a smile.  

Bob wasn’t sure what to make of all this, and he called for a caucus of the Board team.  Bob, Penny and Red puzzled over the Union proposal for a joint committee.  But the more they talked, they more they were convinced that this unconventional proposal from NUTS may have potential for the Board.  Their first priority, of course, is to keep the salary settlement down, and some stupid committee may be the answer, they agreed.  So they returned to the table and offered to accept the NUTS’ committee idea if NUTS will agree to a salary freeze.

The NUTS team promptly caucused.  After an hour, NUTS came back and made its “final” offer: given the Board’s acceptance of the joint committee as proposed, NUTS offered to settle the issue of salary with a 1% general wage increase each year.

Bob couldn’t help but smile because he knew that keeping the salary settlement to 1% would be a very low settlement.  He promptly agreed and quickly wrote up a tentative agreement that both he and Mal signed.

Is this a good deal for Nutmeg?

*        *        *

It is not a good deal.  Indeed, we are not even sure what the deal is.  Will teachers move a step?  If so, Bob just agreed to a settlement that will likely total 3% each year or more.  Moreover, Bob and his team made many other mistakes as well.

At the outset, we must consider the duty to bargain in good faith, which governs the labor negotiation process for teachers and all other union groups:

“to negotiate in good faith” is the performance of the mutual obligation of the board of education [and the union] 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.

Conn. Gen. Stat. Section 10-153e(d).  With this definition, we learn the following.

First, the parties must bargain in good faith.  As defined above, “good faith” does not require agreement or concession.  It does, however, require that the parties listen to each other.  Here, NUTS committed an unfair labor practice by flatly refusing to negotiate over health insurance.  NUTS had the right to reject every one of the Board’s proposals, but it could not simply say that it would not negotiate over them.

Second, the parties must bargain over mandatory subjects of negotiation, i.e. salary, hours and other conditions of employment.  Conversely, the parties are not required to negotiate over non-mandatory subjects of negotiation.  Maintaining that distinction is crucially important, and to do so boards of education must recognize that school boards have management rights that need not be negotiated, such as curriculum, facilities, and size of the teaching staff.  To be sure, the impact of management decisions may affect conditions of employment, and those impacts must be negotiated.  Layoff procedures illustrate the point.  The board of education has the right to create and eliminate positions, but the impact of those decisions – who stays and who goes – is subject to negotiation, and all labor contracts include reduction-in-force procedures.

The joint committee as proposed by NUTS would clearly intrude into management prerogatives, and as such it does not relate to a mandatory subject of negotiations.  Accordingly, the Board Committee should not have agreed to or even negotiated over the NUTS proposal for such a committee.

Here, we see a common temptation – to trade “language” for “money” because the public hears (and is critical of) the settlement “number” but doesn’t understand the implications of contract language changes.  However, contract language affects operations and can be expensive indeed.  By agreeing that a joint union/management committee will now run each school, the Board has put itself in the worst possible situation – accountability without control. 

The Board made other mistakes as well.  Ground rules are important to guide negotiation process.  Moreover, the FOIA permits confidential discussion of negotiations strategy, and public pronouncements early in the process can be counterproductive.  Finally, the Committee’s failure to recognize the proper scope of negotiations may be attributable to a mistake Bob made early in the process.  Mr. Superintendent offered to participate in negotiations, but Bob did not include him.  Teacher contract negotiation is a complicated business, and boards of education must have the necessary legal and administrative expertise in such negotiations.  That is true not only in formal negotiations, but also in the informal discussions away from the table, when expectations can be raised and deals can be struck.

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