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SEE YOU IN COURT! - May 2009

April 22, 2009

Authors: Thomas B. Mooney

The budget cuts were a disaster. The voters in Nutmeg were hard hit by the recession, and they did not care that the Board of Education had reduced the Superintendent’s budget from a 4% increase to a 2% increase. Or that the Board of Finance had reduced the increase in the Board’s budget from 2% to 0.75%. The voters were unwilling to approve any increase this year. Twice now, the budget failed at referendum, and it was not clear whether and when a budget would be approved.

As it was, thirty teachers – all excellent teachers – were slated for layoff, and the Board was not sure when the cuts would end. Given that dismal picture, the Board reached out to its five different unions to see whether concessions and concomitant job savings would be possible. The unions for administrators, custodians, secretaries and paras all agreed to talk, and, given the grave situation, the Board was able promptly to reach agreements with each. The unions each separately agreed to take four furlough days, and the Board agreed that no member of each of these bargaining units, respectively, would be laid off. All eyes turned to the Nutmeg Union of Teachers.

Mr. Board Chairperson called Tom Teacher, newly-elected President of NUTS, and he was very surprised to hear Tom refuse categorically to discuss any give-backs. "We feel your pain," Tom told the Chairperson. "And we are very sorry that some of our younger teachers are getting laid off. But we have no choice in the matter. If we agree with the Board on concessions, our contract will be opened up. We could lose all of our hard-fought gains over the last several years. We can’t risk that!" With that, Tom hung up, leaving the Chairperson stunned at this roadblock.

Mr. Chairperson updated the Board members and Mr. Superintendent via conference call late that night. The other Board members said that they were getting a lot of pressure from teachers who were being laid off, as well as parents concerned about higher class sizes. Teachers told the Board members that NUTS had told them that they could not make concessions, and they asked the Board whether there was anything they could do to save jobs. The Board called Mr. Board Attorney at home that night to see if Tom’s concerns were legitimate. After receiving assurance that concessions present no such risk, Mr. Chairperson called Tom back, but Tom blamed his "Executive Board," and again refused to talk, claiming that it was too "risky."

Mr. Board Chairperson was right back on the telephone, reporting to the other Board members, who were intensively frustrated by NUTS’ intransigence and the resulting impact on teaching positions in Nutmeg. The Board agreed to send a letter to all staff members, in which the Board would explain that concessions are possible, that it has proposed concessions to NUTS to save jobs, and that without NUTS’ agreement, it was unable to implement furlough days. The Board figured that the teaching staff deserved a clear explanation of the situation.

The day after the Board sent the letter, NUTS filed an unfair labor practice charge, alleging that the Board committed an unfair labor practice by "direct negotiations" with the bargaining unit. Does NUTS have a case here?

* * *

No. The Board must be careful not to engage in discussions with individual teachers that could be characterized as attempts to negotiate or to undermine the union. However, the Board has the right to communicate factual information to its employees about its efforts to seek concessions to avoid layoffs.

At the outset, it may be helpful to review terminology. While concessions can be made during regular negotiations, here the term refers to changes in contractual provisions already in place. During a contract term, a union is not obligated to discuss concessions, but it may do so without risk under the right circumstances. Concessions can take various forms, including but not limited to, insurance give-backs, increased premium cost sharing, furlough days (days not worked and not paid), salary deferrals, and salary freezes (both "hard freezes" – no general wage increase and no step movement – and "soft freezes" – no general wage increase but step movement).

Each type of concession has its pros and cons, and the parties must each consider their respective interests in discussing concessions. For example, furlough days or salary deferrals do not affect teacher retirement, but renegotiating salaries downward does. Conversely, if furlough days reduce compensation in a given year, the board of education will have to make up the difference in the next year just to get back to the status quo ante (where things were), and any raises will be on top of that.

The key to productively exploring the possibility of concessions is clarifying that such discussions are not "negotiations," a term that has legal significance. When parties "negotiate" midterm, both the Teacher Negotiation Act and MERA (which regulates non-certified negotiations) provide that impasse will lead to mediation and binding arbitration. However, if the parties have informal discussions, no such impasse resolution procedures are triggered. If and when an agreement is reached, it can be reduced to writing, approved, and implemented without risk to either party.

Some teachers have claimed that any such midterm concession agreement could result in reopening the contract and putting teachers at risk. That is nonsense. It is a simple matter to provide in the agreement that it will be null and void if it is rejected by the membership or the board of education. Then, there are only two possibilities: (1) the concession agreement will be approved and then implemented as agreed, or (2) it will not be approved, and thus it will be null and void. Either way, there is no risk of an unintended result. Given such misinformation, boards of education have every right to communicate truthfully about offers made, as long as they clarify that all negotiations are with the union alone.

Town involvement does not change the analysis. The town must approve such agreements only for certified units, and only when their contracts are extended. Even here, risk can be avoided. The parties can agree that the agreement will be null and void if the municipality does not approve the agreement between the parties.

Finally, normally we get nervous about illegal meetings when board members communicate secretly by conference call. However, these communications were completely appropriate here. The discussions so held all related to collective bargaining strategy, a topic expressly excluded from the definition of "meeting" in the FOIA.

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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