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SEE YOU IN COURT! - October 2008

October 28, 2008

Authors: Thomas B. Mooney

Mayor Megillah, three-term mayor of Nutmeg, was close to a breakdown. After three years with no tax increases, Nutmeg started the year with an incredibly tight budget. But fuel costs, a costly arbitration award with police, and the meltdown on Wall Street had put the Town’s budget deep in the hole. Mayor Megillah called his department heads to a meeting where he planned to lay down the law.

Mr. Superintendent was surprised to get the invitation to the meeting, and he was even more surprised to hear the Mayor tell him that he was imposing a spending freeze on all “departments,” including the Board of Education. He did not want to create a scene in front of the department heads, but finally he had enough.

“I don’t work for you,” Mr. Superintendent told him impolitically. “I will review your suggestions with the Board of Education, but don’t count on anything.” As Mayor Megillah started to sputter something about being the CEO of Nutmeg, Mr. Superintendent stood up and left the meeting. However, Mayor Megillah promptly sent a directive to all department heads imposing the spending freeze, and on the copy sent to Mr. Superintendent, he scrawled, “This includes you!”

Mr. Superintendent thought it best to meet with the Nutmeg Board of Education about Mayor Megillah’s directive. Ms. Chairperson added “Executive Session” to the agenda for the next Board meeting, and the Board had a good candid discussion about the Mayor’s directive. Penny Pincher expressed concern that the Board should follow the Mayor’s lead during these difficult times, but Bob Bombast objected. “This is our appropriation, and we can spend it as we see fit!”

Before things got too ugly, Mr. Superintendent jumped in. “Look. Mayor Megillah is just trying to do the right thing in tough times. We must be careful not to let the Town control the Board of Education, but we can do our part here. I will come up with some cost-saving measures that we can publicize. Mayor Megillah should not be the only frugal one here.”

The next day, Mr. Superintendent started to implement his cost-reduction plan by announcing that one-half of the paras at the elementary schools would be laid off. He was expecting push-back from the para union, the Nutmeg Federation of Workers, but he was surprised when the Nutmeg Union of Teachers filed a demand to negotiate over the impact of the proposed para layoffs on teacher working conditions. “What the devil,” he muttered as he read the Union’s claim. He got right on the phone with Ms. Board Chairperson to explain the situation. “NUTS is whining about how the teachers will now have to grade their own papers and make their own copies,” said Mr. Superintendent. “Boo-hoo, don’t you think?”

Ms. Chairperson indignantly agreed with Mr. Superintendent, and she wrote a scathing email to the entire Board about how “selfish” NUTS is and how it should recognize the need to change with the tough times. In emails back and forth, the Board members all agreed that Mr. Superintendent should tell the teachers to quit complaining and start dealing with the new, tough times that we will all confront.
Can Mr. Superintendent tell NUTS to pound sand?

                                                            * * *

Difficult times may require some changes in how districts operate. Boards of education cannot change contract terms unilaterally, and during the contract term, all provisions are binding. Therefore, any contract concessions require mutual agreement between boards of education and their unions.

In addition, unions have the right to negotiate over any significant changes in working conditions, even when they are not set forth in the contract. This requirement is the logical consequence of the duty to negotiate over wages, hours and conditions of employment. Parties negotiate specific working conditions to create contract provisions. However, significant working conditions that are not addressed in the contract as considered “past practices.” Given the duty to bargain in good faith, any changes in practices that significantly affect working conditions may be effected only after negotiation.

Given the need to operate differently in these difficult times, it may be necessary to change some working conditions. It is important to keep in mind the fact that past practice does not prevent change; it just prevents unilateral change. Given the duty to negotiate over significant changes in working conditions, boards must be prepared to engage in such negotiations so that necessary changes may be made. Indeed, for both certified and non-certified employees, the bargaining statutes provide for impasse resolution procedures for such mid-term negotiations. These procedures include mediation and even binding arbitration to resolve such disputes.

While some working conditions are themselves negotiable, others, such as creation and elimination of positions, relate to fundamental management prerogatives. Changes may be made unilaterally in such matters of management rights. However, the employer still must negotiate over the impact of such changes. Here, the Board has presumably already negotiated the impact of staff reductions with the para union by including in the collective bargaining agreement a reduction-in-force procedure. The question of impact on other employees and/or groups, however, can be more complicated. In making staff reductions, a good question is whether the board is abolishing the work, or whether the board expects other employees to do the work previously done by the laid-off employees. If the expectation is the latter, the affected employees may claim that the impact of the position eliminations must be negotiated.

Difficult times may also invite cooperation with (but not capitulation to) town officials. The Mayor can impose a spending freeze on the town side and can even suggest a freeze to the Board. The superintendent, however, is not a department head, but rather is a public official appointed by the Board of Education. Moreover, given its statutory rights, the Board can decide for itself how to expend its appropriation.

Finally, the Board should be aware of its obligations under the Freedom of Information Act. Discussion concerning budget matters is not privileged to executive session, and the Board’s discussion of the Mayor’s proposal in executive session was improper. Interestingly, however, while emails back and forth may on occasion result in an illegal meeting, here that was not the case. The email communications between the Board members concerning the claim by NUTS related to collective bargaining strategy, and as such are outside the scope of a “meeting” under 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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