The members of the Nutmeg Board of Education were tired. It was beginning to feel like the Thirty Years War in Nutmeg because of the persistent conflict with the Nutmeg Union of Teachers (NUTS). Every time Mr. Superintendent proposed a new program to increase accountability and to improve student learning, NUTS was there with a grievance and/or an unfair labor practice charge. It was clear to some Board members that Nutmeg needed to take a different approach.
Fresh from sensitivity training (something to do with a problem at work), Bob Bombast told the Board in executive session that the answer was R-E-S-P-E-C-T. Rather than continue the dance with NUTS, Bob suggested, the Board should seek to win the hearts of the teachers directly. Once the teachers understand how the Board values them as professionals, Bob predicted, the union leadership will surely change its ways.
The Board members were excited at the prospect of a new strategy to escape the ongoing struggle with NUTS. They quickly identified a number of ways to reward excellent teaching performance. Mr. Chairperson suggested that teachers with perfect attendance would be recognized at the end of the school year with a dinner and a $50 gift certificate to Marshalls. Mr. Superintendent reminded the Board members of difficulties in filling certain positions, and he proposed that teachers with special training in shortage areas (as defined by the Commissioner of Education) would receive a signing bonus of $1,000. Even Penny Pincher got into the act, and suggested that elections be held at each school to identify a teacher to be named a "Fellow of the Nutmeg Academy." This honorary status would entitle the teacher to free tickets to all contests of the Nutmeg sports teams. "This is great," Bob exulted. "The teachers will be so pleased with the recognition that they will work even harder."
The Board members agreed to let each of the building principals get the credit by announcing these new programs at a faculty meeting. The reaction, however, was anything but positive. The staff could not have cared less about the perfect attendance bonus, and the teachers bristled at the thought of some lucky colleagues getting an extra $1,000. The proposed election to the Nutmeg Academy, however, put them over the edge. Some teachers groaned, while others actually walked out of the meeting.
Before the principals, the Superintendent and the Board members could regroup and figure out what went wrong, NUTS took action. Bruno, the Staff Representative, called Mr. Superintendent and described in exquisite detail the unfair labor practice charge he was filing. Mr. Superintendent protested to Bruno that the Board’s actions disadvantaged no one, but were simply some nice "extras" to show teachers R-E-S-P-E-C-T. Bruno just snorted, telling Mr. Superintendent that NUTS was not going to tolerate this direct attack on their status as the bargaining agent for the teachers.
Should the Nutmeg Board of Education back off from its creative plan?
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Yes. The Board’s motivations may have been pure (more or less). As a matter of labor relations law, however, changes in working conditions may not be implemented unilaterally.
When a bargaining agent has been recognized (as is the case for all teachers in Connecticut), the employing board of education must negotiate over wages, hours and conditions of employment. Those negotiations result in a collective bargaining agreement. However, if the parties had to address all working conditions in the contract, negotiations would be an interminable process. Accordingly, the labor laws have been interpreted to separate working conditions into two categories – those addressed in the contract and those that are not. Working conditions that are not addressed in the contract, however, are still a mandatory subject of bargaining. If no change is proposed, there is no need to bargain, and the existing working conditions are maintained as "past practice." However, if management wants to change a working condition that is an established past practice, it must first negotiate over that change with the bargaining representative. Such negotiations are subject to impasse resolution procedures, just like regular contract negotiations. The midterm bargaining statute gives the parties only twenty-five days to reach agreement, after which mediation and ultimately binding arbitration is imposed to resolve the dispute.
The courts have held that management must negotiate over all changes in significant working conditions, even those that add new benefits. Otherwise, the labor boards and the courts have held, management would be permitted to wield "the iron fist in the velvet glove" and thereby undermine the union’s authority and coerce employees. The Nutmeg Board of Education thus violated the duty to bargain in good faith by unilaterally implementing these various programs to recognize and encourage teachers.
While such matters are mandatory subjects of negotiation, it is important not to be discouraged. As pressure builds for increased accountability, boards of education must be ready to explore all options to improve student performance, including incentive programs to attract and retain the most qualified teachers. Unfortunately, teacher groups often resist such programs as either "merit pay" or as otherwise antithetical to their goal of equal treatment for all teachers. We must work with teacher groups and, if necessary, with arbitrators to take new and varied approaches to teacher compensation. To that end, CABE and CREC are sponsoring a symposium on May 10, 4 p.m. to 7 p.m. at the Learning Center in Hartford, with national expert Professor Allan Odden to begin a dialog on alternative approaches to teacher compensation. After Professor Odden’s presentation, there will be a panel discussion on this issue with representatives of school boards, superintendents, teachers and administrators. All are invited to participate. Additional information is available from CABE.
Finally, the Board’s ill-advised unilateral foray into this difficult area was further complicated by a Freedom of Information Act violation. It would have been entirely appropriate for the Board to discuss collective bargaining strategy issues outside the formal "meeting" under FOIA. However, since the Board was not dealing with confidential collective bargaining strategy documents, executive session was not an appropriate forum for that discussion.
Thomas Mooney is a partner in the School Law practice.