Negotiations with school secretaries were never a picnic, but this year they were worse than ever. The school secretaries were represented by the National Association of Secretaries and TYpists (NASTY) and its organizer/negotiator, Val Kyrie. Val tended toward strident, and she began the negotiations by insisting that she would not agree to any ground rules that interfered with her right to make public statements about the negotiations. For its part, the Board of Education was eager to start the negotiations, and reluctantly it agreed to proceed without any ground rules.
The Board’s acceding to Val Kyrie’s demand seemed only to encourage her in her hardball approach to negotiations. At the bargaining table she waxed poetic about the gender bias against secretaries, and she demanded salary increases of 10% per year as well as a pay equity study. The Board members and Mr. Superintendent attempted to be respectful, because they truly appreciated the hard work of the school secretaries. Their goodwill, however, had little impact on Val and the Union, who would not budge on salary and the pay equity study. Mediation was thus scheduled.
Val continued her righteous fight in mediation, and the school secretaries held firm on their demands. When the Board offered a four percent salary increase and even agreed to a wage equity study, however, Marty Mediator saw an opening. After taking a little walk with Val, Marty convinced the union negotiations committee to grab the wage equity study and run because it was sure to pay off in the future. At 2 a.m., Marty brought the parties back together and had the two parties sign a tentative agreement for them to bring back for ratification.
There are no secrets in Nutmeg, and by 11 a.m. Mayor Megillah was on the telephone with Mr. Board Chairperson. "What were you thinking?" he thundered. "The Town Hall secretaries have been whining about pay discrimination for years, and now you Board members have validated their concerns. How could you do this to us? You will never get this contract approved by the Nutmeg Town Council!"
Mr. Board Chairperson chewed thoughtfully for a moment on a Tums, and then called an emergency meeting of the Board for that night. At the meeting, he described his unpleasant telephone conversation with Mayor Megillah, and he told the Board that they’d better vote the contract down. Board members expressed concern about how NASTY and the secretaries would react, but they agreed and rejected the contract.
Months later, the Board found itself in arbitration over salary and the wage equity study. The Union asked simply that the negotiated agreement be enforced, and it framed its last best offers accordingly. The Board did its best to convey the concerns expressed by Mayor Megillah and its last best offers were three percent and "No such study." The arbitrators were not impressed, and after noting in their award that "a deal is a deal," they accepted the union’s last best offers on the issues in dispute.
Mayor Megillah was fit to be tied, and at his urging the Town Council rejected the arbitration award. Now what?
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Before we get to "second-look" arbitration, it may be helpful to start at the beginning of this troubled negotiation. The Municipal Employee Relations Act governs collective bargaining with board of education non-certified employees. Under that law, employers and employee groups are required to negotiate over wages, hours and conditions of employment. The parties usually negotiate ground rules to govern the negotiations process, and no public comment is a typical ground rule. However, neither party can refuse to negotiate until there is agreement on ground rules. Moreover, an employer may wish to keep its options open and not be bound by a "no press" ground rule either. Here, the Board’s decision to go ahead was reasonable.
A major mistake the Board did make was its agreement on a wage equity study. The Board could have claimed that studying salaries (vs. negotiating salaries) is not a mandatory subject of bargaining, and it may have been able to decline to negotiate over that proposal. In any event, a contract provision for further discussion or study (e.g., reopener on pension benefits, study committee on early retirement, wage equity study) does legitimize the issue, and the Board’s agreement to the wage equity study could be seen as an implied promise to provide these employees larger increases in the future.
The other major mistake the Board made was its failure to recognize the effect of a tentative agreement. Negotiators typically sign such an agreement to assure that the terms of a proposed contract are clear before a ratification vote. Under both the MERA and the Teacher Negotiations Act, however, "the negotiations between the parties prior to arbitration" is a statutory factor that arbitrators consider very important. Typically, arbitrators will enforce a tentative agreement after a rejection by the board of education, by the membership, or by the town, based on the view that the best judge of a negotiated settlement are the two bargaining teams themselves.
Here, Mayor Megillah is confused as to the Town’s role. Under the Teacher Negotiation Act, a municipality has the right to meet and confer with the board of education before negotiations starts, and a town representative "may be present during negotiations . . . and shall provide such fiscal information as may be requested by the board of education." Moreover, the board of education must file with the town an agreement negotiated with either teachers or administrators, and within thirty days the legislative body of the town may reject it, which pushes the matter into arbitration.
By contrast, under MERA (which governs non-certified employee negotiations) the town has no direct role to play. The board of education is responsible for negotiations with its non-certified employees. It may confer with town officials over negotiations or even call them to testify in arbitration. The municipality, however, has no independent right to reject a contract negotiated by school officials under MERA or to participate in arbitration proceedings. Interestingly, however, MERA has been interpreted to give town officials a role after an arbitration award concerning school district employees is issued. In 1996 the Connecticut Supreme Court ruled that the "legislative body," the entity permitted under MERA to reject an arbitration award, is the town, even though the board of education is the municipal employer. If a town rejects an arbitration award under MERA, the procedure is similar to "second look" arbitration under the Teacher Negotiations Act. The second panel’s authority is limited to reviewing the last best offers of the parties and either confirming or reversing them. The practical effect of a town’s rejecting an arbitration award, therefore, is limited by the last best offers made by the board of education.