Stephen Fine: Battle over public teacher contract talks may go to court again

Bizar Male

This commentary is by Stephen Fine of Athens, Vermont, who practiced law for about 25 years in New York City and another 25 years or more in Vermont and is now retired. He is a member of the Bellows Falls Union High School Board, and before that was a member of the Windham Northeast Supervisory Union Board and the Athens School Board. He is lead negotiator on the Windham Northeast boards negotiating committee.

An extremely consequential contest is now unfolding quietly here in southern Vermont. It involves the way in which teacher salaries and benefits are determined.

Traditionally, they had long been the subject of closed-session negotiation between the parties: On one side, the local teachers union, together with its parent, VT-NEA, the largest, most powerful and wealthiest union in this state, with unlimited resources, and backed by one of the largest, most powerful and wealthiest unions in the country. On the other side, local folks, generally unskilled in the nuances of collective bargaining, and with severely limited resources.

To put it another way: On one side, a party with unlimited access to information on virtually every teacher contract and negotiation in the state, as well as every litigation affecting teacher negotiations, since VT-NEA typically is a party; on the other side, local people, generally limited in their knowledge of and access to critical information on what is happening in negotiations throughout the state and on changes that may occur in the applicable law.

That negotiations were held in private meetings was dictated by two factors. First, the prevailing “wisdom” over many years had been that teacher negotiations were required by the Open Meeting Law to be held in “executive session,” not in a public session otherwise generally required in the conduct of school board business. And second, it seems fairly clear that VT-NEA pushed this closed-session thesis so that outrageous salary and benefit demands made by it and its affiliates would not become publicly known. After all, how might taxpayers react to extreme NEA claims?

However, in 2018, this closed-session “requirement” was exploded in two Vermont Labor Relations Board decisions, both affirmed by the Vermont Supreme Court. Those cases concluded that, in fact, teacher negotiations do not fall under the Open Meeting Law, that there is no requirement that they be held in private sessions, and that whether negotiations are to be conducted in public or private is to be determined by agreement of the parties.

Teacher negotiations between Windham Northeast Supervisory Union and VT-NEA and its local affiliate have been deadlocked for almost a year over this open-or-closed-session issue. 

The unions have claimed that public sessions “may disrupt the process” [May 14, 2020, letter, unions to the supervisory union], and that the supervisory union’s “insistence that the meeting be open to the public is either a whim or an attempt to gain a bargaining advantage” [June 2, 2020, letter, unions to the supervisory union].

But at its core, the unions’ position is that the supervisory union has no right, unilaterally, to condition bargaining on sessions being public, ignoring, of course, that the unions have no more right, unilaterally, to condition bargaining on sessions being closed.

On the other hand, the supervisory union’s bargaining position was, and continues to be, that public negotiations are most consistent with Vermont’s strong public policy favoring transparency and openness in the conduct and work of public bodies, including school boards. In addition, that public policy clearly is implicated in teacher negotiations because of their significant impact on the public purse.

At the labor board, the unions filed a claim against the supervisory union: that it committed an unfair labor practice by “conditioning” bargaining on the sessions being open. In response, the supervisory union filed a claim against the unions, that they committed an unfair labor practice by “conditioning” bargaining on the sessions being closed.

The labor board, in its infinite wisdom, has just decided, in a 12-page order, to issue an unfair labor practice complaint against the supervisory union, setting the stage for a public hearing against it, on the claim that it conditioned negotiations on their being public.

However, as part of that infinite wisdom, the board also decided not to issue an unfair labor practice against the unions for their conditioning negotiations on sessions being closed. In this battle between an almost-insignificant supervisory union — one of some 50 supervisory unions and independent districts in the state — on one hand, and Goliath on the other, was this a surprise to anybody?

But, whatever may have prompted the board to reach such inconsistent positions, its action raises another, and perhaps more acute, question: What ultimate remedy can the board provide?

Since no party is required to abandon a bargaining position, and since the Supreme Court has made clear that it is for the parties to determine if sessions are open or closed, can the labor board tell the supervisory union it must abandon its bargaining position and it must negotiate in secret? Another new, and perhaps more serious, issue clearly is setting up for the Supremes to ponder.

This extremely consequential contest now unfolding quietly here in southern Vermont is one that VT-NEA just cannot afford to lose. Its loss would have statewide implications: Other school boards might decide that open negotiations are more desirable than clandestine meetings, that public sessions are compellingly consistent with Vermont’s public policy in favor of openness in the conduct of the people’s business, and that public negotiations will serve to provide other school boards with information on what is happening in statewide teacher negotiations. VT-NEA cannot allow that to happen.

Next Post

Treyarch adding harsher punishments for League Play quitters in Black Ops Cold War

Treyarch’s Lead Game Designer has confirmed that Call of Duty: Black Ops Cold War’s League Play mode will be getting new abandon penalties, as players complain about teammates leaving matches early.  Black Ops Cold War’s League Play finally dropped on February 8, nearly 3 months after the game released. Fans […]