Union Concessions Not So…Concessional


This morning, the Douglas County Federation of Teachers responded to the School Board’s thoughts on the state of contract negotiations. The response is notable, because it appears to walk back a number of concessions that the union had made in earlier negotiations.

The union’s justification, laid out in a letter to its membership (see below), is that since the Board wasn’t negotiating in good faith, it has the right to rescind these concessions pending either mediation, arbitration, confrontation, or litigation.

Particularly, it appears to renege on two issues that it had agreed to defer to to the courts: the matter of union heads being full-time employees on the the district payroll (although all current expenses would be borne by the union), and union dues collection by the district.

The language concerning the dues actually suggests that the union may feel that, because of this week’s Supreme Court decision slapping down the SEIU in California, it has no choice but to go to war over the issue.  The phrase no “legally cognizable justification” in this context basically means, “we think you’re wrong, but we can’t say why.”  By dropping the specious 1st Amendment claim they had made before, the union is essentially dropping the notion that this is contestable in court.  They may try, but they can’t win on those grounds and they know it.
Ironically, that may have made it harder to reach an agreement, if there were one there to be reached.  The union, realizing that it has no chance in the courts, is now turning to the NLRB or the CDLE for help, and is doing two things here.  First, it’s taking back the concessions, putting them back on the table in the case of mediation or arbitration.  (Of course, there is nothing to prevent the district from doing the same.)  Second, intervention by the NLRB requires that management not be negotiating in good faith, so the union is beginning to lay out its case.
They’re clearly doing so in the section on Full-Time Employees, where they continue to demand that their unions head stay on the district payroll, with the union picking up current expenses, even if they aren’t actually doing any teaching.  They do this by claiming that management is practicing an “unwarranted interference” in the union’s ability to choose its own representatives, which would be a violation of 29 U.S.C. § 157.  Any judge in his right mind would dismiss this out of hand; the fact is that the union could make up the benefit by providing its own pension plan for its own employees, or by setting up a 401(k).  Many unions do this, although the AFT currently does not, and the Ohio affiliate has even tried to argue that a pension plan is better both for the employee and the employer than a 401(k).  Any decent judge would rule this out of bounds; there’s no telling what the CDLE or the NLRB would do.
As for the ER&D training mentioned in that paragraph, this is a red herring, but it’s a complicated little red herring.  It appears that the union is also trying to argue that, by preventing the union heads from being “teachers,” it’s also preventing them from taking advantage of the union-developed ER&D training.  In fact, the ER&D training is paid for and owned by the district, while the content and administration are controlled by the AFT.  It appears that the union’s argument is that since the program is mandated by and paid for by the district, it can’t have oversight of how well that program is implemented – or establish the requirement – unless the person it’s overseeing is a teacher.  But it seems to me that this could be easily solved by a contractual relationship with the ER&D supervisor, with certain standards of performance.  The union has already agreed to supervision of its union heads in their roles of ER&D delivery; why this can’t be continued under a contractual relationship is beyond me.   But in claiming that the ER&D program is proprietary to the national AFT, and that those supervising it must be teachers, it’s probably trying to further its claim that the district is interfering in union affairs by refusing to employ the union heads as teachers at all.
In short, this letter isn’t a serious response, but it’s certainly a walk-back of previous concessions, not in preparation for a court battle it knows it can’t win, or for negotiations in which it has forfeited public support, but for mediation or arbitration that it hopes takes place on the friendly turf of the CDLE or the NLRB.
They’re planning to do this at least in part because the overwhelming majority of teachers have already signed individual contracts.  In the absence of a CBA, those individual contracts indicate that a strike would be considered “abandonment,” a costly process for the abandoner, who would have to reimburse the district up to 150% of salary for the cost of having to find a replacement.  It’s unclear to me as to whether or not arbitration or mediation would have to start before the expiration of the current CBA at the end of the month.

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