Education, Sherrie Peif, Thompson

Thompson education disputes heard in non-binding arbitration

After months of controversy over the Thompson Board of Education’s decision not to approve a new Memorandum of Understanding (MOU) between the district and the Thompson Education Association, attorneys for both sides made their cases before a retired judge in a non-binding arbitration hearing.

One of the union’s primary arguments: That because the union voted to ratify the tentative agreements brought back to the Thompson Board of Education, the board was obligated to do the same.

TEA President Andy Crisman, who was called as a witness for the union during the hearing, admitted Thursday that much of what the union has previously said about the contract was inaccurate.

While Crisman did not explicitly say he or other association members were dishonest about various aspects of contract negotiations between TEA and the Thompson School District, he did admit a number of things on the stand that appear to contradict the union’s earlier statements:

  1. Neither of the two tentative agreements brought back from the negotiating table would have restricted TEA from using district emails to conduct union business.
  1. TEA has been getting special treatment and free use of facilities in the district that other non-profits in the community do not.
  1. TEA is the only association, club, group, or individual that can have the undivided attention of all teachers in the district for a 45minute presentation on membership benefits. Teachers may only opt out of the presentation after listening for at least 10 minutes.
  1. Small group 2 + 2 negotiations meetings—which board attorney Brad Miller and district counsel Caplan and Earnest have said are legal under Proposition 104 so long as no negotiations are taking place—have included bargaining discussions.

The arbitration hearing was set after the two sides could not reach an agreement on a new MOU between the district and the union for the 2015-16 school year. Union and district negotiators brought two different tentative contracts to the board. Neither were acceptable to board majority members Bob Kerrigan, Donna Rice, Bryce Carlson, and Carl Langner.

After filing a grievance with the district, the union sought an injunction keeping the current contract in place pending the results of non-binding arbitration. However, they withdrew the request after the district agreed to keep the contract in place temporarily on the condition of certain elements being removed. TEA could still refile the injunction request at a later date.

Because the arbitration process outlined in the current MOU is non-binding, if the board of education does not agree with the recommendations of John Criswell, a retired judge acting as arbitrator, it is not required to accept them.

Crisman and teacher Jennifer Klagge testified on behalf of the TEA while Carlson and Superintendent Stan Scheer testified on behalf of the district.

Union attorney Richard Rosenblatt said the TEA acted in good faith during negotiations and gave the board of education all the concessions it asked for after the first tentative agreement was rejected on May 6. He argued the board did not bargain in good faith and would have not agreed to any contract, desiring only to disband the union.

Crisman testified that Scheer “promised” him during one of the 2 + 2 meetings that the board would vote Yes on the contract if he gave in on certain items important to the board.

“I asked him, ‘What do we need to agree to to get us to a Yes vote?’” Crisman said. “He agreed to come back with a list.”

Scheer said Crisman did ask him about what TEA needed, but he denied making any promises of a Yes vote.

Crisman in a May 2 + 2 meeting said he negotiated with Scheer, who said Proposition 104 prohibited him from polling the board and therefore had no idea how they would vote, because he “know(s) who to bargain with.”

On the topic of the emails, Crisman said: “It is impossible to completely limit school emails, but we would make every effort to.”

He also said no one in the district has ever asked the union to completely give up exclusive bargaining power, despite Klagge’s testimony that Rice told her during a meeting that Rice hated all unions and wanted them gone.

There is some doubt about the accuracy of Klagge’s testimony. During direct examination, Klagge recalled her conversation with Rice word-for-word, but under cross examination she couldn’t remember a lot of what was said during that same conversation.

TSD attorney Michael Francisco said the union didn’t come close to fully addressing the three components that were sticking points for the board: Union access to district resources, a pay-for-performance model, and moving many contract items into an employee handbook not subject to negotiation.

Francisco also argued that despite TEA’s assertions to the contrary, the union was well aware of the fact that the board intended to open the entire contract up for negotiation. As evidence, he introduced a full transcript of a February 25, 2015, Thompson Board of Education meeting at which board majority members stated clearly and repeatedly that the entire contract was on the negotiating table.

He also said that under Colorado law the board is not required to automatically vote ‘Yes’ on a contract. The negotiations must be conducted in good faith, but the board still has the right not to accept what is presented to them.

Carlson admitted the union did go back to the table and attempt to make some changes, but they were not what he and the other members of the board majority were looking for.

“It is not a yes or no answer,” Carlson said under cross examination when asked if the union addressed his concerns. “Just because you address an issue doesn’t mean you’ve corrected it.”

Carson said the union’s response to the concerns – $1,000 a year for use of facilities, a promise that they try not to use the email for union business and a simple shift of who controls a performance incentive funds – did not go far enough.

“I never said the facilities use was about money,” Carlson said. “I want a system that is fair to all parties. They missed the intent … Trying not to use the email is nothing more than what they do already. They were addressed, but they didn’t go far enough.”

Both attorneys will file written final arguments by August 3. The board is scheduled to review the arbitrator’s recommendations and vote on them on August 19.

Criswell could rule first on the district’s argument that the contract is not subject to arbitration. If he agrees with the district, he would not give a recommendation in either direction. Rosenblatt asked him if that is the direction he takes if he would still give his thoughts on the matter. Criswell said no.

“I find it improper to apply jurisdiction on something that I have ruled I don’t have jurisdiction over,” Criswell said.

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