A vote by the Thompson School District Board of Education on Wednesday effectively sends the district and the Thompson Education Association (TEA) back to court.
The board voted – for the third time – not to ratify a negotiated teacher’s memorandum of understanding (MOU) for the 2015-16 school year. The board also shot down a non-binding arbitration report that came out late last week.
The report, written by arbitrator John Criswell, sided with the TEA. He ruled that the board negotiated in bad faith and thus should vote again with the strong implication that they should ratify a contract the four majority members have said repeatedly they are not happy with. If the board did not ratify the contract, the arbitrator recommended yet more mediation.
The board took two votes, one to accept the arbitrator’s report and ratify the contract, which failed, and another to reject the arbitrator’s report – which passed, both on 4-3 votes. President Bob Kerrigan, Donna Rice, Carl Langner, and Bryce Carlson voted in the majority.
Despite the outcome of Wednesday’s meeting, Thompson teachers are still working under contracts. All teachers are under contract when they are hired, and those contracts are renewed automatically each year until the teacher leaves the district. They spell out such terms of employment as salary, benefits, raises based on years of experience and education, building assignments, and expectations.
An MOU is an agreement with a teacher’s association that outlines what benefits members to the association have. It also gives the association the ability to bargain collectively on behalf of all teachers in the district for cost-of-living raises and other benefits.
After the meeting, the TEA released a statement that said they would immediately file for an injunction to keep the 2014-15 contract in place while they take the issue to court.
“It’s unfortunate that the board majority continues to disrespect our students and community,” said Jill Date, a district teacher and member of the TEA negotiation team, in the release. “They have chosen to ignore the judge’s recommendation and continue to spend thousands on litigation, funds that should be in our classrooms and for our students.”
The vote left members Lori Hvizda-Ward, Pam Howard, and Denise Montagu expressing their disappointment, feeding the audience, which was made up mostly of TEA members.
Two people were asked to leave; one did, the other refused. An off-duty Loveland police officer paid by the district to secure the meeting rejected Kerrigan’s instruction to remove a man who repeatedly yelling during the meeting.
Others in the audience left frustrated, some shouting, “wait until November.”
Neither Langner nor Carlson is up for election this year, and Kerrigan and Rice have announced they will not seek re-election.
The TEA and allied board members contend that the majority did not act in good faith and is only out to disband the TEA and never intended to vote in favor of any proposed contract.
Criswell, a retired judge who was chosen on the recommendation of the TEA after it refused a different arbitrator, heard the case and agreed with the TEA.
“Good faith requires that each party tell the other what it wants from the agreement and each must discuss those wants in a good faith effort to resolve them. This cannot be done without each party’s communication of those wants to that other party,” Criswell wrote in his 33-page report. “If this is, indeed, the proper standard to apply, the undisputed evidence convinces me that the DISTRICT failed to comply with this standard.”
The district agreed to use Criswell only because it was stipulated his decision was non-binding and they wanted to get the facts in evidence, preparing for the eventual lawsuit the TEA had threatened, said Brad Miller, the school board’s independent counsel.
Langner pointed out that Criswell did agree the board was able to come to its conclusion.
“I fully recognize that, under Colorado law, the DISTRICT is not required to deal with a teachers’ association or to enter into an MOU with such an association,” the report reads. “The DISTRICT … is free either to recognize such an association as the exclusive agent for its teachers or to refuse to do so.”
Criswell presumed, however, that the decision whether or not to give a union exclusive recognition must happen before negotiations begin.
Before the vote, Hvizda-Ward said she was upset with how the entire negotiations played out, and urged the majority to vote in favor of the last presented MOU.
“The board majority never gave any clear direction to negotiating teams,” she said. “The board majority was unwilling to present any critical questions to negotiators. The board president failed to allow any open and thorough discussions of the terms of the MOU, even among the members of the board. The report this board received from the arbitrator was very clear in stating the board majority failed to negotiate in good faith. … The arbitrator called this negotiation process a sham. And we owe it to our students, our teachers, and our taxpayers to rectify this situation.”
Carlson said he does not agree at all with the report, or with its alleged mischaracterization of the board and its actions.
“I find the best course of action is to reject the report in full,” Carlson said. “It contains numerous inaccuracies, internal contradictions and questionable conclusions. It insinuates that the board negotiated in bad faith with TEA and that it did not intend to reach a satisfactory agreement. Nothing could be further from the truth. … Accepting this report in any form would be tantamount to saying the board deliberately operated in bad faith, and this is simply not the case.”
In its release, the TEA said it would file for an immediate injunction to keep the 2014-15 MOU in place until the suit could be heard. The injunction hearing will take place at 8:30 a.m. on Aug. 27, in Larimer County Court.
“By rejecting the report, the board majority has left Thompson Education Association no other option but to file a breach of contract lawsuit,” the news release said.
“Our students’ learning conditions and our teachers’ working conditions are at the center of negotiations,” said TEA President Andy Crisman in the release. “We are disappointed that the board majority is choosing to extend this process when students and teachers are coming back to school.”
According to the district’s Chief Financial Officer, the district has spent approximately $80,000 in legal fees related to association-requested non-binding arbitration and an initial injunction filing.
Carlson said good faith cannot be defined as a guarantee that an agreement will be reached, only that both sides work to attempt that final goal to the best of their abilities. He said the board did that.
“Nor can it be construed that one side must accept a tentative agreement of which it disagrees,” Carlson said. “I strongly believe that a democratically elected school board retains full local control over its district. Despite arguments to the contrary, this includes the ability to say no to a collective bargaining agreement that does not address the board’s concerns or work for the good of the district or its students. I reject any attempt to coerce, force or otherwise compel an elected school board to agree to terms with which it disagrees.”
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