It is no surprise that the Thompson Education Association (TEA) wants a Fort Collins judge to agree that the Thompson School District Board of Education breached its 2014-15 Memorandum of Understanding (MOU) with the group.
What is surprising, however, is the remedy TEA wants – not just in the meantime, but also for the long haul.
During a three and one-half hour temporary injunction hearing Thursday, TEA lead attorney Richard Rosenblatt argued that Larimer County District Court Judge Julie Field should grant a temporary injunction, leaving in place the 2014-15 MOU until a breach of contract lawsuit can be held based on what the TEA believes was failure to negotiate in good faith.
Thompson attorney Michael Francisco said that Field would be setting a statewide precedent if she sided with the TEA. He pointed out that the state constitution grants local control to public school districts, and no Colorado court ever has enforced a collective bargaining agreement concerning a school district.
“The board of education alone gets to decide whether or not they are going to have a collective bargaining agreement,” Francisco said. “This injunction that they seek is enforcing a collective bargaining agreement. It is very clear that the majority of the board has rejected that agreement.”
The judge was not ready to decide on the competing arguments.
“I understand there is a time element here,” Field said. “And I have thoroughly read all the motions and complaints, but there is much I have to consider. I am not prepared to rule from the bench.”
Rosenblatt also asked Field to ban the board from making any changes to Board Policy HH, which recognizes the TEA as the exclusive negotiator for Thompson teachers.
Francisco took issue with the request, noting that it was brought up for the first time during Rosenblatt’s closing arguments.
“That is new,” Francisco said. “This is a red herring. Board Policy HH is a unilateral board policy that can be changed at any time. Board Policy HH does not require the district to have an MOU. All HH says is that the district won’t engage in collective bargaining with a different union. And there are other unions that in theory the district could bargain with. It is highly inappropriate to use speculation that changes to that policy will somehow cause irreparable harm to the MOU.”
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.
TEA filed for the injunction after the Thompson Board of Education voted down the 2015-16 MOU for the third time at its last meeting, Aug. 19. Union leaders contend the board did not exercise good faith bargaining and claiming that the four majority members—President Bob Kerrigan, Carl Langner, Donna Rice and Bryce Carlson—did not intend on passing any MOU brought before them.
Although good faith is not contractually defined in any previous MOUs, the TEA alleges it means the board is required to vote yes on an MOU once its negotiators bring a tentative agreement to the table. Board members argue it means they have done all they can to come to an agreement. They hold that they are not bound to vote Yes on anything. They say going back to the table twice and extending negotiations past the contractual May 15 deadline to try and work something out is proof they tried.
The majority board member’s desires to cut ties with the union was the main argument put forth by Rosenblatt throughout the hearing.
“We’re here today because the board is not interested in continuing their terms of agreement,” said Andy Crisman, TEA president during testimony. “One could concur that they want to make changes. They want to get rid of the union.”
Teachers are still under individual contracts given out when they are hired. 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.
Without the injunction, Crisman worries teachers will lose other privileges previously agreed to in MOUs, such as removing teachers from various district committees, effectively silencing their opinions on everything from evaluation processes and working conditions to curriculum review and graduation requirements.
However, under cross-examination, Crisman said no one either in administration or on the board has ever said they wanted to do that. He also admitted the protocols set forth for the 2015-16 negotiations were never voted on and agreed to by the board.
Rosenblatt further surprised Francisco and the district when he said during closing arguments that the relief the TEA seeks in its breach of contract suit is no more than another vote by the board on the last tentative MOU brought before them.
Francisco told Field this was the first he’d heard of this and that it gives the injunction more power than the remedy itself.
“The brief that we submitted to you assumed that the TEA was going to ask for the contract to be imposed,” Francisco said. “But the TEA has now clarified today that they are going to ask you to direct the board to take another vote.”
Francisco said that Colorado contract law provides no legal basis for that remedy. He pointed out that another vote is likely to produce the same failed outcome, and to grant an injunction until that happened – likely an entire school year – would award TEA more in the injunction than winning the final suit would.
“It is not a viable, valid legal remedy for breach of contract,” Francisco said. “Even if it were a legal basis, they are now admitting they are seeking even more relief in the injunction than they are entitled to (in the main lawsuit). It’s a matter of pure logic. Even if you hold with the TEA and rule completely in their favor, all they are going to get is a vote. So (forcing the district to honor the 2014-15 contract) for the better part of a year, if not an entire year, it’s giving them 200 percent of the relief they will be asking for (in the breach of contract suit).”
Field did not rule immediately on the matter, continuing the case until 10:30 a.m. Wednesday, when she will issue her ruling on the record in open court, saying she had a lot to consider.
Editor’s note: Complete Colorado filed a motion for expanded media access to the injunction hearing described in this article. The request for media access sought permission for Complete Colorado to make an audio-only recording of the proceedings. Although no attorneys from either side objected to the request, Judge Field rejected the motion.