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As with school districts throughout Connecticut, the Nutmeg Board of Education has been struggling to adopt a budget because certain federal grants are ending this year.  As the Board members have considered options, they have told Mr. Superintendent that the district must operate more efficiently to save money.

After undertaking a comprehensive review of district practices, Mr. Superintendent discovered that the district employs a number of paraeducators in the elementary schools to accompany students to lunch and special classes, relieving teachers of the responsibility to do so.  At the meeting of the Nutmeg Board of Education last week, Mr. Superintendent reported that the district could cut two paraeducator positions at each of the district’s elementary schools and simply ask teacher to resume their traditional responsibility for supervising their students on the way to lunch and to special classes.  Given the turnover the district is experiencing with paraeducators, Mr. Superintendent elaborated, no layoffs will result when the Board eliminates these positions.  The Board members were pleased to take this modest step to reduce its budget request, and the Board voted to cut the positions as recommended by Mr. Superintendent. 

The next day, however, the President of the Nutmeg Union of Teachers (NUTS) sent Mr. Superintendent an email with the caption, “Not So Fast.”  In her email, the NUTS President informed Mr. Superintendent that teachers would not be resuming such duties because in 1998 NUTS settled a grievance by way of a memorandum of understanding (MOA) between the Board and NUTS that specified that paraprofessionals would accompany students to lunch and special classes, freeing teachers to do “more important things.”  

Mr. Superintendent informed Ms. Board Chairperson of this development, and the Board held an emergency meeting in executive session to discuss next steps.  Veteran Board member Bob Bombast was clear – no worn-out MOA from the last century should prevent the Board from taking the steps necessary to operate more efficiently.  Board member Mal Content was more conciliatory, and he suggested that the Board negotiate with NUTS to change the terms of the MOA to permit the elimination of the paraprofessional positions in question.  After discussion, a majority of the Board voted to rescind its prior action to eliminate the paraprofessional positions and to ask NUTS to negotiate over changes in the MOA.

Mr. Superintendent and the Board were shocked by the response of NUTS.  Instead of accepting the invitation to negotiate changes to the MOA, the Union staff representative informed Mr. Superintendent that NUTS declined to negotiate and that the Board would have to wait for the next round of contract negotiations to negotiate over the terms of the MOA.

Mr. Superintendent called another emergency meeting to inform the Board of this development, and now even Mal was antagonized.  “If NUTS won’t even sit down to negotiate a change,” Bob Bombast said, “we need to do what we need to do.  I renew my motion to eliminate the para positions.”  With that, the Board unanimously approved the motion.  

Does NUTS have a valid claim against the Board here?

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If and when teachers are assigned to accompany their students to lunch and special classes, NUTS will have a valid claim because the grievance settlement remains in effect.

The Teacher Negotiation Act contemplates that there will be situations in which boards of education must negotiate with the teachers’ union during a contract term.  If a board of education wants to change working conditions (for example, by terminating a past practice of permitting teachers to leave early the day before a holiday), the board of education must first negotiate with the teachers’ union over that proposed change.  If the change relates to a permissive subject of negotiations, such as a change in the length or scheduling of the student school day, the board of education must only negotiate over the impact of the change on the teachers.  However, if the proposed change is prohibited by current contract language, the board of education may not demand negotiations, and it is stuck with the contract language until a successor contract is negotiated.

When midterm negotiations are permitted, the procedures set out in Conn. Gen. Stat. § 10-153f(e) apply.  The parties are required to notify the Commissioner of Education within five days of commencing negotiations, and the Commissioner puts the parties on a negotiation timeline similar to (but shorter than) the regular teacher contract negotiation timeline.  In midterm negotiations, the parties have twenty-five days to negotiate, followed by a mediation period of twenty-five days.  If the parties have not reached an agreement by the fiftieth day after negotiations commenced, by statute the Commissioner imposes the same binding arbitration procedures that apply to successor contract negotiations.

A board of education that wants to change working conditions must notify the teachers union (or other affected union), and the union is obligated to request negotiations.  The State Board of Labor Relations has ruled that a failure by a union to request negotiations in such situations can result in a waiver of the right to negotiate, permitting the board of education to proceed with the change unilaterally,

All that said, it appears that NUTS is correct here, and that the Board is stuck with that MOA for the contract term.  As noted above, boards of education cannot demand negotiations to change contract provisions during the term of a collective bargaining agreement.  The State Board of Labor Relations has also ruled that a grievance settlement that does not specify a duration is binding for the duration of the collective bargaining agreement.  If the board wants to change the terms of the settlement, it must raise the issue in negotiations for a successor agreement, and the settlement agreement will be binding until it is changed through negotiations for a new contract.  City of New Haven, Dec. No. 3060 (St. Bd. Lab. Rel. 1992).  

The situation confronting the Nutmeg Board of Education here underscores the importance of being careful with grievance settlements and other memoranda of understanding (MOAs).  During any successor contract negotiations, it is advisable for the parties to inventory all outstanding MOAs and negotiate over whether MOAs should terminate or carry over.  It is also advisable to agree that either party has the right to negotiate midterm over the terms of any other MOAs that surface during the term of the successor contract.

Finally, we note that the Nutmeg Board of Education held two “emergency” meetings to discuss these matters.  Under the Freedom of Information Act, “emergency” meetings are simply special meetings that are not posted at least twenty-four hours in advance because of a pressing emergency.  In such cases, the FOIA provides that the public agency must include a description of the emergency in the minutes of the meeting and file a record of what occurred at the meeting within seventy-two hours.  However, as annoying as the situation was here, it was not an emergency that justified the Board’s foregoing the twenty-four-hour posting requirement in the FOIA for special meetings.

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Photo of Thomas B. Mooney Thomas B. Mooney

Tom is chair emeritus of the School Law Practice Group and is active in all areas of school law, including labor negotiations for certified and non-certified staff, teacher tenure proceedings, grievance arbitration, freedom of information hearings, student disciplinary matters, special education disputes and…

Tom is chair emeritus of the School Law Practice Group and is active in all areas of school law, including labor negotiations for certified and non-certified staff, teacher tenure proceedings, grievance arbitration, freedom of information hearings, student disciplinary matters, special education disputes and all other legal proceedings involving boards of education. Tom is the author of A Practical Guide to Connecticut School Law (9th Edition, 2018), a comprehensive treatise on Connecticut school law, and two columns, “See You in Court!,” which appears in the CABE Journal, and “Legal Mailbag,” which appears in the CAS Bulletin.