VLRB Dismisses School Board’s Unfair Labor Practice Charge

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Thursday March 22, 2012

“We recognize that a strike is not a game of tiddlywinks played according to the rules of a Victorian salon.” Quoting that insight of the Vermont Supreme Court on March 13, the Vermont Labor Relations Board (VLRB) dismissed an unfair labor practice charge that had been brought by the School Board against the South Burlington Educators Association (SBEA) and the Vermont-National Educators Association (Vermont-NEA) on May 23, 2011.

Although no strike actually took place, a strike vote had been scheduled during a long, contentious, and continuing battle between the School Board and the SBEA.

The previous collective bargaining agreement between the Board and the SBEA had expired on June 30, 2010, but the two parties had begun negotiating for a successor agreement four months earlier. A year of negotiation proved unfruitful.

On February 16 of last year, the Board voted 3-1 to impose final conditions of teacher employment for the 2010-11 school year in accordance with the Board’s statutory authority. The SBEA then told the Board that educators would hold a strike vote on March 2.

A few days before the scheduled strike vote, Joel Cook, executive director of the Vermont-NEA, SBEA’s parent organization, sent an e-mail to Richard Cassidy, an attorney and the Chair of the School Board. In his February 25 e-mail, which had been reviewed and approved by the SBEA, Cook noted that Cassidy’s law firm, Hoff Curtis, described itself on its Labor & Employment webpage as “one of the few law firms in Vermont that represents labor unions.”

 “At the bottom of that page,” Cook told Cassidy, “the only name mentioned is yours, and, as you know, your bio includes a listing of many unions you yourself have represented. To me, sitting atop one of the other ‘law firms’ that represents labor unions,” Cook continued, “ the immediate future appears to be one that includes labor unions picketing the offices of Phil Hoff and Dave Curtis, and, frankly, I don’t want that to happen.”

According to the VLRB, “the fairest reading of the evidence was that Cook was acting in a high-stakes and time-sensitive situation to seek to put pressure on the person viewed by the SBEA and the Vermont-NEA as the biggest impediment to a settlement to change his position and hopefully avert a strike…Cook’s statement about picketing was an aggressive tactic in a serious labor dispute, but did not constitute restraint or coercion of the School Board concerning the retention of Cassidy on the School Board’s negotiating team…[T]he School Board has not demonstrated that it was made in bad faith [or] in violation of the parties’ negotiation ground rules regarding designated representatives and spokespersons and without permission of the School Board’s legal counsel.”

After receiving Cook’s e-mail, Cassidy consulted the School District’s legal counsel. The School Board Members’ Code of Conduct requires members to “avoid conflicts of interest as well as the appearance of conflicts of interest.” The Code defines a conflict of interest as “a situation when a board member’s private interests, as distinguished from the board member’s interest as a member of the general public, could benefit from or be harmed by a board decision.” Cassidy says that, since his personal interests appeared to be involved, a conflict of interest had been created.

Based on the legal advice he received, Cassidy withdrew from any further voting or discussion regarding the imposition of a contract on South Burlington’s educators. Without Cassidy’s participation in any further negotiations, the Board and the SBEA entered into a three-year agreement approximately a year ago.

Concerning Cassidy’s withdrawal, the VLRB underscored that “The School Board failed to prove that it could not have administered its conflict of interest policy judiciously and still allowed Cassidy to remain involved in the negotiations. Further,” continued the VLRB, “the School Board has failed to demonstrate that it has fully explored whether it could have adopted a different conflict of interest policy which would comply with state law, allow effective governance, and substantially reduce the ability of a party to take actions causing the disqualification of a School Board member in a controversy. If this cannot be accomplished,” the VLRB warned, “then Vermont’s local governments have a systemic problem that is beyond the jurisdiction of this Board to resolve.”

Vermont-NEA President Martha Allen said she was “pleased with the ruling” and that it was “unfortunate that nearly $75,000 of South Burlington taxpayer money was wasted on this claim.” According to Allen: “The union’s job in any negotiation is to ensure the consummation of a deal that leads to a contract that is fair to educators, fair to taxpayers and good for the communities’ students.”

In a press release, the School Board said that it believed that “there was substantial evidence supporting its charge” and that it continued “to feel strongly that it had to pursue the unfair labor practice charge to stand up for the community’s ability to choose its representatives, to allow them to serve without intimidation, and to ensure that the SBEA and VT-NEA bargain in good faith.” Expressing surprise and disappointment regarding the VLRB’s ruling, the Board emphasized that it remained “resolute in its assessment of the situation and its decision to pursue the matter.” The School Board was scheduled to discuss the VLRB’s decision at its March 21 meeting, a meeting that took place after The Other Paper went to press.

For our readers, The Other Paper has made the entire VLRB decision (41 pages) available on-line our website at www.otherpapersbvt.com.

SOURCE: Bill Wargo, Correspondent