NJ Teachers' Union Contract Negotiation Approaches In the Wake of Impasse
By Juda Babuschak
A Brief Background of the New Jersey Public Education System
In each school district, members are elected to the school board and act as the governing body for the district. These members are not monetarily compensated for their services to their individual school districts. The school board decides how the school district’s tax dollars are to be spent among the schools in the district; this money goes to funding of school educational programs, as well as, teachers’ salaries. The school board negotiates a contract with the educators in the school district to determine among a plethora of other things including teachers’ wages, services, and budget. In a majority of districts the teachers are organized into teachers’ unions, which will represent them in the bargaining process with the school board. New Jersey Education Association.
The majority of public school
teachers’ contract negotiations we hear about are those which result in a
strike and the appointment of a fact-finder or mediator, although many contract
negotiations are settled between the teachers and the Board of Education,
without the help of an outside party. New teacher
contract approved Oceanport school board and teachers union settle after nine
months By Darlene Diebold Correspondent.
In fact, contract negotiations are controlled by the Teachers’
Public School Contracts under
As the Board of Education and the
teachers’ union are negotiating a government contract, they are required to
follow the standards set down in N.J.S.A. 40A:11-1, the Local Public Contracts
Law, and N.J.S.A. 18A:18A-1, the Public School Contracts Law. N.J.S.A.
40A:11-1 et seq.; N.J.S.A.
18A:18A-1 et seq.; http://www.njsba.org/legal_02/index.htm. The Local Public Contracts Law, N.J.S.A.
40A:11-1, deals with procedures and contractual provisions for all
In January of 2000, Governor Christie
Whitman enacted P.L.1999, c.440, an important revision to the New Jersey State
contracting and local government law, which revised N.J.S.A. 40A:11-1 Local
Public Contracts Law and N.J.S.A. 18A:18A-1 Public School Contracts Law to harmonize
differences in the two governing laws. Law
Changes. Currently, there is
an effort to create a common set of rules in the New Jersey Administrative Code
that will cover both of these laws. Law
Changes. It is wise to keep a
close eye on the formation and implementation of this anticipated law and how
it will effect future educator contract negotiations. Law Changes.
Although, the Local Public
Contracts Law and Public School Contracts Law provide guidelines for
contracting services within public schools, N.J.S.A. 34:13A-et seq. focuses on
collective negotiations among employee organizations and government entities
and controls the techniques for settlement of labor disputes. N.J.S.A. 34:13A-1 et seq. When a dispute arises during negotiations of
a contract or during the mediation conferences, there is always an opportunity
upon agreement of both parties to the dispute to have the matter, or matters,
submitted for arbitration. N.J.S.A. 34:13A-1 et seq. The arbitration is voluntary; therefore, to
occur it must be willingly agreed to by both of the parties. N.J.S.A. 34:13A-5.3 permits employees to
organize through unionization and also to refrain from becoming a member in an
established organization, while still receiving the benefits of the
organization. N.J.S.A. 34:13A-1 et seq. This law also allows “a majority
representative of public employees in an appropriate unit [to] be entitled to
act for and to negotiate agreements covering all employees in the unit” and
employees who are not members of the union.
N.J.S.A. 34:13A-1 et
seq. These rules under N.J.S.A.
34:13A apply to private employment as well as public employment
negotiations. N.J.S.A. 34:13A-1 et seq.
The
School Employees Contract Resolution and Equity Act is contained in N.J.S.A.
34:13A-31 section of the N.J.S.A. 34:13A statute. N.J.S.A. 34:13A-1 et seq. Under this act, which was made effective July
10, 2003, collective negotiations between the School Board and the Union
Representative will be subjected to a mandatory fact finding when the parties
have not reached an agreement as to the terms of the contract and have
exhausted the mediation procedures provided by the Public Employment Relations
Commission. N.J.S.A. 34:13A-1 et seq. The person who is appointed as fact finder
will issue a report on his findings with regards to the parties’ impasse and
make suggestions as to appropriate solutions to the unresolved dispute. The fact finder will also extend the
mediation process between the two parties in an effort the assist them in
reaching an agreement. If a voluntarily
negotiated agreement is not reached “within 20 days after the issuance of the
fact finder’s report, the commission shall appoint a super conciliator.” N.J.S.A. 34:13A-1 et seq. The purpose of the super conciliator is to
assist the parties in their negotiation through the conducting of investigatory
proceedings “until a voluntary settlement is reached, and [he has] provide[d]
recommendations to resolve the parties’ differences.” N.J.S.A. 34:13A-1 et seq. A final report will be issued by the super
conciliator for consideration by the two parties if an agreement has not been
reached despite all of the super conciliator’s efforts. N.J.S.A. 34:13A-1 et seq.
The State of New Jersey Public
Employment Relations Commission, PERC, is
a New Jersey Government Agency “concerned exclusively
with matters of public employment related to representation elections; the
scope of public sector negotiations; unfair practices; mediation; fact-finding;
and arbitration.” N.J.S.A. 34:13A-5.1; N.J.S.A. 34:13A-1 et seq.; NJ PERC. PERC was established by the New Jersey
Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq., “in 1968 to
administer and enforce the Act’s provisions governing the conduct of collective
negotiations in
Frustration
that results from the impasse during negotiations that my have already been
taking place from several months to a year can trigger the use of ulterior
negotiation technique such as striking. Atlantic Highlands
Herald. However, striking by
teachers during the school year is an illegal action and when a return to work
order is issued by the Superior Court Judge, disobedience by continued striking
can cause striking teachers to be jailed.
Atlantic
Highlands Herald. When negotiations
have reached this level of breakdown, assistance is needed from an outside
party. State
mediator enters Mid’town teacher talks.
When Contract Negotiations Reach an Impasse
On
This particular notorious incident
is believed to have initiated the bill, signed into law by Governor James McGreevey,
prohibiting the school boards from implementing their last best offer when
negotiations between the two parties have reached an impasse. Bill 2398, signed
into law by Governor McGreevey on
Role of the Special Mediator: When Negotiations Reach
an Impasse
In
December 2001, when negotiations concerning the teachers contract in the
Middletown School District came to an impasse the teachers’ union authorized a
strike by their members. Middletown Teachers
jailed. A lawsuit was brought
by the Middletown Board of Education against the teachers. Around two hundred and twenty eight teachers
and secretaries were jailed when they refused to
return to their jobs after a back-to-work order was ordered by the Superior
Court. Middletown Teachers
jailed, A
daily lesson: More teachers jailed in New Jersey as contract negotiations stall. The Middletown Township Education
Association, the local teachers’ union representing a large number of
Middletown District teachers, received a great deal of criticism from the
numerous meetings and conversations with the respective parties and their representatives, reviewed and analyzed written submissions from the parties, examined many documents, read more than one-hundred and fifty e-mails from interested persons, held an open public forum attended by approximately two-hundred and fifty people, and interviewed administrators, teachers, students, paraprofessionals, and staff.
Special Mediator Riccio states, “In making my Findings of Fact and Recommendations I have relied on the totality of circumstances as gleaned from my investigation, inquiry, and hearings as well as my knowledge, training, and experience.” Public Report of Special Mediator - Middletown.
Overcoming a Strained Negotiating Relationship
Riccio’s public report included relevant factual background information on both the Board and the Association, his recommendations for the terms of settlement, an analysis of the primary cause of the labor dispute and his recommendations to address that cause. The Board’s history as to its primary goals, political platform, and negotiation and relations with the Association was explored. Public Report of Special Mediator - Middletown. Riccio found that there is greater turnover of the nine board member positions, most likely because it is a political seat where the elected members volunteer their time without monetary compensation. Public Report of Special Mediator - Middletown. A great deal of friction and hostility was created during a prior contract negotiation that began in 1996 when the prior Board in 1998, after two years of stalled negotiations, unilaterally imposed their last, best offer as a binding contract on the Association. Public Report of Special Mediator - Middletown. A strike by the members of the Association resulted. Public Report of Special Mediator - Middletown. Although this current Board was hopeful that their “pro-education” views would create an improved relationship, this was not the outcome. Public Report of Special Mediator - Middletown.
The Association is a local union
who has ties to the New Jersey Education Association (NJEA) and National
Education Association (NEA). Middletown Township Education Association. The Association was elected to represent its,
one-thousand and six members strong, group of teachers and secretaries located
in the
Special Mediator Riccio ultimately found the relationship between the Board and the Association to be “adversarial and acrimonious.” Public Report of Special Mediator - Middletown. The negotiations, even before the impasse, had been hostile and during the mediation session the parties were antagonistic of one another, which made for a frustrating and unproductive atmosphere. Public Report of Special Mediator - Middletown. Each party viewed the other party as being aggressive and uncompromising. Public Report of Special Mediator - Middletown.
In the Special Mediator’s Report, Riccio addresses the primary cause of the labor dispute between the Board and the Association and found the discord between the two parties to be a barrier to the successful negotiation of a collective contract. He points out that as a Special Mediator he finds it “necessary and proper” in fulfilling his obligations as a mediator to “identify and address the primary cause of the present labor dispute.” Public Report of Special Mediator - Middletown. Riccio found, not surprisingly, that the problem was well past monetary, stemming from longstanding “personal animosity between the Board and Association leaders and “well-meaning but ineffective Board and Association leaders.” Public Report of Special Mediator - Middletown.
Setting the Atmosphere for Effective Negotiations
The atmosphere set by the Board and Association leaders’ treatment of one another was not conducive to achieving a collective negotiation. The Special Mediator noted that insensitivity and lack of mutual respect among the parties created a barricade to settlement of issues “routine[ly] and regularly resolved by the vast majority of boards and associations through orderly, fair, and respectful collective bargaining” and that “under normal circumstances settlement would have been simple.” Public Report of Special Mediator - Middletown. Although leaders of the Board and Association were well-intended, they provided ineffective leadership at the negotiation table. Riccio described the mediation sessions as intensely adversarial and confrontational; that the Board and Association representatives were unwilling to leave their personal animosities at the door. Public Report of Special Mediator - Middletown. The Board and Association leaders have made their goal to win the contract dispute instead of conciliation. Public Report of Special Mediator - Middletown. By overlooking economic fairness of contract negotiation and reaching for a symbolic victory the parties were not be able to effectively come to an agreement on a contract. Public Report of Special Mediator - Middletown.
Sometimes when negotiations have reached this point, where parties can no longer negotiate with one another; there is still an opportunity to renew negotiations. In a situation such as a teachers’ contract negotiation, which due to its effect on the society within the school district, takes place publicly as well as privately there must be a public transformation from the negative adversarial atmosphere to a positive professional complimentary negotiation forum, as well as a private commitment from party leaders to contract collaboration. However, in circumstances as in this particular case, oftentimes the best approach to mending the lines of negotiation is electing new negotiators. It is as close to beginning anew in the negotiation process as the two parties can achieve. This approach gives the parties an opportunity to reexamine their point of conflict from a new angle and to release themselves from old sticking points to permit conciliation on topics that had recently been a nonnegotiable.
Although, each party to the negotiation has their own goals and perspectives both parties share a common goal of providing the best education possible for the children within their school district, using the available resources. In order to meet this common goal and reach a complimentary contractual outcome the negotiation leaders must understand and respect the other party’s history and objectives. The welfare of the children must be placed above the petty disagreements of the Board and the Association in order to dispel the personal animosity and foster a healthy environment of respect and meaningful contributions. Public Report of Special Mediator - Middletown. Riccio found that, “Embracing a political and philosophical commitment to the importance, worthiness, and dignity of education and educators is one concrete way to transform the District’s pervasive culture of confrontation.” Public Report of Special Mediator - Middletown.
In addition to beginning anew,
Special Mediator Riccio suggests that the Board and Association leaders educate
themselves through programs, which will train them in conciliation. Public
Report of Special Mediator - Middletown.
Specifically for the educational needs of
During the mediation process Riccio was able to resolve eleven of the thirteen issues that the parties had been disputing. He applied the equality principle, making recommendations where possible during the mediation of the dispute. Public Report of Special Mediator - Middletown. Under this principle, Riccio states his “governing standard was to avoid imposing an unfair burden or conferring an unfair benefit on either the Board or Association.” Public Report of Special Mediator - Middletown. In general, Special Mediator Riccio found that the issues in contention concerned money and labor. The Association, Riccio found, made substantial concessions to reach a settlement on issues including high school instructional time, sick pay caps, secretarial possession classification, pay increases, and healthcare coverage. Public Report of Special Mediator - Middletown. On the two remaining issues, “amounts of teacher salary increases and contributions that Association members should make to the rising costs of health insurance premiums” Riccio has included recommendations in his report and has the secured Associations agreement to accept these recommendations. Public Report of Special Mediator - Middletown.
A Note on Preparing for Contract
Negotiation
Knowing
the people you will be working with and their goals and expectations will give
you the edge to prepare the most effective strategy for collaboratively
reaching your joint contractual goal. As
a leading negotiator and representative for you client, it is important to know
the goals and the aims of your client and, more importantly, to know the goals
of the opposing party. When you
represent your client in a contract negotiation, you take the place of your
client at the negotiation table and you become an extension of your
client. In this role, you represent the
interests of your client and you are limited only by the boundaries that your
client establishes. With this in mind,
researching the history and goals of the other party to the negotiation is
imperative to effectively negotiating a contract that gratifies your client’s
wishes and meets his goals. In
identifying the other party’s boundaries and limits you are able to adjust your
offer and work to find an acceptable medium that meets both of the parties’
basic needs.
As a fact
finder, or mediator, you will find it best to intimately acquaint yourself with
all parties involved in the negotiation.
The more in-depth a mediator can understand the individual parties and
their concerns the easier it will be to convince the parties that the solutions
that you are suggesting will fit in with their aspiration for the contract
negotiation. If you are able to
empathize with the passions of the parties you are working with then you can
gain a mutual respect that will allow for a trusting relationship and unfettered
exchange of ideas. As stated above, an
aspect of negotiation, according to Special Mediator Riccio, that was missing
during the
It is
also important to know the representative with whom you are working in order to
familiarize yourself with his negotiating style and cooperative
environment. Recognizing the tactics
that the other negotiator is using allows you to be on guard and address the
tactic appropriately. The best defense
to tactics that may unnerve you is to not react emotionally and as author
William Ury suggests, “Go to the balcony.”
William Ury, “Getting Past No: Negotiating Your Way from Confrontation
to Cooperation.” Bantam Books,
Assistance and Examples
For those
of you who are not familiar with New Jersey School Contracts it may be helpful
to view an actual contract. Links to the
contracts agreed on by the West Windsor-Plainsboro School District and the
There are
also a number of firms in
Current Considerations for
The New Jersey School Boards
Association, which is a state wide association made up of members from each of