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In a maneuver that is a tribute to the lobbying strength of the New Jersey Education Association, the state Legislature last year enacted the School Employees Contract Resolution and Equity Act, N.J.S.A. 34:13A-31 et seq. Touted by the NJEA as restoring “balance” to negotiations, the act undermines collective bargaining and will likely result in additional costs to taxpayers. Before the act’s adoption, a school board at an impasse with a union could implement the board’s last best offer � provided the board adhered to statutory impasse procedures. That ability has been recognized in the public sector for more than 25 years and has been an accepted dynamic of labor-management relations in the private sector. It is grounded in the employer’s inherent right to manage the enterprise. And the threat of implementation provides a built-in protection against unreasonable demands by a union. Unions, however, are not without protection; by law, the school district is required to negotiate in good faith. Consequently, declaring an impasse in the absence of good faith negotiation by the school board would violate the law and likely result in an unfair labor practice charge against the district. And, the existing statutory and regulatory scheme requires school boards to exhaust mediation and fact-finding before implementing a last best offer. The act, however, alters this balance by prohibiting school boards from unilaterally imposing, modifying, altering or amending terms of employment without union approval. And, in addition to requiring school boards to adhere to the other impasse procedures already in existence, the act requires that a “super conciliator” be appointed if the impasse cannot be resolved. Although the conciliator cannot impose conditions, he or she can require parties to negotiate around the clock until an agreement is reached. The NJEA contends that implementation after impasse provides employers with an unfair advantage because it allows school boards to avoid a mutually negotiated collective bargaining agreement. This is not the case. Implementation can only occur after an existing agreement has expired and parties reach an impasse over a new agreement. In reality, the act provides the union with an unfair advantage because it allows it to negotiate a new collective bargaining agreement – and it keeps the current agreement intact beyond its expiration date, until a new agreement is reached. A No-Lose Position Consequently, the act puts the union in a no-lose spot by ensuring, in effect, that the union’s current agreement will never expire. Beyond undermining the collective bargaining process by tipping the balance in favor of the union, the act also will likely result in higher costs for taxpayers. In these times of fiscal uncertainty and rising health care costs, all employers seek to lower the cost of wages and benefits. For school boards, however, the act requires that the status quo be maintained, indefinitely, and that current wages and benefits be paid even after an agreement has expired � regardless of local fiscal needs. And, even if the union’s demands are unreasonable and lead to an impasse, the union has no risk of losing current wages and benefits, which cannot be altered unless the union agrees. Further, by requiring school boards to participate in a third round of fact-finding and conciliation before the super conciliator, the act will add to the school board’s administrative costs of negotiating. As a result, the NJEA and other unions representing school employees can avoid the consequences of reaching an impasse. Because school boards can no longer implement conditions of employment after an impasse, unions are free to make unreasonable wage and benefit demands, with the comfort of knowing current levels cannot be changed even though contracts have expired. Maddaloni is counsel with Porzio, Bromberg & Newman in Morristown, where he represents local boards of education in labor relations matters.

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