Education

Judge reluctantly affirms punishment he believes to be inadequate for Board of Regents bargaining tactics

Order: The facts 'scream out for something greater than a cease-and-desist order'

Departing Regent Larry McKibben (center) and Rachael Johnson (right) listen to a speaker during the public comments sect
Departing Regent Larry McKibben (center) and Rachael Johnson (right) listen to a speaker during the public comments section of the Iowa Board of Regents meeting at the University of Iowa’s Levitt Center for University Advancement in Iowa City, Iowa, on Thursday, April 18, 2019. (Jim Slosiarek/The Gazette)

A District Court judge has ruled that although he agrees with a Public Employment Relations Board finding that Iowa’s regents system bargained in bad faith with its public-sector unions at the University of Iowa and University of Northern Iowa, there’s “no real way” to right the wrong.

Following the largely symbolic reprimand that the Public Employment Relations Board imposed over the summer forcing the state Board of Regents to post a “cease and desist” order at UNI for 30 days, that campus’ United Faculty union asked a judge to inflict a harsher penalty by forcing the sides to renegotiate the contract in question.

Although Judge Jeffrey Farrell conceded in his ruling this week that the facts in the case “scream out for something greater than a cease-and-desist order,” he noted, “The case is not that simple.”

“This is a clear instance of one party winning by engaging in an illegal practice,” he wrote. “(The Board of Regents) learned that it would be advantaged in negotiations if it could delay long enough for the legislation to pass. That is exactly what it did.

“It reaped the desired reward at United Faculty’s expense.”

But, Farrell ruled, it’s unreasonable — if not impossible — to put the two sides back in the place they were in when lawmakers in 2017 were mulling changes to the state’s collective bargaining law and regents were refusing to negotiate with their unions in hopes changes would pass to their advantage.

“Essentially, United Faculty wants the court to wind back the clock to some date in January of 2017 and order the parties to start negotiating again under the old law,” Farrell wrote in his order, spelling out several reasons he can’t.

“It is unfortunate that some intermediate remedy does not exist to impose consequences on (the Board of Regents) to prevent a similar violation in the future,” the judge wrote, acknowledging, “A cease-and-desist order is not likely to do that.”

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Attorney Nate Willems, representing United Faculty in the case, credited the judge for his “thoughtful ruling, though we disagree with his conclusion.” Willems didn’t want to speculate how the union will choose to proceed but said it’s likely to appeal.

A Board of Regents spokesman declined to comment on the judge’s order Wednesday.

Reasons Judge Farrell gave for declining to force the board to renegotiate include the complicated timing of the Legislature’s passage of its amendments to Chapter 20, the section of Iowa Code pertaining to public unions.

If lawmakers had passed their bill after March 15, 2017 — the state deadline for parties to reach an agreement — a remedy would have been unnecessary because a contract would have been approved.

But, according to Farrell, the Legislature “jumped on its opportunity” and quickly passed the law — which limited mandatory bargaining topics to wages only; capped proposed increases at 1.1 percent; and required any pending bargaining to cease and begin again under provisions of the new law.

The Iowa Legislative website shows lawmakers first introduced the bill Feb. 9, 2017, and passed it Feb. 17.

“That is an uncommonly short period of time for a piece of major legislation to pass both houses and be signed by the governor,” the judge wrote. “Even if (the Board of Regents) had negotiated in good faith, the parties may not have reached a final agreement by February 17, 2017.”

Because the Public Employment Relations Board based its bad-faith findings on “the totality of the facts” and not one specific violation, “It would have been difficult to determine the timing as to where to place the parties.”

“Two years later, there is no real way to put the parties in the same position they would have been in January 2017 and expect they would have entered into and executed a final agreement by February 17, 2017,” the judge wrote, therefore reluctantly affirming the effective slap on the wrist.

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“PERB’s decision as to remedy is supported by reason and evidence and must be affirmed,” he wrote.

Comments: (319) 339-3158; vanessa.miller@thegazette.com

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