The Vermont Labor Relations Board, from left, Gary Karnedy, Chairman Richard Park and James Kiehle. VTD/Josh Larkin
MONTPELIER — Burlington attorney Richard Cassidy has been before the Vermont Labor Relations Board many times, but never in the witness seat.
But that was where he found himself Monday morning in a hearing on a complex unfair labor practice charge brought by the South Burlington School Board against the local teachers union and the Vermont chapter of the National Education Association.
At the heart of the complaint and reams of subsequent paper is just one line in a long email message about the testy labor dispute last winter at the South Burlington School, and the impact — and interpretation and ramifications — of that message on Cassidy, who was chairman of the school board during tough contract negotiations last winter.
The line in the email, authored by Vermont NEA Executive Director Joel Cook on Feb. 25, 2011, suggested that Cassidy’s law firm could face picketing by teachers if a strike occurred, “and frankly I don’t want that to happen,” Cook said, noting Cassidy’s Burlington legal firm, Hoff Curtis, has a long reputation on the other side representing labor unions.
The question is: Was the prospect of his business being picketed a subtle threat to force Cassidy, seen by teachers as the major “impediment” to a contract settlement, off the negotiating team?
Or was that mention by Cook just stating the obvious ramifications of a strike, a throwaway line in a long email that otherwise discussed points of law and was an effort “part personal and part professional” in Cook’s words, by two lawyers to try and defuse the situation?
“I hope you appreciate the spirit in which I write,” Cook ended his emailed letter, saying he was open for further discussion.
Discussion is indeed what he got, though perhaps not in the way he intended, and the “spirit” of the email was at the sometimes convoluted heart of the hearing.
Cassidy testified Monday that he “was shocked” at the email and at receiving a direct communication from Cook instead of to the board counsel. He said he took the picketing reference as indeed a “threat” and a warning “that if you don’t knuckle under to what I want, I’ll hurt you.”
As he explained to the VLRB, led through questions by Attorney Jeffrey Nolan of the Burlington firm Dinse Knapp McAndrew, the prospect of picketing at his place of business struck him as “intimidation” and made him decide, after discussion with school board’s counsel, that he had a personal conflict of interest as a result and that his role in negotiations would be tainted if he stayed on.
“That was a reasonable way to read the email: Do what I want, or there will be consequences,” testified Cassidy, a big, rotund man with close cropped gray hair and a calm demeanor. He said if he agreed to any concessions, considering the picketing threat, his impartiality could be challenged and his position would be “untenable.”
As a result, Cassidy recused himself from the negotiations several days after the email. A revamped board elected after March town meeting eventually settled for a three-year contract, though Cassidy wrote letters and commentaries urging a no vote.
But Vermont-NEA attorney Alan Biederman tried to show Cassidy basically overreacted to the email and that Cook’s comment about picketing had no ulterior motive. The morning was filled with lawyerly verbal jousting, pinning down and backtracking as Cassidy and Biederman, both experienced attorneys, went back and forth parsing the intent of Cook’s meaning about picketing, Biederman trying to show there was more than one way to interpret the email and shade individual sentences.
Biederman got Cassidy to concede that picketing is the common result of a strike and there’s nothing illegal about it.
“I wouldn’t disagree with those propositions,” said Cassidy.
Biederman also went through the letter paragraph by paragraph, pointing out it was all about trying to get a contract agreement and that that was the “spirit” talked about in the email. He pointed out Cassidy and Cook had a “collegial relationship.”
“Yeah, pretty much,” Cassidy agreed. But Cassidy still said he characterized the intent as “hostile.”
Biederman also pinned Cassidy down on the fact that Cook in the email pointed out some labor law on so-called automatic step pay increases — a key stumbling block in the contract dispute — that he felt Cassidy was not aware off.
“Could you take this that he was explaining that you didn’t know the law” and that Cook wanted to talk with him about it, he asked.
Biederman also reminded Cassidy that when he ran for the school board he said publicly four times that he might lose “union clients” and therefore the idea of picketing as part of labor strife could hardly be a shock. Mr. Cook, he said, “told you something you already knew.”
And Biederman got Cassidy to agree, Cook’s email nowhere suggested it be kept private as part of some “shady option.”
He also went over testimony to point out that Cassidy was wrong to assume that Cook’s letter directly to him was “out of bounds,” pointing out instances where such contacts to other people were made by Cassidy.
South Burlington High School.
Cook, in testimony in a previous session before the quasi-judicial VLRB, called the reaction to the email “so blasted out of proportion” he admitted he now wished he hadn’t sent it.
Documents in the voluminous file also indicate some teachers were opposed to picketing Cassidy because, in the words of one, “we look like a bunch of thugs, and he looks like a victim.”
The board also heard testimony from two other board members on their view of Cassidy’s decision to step aside on the conflict of interest issue, and with questioning by Nolan, touched on whether they felt they had been misled on coordination between Cook and the South Burlington Education Association.
Board Member Julie Beatty, who was elected last March, testified that she agreed with Cassidy that Cook’s email raised a threat.
“The whole email offends me, frankly,” she said, and she said picketing at someone’s home to her crossed a line.
“My feeling is it shouldn’t be allowed,” she said.
Board member Martin LaLond testified he felt “it was the right call” for Cassidy to step aside but noted it was unfortunate to lose “his leadership.”
He also said board members had been misled by the local teachers’ union about coordination with the Vermont-NEA on the sending of Cook’s email. If they had known “union leadership had lied to us,” perhaps the board would have filed the unfair labor charge earlier and not settled.
LaLond testified he was the sole opposing vote in the 4-1 vote to impose a contract on the teachers, which led to Cook’s eventual email.
Monday’s hearing, which last just over three hours, might seem arcane to laymen but that is not the view of another heavyweight in the schools realm, the Vermont School Board Association, which decided not to stay on the sidelines and intervened on behalf of the South Burlington School Board.
Speaking after the hearing, VSBA Executive Director Steve Dale said the picketing threat and subsequent decision by Cassidy to recuse himself “strikes at the heart of the integrity of the collective bargaining process.”
He said in his view, it would be “incredibly disruptive” if volunteer school board members could be forced from negotiations and it was a “significant concern” if there was a threat of so-called “secondary picketing” that occurs not at schools but at volunteer board members homes or workplaces.
Dale said he was not aware of any such cases in the roughly two dozen strikes that had occurred around the state in the last 40 years.
All parties agreed to provide a filing with arguments for conclusions and findings of law by Dec. 5. The board usually then takes 30-60 days to render a decision.
