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Posted by: on Aug 19, 2011

Journal Issue Date: Jun 2011

Journal Name: June 2011 - Vol. 47, No. 6

In the lead article of the May 2011 TBJ (“Bargaining Power: Understanding the Rights of Public Sector Workers in Tennessee”), Cathy Shuck explains the movement to eliminate public employees’ collective bargaining rights with comments about “the weight of hefty pension and benefit promises” and “staggering unfunded pension liabilities.”  In Tennessee, teacher pensions are paid through the Tennessee Consolidated Retirement System and are not subject to negotiation under the Education Professional Negotiations Act (EPNA). Health insurance benefits are negotiable, but local boards of education still retain ultimate control over those costs. The primary economic leverage that organized labor can use to gain economic concessions from an employer is the threat of a strike.  Teachers are prohibited by law from striking, so they don’t have that leverage.  In negotiations under the EPNA, the local school board can just say “no” (as they are counseled to do in negotiations training conducted by the Tennessee School Boards Association) to whatever insurance improvements the teachers’ association seeks; and upon impasse the school board can implement whatever it last offered the teachers.

Whatever may be going on in other states, repeal of the EPNA in Tennessee has nothing to do with pension and benefit costs.       

— Richard L. Colbert, Franklin

Author’s note:  I acknowledge Mr. Colbert’s point that EPNA specifically excludes pensions from its list of mandatory bargaining subjects. I would note, however, that the statements in the article about states struggling under pension liabilities were made as to the state of affairs nationwide, not as to Tennessee in particular. In my view, the repeal sentiment has been fueled by the political landscape beyond our borders, just as the adoption of EPNA in 1978 was linked to a broader national movement. I agree that repeal of EPNA may be about issues other than pension and (perhaps) benefit costs, but disagree that the rights created by EPNA are as minimal as Mr. Colbert suggests.


— Cathy Shuck

Social Media Story Clarified

In my article “What to Tell Clients About Facebook and Other Social Media Sites,” published in the March 2011 Tennessee Bar Journal, I erroneously mentioned an “acquittal” in a recent Nashville murder case where an eyewitness’s account of the crime was impeached by her Facebook entry. District Attorney Torry Johnson has properly called to my attention that my description of the case was inaccurate. The critical witness had made statements on social media sites which caused the prosecutor to question her veracity, which was taken into account in the plea negotiation process. The defendant eventually entered pleas in two cases to the crime of voluntary manslaughter and received two 15-year sentences to be served concurrently. The district attorney added in his letter to me that “I believe defense lawyers can see that uncovering such information and bringing it to the prosecutor often can be in their clients’ best interest.”  I regret the error in my description of the case, which is entirely my responsibility.  I do appreciate that the district attorney called this to my attention and added his agreement that social media sites are becoming increasingly important as a source of information.

— David L. Raybin, Nashville