Collective Bargaining Implications of New Yorks ESSA Plan 1 - - PDF document
Employment Law Some Bargaining and Non Bargaining Issues Presented by: John H. Gross, Esq. Gregory J. Guercio, Esq. Ingerman Smith, LLP Guercio & Guercio, LLP 150 Motor Parkway, Ste. 400 77 Conklin Street Hauppauge, NY 11788 Farmingdale,
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Presented by: John H. Gross, Esq. Gregory J. Guercio, Esq. Ingerman Smith, LLP Guercio & Guercio, LLP 150 Motor Parkway, Ste. 400 77 Conklin Street Hauppauge, NY 11788 Farmingdale, NY 11735 (631) 261‐8834 (516) 694‐3000 Eugene Barnosky, Esq. Jeffrey D. Honeywell, Esq. Lamb & Barnosky, LLP Honeywell Law Firm, PLLC 534 Broadhollow Rd., Ste. 210 3 Winners Circle, Ste. 200 Melville, NY 11747 Albany, NY 12205 (631) 694‐2300 (518) 512‐4580
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Education Act of 1965 (ESEA) – provides federal funds to states to improve public elementary of secondary education.
(NCLB)
were effective January 30, 2017
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SED to publish, with a 60‐day comment period, proposed amendments to §§100.2(ff), 100.18, 100.19 and Part 120 of the Commissioner’s Regulations and a new §100.21 of the Commissioner’s Regulations in order to implement New York’s ESSA Plan.
Register on May 9, 2018.
amendments to the Regulations.
proposed amendments and new Regulations as an emergency measure, effective July 1, 2018.
published in the State Register on July 18, 2018 with an additional 30‐day comment period.
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approximately 1,900 comments were received, more than 1,400 of which were submitted as part of four form letter campaigns.
Regulations related to student participation in state assessments
to certain provisions of the amended and new Regulations that the commentators believed impinged upon decisions that should be addressed in collective bargaining
revisions to the proposed amendments adopted by the Board of Regents as an emergency measure at its July meeting.
2A6REVISED.pdf
presenting to the Board of Regents at its September 2018 meeting additional revisions and changes to the Regulations, again based on public comments.
surrounding student participation in state assessments
adopted as a second emergency action, the revised amendments to the Commissioner’s Regulations to implement the State’s approved ESSA Plan effective as of September 18, 2018.
permanent adoption at the December 2018 Board of Regents meeting after publication of Notice of Emergency Adoption and Revised Rulemaking in the State Register on October 3, 2018 and expiration of a new 30‐day public comment period.
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the 2017‐2018 school year results, the Commissioner shall review the performance of all public schools and school districts in the State and determine whether such public schools shall be identified as a:
School, or a
and/or
Target District
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things, in its school comprehensive education plan,
include timelines for the implementation of school‐level evidence‐based interventions and job‐embedded professional development
effective or highly effective pursuant to Education Law 3012‐d by a school district in the previous school year, subject to collective bargaining as required under article 14 of the Civil Service Law, and require that any successor collective bargaining agreement authorize such transfers unless otherwise prohibited by law
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receivership; and
CSI school for
educational welfare of students;
been identified by the Commissioner as a poor learning environment based
student performance data required for the Commissioner to perform the annual assessment; or
in the State assessment program.
and for revoking a school’s registration
that is being closed or phased out or to close and replace a struggling or persistently struggling school, the Commissioner may require information regarding:
new school, which must result in the selection of school leaders with a track record of success as school leaders and a staff that consists primarily of experienced teachers (i.e., at least 3 years of teaching experience) who are certified in the subject area(s) they will teach, have been rated Effective or Highly Effective…in each of the past 3 years, and are not currently assigned to the school to be closed or phased out, unless waived by the Commissioner, subject to collective bargaining as required under article 14
agreement authorize such appointments unless otherwise prohibited by law.
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purpose of financing collective bargaining, contract administration and grievance “adjustment” as a violation of the First Amendment freedom of association and speech
riding”
prevented
expenditures by the union in support of political or ideological activities
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Harris
bargaining to include home health care workers. Mandatory agency fee attacked as violation of BOTH Freedom of Speech and Association.
negotiates a fee for the service provided to the patient. State funds reimburse patient.
employees of the State but are independent contractors. Case dismissed.
decision and declares it was “wrongly decided”.
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payment of agency fees by public sector employees violate the First Amendment prohibition on state compelled speech. Janus v. Am. Fed'n of State, Cty., & Mun. Employees, Council 31, No. 16‐1466, 2018 WL 3129785 (U.S. June 27, 2018).
consent or “opt‐in” to the payment of agency fee. This means that the automatic deduction of agency fee from non‐ union members’ paychecks must cease immediately. According to Janus, the deduction may only take place if the employee affirmatively consents.
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petitioning government.
policy/political making decisional process that deals directly with allocation of limited resources and taxes.
remain silent, and right to be free from the State compelling the subsidization
Union speech that the employee
Compelled agency fee violates free speech freedom.
to meet the exacting scrutiny standard because “labor peace” can be accomplished through less restrictive means such as exclusive
been the case 41 years ago when Abood was handed down, it is now undeniable that ‘labor peace’ can readily be achieved ‘through means significantly less restrictive of associational freedoms’ than the assessment of agency fees.” Janus, 2018 WL 3129785 at *11.
represent non‐payers will economically destroy the union.
the representation of nonmembers in disciplinary matters can be eliminated ‘through means significantly less restrictive
associational freedom’ than the imposition of agency fees. Individual nonmembers could be required to pay for that service or could be denied union representation altogether. Thus, agency fees cannot be sustained on the ground that unions would otherwise be unwilling to represent nonmembers.” Id. at *14.
representation and appears to ordain that the recent New York State statutory amendments described hereafter will likely pass constitutional muster.
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employer the union becomes the “exclusive bargaining representative for all employees (unit members) who fall within the contours of the “bargaining unit”.
the bargaining unit AND were required also to collect a “service fee” from non‐members.
to regular union dues less any reduction of monies attributable to union partisan political activity.
an employee will have declined to execute and submit a dues deduction authorization card to the union and the employer. (Dues deduction authorizations are executed only by those employees who are members of the union representing the bargaining unit.)
longer entitled to such compulsory collection of agency fees since the closely similar section of Illinois’ public sector collective bargaining statute was determined in Janus to be unconstitutional by the Supreme Court.
longer automatically deduct agency fees from non‐union member employees’ paychecks.
agency fees from such employee’s paycheck.
immediately cease the automatic deduction and collection of agency fees from non‐member employees’ paychecks. If a school district fails to do so, the district will likely be subject to litigation for recoupment
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Janus decision amended sections of the Taylor Law relating to the rights accompanying certification or recognition of an employee organization, as well as what constitutes an improper employee organization practice. PROOF POSITIVE NEW YORK WILL ALWAYS HAVE PUBLIC SECTOR COLLECTIVE BARGAINING
employer must take place, and when the dues must be paid to the union by the employer;
practicable, but not later than thirty (30) days from receipt of a signed authorization card. Once collected by the public employer, the dues must be transmitted to the employee organization within thirty (30) days
authorization card in lieu of a signature by hand, if the employee chooses to sign the card electronically.
representation
consent to dues deduction from the union/employee organization, whether in writing or in another form, such as a member list, is insufficient authorization because it does not satisfy the new Taylor Law requirements. However, there are other forms of authorization that likely would be deemed acceptable by
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cards on file for employees, no further information is needed from the employees and dues deduction should continue without interruption. In other words, union members do not need to re‐sign and submit dues deduction authorization cards because of Janus.
deduction?
is no longer a simple task in providing a public sector employer’s CFO with notice of revocation.
authorization card until the employee either revokes union membership in writing in accordance with the signed authorization, or is no longer employed.
authorization as a “contract” between the employee and the Union.
promotion that results in the transfer into a new bargaining unit, the employer must notify the union and provide the union with the employee’s name, address, job title, employing agency, department or other operating unit and work location.
this notice to the union, a duly appointed representative of the union must be given the opportunity to meet with the employee for a reasonable amount
time during working hours and without charge to leave credits at a time scheduled in consultation with an administrator of the school district.
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unions.
The Supreme Court, in a case involving the Railway Labor Act, held that the Act implicitly expresses the aim of Congress to impose on the exclusive representative the duty to exercise fairly the power conferred upon it on behalf of all those for whom it acts and negotiates without hostile discrimination against them.
Court, in a case involving a claim under the RLA against a Union for alleged racial discrimination in the application of a nondiscriminatory contract, held that the duty set out in Steele to represent all fairly did not come to an abrupt end with the making of the contract between the Union and the Employer. The Court held that the Union could no more unfairly discriminate in carrying out its grievance functions than it could in negotiating a contract.
The exclusive agent’s statutory authority to represent all members of a designated unit includes a statutory
hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct.
“A breach of the statutory duty of fair representation occurs
collective bargaining unit is arbitrary, discriminatory, or in bad faith.”
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Matter of VICTOR C. BUCHALSKI, Case No. U‐28360
because of its lack of merit. In general, the duty of fair representation does not include an obligation by an employee organization to pursue litigation on behalf of a unit member. However, if an employee organization has represented other unit members in similar litigation that was successful, and the evidence demonstrates that the denial of representation to the charging party was arbitrary, discriminatory or in bad faith, a violation of §209‐a.2(c) of the Act can be established.”
members who refuse to pay union dues?
relating to the duty owed by a union to those bargaining unit members who choose not to join the union and pay union dues.
chooses to limit its services and representation of non‐members to negotiation and enforcement of the contract this does not constitute interference, restraint or coercion with an employees’ right to join or not join a union under the Taylor Law.
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for a Union to “negotiate and enforce” the collective bargaining agreement.
describes union improper practices.
required to provide representation to a non‐member:
statutory or regulatory right; or
process concerning the evaluation or discipline of an employee where the non‐ member is permitted to proceed without the employee organization and be represented by his or her own advocate.
questioning will not be represented by the Union.
employee who at the time of questioning appears to be a potential subject of disciplinary action has the right to representation by his or her certified or recognized employee organization.
representational rights are extended to teachers and administrators.
union member employees?
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representation – in Section 3020‐a and Section 75 disciplinary proceedings?
representation in grievance and arbitration hearings?
disciplinary proceedings, does the Union have to represent the non‐union member employee in a disciplinary proceeding in fulfillment of the Union’s duty to “enforce the contract” for all unit members?
contract provisions and Union relief from representing non‐union unit members under the redefined duty of fair representation?
representation, that the union’s duty of fair representation is limited to its responsibility to negotiate a contract and to enforce the contract’s provisions.
ridership” does not outweigh the non‐members’ First Amendment Rights. The Court was satisfied that unions will not give up exclusivity because the benefits the union receives from exclusivity such as “a privileged place in negotiations
imposed by the duty of having to represent everyone “fairly,” including nonmembers.
may be required to pay for grievance proceedings or for representation in evaluation and disciplinary matters. Justice Alito specifically stated that:
nonmembers in disciplinary matters can be eliminated “through means significantly less restrictive of associational freedom” than the imposition of agency fees. Individual nonmembers could be required to pay for that service or could be denied union representation altogether. Thus, agency fees cannot be sustained on the ground that unions would otherwise be unwilling to represent nonmembers.”
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be “represented” by a union in collective bargaining, asserting positions which the employee disagrees, violates the First Amendment right to freedom of association.
time being – the right of an elected union to exclusively represent the bargaining unit foreclosing challenges by other unions.
remains part of the bargaining unit and is covered by the collective bargaining agreement. Unions continue bargain for and represent employees who do not financially contribute to their
violation of the First Amendment freedom of association?
subsequently to violate freedom of association under the First Amendment of the Constitution?
consent to the deduction of union dues.
payment of union dues prior to implementing the dues deduction.
dues deduction must be in the form of a dues deduction authorization card signed by the employee. N.Y. CIV. SERV. LAW § 208(1)(b).
some form of affirmative consent for withholdings from an employee. The issue that arises is whether the school district must require strict compliance with the Taylor Law’s requirement of a “written/electronic authorization card.” If school districts refuse to deduct dues when they have written consent in a format other than a “dues deduction authorization card” that authorizes dues deduction in accordance with the Janus decision, it is unlikely that the Public Employment Relations Board would specifically require employers to obtain a “dues deduction authorization card.” To do so would exalt form over substance. Hence, deciding whether an employee’s documentary evidence is sufficient is a decision that needs to be determined on a case by case basis.
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Taylor Law, it is recommended that the payroll department in each school district take the following actions:
employee’s union dues deductions will continue uninterrupted.
authorization on file, in order to comply with Janus and the Taylor Law, the district must obtain proof of an executed card or other sufficient form of authorization, and, shall cease dues deductions if the employee/union does not provide a sufficient form of authorization after a reasonable opportunity to do so.
cease immediately unless the employee provides written or electronic consent to continue the agency fee deduction or elects to join the union and consents to full union dues deduction.
Municipal Law relating to the process applicable to employee authorization of deduction of union dues and the cessation thereof. N.Y. GEN. MUN. LAW § 93‐b.
wages or salaries of civil service employees.
allowed employees to withdraw their written dues authorization at any time by direct written notice of such withdrawal to the fiscal or disbursing officer of a municipality, including school districts.
authorization [for dues deduction] shall remain in effect in accordance with subdivision one of section two hundred eight of the civil service law.” Id. at § 93‐ b(1). The latter reference to “subdivision one of section two hundred eight of the civil service law” refers to a simultaneous budget bill amendment to the Taylor Law that now states in order for an employee to effectively revoke membership in the employee organization and cease dues deductions the employee must do so in writing in accordance with the terms of the signed dues deduction
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employee’s paycheck the employer must receive a written revocation that complies with the signed dues deduction authorization.
authorization card or other form of a signed authorization it is impossible for an employer to determine if the employee’s request is legally valid. (It should be noted that the courts have characterized an employee dues deduction authorization card or
are enforceable.)
an employee resigns from membership and is no longer to have dues deducted from his/her paycheck.
dilemma.
authorization to determine whether the employee's withdrawal request is legally valid, a public employer risks liability either by honoring the request or continuing dues deductions.
employee has taken appropriate legal action to do so, the employer may be liable to the employee for depriving him or her of property without due process.
representations as to the wishes of its individual members with regard to dues deductions and seek to independently verify an employee’s wishes, the Union may commence legal action on the grounds that the employer is improperly interfering with the union’s activities.
even if the validity of the request could not have been confirmed.
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WHEN DO WE PICK THE FIGHT WITH THE UNION: No cards on file for the bargaining unit. Union refuses to produce cards. Failure to deduct will lead to litigation. Does the Employer have a duty to “police” authorization or
does not have dues deduction authorization cards on file for certain employees, the employer has the right to demand the union, after notice and a reasonable opportunity provide executed cards or other sufficient employee written/electronic authorization for all unit employees.
employee tells the employer he/she wants out of the prior authorization of dues deduction?
electronically signed by the employee, such as an email, it is likely such document would satisfy the constitutional mandate expressed in the Janus decision.
the district should cease deduction of dues.
the dues deduction authorization card or other form of authorization, the relevant CBA must be consulted as well to make sure there are no conflicting provisions.
passage of thirty (30) days from the District's receipt of that notice."
day of the normal school year by giving written notice to the business office. The business office shall notify the President of the Association of Educational Office Personnel of all those employees who have withdrawn dues deduction on or before October 15th of each year.”
notice to the business office on or before September 15 prior to the initial deduction period established for the school year. The business office shall notify the President of the Union of all those employees who have withdrawn dues deductions in accordance with the provision of Section E of this Article by September 30 of each school year.”
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member’s paycheck. It can only be deducted if they voluntarily consent to it.
Taylor Law and the General Municipal Law.
paychecks until the employer receives written authorization from the Union, which will likely be in the form of a signed dues deduction authorization card.
authorization card or other form of written authorization on file then no action is needed; dues deductions should continue uninterrupted.
withdrawal must be in accordance with the terms contained in the dues deduction authorization card or other form of written authorization.