SETTING THE STAGE THE KEY LEGAL PRECEPTS 2 1 WHAT IS THE ESSENTIAL - - PDF document

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CURRENT REALITIES OF THE SCHOOL DISTRICT BARGAINING PROCESS

GREGORY GUERCIO, Esq. TOM VOLZ, Esq., Moderator JOHN H. GROSS, Esq.

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SETTING THE STAGE ‐ THE KEY LEGAL PRECEPTS

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WHAT IS THE ESSENTIAL LEGAL DUTY WE HAVE TO MEET IN NEGOTIATIONS?

• “The duty to bargain in good faith means that both

parties approach the negotiations table with a sincere desire to reach an agreement. Thus, good faith is a matter of intention.” Lynbrook PBA, 10 PERB 3067, 1977

• Proven by meeting, argument, persuasion, changes in

position and the free exchange of views

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DO WE VIOLATE THAT DUTY BY ENGAGING IN HARD BARGAINING?

PERB states that a party “misconstrues the duty of good faith negotiations by equating adamancy or hard bargaining with a failure to negotiate in good faith.” As long as the employer’s approach to the negotiations is premised upon a “serious desire to reach an agreement” by making sincere efforts to do so, the duty to negotiate in good faith is satisfied.” Columbia County CSEA, 10 PERB 3047 (1977)

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EXAMPLES OF PERMISSIBLE HARD BARGAINING

– WAGE FREEZE, ELIMINATE INCREMENT, REDUCE THE VALUE OF THE SALARY STRUCTURE!!! – PERB ruled that changed economic circumstances may justify withdrawal from a partial agreement before full agreement has been reached “where there is no evidence of an intention to frustrate the reaching of a final agreement.” (Town of Newark Valley, 17 PERB 4532 (1984))

• PERB sided with the Union contention that the change in circumstances

must be unanticipated and material. (Odessa Montour CSD, 28 PERB 4572 (1995))

THE SPECTRE OF THE TRIBOROUGH AMENDMENT

• The statutory enactment of § 209‐a (1)(e) of the Civil Service Law in

1981 was aimed at restoring a PERB agency doctrine known as the Triborough Doctrine (Triborough Bridge and Tunnel Authority, 5 PERB ¶3037 [1972]), in light of a then‐recent Court of Appeals decision (Rockland County BOCES v. PERB, 41 NY2d 753 [1977])

• WHAT DO YOU NEED TO KEEP IN PLACE DURING NEGOTIATIONS?

– The conversion theory of negotiations ‐ Permissive subjects that have been placed within the parties’ collectively negotiated agreement are treated as mandatory subjects for all purposes (Greenburgh No. 11 Federation of Teachers, 32 PERB ¶3035 [1999]

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WHAT DO WE HAVE TO BARGAIN OVER?

• Mandatory Subjects: Wages, hours and other terms and conditions
• f employment which, on balance, are more central to employee

work rights than the public service mission of the public employer (New Rochelle, 4 PERB ¶3060; Yorktown, 7 PERB ¶3030) Permissive Subjects: Inherently and fundamentally matters of (Non‐Mandatory) policy making related to the primary mission of the public employer or because the legislature intended to commit these matters solely to the discretion of the public employer (Bd. of

• Educ. [City of New York] v. PERB, 75 NY2d 660 [1990] ‐ citing

Webster CSD v. PERB, 75 NY2d 619 [1990]).

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OTHER IMPORTANT LEGAL CONSIDERATIONS

• Past Practice: A past practice is an unequivocal, continued and uninterrupted

implementation of a practice regarding a mandatory subject of bargaining for a period of time sufficient under the circumstances to create a reasonable expectation among the affected unit employees that the practice would continue. See County of Nassau 24 PERB ¶3029 (1991) & Chenago Forks Teachers Association, 40 PERB ¶3012 (2007).

• Reserved Right to Revert: Employer right to revert to express contract language

notwithstanding past practice to the contrary (State of New York ‐ Unified Court System, 26 PERB ¶3013 [1993]; Florida UFSD, 31 PERB ¶3056 [1998]; and County of Nassau, 31 PERB ¶3074 [1998]).

• Waiver and Duty Satisfaction: A contractual provision may expressly grant the right to

the employer to unilaterally change terms and conditions of employment that are not covered under the parties’ agreement or to allow the employer to change a subject addressed in the agreement at its option. Such a contractual provision is referred to as a strong management’s rights clause (see Garden City Union Free Sch. Dist., 27 PERB ¶3029 [1994] & Yonkers Police Assn., 40 PERB ¶3001 [2007]).

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PREPARING FOR THE START OF NEGOTIATIONS

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FIRST STEP – ATTORNEY AND ADMINISTRATION REVIEW

• Attorney and Administration review of issues arising from

the contract, past practice and those devilish “side letters”

• Reversion possible regarding a past practice?
• Produce a unified product for Board review
• Formulate a bargaining approach for Board consideration
• Traditional lengthy table bargaining
• Expedited structured negotiations
• Informal meeting approach

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SECOND STEP ‐ CRITICAL FINANCIAL HOMEWORK TO PREPARE FOR NEGOTIATIONS

• What is going on out there?
• Past client settlements
• Collect Payroll data – the hidden cost of increment
• Scattergram – unit demographics
• IMPACT of the cost of increment as a percentage of base payroll
• Lane movement
• Where does your district rank?
• Income Wealth
• Property wealth
• What is your ability to pay relative to other districts?
• Issues specific to the District – ex. Tax certs that may diminish ability to pay.

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MEET WITH THE BOARD

• GOAL ‐ Establish a bargaining plan
• Input – the Board will have questions
• Educate – board members new to the process
• Whose proposals are they?
• Board ownership – conduct a lengthy session with the

Board to review the “joint” efforts of counsel and the administration in identifying critical issues to be addressed in negotiations.

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THE TAYLOR LAW DEFINITION OF THE PARTIES TO BARGAINING

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Superintendent of Schools: Chief Executive Officer with authority to execute collectively negotiated agreement on behalf of the District. (Civil Service Law § 201) Board of Education: “Legislative Body” charged with the duty of approving any additional monies necessary to fund the provisions of a successor collectively negotiated

• agreement. (Civil Service Law § 204‐a)

Union/Employee Organization: Union has the authority to execute a collectively negotiated agreement on behalf of the employees in its bargaining unit. (Civil Service Law § 201(5))

THE PRACTICAL REALITY BARGAINING TEAM

• Counsel as Chief Negotiator with Business and Human Relations Assistant

Superintendents

• Truth is ‐ Anyone can be on the team!
• One side may not insist upon who will be present as the representative(s) of

the other side and may not condition negotiations upon the release of team members with pay. (County of Nassau, 12 PERB 3090 (1979))

• Superintendent on team? Generally trouble but not always
• KEY ‐ NO LONE RANGERS NEGOTIATING WITH THE UNION ON THEIR OWN,

INCLUDING SUPERINTENDENTS AND BOARD PRESIDENTS

• Board member on the team?
• Speak only when the Chief Negotiator tells them too!
• Consistency
• CAUTION ‐ Union always plays to Board members

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THE PROCESS STARTS

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THE FIRST MEETING

• Ground rules, what ground rules? (Ground rules for negotiations constitute a

non‐mandatory subject of bargaining (Town of Shelter Island, 12 PERB ¶3112 [1979] and Greenburgh No. 11 Federation of Teachers, 32 PERB ¶3035 [1999]). Ground rules may assist in the orderly progression of negotiations.)

• Package bargaining
• Reduce interim agreements to writing
• Confidentiality ‐ At the mediation stage, insistence on the confidentiality of

proposals over the other party’s objection violates the Taylor Law as an unlawful ground rule (Greenburgh No. 11 Federation of Teachers, 32 PERB ¶3035 [1999]).

• Visiting team members)
• Don’t forget reservation of Board right to ratify entire agreement – not just

money!

• Set dates – control the calendar by pre‐selecting possible meeting dates

team is available through June 30th – Avoid the Union claim the District is unavailable

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TODAY’S BUZZ WORD “TRANSPARENCY”

• Full financial disclosure
• Make a financial presentation
• Honest budgeting
• Can’t spend what you don’t have
• Impact of tax levy cap
• Relationship to fixed costs

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REPORT TO THE BOARD AFTER EVERY MEETING

• Today’s authority, is not “final authority” – In fact is

there ever final authority?

• See Board as often as is possible with update

reports

• THE DISTRICT NEGOTIATIONS TEAM SHOULD NEVER

BARGAIN WITH THE BOARD!

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REMEMBER THAT PUBLIC SECTOR BARGAINING IS A POLITICAL AS WELL AS ECONOMIC PROCESS

• Realities of Board politics influence bargaining
• Attacks on the attorney:
• Retainer vs. hourly
• You didn’t do that in bargaining with our next door

neighbor!

• Now that you have settled – how about taking a reduction

in your retainer fee?

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HOW AND WHEN TO COMMUNICATE OUTSIDE OF NEGOTIATIONS?

• PERB rule of “Totality of the circumstances” when reporting to the public
• School district did not violate the duty to negotiate in good faith by

communicating to members of the bargaining unit the substance of negotiations and mediation sessions, where the content of the communications was merely informative and did not contain threats of reprisal, promise of benefits or otherwise attempt to circumvent the union negotiators (Greenburgh No. 11 Federation of Teachers, 32 PERB ¶3035 [May 24, 1999]).

• Use of talking points for the Board
• Mini fact‐finding presentation at a Board meeting

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ARE WE GOING TO IMPASSE?

• What does Mediation look like?
• Who is the mediator? Private appointment?
• Should the Board be present at mediation
• Use as high drama when you are close to settlement
• Fact‐finding – different process
• Pre fact‐finding mediation with the fact finder
• The Board should be present at Fact‐finding!
• What is Super conciliation?
• Who is the Superconciliator? Private appointment?
• Limited use of interest arbitration

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THE ART IS IN CLOSING THE DEAL

• Does not necessarily occur at the table
• Small group
• Use Board President at appropriate stage
• Must know the NYSUT rep and the local president.
• What are the political realties facing the Union? After all

we need the union membership to ratify for agreement to

• ccur
• These days deals usually occur after the passage of some

time, top step unit members get annoyed at no increase, and the time has arrived for a deal!

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WHAT ARE WE NEGOTIATING OVER?

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MONEY, MONEY AND MONEY

DISABUSING THE UNION’S BELIEF WE HAVE BUCKETS OF AVAILABLE CASH IN RESERVE FUNDS i.e. CHALLANGING THE NYSUT PARTY LINE

• The Tax Cap works
• Squeezing a salary structure with costly automatic increment into a

limited revenue era

• Take from the young to give to the rich?
• The cost of lane movement and what gets approved
• Health cost drivers
• Class size/load cost drivers

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THE SALARY ISSUE

• Settlement amounts are rising a bit despite depressed Allowable Growth Factors
• The “second time around” effect
• Are we still attacking increment/lanes and how? – old vs. new money
• Freezes
• Delays
• Splits (Half steps)
• “Holds”
• Flat dollars
• Bonuses
• Post employment education provisions
• SHOULD WE BE ATTACKING STRUCTURE?
• NEW SCHEDULE FOR NEW EMPLOYEES?
• REVISE EXISTING SCHEDULE?

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THE HEALTH INSURANCE ISSUE

• Active employees – increase contribution
• Future employees ‐ greater percentage contribution
• Retirees – Contribution at least at the level of

contribution as an active employee in last year of service – reduce OPEB Costs

• NYSHIP Rule on declination
• Reduce declination award
• Negotiate a less expensive option of an Alternate Health

Care Plan

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