Collective Bargaining and Understanding Teacher Contracts

1. Collective Bargaining and Understanding a
Teacher Contract
Alyson Mathews, Esq.
Garden City, New York
Center for Integrated Training and Education
November 29, 2023

2. The Public Employees’ Fair Employment Act
• “The Taylor Law”
o Labor relations statute covering public employers in New York State
−Effective September 1, 1967
 The first comprehensive labor relations statute in New York, and one of the earliest in
the Nation
−Governs the relationships between public employers and employee
organizations
 Enacted to “promote harmonious and cooperative relationships between government
and its employees and to protect the public by assuring, at all times, the orderly and
uninterrupted operations and functions of government”

3. The Public Employees’ Fair Employment Act
• Collective Bargaining
o The process for fulfilling the mutual obligation of an employer and an
employee organization to negotiate in good faith over wages, hours, and
other terms and conditions of employment.
−Public employers are required to negotiate in good faith on mandatory
subjects of bargaining and enter into agreements with unions regarding the
employee’s terms and conditions of employment.
• What is good faith?
o Both parties must approach the negotiating table with a sincere desire to
reach an agreement.

4. Who’s at the negotiating table?
• The Negotiating Team
o A chief spokesperson, a recorder to take notes, an individual who is
familiar with the district’s educational program, and an individual who is
familiar with the financial needs and resources of the district
− Typically, labor counsel, and the Assistant Superintendent(s) familiar with the needs of
that particular bargaining unit
− The chief spokesperson could be an attorney, a BOCES negotiator, or a school
administrator
o The Superintendent of Schools is the statutory chief executive officer for a
school district.

5. Who’s at the negotiating table?
• May a school board choose anyone it wishes to serve
on its negotiating team?
oYes. While the Superintendent is the Chief Executive Officer, a
school board may generally choose whomever it pleases to
serve on its negotiating team, so long as the selection is not
intended to frustrate bargaining.
−Taylor Law Sec. 201(10).

6. Ground Rules and Negotiation Procedures
• Time and place for negotiation sessions;
• Deadlines for proposals;
• Length of sessions;
• Procedures for ratification of the agreement by one or
both parties; and
• Authority of the parties to reach an agreement

7. The Scope of Negotiations
• Mandatory Subjects
oA subject of bargaining that must be discussed if either
side brings it to the bargaining table.
−It is an improper practice to refuse to discuss a mandatory
subject.
 Terms and conditions of employment having greater
significance to the employees’ working conditions than the
primary mission of the public employer

8. The Scope of Negotiations
• Mandatory Subjects
oWages and other monetary benefits
oInsurance benefits
oLeave time
oProcedures for pre-approval of paid time off
oIncrease in workload

9. The Scope of Negotiations
• Prohibited Subjects
oThose subjects that are non-negotiable due to a statute
or strong public policy.
−If a prohibited subject is negotiated, the agreement can be
invalidated.
 A public policy implied from tenure laws prohibits bargaining
over the delegation of the power to grant or deny tenure to
probationary teachers.

10. The Scope of Negotiations
• Prohibited Subjects
oWhile not an exhaustive list, some examples of
prohibited subjects when negotiating in schools…
−Retirement Benefits
−Tenure Policies and Procedure
−Power to create and abolish positions

11. The Scope of Negotiations
• Non-Mandatory Subjects
oMatters that are primarily policy decisions relating to the central
mission of the public employer or those that have been
legislatively determined to be within the discretion of the public
employer even though they impact employees
−Filling positions, designation of days of school recess, caseload for
guidance counselors, class size; etc.

12. The Scope of Negotiations
• The Conversion Theory of Negotiability
oNon-mandatory subjects of bargaining that have been
incorporated into a collective bargaining agreement become
mandatory subjects for purposes of negotiating the next
agreement or any time negotiations on a current contract are
reopened.
−City of Cohoes, 31 PERB ¶ 3020 (1998); City of Troy, 33 PERB ¶ 4589
(2000) .

13. The Scope of Negotiations
• The Conversion Theory of Negotiability
oExceptions – Sunset Clauses
−Parties to a collective bargaining agreement can agree that a non-
mandatory subject of bargaining will not convert that subject into a
mandatory subject by including a sunset provision that nullifies the
previously non-mandatory subject at, or before the time of the
expiration of the collective bargaining agreement
−One-time, non-precedent-setting agreements

14. The Scope of Negotiations
• Past Practices
o A past practice involves a mandatory subject of bargaining that has not
been included in a written agreement, but which is unequivocal and has
continued uninterrupted for a period of time sufficient under the
circumstances for affected employees to reasonably expect it to continue
without change
−Chenango Forks CSD, 40 PERB ¶ 3012 (2007).
 Unequivocal – “carrying no implications for future change”
o Sherburne-Earlville CSD, 36 PERB ¶ 3011 (2003).

15. The Scope of Negotiations
• Past Practices
o How does a past practice affect collective bargaining?
−A proposed change in an established past practice relating to a mandatory
subject of bargaining must be negotiated with the employee organization
representing the affected employees before that change is decided upon by a
school district.
o When would a School not be bound by a past practice?
−A school can refute that it is bound by a past practice through evidence that
establishes it lacked either actual or constructive knowledge or when a CBA
contradicts that practice.
 Constructive knowledge will be found when the past practice is reasonably subject to
the employer’s managerial oversight

16. The Resolution of Contract Negotiations
• At the end of negotiations, you reach an agreement,
or…
oImpasse
−Situation in which two negotiation parties have reached a deadlock and
there is no foreseeable way to reach an agreement
 Impasse exists if “the parties fail to achieve an agreement at least one
hundred twenty (120) days prior to the end of the fiscal year of the
employer.”
−Either side may file a Declaration of Impasse or it may be jointly filed

17. The Resolution of Contract Negotiations
• Impasse
oThe obligation to negotiate in good faith includes
participation in mediation and fact-finding
−Refusal for either side to participate in the mediation or fact-
finding process after impasse is reached constitutes an
improper practice
 Poughkeepsie City School District, 27 PERB ¶ 3079 (1994).

18. What happens after a Declaration of Impasse is Filed?
• Mediation – PERB appoints a mediator who acts as a liaison
between the parties and attempts to broker a settlement
• Fact-Finding – If mediation fails, next step is a hearing before a
neutral fact-finder
o Makes a written report and a non-binding recommendation for settlement
o Report and recommendations become public within five days
• Conciliation – consists of another round of mediation with
assistance from PERB after a fact-finding report has been issued

19. The Settlement
• The preparation of a Memorandum of Agreement
oWritten document outlining each agreed upon subject
oMembers of both negotiating committees have a duty to
support
−A breach of this duty can lead to automatic ratification
oContract is binding once the MOA is ratified and
approved.

20. The Ratification and Approval Process
• Contract Ratification
o Voluntary process under which a tentative agreement is submitted for a
vote to accept or reject the tentative agreement
− School boards do not have an automatic right of ratification
 Right of ratification is created by agreement or through understanding between the
parties’ negotiators
o Three Steps
−Ratifying body must be aware negotiating teams reached a tentative
agreement;
−Agreement must be ratified or rejected as a whole; and
−Each side’s negotiating committee must affirmatively support ratification

21. The Ratification and Approval Process
• Contract Ratification
oWhat happens if there is a waiver of the right to ratify an
agreement?
−PERB can direct the school district to execute the agreement
 Utica City School District, 27 PERB ¶ 3023 (1994).
oImproper practice charge for both the Union and the District for failure
to support the tentative agreement

22. The Ratification and Approval Process
• Legislative Approval
oA statutory right and duty of a school board created by statute,
unlike the right of ratification which must be reserved through
negotiation.
−Limited right that allows the board to act on those contract provisions that
require board approval
oProvisions of an executed agreement that are subject to
legislative approval do not become binding on the school district
until the board has given its approval.

23. The Ratification and Approval Process
• Board’s Right of Approval
oThe Board has the right to legislatively approach certain items
set forth in an executed agreement.
−Generally, those items that require the expenditure of funds
 “Certain provisions of public sector collective bargaining agreements
require legislative action for their implementation and are effective only
when the appropriate legislative entity votes to approve them.”
oBoard of Education for City School District of the City of Buffalo v. Buffalo’s
Teachers Federation, 89 N.Y.2d 370, 375 (1996).

24. Improper Practices
• An action of either an employee organization or a public
employer that is prohibited by § 209-a of the Civil Service
Law
oMost improper practices infringe on another party’s ability to
exercise their rights granted by law
oMust be filed within four months of when the charging party first
knew, or reasonably should have known, of the alleged
improper practice

25. Improper Practice Charge v. Grievance
• An Improper Practice Charge (IPC) is an alleged violation of the
Taylor Law.
o New York Civil Service Law § 209-a(1)(a)-(h)
−Eight categories of improper practices by employers
o New York Civil Service Law § 209-a(2)(a)-(c)
−Three categories of improper practices by employee organizations
• A Grievance is an alleged violation of the Collective Bargaining
Agreement.
o The term “grievance” is defined by each CBA.

26. Improper Practices
• What happens if an Administrative Law Judge or
Board determines that an Employer Violated the
Taylor Law?
oPERB has the authority to make employees whole for the loss
of pay and/or benefits resulting from an employer’s violation of
the underlying labor practice by:
−Providing that any remedy between the parties be given retroactive effect
to the date on which the improper practice was found to have
commenced; and
−Provide for any appropriate interest from that date

27. Improper Practices
• Examples of Employer Improper Practice Charges
oRefuses to negotiate in good faith
oRefuses to continue all terms of an expired agreement
oDeliberately interferes with the rights of employees to participate
in employee organizations of their own choosing
oInterferes with the formation of a Union
oRetaliates or Discriminates based on the participation in the
Union

28. Improper Practices
• Example of Union Improper Practice Charges
oRefuses to negotiate in good faith
oBreaches its duty of fair representation to public
employees under the Taylor Law
oInterferes, restrains or coerces employees in the
exercise of their rights under the Taylor Law

29. The Taylor Law – Strikes
• Strikes in any form are illegal.
−Traditional strike
−Refusal to perform work
−Refusal to volunteer
−“Sick out”
 “an employee who is absent from work without permission, or who
abstains wholly or in part from the full performance of his duties in
his normal manner without permission, on the date or dates when a
strike occurs, shall be presumed to have engaged in such strike…”
§ 210(2)(b)

30. Strikes
• What are a school district’s responsibilities in the event of a strike
by school district employees?
o The district must immediately seek an injunction from the NYS Supreme
Court when it appears that employees are threatening to strike, are about
to strike, or are engaged in a strike.
−A temporary restraining order may be immediately issued.
o When a Union is found by PERB to have engaged in prohibited strike
activities, a school district is no longer obligated to comply with the
Triborough Amendment. In other words, it no longer has the statutory duty
to continue to terms of an expired agreement until a new one is reached.

31. Union Leadership and Release Time

32. Union Leadership and Release Time

33. Union Leadership and Release Time

34. School Calendar

35. School Calendar

36. Workday

37. Workday

38. Class Coverages

39. Class Size

40. Extracurricular Stipends

41. Job Security, Seniority, Layoff and Recall

42. Job Security, Seniority, Layoff and Recall

43. Probationary Personnel

44. Involuntary Transfers

45. Involuntary Transfers

46. Vacancies

47. Administrative Position Vacancies

48. After School Responsibilities

49. Personnel Records

50. Leave Allowance Regulations

51. Retirement and Termination Leave and Allowances

52. Grievances

53. Grievance Procedure

54. Grievance Procedure

55. Grievance Procedure

56. Future Negotiations

57. Questions? Please Contact:
Alyson Mathews, Esq.
Garden City, NY
amathews@bsk.com
(516) 267-6395