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Collective Bargaining and Understanding a Teacher Contract(16793704.1).pptx

Collective Bargaining and Understanding Teacher Contracts

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

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Collective Bargaining and Understanding a Teacher Contract(16793704.1).pptx

  • 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
  • 41. Job Security, Seniority, Layoff and Recall
  • 42. Job Security, Seniority, Layoff and Recall
  • 51. Retirement and Termination Leave and Allowances
  • 57. Questions? Please Contact: Alyson Mathews, Esq. Garden City, NY amathews@bsk.com (516) 267-6395

Editor's Notes

  1. Obligation to meet at reasonable times and reasonable intervals Review CBA to determine who has the right to attend bargaining sessions and whether paid by the district
  2. The term “agreement” means the result of the exchange of mutual promises between the chief executive officer of a public employer and an employee organization which becomes a binding contract for the period set forth therein, except as to any provisions therein which require approval by a legislative body, and as to those provisions, shall become binding when the appropriate legislative body gives its approval. Because Superintendent is CEO, we recommend setting a ground rule that the MOA is subject to Board ratification and approval.
  3. Same goes for the Union. We cannot dictate who is on their negotiating team. We might have a say in whether employees are released from work to attend negotiations.
  4. Confidentiality
  5. Taylor Law uses the phrase “wages, hours, and other terms and conditions of employment.” Interpreted by PERB. No obligation to agree Balancing test – employees’ interests v. employers’ interests (factors in mission)
  6. If there was an agreement to give a Union the right to determine whether a teacher should receive tenure, a court would through it out.
  7. Class size  mandatory if in CBA
  8. Contract reversion theory
  9. You can continue negotiating during mediation and fact-finding.
  10. Best practices for how to write MOA Clear, unambiguous contract language Helps to have attorney at the table
  11. Always recommend that board of education votes last.
  12. Change in past practice or terms and conditions of employment falls under bad faith bargaining (most common IPC)
  13. Directive to bargain Notice of violation – “scarlet letter”
  14. One of cornerstones of Taylor Law Purpose is to ensure that government services continue without interruption
  15. Enormous fines for engaging in a strike
  16. Release Time Time away from work for Union related business
  17. William Floyd Teachers’ Association 2018-2026
  18. William Floyd Teachers’ Association 2018-2026
  19. Commack Teachers The Education Law defines the “School Year” as the period starting on the first day of July in each year and ending on June 30 of the next year. School Districts determine the number of days that their schools will be in session and when personnel must report for duty. Schools must be in session 180 days each year for instructional purposes. Requirement for state aid purposes. Financial apportionment from the state is reduced 1/180th for each day less than 180 days the school is actually in session in accordance with the Commissioner’s regulations.
  20. William Floyd 2018-2026 No more than 181 work days with 2 Superintendent’s Professional Day Option to add 1 additional Superintendent's Professional Day Annual school calendar also designate two additional days that school will be closed and teachers not required to report to work unless they are used as a snow day/emergency closing
  21. Commack Teachers The length of a teacher’s workday is a mandatory subject of bargaining that must be negotiated. There are restrictions that limit the daily number of classroom periods and students that can be assigned. The Commissioner of Education’s regulations state that “the number of daily periods of classroom instruction for a teacher should not exceed five.” A school that requires a teacher have more than six teaching periods a day, or a daily teaching load of more than 150 pupils may only do so with a legitimate justification. What part of the day belongs to whom
  22. William Floyd Teachers 2018-2026
  23. Top Commack Bottom William Floyd
  24. Top Commack Bottom William Floyd
  25. Commack
  26. Commack Bumping Rights The teacher with the least seniority within the tenure area of that position must be the person dismissed A teacher whose position is eliminated in one tenure area may exercise their “bumping rights” to claim the position of another teacher in a different tenure area if the teacher previously served in that other tenure area and has more seniority. Bumping rights are waived if a teacher willingly resigned from their position within a given tenure area and took “affirmative steps” to terminate all aspects of employment. The PEL applies “not just for the positions…which was abolished, but also for any position similar to that one.” Appeal of Kantrowitz, 48 Ed Dept. Rep. 218 (2008).
  27. The PEL applies “not just for the positions…which was abolished, but also for any position similar to that one.” PEL and Reappointment Rights Teaches who are excessed must be placed on a PEL for appointment to a vacant similar position for 7 years after the position is abolished. Excessed teachers are called back to work from a PEL in order of seniority based on length of service in the District.
  28. William Floyd Teachers 2018-2026 Volunteers will be sought and considered before involuntary transfer is assigned Right to a meeting with a union representative present for both involuntary transfers and reassignments Does not impact their rights under the CBA or their accrued seniority List of open positions will be given to teachers being involuntarily transferred and may make request as to which position they would prefer.
  29. Top Commack Bottom William Floyd Different notice requirements
  30. Commack William Floyd does not have
  31. Commack
  32. Top Commack Bottom William Floyd
  33. “Same as above” – Must notify immediate superior in writing in advance and may be required to submit proof of attendance
  34. Commack
  35. Commack Grievance – Any claimed violation, misinterpretation, or inequitable application of the terms of the Agreement. (Art. XXXII, 32.07).
  36. William Floyd Teachers 2018-2026