NEW YORK STATE SCHOOL BOARDS ASSOCIATION

COLLECTIVE BARGAINING – WHAT’S HAPPENING OUT THERE?

Presented by:

JULIE M. SHAW, ESQ., PARTNER Shaw, Perelson, May & Lambert, LLP

jshaw@shawperelson.com

AND

JEFFREY D. HONEYWELL, ESQ., MANAGING SHAREHOLDER

Honeywell Law Firm, PLLC jdh@honeywelllawfirm.com

Moderated by:

JAY WORONA, ESQ., DEPUTY EXECUTIVE DIRECTOR & GENERAL COUNSEL

New York State School Boards Association

LATHAM, NEW YORK JULY 18, 2017

- 1 -

INTRODUCTION

Since the advent of the Great Recession in 2008, the State’s imposition of the Gap

Elimination Adjustment and the imposition of the Tax Levy Limit Law (§2023-a Education Law)

school districts in the Capital District and Hudson Valley Region (and likely across the State) have

grappled with the sustainability of their salary schedules and, more recently, a near doubling of

health premium cost inflation, well into the double digit percentage premium increases (e.g. 15.8%

DEHIC Plan, 18% Orange-Ulster School Districts Health Plan, 28% FULMONT Health Trust,

and 12% NYSHIP). School districts are now into their third and fourth generation post-recession

contracts with employee expectations high for conventional settlements.

In the absence of declining enrollment that gives economic relief due to layoffs, uncertainty

about State Aid (albeit of little relief in wealthy school districts), a still modest CPI/Tax Levy Limit

Formula factor and the specter of continuing double digit health insurance inflationary costs, area

school districts approaching the bargaining table today are greatly constrained in contemplating

negotiated increases beyond Triborough fixed costs. With the Affordable Care Act (ACA) in the

crosshairs of Congress and the President, there is uncertainty about the future of the Cadillac Tax,

that had been deferred by the past administration to the 2020 Plan Year, the focus at the bargaining

table undoubtedly will be upon reducing “Triborough Costs” and seeking greater health insurance

premium cost sharing from employees and prospective retirees.

This presentation is focused on current negotiations trends and strategies. For a basic

overview of the Taylor Law and an introduction to negotiations, see Appendix A, annexed hereto.

A. NEGOTIATIONS SETTLMENTS & TRENDS.

1. Flat Dollar Salary Schedule Increase. There has been a strong migration among the

settlements in the region away from percentage increases to the steps of salary

schedules to flat dollar amount applications. (See settlements in the counties of

Columbia, Dutchess, Orange, Putnam and Westchester). The effect of flat dollar

application is to reduce the dollar cost of step increment from year to year, thereby

aiding the movement towards sustainable salary schedules.

- 2 -

2. No Increase to the Salary Schedule. During the recent round of negotiations, several

school districts avoided adding any money to their teachers’ salary schedule. (See

settlements in the counties of Orange, Putnam, Rockland and Westchester). In some

cases this was accomplished by not pressing for additional half-steps within the salary

schedule and in other cases small new top steps were added or longevities were

significantly increased.

3. Avoiding Retroactive Raises. Apart from the early years of the Great Recession when

many school districts didn’t agree to increases on the salary schedule, recent

settlements that occurred well after the contract expiration date did not provide for

retroactive raises to the teachers’ salary schedule in the first year. (See settlements in

the counties of Dutchess, Ulster, Orange and Westchester).

4. CPI Based Salary Schedule Increases. Periodically, school districts and their teachers’

unions have used a CPI range to determine the increase to the teachers’ salary schedule

in one or more years of their contracts. The Carmel Central School District and Carmel

Teachers’ Association reached an agreement which contained no increase in the first

two years of the agreement and placement on a new salary schedule in the third year,

increases to the salary schedule of 1%-2% tied to the Tax Levy Limit Law CPI

percentages were agreed upon for the 2017-18 and 2018-19 school years, followed by

increases to the salary schedule of 1%-1.75% tied to Tax Levy Limit Law CPI

percentages for the 2019-20 and 2020-21 school years. CPI-based increases were also

agreed upon in negotiations between the Harrison Central School District and the

Harrison Association of Administrators in the 2017-18 through 2019-20 school years,

as well as in the last two years (2018-19 & 2019-20) of their agreement with the

Teacher Aides and Teaching Assistants Association.

5. Off-Schedule Salary Payments: Recurring and Non-Recurring. Over the past three

rounds of negotiations numerous school districts have kept increases off their teachers’

salary schedules by paying returning unit members increases that will be recurring from

- 3 -

year to year and in some cases non-recurring or one-time salary payments. (See

settlements in the counties of Dutchess, Putnam, Orange and Westchester).

6. Salary Schedule Reform. During the past few years several school districts have

attempted to eliminate the salary schedule or create a new salary schedules. In Bedford,

new hires are not placed on a salary schedule, but are entitled to 1.75% annual increases

for as long as they remain employed, plus periodic opportunities to have additional

adjustments to base salary for reaching professional development plateaus. In Carmel,

all teachers have been placed on a new expanded salary schedule with 20 Steps,

replacing a 15 Step Schedule. Many school districts in Westchester and Putnam

Counties have added half-steps to the interior of their salary schedules. (See settlements

in Briarcliff, Pelham, Pleasantville, Putnam Northern Westchester BOCES and Putnam

Valley). In addition, in Orange County three half-steps – Steps 1a, 2a, and 3a

(representing a monetary value half-way between Steps 1 and 2, 2 and 3, and 3 and 4,

respectively) – were added effective July 1, 2015 in the 2015-18 agreement between

the Newburgh Enlarged City School District and the Newburgh Administrators and

Supervisors Association.

Case Study 1: Putnam Valley CSD and Putnam Valley Federation of Teachers [2015-19]. The most recent teachers’ settlement followed the failed ratification of a Memorandum of Agreement that resulted in the operation of a sunset clause on employee health premium contributions, reverting back to zero contribution. Seventy percent (70%) of the teachers were on the top step of the salary schedule (Step 15, that was $500 greater than Step 14). High taxes have been a chronic concern for budget approval and the District sought to restore health premium contributions through settlement. The solution was to add 3 half-steps to the interior of the salary schedule and to add money to Step 15, to make it 1% greater than Step 14, add steps 16, 17 and 18 (each 1% steps) and step 19 (1.5% greater than step 18). During the four year term of the agreement no monies were placed on steps 1-14 of the salary schedule and those who were on step 15 before the settlement proceed at the rate of one step per year towards Step 19. The sunset provision on health

- 4 -

premiums was permanently removed from the contract and the employee health insurance premium contribution rate increased to 14%.

Case Study 2: Pleasantville UFSD and Teachers’ Association of Pleasantville [2011-12]. The 2011-12 and 2012-13 school years were settled in the middle of the first year for Step only and, in the second year, there was a step freeze with those employees who would have been step eligible receiving an off-schedule non-recurring salary payment equal to the greater of $1,250 or 1% of their annual salary, while those who were not step eligible received a recurring salary increase of the greater of $1,250 or 1%.

Case Study 3: Putnam Northern Westchester BOCES and the United

Staff Association [2016-2021]. There will be no increases to the teachers’ salary schedule for the five years of the agreement and five steps will be added to the schedule (2B, 2C, 2D and 3B effective 7/1/16, as well as 1B effective 7/1/17). Off-Schedule non-recurring salary payments of $750 per year are payable to unit member annually. Longevity was increased by adding a new 21st year longevity that is $500 greater than L14. Employee Health Premium Contributions increase by 3.0% over the 5 year period, progressing from 13% to 16%.

Case Study 4: Brewster CSD and Brewster Teachers’ Association

[2016-2020]. New hires are on a new separate salary schedule with 30 steps, with step increments of 2%, while the original salary schedule is expanded in each of four years, adding steps 21-24 each 1.1% greater than the previous step. The separate salary schedule for new hires uses the same bottom and top salary as the original salary schedule. All wage increases, other than the creation of new steps, are off-schedule as follows: 1st year - 1% recurring; 2nd year - 0.75% non-recurring; 3rd year - 1% recurring; 4th year – 0.75% non-recurring. The District eliminated flat dollar cap on employee health insurance contribution for newly-hired employees, and increased employee contributions to 20% by the third year of the contract.

Case Study 5: Greenville CSD and Greenville Faculty Association

[2016-2020]. Increases to schedule averaged 1.25% plus step (which was slightly below 2%) in exchange for a change in health insurance plans to a new “base plan” that was equivalent to about 2% in salary increase. The District also obtained some limits on the award of graduate credits and their movement on salary schedules as part of some structural long term relief.

- 5 -

Case Study 6: Averill Park CSD and Averill Park Teachers’ Association [2012-2018, settled in 2015]. No retroactive increases to schedule for the three expired years. Increases of 1%, 1.25%, and 1.25% for the future three years. For health insurance, changed to a less expensive “base plan” and agreed that all new hires would contribute 20% to premium rather than 15%.

B. THE CURRENT STATE OF THE LAW: ACTIVE AND EMPLOYEE HEALTH

INSURANCE ISSUES.

1. Status of Active Employee and Prospective Retiree Health Insurance as a Term and

Condition of Employment: The subjects of health insurance for current employees and

health insurance for prospective retirees are mandatorily negotiable under the Taylor

Law (City of Cohoes 27 PERB ¶3058 [1994]), while there is no duty to negotiate

benefits for the former members of the bargaining unit who retired at or before the time

of the last expired agreement (City of Johnstown, 25 PERB ¶3085 [1992]).

2. Legislation Protecting Retirees. Effective May 15, 2009, Chapter 729 of the laws of

1994 was amended to make permanent those provisions which related to health

insurance benefits and contributions of retired school district employees (i.e. the

“Moratorium Law”). This law removed the sunset date of May 15, 2009 as set forth in

Chapter 43 of the Laws of 2008, and provides that retiree health insurance premiums

and benefits for retirees and their dependents shall not be reduced unless there is a

corresponding reduction during the school year for the active members of the

bargaining unit from which the retirees retired (see Jones v. Bd. of Educ. Watertown

CSD, 30 AD3d 967 [4th Dept. 2006]). This applies in the absence of contract

language.

3. Contractual Protection of Retirees is vested for their Lifetime. An issue prominently

litigated in our courts several years ago was the duration of promises made to retirees

when they are actively employed regarding benefits and premium contribution

requirements years into their retirement: Once the promise is made through contract

- 6 -

language, can it be changed? The Third Department answered “No” in Warner v.

Board of Educ. 108 A.D.3d 835 (2013), leave to appeal denied 22 NY 3d 859 (2014),

and the Court of Appeals agreed in Kolbe v. Tibbetts, 22 N.Y. 3d 344 (2013).

Consequently, if contract language clearly sets contribution levels and specific benefit

entitlements they will become lifetime entitlements for retirees. The method of retiree

challenge to a change in health plans has moved from the Moratorium Law to breach

of contract in courts.

4. Contractual Duty Satisfaction to enable HI Plan Changes. Any change in the kind

and level of health insurance benefits or plan administration must be negotiated. City

School District of Corning, 16 PERB ¶3056 [1983]); but see Unatego CSD, 20 PERB

¶3004 [1987] (where the Collective Bargaining Agreement provides for participation

in NYSHIP, any changes in what that plan offers cannot be deemed a unilateral change

by the District in the employee’s terms and conditions such that it would be mandatorily

negotiable).

5. Changes in Co-pays by Plan Provider. When an HMO made available to employees

changed the prescription drug co-pay from $3.00/$5.00 to $4.00/$7.00, a matter beyond

the County’s control, such change could not be attributable to the County as an

unlawful change in the provision of health insurance (County of Dutchess, 32 PERB

¶3047 [1999]).

6. Medicare Part B. Reimbursements upon retirement were protected by a non-

contractual past practice that both PERB and the Court of Appeals recognized could be

enforced with respect to the rights of current employees who would retire in the future

(see Chenango Forks CSD v. New York State PERB, 21 N.Y.3d 255 [2013]). The recent

Scarsdale settlement calls for the District to reimburse 100% of the IRMAA costs for

the first two income level tiers and 50% of the cost of the tiers 3 &4, but 0% of the cost

of tier 5.

- 7 -

7. Medicare Part D. A recent issue in many school districts over the past two years has

been the demand for reimbursement of Retiree Medicare Part D payments. Employees

under the NYSHIP Plan are not reimbursed for such payments because Civil Service

Law §167-a only covers Medicare Part B reimbursements. However, Retirees covered

by other health insurance plans may secure the right to Medicare Part D payments

where their collective bargaining agreements or Board Policy provides for all health

insurance expenses in retirement to be paid by the school district. See Cuccia v. Bd. of

Educ., East Islip, Suffolk County Supreme Court, Index No. 23416-14 (2015) (finding

that Medicare Part D may not be viewed as a premium payment, thus, if the contract

language only refers to premium payments under an insurance program vs. all health

insurance or health care costs, such payments may not due by reason of contract); see

also Ossining School District, AAA Case No. 13-390-011179-13, Arbitrator Dennis

Campagna, 2014 (finding that language requiring 100% of the premium costs to be

paid in retirement did not obligate the District to pay for Medicare Part D IRMAA

expenses, which is not considered a premium payment).

8. Health Insurance Premium Cost Sharing by Active Employees. Typically in the

Hudson Valley and Capital District Regions, teachers’ and administrators’ bargaining

units contribute somewhere between 10% and 20% towards the cost of individual and

family health insurance premium costs. Depending upon the philosophy of the District

and its unions, non-instructional employees sometimes pay the same premium

percentages, but often pay less in contributions towards health insurance premium

costs.

9. Retiree Health Insurance: Achieving first time contributions from all active

employees (regardless of date of hire). In Briarcliff Manor, where the retiree health

benefit used to be 90%I/F for those with up to 10 years of service and 100% I/F for

those with ten or more years of service, the 2010-13 Collective Bargaining Agreement

ushered in a scale of health premium shares for prospective retirees, that was achieved

- 8 -

through off-schedule raises and a special 24th year longevity of $1,500 for those on staff

at the time of the settlement. The contract provision states as follows:

Unit members who retired prior to July 1, 2012, shall contribute the same percentage of the premium as the teacher paid as an active employee. No contributions shall be made by teachers with ten (10) or more years of service to the Briarcliff Manor UFSD. Effective July 1, 2012, unit members who retire from the District to receive benefits from the New York State Teachers’ Retirement System shall be entitled to the following District contributions towards the cost of their health insurance premium in the District health insurance plan: Years of District Service Board’s Premium Share 10-15 years of District Service Board pays 70% I/F 15-24 years of District Service* Board pays 80% I/F 25+ years of District Service Board pays 90% I/F [*Teachers contribute the percentage listed or the same percentage as active employees at the time the teacher retires, whichever is less.] Those unit members who have at least 10 years of service in the District at the time of the ratification of the 2010-2013 Agreement shall be credited with an additional 5 years of credited service time for the purposes of determination of their entitlement to District retiree health insurance premium funding for retirements that occur between June 30, 2012 and June 30, 2015.

C. THE AFFORDABLE CARE ACT.

1. Internal Revenue Code Section 4980H[a] & [b] Penalties. To avoid the penalty

provisions of the Affordable Care Act (“ACA”) at least 95% of the full-time employees

must be offered a health insurance plan that includes the minimum essential benefits of

an ACA compliant plan. Many Districts have implemented fail-safe policies to offer

insurance to all regular employees, some at their sole expense to assure avoidance of

- 9 -

the harsh penalty under 4980H[a] 1/ 12th of $2,000 X FTE count, minus 30, per month

of non-compliance. If that test is met, there will remain the potential penalty under

4980H[b] if the offer of such a plan is not affordable to all who meet the 30 hour per

week/130 hour per month coverage standard(fails the 9.5% of household income or the

safe harbor W-2 income test).

Accordingly, if a collective bargaining agreement precludes the offer of individual

and/or family coverage for certain employees, a contractual language change or Board

policy for non-unit personnel, to extend the offer, (albeit affordable or not) is of

cardinal importance to every school district.

2. The Cadillac Tax. The implementation of the Cadillac Tax has been moved from the

2018 Plan Year to the 2020 Plan Year and the threshold levels for violations will be

upwardly adjusted before this excise tax is to be imposed. Should it still be in effect in

the 2020 Plan Year, the Cadillac Tax calls for a 40% excise tax to be paid by the

employer for the amount of premium that exceeds the dollar limit issued by the US

Government (e.g. $27,500 currently for a family premium cost and $10,200 for an

individual premium cost).

[Note: In the Scarsdale Teachers’ Contract the union agreed to have its unit members pay 20%of the cost of any Cadillac Tax.]

3. Section 105(h) Highly Compensated Employees. The anti-discrimination feature of

the ACA has been on hold awaiting final regulations from the IRS that have not been

issued after a two year waiting period and may never be issued. If implemented, either

the highly compensated employees (top 25%) who enjoy greater benefits or lesser

premium payment requirements will be taxed for the difference in the value of extra

benefits or lesser premiums than those afforded to the non- highly compensated

employees (bottom 75%), if they are in a self-employed plan. Otherwise, in an insured

plan, the plan sponsor would pay the amount due the government. If the plan is a multi-

- 10 -

employer plan, it may follow that the costs are passed through from the Plan Sponsor

to the employer participants.

D. ECONOMIC SUPPORTS FOR SALARY INCREASES.

1. The Gap Elimination Adjustment (“GEA”) and State Aid. The GEA restoration has

been completed. State Aid relief in future school years will be dependent upon

increases in Foundation Aid.

2. TRS & ERS Rate Trends.

TRS: From its 2014-15 school year high of 17.53%, TRS Rates for the 2017-18 School

Year are projected to be 9.5%.

ERS: From its 2013-14 school year high of 20.9%, ERS Rates for the 2017-18 School

Year are at 15.3%.

3. Property Tax Cap. With some exceptions, the state’s Property Tax Cap limits the

annual growth of real property taxes levied by local governments and school districts

to the lesser of 2%, or the rate of inflation.

2013-14 = 2%;

2014-15 = 1.46%;

2015-16 = 1.62%;

2016-17 = 0.12%;

2017-18 = 1.26%.

4. Budget Override Votes. In the May 16, 2017 school budget vote, on a statewide basis

only 12 school district sought an override vote that required 60% or greater approval

of their proposed 2017-18 budgets. Of the 12 school districts, only 1 was in either

Westchester or Putnam Counties – Mamaroneck, where 76.9% of voters approve the

override vote. In all, only 3 of the 12 school districts had their override votes defeated.

However, this was the lowest number of attempted override votes since the inception

- 11 -

of the Tax Levy Limit Law. During 2016, 37 school districts attempted override votes

and 28 succeeded. There were 4 attempted second votes last year of which only 1 was

successful.

Section 2023-a(6)(b) of the Education Law requires the following legend to be placed

upon the ballot any time an override vote is undertaken on a budget vote and any free-

standing propositions that would, when aggregated, cause a tax levy in excess of the

tax levy limit:

“Adoption of this budget requires a tax levy increase of ____% for this school fiscal year and therefore exceeds the statutory tax levy increase limit of ____% for this school fiscal year and therefore exceeds the state tax cap and must be approved by sixty percent of the qualified voters present and voting.”

As a result of the financial constraints placed upon school districts by the tax levy limit

law, recent settlements demonstrate a heightened awareness by districts to avoid

settlements that would proportionately confer upon a bargaining unit increases that

would exceed the tax levy limit formula for their district. They also demonstrate

steadily increasing employee health insurance contributions to assist with offsetting

and containing employer costs.

5. Traditional Wealth Measures. When considering the equity of salary demands based

upon a comparative model, a primary consideration is community wealth. The

Combined Wealth Ratio of school districts, the Pupil Wealth Ratio and the Alternate

Pupil Wealth Ratio are the calculations that make up the Combined Wealth Ratio

CWR.1 In light of the Tax Levy Limit (§2023-a Education Law) a strong argument

exists that the CWR no longer represents ability to pay – just the combine of the Tax

Levy Limit + additional State Aid available for salaries.

1 In the post-tax levy limit environment, Taylor Law Fact-Finders have begun to recognize that a traditional ability to pay must be mitigated by the implications of the Tax Levy Limit Law.

- 12 -

Typically a school district’s budget is comprised almost entirely (95%) of monies

received from the annual tax levy and state aid (some state aid earmarked and some for

general use purposes). Stated differently, since the advent of the tax levy limit law, in

the absence of success in exceed the tax levy limit through a supermajority vote, the

State and not the local educational authorities control the revenue side of the budget.

E. REGIONAL TRENDS FOR COST CONTAINMENT – A RECAP.

The cost containment and stabilization initiatives prominent in teacher contracts include:

Step Freeze [on the down swing]; Half-Steps [still occurring with regularity]; Off- Schedule Salary Payments – recurring and non-recurring – [still occurring

with regularity]; No increases to the basic salary schedule with added steps [still occurring

occasionally]; Elimination of salary lanes and/or prolonging the time between lane movement

eligibility [still occurring occasionally].

F. ROLE OF SUPERINTENDENT AND BOARD IN NEGOTIATIONS.

The Superintendent is the Chief Executive Officer responsible for collective bargaining.

Agreements reached without participation or acquiescence of the Superintendent are not

enforceable. The Board must give legislative approval for provision of funding under

terms of Memorandum of Agreement. (See Civil Service Law § 204-a).

1

Appendix “A”

Basic School District Negotiations 101

I. “Taylor Law”

a. Background

i. Official title – Public Employees’ Fair Employment Act – located in Article

14 of the Civil Service Law. Named after chair of the commission that led

to the enactment of the law.

ii. Enacted in 1967.

iii. Purpose is to regulate through the Public Employment Relations Board

(PERB), a compulsory collective bargaining process between public sector

unions and employers where the right to negotiate arises through the

employer’s voluntary recognition of the union or an involuntary

certification process by PERB.

iv. Balances right of public employees’ right to collectively organize and the

prohibition of strikes by public employees.

b. Employer Rights

i. Right to recognize employee organizations (or withhold recognition of).

ii. Right to negotiate with such organizations.

iii. Right to enter into collective bargaining agreements (granted to

superintendent).

iv. Right to negotiate without strikes or strike activity.

2

c. Employee Rights

i. Right to create employee organizations (unions).

ii. Right to refrain from joining or participating in unions.

iii. Right to designate a union to represent them in collective negotiations with

public employer related to “wages, hours and other terms and conditions of

employment” as well as the administration of grievances that come out of

collective bargaining agreements.

iv. Weingarten Right – the right to union representation during questioning by

employer where employee may be subject to potential disciplinary action.

1. Applies to all union employees, including probationary employees.

2. Improper practice charge against employer if employer fails to

permit or refuses to afford an employee this right.

3. Previously by PERB decisions, now codified by law.

d. Employees Not Covered by Taylor Law

i. An employer must file an application with PERB to designate an employee

as either “managerial” or “confidential”.

1. Managerial employees – someone who either (1) formulates policy

on behalf of an employer or (2) may reasonably be required to assist

directly in the preparation for and conducting of collective

bargaining agreement negotiations or have a major role in the

administration of the collective bargaining agreement (such role

may not be routine or clerical and must involve exercise of

independent judgment).

3

2. Confidential employees – an employee who serves a managerial

employee in a confidential relationship and has access to

information related to the collective negotiation, contract

administration, or labor-management relations on a regular basis,

and such information is not appropriate for the eyes and ears of the

union’s representatives or its members.

e. Governing Body

i. PERB – Public Employment Relations Board.

1. 3-member panel appointed by Governor and confirmed by State

Senate charged with making final agency determinations. No more

than two members may be from the same political party.

2. PERB staff includes mediators, attorneys, administrators, and

administrative law judges (ALJs).

3. ALJs hear cases involving the administration of the Taylor Law,

including:

a. improper practice charges by unions or employers,

b. representation matters regard unit determinations, elections,

and certifications of bargaining representatives, and

c. the administration of strike penalties against labor

organizations.

4. PERB 3-member board hears appeals from ALJ decisions called

“exceptions”.

4

5. PERB does NOT have authority to enforce specific provisions of a

collective bargaining agreement or exercise jurisdiction over a

violation of a collective bargaining agreement unless that violation

would also be an improper practice charge.

ii. PERB’s Legal Department enforces its decisions in New York’s courts.

iii. PERB decisions are subject to Court review pursuant to Article 78 of the

CPLR.

f. Violations of the Taylor Law

i. Improper Practices by Employer [Civil Service Law § 209-a(1)].

1. interfering with, restraining, or coercing public employees in

exercising the organization rights conferred by Civil Service Law §

202 for the purpose of depriving such rights;

2. dominating or interfering with the operation of a labor organization;

3. discriminating against an individual employee regarding the

exercising of §202 protected rights;

4. failure to “negotiate in good faith” with a duly recognized or

certified representative labor organization;

5. refusing to continue all the terms of an expired collectively

negotiated agreement until a new agreement is negotiated (i.e.

Triborough) unless the employee organization engages in illegal

conduct (strike or tantamount activity) proscribed in §210 of the

Civil Service Law.

5

ii. Improper Practices by Employee [Civil Service Law §§ 209-a(2) and

201(9)].

1. interfering with, restraining or coercing public employees in

exercising their rights, as described in §202 of the Civil Service

Law;

2. refusing to “negotiate in good faith” with a public employer when

such employee organization is duly recognized or certified;

3. failure to meet the duty of fair representation for its members;

4. any strike or other concerted stoppage of work or slowdown.

iii. Duty to Bargain in Good Faith

1. Both parties are required to approach the negotiations table with the

sincere desire to reach an agreement and to actively participate in a

manner where argument, persuasion, and the free exchange of views

may take place.

2. A determination as to good faith is based on the totality of a party’s

conduct.

3. There is a mutual obligation to meet at reasonable times and confer

in good faith with respect to wages, hours and other terms and

conditions of employment.

4. There is no duty to agree to any particular proposal, however, a

failure to make any concession or reach any agreement is a factor to

be considered in determining a party’s good faith.

6

5. Good Faith bargaining must be demonstrated from the beginning of

the duty to negotiate upon recognition or certification through the

contract ratification process.

6. Since ground rules are not required under the Taylor Law, insistence

upon the presence of the press or public at negotiations sessions

violates the law.

a. 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.

7. 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.

8. Meetings must be reasonably scheduled with dates fixed in time.

9. Reasonable efforts must be made to resolve differences.

10. Information meaningful to the negotiations must be made available

by either party and misrepresentation are prohibited, including

withholding economic consequences of a particular proposal.

11. A zero-increase proposal (i.e. freeze), indicative of “hard

bargaining”, is not a per se violation of the duty to bargain in good

faith. However, “surface bargaining”, where a party comes to the

bargaining table without a sincere desire to reach an agreement, is a

violation of the duty to bargain in good faith.

7

12. A decision not to further advance a salary proposal is not a per se

violation of the duty to negotiate in good faith.

13. The withdrawal of previously reached tentative agreements may be

considered to constitute bad faith, absent extenuating circumstances

(e.g. a change in economic circumstances).

14. Awaiting state aid figures before promoting a salary offer is

permissible.

15. Awaiting a contract settlement with one unit before negotiating to

conclusion with another unit violates the duty to negotiate in good

faith.

16. The District must proceed to the negotiating table when a union

demands “impact” negotiations arising from a “unilateral”

management decision regarding a non-mandatory subject and may

not decide unilaterally that there is no impact.

17. Negotiators must be empowered to make tentative agreements

necessary to conclude negotiations, although subject to ratification

by each party.

18. Parties must execute the terms of a written agreement which

embodies those provisions agreed upon (e.g. MOA or new CBA).

19. Negotiators are duty bound to recommend a memorandum of

agreement for ratification unless they give notice to their adversaries

that they do not support certain provisions and do not intend to

support those proposals at ratification.

8

20. Good faith does not require topics be negotiated in any order, only

that all issues be discussed.

iv. Contractual Grievance Process

1. In most cases a grievance resolution procedure is collectively

negotiated and becomes part of the collective bargaining agreement

typically providing for resolution through arbitration. Grievance

procedure requirements and rules are specified in Article 15-C of

the General Municipal Law [Gen. Mun. Law §682 and §684].

2. If a district and union do not collectively negotiate a grievance

procedure, General Municipal Law grievance procedures are

automatically in place, which consists of two stages and an appellate

stage. Final resolution is through an advisory arbitration by a

grievance board appointed by the Superintendent [Gen. Mun. Law

§684].

II. Negotiation Process

a. Who is on the district’s negotiation team?

i. Members:

1. Chief Spokesperson (e.g. attorney or administrator).

2. Superintendent since that person is statutorily responsible for the

collective bargaining agreement though if he or she does not

participate, the superintendent should advise the team.

3. Individual familiar with district’s educational program (e.g.

Assistant Superintendent for Instruction).

9

4. Individual familiar with financial needs and resources of the district

(e.g. business official, treasurer, or assistant superintendent for

business).

ii. Other Possible Members:

1. Members of the board of education (not so many that a quorum is

reached otherwise you lose the right to Legislative Approval).

b. Categories of Topics

i. Mandatory Topics –

1. Terms and conditions of employment which, on balance, are more

central to employee work rights than the service mission of the

public employer.

2. Examples –

a. Statutory examples under 201(4) of the Taylor Law are

salaries, wages, hours, and other terms and conditions of

employment.

b. Other examples include health insurance benefits, leave

provisions, procedures for pre-approval of paid time off,

workload, disciplinary procedures, and other related issues.

ii. Non-Mandatory or Permissive Topics –

1. Inherently and fundamentally matters of policy making related to

the primary mission of the public employer or because the

legislature intended to commit these matters solely to the discretion

10

of the public employer. These matters do not have to, but may be

negotiated.

2. Examples –

a. Hiring of substitutes, services and staffing levels, and staff

reductions.

iii. Converted Topics -

1. Previously non-mandatory subjects which were topics that have

become a part of a collective bargaining agreement become

mandatory topics for subsequent negotiations.

a. By including a “sunset” provision, a date upon which that

specific provision expires, a non-mandatory topic that is

included in a collective bargaining agreement will not

convert to a mandatory topic at subsequent negotiations.

iv. Prohibited Topics –

1. Subjects which are expressly prohibited by law or are reserved to

management by public policy and cannot be negotiated.

2. Examples –

a. Retirement benefits provided by a public retirement system,

board’s power to grant or deny tenure, and pre-payment of

salaries in advance of work performed.

11

c. Impact Negotiations

i. Districts are not required to negotiate managerial decisions involving non-

mandatory/permissive topics, but they are required to negotiate the impact

of such decisions on the terms and conditions of employment.

ii. The union must submit a clear demand for impact negotiations before

district is obligated to engage in impact negotiations.

iii. The District can implement the decision that gave rise to the demand for

impact negotiations, before it negotiates with the union.

d. Past Practice

i. A past practice is a mandatory topic of negotiation which has not been

included in a collective bargaining agreement, but which is clear and

unequivocal and has continued uninterrupted for a period of time such that

there is a reasonable expectation that such practice will continue. A change

to a past practice on a mandatory topic must be negotiated.

ii. Reversion: A district has the right to revert to clear contract language that

contravenes a past practice. It is recommended that this be done by written

notice to the union.

III. Impasse Process

a. Impasse

i. Impasse is deemed to exist when the parties have bargained in good faith

and have failed to reach an agreement, and do not feel additional negotiation

sessions would be fruitful without third-party assistance.

12

ii. Once impasse is declared the parties may agree to the procedures on

resolution of the impasse, including submission of issues to impartial

arbitration, and the provision of how costs are to be shared.

iii. If impasse procedures cannot be agreed to, or if they are unsuccessful, the

parties can request assistance from PERB.

iv. The obligation to negotiate in good faith continues through impasse and

parties must participate in mediation and fact-finding; refusal to do so would

constitute an improper practice.

b. Procedure

i. Mediation – assistance of a mediator to bring the parties to an agreement.

ii. Fact-Finding – fact-finder issues a report and non-binding recommendation

which is released to the public 5 days after it is given to the superintendent

and union. Either party may accept or reject any or all of the report and

recommendation.

iii. Superconciliation – additional mediation to bring the parties to a resolution.

c. Triborough Amendment

i. If a contract expires and a new successor agreement has not yet been

approved, all the provisions of the expired agreement, whether mandatory

of non-mandatory, continue in full force and effect until a new agreement

is ratified and legislatively approved.

1. Exception is any provision that had a “sunset clause”.

13

IV. Ratification and Legislative Approval

a. Contract Ratification

i. Voluntary process for a board of education or union membership to vote on

a tentative agreement and either accept or reject it in its entirety.

ii. Negotiators must support the agreement during ratification, not merely

remain neutral, unless they have made it explicitly known that they will not.

iii. Improper practice for a school board or union to attempt to reject an

agreement where its negotiators have agreed to it, unless the negotiators

reserved the right to ratify or reject the terms of an agreement.

iv. A delay in presenting the agreement for ratification by the public employer

governing body or union may constitute a waiver of the right to ratify and

PERB may require execution of an agreement by the chief executive officer

and union.

b. Legislative Approval

i. Statutory right and duty of the board of education where the board of

education approves or rejects the entire agreement.

ii. The statutory right only allows the board of education to act upon contract

provisions requiring an amendment of board policy or which require

additional funding.

iii. Once an agreement is legislatively approved, the board is bound to fund the

contract for the duration of the contract.

iv. A board waives its right to Legislative Approval if a quorum of board

members sit on the negotiating team.