Opening The Door For Reform: Rethinking and Renegotiating Collective Bargaining Agreements

8/3/2019 Opening The Door For Reform: Rethinking and Renegotiating Collective Bargaining Agreements

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OPENING THE DOOR FOR REFORM:

RETHINKING AND RENEGOTIATING

COLLECTIVE BARGAINING AGREEMENTS

Jason A. ZwaraBuffalo ReformED

August 2011



1 O enin the Door or Re orm

INTRODUCTION/PURPOSE

Collective bargaining agreements (CBA) between teachers’ unions and school districtsare amongst the most important factors in how schools actually function, yet are also the leastunderstood. Teachers’ contracts operate to control school schedules, work assignments,

employment decisions, salaries, performance evaluations, professional development and manyother aspects of the daily operations of the district’s schools. These contracts and their impacton the operations of schools, however, are rarely known to, much less understood by, thepublic. Further, the restrictions created by a CBA impede reform attempts, from curriculumimprovements to longer instructional periods. Rethinking CBAs must be of the highestimportance for any sort of education reform movement.

The expansive coverage of a CBA greatly impacts the day-to-day decision makingability of teachers and administrators alike. Collective bargaining agreements are negotiated byrepresentatives of the union and the school board and control every school in the district. Thus,all schools within the district must operate under the exact same terms, inhibiting flexibleapproaches based on the unique nature of each school. For the Buffalo Public Schools, these

issues are magnified for two reasons.

First, the Buffalo Public School District does not operate under a current contract: thelast negotiated contract, agreed to in 1999, expired in 2004. Under New York’s Taylor Law,the law that governs the collective bargaining process for all public employees, the terms of anexpired contract remain in operation until a new contract is negotiated. Because of this rule,BPS has been operating under a contract that was negotiated 12+ years ago that was intendedto expire seven years ago; the contract is beyond out of date.

Second, a traditional CBA is especially troublesome for school districts, such as BPS,that plan to implement ‘turn-around models’ at low-performing schools. Bound by a district-

wide contract that treats the best and worst performing schools identically and that limits theflexibility and autonomy of individual schools to make meaningful decisions or changes, a low-performing school, where the district must implement an intervention, is bound to continue tounder-perform, regardless of the good intentions and efforts of the staff at that school.

The purpose of this report is not to blame any of the parties involved in the bargainingprocess, nor is it intended to instruct the parties on the best ways to conduct negotiations.Rather, this report hopes to open up a meaningful dialogue among the interested parties as tothe purpose and impact of CBAs on school and student performance, while also offering somerecommendations for changes to spur a conversation.

The report proceeds by providing a brief introduction to collective bargaining, then

breaks down the ten major areas collective bargaining usually addresses, explaining each area,why it is important, how it currently is addressed in the BPS contract or under New York Statelaw, and offering some alternatives to the current approach. On one hand, the Buffalo PublicSchools are desperately in need of updating the contract between the Board and the BuffaloTeachers Federation. Yet on the other hand, the best approach may be to take this opportunityas a ‘fresh start’ to negotiations. Putting considerable thought into how the terms of acollective bargaining agreement impact the education system will be the first step towardsopening the door to more meaningful on-the-ground reform.




INTRODUCTION TO COLLECTIVE BARGAINING

The legal structure of collective bargaining is an intricate set of rules and regulationsthat establish who must engage in collective bargaining, when collective bargaining mustoccur, what matters must be negotiated over, and how agreements are enforced once they are

reached. In New York, the employment relationship between teachers and local school districtsis governed by a collective bargaining agreement. In New York, the Taylor Law gives allpublic employees, including teachers and other school personnel, the right to organize andbargain collectively. Once a group of public employees organize and select a representative, apublic employer must collectively negotiate with that representative. For public schooldistricts, the school board, represented by the Superintendent, must negotiate a CBA with thelocal teachers’ union. Certain elements of the teacher-district relationship are explicitlyestablished by New York Education Law and are withheld from local collective bargaining.The stipulations withheld from local collective bargaining agreements include the rules fortenure, the ‘last in, first out’ layoff rules, and the recently established framework for teacherevaluations.

By law, the school board and the teachers’ union must negotiate in good faith overcertain ‘mandatory’ subjects of employment; they may also negotiate over certain otherpermissive subjects. ‘Mandatory’ subjects broadly include the “wages, hours and other termsand conditions of employment”: more specifically, workload, disciplinary procedures, benefitsand leave provisions have been considered mandatory bargaining subjects. Additionally, andimportantly, the Taylor Law requires that any ‘permissive’ item (that would not ordinarily beconsidered a ‘mandatory’ subject of bargaining) becomes ‘mandatory’ for all future negotiationsbetween the parties once the term is included in a contract. Therefore, once a school districtand a union reach agreement over a provision in a contract, they must renegotiate thatprovision again whenever negotiations are opened back up for a new contract.

Public employers and unions are also required to negotiate whenever decisions of theschool board have an impact on the terms and conditions of public employment (although theyneed not negotiate the managerial decisions themselves). Under the Taylor Law this is called“impact negotiations.” Impact negotiations must occur when the union makes a demand tonegotiate over the impact of a decision by the school board.

The Triborough Amendment, a provision of the Taylor Law, states that when acontract expires without a new contract being negotiated, the terms of the expired contractcontrol until a new agreement is reached. It is this provision that permits the BPS to continueto operate under a contract that expired over seven years ago. This amendment was enacted todiscourage public employees from going on strike; however, as a result, the provisionessentially makes it unlikely that a union would ever negotiate a new contract with lessfavorable terms, instead continuing to operate under the terms of the expired contract.

The Taylor Law, therefore, makes public employer/employee negotiations complexproceedings that grow even more complicated as more items are added to the bargaining table.The result is that each new contract naturally ‘builds on’ previous contracts, and the easiestapproach is to add new terms, rather than to renegotiate the existing terms. With this in mind,the overall recommendation and goal of this report is to promote a ‘fresh start’ philosophy, andto encourage debate and discussion over the existing terms of the contract.




THE TEN MAJOR CONTRACT AREAS

Collective bargaining agreements (CBAs) between school boards and teachers’ unionscan be broken down into ten major areas, each of which has a unique impact on the successfuloperation of a school district. These individual areas will often overlap and intersect, and some

may be more important than others in certain contexts.

Overall, though, these ten aspects combine to control the people, the time, the money,and the programs that each school implements to educate its students. The contract regulateshow teachers can be hired, fired, transferred, promoted, evaluated, and disciplined. It regulateshow teachers are paid and what benefits they receive. The contract regulates how teachers areassigned, how long classes, school days and school years may be, how many students may beassigned to a classroom, and what equipment a classroom must have. Nearly every detail of theday-to-day operations of a district school is spelled out in the contract. Every school in thedistrict is bound by the same contract and the same provisions; as a result, in the eyes of thecontract, every school is treated the exact same, though in practice there may be smallvariations in operations from school to school. By the terms of the contract, however, eachschool is bound by the same agreement, and is to be operated in the same fashion as every otherschool.

The Ten Major Contract Areas are:

I. Reservations of Management Rights

II. Grievance Procedures

III. Leave Policies

IV. Professional Development

V. ‘Work Rules’

VI. Teacher Evaluation

VII. Salary

VIII. Seniority & Tenure

IX. Health Insurance Benefits

X. Retirement Benefits




I. RESERVATION OF MANAGEMENT RIGHTS

What is it?

Some teachers contracts explicitly reserve certain powers and authority to the

administration (the superintendent and school principals). Such clauses make ‘cross-references’to other positions within the schools, specifying what decisions administrators may exclusivelymake. This may include reserving the rights to make teacher assignments, to run staff meetings, the right to assign equipment and facilities, and so forth.

Why is it important?

Specifically reserving administrative rights in teachers’ contracts are important for tworeasons. First, the grievance arbitration process restricts the authority of the arbitrator to onlythe interpretation of the contractual provisions. The arbitrator cannot alter, amend, delete oradd to the contract; he must make decisions solely on the terms of the contract. Therefore, bynot including explicit reservations for the administration, it is more difficult to enforce the

administration’s rights. For instance, if a teacher files a grievance regarding her roomassignment, the failure to include in the contract the right of the principal to make roomassignments makes the case more difficult for the administration.

Second, where broad statements of management rights are included, they risk beingmade irrelevant and meaningless by overly-detailed statements of the rights and workingconditions of teachers. The greater detail the rights and privileges of teachers are spelled out,the less flexibility and autonomy remains for school administrators. For example, non-teachingassignments typically must be assumed on a voluntary basis, thus diminishing the general rightof the administration to make assignments.

How does the BPS Contract cover it?

The BPS contract does not include specific reserved management rights. It makes littleor no mention of rights and duties retained by the administration and specifically exemptedfrom further negotiations or grievance filings. In general, the ‘work rules’ established in theBPS Contract that restrict the autonomy of school administrators are significant, as discussedin Section V.

What changes should be implemented?

One approach to the problem of management rights is with what are called ‘thin’contracts: agreements that minimize the number of rights and privileges that are establisheddistrict-wide and instead promote flexible, school-level rules. Thin contracts include broaderrequirements that teacher assignments, duties, etc. be established at the school-level, thus

withholding greater authority and autonomy for the school-level administrators. This wouldensure protection of teachers, while also permitting greater flexibility at the school level.

An effective reservation of management rights should make clear that certain decisionsand responsibilities rest exclusively in the hands of school administrators and are not withinthe scope of negotiations. Management rights may also be specifically reserved by state law andremoved from the negotiating table.




II. GRIEVANCE PROCEDURE

What is it?The grievance procedure is the exclusive remedy for teacher and administration disputes

over issues covered by the teacher’s contract. The grievance process attempts to solve a dispute

at the ‘lowest possible administrative level,’ however, the structure is such that the Union isoften encouraged to push even basic disputes up to high levels of the administration or even toarbitrators, leading to countless ‘memorandums of understanding’ supplementing the contract,which are agreements reached between both parties outside of the contract that set forthadditional terms relating to employment conditions.

Why is it important?First, the grievance procedure encourages ‘excess litigation’ of claims by allowing the

filing teacher to ‘exit’ the process after the first stage (meeting with the direct supervisor) thusgiving the Union the exclusive right to decide whether to pursue the claim further on theteacher’s behalf.

Second, the grievance procedure advocates an ‘adversarial’ process rather than a

cooperative process, again despite the stated desire to settle disputes at the lowest level.Moreover, it diminishes the authority of in-school administrators (e.g. principals) because itallows the union to easily take an issue over the heads of the principal. The grievanceprocedure, like the ‘management rights’ problem discussed in Section I, promotes district widesolutions (through ‘memorandums of understanding’) to school-level problems.

Third, the grievance process is expensive and extremely wasteful of school resources.The Education Partnership, an education advocacy group from Rhode Island, estimated thatthe one-day cost of arbitration, considering the salaries of the teachers, union representatives,administrators, and legal fees, is around $3,500 per complaint. The formal proceduralrequirements also increase the time-cost of arbitration, requiring established meetings withunion representatives and written decisions/responses throughout the process.

How does the BPS Contract cover it?The BPS contract uses a 4-level grievance procedure. In the first level, the teacher

brings a written complaint to her direct supervisor and provides a copy to the Union. Theteacher, supervisor and a Union representative must then meet to try to resolve. If unsuccessful, the Union alone can appeal the determination of the supervisor directly to theAssistant Superintendent for Personnel: notably the grievance process skips over the Principalof a school. Level Three is an appeal to the Superintendent himself; finally, Level Four isarbitration.

Despite the assertion that the grievance procedure ‘encourages lowest level decisionmaking’, in practice the BPS procedure ensures that grievances can easily be taken beyond thebuilding level and settled at the district-wide level.

What changes should be implemented?As with reserving managerial rights, a ‘thin’ contract would help alleviate the problem

of the grievance process. Additionally, the grievance process should be modified to truly focuson ‘lowest level’ solutions. An alternative system would leave in place steps two, three and four,however specify that these steps are only available once school-level pleads have beenexhausted. This would truly encourage settling disputes at the school level, rather than relying




on district solutions. Further, the binding impact of ‘memorandums of understanding’ shouldbe clarified and minimized as much as possible.




III. LEAVE POLICIES

What is it?

The BPS contract includes several sections that deal with the minute specifics of teacherleaves for a variety of reasons, governing teacher leave at the district wide level. Specifically

included in the contract are provisions for sick leave, personal leave, leaves of absence,sabbatical leave, and other leaves under special circumstances. The often more controversialissue is that accommodations for union work are often covered and compensated as otherleaves, meaning that taxpayers are directly funding the work of the union. For example, schoolsmay be required to provide union representatives additional free periods during the school dayto attend to union work.


First, sick leave policies for teachers, particularly accumulation of leave, are vastlydifferent than sick leave policies in the private sector or even other public sectors. Sick leave,like many other teacher benefits, is dependent on seniority, leaving young teachers and

temporary teachers exposed to unjust risks if they face serious illness. Not only do more seniorteachers have the right to accumulate their sick days, after the ten-year mark they also have theright to request ‘emergency’ periods of leave in case their sick leave has run up. Youngerteachers have no such protections.

Second, teachers granted longer-term leaves (for sabbaticals, personal reasons or unionreasons) are entitled to have that leave counted towards their seniority calculation, despite notproviding any educational services during that period. Seniority is discussed in greater detail inSection VIII.

How does the BPS Contract address it?

The BPS contract is fairly standard in its leave policies. Teachers are entitled to 12 daysof sick leave per year; there are a maximum of 186 days in the school year. Teachers mayaccumulate unused sick days up to a total of 220 days over a career, each at full pay. Once ateacher reaches 10 years of service, they may additionally request additional days, as needed, in30 day blocks from the District.

The District is required to provide union building representatives with an additionaltwo class-time periods per week for union work. The District must also grant unpaid leave tounion leaders, and count the year towards seniority calculations upon return. The District mustlikewise count sabbatical years and personal leave periods towards a teacher’s seniority upontheir return.


First, the performance of Union work during school hours should be minimized so as tolimit the impact of taking teachers away from student instructional time. Second, sick leave andsabbatical policies should be amended to provide more equal treatment for all teachers, ratherthan policies based solely on seniority. Third and finally, the value of permitting such strongsick day accumulation policies should be reconsidered, especially in light of buy-back policiesthat allow teachers to sell back unused sick days, creating huge costs for the District.




IV. PROFESSIONAL DEVELOPMENT

What is it?Teachers, like other professionals, are required to complete continuing professional

development throughout their careers. Professional development can be a useful tool to inform

teachers of the latest trends in teaching skills, classroom management, child development,curriculum development and many other topics pertaining to their positions. Professionaldevelopment opportunities are generally offered by the district and made available to teachersin order to satisfy state teaching certification requirements.

Why is it important?Professional development (PD), particularly that offered by the district, is an

opportunity to develop the skills of staff members. While development is particularly importantfor young teachers, as it can assist in instilling good classroom habits and so forth, it is alsoimportant for more veteran teachers to keep abreast on emerging ideas and practices. PD canbe used to educate teachers on new methods to deal with disruptive students, to detect physicaland emotional problems that should be reported, to familiarize teachers with new technologies

and strategies, and countless other useful topics. PD can also be used as an opportunity toimplement district-wide ‘best practices’ and create uniformity.

How does the BPS contract address it?In New York all certified ‘Professional’ teachers are required to complete 175 hours of

professional development every 5 years; the District is responsible for planning and providingappropriate PD, as well as reporting hours. While BPS offers many PD opportunities, bycontract it cannot make any particular session mandatory. Additionally, PD opportunitiesprovided by the District must compensate teachers for their time. Teachers also have the optionof completing PD developed by outside groups, so long as the sessions are approved by theDistrict.

The BPS contract also limits how PD may be administered during the school year. Forexample, the contract limits the District to using one school day per year as a ‘professionaldevelopment conference’ for new teachers and specifies that such a conference is to beconducted by the BTF. The contract also limits the number and length of faculty meetings, andthe time per meeting that may be spent on PD. The contract thus limits district-directed PD intwo ways: any PD offered must be voluntary and compensated, and any PD offered during theschool year must be taken out of instructional time, not on weekends, breaks, or after schoolhours. As a result, the District is severely limited in how it can provide PD opportunities.

What changes should be implemented?Professional development for teachers should be conducted in the same way as other

professions (law, accounting, medicine): PD should be the personal responsibility of the

professional, and conducted without additional compensation and without interfering withinstructional time. Additionally, the quality and availability of PD opportunities must beimproved. Several surveys, such as one conducted by The Education Partnership, haveindicated that teachers find PD opportunities insufficient and desire more opportunities forgrowth. This can be accomplished by making it easier for schools to offer PD during the schoolyear. Furthermore, the District should look to improve terms for making PD sessions dealingwith district-wide ‘best practices’ mandatory for all teachers, so as to improve uniformity acrossall classrooms for certain techniques and practices, and promote successful strategies.




V. ‘WORK RULES’

What is it?

Perhaps the most criticized part of teaching contracts are the highly-detailedrestrictions and requirements of working conditions, all set at a district wide level. Covered

under the umbrella of ‘work rules’ are strict scheduling principles, limitations on class sizes,mandatory classroom equipment requirements, preference of assignments based on seniority,and so on. These rules, established at the district-level, have the effect of ‘flattening’ the districtso that all schools operate in largely similar manners, and limit the breadth of autonomy thatschool principals, administrators and teachers have in setting their schools apart.


The more detailed the restrictions and requirements that are placed on the assignmentof teachers, the less flexibility and authority building administrators have in operating theirschools. Since the contract governs at the district level, the more detailed it becomes the moreuniform the schools across the district become, and the less autonomy administrators have.

Combined with the grievance procedure, which makes it easy to take complaints beyond theschool and settled at the district level, the school-level administration holds relatively littleauthority to make changes in their building.

The impact of restrictive work rules gain even greater importance in the context of ‘turn-around’ models for school reform. Under grant programs such as Race to the Top(RTTT), school districts must implement ‘turn-around’ plans for low-achieving schools inorder to receive funding. In many of these plans, replacing a school’s principal is seen as amajor step towards a turn around. While not necessarily unwarranted, the practical effect of such a drastic measure is far less than the model expects. This requirement relies on a belief that the principal has the ability to bring about reform in the school, and simply putting a newperson in charge will spur reform. In reality, the principal’s ability to bring about change,

whoever is placed in charge, is severely hampered so long as the terms of the CBA continue tobind their influence. While the requirement to replace the principal may still be valuable toturn-around strategies, it must be accompanied by greater freedom from the restrictions of theCBA. While the turn-around models of RTTT do require increased autonomy and authority of the principal, they fail to directly address the influence that CBAs have on the autonomy of administrators. The focus of ‘turn around’ plans should not stop at the school-level when theability to achieve change is handcuffed by the terms of the district contract.

How does the BPS contract address it?

The BPS contract strictly defines several aspects of a teacher’s normal day, includingthe number of ‘periods’ a teacher may be assigned each week and each day, the class size, and

the maximum number of instruction days and hours for students. Beyond these rules andrequirements, the CBA restricts the flexibility of building administrators in several other ways.For just a few examples, non-instructional work for teachers (keeping attendance, supervisinghalls or lunch periods, etc.) must be kept to a minimum, inequities in assignments may serve asgrounds for formal grievances, all assignments beyond instructional services may only be madevoluntarily (and then, seniority is given priority in consideration), and the number of ‘specialareas’ which a school may offer to elementary students (such as art or music) is contractuallyestablished.




With many of these rules and restrictions, the BTF heralds them as victories forchildren. For example, the number of art, music and physical education classes elementarystudents must take are contractually arranged; the BTF often cites this as a positive that comesout of teacher union led reform. While it is admirable to secure these classes for students inevery school, the arrangement prevents a principal from increasing these requirements in theface of a demand for such classes, or decreasing them if his students need more time in coreinstruction. Instead, course loads are established at the district level, negotiated by district andunion representatives. Principals have no ability to alter course offerings, regardless of theneeds of their students: some schools may demand more art and music classes, while othersmay need far more time focused on basic instruction. Instead of giving building principalsflexibility to decide for their own school, the contract makes the decision for the entire district,treating all schools exactly the same.

Additionally, the principal’s ability to deal with complaints and problems from staff members is hampered by the strict provisions of the grievance procedure, which permits appealto the district for any complaint. Other personnel practices, such as leave, sabbatical andtransfer policies, make it difficult for building administrators to choose their own staff, to retainvaluable members and prevent undesirable hirings or transfers These and similar rules limitthe ability of school-level administrators and teachers to be innovative and craft curricula andschool days to the particular circumstances of their student populations.


The issues with working conditions could be addressed by embracing ‘thin’ contractsthat minimize the number of issues that are established in and controlled by the contract, andreturning these decisions to the administrators at each school to allow flexibility. This wouldalso require dramatic alteration of the grievance procedure (see above) in order to keepdecisions at the school level, rather than permitting nearly every grievance from being settledat the district level (and effectively binding every school to every grievance outcome).

If the current trend of school reform strategies is to be pursued, then it is of greatimportance to ensure, at the very least, that the people bearing the blame of poor performance(building administrators) are also given the tools and flexibility necessary to actually make therequired changes. Without improved localized authority, schools across the district remainrelatively uniform, bound by the same rules and procedures established at the district level, andany variation in success is likely the product of contributing factors beyond the control of thestaff (meaning that the same schools are doomed to fail over and over again).

‘Thin contracts’ are one alternative that focus on minimizing the ‘work rules’ that arefirmly established in the district wide contract, instead permitting school-level administratorsgreater flexibility and control. At the same time, the contract preserves the ability to appeal tothe district, but also prevents district decisions from binding all other schools.

Several charter schools have proved able to operate with unionized teachers under ‘thin’contracts and similar alternatives, such as the Charter School for Applied Technologies (CSAT)in Buffalo. CSAT has successfully operated as a unionized school that conducts a lengthenedschool day and school year. Beyond Western New York, Green Dot Schools, which operatecharters in Los Angeles and New York City, has been able to employ unionized teachers whilemaintaining flexibility and autonomy for its schools. Green Dot operates 18 schools in LosAngeles alone, a significant sized school district, and has been able to bargain collectively whilemaintaining flexibility and autonomy for each of its schools. School administrators are required




to follow established tenets, however one such tenet is promotion of local control overpersonnel decisions, professional development and accountability. As such, the charter-widecollectively-bargained contract reflects this tenet by reserving broad autonomy for buildingadministrators while also preserving significant rights and privileges to teachers. Based on theGreen Dot model, Los Angeles now requires all groups that ‘takeover’ a failing public school tonegotiate ‘thin’ contracts with employees.

Complex work rules that inhibit the flexibility and adaptability of buildingadministrators are the greatest hurdle facing serious education reform, particularly for thelowest achieving schools. It requires the greatest attention in efforts to seriously reform thecollective bargaining process going forward.

RACE TO THE TOP (RTTT) AND WORK RUL ES

Race to the Top is a new approach to federal involvement in school reform: in exchange for anunprecedented level of funding, states and school districts must demonstrate that they arecommitted to reform. RTTT’s first focus is on turning around the lowest achieving schools. Inorder to receive grant money through the program, local school districts must develop plans foreach of its low-achieving schools. These plans must comply with one of four specified reformmodels that RTTT promotes: ‘turn-around’ a school, ‘restart’ a school, ‘transform’ a school orclose a school.

Closing a school is the easiest to enact, but surely the most controversial and has the highestpolitical cost. Restarting a school typically means partnering with a charter group or otherindependent operator to reopen the school with greater independence from the district. The two

remaining models, the ‘turn around’ and the ‘transformation’ models, have several similarities.With lower political costs, since they do not require actually closing a school, these latter twomodels have been favored by many districts. The effectiveness of the ‘turn-around’ and‘transformation’ models, however, is directly impacted by the district’s CBA.

Both the turn-around and the transformation models require the district to terminate theschool’s principal; the turn-around model also requires replacing at least 50% of the school’sstaff. Both models also require improving professional development, implementing a newteacher evaluation system, and providing greater operating flexibility to principals. The modeldoes not address, however, how to how to confront restrictive CBAs, which impact operationalflexibility. Turn-around and transformation schools remain bound by CBAs, so operating

flexibility must be carved out of the few areas that are not covered by the contract. Theeffectiveness of the RTTT models for reforming schools, therefore, relies upon changing thework rules that bind schools so that turn-around and transformation schools can have theflexibility to make necessary changes. This can only be accomplished by school districts eitherexempting schools from CBA coverage, which would require union agreement, or renegotiatingthe contract entirely to provide principals with greater operating flexibility.




VI. TEACHER EVALUATIONS

What is it?

Teacher evaluations are measures of the effectiveness of a teacher in performing his or

her job. A good evaluation system will combine objective and subjective measures, factor in theunique difficulties of the particular classroom, school, and district, and attempt to measure theimpact the teacher has had on the growth of her students. The goal is to measure how muchstudents have learned over the course of the year, how effective the teacher’s teaching style is,how effective his or her classroom management skills are, and so on. They can use objectivemeasures, like student growth performance on state and local standard tests, quasi-objectivemeasures such as in-class observations under a set formula, and subjective measures such asprincipal, peer, and student evaluations.


In theory, a proper teacher evaluation system should be useful for things such as

retention, pay, termination, providing assistance and development, and assignment. Aneffective evaluation system would be able to identify a teacher’s strengths and weaknesses,allowing intervention, development, and assistance, particularly during the probationaryperiod. It also would provide a better method for determining which teachers should beretained, which should be granted tenure, and which should be terminated.


The BPS contract states that the evaluation of all teachers is the responsibility of theboard, but that the development of a fair evaluation instrument and procedure is the concern of the teaching staff. The development of the evaluation process is tasked to a ProfessionalCouncil made up of 3 teachers selected by the Federation, and three teachers appointed by the

Superintendent. In practice, the current evaluation system is largely subjective in nature, andprovides teachers with few opportunities to use the evaluation as a tool for improvement. Giventhe levels of job protection granted to tenured teachers, and the seniority-based approach tolayoffs, the current evaluation system has no real bearing on important employment matters.

Teacher evaluations have recently been a subject of state legislation, pursuant to New York’sapplication for Race to the Top (RTTT) funds (See inset on Race to the Top: pg. 14). New YorkEd. Law §3012-c develops a new annual professional performance review (APPR) method thatexpressly factors in student growth on state and local standard testing. The law requiresstudent growth on state testing to make up 20% of the teacher’s evaluation score and another20% to come from ‘locally selected measures of student achievement.’ The remaining 60% is to‘locally developed’ through contract negotiations. While the law exempts current contracts that

already include evaluation systems, in order to receive a share of RTTT funds, a school districtmust renegotiate contracts and adopt the new evaluation: failure to do so means that a schooldistrict will not receive RTTT funds, and could face other sanctions.

As for application, the law only states that a teacher’s APPR “shall be a significantfactor for employment decisions” including promotion, tenure, retention, termination andsupplemental compensation. Notably absent are ordinary compensation and layoff procedures.

Currently, the BPS contract is not in compliance with state law. In order to ensure thatit receives RTTT funds, the District must renegotiate the contract with the teachers union to




include the new evaluation system. If it fails to do so, the District will likely have to pay backany funding it receives, will be cut off from any additional funding, and may face additionalintervention from the State

What changes should be implemented

At the very least, the District must make negotiations regarding the state-mandatedevaluation system the highest priority, or else it faces missing out on valuable RTTT funds.The pressure from the State on the District leaves it with little leverage against the Union innegotiations. In order to achieve the needed contract change without having to give up toomuch to the Union in return, the District will likely require the assistance and support of theState and the public in negotiations, putting pressure on the Union to negotiate fairly and reachan agreement. It must be regularly emphasized that much needed RTTT funds are at stake andreaching an agreement in order to receive the funds is in the best interests of all parties. Stepsmust be taken to ensure that an evaluation system is put in place as a means of determiningwhich teachers should be retained, granted tenure, or terminated so as to ensure thatclassrooms are staffed with highly effective teachers.




RACE TO THE TOP (RTTT) AND TEACHER EVALUATIONS

In addition to requiring states and school districts to use certain turn around models for thelowest achieving schools, RTTT also requires broader systemic changes. To apply for funding,states needed to reach Memorandums of Understanding (MOUs) with local school districts,wherein districts promised to comply with reform efforts in return for a share of the funds. InNew York, school districts agreed to three areas of reform: developing new curricula,implementing data tracking systems, and utilizing a new evaluation system. If a district failed tocomply with the MOU, it risked losing its share of RTTT funding, as well as facing greaterstate intervention.

Complying with the evaluation system requirement will prove to be the most difficult fordistricts. In order to comply, districts must renegotiate union contracts to include the newevaluation system; the state law creating the new evaluation system does not automaticallyoverride existing labor contracts. Teachers unions are resistant to the new evaluation system,however, and have little incentive to renegotiate. New York State United Teachers (NYSUT)has already challenged the law mandating the new evaluation system and has achieved a smallvictory: although the law was upheld, the court ruled that the details of the evaluation systemmust be agreed to in local negotiations, not established by state regulations. This ruling willmake it far more difficult for districts to reach agreements with local unions, as even moreaspects to be agreed upon are placed on the bargaining table.

While Race to the Top is a promising effort to achieve reform, it still relies heavily on theabilities of local school districts, without providing them much leverage against local unions.

RTTT funds are a significant incentive for districts, however the challenge of overcoming theunions and achieving the needed reform will be a significant battle and will require a great effortfrom district leadership.




VII. SALARY

What is it?

Teacher salaries under labor contracts wholly depend on only two factors: the teacher’sseniority, and the teacher’s certification/level of education. No other factors are considered in

calculating base salary. Teachers may earn supplemental income through leading extra-curricular activities, such as coaching a team or advising a club. There are also additional salaryscales for ‘non-traditional’ teaching positions, such as summer school and adult education.


The current salary model does nothing to reward good teachers or punish bad teachers.It relies upon only two factors: seniority and education/certification level. This minimalmethod may have been permissible in an earlier era when they were satisfactory stand-ins formore effective methods of calculating teaching ability, but it is outdated and in need of replacement. Instead of rewarding good teachers as a way to retain and groom them, the salarysystem treats every teacher at the same seniority level as equal. As a result ‘good’ teachers have

no incentive to stay in undesirable school districts, like the Buffalo Public Schools, when theycould earn at least the same money in much more desirable districts. As a result, good teachersflee the district, satisfactory teachers have insufficient incentive to improve, and bad teachersmaintain their pay increases no matter how poorly they perform.


The BPS, like most other urban districts, uses ‘salary schedules’ for each year of thecontract. Calculating a teacher’s salary requires three steps. First, the education/certificationlevel of the teacher is identified. Second, the teacher is placed on a ‘track’ based on that level.Third, the teacher’s experience in teaching is determined. Using the salary schedule for thegiven year, the salary due to the teacher can be identified.

The salary steps between years of seniority are identical across each track: in the firstyear of the contract, for example, a teacher with two years of service made $1,439 more than ateacher with only one year, regardless of the education level of the teacher. The education levelof the teacher acts similarly to a ‘yearly bonus’: for example, a teacher with a master’s degreewill earn whatever a teacher with a bachelor’s degree would in every year, plus $1,440. Theentire salary schedule is increased by a set percent each year of the contract.


There are multiple alternatives for what should be done with salary calculations incontracts. One alternative (favored by The Education Partnership) argues for removing salary

schedules from local negotiations and setting salary schedules at the state level, applicable to allpublic schools. Another option is to lower the base salary in the salary schedule, then provideincreased opportunities for ‘bonuses’ and ‘performance pay.’ A third option is to reevaluate thesalary schedule approach in light of emerging performance evaluation systems, and linkingsalary to the performance measures of a teacher. The key point is to focus the discussion onhow the compensation system works to recruit, retain and reward the best teachers.




VIII. SENIORITY & TENURE

What is it?

Seniority is the number of years a teacher has been in that career. Most school districtspermit a teacher to transfer tenure from a former school, though some restrict it when the prior

experience is at a private or charter school.

Tenure is a status achieved after a brief probationary period that provides safeguardsand protections to a teacher’s position. New teachers must complete a probationary periodduring which they are fireable at anytime by the superintendent or school board. At the end of this period, a teacher must be recommended for tenure, in most cases a mere formality, andapproved by the board.


Seniority is important for two reasons. First, as described above, seniority is one of onlytwo factors considered when calculating a teacher’s base salary. Second, all school districts in

New York must follow a ‘last in, first out’ (LIFO) system for layoffs. A teacher of greaterseniority than another cannot be laid off before the junior teacher, regardless of performance orany other factor.

In larger school districts, such as BPS, layoffs are conducted district-wide, resulting insignificant ‘shuffling’ of personnel to fill vacancies. Positions across the district are cut based onlack of need, but teachers are let go based on seniority. Therefore, a heavily populated schoolmay not lose any staff positions, but may nonetheless need to lay off staff members based ondistrict-wise seniority, and then re-staff those positions with more senior teachers displaced atother schools. This staffing shuffle can greatly frustrate the efforts of principals to shape theirschools by infusing new teachers, unfamiliar with the school or its operation, without regard tohow that teacher fits into the school.

Tenure is important for a third reason: it provides a teacher with numerous safeguardsagainst termination. Typically, when the district desires to terminate a tenured teacher, theymust follow a strict formal procedure, which includes formal charges against the teacher, ahearing before an impartial panel, and allowing the teacher the opportunity to appeal thetermination. A tenured teacher generally may only be terminated for ‘just cause,’ however thecontract rarely defines what ‘cause’ is sufficient. Tenure protections are far stronger in practicethan in theory due, in large part, to the ineffective nature of teacher evaluations (See SectionVI). It is difficult enough to terminate a teacher who rates poorly in evaluations; this iscompounded by the fact that so few teachers ever receive poor ratings. In many cases, theprocess of terminating a teacher is so daunting and time-consuming that administrators willrarely pursue it except for the most necessary cases.

One recent approach to addressing the problem of seniority when it comes to layoffs hasbeen to designate certain classes of ‘specialized teachers,’ generally including teachers withspecialized training. The goal of designating such ‘protected’ classes is to prevent teachers withparticular training, usually at the district’s expense, from being a casualty of the ‘last in, firstout’ layoff rules. The coverage of a ‘specialized teacher’ rule is limited, however, and providesprotection to only a small number of teachers.





Seniority and tenure rules are governed by New York state law, particularly Ed. Law§§3012 and 3020, and thus district contracts have little to say about seniority or tenure beyondthe additional benefits it may provide. For example, BPS permits teachers to take sabbaticalleave for study purposes only after seven years of service. Contracts will also specify when a

teacher may accumulate seniority even when not teaching: BPS permits a teacher to accumulateseniority when on leave for union officer positions or on sabbatical.

In New York, a tenured teacher may be terminated for a number of reasons, includinginsubordination, incompetence, neglect of duty and failure to maintain certification. If a schooldistrict intends to terminate a tenured teacher, it must provide the teacher with an impartialhearing and legal representation under §3020-a of the Education Law. A teacher may only beterminated following the decision of this impartial panel: if the panel denies the firing decision,the teacher must be reinstated and provided back pay for the hearing period. A teacher is alsoprovided opportunities to appeal the decision of the panel.

The ‘last in, first out’ policy of teacher layoffs is also mandated by New York state lawin §§2510(2) and 3013(2) of the Education Law. Districts are not permitted to alter this rule ontheir own. Layoffs must be conducted by seniority, with the least experienced teachers the firstto be severed. In most districts, layoffs are conducted district-wide, requiring schools that aredisproportionately impacted to replenish their staff by transferring in teachers from otherschools. Moreover, laid-off teachers remain on hiring lists, and anytime a position becomesavailable within a designated period after the layoff, hiring must occur first from the laid-off teachers list.

What should be done?

Any changes to tenure or seniority would need to be accomplished through statelegislation. There are currently proposals in New York to alter the LIFO rule for layoffs, andsimilar laws have been passed in other states; however, a recent effort to alter the rule failed to

reach the floor of the State Assembly after passing the State Senate. The recent passage of anew teacher evaluation system (see Section VI) does require teacher evaluations to serve a moreimportant function in the probationary period, hopefully making tenure more difficult toachieve.

Another possibility would factor evaluations into layoff procedures, prohibiting a more junior teacher from being ‘bumped’ in layoffs by a more senior teacher with a lower evaluationrating. The recent evaluation law adopted in New York does require teacher evaluations to be agreater factor in the decision to grant tenure, but it does not impact layoff procedures. Thegreater emphasis on effective evaluations should, however, make termination of ineffectiveteachers easier to accomplish.

One proposal that could be implemented at the contract level is awarding seniority

credit only for teaching activities, not for sabbaticals or other leaves. This is especiallyimportant under the current system where seniority continues to ‘stand-in’ for a teacher’sperformance ability with regards to compensation and other benefits. Under the currentcontract, teachers continue to accumulate seniority benefits for increased ‘experience’ evenwhen on sabbatical or on certain types of leave and even though they are providing noinstructional services.




IX. HEALTH INSURANCE

What is it?Health insurance is one of the biggest expenses for school districts, and certainly the

fastest growing. Health insurance benefits and plans for teachers are typically negotiated at the

district level rather than at the state level, creating district-wide insurance groups. Full healthcare benefits are continuously provided for all retirees, generally to the same extent and at thesame cost as for current teachers (discussed more thoroughly in Section X).

Why is it important?Strong health care plans are a key tool to recruiting and retaining teachers. The rising

costs of health insurance, however, have dramatically impacted school districts, and particularlyurban ones, far greater than most other industries. This is a result of several factors. First,insurance plans providers are negotiated between the district and the union. Thus, the districthas little or no leverage when it comes to negotiating with the provider: they are chosen as theprovider by the union contract, regardless of their costs. Second, the district negotiates healthcoverage separately for each union, losing the ability to negotiate and package coverage for all employees. Third, benefit packages for teachers are often much richer than for other publicemployees, thus school districts have been hit even harder by the skyrocketing costs of healthcare. Finally, health insurance benefits exist nearly uninterrupted or unaltered after retirement,imposing huge costs on the school district even after a teacher retires.

How does the BPS Contract address it?Like most other districts, BPS has seen the costs of providing such extensive health

insurance plans skyrocket over the past few years. BPS insurance plans are negotiated by thedistrict with each separate labor union. For the 2010-11 school year, health insurance costs forall employees are budgeted at $100.4M (up from $97.1M); costs for retired teachers alone makeup 58% of that amount. In total, health insurance benefits make up 12.5% of the annual budget,

and grow 11.8% annually.BPS has struggled over the past several years to find ways to lower health insurance

costs while not violating the contract. In 2005 the BPS unilaterally switched from a multi-carrier plan to a single-carrier plan; the switch saved the District $40M over three years beforea court ruled in 2008 that the move violated the contract and ordered the District to revertback to the multi-carrier plan. More recently, the District has battled with the Union over a‘cosmetic surgery’ rider to the insurance plan which cost the District an estimated $8M in2010. Though the debate over the rider has sparked public outrage, it has not yet reached asatisfactory outcome.

What should be done?The rising cost of benefits for public employees, including teachers, has recently become

a sparkplug for state legislative reform in many states, notably Wisconsin and Ohio, wherestate-wide legislation has been used to restrict the ability of public employee unions tonegotiate wages and benefits. Less drastic alternatives do exist, however, and should beconsidered more widely. The Education Partnership proposes singling out health insurance forcentralized negotiations, in order to gain the ‘economies of scale’ benefits from a largerinsurance pool. Even more difficult to tackle will be addressing the costs of providing healthinsurance benefits to retired teachers. The broader issues addressing the costs of retirementbenefits are discussed in Section X.




X. RETIREMENT BENEFITS

What is it?Along with health insurance for current staff, benefits for retirees make up the fastest

growing expense for school districts. Retirees maintain the same health care packages as

current teachers. In addition to strong pension and retirement plans, teachers are often entitledto ‘cash out’ remaining sick and personal leave days when they retire.

Additional district costs are generated from generous ‘retirement incentive’ plans, oftenused in lieu of layoffs to reduce staff. After accounting for pension costs, continued healthinsurance costs and early retirement incentive payments, school districts save only a smallamount per retired teacher.

Why is it important?Like health insurance costs, retirement benefit expenditures are growing at breakneck

rates and tying up an ever-greater portion of district budgets. Like health insurance costsdiscussed above, the dramatic increases in retirement benefit costs are a product of a variety of

factors. First, health insurance costs for retirees are maintained at almost the exact same levelsas those provided to current employees, with little or no contribution from retirees. Second, inrecent years employer-share rates for retirement plans have increased. Third, generous sickleave policies that allow teachers to accumulate up to 200+ sick days increase retirement costswhen teachers are permitted to ‘cash in’ leftover sick days. Fourth and finally, early retirementincentive plans, which attempt to lessen the impact of layoffs, further increase the costs of teacher retirement and reduce the savings associated with reducing staff.

How does the BPS Contract address it?Health insurance costs and other benefits for retired teachers totaled $78.8M for the

2010-11 budget year, totaling 9.8% of budgeted expenses. Health insurance and pensioncontribution costs were the two expenditures with the largest increase for BPS from 2009-10 to2010-11. Pension costs increased primarily due to rate increases (which are established by thestate); insurance costs increased both due to rate increases as well as increases in the totalnumber of retirees.

The BPS Contract includes a provision for an Early Retirement Incentive, wherein ateacher is eligible to receive a portion, between 70 and 75%, of the difference between theretiree’s salary and the minimum beginning salary for a replacement in the same position.

Retiree pensions are managed, and employer contribution rates are established, by astate-wide agency. For 2010-11, districts must pay in 8.63% of employee salaries; this wastentatively increased to 11.11% for the 2011-12 year. For an idea of this impact, 2010-11teacher compensation was budgeted at $168.7M: contributions at 8.63% equal $14.6M. Evenwith zero change in compensation costs, pension payments will increase to $18.7M in 2011-12.

What should be done?As discussed in Section IX, health insurance costs may best be addressed by statewide

action. BPS has taken some steps to reducing the cost of the Early Retirement Incentive,reducing the maximum amount a teacher may receive from 80% to 75% of the difference insalaries. The cost of pension contributions is unfortunately one that is already dictated by theState, and is largely a product of investment market conditions and the ratio of current (paying-in) teachers to (paying-out) retirees.




CONCLUSION

Report after report has pointed out that the current collective bargaining structure is asignificant impediment to meaningful education reform. In the 2006 Report “A Better Bargain:Overhauling Teacher Collective Bargaining for the 21st Century” from the Harvard University

Program on Education Policy and Governance, the authors argued that “the most dauntingimpediments to [reforming education] are the teacher collective bargaining agreements thatregulate virtually all aspects of school district operations.” The education reform movement hasreached a point where the shortcomings of our education system, especially in urban areas, havebecome abundantly clear and countless individuals and organizations have come up withinnovative ideas, programs and practices to bring about improvement. In order for these newideas to be implemented in public school systems such as the Buffalo Public Schools, however,there must be significant structural overhaul, beginning with the collective bargaining system.

This report has identified and broken down the ten major areas of issue within contractnegotiations between school districts and teachers’ unions, detailed the state of these areaswithin the context of the BPS-BTF negotiations, and offered some suggestions on how to best

address each specific area. The goal of this report is to facilitate and encourage an opendiscussion about the content of teacher contracts and their impact on the education that ourschool district provides.

As shown, teachers’ contracts impact almost all aspects of the teacher-districtrelationship, and this necessarily impacts the ability of teachers to provide quality instruction.Perhaps the greatest impact of 100+ page contracts is to leave the bulk of decision-makingauthority at the district level to be decided by the administration and the teachers’ union. Such‘long-form’ contracts leave little room for more centralized (state-wide) solutions that couldconsolidate costs and, more importantly, even less room for school-specific solutions toeveryday problems, prohibiting flexibility and inhibiting innovation.

This report does not aim to attack teachers or teachers’ unions. It understands thatteachers’ unions are established for the very purpose of protecting their employees andmembers and ensuring them the best pay, benefits and working conditions they can securethrough negotiations. It also does not look to blame the administration or the Buffalo SchoolBoard. This report shines a light on the underlying purposes and impacts of each contract areain order to reinvigorate the debate over how each of these areas can be geared towards betterserving the needs of students. Teacher and student interests need not be diverging; collectivebargaining agreements designed to meet today’s challenging educational landscape shouldwork to embrace student interests.

There must be renewed urgency in conducting the current contract negotiations. The

Buffalo Public Schools are still operating under a contract negotiated in 1999 and designed toexpire in 2004; seven years after that deadline, no new contract has been made. The district isdesperate for a new contract, and now is the time to reconsider what the purpose of thecontract is, and how that purpose can best be served. Reforming the collective bargainingsystem cannot occur solely at the district level and will likely require legislative; however,negotiating a new contract will be an important first step.



Documents

Opening The Door For Reform: Rethinking and Renegotiating Collective Bargaining Agreements