School Safety & Labor
Relations – to Negotiate
or Impose?
Douglas Gerhardt, Esq.
Harris Beach PLLC
dgerhardt@harrisbeach.com
677 Broadway, Suite 1101
Albany, New York 12207
(518) 701-2738
Shannon Buffum, Esq.
Harris Beach PLLC
sbuffum@harrisbeach.com
726 Exchange Street, Suite 1000
Buffalo, New York 14210
(716) 200-5151
www.harrisbeach.com
School Safety Goals
Ensuring student and employee safety
should be a mutual concern of both
school districts and bargaining unit
employees.
 School districts must take steps to
ensure safety while complying with
the Taylor Law.

Douglas Gerhardt, Esq.
(518) 701-2738
Shannon Buffum, Esq.
(716) 200-5151
© Harris Beach PLLC, 2013
2
What are Elements of School
Safety?
 School
Safety Plans
 Emergency Management Plans
 Implementation of the Dignity for
All Students Act (DASA)
 Surveillance – use of video
 GPS – in vehicles or on phones
Douglas Gerhardt, Esq.
(518) 701-2738
Shannon Buffum, Esq.
(716) 200-5151
© Harris Beach PLLC, 2013
3
What is the Employer’s Duty
to Bargain?
The Taylor Law requires bargaining
“terms and conditions of employment.”
 The obligation to bargain over any
particular subject is determined by
whether that subject is a mandatory,
permissive, or prohibited subject of
bargaining.

Douglas Gerhardt, Esq.
(518) 701-2738
Shannon Buffum, Esq.
(716) 200-5151
© Harris Beach PLLC, 2013
4
What is a Mandatory Subject
of Bargaining?




Unions have the right to negotiate with employers regarding the
“terms and conditions of employment” and “the administration of
grievances arising thereunder”. Civ. Serv. Law § 203.
It is an improper practice for employers to refuse to “negotiate
collectively in good faith” regarding terms and conditions (T&C) of
employment. Civ. Serv. Law § 209-a(1)(d).
T&C are defined in a somewhat less than helpful manner as
“salaries, wages, hours and other terms and conditions of
employment…” Civ. Serv. Law § 201(4).
These items must be bargained if either party brings them to the
table. Parties must bargain in good faith until…
 they reach agreement; or
 the subject is withdrawn from the negotiation.
Douglas Gerhardt, Esq.
(518) 701-2738
Shannon Buffum, Esq.
(716) 200-5151
© Harris Beach PLLC, 2013
5
What is a Mandatory Subject
of Bargaining? (cont.)

Determinations by PERB regarding whether an item is a term or
condition of employment are based on balancing…


The impact on employee wages, hours, and/or working conditions; and
The public employer’s “right to determine the ‘manner, method, and
extent’ of the governmental services it offers.”
Bridge & Tunnel Officers Benevolent Ass’n, 12 PERB ¶ 4614 (1979).

PERB case law has interpreted T&C to include…

Compensation, including salary and benefits (Bellmore UFSD, 34 PERB ¶
4501 (2002); City of Lockport, 40 PERB ¶ 4541 (2007))

Employee safety (Town of Niagara, 14 PERB ¶ 3049 (1981); City of N.Y., 40
PERB ¶ 3017 (2007))

Disciplinary procedures (State of New York, 37 PERB ¶ 6601 (2004))

Work hours (Local 294, IBT, 10 PERB ¶ 3007 (1977)
Douglas Gerhardt, Esq.
(518) 701-2738
Shannon Buffum, Esq.
(716) 200-5151
© Harris Beach PLLC, 2013
6
What is a Permissive Subject
of Bargaining?

Permissive subjects of bargaining – also known as
“non-mandatory” - are subjects which a school
district and union are not obligated, to negotiate.
Yorktown Faculty Ass’n, 7 PERB ¶ 3030 (1974); City School District
of New Rochelle, 4 PERB ¶ 3060 (1971).

“Permissive” subjects may be converted to
“mandatory” subjects under the conversion theory of
negotiability.
City of Cohoes, 31 PERB ¶ 3020 (1998); Greenburgh No. 11 UFSD,
32 PERB ¶ 3024 (1999).
Douglas Gerhardt, Esq.
(518) 701-2738
Shannon Buffum, Esq.
(716) 200-5151
© Harris Beach PLLC, 2013
7
Conversion Theory of
Negotiability
Otherwise non-mandatory subjects may be
converted to mandatory subjects by incorporating
them into a CBA without a sunset provision.
 PERB has held a demand to modify or delete
existing contract language in an expired
agreement was mandatorily negotiable despite
the fact the language was regarding an otherwise
non-mandatory subject.

City of Cohoes, 31 PERB ¶ 3020 (1998).
Douglas Gerhardt, Esq.
(518) 701-2738
Shannon Buffum, Esq.
(716) 200-5151
© Harris Beach PLLC, 2013
8
Conversion Theory of
Negotiability (cont.)

The conversion theory of negotiability
applies to school districts; a district’s
submission to fact-finding of an otherwise
non-mandatory subject was not improper
where the non-mandatory subject had been
converted to a mandatory subject because
of prior incorporation into the parties’ CBA.
Greenburgh No. 11 UFSD, 32 PERB ¶ 3024 (1999).
Douglas Gerhardt, Esq.
(518) 701-2738
Shannon Buffum, Esq.
(716) 200-5151
© Harris Beach PLLC, 2013
9
What are Prohibited Subjects
of Bargaining?

Prohibited subjects are subjects which may not be
negotiated by law or because of public policy, including:

Benefits under a public retirement system (Civ. Serv. Law §
201(4));
 teacher qualifications (Educ. Law. § 3001);
 the use of seniority in teacher assignments (Educ. Law §§
2510(2), 2585(3), 3013(2)); and
 restrictions on a school board’s right to grant or deny tenure
(Cohoes City Sch. Dist. V. Cohoes Teachers Ass’n, 40
N.Y.2d 774, 9 PERB ¶ 7529 (1976)).

If parties attempt to negotiate a prohibited subject the
agreement is unenforceable.
Douglas Gerhardt, Esq.
(518) 701-2738
Shannon Buffum, Esq.
(716) 200-5151
© Harris Beach PLLC, 2013
10
Safety and Bargaining:
Video and Audio Surveillance




“To video or not to video” requires balancing
school district and employee interests.
Consider: employee awareness of surveillance
 Hidden cameras vs. readily observable cameras
 Employee understanding of potential use of video
Purpose of surveillance
School safety vs. employee misconduct
concerns… or both?
Special concern: wiretapping law (N.Y. Penal Law
§§ 250.00, 250.05)
Douglas Gerhardt, Esq.
(518) 701-2738
Shannon Buffum, Esq.
(716) 200-5151
© Harris Beach PLLC, 2013
11
PERB & Surveillance vis a vis
Employee Discipline

Board found that employer improperly refused to
bargain impact of employer decision to use video
camera footage in employee disciplinary
proceedings; employer decision to install cameras
both inside and outside of busses impacted
mandatory subject of discipline when bus driver
was disciplined as a result of a videotaped incident
with a passenger.
Amalgamated Transit Union v. Niagara Frontier
Transit Metro System, Inc., 36 PERB ¶ 3036
(2003)(emphasis added).
Douglas Gerhardt, Esq.
(518) 701-2738
Shannon Buffum, Esq.
(716) 200-5151
© Harris Beach PLLC, 2013
12
PERB & Surveillance vis a vis
Employee Discipline (cont.)

PERB “conclude[d] that, in general, the decision by
an employer to engage in videotape surveillance of
a workplace for monitoring and investigating
employees is mandatorily negotiable under the Act
because it ‘bears a direct and significant
relationship to working conditions’, it requires
employees to be video-surveillance participants,
and it intrudes upon employee interests including
job security, privacy and personal reputation.”
CSEA v. Nanuet UFSD, 45 PERB ¶ 3007 (2012)
(emphasis added).
Douglas Gerhardt, Esq.
(518) 701-2738
Shannon Buffum, Esq.
(716) 200-5151
© Harris Beach PLLC, 2013
13
PERB & Surveillance vis a vis
Employee Discipline (cont.)

“To determine whether a particular decision to
utilize videotape surveillance in the workplace is
mandatorily negotiable under the Act, however,
requires a fact-specific examination of
employer and employee interests. Among the
factors that must be considered are the nature
of the workplace, and the employer’s core
mission.”
CSEA v. Nanuet UFSD, 45 PERB ¶ 3007 (2012)
(emphasis added).
Douglas Gerhardt, Esq.
(518) 701-2738
Shannon Buffum, Esq.
(716) 200-5151
© Harris Beach PLLC, 2013
14
Surveillance vis a vis Employee
Discipline (cont.)

Fact-specific inquiry of employer/employee interests:
Is videotaping integral to the employer’s core mission?
 How broad is the scope of the videotaping?

 Public
entrances? Hallways? Breakrooms?
 Note: Labor Law §203-c prohibits videotaping in restrooms,
locker rooms or rooms designated by an employer for
employees to change their clothing.

Is the videotaping continuous?
 Are the videotapes available to third parties?
 Under
FOIL? Under subpoena?
 Can it be posted/distributed through the internet?
Douglas Gerhardt, Esq.
(518) 701-2738
Shannon Buffum, Esq.
(716) 200-5151
© Harris Beach PLLC, 2013
15
School Security & Computer
and Phone Surveillance






Acceptable Use Policies
Review of employee phone records
Review of employee email
Keystroke logging
Cell phones vs. district landlines
Are employees

Aware?
 On notice?
 Consent?
Douglas Gerhardt, Esq.
(518) 701-2738
Shannon Buffum, Esq.
(716) 200-5151
© Harris Beach PLLC, 2013
16
Global Positioning Systems
(“GPS”) – Various Uses

Installation of GPS on…
 School busses transporting children
 School cars used for other purposes (not
transporting children)
 Employees’ personal vehicles
 Employee phones
Douglas Gerhardt, Esq.
(518) 701-2738
Shannon Buffum, Esq.
(716) 200-5151
© Harris Beach PLLC, 2013
17
GPS and Employees

ALJ found that the employer decision to
install a GPS system on vehicles operated by
town employees was management
prerogative because it was related to the
“matter and means by which an employer is
providing services to the public.”
CSEA v. Village of Hempstead, 41 ¶ 4554 (2008)
(emphasis added).
Douglas Gerhardt, Esq.
(518) 701-2738
Shannon Buffum, Esq.
(716) 200-5151
© Harris Beach PLLC, 2013
18
GPS and Employees (cont.)

ALJ’s reasoning from CSEA v. Village of
Hempstead:

GPS allows the employer to be aware of the
location of its property and the location of
employees on work time.
 Likened to having a supervisor accompany an
employee – which would clearly be allowable.
 Fact that GPS may result in discipline does not
make use a mandatory subject of bargaining.
Douglas Gerhardt, Esq.
(518) 701-2738
Shannon Buffum, Esq.
(716) 200-5151
© Harris Beach PLLC, 2013
19
GPS and Employees (cont.)

ALJ found that an employer’s decision to
install GPS systems in vehicles was
management prerogative as it “involves
the manner and means by which [an
employer] serves its constituency”; “the use
of an employer’s property cannot be
considered a term and condition of
employment.”
Douglas Gerhardt, Esq.
(518) 701-2738
Shannon Buffum, Esq.
(716) 200-5151
© Harris Beach PLLC, 2013

Matter of CSEA v. County of Nassau, 41 PERB ¶ 4552
(2008)(emphasis added).
20
GPS and Employees (cont.)

ALJ’s reasoning from CSEA v. County of Nassau:

Fact that employees may drive employer vehicles to
and from breaks and between work and home and
therefore during non-work hours does not infringe on
employee off-duty time, despite the fact the GPS could
not be disabled during those times.
 Employees are permitted to leave the vehicles during
break times.
 Employer has a managerial right “to know the location
of its property whether or not an employee is on duty”
and the location of employees on work time.
Douglas Gerhardt, Esq.
(518) 701-2738
Shannon Buffum, Esq.
(716) 200-5151
© Harris Beach PLLC, 2013

21
GPS and Employees (cont.)

ALJ found that employer’s unilateral
imposition of requirement that certain
employees carry cell phones with active
GPS systems was not improper; it was
employer prerogative to determine the
type of equipment to be used by employees
in providing services to the public.
CSEA v. County of Nassau, 41 PERB ¶ 4553
(2008)(emphasis added).
Douglas Gerhardt, Esq.
(518) 701-2738
Shannon Buffum, Esq.
(716) 200-5151
© Harris Beach PLLC, 2013
22
GPS and Employees (cont.)

ALJ’s reasoning from CSEA v. County of Nassau:
Selection of equipment “involves the manner and means
by which [an employer] serves its constituency and hence
is a management prerogative.”
 “The utilization of this equipment has an effect on the
productivity and efficiency of the workforce.”
 Employees could turn off phone during breaks and nonwork times, shutting down the GPS tracking abilities and
therefore allowing for employee privacy.
 Fact that GPS may result in discipline does not make use
a mandatory subject of bargaining.

Douglas Gerhardt, Esq.
(518) 701-2738
Shannon Buffum, Esq.
(716) 200-5151
© Harris Beach PLLC, 2013
23
Employee Identification

ALJ found that school district’s requirement
that all employees wear photo identification
cards was a non-mandatory subject; “the
issue is one of mission, safety and policy,
and not negotiable interests such as comfort,
privacy, expense or discipline.”
Middle Country Secretarial Ass’n v. Middle
Country CSD, 30 PERB ¶ 4556 (1997).
Douglas Gerhardt, Esq.
(518) 701-2738
Shannon Buffum, Esq.
(716) 200-5151
© Harris Beach PLLC, 2013
24
Negotiating Language
Related to School Security

Negotiators should avoid:

Agreeing to the incorporation in a CBA of an otherwise nonmandatory subject related to security, thereby converting it
to a mandatory subject
 Agreeing to any restriction on a school district’s ability to
use surveillance records in employee disciplinary
proceedings

In the event a plans to agree to language related to a
non-mandatory subject, negotiators should include
sunset language and/or reopeners to account for
changing district needs and technology
Douglas Gerhardt, Esq.
(518) 701-2738
Shannon Buffum, Esq.
(716) 200-5151
© Harris Beach PLLC, 2013
25
Questions/Comments
Douglas Gerhardt & Shannon Buffum
Harris Beach, PLLC
DGERHARDT@HARRISBEACH.COM
SBUFFUM@HARRISBEACH.COM
Douglas Gerhardt, Esq.
(518) 701-2738
Shannon Buffum, Esq.
(716) 200-5151
© Harris Beach PLLC, 2013
26