Collective Bargaining
Stuart S. Waxman, Esq.
Thomas, Drohan, Waxman, Petigrow & Mayle, LLP
2517 Route 52, Hopewell Junction, NY 12533
swaxman@tdwpm.com; (845) 592-7002
Dr. Kris Felicello
Director of Human Resources
North Rockland Central School District
65 Chapel Street, Garnerville, NY 10923
October 21, 2014
49th Annual NYSASPA Conference
The Otesaga Hotel
Cooperstown, NY
1
What Will We Cover?
1)
Employer/Union Relationship
2)
Issues and Trends in Collective Bargaining (and a
discussion of relevant case law)
3)
Negotiation Strategies and Tips
4)
Role of Superintendent and Board in negotiations
5)
What happens when negotiations are
unsuccessful
2
Employer/Union Relationship





Mutual Respect
Collaborative and Not Adversarial (OnGoing Relationship)
Understanding Union’s Perspective and Do
Not Trivialize the Union’s Position
Understand That the Union Needs to Get
the Deal Ratified (Political Consequences -Sometimes Mediation Can be a Way Out)
School Lawyer and Union LRS Relationship
3
Issues and Trends in Collective
Bargaining

1. Wages:Trends
◦ Step Freeze with money off-schedule or flat
dollar amounts on schedule (rather than %)
◦ Add additional introductory or in-between steps
◦ Delay step to the middle of the year
◦ Delay wage increases to the middle of the year
◦ Increase salary to schedule but do not apply
retroactively
◦ Instead of increasing the salary schedule, consider
providing a bonus that is not included in the
schedule
◦ Hold employees on step if they receive an
ineffective or developing rating
4
Issues and Trends in Collective
Bargaining

1. Wages – Raises:Trends
◦ Only give raises to employees who don’t
receive step increase, then give increase off
schedule
◦ Create new salary schedule for new hires
5
Issues and Trends in Collective
Bargaining
2. Job Security Provisions
 Unions will often be seeking job security
provisions, such as:
◦ No Layoffs Clauses (see Johnson City case on next
slide)
◦ Notice in event of layoff
◦ Minimum staffing provisions
◦ Requirement to fill positions within certain time
of vacancy
 *NOTE: certain job security provisions, such as no-layoff
clauses, are non-mandatory subjects of bargaining
6
Issues and Trends in Collective
Bargaining
2. Job Security Provisions

“No Layoff” Clauses
◦ See Johnson City Professional Firefighters
Local 921 v.Village of Johnson City (2011)
◦ On November 17, 2011, the New York State
Court of Appeals held:
 A “no layoff” clause is unenforceable as against public
policy unless (1) a municipal employer and a union
“explicitly agree” that a municipality is relinquishing its
right to lay off employees “for budgetary, economic or
other reasons” and (2) the agreement “evidence[s] that
intent.”
7
Issues and Trends in Collective
Bargaining
◦ Johnson City (cont’d):
◦ At issue was a no-layoff clause that stated:
A. The Village shall not lay-off any member of
the bargaining unit during the term of this
contract.
B. The Village shall not be required to ‘back fill’
hire additional members to meet staffing
level of expired agreement.”
8
Issues and Trends in Collective
Bargaining
◦ Johnson City (cont’d):
 The court concluded that the ‘no-layoff’ clause was
“not explicit, unambiguous and comprehensive.”
 The clause, while generally prohibiting “lay-offs,” did
not explicitly prohibit the elimination of employees
out of budgetary necessity.
9
Issues and Trends in Collective
Bargaining
2. Job Security Provisions

Splitting Full-Time Job into Two Part-Time
Jobs
◦ Mandatory subject of bargaining if positions
are the same or substantially similar
◦ A broadly-worded “management rights”
clause does not authorize right to split fulltime position into two part-time (United Pub.
Serv. Emp’ees Union and Twn of Woodbury, 45 PERB P4503
(2012))
10
Issues and Trends in Collective
Bargaining

3. Health Insurance – Negotiating over Past
Retirees
◦ See Kolbe v.Tibbetts (2013).
◦ On December 12, 2013, the New York State
Court of Appeals held:
 If a Collective Bargaining Agreement provides for a
specific benefit for retirees, i.e. a premium rate or level
of coverage, a school district may not unilaterally modify
that benefit (since the union does not represent past
retirees, the union cannot negotiate a modification to
that benefit).
 The Insurance Moratorium Law does not provide a basis
for abrogating retirees’ vested contractual rights
11
Issues and Trends in Collective
Bargaining

Kolbe (cont’d):
◦ Where a district increased the co-pay rates of
retirees to reflect changes made under a new CBA,
the district violated the terms of the earlier CBAs
that were in effect when the former employees
retired.
◦ The applicable provision in the retirees’ CBA read
“[t]he coverage provided shall be the coverage which
is in effect for the unit at such time as the employee
retires.”
◦ The court found that “coverage” could encompass
both benefits as well as costs (including co-pays) of
health insurance and remanded the case to the lower
court for further findings.
12
Issues and Trends in Collective
Bargaining

Kolbe (cont’d):
◦ The Insurance Moratorium Law does not provide
a basis for abrogating retirees’ vested contractual
rights.
◦ The purpose of the “Insurance Moratorium Law”
is to prevent school districts from eliminating or
reducing retiree health insurance benefits that
were voluntarily conferred as a matter of district
policy.
◦ The court held that the Insurance Moratorium
law prescribes “a bottom floor, beneath which
school districts and certain boards were
forbidden to go in diminishing benefits.”
13
Issues and Trends in Collective
Bargaining
3. Health Insurance – Future Retirees:

Chenango Forks CSD v. NYS PERB, 21
N.Y. 255 (2013)
◦ On June 6, 2013, the Court of Appeals held that a school
district’s voluntary payment of Medicare Part B premiums for
over-65 retirees, after a contractual requirement to do so was
dropped, gave rise to a binding expectation that it would
continue providing such benefits.
14
Issues and Trends in Collective
Bargaining

Chenango Forks (cont’d):
◦ The district was, at one time, required to reimburse
Medicare Part B premiums to retirees 65 or older
who were under the NYSHIP plan.
◦ However, the parties negotiated a switch to a new
plan, but the CBA was silent with regard to
reimbursement, although the District continued to
provide it.
◦ The court affirmed the decision of both PERB and the
Third Department, finding that the district committed
an improper practice by announcing that it was going
to eliminate Medicare Part B reimbursement for
future retirees, as the discontinuance of a longstanding practice of reimbursement was negotiable.
15
Issues and Trends in Collective
Bargaining
3. Health Insurance - Affordable Care Act
Implications

Part A Penalty
◦ If District fails to offer “minimal essential coverage” to at
least 95% of its full-time employees (30+ hours/week) and
their dependents, and at least one employee purchases
subsidized coverage on the Exchange, the District will be
assessed:
 $2,000 per employee annually
 Penalty based on total number of full-time employees (minus 30)
◦ Note: for 2015 only, minimum essential coverage
threshold is 70 % and penalty based on total number of
full-time employees minus eighty.
16
Issues and Trends in Collective
Bargaining
3. Health Insurance - Affordable Care Act
Implications

Part B Penalty
◦ If the minimum essential coverage offered by the District
is either not affordable (i.e. the cost of the health
insurance premiums exceed 9.5% of the employee’s
household income) or does not meet minimum value
(i.e. the health plan pays less than 60% of the covered
claim costs), and at least one employee purchases
subsidized coverage on the Exchange, the District will be
assessed:
 $3,000 per employee annually
 Penalty based on number of full-time employees who received
subsidy, capped at Part A penalty amount
17
Issues and Trends in Collective
Bargaining
3. Health Insurance – ACA Implications
(cont’d)
◦ 9.5% of household income implications when
negotiating an employee’s rate of contribution
◦ Offer additional lower cost plan
◦ Raise the hour threshold amount an
employee must work before becoming eligible
for health insurance (but 30 hour
requirement under ACA)
18
Issues and Trends in Collective
Bargaining
3. Health Insurance – NYSHIP Buyout Provision
Roslyn Teachers Assoc. v. New York State Health
Ins. Plan, No. 3409-2013
◦ On January 10, 2014, the Supreme Court of New York,
Albany County invalidated a NYSHIP policy that restricted
employees already enrolled in NYSHIP as dependents
(through a spouse’s employer-sponsored plan) from
receiving buyouts
◦ The court held that a buyback offer between an employer
and employee is not a “health benefit” within the health
plan that the state has the power to control
◦ The decision is currently on appeal
19
Issues and Trends in Collective
Bargaining
3. Health Insurance: Trends
 Alternative Health Insurance Plans
◦ (i.e. DEHIC Healthy Advantage PPO Plan, EPO20 Plan)
Increasing employee contributions to health plans;
Increasing wait-period for eligibility for health benefits
(but beware ACA prohibition on wait periods of
longer than 90 days);
 Increasing years-of-service for retiree eligibility;


◦ (15 years under current contract)
Eliminating Medicare Part B reimbursement for future
retirees or newly-hired employees;
 Explore high deductible health insurance plans
 Eliminate the health insurance buyout

20
Issues and Trends in Collective
Bargaining

4. Medicaid Reimbursement Documentation:
Glen Cove Teachers Ass’n v. Glen Cove City
School Dist., 46 PERB ¶ 6601 (2013)
◦ On December 3, 2013, an Administrative Law Judge (“ALJ”) of
the New York State Public Employment Relations Board
(“PERB”) ruled in favor of a school district that unilaterally
required its speech and hearing handicapped teachers, school
social workers and school psychologists to comply with state
Medicaid documentation requirements in connection with
district efforts to recover reimbursement for services provided
to Medicaid-eligible students.
21
Issues and Trends in Collective
Bargaining

Glen Cove Teachers Ass’n (cont’d)
• The district could require its staff to complete Medicaid
reimbursement forms, obtain NPI numbers, take
contemporaneous session notes, participate in training
sessions, and use standard medical codes on Medicaid forms.
 The ALJ held that such tasks were not mandatorily negotiable
because they were either (i) incidental to the employees’
essential roles as IEP service providers, (ii) substantially similar to
the work the employees had already been doing for years, or (iii)
did not improperly increase their workload.
22
Issues and Trends in Collective
Bargaining

Glen Cove Teachers Ass’n (cont’d)
•
The district could require its staff to obtain and use a
personal professional license in order to complete
Medicaid reimbursement forms.

Relying on PERB precedent, the ALJ held that the district’s
license requirement was not mandatorily negotiable because
the tasks requiring the license were part of the essential
aspects of the position’s basic functions or were incidental
tasks. Further, the ALJ held that the employees’ argument
that the district should have paid the fees to obtain and
renew their licenses should have been raised in the context
of a demand for impact bargaining and that any such impact
bargaining obligations would not deprive the District of its
separate right to issue the licensing directive.
23
Issues and Trends in Collective
Bargaining
5. Leave Accruals:Trends
◦ Reduced leave accruals
◦ Tiered leave accruals (i.e. new hires get less
vacation time)
◦ Reduce the payment for unused leave accruals
upon separation from service
24
Issues and Trends in Collective
Bargaining

6. Work Schedules: Trends
◦ Change work schedules (i.e. weekend shifts to
avoid the payment of overtime)
◦ Longer work days
◦ Eliminate Summer hours
◦ Create flexibility for changing shifts
25
Issues and Trends in Collective
Bargaining

7. Surrendering Vehicles
◦ See Town of Islip v. NYS PERB (2013)
◦ On March 13, 2013, the Appellate Division, Second Department
held that the Town committed an improper practice where it
passed a resolution limiting the assignment of “take-home”
vehicles to certain employees, contrary to a long-standing
practice of assigning Town vehicles for permanent use by
employees who were not on call 24 hours a day.
26
Issues and Trends in Collective
Bargaining

Town of Islip (cont’d)
◦ Although the Town had a written policy stating that
only employees required to be on call 24 hours a day
will be assigned Town vehicles, the Town frequently
ignored its policy for at least 15 years.
◦ The sudden change in practice deprived
approximately 45 union members of their
assignments to Town vehicles.
◦ The court upheld an ALJ’s determination that the
Town had engaged in an improper practice by
unilaterally discontinuing a past practice, despite the
fact that its practice was in conflict with its own
written policy.
27
Issues and Trends in Collective
Bargaining

8. Use of GPS/Surveillance Technology
◦ CSEA, Local 1000 and County of Nassau, U26816 (2008)
◦ AND
◦ CSEA Local 1000, AFSCME, AFL-CIO and
Nanuet UFSD, U-27650 (2010)
28
Issues and Trends in Collective
Bargaining

8. GPS Technology – CSEA, Local 1000 and
County of Nassau (2008)
◦ The administrative law judge held:
 There is no bargaining obligation concerning an
employer’s decision to use GPS technology;
 Use of GPS technology that allows an employer to
be aware of the location of employees on work
time “relates to the manner and means by which an
employer is providing services to the public”;
 “It is within an employer’s discretion to determine
the equipment it needs to carry out its mission of
providing services to the public.”
29
Issues and Trends in Collective
Bargaining

8. GPS Technology – CSEA, Local 1000 and
County of Nassau (2008)
◦ PERB determined that the employer-mandated use of
cell phones equipped with GPS technology would
have no greater impact upon an employee’s privacy
than that of a supervisor assigned to accompany a
particular employee throughout the workday.
◦ PERB concluded that where, as here, an employer
already requires employees to keep logs of their
workday activities, obligating employees to turn the
phone off during off-hours does not unilaterally
increase employees’ participation in record-keeping.
An obligation to bargain could, however, arise in
absence of a similar record-keeping requirement.
30
Issues and Trends in Collective
Bargaining


8. Surveillance Cameras CSEA Local 1000,
AFSCME, AFL-CIO and Nanuet UFSD (45 PERB
¶ 3007)(2012)
“[I]n 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 videosurveillance participants, and it intrudes upon employee
interests including job security, privacy and personal
reputation.” (emphasis added)
31
Issues and Trends in Collective
Bargaining

8. Surveillance Cameras – Nanuet UFSD (cont’d)
◦ However, a fact-specific exam and analysis is
necessary to determine whether a particular
decision to use video surveillance is subject to
mandatory negotiations.
◦ Factors:
 Nature of the workplace;
 Employer’s core mission;
 Scope and length of the videotaping (2 days? 6 months?
See Matter of Custodian Ass’n of Elmont and Elmont
U.F.S.D)
32
Collective Bargaining: Strategies and
Tips






Don’t engage in “piecemeal” bargaining;
negotiate as a package
You have the same right to information from
union for collective bargaining purposes as
union has from you
Prioritize proposals
Understand economic parameters
Know the maximum $$ you can spend while
staying within tax cap
Cost out union proposals
33
Collective Bargaining: Strategies and
Tips
Familiarize yourself with any grievances
filed so you can make decisions about
language modifications
 Know pension and health insurance costs
and projections
 Know makeup of your workforce (i.e.
eligibility to retire, incentives)
 Know how salary/benefits compare to
those holding similar jobs in other
Districts

34
Collective Bargaining: Strategies and
Tips

Don’t increase everything in the contract;
identify what needs to be increased

Dental/Vision Funds: don’t link
contribution to the plan; rather, replace
with a set dollar amount

Don’t focus only on current costs; plan
for future cost containment
35
Collective Bargaining: Strategies and
Tips
◦ Freeze or reduce benefit trust contributions
◦ For Teachers’ Contracts:
 With new APPR and Common Core, require
additional time and/or meetings outside of regular
school day
 Eliminate class size and student load limits or goals
36
Collective Bargaining: Strategies and
Tips

If and when do you communicate with
union membership?

If and when do you communicate with
the media?
37
Role of Superintendent and Board
in Negotiations

Role of Superintendent
◦ Chief Executive Officer responsible for collective
bargaining negotiations
◦ Agreements reached without participation or
acquiescence of superintendent are not
enforceable

Role of Board
◦ Must give legislative approval for provision of
funding under terms of memorandum of
agreement
38
Role of Superintendent and Board
in Negotiations

Decide who will be present at bargaining
table
◦ Board members?
 Board members should avoid side conversations with
union officials
 Keep Board members informed with regard to ongoing
negotiations
◦ Lawyers?
◦ Don’t let the union dictate who will represent
the District at the bargaining table
39
What if negotiations are not
successful?
Mediation
 Fact-finding
 Superconciliation

40