1

Collective BargainingStuart S. Waxman, Esq.Thomas, Drohan, Waxman, Petigrow & Mayle, LLP

2517 Route 52, Hopewell Junction, NY 12533

swaxman@tdwpm.com; (845) 592-7002

Dr. Kris FelicelloDirector of Human Resources

North Rockland Central School District

65 Chapel Street, Garnerville, NY 10923October 21, 2014

49th Annual NYSASPA ConferenceThe Otesaga HotelCooperstown, NY

2

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

3

Employer/Union RelationshipMutual RespectCollaborative and Not Adversarial (On-

Going Relationship)Understanding Union’s Perspective and

Do Not Trivialize the Union’s PositionUnderstand That the Union Needs to

Get the Deal Ratified (Political Consequences --Sometimes Mediation Can be a Way Out)

School Lawyer and Union LRS Relationship

4

Issues and Trends in Collective Bargaining1. 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

5

Issues and Trends in Collective Bargaining1. 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

6

Issues and Trends in Collective Bargaining2. Job Security ProvisionsUnions 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

7

Issues and Trends in Collective Bargaining2. 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.”

8

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.”

9

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.

10

Issues and Trends in Collective Bargaining2. 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 full-time position into two part-time (United Pub. Serv. Emp’ees Union and Twn of Woodbury, 45 PERB P4503 (2012))

11

Issues and Trends in Collective Bargaining3. 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

12

Issues and Trends in Collective BargainingKolbe (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.

13

Issues and Trends in Collective BargainingKolbe (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.”

14

Issues and Trends in Collective Bargaining3. 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.

15

Issues and Trends in Collective BargainingChenango 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 long-standing practice of reimbursement was negotiable.

16

Issues and Trends in Collective Bargaining3. 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.

17

Issues and Trends in Collective Bargaining3. 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

18

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)

19

Issues and Trends in Collective Bargaining3. 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

20

Issues and Trends in Collective Bargaining3. Health Insurance: TrendsAlternative 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 plansEliminate the health insurance buyout

21

Issues and Trends in Collective Bargaining4. 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.

22

Issues and Trends in Collective BargainingGlen 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.

23

Issues and Trends in Collective BargainingGlen 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.

24

Issues and Trends in Collective Bargaining5. 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

25

Issues and Trends in Collective Bargaining6. 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

26

Issues and Trends in Collective Bargaining7. 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.

27

Issues and Trends in Collective BargainingTown 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.

28

Issues and Trends in Collective Bargaining8. Use of GPS/Surveillance

Technology

◦CSEA, Local 1000 and County of Nassau, U-26816 (2008)

◦AND◦CSEA Local 1000, AFSCME, AFL-CIO

and Nanuet UFSD, U-27650 (2010)

29

Issues and Trends in Collective Bargaining8. 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.”

30

Issues and Trends in Collective Bargaining8. 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.

31

Issues and Trends in Collective Bargaining8. 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 video-surveillance participants, and it intrudes upon employee interests including job security, privacy and personal reputation.” (emphasis added)

32

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)

33

Collective Bargaining: Strategies and TipsDon’t engage in “piecemeal”

bargaining; negotiate as a packageYou have the same right to information

from union for collective bargaining purposes as union has from you

Prioritize proposalsUnderstand economic parametersKnow the maximum $$ you can spend

while staying within tax capCost out union proposals

34

Collective Bargaining: Strategies and TipsFamiliarize 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

35

Collective Bargaining: Strategies and TipsDon’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

36

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

37

Collective Bargaining: Strategies and TipsIf and when do you communicate

with union membership?

If and when do you communicate with the media?

38

Role of Superintendent and Board in NegotiationsRole 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

39

Role of Superintendent and Board in NegotiationsDecide 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

40

What if negotiations are not successful?MediationFact-findingSuperconciliation