The Calculus and Rituals of Labor Contract Negotiations: Will Randi and Mike Agree to a Modest Contract, or, Spar Over Core Union Issues?

   Have you ever watched the mating rituals of exotic animals on the Discovery Channel? If so, you may be able to understand the rituals associated with labor negotiations.

 

For the Union the end product of negotiations, the contract,  must be ratified by the membership, it has to appear to be a “win.” For management, in this case the City of New York, i.e., the Mayor, the contract must be described by the New York Times, the Post and the Daily News, as a “win” for the City.

 

Both sides display their plumage, strut and pose, cackle and coo, the rituals necessary to convince their constituencies that they are doing everything possible to “win,” however win is defined.

 

The rules of negotiations are established by the Public Employee Relations Board  (PERB) and have guided public employee union-management relations since 1967. New York City maintains an Office of Collective Bargaining, however schools fall under PERB. 

 

The law that created PERB is frequently referred to as the Taylor Law, it sets forth a wide range of procedures for the resolution of labor disputes, and, most famously, prohibts strikes. If strikes do occur PERB imposes a 2:1 penalty, the forfeit of one additional days pay for each day on strike and defines a strike,

 

The Taylor Law defines a strike as “any strike or other concerted stoppage of work or slowdown by public employees.” The Board has found sick-outs, slowdowns, a refusal to work regularly scheduled overtime, concerted high absenteeism, sometimes called the “blue flu,” “work-to-rule” tactics, and teachers’ refusals to participate in field trips, faculty meetings, and parent-teacher conferences, all to be unlawful strikes in the particular circumstances presented in each case.

 

In addition to the 2:1 penalty for striking employees the law can impose a range of other penalties on striking employees and unions,

 

A public employee whose employer determines that he or she has unlawfully engaged in or consented to a strike is liable to have deducted from his or her compensation an amount equal to twice his or her daily rate of pay for each day or part of a day that it is determined that the employee violated Civil Service Law Section 210. This penalty is often referred to as the “two-for-one” penalty. In addition, an employee who unlawfully strikes may be subject to removal or other disciplinary action provided by law for misconduct. The public employer makes the strike determination and imposes these strike penalties.

 

 The last teacher strike was in 1975, as the City teetered on the edge of bankruptcy.

If the parties are unable to reach an agreement PERB assigns a mediator, and if the negotiations are at impasse PERB moves the process to fact finding. The parties submit evidence and examine expert witnesses, write briefs, and, a panel of arbitrators renders a non-binding public report. The law establishes standards and criteria that guides the decision of the panel.

The public arbitration panel “shall make a just and reasonable determination of the matters in dispute.” In arriving at such determination, the panel shall specify the basis for its findings, taking into consideration, in addition to any other relevant factors, the following:

 

 a. comparison of the wages, hours and conditions of employment of the employees involved in the arbitration proceeding with the wages, hours, and conditions of employment of other employees performing similar services or requiring similar skills under similar working conditions and with other employees generally in public and private employment in comparable communities;

 

Comparability, aka, pattern bargaining, is also at play. The Union argued in 2002 that the “pattern” should be the pay scales in the surrounding suburban districts and the City argued that comparability meant with other large cities. The arbitrators agreed with the Union, however, chose Mount Vernon and Yonkers rather than Scarsdale and Great Neck. Suburban districts with inner city issues.The arbitrators considered the “interests and welfare of the public,” and came down on the side of a longer school day and a longer school year, for additional compensation.

 

Seven years later the Union faces another crossroads.

Will their support of mayoral control and pension savings for the City lead a path to a new contract? Will the City use the fiscal crisis and the Obama educational initiatives to push for substantial changes in the agreement?

Will the hiring freeze shrink the 1700 teacher ATR pool?

The District 79 Reorganization Agreement has resulted in about 100 ATRs who have not found jobs, they were interviewed by panels of five, two of whom were UFT assigned teachers, and found “not qualified,” will arbitrators support this process for all ATRs? Will the City position that ATRs who cannot find jobs in eighteen months be placed on layoff find resonance with an arbitration panel?

The 2002 panel rejected the City support of merit pay, but, now that the Union has agreed to an iteration of merit pay, will arbitrators feel differently?

Will the Union make an endorsement in the November mayoral election? or, stay on the sidelines?

Will Randi want to use changes in the UFT contract as a starting point to introduce changes in bargaining nation-wide?

These are extremely weighty issues, especially with a new leader at the helm of the UFT. For the Union will a “quick” contract with a modest salary increase satisfy the members? Will pushing for other changes, i.e., elimination of the ATR pool, the “Rubber Room,” etc., endanger core values in the contract if the process moves to fact finding?

The Union is surveying all members re bargaining demands and a many hundreds strong negotiations committee is in formation … the rituals begin.

In the backrooms of Tweed and Gracie Mansion the Mayor is running the numbers, looking at polling data, the calculus of determining the next steps in the public and private process.

Randi Weingarten has been a nimble Union president and Mike Bloomberg a strong willed Mayor.

Will they dance?

 

A public employee union that violates Civil Service Law Section 210 is liable to forfeit its right to have the public employer deduct membership dues and agency shop fees from the compensation of employees in the bargaining unit that union represents. PERB makes the strike determination and imposes any strike penalty in regard to unions.

 

 

 

 b. the interests and welfare of the public and the financial ability of the public employer to pay;

  

The 137 page 2002 Board of Education-UFT Fact Finding Report is a prime example of the risk-reward at stake for the Union.

 

Ability to pay is an issue before the arbitration panel: with the City facing huge deficits can the Union expect the panel to recommend increases? How much of the saving in the new pension agreement accrue to the Union and impact salary increases?