Contract Negotiations: Factfinding and the Path to a New Contract in Uncertain Economic Times

The countdown to the principal/teacher evaluation plan has gobbled up the headlines; as well as conflicts over proposed school closings and the mayoral candidates have floated from panel to panel expressing opinions, usually foolish, about schools.

The beginning of the state-sponsored fact-finding has been under the radar.

Public employment labor-management relations in New York State are governed by the Public Employee Relations Board (PERB), a state agency created by the Public Employees Relations Act, sometimes called the Taylor Law, named after labor researcher and University of Pennsylvania professor George W. Taylor.

The new law passed in 1967, the Taylor Law, permits union organizing, and provides a system within which to resolve labor-management conflict short of striking. Public employers are required to recognize and negotiate in good faith with the union representatives of a bargaining unit. The law establishes certain mandatory bargaining issues, which public employers must negotiate with union representation. Broadly stated, mandatory bargaining issues are terms and conditions of employment.
The Public Employees Relations Board(PERB) interprets which issues are terms and conditions of employment under the law. PERB is also mandated to facilitate union recognition and labor-management contract negotiations, and to arbitrate any unresolved disputes.

The law provides a three-step process: mediation, impasse and fact-finding. At the request of labor/management, PERB assigns a mediator who assists the parties to achieve a settlement. If the attempts at mediation fail, the parties are at impasse, PERB can move to the fact-finding stage. A panel of arbitrators are assigned to conduct an arbitration process leading to a public, non-binding decision that is usually the basis of the final settlement. For most “uniformed” unions, police, fire and corrections, the fact-fact-finding report is binding.

In 1982 as a result of a Court of Appeals ruling, the Triborough Doctrine, was made a part of the PERB rules. An expired contract will remain in full force and effect until a successor agreement is negotiated.

The NYS School Boards Association opposes the Triborough section of the law,

The current requirement that school districts pay automatic salary increases (steps, longevity and differentials) to school employees is unjust to students and the taxpayers that support them. It forces staff layoffs and harmful cuts to educational programs and services. When a constitutional right to a sound, basic public education is being thwarted by an inability to adjust resources, the law must be changed.

There are a host of other organizations, from the Council of Mayors to Chambers of Commerce to organizations hostile to unions that are lobbying the legislature to remove elements from the Triborough section of PERB,

“The Triborough Amendment also undermines the collective bargaining process by discouraging unions from offering concessions or givebacks since, as long as no agreement is reached, the terms of the current contract remain in effect.”

In the current climate, the limitations of the 2% property tax cap has resulted in a number of teacher union locals that voluntarily agreed to freeze step/longevity raises to avert layoff.

Up to now the governor has not shown any interest in supporting attempts to change/erode Triborough.

The law clearly and explicitly prohibits strikes, “No public employee or employee organization shall engage in a strike, and no public employee or employee organization shall cause, instigate, encourage, or condone a strike.” If an employee “engages in a strike” or the “employee or employee organization shall cause, instigate, encourage or condone a strike” the employee suffers a 2 for 1 penalty, the employer ” … shall deduct from the compensation of each such public employee an amount equal to twice his daily rate of pay for each day or part thereof.”

In addition the union faces “forfeiture of dues check off” and fines imposed by the courts.

Courts have ruled that “sick outs,” refusal to work in after school paid or voluntary activities, etc., constitute violations of the statute. The law does allow the courts to mitigate the penalty “….if the appropriate public employer or its representatives engaged in such acts of extreme provocation as to detract from the responsibility of the employee organization for the strike.” Unfortunately I could not find any instances where a court actually “mitigated” penalties.

The NYC/UFT contract expired on 10-31-09 and currently all public employee labor agreements have expired – the first time that all unions in the city are working under expired contracts.

In the fall of 2012 the fact-finding process began,

The fact-finders, all labor arbitrators, are Martin F. Scheinman, Mark Grossman and Howard Edelman. Scheinman was named chairperson of the panel.

PERB said that it appointed the fact-finders “for the purpose of inquiring into the causes and circumstances of the dispute” after determining that an impasse existed in the negotiations.

The panel has the power to subpoena witnesses, documents and other material; and to administer oaths and take testimony. After hearings, the panel will release “findings of fact and recommendations for resolution of the dispute.” The recommendations, while not binding, are expected to help provide a framework for a final settlement.

The economic meltdown in 2008 and the resultant impact on the city discouraged unions actively pursuing negotiations. The core of the fact-finding process is assessing “comparability” and “ability to pay.” In a period of economic hardship unions were not anxious to leave their fate in the hands of an arbitrator.

The 139-page 2002 Board of Education-UFT fact-finding decision was the result of a lengthy process: scores of witnesses, hundreds of documents submitted as evidence, thousands of pages of transcripts.

The panel explores “comparability” (what salaries in other locations should the arbitrators use as a guide), “ability to pay,” (simply put: what can the city afford based on tax revenues and anticipated expenses), “pattern bargaining” (the percent in other union settlements) and “interest and welfare of the public” (a catchall which incorporates everything else).

In the 2002 report the union argued the school districts in the surrounding suburbs should be compared to New York City while the Board argued the 39 next largest cities. The arbitrators wrote,

“We find particularly significant the cities in Westchester like Yonkers, Mt. Vernon and New Rochelle … [as well as] in Nassau such as Hempstead and Freeport.”

Both parties presented mountains of evidence around the question of pattern bargaining. The arbitrators expounded,

…pattern bargaining has fostered stable and orderly labor relations … re-affirmed by impasse panels … pattern bargaining makes good sense … within the pattern there has always been ample room to address specific emergences that may occur…

… the advent of unique, extraordinary, compelling and critical circumstances have required and permitted making modifications without abandoning the pattern.

The ability to pay section contained extremely dense analyses of budget documents accompanied by the testimony of numerous budget gurus.

The arbitrators wrote,

We agree with the UFT that the quality of the education imparted by the schools should not fluctuate with prevailing economic conditions, economic uncertainty should not cause the city to offer its school children inferior schools.

The union, through the introduction of evidence and the testimony of expert witnesses must show by “preponderance of evidence” the justice of their position. The city will undoubtedly argue for some iteration of merit pay, perhaps introduce contracts form other cities that included these issues, as well as crying poverty.

Some months down the road the fact-finding panel will issue their report – a public document. The report will be issued in the waning days of the Bloomberg administration and it’s altogether likely that it will be the next mayor who uses the report as the basis for a settlement.

Teachers should not have unrealistic expectations, the raises will be based on “comparability” and “ability to pay.” if the economy is still stumbling, with the current sequester sucking billions from the state budget, or, with the economy improving and city revenues on the upward track, it is impossible to predict the future.

I expect a far more complex agreement. The days of automatic step and seniority increase may morph into other negotiated metrics.

Surviving will require nimble union leadership.

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6 responses to “Contract Negotiations: Factfinding and the Path to a New Contract in Uncertain Economic Times

  1. Eric Nadelstern

    It will require acceptance that the future ain’t what it used to be, along with a coherent strategy for how a professional public employees union can thrive in the 21st Century, while effectively contributing to high and measurable levels of student success. The best ideas I’ve heard on the matter come from young, alternatively-certified teachers.

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    • David Shulman

      So if “the best ideas you’ve heard come from young, alternatively certified teachers” where does that leave YOU and your notions? Let’s follow that line of reasoning: The best MD’s, DDS’s, Lawyers, Educators (OOPS) all bring skills honed through considerable experience. True throughout most trades, businesses, professions, but NOT education? STUPID!!

      Want your next surgery to be done by a newly admitted student of medicine who has had six weeks of practice? I don’t think so.

      In fact the teaching field needs interns properly paid who intern for at least a year full time, and are committed as best as they can be to improving the lives of students for a very long career with lots of meaningful inservice self education options.

      Want a better teacher? Tremendously increase the starting pay and benefits so there is heavy competition for the available jobs. Dump the employees who can’t make it after a short period. Now that’s a business idea worth adopting!

      Notice that all the phonies that sell this “newbie knows best” BS don’t send their children and grandchildren to schools run like that, staffed like that, or with class sizes that are huge.

      Sounds to me more like you Eric, are pandering to the corporate types who want to privatize Pub. Ed. for their own profit.

      If they haven’t already hired you Eric, it’s not likely they will.

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  2. Actually….Step 1A will be removing Unity from power….and we,will go from there….

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  3. How the heck does the City of New York or the UFT for that matter, expect people to earn a living as a teacher without step increases or pay raises? Teachers have families to feed, mortgages to pay, and colleges to send their children to. Without step increases nobody will be able to support their families as a teacher. If the city can’t afford to keep step increases then it is time to start laying off less senior teachers as that is the what the concept of seniority was created for in the first place. The fact finders should not use Newark as the basis for their new contract as Newark is just ONE city. Chicago and LA still have step increases, as does the majority of every other city in New York State. As for the UFT needing “nimble” leadership: I say we need “hardcore” leadership. The UFT is becoming a paper tiger in the political arena and is also facing unprecedented anger from the rank and file.

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  4. As an old alternatively educated teacher, I can attest to the fact that the y.a.t. is unconcerned about the needs of most teachers as Carol described so well.
    Before we get into a big, nasty discussion of age and money, let’s get into a big nasty discussion about the fact that we wouldn’t be having any big nasty discussions at all if the rich of this city paid their fair share.
    I just watched two experienced early ed teachers pull two kids-one who was exhibiting austic-like symptoms; the other an aggressive disorder-back on track to being normal human beings. This, of course, will save the state billions over the life-time of both kids, as well as, a life of heartbreak.
    I think the wealthy can pay for this and I think you shouldn’t stand up for them.
    They have expensive lawyers for that.

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  5. Eric

    Like I have said before, you were the problem and not the solution when it came to the NYC schools. Now you want non-certified “newbies” to teach today’s students. I guess you will have your child operated on by a “newbie” as well?. You are a real piece of work and the NYC schools are for the better that you left the school system.

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