Tag Archives: PERB

Teachers Go To the Polls: Over the Next Week Union Members Will Vote on the Proposed UFT Contracts.

On Monday UFT members will begin to cast ballots in school. In my high school we set up a table by the “in-out” cards (once upon a time an actual time clock) and as teachers arrived or checked their mailboxes they picked up a ballot, signed the roster, voted, placed their ballot in an envelope, sealed the ballot, and placed in our ballot box that the shop teacher made years ago. Different chapters, actually titles, i.e., teachers, guidance counselors, school secretaries, paraprofessionals, psychologists and social worker, etc., cast separate ballots.

Social media sites, from Facebook to Twitter to blogs are urging colleagues to vote “yes” or “no.”

Facebook has hundreds of comments, with many “likes” and “dislikes,” although Facebook comments represent only a tiny fraction of total membership.

Some questions and answers:

Did the members even vote down a contract?

Yes, in 1995 teachers voted down a contract, about six month later the members approved a very similar contract.

Can the mayor or the governor or the City Council or the state legislature impose a contract?

The legislature can pass a law – which would require the votes of both houses and the approval of the governor, I don’t think it has ever happened.

At this point if a contract is voted down what are the next steps?

Both parties could go back to the bargaining table, or, the mayor could walk way and negotiate with another union, or, the fact-finding panel could release their report.

Is the fact-finding report binding?

No, although the report is public has been the basis be settlements in the past.

Does the union currently know what’s in the report?

No, although they do know the positions of the city on the issues – both sides testified at great length and placed scores of documents into evidence and witnesses were cross-examined.

Can the fact-finding report recommend that ATR’s are laid off after a period of time?

Yes.

Could the legislature change the law and require the layoff of ATR’s?

Yes.

Would the governor support a change in the law that would require ATR’s are laid off?

Let me answer with another question: could the governor fully support charter schools?

Are the retroactive 4% raises for 2009 and 2010 “locked in?”

Nothing is “locked in.”

Doesn’t the “pattern bargaining” principle guarantee members will receive 4 + 4 in retroactive?

No, the “pattern bargaining” and “ability to pay” principles are guidance for the fact-finders; however, there is only a contract when the parties agree to a contract.

Shouldn’t we get more money going forward – the increases barely cover the cost of living?

The increases going forward are very much in line with other teacher contracts in the school districts surrounding the city.

Why do we have to wait so long for the retroactive increases?

The fiscal year begins July 1 and the city simply doesn’t have the dollars, and, the bookkeeping for the retroactive increases are under attack – the city operates under Generally Accepted Accounting Principles (GAAP) and there is a question of how the city is paying for the raises. See New York Times,
“High-Power Tug of War Over Teachers’ Deal

Behind the scenes, a high-stakes tug of war unfolded between the city’s two most powerful elected officials: Mayor Bill de Blasio, eager to trumpet the first big labor contract of his young administration, and the city comptroller, Scott M. Stringer, whose team had discovered basic accounting problems with the deal.

The issue identified by Mr. Stringer will not add to the total cost of the deal, city officials said. But the comptroller’s office said it represented a breach of stringent accounting rules adopted by New York after the 1970s fiscal crisis. “Our goal from the very beginning was to protect the city’s financial integrity,” said Eric Sumberg, a spokesman for Mr. Stringer.

Some have said if we vote down the contract we have to go to the “back of the line,” behind the 151 other unions, why couldn’t we simply go back to the bargaining table?

It’s up to the city. Since 2009 Mayor Bloomberg wanted to bargain, it was the union that decided to wait for the next mayor. Both sides have to agree to go “back to the table,” and might be more advantageous for the city to negotiate with a weaker union.

What options does the city have?

They could negotiate with other unions – for example – they could move on to DC 37, the largest union, and negotiate a “pattern.”

The Police (PBA) and Firefighters have already criticized the pattern – can the police and the firefighter receive greater increases?

The fact-finding process for police and firefighters are binding – a plus and a minus – it is commonplace for the uniformed services to choose to go “to the end of the line.” hoping to extract a better settlement. – obviously there is a “risk/reward.”

Waiting so many years for the retro just doesn’t seem fair and we work so hard – don’t we deserve larger increases and a quicker payout for the retro?

Let me be honest – “fairness” and “working hard” are irrelevant in the world of high stakes negotiations – The outside world argues teachers should be paid according to student achievement? The settlement is solely up to the parties to the negotiations.

Could we go another two, three or four years without a contract?

Yes, the PERB rules end in a non-binding fact-finding report – there no requirements or time limits to complete negotiations.

Why could the Chicago Teachers go on strike?

The Illinois labor laws allow for a strike with a super majority vote of the members, teacher strikes are legal in Chicago.

Remind us, what are the penalties in New York State?

Teacher strikes are against the law with penalties: Loss of an additional day’s pay for each day on strike (2:1) – on strike for five days and lose ten days pay, loss of union dues check off and court imposed fines on the union and members.

Could we have some sort of job action?

Under NYS law all job actions, and the law is strict, are considered strikes with 2:1 wage deductions and possibility other penalties.

In my view the contract falls within the “pattern” for retroactive and going forward, and, the only way to find the dollars is to spread the payments over a number of budget cycles – the non-budgetary issues address many teacher concerns and most of all the contract links labor and management, the union and the department, a major change from the last adminstration. I understand there are members who only care about dollars and the only “reform” would be to leave them alone – in the current climate the contract addresses “reforms” that involve teachers, a rarity in negotiations around the nation. Thomas Wolf wrote, “You Can’t Go Home Again,” the past is gone – the contract, hopefully, creates a new path.

Where Can Mayor de Blasio Find $8 Billion? The Legacy of Michael Bloomberg

UPDATE (May 1, 9:00am): Newspapers report an announcement of a contract settlement later today

In November, 2009 your mortgage bill didn’t arrive – you put the dollars aside, must be some kind of a glitch. As the months go by the mortgage bill continues not to arrive, you really did want that extra pair of shoes, the really nice dress, those playoff tickets on Stubhub way beyond what you can afford. The months turn into years and you incorporate the dollars into your day-to-day expenses. Suddenly, last month the mortgage bill arrives along with an arrears bill for the four and a half years of missed payments – how the hell can you come up with four and half years of mortgage payments?

Mayor de Blasio faces the same dilemma – his predecessor, Michael Bloomberg, simply allowed every union contract to expire and incorporated the “saved” dollars into the city budget. There are currently 152 expired city unionized employee contracts – well over 300,000 employees.

The UFT, the teachers union, is the first union to enter into negotiations, and, whatever is decided will set the pattern for all other unions.

The NY Daily News, citing “sources,” suggests “one deal being discussed,”

One deal being discussed with the United Federation of Teachers would give them retroactive raises for most of the five years the contract has been expired at a rate of 4%, 4%, 0%, 1% and 2% — although it is unclear how the payout would be distributed to ease the punch to the city’s pocketbook. Teachers would then get raises of 2% and 2%, the source said.

“The reports are not accurate,” Wiley Norvell, a spokesman for de Blasio, said.

Salary decisions are based upon principles within laws governing public employee bargaining in New York State established by the Public Employee Relation Board (PERB). Under PERB regulations expired contracts remain in effect until the successor agreement is negotiated – teachers earning less than maximum continued to receive step and longevity increases after the contract expired on October 31, 2009. The rates being negotiated, both retroactive and prospective are based on two principles, “pattern bargaining” and “ability to pay.”

The negotiations in New York City have moved from mediation to impasse to the appointment of a fact-finding panel. The fact-finding process, basically an arbitration-like proceeding has moved through the steps: both sides have submitted documents, witnesses testified, and, with the election and a new administration, the fact-finders reverted to a mediation role. The fact-finding panel can issue a public non-binding decision, while not binding it is almost always the basis for the final settlement. It is commonplace for fact-finding reports to contain items that both sides agreed to during negotiations and the fact-finders essentially “take the heat” for items that either side feels they could not agree to publicly. Ideally agreements are made by the parties; both sides always worry about allowing “outsiders,” the arbitrators, to make decisions for the parties.

Take a look at a fact-finding report from a small school district: http://www.perb.ny.gov/pdf/m2010-300.pdf

The Mayor, similar to the guy who wasn’t paying his mortgage is faced with finding the dollars to fill the “holes” that have been filled by not granting raises and using the “saved” dollars for day-to-day operations and somehow finding both billions of dollars “owed” for retroactive raises and dollars for prospective raises.

Both the new Mayor and the union leaders are friendly; both sides agree that employees are entitled to raises – both retroactive and prospective – the Mayor – accurately – asks: where can I find the billions? The union argues, quite correctly, that members should not be punished for excesses of the former mayor.

The leader of the City Council, Melissa Mark-Viverito, in the draft City Council budget asks for an increase of a thousand police officers and both the Police Commissioner and the Mayor respond: we’d rather use the dollars for raises for current employees.

While there is no statutory date for completing negotiations both sides are anxious to complete the negotiations before the end of the fiscal year – June 30th.

The Municipal Labor Coalition (MLC) hasn’t even begun negotiations over city employee health plans – city costs continue to escalate sharply, and, the current health plan costs are over a billion bucks a year. The MLC health plan negotiations will be tough with the city asking for “savings” and the unions resisting transferring salary increases to paying to maintain health benefits.

Parallel to the “dollar” negotiations with the city are the non-budgetary negotiations with the Department of Education. On the top of the list are changes in the teacher evaluation law, these are three-way negotiations – the plan must be approved by the State Education Department and falls under state law. Both the union and the department are unhappy with the state-imposed teacher evaluation plan so one can expect a settlement that results in a much simpler plan.

The core issue: $$$$

Stretching out retroactive payments two, three or four budget cycles is obvious – how many more budget cycles are necessary so that the city has the “ability to pay”?

There is a narrow window: the union leader, the mayor and the chancellor actually appear to like each other – the union members like their union leader, the mayor and the chancellor – this is a rare moment – on the other hand teachers ask: “show me the money.”

Teachers would love a saner teacher evaluation plan, reducing of the current testing fiasco, removing the fear of school closings and exile into the ATR pool and generally leadership that supports and respects teachers; teachers are not willing to attribute a dollar value to these issues.

How do you come to a “fair” agreement, and define “fair” as an agreement that both sides accept as “fair” along with the larger public, remember the day after you win an election you begin running for the next election. The mayor cannot afford to be pilloried by the press and the elites, he needs a settlement that is widely accepted as fair to the city.

If an agreement is not reached by June 30th the window could close, the “warmth” turn to a “chill,” and a fact-finders’ report can contain items anathema to the union and its members.

This is not a New York City only event – mayors, union leaders, teachers, electeds, policy-makers, the media, across the nation are taking a deep look at New York City. Can unions and city leaders negotiate contracts that are both fiscally responsible and educationally ambitious and inventive?

A couple of years down the road Detroit, Philadelphia and Newark may no longer have public schools with other cities not far behind.

Without being overly dramatic the future of unionized public schools in urban school districts across the nation may be decided in the next two months in New York City.

High Risk/High Reward: The NYC Teacher Contract Negotiations Can Produce a Model for the Nation.

At a union meeting a teacher leaned over and whispered, “I hear we’re getting 4% retroactive.”

I replied, “Don’t get your hopes up … you may be disappointed.”

A new mayor, a new chancellor, why wouldn’t we expect a good contract? The problem: mayors have to deliver for the entire city, for taxpayers as well as teachers, a contract that is “praised” by the elites, the powerbrokers, the New York Times as well as endorsed by union members, a contract that is perceived as “fair” to all sides.

At a recent press conference Mayor de Blasio raised the issue of union contracts – every union contract in the city has expired – many expired three and four years ago – (the teacher union contract expired on 10/31/09) the mayor referred to the absence of contracts, with retroactive pay, as a “crisis.”

Union members, after years without contracts may have high expectations, unions cannot afford to unrealistically raise expectations of their members.

In days of yore the union collected hundreds of bargaining demands from members. At the Delegate Meeting to approve the demands a teacher asked the union president, Al Shanker,

“Al, how much would it cost if we got everything?”

Shanker stepped away from the microphone, seemed to be calculating, and moved back to the microphone, “I’d say a gold ball the size of Earth.”

These days the union only submits general demands, a 300-hundred member negotiating committee, members from across the spectrum of the union act as a “sounding board” for the union negotiators.

The Public Employee Relations Board (PERB) Fact-Finding Report will be released shortly, with a new mayor, a new chancellor and the Report in place serious negotiations can commence. The fact-finding reports in the past have created a framework for a contract agreement.

The PERB process assists school districts in the negotiations. Under state law, called the Triborough Doctrine, expired public employee contracts remain in place until the successor contract is approved. Teachers continue to receive step and longevity increases under the expired contracts and there is no pressure for the school district to engage in serious negotiations. PERB assigns a mediator if no progress is made, the mediator can declare an impasse and PERB assigns a fact-finding panel, arbitrators from a jointly approved list. The process has been highly successful in resolving labor disputes.

The panel receives evidence presented through the testimony of witnesses who are cross- examined by the other side, hundreds of pages of charts and graphs and data to buttress the testimony of the witnesses.

The two key principles are “pattern bargaining,” (what raises did similarly-situated unions receive) and “ability to pay,” (the financial situation of the school district).

In the last fact-finding the union argued that higher salaries in suburbs resulted in the exodus of New York City teachers as well as suburbs attracting the “best” candidates. The city argued that communities vote to approve budgets and in essence voters approve higher salaries and the proper “pattern” should be other large urban centers. The panel suggested that urban centers near New York City, i.e., Yonkers, White Plains, might be a comparison.

The union will point to a summer 2008 fact-finding panel between the MTA and the TWU at which the city agreed it had set aside 4% for upcoming contract negotiations and the city will point to the fall 2008 recession/meltdown that had dire consequences for the city. The union will point to the increasing fiscal health of the city. The city will point to 7,000 teacher layoffs in Bloomberg budgets that were restored by the City Council – arguing that dollars that could have gone for raises were used to save jobs. Increases in the suburbs over the last few years have been very small or non-existent, the union will argue the 2% state-imposed property tax cap does not apply to New York City.

The panel report will summarize all the positions and “suggest” rates for retroactive as well as for rates going forward.

Will the city agree to make the retroactive payments in one lump sum, or divide over a number of budget cycles? Will all of the retroactive be “pensionable,” or will some/all of the retroactive be “non-pensionable cash payments,” or some other configuration? It is unlikely that the city continues the Bloomberg position – “we cannot afford retroactive increases.”

The contracts will cost the city many hundreds of millions of dollars and one percent translates into tens of millions of dollars.

On the non-budgetary side of the contract the usual push-pull will occur – disputes around managerial prerogatives – in what areas do principals have total discretion and in what areas must they consult with the union, how do you define consult?

An issue that both sides want to change is the teacher evaluation plan, a plan imposed by the commissioner when the mayor sank the plan negotiated with the department.

The current plan requires too many lesson observations, both the union and the department agree and the methods for assessing student growth for non-state tested subjects – that’s 80% of all teachers – is obtuse, burdensome, and indefensible. The teacher evaluation plan is part of state law converted in commissioner regulation and whatever plan is negotiated must be approved by the commissioner. After year one of the plan only 1% of teachers in the state, outside of NYC, were found to be “ineffective.”

Critics of teacher contracts claim that contracts are filled with “rules” that impede a principal’s ability to effectively run a school, and, department regulations also stand in the way of creating programs and policies that will spur academic growth, hence, the need for charter schools.

Teachers complain that the contract, however flawed, protects teachers from abusive principals.

For twenty years the union and the department have flirted with a “thin” contract experiment. In the early nineties a principal and a chapter leader came to the union with a plan: exempt the school from seniority transfers, a teacher-led committee would select new teachers. The union accepted the plan, eventually negotiated it into the contract, it became the “School-Based Option Staffing and Personnel” section of the contract, subsequently changed to the Open Market system. The same principal and chapter leader asked the union to support a peer review teacher assessment plan – I believe it still exists in a few schools. (I have a copy!!)

Why not carve out schools, through an application process that can operate under a significantly pared down contract – operate under principles of collaboration.

There is a considerable research supporting collaboration at the school level. (See evidence here)

While the mayor and the union are not fans of merit pay the idea of a bonus to attract teachers into hard-to-staff certification areas, or, into schools in high poverty neighborhoods, or, create titles for teachers with expanded responsibilities with additional pay, usually called differentiated staffing could become an attractive option. Teachers in the Chancellor’s District received higher pay in exchange for a longer work day and year.

As soon as the non-binding fact-finding report is issued, it is a public report; the clock will begin to tick. The mayor wants to work with unions and needs unions to push his agenda in Albany and Washington and wants to show the world that effective local governments and unions are not contraindicated. For unions, Mayor de Blasio is that rare bird, a pro-union, progressive mayor; perhaps a model for the nation, to fail to negotiate a contract might doom public employee unions elsewhere.

It will require nimble craftsman on both sides of the table with very high stakes – for New York City and the nation.

UPDATE: The new NYC Budget Director, testifying in Albany, stated that the previous administration had no money put aside for retroactive increases and 1.25% going forward for annual increases.

NEWER UPDATE: Comparison of Teacher Salaries in New York State by district.

de Blasio, Dinkins, Teacher Contract Negotiations and Lessons from the Past

The once popular mayor faded in his third term, scandals and public opposition, the archetypical New Yorker, Ed Koch, had become an overbearing politician. The first Afro-American candidate defeated Koch in the democratic primary and faced Rudi Giuliani in the election. With the vigorous support of the teachers union and a broad coalition David Dinkins, a lifelong party foot soldier became the first Afro-American mayor of the Big Apple.

In his just-published autobiography (“A Mayor’s Life: Governing New York’s Gorgeous Mosaic”) Dinkins defends his troubled four years and his defeat by Giuliani.

Teachers played a key role in what was an intense and often ugly campaign, interestingly the last time the union supported a winner – Dinkins – was followed by twenty years of Republican mayors in a city with an overwhelming democratic citizenry.

Negotiations for a new teacher contract inched along, Dinkins was cautious, very cautious, and you couldn’t expect him to open the city coffers, even if he owed his election to the union. Weeks turned into months and months in a year and still not a contract. The union moved from demonstrations to radio ads to TV ads urging Dinkins to conclude a contract. Finally, in September, 2003, a contract was negotiated; the union membership would never abide endorsing Dinkins, not after a year and a half of an expired contract. The union made no endorsement and Dinkins was a one term mayor and his mishandling of the teacher contract might have cost him his re-election.

Bill de Blasio will be elected mayor on November 5th.

Today, teachers, four years without a contract, expect a speedy resolution and a favorable contract.

In New York State public employee labor relations are governed by the Public Employee Relations Board (PERB). Under state law public employee expired contracts remain in full force and effect until a successor contract is negotiated. If the parties cannot resolve a contract dispute PERB provides a mediator, if the mediation reaches impasse PERB appoints a panel of three arbitrators who conduct a non-binding arbitration referred to in the law as fact-finding. The current process is reaching a conclusion with a fact-finding decision due in December/January.

(Read the “Taylor Law” explaining the fact-finding procedures here http://perb.ny.gov/stat.asp#con)

The 2002 139-page Fact-Finding Report was the last time the city and the union could not resolve a contract dispute (Read Report here http://www.perb.state.ny.us/pdf/boeuft.pdf)

A major part of the Report will deal with salary – retroactive pay as well as an increase. The fact-finders will consider “pattern bargaining” and “ability to pay.”

This year “pattern bargaining” is a complex issue, there are no recent city labor agreements. In the remainder of the state the 2% property tax cap has basically halted teacher contract negotiations. Districts are struggling to meet day-to-day obligations under the cap. The required pension contributions have increased dramatically and districts are dipping into reserves to balance their budgets.

Additionally Governor Cuomo has appointed a task force to seek ways to reduce taxes in the state.

How will these events impact the fact-finders establishing a “pattern”?

The second “ability to pay” principle in an era of federal sequestration, the furloughing of federal employees and the possible default all impact the city’s “ability to pay.” Four years without contracts has built up an enormous “retroactive” salary problem.

Can the city afford $6-8 billion in retroactive salary payments?

The fact-finders will craft a recommended percent increase going forward as well as “going backwards.” In some prior contracts “back pay,” instead of a retroactive percentage increase was a “non-pensionable cash payment” spread over an extended period of time.

I have absolutely no knowledge of the current negotiations – I’m just speculating based on past practices.

The fact-finding report is only a recommendation, although in the three previous instances the report became the basis for a contract.

Mayors, no matter how favorable to a union, will not open up the coffers.

de Blasio will negotiate – negotiations mean a two-way street.

It is likely he will ask for changes in the contract which may not be palatable to all teachers.

In the early days the union used to submit many hundreds of bargaining demands. At the Delegate Assembly the demands were distributed and debated. A delegate walked up to a microphone and asked Al Shanker,

“Al, if we get everything, what will it cost?”

Al mulled for a while, stepped away from the microphone and appeared to be calculating, stepped back to the microphone and replied,

“A gold ball the size of the Earth.”

de Blasio has to satisfy a union hungry for a “fair” contract; how does one define “fair”?

The union cannot allow negotiations to fester, cannot allow the weeks to turn into months, and neither can de Blasio.

Aside from the key question of salary there are other core issues for the union: eliminating the ATR pool, bringing sanity to the teacher evaluation plan, embedding collaborative planning time in the contract, etc. What will de Blasio “demand” in exchange for union core issues?

Can the union and de Blasio negotiate a successor agreement, a new contract that satisfies the union and its members as well as pass scrutiny with the governor, the media, the public and the scions that run the city from the aeries of power?

The specter of Dinkins’s failed four years should be a lesson learned.

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.