NYSSBA Summer Law Conference COLLE CTI VE B AR GAI N I N G U P D - PDF document

NYSSBA Summer Law Conference COLLE CTI VE B AR GAI N I N G U P D ATE – N E W I S S U E S AN D TR E N D S J U L Y 12 , 2 0 16 Jeffrey F. Swiatek, Esq. Edward A. Trevvett, Esq. Hodgson Russ, LLC Harris Beach, PLLC Today’s Agenda  Approaches to Meeting Changing Expectations at the Bargaining Table  Knowing your Local Settlement Data  The Rules are Still the Rules  ACA Landmines  APPR Update Approaches to Meeting Changing Expectations at the Bargaining Table  According to the Unions: “Happy Days are Here Again!”  Unions are trying to claw back concessions that have been made in recent years  NYSUT is saying in various negotiations that average wage increases should be 3% with no health or other concessions 1

Five m ost com m on bargaining objectives sought by districts during their latest round of collective bargaining Increase health insurance 90.0% contribution for active teachers Freeze salary schedule in at 68.0% least one year of contract Increase health insurance 59.5% contributions for retirees Increase deductibles/co- payments toward health 59.2% insurance Negotiate an early retirement 58.6% incentive Top 5 bargaining objectives achieved during latest round of collective bargaining Increase health insurance contribution for active teachers 54.5% Freeze salary schedule in at least one 29.2% year of contract Negotiate an early retirement incentive 25.9% Increase deductibles/co-payments toward health insurance 22.6% Increase health insurance 16.5% contributions for retirees Concessions and Cost Savings % of all Total $ Avg. $ savings per Category concessions savings district Health 63.5% $16,259,522 $133,275 insurance Salary/ pay 29.0% $17,910,055 $407,047 Leave 1.6% n/ a n/ a Work day 0.3% n/ a n/ a Work year 0.6% n/ a n/ a Other 4.8% $1,381,700 $153,522 2

Fiscal Negotiating Environm ent  State aid 2009-10 $1.0 b. cut (stimulus) 2010-11 $1.4 b. cut (stimulus and EduJobs) 2011-12 $1.3 b. cut (EduJobs) 2012-13 $805 m. increase 2013-14 $944 m. increase 2014-15 $1.1 b. increase 2015-16 $1.2 b. increase *37 percent of districts below 2008-09 funding levels (Data courtesy of Senior Research Analyst Paul Heiser at NYSSBA) Yearly change in state aid (in billions) $1.5 $1.2 $1.1 $0.944 $1.0 $0.805 $0.5 $0.0 2009-10 2010-11 2011-12 2012-13 2013-14 2014-15 2015-16 ($0.5) ($1.0) -$1.0 -$1.3 -$1.4 ($1.5) Average length of contract Length in Years Length Year 3.9 in Years 3.8 2015 3.70 2013 3.57 3.7 2012 3.65 3.6 2011 3.69 3.5 2010 3.84 3.4 2010 2011 2012 2013 2015 3

Longer negotiating tim es Average # of days from start # of of contract to contract Year days signing 400 2015 317 317 294 2013 294 283 300 258 253 2012 283 200 2011 253 2010 258 100 2010 2011 2012 2013 2015 What are Our Big Challenges?  Who Are We Working For?  Tax Cap  Health Insurance Costs  Our Old Friend/ Nemesis Triborough Who Are We Working For?  NYSUT actively campaigns to put teachers on school boards  In 2015 NYSUT starts its “Pipeline Project” to develop union-friendly candidates  “ In William sville this year it w as a case of trying to elect people w ho w ould resolve the problem s betw een staff and the adm inistration ” – Michelle M. Leicth, WTA President (Quote from Buffalo News article – Teacher unions put imprints on suburban school boards by Joseph Popiolkowski; June 5, 2016) 4

Dealing with the Tax Cap – The Guiding Principles  The Board of Education is legally responsible for the fiscal management of a school district (Education Law §§ 1604, 1709, 1804, 2503).  This includes an overriding fiduciary responsibility on behalf of the district and its taxpayers (Matter of Ross, 308 N.Y. 605 [1995]; Appeal of Citizens for Responsible Fiscal and Educational Policy, 40 Ed. Dept. Rep. 189 [2000]).  “The most important reason for managing a school district’s financial condition is to sustain the education of students on a long-term basis” (Fiscal Fitness: A Guide to Monitoring Your School District’s Budget, p. 2; w w w .em sc.nysed.gov/ m gtserv/ FiscalFitnessGuide.htm ) Tax Cap NYSUT V. State of NY App. Div., Third Dep’t., (May 5, 2016)  Appeals court upheld the lower court’s dismissal of the NYSUT lawsuit challenging the tax cap.   While the state is required to provide “the opportunity of a sound basic education” it is not obligated to guarantee the same level of services in every district.  The requirement of a “supermajority” vote by district residents to override the tax cap is not unduly burdensome.  Education Law 2023-a and the tax freeze legislation are both “rationally related to the legitimate government interest of restraining crippling property tax increases … ” Bargaining Strategies for the Post “Tax-Cap” World  Educate the union’s negotiators on the operation and implications of the tax cap.  “Begin with the end in mind” – Identify the maximum new revenue within the cap, and then work backwards from that for purposes of bargaining. 5

Bargaining Strategies for the Post “Tax-Cap” World  Consider whether longer-term bargaining agreements still make sense.  Consider whether wage proposals and other significant financial items must be “conditional” in some way. Bargaining Strategies for the Post “Tax-Cap” World  Consider contract “re-openers.”  Include tax cap status into assessment of whether permissible to make “regressive” proposal.  Consider public and/ or union member communication approaches during bargaining. Bargaining Strategies for the Post “Tax-Cap” World  The Triborough Am endm ent. (Civ. Serv. L. 209-a(1)(e)). Requires a municipality to continue m ost terms of the collective negotiations agreement until a new agreement is reached. Watch out for “ contractual Triborough” proposals.  The Sunset Doctrine. The parties may themselves preclude the application of the Triborough Amendment by using language that causes a contractual term to “sunset” or expire at the conclusion of the agreement or at some other point in time. 6

Bargaining Strategies for the Post “Tax-Cap” World  “Past Practice.” An often misapplied concept, certain past practices may be enforceable either through specific contract language protecting such practices, or through PERB’s improper practice procedures for those practices which are unequivocal, consistently long-standing and for which there is a reasonable expectation that the practice would continue.  Managem ent Rights and Current Contract language. Be sure to fully assess your current right to implement changes based on current contract language. Be careful not to underestimate or overestimate your authority. The Good News on Health Insurance – Progress is Slowly Being Made Health Contributions: Data on New Teachers 15% 13.5% 13.3% 12.8% 12.5% 12.1% 13% 12.4% 11.9% Individual 11.2% 11.0% 10% Family 10.1% 8% 5% 2010 2011 2012 2013 2015 BUT… Health contributions still lag behind other sectors 35% 30% 29% 25% 20% 18% Individual 15% Family 13.5% 12.4% 10% 5% 0% NYS teachers - new All Northeast workers 20 14 7

Where have we been – and where are we going?  Despite so much that has changed over the past few years, all collective bargaining issues still generally fall within two basic categories:  How much will employees cost (i.e., economics)?  Who gets to run the school (e.g., work rules, class size, scheduling)? The Negotiations Process Effective Preparation is the key to success  Determine the most effective bargaining team  Get the governing board “on-board” to ensure bargaining credibility  Analyze present costs and future trends Compensation (including payroll taxes and retirement contributions) 1) Direct benefits costs (health insurance) 2) Indirect benefits costs (workers’ compensation and disability, sick leave, 3) vacation, personal time and holidays) Comparable to governments? Comparable private sector positions? 4)  Prioritize desired results and strategize approach Knowing Your Local Settlem ent Data  Use a verifiable source to avoid fighting over the data  http:/ / seethroughny.net  Using data like this you can debunk Union pronouncements regarding settlement trends  Gives you a basis for compelling the Union to support its assertions with hard data as opposed to relying on bald assertions of “fact” 8