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Tuesday, August 16, 2016

Collective bargaining under the Taylor Law: submitting demands characterized as new or regressive after post-impasse fact-finding

Collective bargaining under the Taylor Law: submitting demands characterized as new or regressive after post-impasse fact-finding
Buffalo Teachers Federation v Buffalo City School District, PERB U-34445
Buffalo City School District v Buffalo Teachers Federation, PERB U-34462

On July 21, 2015, The Buffalo Teachers Federation [BTF] filed an improper practice charge with the New York Public Employment Relations Board [PERB]. BTF alleged that the Buffalo City School District [CSD] had engaged in “bad faith bargaining” by offering “expanded, new and regressive” contract proposals after a fact finder’s report had been issued in violation of §209-a.1(d) of Civil Service Law Article 14, the Taylor Law [the Act].

Six days later CSD filed improper practice charges with PERB alleging that BTF had violated §209-a.2(b) of the Act by demanding that the school district reimburse BTF’s unit members for lost wages for the period 2004-2007 that resulted from the wage freeze imposed by the Buffalo Fiscal Stabilization Authority.*

PERB’s Administrative Law Judge M. Lynn Fitzgerald, addressing the issue of bargaining in good faith, opined that the charges alleged by the parties stem “at least in part, from both parties’ frustration over [their] inability to reach a mutually acceptable agreement over an 11 year period.”

Judge Fitzgerald then noted that where the parties are at impasse, §209.3 of the Act provides impasse resolution procedures permitting PERB to provide mediation assistance. Where such assistance is unproductive, PERB may appoint a fact-finder and should fact-finding fail to resolve the impasse situation, §209.3(f) of the Act, in pertinent part, provides:

“where the public employer is a school district … (i) the board may afford the parties an opportunity to explain their positions with respect to the report of the fact-finding board at a meeting at which the legislative body, or a duly authorized committee thereof, may be present; (ii) thereafter, the legislative body may take such action as is necessary and appropriate to reach an agreement. The board may provide such assistance as may be appropriate.”

In June 2015 CSD offered its new contract proposals which included salary increases but excluded any retroactive adjustment; an increase in employee health insurance contributions from 10% to 20%; an increase in the work-year from 186 work-days to 190 work-days; and an extension of the current 6 hour 50 minute work-day to a 7 hours 40 minute work-day; together with proposals in 8 subject areas concerning terms and conditions of employment that had not been previously included in the course of collective bargaining since negotiations commenced in 2004.

The ALJ noted that contract proposals not previously advanced have been permitted in situations where there has been a substantial change in one party’s bargaining position as the result of a “material change in circumstances” such as:

1. Legislative changes that affect a party’s statutory rights or obligations after the parties reached impasse; or

2. The issuance of an arbitration award during the course of collective bargaining; or

3. The publication of an improper practice decision by PERB where the decision had a financial impact on the employer, or  

4. A decision by the Court of Appeals that constitutes a change in circumstances that would justify a party’s introduction of new proposals.

In contrast, Judge Fitzgerald explained that contract proposals not previously advanced were not permitted where the justification for such proposals were based on:

1. A party’s “lead negotiator” being changed or replaced; or

2. The election or appointment of new or different members to the school board [or, presumably, an employee organization’s elected officers]; or

3. The appointment of a new school superintendent [or, presumably, an employee organization’s chief executive officer].

The ALJ also commented that the mere passage of time does not serve to permit the introduction of regressive proposals and the introduction of new matters. Were it otherwise, said Judge Fitzgerald, “would allow parties to continually change their proposals and add new subjects in direct opposition to the duty to narrow issues with an eye to bringing negotiations to a close.

Judge Fitzgerald concluded that although CSD “may have a legitimate interest in negotiating certain new benefits and work rule changes, it is not permissible to add those new matters to the issues which are pending at this stage of the negotiations for a successor to the expired 2004 agreement.” However, said the AJL, those proposals would be properly submitted in the next round of negotiations or in “separate negotiations specific to those issues.”

The bottom line, Judge Fitzgerald found that the District’s introduction of new subjects into post fact-finding negotiations, alone, was improper but, additionally, the reduction in the value of the District’s financial offer in its 2015 offer was “regressive and therefore improper.”

* The decision, the genesis of which was the expiration of the last negotiated collective bargaining agreement between the parties on June 30, 2004, sets out the history of the events leading to the filing of these charges, the arguments presented by the parties in support of their respective positions and the relevant litigation that transpired concerning the underlying issues during this period. For a PDF copy of this 46-page decision, e-mail your request to Publications@nycap.rr.com with the word Regressive in the subject line.

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

Challenging Adverse Personnel Decisions at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/


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