ACSA Negotiators Symposium. Negotiations Hot Topics

Transcription

1 ACSA Negotiators Symposium Negotiations Hot Topics January 20, 2015 Janet Cory Sommer and Janae Novotny Burke, Williams & Sorensen, LLP 1503 Grant Road, Suite 200 Mountain View, CA Telephone:

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3 Pending cases Friedrichs& Vergara, Demands to bargain LCAP, Educator Effectiveness funds, Duty to meet & clarify, STRS/PERS costs, 1

4 Maintaining/explaining reserves, LCFF comparability & ability to pay, Leaves --maternity and paternity difference pay leave (AB 375) & paid sick leave (AB 1522 & AB 304), Preparing for concerted activities, Your district s hot topics? Friedrichs v. CTA Oral argument in U.S. Supreme Court makes union loss appear likely. Potential major impact on union coffers. Unions preparing for opt-in system: Time & opportunities to reach employees. Legislation may address. 2

5 Vergara v. California Appeals Court oral argument; Decision likely this summer; Potential bargaining over layoff and dismissal procedures and criteria. LCAP Duty to consult in LCAP development (Educ. Code 52060(g)); All bargaining units involved in LCAP development; 3

6 LCAP EERA duty to consult with certificated representative (Gov. Code (a)): Educational objectives, curriculum/course content, textbook selection; Involve certificated unions in LCAP development and confirm completion of consultation in writing. Educator Effectiveness funds Prepare to bargain impacts/effects on work year, work day, professional development, PAR, BTSA, evaluation, etc.; Prepare curriculum/education services for bargaining obligations. Duty to Meet & Clarify If there is any doubt regarding obligation to bargain decision or impacts, meet withunion to clarify. Don t just refuse to bargain or demand written explanation. City of Palo Alto (2014) PERB Dec. No M 4

7 CalSTRS Required Contributions District costs increasing 1.85% of compensation per year through increase is 0.97% to 19.10% district contribution rate. Employee costs increasing: 9.2% (8.56% PEPRA) in , 10.25% (9.205% PEPRA) in CalPERS Cost Increases Established by Board, not statute estimates of 20.4% contribution rate in updated information to come estimated increase to 13.05% from % in Classic members pay 7%. PEPRA members pay 6% currently. 5

8 Educate employees and bargaining representatives; Valuable part of total compensation; Like health & welfare benefits; Explain the value; Repeat. Use in CPI analysis. Acknowledge employee costs. Don t count on State bail out. Explain GASB 68 on-behalf revenues & expenditures in budget. 6

9 Reserve cap not in effect yet, But may be in near future. Analyze your reserves, and Take the time to explain: Why reserves grew in lean years, Importance of reserves, One-time nature. High reserves are common: Statewide average unrestricted General Fund plus Fund 17, net ending balances as percentage of total General Fund expenditures, transfers, and other uses: Unified Districts 13.13% Elementary Districts 21.13% High School Districts 16.82% School Services of California 7

10 Can you continue to compare with your historical comparison districts? Factfinders traditionally look to: Geographic proximity, Size, Type, Funding similarity, Program similarity. Geography is still an important factor labor market competition. Identify funding differences. Identify program differences. More sophisticated analysis required. Address ability to pay along with comparability; Supplemental & Concentration Grants No absolute prohibition on district-wide use, so do more than refuse explain competing priorities. 8

11 Use LCAP to explain/support competing priorities. Focus on student needs. Address recruitment/retention issues & potential impact on student services. AB 375 Difference pay benefit for maternity and paternity leave. Adds Educ. Code Section Effective 1/1/16; Later if CBA conflict. 9

12 AB 375 (cont.): Up to 12 weeks difference pay in addition to current 5 months. Employee on Gov. Code leave may not be denied access to difference pay while on maternity or paternity leave. Regardless of Board s leave grant. AB 375 (cont.) Not more than one 12-week period per maternity or paternity, But if school year ends, before 12 weeks exhausted, balance in next year. Applies to birth, adoption, & foster care placement. AB 1522/AB 304 Sick Leave Provisions do not apply if CBA: provides for paid sick days, has final and binding arbitration, has premium wage rates for all overtime hours worked, and establishes regular pay rate not less than 30% more than the state minimum wage rate. 10

13 AB 1522 & AB 304 (cont.) If not exempt, make sure you meet all requirement of law. Special attention to part-time classified employees. Pre-impasse strike vote, strike preparations, and informational picketing are protected activities; When no pre-impasse strike contemplated, and union preparing for lawful post-impasse strike; Provided the union continues to engage in good faith bargaining or impasse procedures, strike preparation does not violate EERA. Sweetwater High School District(2014) PERB Dec. No. IR-58 11

14 In Sweetwater, PERB explained, Each side carries in its tool box elements that have varying degrees of persuasiveness. These tools include logical argument and reasoned discourse, publicizing the dispute with the intent of persuading third parties to put pressure on one side or the other, organizing members or the employee organization to picket, demonstrate or otherwise attempt to persuade the public employer or the union to alter their bargaining positions, etc. With improving economy, concerted activities increasing; Prepare to use and improve your tool box; Review no-strike clause; Review CBA description of professional duties in anticipation of possible work-to-rule; Detailed description of duties; Professional workday; Keep the public informed. Don t wait for strike threat to begin communicating. Develop strategy at outset of negotiations. Revise communications plan as needed. Use lessons learned during reduction times. Communicating about increases is more complex. Planning is essential. 12

15 Share your challenges. Share your solutions. Big cases will be decided, Responding to bargaining demands & the duty to meet & clarify, Explaining STRS/PERS costs & reserves, LCFF comparability & ability to pay, Leaves, Communications & preparing for concerted activities. 13

16 THANK YOU Janae Novotny Janet Cory Sommer Burke, Williams & Sorensen, LLP 14

17 Janet Cory Sommer Partner Silicon Valley Office 1503 Grant Road Suite 200 Mountain View, California voice: fax: PRACTICE GROUPS Education Law Labor & Employment Law Public Law EDUCATION J.D., Stanford Law School B.A., University of California, Berkeley Janet Sommer is a partner in the law firm of Burke, Williams & Sorensen. She was previously a partner at Kay & Stevens. Ms. Sommer focuses on labor relations, employment, education, and other public law matters. She has worked in California public sector law and policy since Ms. Sommer worked with the California Legislature as Chief Consultant to the Assembly Education Committee. Before turning her focus to labor, employment, and education, Ms. Sommer represented public sector and political clients in education, election, and political matters. Ms. Sommer acts as a negotiator and represents school districts and other local agencies on a variety of employment, labor relations, education, and other public law issues. Ms. Sommer provides labor and employment services to public agencies, and has extensive bargaining experience in complex matters including pension and retiree medical benefits. She represents public agencies in all facets of negotiations, including planning and developing negotiations parameters, drafting bargaining proposals, leading negotiations at the table, and handling impasse procedures, including mediation and fact-finding. She advises public agencies in responding to grievance and unfair labor practice charges, and represents them in related hearings and arbitrations. Ms. Sommer also has substantial litigation experience on matters involving public agencies in state and federal court, and administrative proceedings. Ms. Sommer also conducts trainings in labor relations, employee evaluation and discipline, sexual harassment, and other public sector employment issues. She has presented trainings for the Association of California School Administrators (ACSA), the California School Boards Association (CSBA), the School Employers Association (SEA), the California Association of School Business Officials (CASBO), the Center for Collaborative Solutions (CCS), the National Public Employers Labor Relations Association (NPELRA), the California Public Employers Labor Relations Association (CALPELRA), the Labor and Employment Law Section of the State Bar of California, the California State Association of Counties (CSAC), the League of California Cities, and for many public agency clients. Ms. Sommer is a co-author of the California Public Employee Relations (CPER) Pocket Guide to Factfinding, and a contributing author of Legal Trends.

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19 Janae H. Novotny Partner State Bar No Silicon Valley Office 1503 Grant Road Suite 200 Mountain View, California voice: fax: PRACTICE GROUPS Education Law Labor & Employment Law Public Law EDUCATION J.D., Georgetown University Law Center California State University, Fresno Janae Novotny is a partner in the law firm of Burke, Williams & Sorensen, LLP. She was previously a partner at Kay & Stevens. She has 30 years of experience representing cities, special districts, and school districts in labor relations, employment law, public agency access law, and education law. She advises public agencies regarding all matters within the scope of bargaining, including pension and retiree benefits issues, including CalSTRS, CalPERS, and local retirement systems. She represents public agency employers through the negotiations spectrum, from planning and developing negotiations parameters based on statutory fact-finding criteria through negotiations, impasse, mediation and fact-finding hearings. She advises MMBA employers regarding both safety and miscellaneous employee groups. She utilizes both traditional and interest-based bargaining approaches and also serves as a facilitator with employers and unions who have elected the interest-based bargaining approach. She has handled numerous sexual harassment and other employee investigations, grievance arbitrations, unfair labor practice hearings, and fact-finding hearings. In addition to bargaining with all employee groups under the education employer collective bargaining statues, for school district clients she also handles certificated and classified discipline, dismissal, and layoff, and administrator reassignment and release issues. She advises school districts regarding all Education Code personnel issues, including employee classification and leave issues, as well as discrimination complaints and personnel investigations. Ms. Novotny also advises school districts regarding board governance issues, the Brown Act and Public Records Act, student issues, school district reorganization, federal and state constitutional issues. Ms. Novotny is a presenter at various conferences, including the CALPELRA Annual Conference, California State Association of Counties, the Association of California School Administrators, the California Association of School Business Officials, and the California School Boards Association trainings and conferences. She contributed to the development of CALPELRA ACADEMY 9, The Impasse Process From Declaration Through Post Factfinding. Ms. Novotny also conducts trainings in labor relations, interest-based bargaining, employee evaluation and discipline, sexual harassment, disability accommodation, FMLA/CFRA, and other public sector employment issues. She is a contributing author of California Public Sector Labor Relations, Labor and Employment Law Section, State Bar of California, Matthew Bender and a contributing author of Burke s annual Legal Trends publication. She is an author of CPER s Pocket Guide To Factfinding. Ms. Novotny earned her Juris Doctor at Georgetown University Law Center.