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May 7, 2013
Monday, May 6, marked the first hearing in the fact-finding process for the UFT contract.
The UFT will present the fact-finding panel with evidence that New York City public school teachers, in addition to having the largest class sizes and the neediest students, are on average the lowest paid in the region.
Background: Fact-finding, retroactive pay, pattern bargaining
What is fact-finding?
When two parties cannot agree to the terms of a collective bargaining agreement during negotiations, fact-finding is a process in New York State’s Taylor Law by which a third party — in this case a panel of appointed labor relations experts — creates a set of recommendations designed to resolve the dispute.
What is the difference between fact-finding and binding arbitration?
In binding arbitration, both parties are locked into the terms set by the arbitrator. The fact-finding process, on the other hand, results in a series of suggestions that outline a fair contract resolution.
How is it determined that fact-finding is necessary?
One party, or both, can declare impasse during contract negotiations. If the state Public Employment Relations Board (PERB) agrees, the dispute proceeds to mediation. Mediation brings both parties to the table with a professional mediator; if that fails to produce an agreement, the parties, with the approval of PERB, proceed to fact-finding.
In the case of the UFT, its most recent contract expired October 31, 2009. Given the lack of progress in negotiations, PERB appointed a mediator in February, 2010. That September the union charged that mediation had failed and sought the appointment of a fact-finding panel. The panel was appointed by PERB last fall.
How does fact-finding work?
The parties submit briefs and have an opportunity to deliver opening statements presenting their cases to the fact finders. They also present witnesses. After the hearings the fact-finders produce a decision that lays out recommended parameters for contract resolution.
Briefs in the UFT case were forwarded to the fact-finders on April 26. Hearings began May 6 and are set for dates in June and July. The hearings are not open to outsiders but the fact-finders’ eventual report will be a public document.
What issues will the UFT raise for the fact-finders to consider in determining their recommendations for a new contract?
The UFT will discuss the importance of education to the city’s economic future. The union will also provide information that the fact-finders are required to weigh, including salaries and benefits for teachers in surrounding areas. New York City teachers have on average lower salaries, much larger class sizes, and the neediest students of any nearby district, including relatively poor districts like Yonkers and Hempstead. UFT analyses indicate that the average of salaries in the local education labor market — neighboring Nassau, Suffolk and Westchester districts — is 10 percent higher at starting, and over 25 percent higher at maximum (though some districts are much higher still).
Are the fact-finders’ recommendations always followed?
The fact-finders’ recommendations typically form the basis for contract resolution, though not necessarily all contract provisions. (see below for further discussions of history of UFT contracts resulting from the fact-finding process). Whatever the fact-finders determine in this case, the city claims it has budget gaps in future years and cannot afford to give employees raises.
The city indulges in a combination of conservative assumptions (underestimating revenue/overestimating expenses) and political budgeting, which allows it to project multi-billion-dollar deficits into future years. When those years actually arrive, however, the projected deficits have been transformed into multi-billion-dollar surpluses, producing substantial sums which we have labeled the budget credibility gap.
The phenomenon goes back decades, but in recent years has included the following: (the original deficit estimates are from OMB documents released 18 months before the fiscal year begins)
- Projected deficit for fiscal 2013 — $4.85 billion; current estimate of fiscal 2013 surplus — 2.2 billion; total budget credibility gap — more than $7 billion;
- Projected deficit for fiscal 2012 — $3.16 billion; actual 2012 surplus — $2.47 billion; total budget credibility gap — $5.6 billion;
- Projected deficit fiscal 2011 — $3.21 billion; actual 2011 surplus — $3.75 billion;
Total budget credibility gap — nearly $7 billion.
Who are the fact-finders?
Fact-finders are typically experts in the field of public sector labor relations. In our case, the fact-finders are Martin Sheinman, Howard Edelman, and Marc Grossman.
How were the fact-finders chosen?
The fact-finders were appointed by PERB.
What is pattern bargaining?
Pattern bargaining is the city’s process of using one contract settlement as the model for the rest of the city’s labor contracts. It has been the city’s — and more recently the Bloomberg administration’s — method of managing and stabilizing city labor contracts since the fiscal crisis of the 1970s. In fact, as the head of the city’s Labor Relations office, Jim Hanley, recently testified, even as the city was laying off cops and other employees during the fiscal crisis, it continued to ensure that all unions were paid according to the pattern. Mr. Hanley also testified that pattern bargaining is the city’s “policy and practice.”
More recently, Mr. Hanley testified on May 26, 2009 during TWU Local 100 arbitration:
Q: (TWU attorney): And was — now, the fact was that in October of 2008, the financial situation of the city had worsened, had it not?
A: (Jim Hanley): It had, but the pattern had been established in July of ’07. Economic conditions were better then, but pursuant to the city’s policy and practice of pattern bargaining, we continued to maintain that pattern for the entire period of time.
And as the city itself noted in 2005 during the last UFT fact-finding: “One of the things that the Beame, Koch, Dinkins, Giuliani, and Bloomberg administrations have all had in common is their reliance on the concept of pattern bargaining to establish stable and orderly labor relations among the municipal labor unions, big and small, uniformed and civil, that function in this city.”
Does pattern bargaining include retroactive pay for unions whose contracts have expired?
Retroactive pay has also been a traditional feature of city contracts with its employees. In the most recent round of settled contracts, for instance, the great majority of non-uniformed employees got retroactive pay.
What is the status of contract negotiations for other municipal unions?
In an unprecedented move, the Bloomberg administration has allowed virtually all union contracts to expire without negotiating new agreements. At the same time the administration has failed to factor in the cost of settlements to any future budget, leaving the next mayor with a major budget problem to deal with.]
History of UFT Fact-Finding
1993 — A contract dispute between the UFT and the Board of Education was submitted to the fact-finding process. A fact-finding panel made a recommendation for a pay package that became the framework for a settlement. In addition, extra prep periods were awarded to elementary school teachers.
2001 — In March the UFT asked PERB to declare that an impasse existed in its contract talks with the Board of Education during the administration of Mayor Giuliani. A mediator was appointed in April of that year. Mediation failed, a fact-finding panel was appointed, and the panel began hearings in December 2001.
In April 2002 the panel issued a series of findings, including a recommendation that the Board of Education abandon its demand for individual merit pay and that the union consider adding more paid time to the school day. These recommendations were part of the settlement of the contract in June of that year.
2004 — In April, after months of contentious meetings over management's demands for an abbreviated contract that would have reduced teacher protections and eliminated measures like class-size caps, the UFT again asked PERB to declare an impasse in negotiations.
In December PERB determined that an impasse existed and appointed a mediator. When mediation failed, PERB appointed a fact-finding panel in April 2005.
That panel's report, issued in September of 2005, recommended a total wage increase of 11 percent over three years, a slightly longer school day, changes in work rules and the grievance and discipline processes, and a school-wide performance bonus program. These recommendations were part of the basis for a contract agreement reached in October 2005.