1. School Safety & Labor Relations – to Negotiate or Impose? Douglas Gerhardt, Esq.Shannon Buffum, Esq. Harris Beach PLLC dgerhardt@harrisbeach.com sbuffum@harrisbeach.com 677 Broadway, Suite 1101726 Exchange Street, Suite 1000 Albany, New York 12207Buffalo, New York 14210 (518) 701-2738(716) 200-5151 www.harrisbeach.com

2. Douglas Gerhardt, Esq. (518) 701-2738 Shannon Buffum, Esq. (716) 200-5151 © Harris Beach PLLC, 2013 School Safety Goals  Ensuring student and employee safety should be a mutual concern of both school districts and bargaining unit employees.  School districts must take steps to ensure safety while complying with the Taylor Law. 2

3. Douglas Gerhardt, Esq. (518) 701-2738 Shannon Buffum, Esq. (716) 200-5151 © Harris Beach PLLC, 2013 What are Elements of School Safety?  School Safety Plans  Emergency Management Plans  Implementation of the Dignity for All Students Act (DASA)  Surveillance – use of video  GPS – in vehicles or on phones 3

4. Douglas Gerhardt, Esq. (518) 701-2738 Shannon Buffum, Esq. (716) 200-5151 © Harris Beach PLLC, 2013 What is the Employer’s Duty to Bargain?  The Taylor Law requires bargaining “terms and conditions of employment.”  The obligation to bargain over any particular subject is determined by whether that subject is a mandatory, permissive, or prohibited subject of bargaining. 4

5. Douglas Gerhardt, Esq. (518) 701-2738 Shannon Buffum, Esq. (716) 200-5151 © Harris Beach PLLC, 2013 What is a Mandatory Subject of Bargaining?  Unions have the right to negotiate with employers regarding the “terms and conditions of employment” and “the administration of grievances arising thereunder”. Civ. Serv. Law § 203.  It is an improper practice for employers to refuse to “negotiate collectively in good faith” regarding terms and conditions (T&C) of employment. Civ. Serv. Law § 209-a(1)(d).  T&C are defined in a somewhat less than helpful manner as “salaries, wages, hours and other terms and conditions of employment…” Civ. Serv. Law § 201(4).  These items must be bargained if either party brings them to the table. Parties must bargain in good faith until…  they reach agreement; or  the subject is withdrawn from the negotiation. 5

6. Douglas Gerhardt, Esq. (518) 701-2738 Shannon Buffum, Esq. (716) 200-5151 © Harris Beach PLLC, 2013 What is a Mandatory Subject of Bargaining? (cont.)  Determinations by PERB regarding whether an item is a term or condition of employment are based on balancing…  The impact on employee wages, hours, and/or working conditions; and  The public employer’s “right to determine the ‘manner, method, and extent’ of the governmental services it offers.” Bridge & Tunnel Officers Benevolent Ass’n, 12 PERB ¶ 4614 (1979).  PERB case law has interpreted T&C to include…  Compensation, including salary and benefits (Bellmore UFSD, 34 PERB ¶ 4501 (2002); City of Lockport, 40 PERB ¶ 4541 (2007))  Employee safety (Town of Niagara, 14 PERB ¶ 3049 (1981); City of N.Y., 40 PERB ¶ 3017 (2007))  Disciplinary procedures ( State of New York, 37 PERB ¶ 6601 (2004))  Work hours (Local 294, IBT, 10 PERB ¶ 3007 (1977) 6

7. Douglas Gerhardt, Esq. (518) 701-2738 Shannon Buffum, Esq. (716) 200-5151 © Harris Beach PLLC, 2013 What is a Permissive Subject of Bargaining?  Permissive subjects of bargaining – also known as “non-mandatory” - are subjects which a school district and union are not obligated, to negotiate. Yorktown Faculty Ass’n, 7 PERB ¶ 3030 (1974); City School District of New Rochelle, 4 PERB ¶ 3060 (1971).  “Permissive” subjects may be converted to “mandatory” subjects under the conversion theory of negotiability. City of Cohoes, 31 PERB ¶ 3020 (1998); Greenburgh No. 11 UFSD, 32 PERB ¶ 3024 (1999). 7

8. Douglas Gerhardt, Esq. (518) 701-2738 Shannon Buffum, Esq. (716) 200-5151 © Harris Beach PLLC, 2013 Conversion Theory of Negotiability  Otherwise non-mandatory subjects may be converted to mandatory subjects by incorporating them into a CBA without a sunset provision.  PERB has held a demand to modify or delete existing contract language in an expired agreement was mandatorily negotiable despite the fact the language was regarding an otherwise non-mandatory subject. City of Cohoes, 31 PERB ¶ 3020 (1998). 8

9. Douglas Gerhardt, Esq. (518) 701-2738 Shannon Buffum, Esq. (716) 200-5151 © Harris Beach PLLC, 2013 Conversion Theory of Negotiability (cont.)  The conversion theory of negotiability applies to school districts; a district’s submission to fact-finding of an otherwise non-mandatory subject was not improper where the non-mandatory subject had been converted to a mandatory subject because of prior incorporation into the parties’ CBA. Greenburgh No. 11 UFSD, 32 PERB ¶ 3024 (1999). 9

10. Douglas Gerhardt, Esq. (518) 701-2738 Shannon Buffum, Esq. (716) 200-5151 © Harris Beach PLLC, 2013 What are Prohibited Subjects of Bargaining?  Prohibited subjects are subjects which may not be negotiated by law or because of public policy, including:  Benefits under a public retirement system (Civ. Serv. Law § 201(4));  teacher qualifications (Educ. Law. § 3001);  the use of seniority in teacher assignments (Educ. Law §§ 2510(2), 2585(3), 3013(2)); and  restrictions on a school board’s right to grant or deny tenure (Cohoes City Sch. Dist. V. Cohoes Teachers Ass’n, 40 N.Y.2d 774, 9 PERB ¶ 7529 (1976)).  If parties attempt to negotiate a prohibited subject the agreement is unenforceable. 10

11. Douglas Gerhardt, Esq. (518) 701-2738 Shannon Buffum, Esq. (716) 200-5151 © Harris Beach PLLC, 2013 Safety and Bargaining: Video and Audio Surveillance  “To video or not to video” requires balancing school district and employee interests.  Consider: employee awareness of surveillance  Hidden cameras vs. readily observable cameras  Employee understanding of potential use of video  Purpose of surveillance  School safety vs. employee misconduct concerns… or both?  Special concern: wiretapping law (N.Y. Penal Law §§ 250.00, 250.05) 11

12. Douglas Gerhardt, Esq. (518) 701-2738 Shannon Buffum, Esq. (716) 200-5151 © Harris Beach PLLC, 2013 PERB & Surveillance vis a vis Employee Discipline  Board found that employer improperly refused to bargain impact of employer decision to use video camera footage in employee disciplinary proceedings; employer decision to install cameras both inside and outside of busses impacted mandatory subject of discipline when bus driver was disciplined as a result of a videotaped incident with a passenger. Amalgamated Transit Union v. Niagara Frontier Transit Metro System, Inc., 36 PERB ¶ 3036 (2003)(emphasis added). 12

13. Douglas Gerhardt, Esq. (518) 701-2738 Shannon Buffum, Esq. (716) 200-5151 © Harris Beach PLLC, 2013 PERB & Surveillance vis a vis Employee Discipline (cont.)  PERB “conclude[d] that, in general, the decision by an employer to engage in videotape surveillance of a workplace for monitoring and investigating employees is mandatorily negotiable under the Act because it ‘bears a direct and significant relationship to working conditions’, it requires employees to be video-surveillance participants, and it intrudes upon employee interests including job security, privacy and personal reputation.” CSEA v. Nanuet UFSD, 45 PERB ¶ 3007 (2012) (emphasis added). 13

14. Douglas Gerhardt, Esq. (518) 701-2738 Shannon Buffum, Esq. (716) 200-5151 © Harris Beach PLLC, 2013 PERB & Surveillance vis a vis Employee Discipline (cont.)  “To determine whether a particular decision to utilize videotape surveillance in the workplace is mandatorily negotiable under the Act, however, requires a fact-specific examination of employer and employee interests. Among the factors that must be considered are the nature of the workplace, and the employer’s core mission.” CSEA v. Nanuet UFSD, 45 PERB ¶ 3007 (2012) (emphasis added). 14

15. Douglas Gerhardt, Esq. (518) 701-2738 Shannon Buffum, Esq. (716) 200-5151 © Harris Beach PLLC, 2013 Surveillance vis a vis Employee Discipline (cont.)  Fact-specific inquiry of employer/employee interests:  Is videotaping integral to the employer’s core mission?  How broad is the scope of the videotaping?  Public entrances? Hallways? Breakrooms?  Note: Labor Law §203-c prohibits videotaping in restrooms, locker rooms or rooms designated by an employer for employees to change their clothing.  Is the videotaping continuous?  Are the videotapes available to third parties?  Under FOIL? Under subpoena?  Can it be posted/distributed through the internet? 15

16. Douglas Gerhardt, Esq. (518) 701-2738 Shannon Buffum, Esq. (716) 200-5151 © Harris Beach PLLC, 2013 School Security & Computer and Phone Surveillance  Acceptable Use Policies  Review of employee phone records  Review of employee email  Keystroke logging  Cell phones vs. district landlines  Are employees  Aware?  On notice?  Consent? 16

17. Douglas Gerhardt, Esq. (518) 701-2738 Shannon Buffum, Esq. (716) 200-5151 © Harris Beach PLLC, 2013 Global Positioning Systems (“GPS”) – Various Uses  Installation of GPS on…  School busses transporting children  School cars used for other purposes (not transporting children)  Employees’ personal vehicles  Employee phones 17

18. Douglas Gerhardt, Esq. (518) 701-2738 Shannon Buffum, Esq. (716) 200-5151 © Harris Beach PLLC, 2013 GPS and Employees  ALJ found that the employer decision to install a GPS system on vehicles operated by town employees was management prerogative because it was related to the “matter and means by which an employer is providing services to the public.” CSEA v. Village of Hempstead, 41 ¶ 4554 (2008) (emphasis added). 18

19. Douglas Gerhardt, Esq. (518) 701-2738 Shannon Buffum, Esq. (716) 200-5151 © Harris Beach PLLC, 2013 GPS and Employees (cont.)  ALJ’s reasoning from CSEA v. Village of Hempstead:  GPS allows the employer to be aware of the location of its property and the location of employees on work time.  Likened to having a supervisor accompany an employee – which would clearly be allowable.  Fact that GPS may result in discipline does not make use a mandatory subject of bargaining. 19

20. Douglas Gerhardt, Esq. (518) 701-2738 Shannon Buffum, Esq. (716) 200-5151 © Harris Beach PLLC, 2013 GPS and Employees (cont.)  ALJ found that an employer’s decision to install GPS systems in vehicles was management prerogative as it “involves the manner and means by which [an employer] serves its constituency”; “the use of an employer’s property cannot be considered a term and condition of employment.” Matter of CSEA v. County of Nassau, 41PERB ¶ 4552 (2008)(emphasis added). 20

21. Douglas Gerhardt, Esq. (518) 701-2738 Shannon Buffum, Esq. (716) 200-5151 © Harris Beach PLLC, 2013 GPS and Employees (cont.)  ALJ’s reasoning from CSEA v. County of Nassau:  Fact that employees may drive employer vehicles to and from breaks and between work and home and therefore during non-work hours does not infringe on employee off-duty time, despite the fact the GPS could not be disabled during those times.  Employees are permitted to leave the vehicles during break times.  Employer has a managerial right “to know the location of its property whether or not an employee is on duty” and the location of employees on work time. 21

22. Douglas Gerhardt, Esq. (518) 701-2738 Shannon Buffum, Esq. (716) 200-5151 © Harris Beach PLLC, 2013 GPS and Employees (cont.)  ALJ found that employer’s unilateral imposition of requirement that certain employees carry cell phones with active GPS systems was not improper; it was employer prerogative to determine the type of equipment to be used by employees in providing services to the public. CSEA v. County of Nassau, 41 PERB ¶ 4553 (2008)(emphasis added). 22

23. Douglas Gerhardt, Esq. (518) 701-2738 Shannon Buffum, Esq. (716) 200-5151 © Harris Beach PLLC, 2013 GPS and Employees (cont.)  ALJ’s reasoning from CSEA v. County of Nassau:  Selection of equipment “involves the manner and means by which [an employer] serves its constituency and hence is a management prerogative.”  “The utilization of this equipment has an effect on the productivity and efficiency of the workforce.”  Employees could turn off phone during breaks and non- work times, shutting down the GPS tracking abilities and therefore allowing for employee privacy.  Fact that GPS may result in discipline does not make use a mandatory subject of bargaining. 23

24. Douglas Gerhardt, Esq. (518) 701-2738 Shannon Buffum, Esq. (716) 200-5151 © Harris Beach PLLC, 2013 Employee Identification  ALJ found that school district’s requirement that all employees wear photo identification cards was a non-mandatory subject; “the issue is one of mission, safety and policy, and not negotiable interests such as comfort, privacy, expense or discipline.” Middle Country Secretarial Ass’n v. Middle Country CSD, 30 PERB ¶ 4556 (1997). 24

25. Douglas Gerhardt, Esq. (518) 701-2738 Shannon Buffum, Esq. (716) 200-5151 © Harris Beach PLLC, 2013 Negotiating Language Related to School Security  Negotiators should avoid:  Agreeing to the incorporation in a CBA of an otherwise non- mandatory subject related to security, thereby converting it to a mandatory subject  Agreeing to any restriction on a school district’s ability to use surveillance records in employee disciplinary proceedings  In the event a plans to agree to language related to a non-mandatory subject, negotiators should include sunset language and/or reopeners to account for changing district needs and technology 25

26. Douglas Gerhardt, Esq. (518) 701-2738 Shannon Buffum, Esq. (716) 200-5151 © Harris Beach PLLC, 2013 Questions/Comments Douglas Gerhardt & Shannon Buffum Harris Beach, PLLC DGERHARDT @ HARRISBEACH. COM SBUFFUM @ HARRISBEACH. COM 26