NJEA Collective Bargaining Manual

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CollectiveBargainingManualNew Jersey Education Association180 West State StreetPost Office Box 1211Trenton, NJ 08607-1211609 599 5461njea.orgBarbara Keshishian, PresidentWendell Steinhauer, Vice PresidentMarie Blistan, Secretary-TreasurerVincent Giordano, Executive DirectorRichard Gray, Assistant Executive Director/Research Director

NJEA Collective Bargaining ManualCollectiveBargainingManual1 Preface2A History of Public Sector Collective Bargaining in New Jersey6Is it Negotiable?9Landmark Decisions15Statutory Basis for School Employee Negotiations in New Jersey18Organizing and Planning23Selecting a Bargaining Team25Data for Negotiations26Collective Bargaining Best Practices27The Bargaining Process33Ratifying the Negotiated Agreement37Alternatives to Traditional Bargaining43Bargaining Glossary44Salary Compensation46Salary Guides54Salary Guide Profile56Salary Guide Negotiation Preparation67Salary Guide Construction70Salary Guide Length73Educational Support Professional Salary Topics74Special Topics in Salary Compensation76Bargaining Comprehensive Benefits79Costing Out Insurance Benefits81School Employees’ Health Benefits Plan (SEHBP)82Legal Framework for Negotiating Medical Benefits86Health Benefits Insurance Glossary92Civil Unions/Domestic Partnerships93Sick Leave Banks94Drug and Alcohol Testing97Distance Learning and Technology98Bargaining and professional development: Supporting new visions103Sample AgreementTable of Contents

NJEA Collective Bargaining ManualPrefaceThe New Jersey Education Association wasfounded on December 28, 1853, as the New JerseyState Teachers Association.Today, NJEA is the largestand the most effective school employee organizationin New Jersey. NJEA has more than 200,000 activeand retired professional and educational supportpersonnel members and nearly 900 local affiliates.1. This is a resource guide. Its use and applicationare driven by local circumstances.You may findthat parts are relevant, while others may not beappropriate for your situation or may need to bemodified to meet your specific needs.NJEA and its local associations have more than40 years of bargaining experience in school districtsacross the state.This experience, coupled withextensive training opportunities, helps make NJEAlocal leaders skillful effective bargainers.3. Bargaining is an ongoing process. It does not beginwhen you exchange negotiations packages, andit does not end at the ratification meeting.Thebargaining process is affected by the total relationship that exists between the local association andboard of education. How you and your local boardof education relate to each other and how thelocal association relates to the community at-largewill directly impact on the activities at the bargaining table.As public sector collective bargaining continuesto grow more complicated, so do the challenges atthe bargaining table.This manual is designed to helplocal association bargaining teams achieve a fair andequitable contract for their members.Whether you are bargaining your first contract,or are fine-tuning one that was bargained by previous teams, we caution you to keep three importantpoints in mind:Preface2. Negotiations are influenced by state law, administrative code, and regulations.These must beconsidered in the negotiations process.Remember, no manual contains all the answers,and no sample language meets the needs of everylocal.The NJEA Collective Bargaining Manual is onlyone of the bargaining resources available to localassociation leaders. The most effective bargainingalways begins with a phone call to your local NJEAUniServ office for assistance.1

NJEA Collective Bargaining ManualA History of Public SectorCollective Bargaining inNew JerseyNew Jersey has been a leader in the establishment of rights for school employees throughout thetwentieth century. NJEA and its local affiliates havebeen at the forefront in the fight for employee rights,school funding, and support for schools and schoolemployees.One of the first school employee strikes in thenation occurred in New Jersey when Paterson teachers withheld their services in 1946.This strike tookplace in the midst of a wave of private sector strikes.As workers in the private sector made gains inwages, benefits, and job security during the 1950sand 1960s, school employees felt they were left behind.The social unrest of the 1960s spread to schoolemployees, who took to the streets with their grievances. School strikes occurred in various locationsthroughout the country.Since 1947 the New Jersey State Constitution, inArticle I, Section 19, has recognized the right of persons in private employment to bargain collectively. Itfurther recognized the right of public employees toorganize, present to and make known to the State, orany of its political subdivisions or agencies, grievances and proposals through representatives of theirown choosing.After a veto of the proposal for a bargaining lawfor school employees in 1965, dissatisfaction withthe lack of a sanctioned bargaining process reacheda boiling point. In 1966 teachers struck the schoolsin both Newark and Woodbridge, and the union leadership of both locals was sent to jail. Some teacherassociations closed down schools with massive sickouts, such as in Camden in 1967.Another approach instituted during that time wasthe imposition of “professional sanctions” againstspecific school boards. A tool originated by theNational Education Association, the imposition of“sanctions” meant that a local association wouldnotify every state and local association affiliated withNEA to inform them that the local employer was“unfit to work under.” In addition, current employeeswould seek to terminate their employment in thedistrict, and the local association would discourageapplicants for new positions.A History of Public Sector Collective Bargaining in New JerseyAfter a legal challenge to the imposition of suchsanctions, the New Jersey Supreme Court determined that: any form of concerted activity for the purpose ofthwarting the workings of government is a violation of the common law; strikes by public employees are not prohibited bythe state constitution; the enacted PERC (Public Employment Relations Commission) statute did not permit strikes(Board of Ed., Union Beach v. NJEA, et al., 53 N.J. 29(1968)).Throughout this turbulent era, NJEA continued itsefforts to pass a bargaining law for school employees. In 1965 Governor Richard Hughes vetoed a billthat would have allowed negotiations on behalf ofschool employees.In 1966 the Legislature, with the support of theGovernor, established the Public and School Employees Grievance Procedure Study Commission.Thatcommission presented a report to the Legislaturein January 1968. In June, a collective bargaining billbased on that report was passed by both houses ofthe Legislature, but vetoed by the governor.Then, ata special session of the Legislature on September 13,1968, the New Jersey Employer-Employee RelationsAct became law, over the veto of Governor Hughes.The new Act created the Public Employment Relations Commission (PERC) and recognized the rightof employees to organize into exclusive bargainingunits represented by a majority representative.The Act provided for a tripartite commissionof seven members to determine policy for theagency. The seven members would include twomanagement members, two labor members, andthree public members, one of whom would be thechairperson. The Commission assumed jurisdictionover labor relations disputes concerning recognizedor certified majority representatives of employees ofall public employers in the state.The purpose of the Act was to fulfill the publicpolicy of the state by preventing or promptly settlinglabor disputes. The Commission was not to intervene in the absence of a dispute. It was to resolvedisputes on representation issues and disputes overthose topics which were mandatorily negotiable.The Commission was to involve itself in negotiations2

NJEA Collective Bargaining Manualdisputes as the source for mediators and fact findersto aid parties in the bargaining process. It establisheda panel of arbitrators available for use by management and labor to resolve grievances. Since it wasmodeled after the private sector National LaborRelations Act, the Commission structured itself toprocess unfair practice charges.The leadership of NJEA had encouraged local affiliates to negotiate comprehensive agreements evenif S-746 did not become law. Some local associationshad already negotiated contracts with their boards ofeducation. The Newark Teachers Association (1965),the Willingboro Education Association (1966), andthe Black Horse Pike Education Association (1967)were among several associations that had developedreal contracts with their employer boards prior toSeptember 1968.In anticipation of the move toward collective bargaining, NJEA established the position of Field Representative for Negotiations in September 1967 anddeveloped the first NJEA Sample Agreement. NJEAthen ordered more than 250,000 “authorization anddesignation” cards printed.These A&D cards wereused by local associations to seek voluntary recognition from local boards of education as the exclusivemajority representative in the district.In the summer of 1968, the Association hired 20local association leaders as part-time negotiationsconsultants to supplement the 10 full-time field representatives as they helped local associations negotiate their first collective bargaining agreements.After the passage of the collective bargaining lawin 1968, training sessions were held in every county.The Sample Agreement and A&D cards were distributed and explained.During the 1968-69 school year, more than 400bargaining units were recognized and negotiatedtheir first contracts.In 1971, NJEA and its county and local associations unified membership with each other andwith the National Education Association. As a resultof unification with NEA, the NEA/NJEA UniServProgram was initiated. In conjunction with a staff expansion in 1969, unification resulted in the doublingof the number of full-time field representatives andpart-time negotiations consultants.A History of Public Sector Collective Bargaining in New JerseyBy 1975, almost 1000 local associations had beenrecognized and were negotiating contracts.In the first test of the new PERC law, the NewJersey Supreme Court upheld the constitutionality ofcollective negotiations and the principle of exclusiverepresentation rights of a majority representative.The court also drew a distinction between theconcepts of “collective bargaining” in the private sector and “collective negotiations” in the public sector.By its use of the latter phrase, the Court establishedthat the Legislature had intended to recognize inherent limitations on the bargaining authority of publicemployers and employees.During its early years, PERC determined manyquestions on the appropriateness of bargaining units.In general, the Commission favored broad-basedunits over more specialized units.Scope of negotiations disputes have promptedthe most judicial and legislative activity over theyears since the original establishment of the Act.Although the Commission had assumed thepower to enforce the statute through the determination of unfair labor practice (ULP) charges, the StateSupreme Court determined that the Commissionlacked the statutory authority to determine suchcharges.The Act said that public employers were requiredto negotiate over “. grievances and terms and conditions of employment.” In 1973, the Court restrictedthe category of mandatory subjects for negotiationsto those subjects which intimately and directly affectthe employees’ work and welfare, but do not significantly interfere with the public employers’ determination of governmental policy.Pressure to strengthen the bargaining law beganafter the Court said the Commission lacked authority to settle unfair practice charges. That spurred theLegislature to amend the statute in 1974 to specifythe right of the Commission to determine and enforce unfair labor practice charges.The Act now states that employers and employeeorganizations, their agents and representatives, areprohibited from engaging in certain coercive anddiscriminatory activities, including refusing to negotiate in good faith.3

NJEA Collective Bargaining ManualNJEA believed that the 1974 amendments alsomodified the scope of negotiations through changesto language in the act. However, in 1978, the Courtdetermined that the Legislature had not changedthe test for determining if a subject was mandatorilynegotiable.During the 1970s, negotiations between localassociations and boards of education were often difficult. School employees were determined to makeup for years of being unable to negotiate their termsand conditions of employment. At the same time,school boards were concerned that their power torun the schools would be eroded through negotiations.In some of the most difficult situations, schoolemployees shut down the schools as a way of generating pressure to get a contract. Strikes in a numberof districts resulted in many association leadersbeing jailed, locals being fined, and various legalprecedents being established.Later court decisions further narrowed the scopeof negotiations. Subcontracting was held to be nonnegotiable while disciplinary disputes were found tobe non-negotiable and non-arbitrable.In 1980, the Court established a test to determinenegotiability. Specifically, a subject is negotiable if: it intimately and directly affects the work and welfare of the employees it has not been partially or fully preempted by astatute or regulation, and a negotiated agreement would not significantlyinterfere with the determination of governmentalpolicy.With a few specific statutory exceptions, thisis the test used by the Commission today when itdetermines scope of negotiations cases.While the courts’ determinations had continually narrowed the scope of negotiations from 1970through 1982, the trend began to reverse with action by the Legislature to amend Section 5.3 of theAct.The passage of Ch. 103 P.L.1982, which madedisciplinary disputes and review procedures mandatorily negotiable, is a notable example.A major exception to the narrowing trend of the1970s was the passage of Ch. 477 P.L. 1978, whichpermitted the negotiations of an agency shop provision which could require a non-member to pay aA History of Public Sector Collective Bargaining in New Jerseyrepresentation fee of up to 85 percent of the duespaid by a member.During the 1980s, the negotiations betweenschool boards and local associations began to mature in many districts.While there were some strikes,most were of shorter duration.The contract gainsmade by local associations during the 1970s continued at a brisk pace into the 1980s.A further expansion of the scope of negotiationsfor school employees came with the passage of Ch.269 P.L. 1989 which: requires negotiations on all aspects of extra-curricular activities except for the establishment ofqualifications for a position allows arbitration over the withholding of a salaryincrement for predominantly disciplinary reasons allows negotiation of a schedule of offenses andpenalties for minor discipline prohibits disciplinary transfers between work sites requires that arbitration determinations on disciplinary issues be binding, with the burden ofproof on the employer.During the 1990s, a combination of factorsconverged to create a harsh negotiations climate forpublic employees. Private sector layoffs, a reductionin manufacturing jobs, a tax squeeze, and governmental agencies hostile to public employees ledmany schools boards to negotiate for reductions inbenefits and minimal salary increases while threatening reductions in force if local associations did notcapitulate.Historically, employees have lobbied for an expansion of the scope of negotiations. More recentlymanagement has worked to modify or repeal lawsthat guarantee certain economic or job securitybenefits for employees. In the climate of the 1990s,employers believed that they should be able to negotiate those issues locally rather than comply withstate mandates.One example of this attitude was the action ofthe State Health Benefits Commission in the fall of1995 to eliminate the requirement that a fulltimeemployee must work 20 hours per week to qualifyfor benefits under the State Health Benefits Program.Under the action of the Commission, a local employer may set the minimum at any level it choosesso long as the change is negotiated. In this situation,4

NJEA Collective Bargaining Manualthe scope of negotiations has been expanded to thedisadvantage of the employees.In addition, passage of the Charter School Program Act of 1995 by the N.J. Legislature added a newaspect to bargaining.The Act provides the establishment of charterschools as part of the state’s program of publiceducation.Section 14b of the Act mandates that charterschools and their employees are subject to theprovisions of the New Jersey Employer-EmployeeRelations Act, P.L. 1941, C.100 (C.34:BA-1, et seq.),thereby providing bargaining rights to all charterschool employees.School employees have made great gains in thenegotiations process since the passage of the Actin 1968.These gains were made because of thecourage, commitment, and sacrifice of associationmembers to establish decent working conditions,salaries, and benefits.In order to maintain past gains and achieve futuregoals, all association leaders and members must recommit themselves to the task of strengthening localand county associations, NJEA, and NEA through thenegotiations process.We all do well to remember and live by the wordsspoken by NJEA Field Representative Jim George atthe 1967 Asbury Park Rally:“A new order is at hand.A new generation has been conceived. And we arenot afraid!”A History of Public Sector Collective Bargaining in New Jersey5

NJEA Collective Bargaining ManualIs It Negotiable?The New Jersey Public Employer-EmployeeRelations Act controls those items that have beendeemed mandatory topics and illegal topics ofnegotiations.The following list summarizes what iscommonly referred to as the “scope of negotiations”under New Jersey public sector labor law. Fringe benefits, including benefits for RIFedemployees if incorporated into the contract.NOTE:The following lists are not exhaustive. Health and safety issues. Grievance procedures. (Binding arbitrationof school employees’ grievances over minordiscipline, however, is statutorily mandated andis, therefore, not negotiable.) Hiring procedures.Mandatory Topics Holidays - number of.School boards are required to negotiatewith an employee representative over thefollowing topics. Hours of work. Advisory arbitration for the application of management prerogatives to individual employees. Insurance, including disability income. Job security for employees not covered by statutory tenure provisions. After school teacher-only workshops. Leaves of absence in excess of statutoryguarantees. Agency shop. Maintenance of benefits clause. Commencement date of negotiations, if earlierthan the date set by PERC. Management rights clause. Committees on non-negotiable topics that havemerely advisory authority. Compensation – all forms. Discipline procedures consistent with applicable statutes. Merit pay - including evaluation criteria. No-strike provision. Overtime provisions, rotation, pay rate. Payment for unused accumulated sick leave. Past practice/savings clause. Discipline of school employees in accordancewith applicable statutes. Personal leave. Duration of the collective bargaining agreement– subject to statutory limit of 3 years. NOTE:County Colleges are an exception to this limitation. Physical facilities and working conditions. Duty-free lunch. Preparation periods – length and number of. Permitting staff to leave building during lunch. Promotion procedures. Employee rights clause. Recognition clause. Evaluation procedures that do not contravenestatute or administrative code. Reduction in Force (RIF) — notice provisionsand compensation for remaining staff if there isa significant increase in workload. Number of evaluations above minimum set bystate rules and regulations Extracurricular assignments - certain aspects. Fair dismissal procedures that do not interferewith the nonrenewal of nontenured teachers. Personnel file - access to. Posting procedures. Pre-employment Incentives RIF procedures if NOT covered in statutes, assuch as: seniority recall bumping rights.Is It Negotiable6

NJEA Collective Bargaining Manual Release time.Illegal Topics Sabbatical leaves.These items have been determined to be illegal topics of bargaining because they involvematters of educational policy or inherent management prerogatives. Safety issues. Salary guide initial placement, credit for experience, education. Seniority/recall procedures for employees notcovered by specific statutes or regulations. Shifting unit work from unit employees to employees outside the unit.Call your UniServ office if you have any questionsabout these topics. Absenteeism and tardiness policies. Academic calendar. Sick day bank. Affirmative action plans. Sick leave: Assignment - other than extracurricular. above the statutory minimum. Audio-visual equipment - use of. payment for verification. Budget formulation. Summer session - procedures for fillingpositions. Class size. Teacher-pupil contact time. Decision to assign bus, cafeteria, corridor, andplayground supervision. Compensation is, however, negotiable. Teaching periods – number of. Transfer and assignment procedures. Union business – time off for; use of prepperiod. Tuition reimbursement. Vacations. Workload. Workday - length of. Work schedule including creation of newshift(s). Work year - length of (for teachers this ismandatory only in regard to those days in excess of the 180 student-day minimum requiredfor state aid). Zipper clause. Curriculum. Decision to reschedule snow days duringteacher vacation period. (Impact is negotiable.) Decision to go to split sessions. Design of students’ school day. Dress code. Evaluation: selection of evaluator. advance notice of observation. application of criteria. Facilities relating to the education process. Impact of non-negotiable decisions. Instructional materials. Lesson plans: format of. scheduling of submission. Number of employees and deployment ofpersonnel. Parent-teacher conferences: decision to schedule. changes in number of evening conferencesfor policy reasons (subject to negotiationsover compensation).Is It Negotiable7

NJEA Collective Bargaining Manual Productivity studies. Parity. Qualifications for: Pensions. (Although you may negotiate employer contributions to a 403(b) plan, subject tolegal requirements.) employment. increment. promotion. Sick leave - verification of. Staffing - number of employees. Streamlined Tenure – Charter school -- teachingstaff, janitors, and secretaries only. Student-related issues: discipline. grading. grievance procedure. safety. testing. Religious leave - paid (if not charged to generalpersonal leave or vacation). Seniority provisions inconsistent with Title 18A. Sick leave: unlimited blanket. use of for other than statutory purposes. Smoking in school buildings. Student grievance procedures. Sunshine bargaining as a precondition tonegotiations. Withholding of increments - proceduresestablished by statute or regulation. Subcontracting - decision to. Supervision of employees by departmentchairperson. Teacher aides – use of. Tenure-certificated employees. Transfer – decisions and criteria (other thandisciplinary transfers of school employees).These items have been determined to be illegaltopics of bargaining because they contravenespecific statutes or regulations. Composition of the bargaining team. Decision to RIF. Discipline - procedures ending in bindingarbitration for non-school employees with otherstatutory appeals procedures. Early retirement incentives. Evaluation criteria. Extended sick leave. “If/When” clause. Impact of RIF on remaining teachers and onRIFed teachers when there is no significantincrease in work load. Maintenance of membership clauses. Nonrenewal of nontenured teachers.Is It Negotiable8

NJEA Collective Bargaining ManualLandmark DecisionsMany aspects of collective bargaining by publicschool employees are governed by court and PERCdecisions as well as administrative code and regulations.The following landmark decisions address thesubject of collective negotiations:Constitutionality of Bargaining LawLullo v. Int.Assn. Firefighters, 55 N.J. 419 (1970)The New Jersey Supreme Court established theconstitutionality of collective negotiations and theprincipal of exclusive representation. It drew the distinction between the private sector term “collectivebargaining” and “collective negotiations” to recognizeinherent limitations on the bargaining power ofpublic employers and employees.Broad Units PreferredState of New Jersey v. Professional Association ofN.J. Department of Education, 64 N.J. 231 (1974)PERC’s approach to defining appropriate broadbased bargaining units was upheld.Scope of NegotiationsDunellen Bd. of Ed. v. Dunellen Ed. Assn. 64 N.J. 17(1973); Burlington County College Faculty Assn. v.Bd. of Trustees, Burlington County College 64 N.J.10 (1973); Bd. of Ed. of Englewood v. EnglewoodTeachers Assn., 64 N.J. 1 (1973)The Dunellen Trilogy further explained theSupreme Court’s perception that private sectorbargaining and public sector negotiations were different.The Court narrowly interpreted “terms andconditions of employment” under Section 5.3 of thePERC Act and broadly interpreted the preemptiveeffect of “other statutes” under Section 8.1.P.L. 1974, Ch. 123 was adopted as the Legislature’sresponse to the Dunellen decisions.Ridgefield Park Ed. Assn. v. Ridgefield Park Bd. ofEd., 78 N.J. 144, 156 (1978) banned the permissivecategory of negotiations.Landmark DecisionsIn State v. State Supervisory Employees Assn.,78 N.J. 54, 80-82 (1978), the Court interpreted P.L.1974, Ch. 123, holding that the insertion of the word“pension” in Section 8.1 required modification ofDunellen. Negotiations are not preempted on employment conditions covered by statute unless suchstatute or regulation speaks in the imperative andspecifically sets a term or condition of employment.In Woodstown-Pilesgrove Reg. Bd. of Ed. v.Woodstown-Pilesgrove Reg. Ed. Assn., 81 N.J. 582 (1980)the Supreme Court recast Dunellen’s basic negotiability formula into a balancing test: a proposal’seffect on the employee’s work and welfare must bebalanced against a proposal’s interference with theemployer’s prerogatives.Under the Dunellen standards, negotiability determinations had generally been made by category;under Woodstown-Pilesgrove, negotiability determinations are to be based on the circumstances of eachcase.The Court recognized in Hunterdon County andCWA, 116 N.J. 322, 328-329 (1980) the Commission’s“broad authority and wide discretion in a highlyspecialized area of public life” and confirmed thatthe Commission’s decision should stand unless it isclearly demonstrated to be arbitrary.In 1977, Paterson Police PBA v. City of Paterson,87 N.J. 78 (1981), interest arbitration for policeofficers and fire fighters was added to the statute(N.J.S.A. 34:13A-14 et seq.). The Legislature expresslycreated a permissive category of negotiations forpolice and firefighters only. The Supreme Court,however, established a narrow view of what is permissively negotiable.Local 195, IFPTE v. State, 88 N.J. 393, 404-405(1982) consolidated the balancing test and preemption standards into one tripartite test:[A] subject is negotiable between public employers and employees when: (1) the item intimatelyand directly affects the work and welfare of publicemployees; (2) the subject has not been fully orpartially preempted by statute or regulation; and (3)a negotiated agreement would not significantly interfere with the determination of governmental policy.9

NJEA Collective Bargaining ManualTo decide whether a negotiated agreement wouldsignificantly interfere with the determination of governmental policy, it is necessary to balance the interests of the public employees and the public employer.When the dominant concern is the government’smanagerial prerogative to determine policy, a subjectmay not be included in collective negotiations eventhough it may intimately affect employees’ workingconditions.In 1990, the scope of negotiations was expandedunder the provisions of N.J.S.A. 34:13A-22, et seq.Theprovisions applied only to school board employeesand dealt with “minor discipline” and extracurricularactivities.The Act requires that all discipline disputesmust be submitted to binding arbitration. Incrementwithholdings for performance are excluded fromarbitration.In Scotch Plains-Fanwood Bd. of Ed. v. ScotchPlains-Fanwood Ed.Assn., 139 N.J. 141 (1995), theSupreme Court affirmed the negotiability of the “justcause” standard and found that when parties havenot negotiated a standard for the imposition of discipline, it is reasonable for an arbitrator to apply a justcause standard in assessing the merits of discipline,including the withholding of a salary increment.Unfair PracticesIn Burlington County Evergreen Park Hospitalv. Cooper, 56 N.J. 579 (1970), the Supreme Courtdetermined that PERC lacked the statutory authorityto determine unfair labor practice charges.The 1974amendments to the Act defined unfair practicesby both employers and employee representativesand established the authority of the Commission todetermine if an unfair practice has been committedand direct a remedy.N.J.S.A. 34:13A-5.4 (a)(1) prohibits public employers from “interfering with, restraining o

44 Salary Compensation 46 Salary Guides 54 Salary Guide Profile 56 Salary Guide Negotiation Preparation 67 Salary Guide Construction . The New Jersey Education Association was founded on December 28, 1853, as the New Jersey State Teachers

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