Cerritos Fresno Irvine Pasadena Pleasanton Riverside Sacramento San Diego ACSA Negotiators Retreat Presented by: Mark R. Bresee, Partner William A. Diedrich, Partner Negotiating with Classified Unions in an LCFF world - Are Supplemental and Concentration Grant Funds Off Limits?

Negotiating with Classified Unions Overview Differences Unique Issues 610 Process LCAP/LCFF Q&A Agenda

Major Classified Unions California School Employees Association Service Employees International Union Teamsters United Steelworkers

Certificated Classified Blue collar union Vertical integration Statewide policies Centralized development of Interests Centralized legal services –LRR ’ s acting as counsel Centralized budget analysis Limited chapter authority Limited LRR authority Purports to be professional union Horizontal integration Regional policies/interests Regionalized legal/use of private firms Regionalized budget analysis (NOD) Broad chapter authority Broad representative authority Differences: Organization

Certificated Classified Centralized strategy More likely to wait for the certificated unit (me too) More likely to demand to negotiate impacts/effects More likely to bog down on language items More likely to pursue “ protection ” language Regional strategy More likely to go first More likely to focus on salary, limited language items More likely to pursue language in favor of independence Differences: Negotiation Strategy

Unique Issues 1 Hours of Employment 2 Layoff 3 Safety/Harassment 4 Transportation 5 Reclassification 6 Holidays

CSEA 610 Policy Neither CSEA chapter officers nor CSEA field staff members have the authority to reach an agreement with the District and/or bind CSEA to any agreement without complying with CSEA Policy 610. CSEA Policy 610 requires a CSEA FD to review all tentative agreements, MOU’s, side letters of agreement, etc. for compliance with applicable laws, CSEA's Constitution and Bylaws, and/or CSEA Policies before the tentative agreement, MOU, side letter of agreement, etc. can be ratified by the membership. If a tentative agreement, MOU’s, side letters of agreement, etc. violates an applicable law, CSEA's Constitution and Bylaws, and/or CSEA Policies the CSEA FD has the authority to deny the CSEA chapter the right to ratify an illegal and/or prohibited tentative agreement, MOU, side letter of agreement, etc. Additionally, the CSEA FD has the right to recommend an agreement be rejected by the CSEA membership including the right to have a State CSEA representative present at the CSEA chapter's ratification meeting to outline the reasons the tentative agreement, MOU, side letter of agreement, etc. should not be ratified Neither CSEA chapter officers nor CSEA field staff members have the authority to reach an agreement with the District and/or bind CSEA to any agreement without complying with CSEA Policy 610.

610 Policy: Terms Defined "Appalachian Shale Agreement" refers to a National Labor Relations Board case NLRB no 149, 121 NLRB 1160 (1958). It is a "band-aide contract" put in place pending completion of negotiations so that a union does not have to worry about a competing organization filing a petition for recognition.

Clovis Unified School District (2002) PERB Dec. No In the CBA, the exclusive representative is listed as CSEA and its Chapter 250. Therefore, under Fairfield- Suisun Unified School District (1980) PERB Decision No. 121, the District must provide advance notice of its actions to both entities. In this case, the District and Chapter 250 did not invoke the ratification process by forwarding the proposed agreement to conduct the election and implement the election results to CSEA. The District thereby did not provide the required advance notice to CSEA.

District Options Check recognition language Have the agreement checked before TA Enforce your rights wherever possible

610 vs. Torpedoing.9.03 The Field Director shall forward to the Chapter President, without delay, a review that determines whether the Agreement is in compliance with applicable laws, CSEA’s Constitution and Bylaws, and/or policies of the Association. If the review recommends disapproval, the Field Director shall include the specific reasons as to why such a recommendation is being made. In cases where a verbal review is necessary, the Field Director shall immediately follow up such verbal review in writing to the Chapter President. The review letter shall be provided in writing to the Chapter President prior to the ratification meeting.

610 vs. Torpedoing (continued) Alhambra City and High School Districts (1986) PERB Dec. No. 560 –Absent good cause, once a tentative agreement is reached, there is an implication that both parties' negotiators will take the agreement to their respective principals in a good faith effort to secure ratification. (NLRB v. Electra-Food Machinery (9th Cir. 1980) 621 F.2d 956 [104 LRRM 2806]; H. J. Heinz Company v. NLRB (1941) 311 U.S. 514 [7 LRRM 291].) While a tentative agreement does not bind either side, it does imply that the negotiators will not "torpedo" the proposed collective bargaining agreement or undermine the process that has occurred.

LCAP Development: Classified Unions as Stakeholders Education Code section 52060: –(g) A governing board of a school district shall consult with teachers, principals, administrators, other school personnel, local bargaining units of the school district, parents, and pupils in developing a local control and accountability plan. “ Consult” undefined in LCAP law. –Under the EERA (Gov. Code, § (a)) relating to curriculum “Consultation” (also known as “meet and confer”) involves the “free exchange of information, opinions, informal proposals and recommendations according to orderly procedures in a conscientious effort to incorporate such recommendations into the resulting policy or plan.”

Are Districts obligated to negotiate over the LCFF implementation decisions contained in the LCAP?

Are Districts Obligated... ? No. LEAs are not statutorily obligated to negotiate LCAP implementation decisions. While LEAs have an obligation to “consult,” they do not have an obligation to “meet and negotiate” implementation decisions. “Establishing educational policies, goals and objectives,” “determining curriculum,” and “establishing budgetary priorities and allocations” are all fundamental management prerogatives not within the mandatory scope of bargaining. In some cases, a local CBA will enumerate these management prerogatives in a “Management Rights” clause. Source:“Do We Have to Bargain Over Our Local Control Accountability Plan and Our Plan to Implement Common Core Standards?, The Fiscal Report, School Services of California, Suzanne Speck and Todd A. Goluba, September 20, 2013

Impacts and Effects County of Santa Clara (2013) PERB Decision No 2321: –The rule requiring effects bargaining arises from balancing the need of employers to make unfettered decisions about the direction of the enterprise with the rights of employees, through their exclusive representatives, to a voice in workplace matters related to wages, hours and terms and conditions of employment. In other words, effects bargaining is not a stepchild of decision bargaining. It is just as important as bargaining over a decision to alter terms and conditions of employment. AB 1611: –A public school employer shall give reasonable written notice to the exclusive representative of the public school employer’s intent to make any change to matters within the scope of representation of the employees represented by the exclusive representative for purposes of providing the exclusive representative a reasonable amount of time to negotiate with the public school employer regarding the proposed changes.

Impact of LCFF on Classified Negotiations Base grant allotment is subject to negotiations. Supplemental/Concentration grant are not subject to negotiations per se, but may be used for compensation increases if tied to the LCAP. –Training days –Extra duty assignments –Prepare information regarding hiring/retention status to rebut “attract and retain” argument –Remember, if your district has a target student (supplemental & concentration grant funding) population of over 55%, these grant monies may be expended district wide. Let the LCAP drive the discussion.

“The Proportionality Clause” “Under the LCFF, districts must use supplemental and concentration funds to increase or improve services for EL/LI pupils in proportion to the increase in supplemental and concentration funds.”

“The State Priorities Under the LCFF” (Ed. Code §52060) 1 Williams Act concerns: (a) appropriate assignment of teachers by credentials, (b) student access to standards-aligned instructional materials, (c) school facilities in good repair 2 Implementation of Common Core State Standards 3 Parental Involvement 4 Pupil achievement as measured by (a) Statewide assessments and the API, (b) Students meeting A-G requirements for UC admission, (c) ELLs making progress toward English proficiency, (d) Pupils passing advanced placement exams, (d) demonstrated college preparedness

“The State Priorities Under the LCFF” (Ed. Code §52060)... continued 5 Pupil engagement as measured by (a) attendance, (b) chronic absenteeism, (c) high school and middle school dropout and graduation rates 6 School climate as measured by (a) suspension and expulsion rates, (b) other local measures regarding safety and school connectedness 7 Access to broad courses of study, including programs and services provided to “unduplicated pupils” and special education students 8 Pupil outcomes in grades 1 to 6

Supplemental/Concentration Grant Funding Can Supplemental/Concentration Grant funding ever be used to compensate the classified unions? –Across the board salary increases? –New positions? Teacher support positions? Technology positions? Student retention positions? Student safety positions? Custodial/Maintenance? –Additional hours? Extended instructional day

Keys to Differentiated Compensation Proposals Involve classified unions in the LCAP development process. Consider the classified employee’s role in LCAP implementation. Connect any differentiated compensation to additional hours, not measurability or proportionality. Negotiate the impact of an longer instructional day/year.

Question Answer Session

For questions or comments, please contact: Thank You Mark R. Bresee San Diego (562) William A. Diedrich Riverside (951)