District did not violate Taylor Law when it contracted for preK services |
On Board Online • October 15, 2012
By Kimberly A. Fanniff
Associate Counsel
A school district did not violate the Taylor Law when it unilaterally transferred duties of teaching assistants in a universal prekindergarten program (UPK) from unit members to a private contractor, according to the Public Employment Relations Board (PERB).
The decision to offer a prekindergarten program rests with the board of education, PERB noted in Matter of CSEA v. Springs Union Free School District. Under Education Law section 3602-e, decisions to reassign UPK program duties are not a mandatory subject of collective bargaining.
If a school board decides to offer a preK program, it must adopt a plan that is “designed to effectively serve eligible children directly through the school district or through collaborative efforts between the school district and an eligible agency or agencies,” PERB said. That could be fulfilled by staff or it could be accomplished by contracting with a provider of child care and early education, a day care provider, an early childhood program or other organization that meets certain standards and qualifications.
In this case, the district had offered a prekindergarten program since the 2003-04 school year and began receiving state grant funding to operate a universal prekindergarten program in 2007-08. Under the Education Law, UPK programs must provide all four-year-old resident children with an equal chance of being admitted.
In 2010-11, the district issued a request for proposals to eligible agencies to take over operation of its program. The district accepted the proposal of SCOPE Education Services and entered into a contract on July 30, 2010. CSEA subsequently brought an improper practice charge against the district based upon the unilateral decision to transfer duties from staff to a contractor.
PERB noted that there is a “strong and sweeping public policy” mandating negotiations. However, it acknowledged that there are exceptions to this general rule. PERB then explained that for a statute to provide such an exception the law must “plainly and clearly manifest a legislative intent for the at-issue subject to be non mandatory.”
In this case, the legislative definition of prekindergarten program plans contemplates using eligible agencies to provide UPK services. In addition, the statute specifically provides “notwithstanding any other provision of law, the school districts shall be authorized to enter any contractual or other arrangements necessary to implement the district’s prekindergarten plan.”
Moreover, the statute has a material incentive to encourage collaboration as it mandates at least 10 percent of a grant award be set aside for collaborative efforts with eligible agencies unless a waiver is issued by the commissioner of education.
PERB determined all these factors result in a legislative scheme to encourage districts to offer UPK programs that maximize participation and minimize costs through annual grants and contractual or other arrangements with eligible agencies. Therefore, the statute demonstrates a clear and plain intent to permit districts to subcontract with a collaborating eligible agency without mandatory negotiations, provided the district’s action is consistent with other provisions of the law. PERB emphasized that its ruling was specific to this provision of education law and had “limited precedential value” for future cases.
Past practice and leaving early
Also at issue in this case was an improper practice charge that the district unilaterally discontinued a past practice permitting CSEA unit employees to leave work early without using leave time if they did not attend an annual staff luncheon on the last day of school. For five years the district had allowed unit members to leave for the day at 10:30 a.m. if they were not attending the luncheon. In 2010 the district notified all staff that if an employee did not attend the luncheon he or she was obligated to remain on duty until dismissal.
A past practice may be ended without violating the Taylor Law by reverting to the specific provisions of a collective bargaining agreement (CBA). To be valid the language relied upon for a contract reversion defense must be reasonably clear on the subject at issue. If language is reasonably clear but susceptible to multiple interpretations extrinsic evidence may be used to determine the intent of the parties.
In this case, the contract was clear and not susceptible to multiple interpretations regarding work hours and breaks for CSEA unit employees. In addition to provisions for sick, personal, bereavement and child care leave, the CBA stated specific working hours and provided that an employee was entitled to two 15-minute breaks and a 30-minute lunch. Based upon this language, PERB ruled that the district had the right to revert to the contract provisions and to require employees to charge leave time if they chose to leave and not attend the luncheon.
NYSSBA filed a friend of the court brief in this case.