Negotiations 101

In 1967, the New York State Legislature passed an experimental piece of legislation, the Public Employees' Fair Employment Act, known today as the Taylor Law.

For the first time, this law granted New York public employees (state and local) certain rights of employment, which changed the relationship between employers and employees significantly. Employees were granted the right to form unions of their own choosing, free from employer interference, and those unions were given the right to negotiate with the employer over terms and conditions of employment.

The act also created a neutral agency, the Public Employment Relations Board (PERB), to ensure a level playing field between the employer and employee organizations. PERB's role has included the proper grouping of employees for representation (unit determinations), conducting bargaining agent elections, and administering impasse procedures to help the parties resolve disputes. An impasse occurs when both parties' negotiations reach a point where they feel neither compromise nor agreement is possible.

The Taylor Law prohibits certain employees from being represented by a union. These employees are designated as Managerial or Confidential according to criteria specified by the Law. Terms and conditions of employment for Management/Confidential employees (as outlined in the M/C Handbook) are set by the Governor's office, based on recommendations from OER.

Today, the State negotiates with ten unions representing employees in 14 bargaining units ranging from university professors to State Police. The Office of Employee Relations represents the State, specifically the Executive Branch of state government. The Director of OER represents the Governor in employment matters including collective negotiations with the State's employee unions.

In preparation for negotiations, both the unions and the State follow similar procedures. Both collect economic data to prepare their arguments, survey their constituencies — members for the unions, State agencies for management — to determine their priorities, select representatives from agencies to serve on their negotiating teams, and prepare negotiating proposals to present to the other side at the table (i.e., during negotiation meetings).

Once the preparation is complete, the parties meet at a mutually agreeable time and location. Over the next several weeks or months negotiations occur. The exact format of the negotiations will vary depending upon a number of factors including the prior history of the parties and the individual negotiators' styles, but generally, in one format or another, the following occurs:

• Proposals are exchanged
• Both sides seek clarification of each other's proposals - not why either party wants a particular change, but what they want
• A review of the proposals to determine if they concern subjects that must be negotiated (more than 40 years of PERB case law defines what the parties may or may not negotiate)
• An assessment by each side of how much each proposal will cost, and
• Justification of the proposals.

Following negotiations, if the parties are successful, an agreement will be reached and a Memorandum of Understanding (MOU) will be signed. The MOU will incorporate all of the changes in the employment relationship agreed to by the parties, including such items as wages, health insurance, working conditions, and discipline. Following ratification of the MOU by the union's membership, a formal contract or agreement will be signed and legislation enacted to provide any compensation and benefits agreed to by the parties.

If, however, the parties are unable to reach agreement (i.e. declare an impasse), the Law provides a formal dispute resolution procedure for all state employee units except for State Police units and for the vast majority of members of the Security Services Unit and the Security Supervisors Unit, and the Agency Police Services Unit.*

The procedure entails:

• Mediation — This initial step uses an outside employee relations expert to assist the parties to reach agreement voluntarily.
• Fact-Finding — If mediation fails, fact-finding ensues. This is a quasi-formal proceeding where both parties present evidence and a neutral party or panel of neutral parties ultimately prepares written recommendations as to how the impasse should be resolved. These recommendations are not binding upon the State or the unions.
• Legislative Determination — Ten days following the submission of a fact-finder's report the Governor would submit the report to the Legislature with his recommendations as to how the dispute should be resolved. Following such a submission, the Legislature would take whatever action is deemed appropriate.

Since the inception of the Taylor Law, the State and its unions have in almost every case reached agreement at the bargaining table without the assistance of PERB. The last time a fact-finding report was issued was 1989, and the last time a state contract was resolved by legislative determination was 1975.

* Since 1995, the State Police units have been covered by compulsory interest arbitration similar to local government police and fire employees. As of the 2003 negotiations, a majority of the security unit employees and police officers employed by the Department of Environmental Conservation; the Office of Parks, Recreation and Historic Preservation; and the State University of New York also became covered by compulsory interest arbitration for issues directly relating to compensation only.