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ACE Update 07.10.17: Change, Voting, What I’ve Learned, ACE & Classified Senate, Management’s Right To Assign Work

President’s Message

Change
The news came via text, Paula Joseph, chief steward at De Anza, will be retiring in October.  She will be sorely missed – more on her contribution to ACE later – and while change is inevitable, her upcoming retirement is a good reminder that ACE only works thanks to the compassion, resourcefulness and dedication from members who voluntarily step up to help improve the workplace on behalf of their colleagues.

It takes active participation and commitment from all the members of a union to effectively protect and serve the membership as a whole. The most obvious benefit of a union is having an organization that is always there to represent and protect you and provide you with greater job security. The second is having greater bargaining power around health benefits and salary because of your concerted group effort to obtain the greatest possible result.  To be clear, this doesn’t mean we always get it right or that the path to change can, at times, be excruciatingly slow. but whatever we do always comes from a desire to help others.  Sometimes that last point gets lost when outcomes don’t match desired expectations.

Over the next year, there will be many changes affecting ACE and the work we do as classified professionals for Foothill-De Anza.  From inevitable leadership changes within ACE to the outcome of our classification study to district wide budget concerns, just to name a few.  The one constant will be the need for people to serve.

Back to Ms. Joseph. Words cannot begin to express the gratitude I have for Paula and her work as De Anza chief steward or her service to ACE.  Her voice of reason, calm demeanor, clarity of thought and keen sense of humor have helped us become a better organization.  After she encouraged me to run for President, she followed up by checking in weekly to make sure I was doing alright.  At times those phone calls, for me, were the difference between moving forward or running away and her support is a lesson in giving to others that I will work hard to emulate long past my time with ACE.  Thank you Paula.

Of service,

Chris White, ACE President
(650) 949-7789, office


What I’ve Learned

by Art Hand, Foothill Chief Steward

Chris has asked me to write an article for the July ACE newsletter about my 20-plus years’ experience as chief steward at Foothill. I immediately asked her how long? She promptly replied, 500 words or less. I said ok. So far that’s 45, counting this.

One of the reasons for my longevity in the position is because I can remember the job description, which hasn’t changed in all this time; it is simply, “to represent the workers to management.” Now there is often considerable complexity in that, depending on the situation, but it all stems from that one purpose.

Most of what I’ve learned that’s worth saying, I learned from books, movies and other people.

From Jill Kersey, formerly of AV at Foothill and De Anza, the Jill Kersey dictum:  “If it’s important, write it down.”
Jill’s mind just insensibly produced (and, no doubt still does) fresh, original aphorisms in the course of conversation. There was apparently no effort to it; it was just an authentic talent, part of the essence and pattern of her mind. She said one in conversation that, as usual, I’d never heard before, and that was perfectly, self-evidently, true. About a week later I was at my desk trying to remember it when Jill happened to walk by. I stopped her, and said, “Jill! Jill. I was just trying to remember that thing you said last week. It was great. Do you remember it?”

Jill stopped, stood hip-shot facing me, looked kind of pityingly at me for a few seconds, and said, “If it’s important, write it down.” Turned and walked away without another word. It was a defining moment. That wasn’t it, I knew that, but it was more important, more memorable than whatever it was she had actually said. Before Jill left the District for another job, I asked her to write it down and sign it. It’s still stapled to my wall. I follow it religiously. I recommend you do it too. Because, you never know. That Kersey-inspired habit has proved determining more than once.

A Salesman Who Listened
Another I learned from my dad. He was a salesman for many years, but he had the peculiar habit—for a salesman—of listening. Actually, it’s a bit of a peculiar habit I’ve noticed, for people in general.

Many people have come to me over the years with problems. Usually what they bring does not result in or qualify as a formal grievance*. More often it’s a problem, and I’d be hard put to think of a single one that wasn’t an interpersonal problem, either with a supervisor or a coworker. What I do is listen (like my father, through his example, taught me).

Invariably, they want to tell me the story. So, I listen. It always involves some pretty strong feelings. Sometimes they cry. This is natural, never disturbs me, and I always keep Kleenex. Don’t think it’s just women who occasionally cry. It’s men, too. I usually don’t. I don’t think it would be particularly helpful if I did.

“What Happened”
At some point, after the initial story, I start to employ what I learned from De Anza chief steward, Paula Joseph. Paula has a very extensive background prior to De Anza in personnel management. Paula pointed out to me, in one of our first conversations, that everybody wants to tell you their story, but what she wants and needs to know in order to be effective is “What Happened.” That is, the facts of the matter. I make it a practice to listen, mostly without interrupting until the story is told, thus relieving the sometimes unbearable tension of the situation for the worker who has carried this burden thus far and wants to deliver it to me in full. Plop. That done, I start to fill in my knowledge of the story with clarifying questions, all aimed at answering the essential Josephian question: “WWhathat Happened.”

Many times my coworker will talk it all out, answer all my “what happened” questions, talk some more, and basically arrive at a remedy for the situation they brought–largely through their own analysis–and go away thinking rather well of me. Often the result almost convinces me that I did something truly efficacious, and that I should continue my good work, at least for awhile.

But I won’t be doing this that much longer, so this message is for you: if you can remember the job description (see the second paragraph), if you can listen and think and ask good questions, and if you find you are mostly all grown up, then you might consider being my replacement someday. I’m not at the point yet where I hesitate to buy green bananas, but you may have noticed I’m not getting any younger here. You’re out there, I know, so you better start thinking about it. Don’t worry about stepping into my shoes. Bring your own. Cowboy boots might be good. I’ve got a pair. They  make me taller.

* Formal grievance:  an alleged violation or misapplication of our Agreement.


Management’s Right To Assign Work

by Bradley Booth, Attorney, ACE

There is some confusion over management’s ability to assign the work performed by classified employees. They have the absolute right to assign your work. Management retains the right to assign work to employees in the proper classification. The only possible restriction on this right would be found in three separate place, the Government Code, the Education Code and the Collective Bargaining agreement between Foothill-De Anza Community College District and ACE.

A review of those documents indicates no prohibition on management’s right to assign work. The Government Code merely defines what are mandatory matters for bargaining. Assignment of work is not enumerated as a mandatory matter of bargaining. The Government Code goes on to state at section 3543.2 (4), that if a matter is not enumerated, that matter is reserved to the public school employer and may not be a subject of meeting and negotiating.

That doesn’t mean that the District can make you do work out of your classification without paying you more, nor does it mean it can assign you more work than you can do in your 8 hours of work. It also means that you shouldn’t work through your breaks and lunch break as these are mandated by law and cannot be negotiated away. If you have any of these problems please contact ACE immediately and we will intervene on your behalf and get the matter resolved.


ACE and Classified Senate

The staff of Foothill-De Anza are fortunate to have union and senate leaders who recognize the benefits of working together to improve staff welfare. We work in a complementary fashion, often serving on the same committees but performing different functions.  By clearly understanding each organization’s charter, we ensure that classified employees have input into the participatory governance process while at the same time are assured that classified bargaining rights are protected.

Membership 
ACE:
All classified staff whose positions fall under ACE.
Mandatory; only full dues-paying members may represent ACE on committees.

Classified Senate
All classified staff regardless of their bargaining unit affiliation.

Dues
ACE:
Mandatory. .95% of base monthly salary for full-dues members; .85% for service fee payers.

Classified Senate:
Voluntary.

Voting
ACE:
Only full dues-paying members are eligible to vote.

Classified Senate:
All classified staff.

Role
ACE:
ACE is the exclusive bargaining agent for unit members.

Classified Senate:
The Classified Senate is a professional organization that supports, facilitates, implements and promotes awareness of participatory governance policy.

Responsibilities
ACE:
To focus on collective bargaining issues such as wages and benefits and issues pertaining to working conditions.

  • Wages, including salary schedule and placement, service recognition awards, professional growth awards, promotions, seniority, layoff and re-employment rights, initial classification and reclassification.
  • Hours of employment, including pre-retirement reductions.
  • Health and welfare benefits, including holidays and vacations.
  • Leaves, transfer and reassignment policies, including sick leaves, bereavement leaves, military leaves, industrial accident leaves, personal necessity leaves, and unpaid leaves of absence.
  • Safety conditions of employment, including district-initiated disability leaves.
  • Procedures to be used for the evaluation of employees.
  • Procedures for processing grievances and disciplinary actions.
  • Selecting from its membership representatives to serve on governance and district/college committees specific to bargaining issues such as hiring committees for classified positions and campus/district budget committees.
  • Provide a means of communication between classified staff and the college community regarding contractual issues.

Classified Senate:
To focus on issues related to the participatory governance policy and to ensure equal representation on campus committees, projects and issues.

  • The voice of classified staff with regards to participatory governance, including work on college accreditation.
  • Appointment of classified staff on campus committees that review non-restrictive policies, procedures, practices and needs assessments, such as equity and basic skills committees.
  • Development and implementation of classified staff professional development.
  • Provide a means of communication between classified staff and the college community on participatory governance issues.

Leadership:
With the exception of the ACE President, every classified staff member who serves on behalf of ACE or one of the Senates does so in addition to their full-time FHDA job.  See the links below for a complete list of officers for each organization.

  • ACE, click here.
  • Central Services Classified Senate, click here.
  • De Anza Classified Senate, click here.
  • Foothill Classified Senate, click here.

Classification Study:  Reminders

by Chris White, ACE President

The consultants are developing draft job classifications from information collected through the PDQs and follow-up interviews. Draft job classifications will be presented at an undetermined date in fall quarter and staff will have an opportunity to provide feedback in this process.

Reminders:

  1. We have already agreed with the district that NO ONE will go down, in pay or classification, as result of the consultants findings.  Read that again.  One more time and pass it on.
  2. Classifications are generalized and not every word from the PDQs will be on the final classification description. Positions and classification are two words that are often thought of as interchangeable; but in fact have very different meanings.  In a classification plan, a position is assigned a group of duties and responsibilities performed by one person. A classification may contain only one position, or may consist of a number positions.  When there are several positions assigned to one classification, it means the same title is appropriate for each position because the scope, level, duties, and responsibilities of each position assigned to the classification are sufficiently similar (but not necessarily identical); the same core knowledge, skills, and other requirements are appropriate for all positions; and the same salary range is equitable for all positions.
  3. The goals for this project:  To align job descriptions with the current roles and responsibilities of classified employees, create career ladders were appropriate, and conduct a market analysis of compensation in similar or like jobs in other districts.

ACE Update 02.06.17: Budgets, Classification Study & the Value of Independence

President’s Message


With the governor’s initial budget proposal for 2017-2018 offering very little in increases to base funding or COLA’s, status quo seems to be the name of the game.  For FHDA, the challenge with this concept comes from our continuing enrollment decline, further reducing our base funding, rising administrative costs and the very real impending increases to PERS and STRS retirement obligation to employers.  The state chancellor’s office has stated there is a clear expectation from policy makers that funds have been provided – through increases to base funding and COLA’s – to ensure colleges are covered for new expenses related to pension cost increases.

The PERS/STRS challenge isn’t unique to FHDA.  Nearly every public agency in California is grappling with how to address this issue and, most likely, change needs occur at the legislative level.  What that looks like is anyone’s guess, but advocacy is key if a pension – an important component of your compensation package when you work for a public agency where salaries tend to be lower than the private sector – is important to you.  To start, the FHDA Board of Trustee as part of their proposed 2017 legislative principles, has included advocating for funding to cover increased employee pension costs but it would not be surprising if the district brought this issue to the negotiating table.

For FHDA, while enrollment remains a challenge the district has been very clear, with $45 million available in one-time stability funds, we are good for the next two years but if enrollment doesn’t start to increase changes may need to be made in year three.  The district has been non-specific on exactly what those necessary changes would be. The district has also been clear that they are looking at ways to increase enrollment and revenue growth, not make cuts, including a promising new partnership with UC Santa Cruz as one area for potential growth.  The district will be hosting three Districtwide Conversations on Enrollment and Revenue Growth to address this issue.  I will be attending all three sessions and encourage you to join me.

  • Wed., Feb. 22 – 12:30 – 2 p.m., Foothill College, Hearthside Lounge
  • Thurs., Feb. 23 – 12:30 – 2 p.m., Sunnyvale Center, Room 124
  • Tues., Mar. 7 – 12:30 – 2 p.m., De Anza College, Conference Room A/B

What does this mean for ACE?  As we head into negotiations, this gives us a better idea of how funding could affect our proposals to the district and where we might want to focus our efforts over the next 12-24 months.

Of Service,

Chris White, ACE President
(650) 949-7789, office


New ACE Representatives

Joining the ACE board March 1, Cynthia Smith will be serving as the De Anza board member, seat 2 replacing Selda Sigala-Aguilar who is retiring from FHDA at the end of February.  Words cannot express how grateful we are to Selda for her years of service to ACE.  Please take a moment to thank her and wish her a happy and healthy retirement.

We also have two new members representing De Anza on negotiations, Dana Kennedy, division assistant in the business division and Andrea Santacruz, administrative assistant in A&R.  For the first time in 3 years, as we begin negotiations with the district, our negotiations team is full.


Classification Study Update

by Chris White, ACE President

First, a reminder:  Your position description questionnaire (PDQ) for the ACE classification study is due no later than 5 p.m. on Friday, Feb. 24.

To ensure your comments remain unchanged, email your completed PDQ to:
  1. The supervisor and/or administrator who signs your time sheet; AND
  2. Myisha Washington, Manager, Compensation, Classification and Employment, washingtonmyisha@fhda.edu.
  3. Keep a copy for your records.

Second, some frequently asked questions:

  1. How long will the study take to complete?  The consultants have stated it will probably take a year to complete.  The biggest delays?  Missing deadlines, like the PDQ submission, and negotiating the effects of the study’s final recommendations. The more accurate information we provide upfront, and on time, reduces the possibility of delays later. Let’s keep this moving forward and get those PDQ’s in by the Feb. 24 deadline.
  2. Do I really have to submit the PDQ to my supervisor?  Yes.  This study is about the position NOT the person.  If there are large discrepancies between what you define as your duties and what your supervisor does, the consultants – who are neutral in this process – will dig deeper to get a clearer picture of the position.  It is built into the process through the follow-up interviews.  If you are concerned there will be repercussions for things you have written, contact ACE immediately and we will work with you to address your concerns.
  3. My supervisor told me something different than what was presented at the kick-off meetings.  What do I do?  Contact me or Myisha Washington immediately and we will clarify the process for you and your supervisor.  To help ensure we are all on the same page, I will be attending a Classification Study Information Discussion for supervisors and administrators in mid-February hosted by HR.
  4. I’m working on the PDQ and have questions, can you help?  Yes.  You can email me or Myisha Washington at any time.  We will also be offering drop-in assistance on the following dates/times:
    1. Foothill, Altos Room
      1. Feb. 9 – 1:30 – 3 p.m.
      2. Feb. 15 – 11 a.m. – 1 p.m.
    2. De Anza – Staff Development Office, MLC246
      1. Feb. 15 – Noon – 3 p.m.
      2. Feb. 21 – 1 – 4 p.m.
  5. How can I stay informed on this process?  I invite you to avoid misinformation that inevitably makes its way through the grapevine. Instead. be certain to read ACE emails, attend site meetings and bookmark, http://hr.fhda.edu/class-comp/e-ACE%20Classification%20Study%202017.html

Lastly, all classified employees are expected to take part in the study by completing the PDQ.  Although not every job description will require significant changes, every classification will be reviewed and modified as needed.  At the completion of the Study, all classified positions will have job descriptions that accurately reflect the roles and responsibilities of the position.


Professional Development Opportunities
This workshop reviews the ACE PGA (Professional Growth Award) application process, covers eligibility requirements and defines what constitutes professional growth activities for classified professionals. We will also review the ACE Educational Assistance Plan and Travel and Conference Funding. All participants will receive a PGA Organizer binder. Those who already have a binder or folder system from prior workshops should bring them.

  • Thurs., Feb. 9: 10-11 a.m., FH Toyon Room
  • Mon., Mar. 13: 12 – 1:30 p.m. DA Admin 109

PGA Workgroup
All classified professionals are welcome to attend these working sessions where we get together to organize our professional growth materials and work on our PGA application. Share your knowledge and experience with others! Get assistance with completing your application and identifying the support materials you need to include.

  • Thurs., Feb. 23: 12:30-1:30 p.m., FH Toyon Room

CalPERS Planning Your Retirement Workshop
This workshop is geared towards members who are nearing retirement.

  • Fri., Feb. 10: 9:30 a.m. – noon, DA Admin 109
  • Fri., Feb. 24: 9:30 a.m. – noon, FH Toyon Room

Please note the CalPERS workshop requires an additional registration by calling (888) 225-7377 or online through your My CalPERS account https://my.calpers.ca.gov/web/ept/public/systemaccess/login/username.htmlFollow the instructions to set up an account if you do not have one.

Please pre-register for the above workshops by emailing Mary Kay, staffdevelopment@fhda.edu, at the De Anza College Office of Professional Development and letting her know which workshop(s) you want to enroll in.


The Value of Ownership and Independence
By Bradley Creamer, ACE member & Foothill webmaster

When I first came to work for Foothill-De Anza, I didn’t know much about unions. During new hire orientation, I received the basic union orientation but didn’t see the value in being part of it.  As time went by and I learned more about the union itself, I further justified my non-involvement due to the fact that the organization seemed to be a nebulous, distant entity that also didn’t seem to have any value by our local members. I met our local officers and knew that they were concerned for our members, but also saw that union was busy with issues outside of our members’ concerns.

When the time came that we, as classified professionals, decided to form our own union – one which was independent of a national organization and self-governed – I knew it was the time to participate. I served on the first board of the Association of Classified Employees (ACE). This was one of the best learning experiences I’ve had in my career. 

Obviously learning the ins and outs of being on a governing board had its trying times, but the most important thing I learned was the value in making decisions ourselves. Many times we had to prioritize items that left out other important issues, much like the current board has to do now. But through ACE, our voting membership has had the power to prioritize those important issues. Our voting membership then makes the decision on actions that impact those important issues.

Understanding the value of owning and having an independent union has never left me. To this day, I continue to help ACE with the website, online voting and email support. I hope that you also understand the value of ACE.  If you are not already a voting member, become one, and then get involved by serving on the board or becoming a steward.

ACE Update 01.09.17: Budget Update, Classification Study, Your Voice & New Parental Leave Law

President’s Message

Happy New Year!

I hope you were able to enjoy some time off during the winter break to do things you like with people you love. I most certainly did.

Challenges and opportunities come with every new year, and for ACE and FHDA, 2017 is no different.

Challenge:

  • FHDA’s continued decline in enrollment and budget deficit. The district has been clear that we are fine through the 2017/18 year, but if these trends don’t reverse themselves changes may need to be made. ACE will be monitoring district, state and federal funding and policy decisions for changes which could impact ACE members.

Opportunities:

  • Budget concerns. We can all help the district during this enrollment decline by simply taking a class. Learn something new and have it counts towards your Professional Growth Award (PGA), which puts money in your pocket.
  • Classification study. An efficient and effective organization needs logically constructed job families that link and build positions upon each other, and in some cases, demonstrate career ladders within particular kinds of work. More on this below.
  • Professional Development. Partnering with the staff development office at De Anza, ACE will be offering workshops on both campuses covering PGA’s, retirement and other negotiated benefits. Watch your email for more information.
  • Negotiations. Always a give and take but as we wait for the Governor’s initial budget at the end of January, and keeping the district’s budget challenges in mind, ACE will be drafting our proposals to the district and asking for your input along the way.
  • Get involved. The classification study and negotiations will only be successful with your participation. Please take the time to fill out surveys, attend meetings, get to know your chief steward and ACE elected members, and most importantly, ask questions.

Looking forward to working together to make 2017 the best it can be.

Of Service,

Chris White, ACE President
(650) 949-7789, office


New Chair of Negotiations, Cathleen Monsell

Effective January 5, 2017, Cathleen Monsell, division assistant in the PSME department at De Anza, will serve as Chair of Negotiations for the remainder of our Agreement, which is set to expire October 31, 2017. She has served on the negotiations team for the past two years and has a firm understanding of the issues facing ACE and FHDA. We are grateful for her service and willingness to step into this critical role.


Classification Study Update

The contract with Koff & Associates, consultants for the classification study, was approved at the November 2016 FHDA Board of Trustees meeting.  We have tentatively scheduled ACE member orientation meetings for Tues. Jan. 24 at De Anza and Wed., Jan. 25 at Foothill. Several sessions will be provided throughout these days to give you ample opportunity to attend. One session will be live-streamed and archived on our YouTube channel for those who can’t attend. You will receive a formal invitation to these meetings as soon we as secure the dates from the consultant. Look for it in your email.

As a reminder, the goal of this study is to align job descriptions with the current roles and responsibilities of classified employees, develop career ladders where appropriate, and conduct a market analysis of compensation in similar or like jobs in other districts.

As part of our negotiated agreement, Koff and Associates will work in collaboration with the Joint Labor Management Classification Committee (JLMCC) to implement this study.  The JLMCC includes:

ACE
Bradley Booth, ACE Attorney
Chris White, ACE President
Cathleen Monsell, ACE Chair of Negotiations
Anthony Booth, Labor Consultant (non-voting)
Shawna Santiago, ACE Recorder (non-voting)

Management
Marietta Harris, Director of Human Resources
Kevin Harral, Director of Financial Aid, FH
Lisa Mandy, Director of Financial Aid, DA
Myisha Washington, Manager, Compensation, Classification, and Employment Services (non-voting)


ACE Needs Your Voice
Two negotiators are needed to represent De Anza and Central Services.

Negotiating our collective agreement is the single most critical responsibility we have as a union and we can’t do it without you.  If you are creative, patient, fair, respectful, and willing to put the interests of ACE members above your own, you have the skills to be a negotiator.

The Details:

  • $100 a month paid stipend during active negotiations.
  • You must be a permanent, full-dues-paying member.
  • The time commitment is typically less than 2 hours every few weeks during active negotiations.
  • Release time is available and we will work with you and your supervisor to get this arranged.

Our strength at the bargaining table comes from a diverse representation of our membership.  Please consider adding your voice.

Contact Chris White, ACE President, for more information.


New Parental Leave Law

By Bradley Booth, Attorney
Law Offices of Bradley G. Booth

The Short Version

Effective January 1, 2017, Assembly Bill 2393 provides 12 weeks of paid parental leave for the birth, adoption or foster care of a child by an employee.  Accumulated sick leave must first be used to cover the leave. In the absence of accrued sick leave, the employee will be compensated under extended sick leave–Article 10.2 of the ACE Agreement–an amount that equals 66 2/3 percent of the worker’s basic monthly earnings.

The Long Version

Effective January 1, 2017, Assembly Bill 2393 provides for 12 weeks of parental leave for classified employees at community colleges. Parental leave is defined as the birth of a child of the employee, or the placement of a child with the employee in connection with the adoption or foster care of the child by the employee.

Parental Leave  

The parental leave will be full-paid leave as long as an employee has sick leave on the books. If the employee does not, then they would receive differential pay or extended sick leave, if eligible. The employee may use up to 12 weeks of accumulated sick leave to cover the leave so the employee may be paid for the entire period they are on parental leave. Any other use of any sick leave during the parental leave will be deducted from the 12 weeks. Therefore, if an employee has 20 weeks of accumulated sick leave upon the birth (adoption or foster care) of a child they may use 12 weeks of the 20 for parental leave, regardless of employee’s gender (in other words this isn’t exclusively for the mother but the father may also use parental leave). If, however, the employee used sick leave for being “sick” during the parental leave that time will be deducted from the parental leave.

If you only have 6 weeks (or any amount less than 12 weeks) of accumulated sick leave at the beginning of your parental leave, you will receive full pay for the accumulated six weeks. Once your accumulated sick leave runs out, you will receive differential pay in the amount outlined below.

Extended Sick Leave10.2 ACE Agreement
Each classified worker shall be entitled to extended sick leave for illness or injury at the end of all full-pay sick leave or at the end of 10 consecutive working days, whichever is later, and continuing for up to 130 working days from the first day of absence because of illness or injury. Extended sick leave shall be granted in increments of not less than one full day for each working day of absence due to illness or injury.

A classified worker on extended sick leave shall be entitled to extended-sick-leave pay as follows:

  • 10.2.1  For a full month’s absence, an amount that equals 66 2/3 percent of the worker’s “basic monthly earnings” on the date he/she was first absent, to a maximum payment of $6000 per month. “Basic monthly earnings” means 1/12th of the worker’s annual contract salary.
  • 10.2.2 For less than a full month’s absence, an amount that equals an appropriate fraction of the extended sick leave pay calculated under 10.2.1. The fraction shall be determined by dividing the number of days of absence during the partial month by 20.

Does Not Impact Collective Bargaining Contract

AB 2393 also states that nothing in the law shall be construed to diminish the obligation of a public school employer to comply with any collective bargaining agreement that provides greater parental leave rights to employees than the rights established under this statute.