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Saturday, February 25, 2012

Unconscionability And The UFT Contract

by Betsy Combier, Editor,

It is a fact that anyone who has gone through 3020-a arbitration - or even a grievance - can see the procedure is not fair or neutral. The CBA, collective bargaining agreement, between the UFT and the NYC Department of Education, has whittled away at the rights of tenured teachers until currently there are few rights available any more to anyone.

Some people say this reduction in substantive and procedural due process rights is deliberate "bad faith", others say this act is negligence and not unconscionable.

Whichever motive you want to give the UFT President who is the collective bargaining agent at the CBA negotiations, the fact remains that there is no fair and/or equitable forum for members at this time to object to anything. Indeed, UFT Representatives tell members all the time "We are not going to grieve this, you have no right to grieve this, you can't grieve this, you better resign because you will never win your 3020-a, etc". Reps also dont want you to exercise the single most important right that you still have, namely to have an open and public arbitration hearing. NYSUT Attorneys and the UFT representatives in fact tell their members and clients going into 3020-a, that he or she cannot have an open and public hearing,  if the member knows to ask for it. NYSUT Attorneys do not bring up the clause in the UFT contract that specifically gives members the right to have an open and public hearing, and do not mention it as an option. I have written about open and public hearings before, but here is the bottom line: if you have a hearing, and the door into the hearing is closed to anyone you who you might want to be there to observe the process, then the bad guys can do whatever they want to you, and no one will see this. What do cockroaches do when you turn on a light? They run for somewhere to hide. Same thing.

All of the information in the public domain now points to the coordinated effort by the officers, personnel and Attorneys of the UFT, NYSUT and New York City Department of Education to remove, by any means possible, tenured teachers and probationary teachers approaching tenure, from the public school system in New York City. This information is sometimes covered up by NYSUT taking a case to the Supreme Court, by Randi Weingarten making a telephone call for someone who needs to file a grievance or lawsuit, or by some other ineffective jab at looking like something is being done to help a member when indeed, nothing valuable or effective is done. The process is to get rid of the tenured "dead wood" in favor of the "acceptable" cadre of people, those individuals who drink the education policy kool aid and do anything that Mayor Mike Bloomberg dictates.

California may be ahead of New york State in terms of stopping unfairness and rectifying the unbalance in the procedures used atarbitration.
Under California Civil Code § 1670.5(a):
If the court as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made the court may refuse to enforce the contract, or it may enforce the remainder of the contract without the unconscionable clause, or it may so limit the application of any unconscionable clause as to avoid any unconscionable result.Under this section, however, a court may, in its discretion, “refuse to enforce the contract as a whole if it is permeated
by the unconscionability.” Legislative Committee Comment on § 1670.5. 

"Unconscionability" in Black's Law Dictionary (6th edition) reads as follows:
A doctrine under which courts may deny enforcement of unfair or oppressive contracts because of procedural abuses arising out of the contract formation, or because of substantive abuses relating to terms of the contract, such as terms which violate reasonable expectations of parties or which involve gross disparities in price......Basic test of "unconscionability" of contract is whether under circumstances existing at the time of making of contract and in light of general commercial background and commercial needs of particular trades or case, clauses are so one-sided as to oppress or unfairly surprise party. Division of Triple T Service, Inc. v Mobil Oil Corp., 60 Misc.2d 720, 304 N.Y.S.2d 191, 201. Unconscionabilitry is generally recognized to include an absence of meaningful choice on the part of one of the parties, to a contract together with contract terms which are unreasonably favorable to the other party. Gordon v Crown Central Petroleum Corp., D.C.Ga., 423 F Supp. 58, 61.

When a UFT member is charged with 3020-a, his or her reliance on the UFT, and then NYSUT, to preserve and pursue the due process rights that he or she is supposed to have, is misplaced. So sad that so many members have had to become garbage. NYC's education activists need to remove the NYC Panel For Educational Policy, (PEP) - the fake school board - and we need to have an independent School Board whose members are elected by NYC voters, i.e., all people registered to vote in New York City (not merely parent association officers or "selectors"). All current members of the PEP should resign and/or be sued for fraud,  ten years of wasted human capital in their backs.


Anonymous said...

So, rather than complain what can we do? For those of us who think they are going to be charged should we go with private counsel in an open hearing? Maybe post a list of the lawyers you recommend.
I understand that some of the arbitrators are not even lawyers. Therefore, you should be able to function as an advocate. Why don't you? Please explain why you prefer to just watch the process fall apart.

Anonymous said...

Seems to me that something that needs to be considered is to refuse to participate in the process, get fired and then have the court find the agreement unconscionable. It seems to me that if you stay and fight in the 3020, they are going to use your arguments to say you had your day in court. They will also state that you had a lawyer and the arbitrators decision-which will be well written will be used to counter your positions. Teachers will have to be brave to do this. If enough of stand together and do this at one time, maybe it will work. They probably will not fire us all at once and if they do that would give us more leverage in court. Can you help organize this? Am I completely crazy? What do you think? I see no purpose of going to a TPU case where you know what the outcome will be with 3 end of year U ratings and a PIP Plus failure.

Betsy said...

Dear Anonymous,
First, I do not know of any arbitrator who is not an Attorney on the NYC UFT/DOE 3020-a panel. If you heard this, you are mistaken, I believe. Secondly, I do function as an advocate at some of the hearings if the Respondent UFT member wants me to be. I think that your final comment is bizarre, that I "prefer" to watch the process fall apart....obviously this is your first visit to this blog. I'm the one that "they" all hate, and my articles on Victor Muallem, Theresa Europe, Aeri Pang, are just some of the stories that I have to tell about how I cant even walk down the long hallway on the 6th floor of 51 Chambers Street to go to the bathroom without someone who works for ms. Europe or Dennis Da Costa says something derogatory. I enjoy the abuse, because I never return it. A little over a week ago Ms. Sylvia Cheeks, the room assignment person for the DOE, told the receptionist that she should not tell me what room the hearing I was attending that day (as the paralegal) was in,absolutely not, under no circumstances. So much effort put into keeping my eyes and those of anyone else on the hearing process must mean that "they" - the Gotcha Squad - have something to hide. My 2 cents.

Anonymous said...

Arbitrator Steven Bluth is not an attorney and used to work for NYSUT
There are probably others. Many arbitrators outside NYC are not attorneys and there is no requirement that an arbitrator be an attorney.
With respect, because the Gotcha Squad hates you is besides the point. The question is what can we do about this. Do you represent teachers yourself as a paralegal? If not, then why not? I fail to understand why you would prefer to watch hearings for 7 years and have to put up the the NYSUT/UFT bull when you can handle this yourself?? If an arbitrator does not have to be a lawyer, why would an advocate at an arbitration?

Betsy said...

Dear Anonymous -

Thanks for the correction! I did not know that Mr. Bluth was not an Attorney.

I absolutely can do 3020-a arbitration hearings, I spoke with Theresa Europe about it, and Theresa's former boss...but I dont want my representation of members to be an issue in a case, for example the DOE calls me a "criminal" (Attorney Adam Smiley) in order to divert an arbitrator from accepting me as the advocate. My assistance at hearings, Ive been told by several arbitrators, is well-respected and valuable, and when they see me being attacked, it validates my input - which most often takes the form of printing out relevant parts of the UFT contract to support the Respondent's defense. I do not fall into the trap of doubting what the hearings are supposed to do, and that is terminate the Respondent, and all parties in support of the Respondent should work on that issue and that issue alone. NYSUT Attorneys tell their clients never to speak with me, (Mitch, Melinda, why not stop?) and on May 25 2011 NYSUT Attorney Sean Kelly screamed outside of 51 Chambers Street (fire drill inside the building) that I was a criminal. Claude Hersh told me that this was protected by the Attorney-Client privilege when I asked Saen and Claude to explain. They will be in my book.

Anonymous said...

Sorry Betsy, but I still do not understand. You say that all the institutional players do not respect you, yet you continue to support the teachers-as you should. So, why would it be different if you appear as an advocate? You would still be in the same room supporting the same teacher.
Seems to me that you would eventually garner a lot more respect if you did the hearings yourself. Maybe you can also make some good precedent for us as well.
As for arbitrators respecting you, come on. They are appointed by the UFT/DOE! Several (Bluth, Hydee)-maybe more- are former NYSUT or DOE tools. I heard that another worked for NYC Office of Labor Relations bargaining AGAINST teachers. Lets get with the program. I think your blog does good work in exposing this, but your not doing enough to explain the real injustices.

Anonymous said...

Is what 10:47 am says true? We have former NYSUT, DOE and NYC negotiators as arbitrators and some are not even lawyers! How can this system exist in America, let alone in NYC where we are suppose to have a strong union and tenure-yeah right!
How come you do not blog about this? How many people actually read these comments-not many I am afraid.
Also, you did not really answer 10:47 comment about you representing teachers. It is one thing to talk (blog) critically about the system and it is quite another to try to change it. I am sure that many teachers would pay you something-particularly if you charge less than private lawyers. Please do a story on this so others do not miss out.
Thank you.