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Friday, May 9, 2014

Jeff Kaufman on The New UFT Agreement: There Are Problems

Jeff Kaufman

The “Problematic” Language is Not the Only Part of the Agreement that is Problematic
Absent Teacher Reserve
In order to fully understand the insidious nature of the proposed contract’s ATR provisions it is necessary to break down the language.
1.    Definition.  An ATR is anyone in excess after the first day of school
who is not a para or OT/PT.
2.    Severance. A severance program is established in which an ATR can collect from 1 week of pay for 3 to 4 years of service up to 10 weeks of pay for ATRs with more than 20 years’ service. ATRs are only eligible for this program during a narrow 30 day window between 30 and 60 days of ratification of the contract.
Problematic:  If, as Mulgrew stated at the DA, the contract is approved by the first week of June this entire window will be in the summer.
3.    Interviews. Each year from September 15 through October 15 the DOE will make an effort to schedule interviews for ATRs with principals in their district/borough and license areas. After October 15 the ATRs may be sent to interviews. “An ATR that declines or fails to report to an interview, upon written request of it, two or more times without good cause shall be treated as having voluntarily resigned his/her employment.”
Problematic:  This provision is unprecedented. There is no limit placed on the number of interviews or the length of time that the 2 failures to report must be committed. Additionally since the language is “declines or fails” the DOE need only document two missed interviews and the burden shifts to the teacher to convince an arbitrator (while receiving no pay since the teacher has been determined to have voluntarily resigned) that she had “good cause” for not showing up. There is no provision for “expedited arbitrations” and it appears the challenge to the DOE action of forcible resignation must go through the grievance procedure. If a teacher misses the first interview how will the DOE determine if it was with or without good cause. Glaringly omitted is any procedure for this determination. Under the provisions of our current contract a teacher may be brought up on 3020-a charges for an allegation of two missed interviews without good cause. Assuming the DOE would even try to dismiss a teacher for failure to attend an interview there is not an arbitrator on our panel that would even consider dismissal for the most egregious violation. Rather the UFT has joined with the DOE to effectively terminate a tenured teacher’s employment without the protections of 3020-a. The resulting grievance would not be decided using 3020-a or its history of protections. While Mulgrew might say “so be it” as he stated at the recent DA he and anyone who votes for this contract is basically saying you will not be protected.
This same provision applies to an ATR assignment only under the proposed contract you have only one chance to fail to appear for the assignment within 2 days or you will be considered to have voluntarily resigned. Again, the only way, under the language of the proposed contract to challenge the DOE’s determination that a teacher has failed, without good cause, to have appeared within 2 days is by way of the grievance procedure where the burden is on the teacher to prove good cause to sustain the grievance.
4.    Assignment of ATRs. Two classes of ATRs are created under the contract proposal. One class, those ATRs who have a disciplinary history where by a finding or stipulation resulted in a suspension of 30 days or more or a fine of $2,000 or more and those who do not have such disciplinary history. Those with the discipline history are not required to be assigned to a temporary position (in other words left to the weekly humiliation of traveling as a sub from school to school).
Problematic:  While the anti-teacher animus of creating this distinction is patently obvious it is clearly a disciplinary distinction which causes those ATRs with a disciplinary history to be further disciplined without any cause. The stigma of a past disciplinary record (teachers settle cases for a variety of reasons having nothing to do with guilt or innocence) carries forward. There is no time limit for the disciplinary history. Civil Service Law prevents allegations (except criminal ones) over 3 years to be used as the basis of discipline in a termination hearing yet a case settled or found more than 3 years ago can put you in this class. This sends a message to the arbitrators that you are to be treated differently should you have a history.
It is no secret that many arbitrations end in some level of finding even where teachers are have been found to be innocent of the major charge. Arbitrators are political beings and are sensitive to these distinctions.
5.    Principal removal of ATR after assignment. Under the proposed contract a principal (not the teacher) has the complete discretion to return a teacher to the ATR pool. If the return is based on “problematic behavior,” defined as “behavior that is inconsistent with the expectations established for professionals working in school.” An ATR accused in two writings within two years of this “problematic behavior” may be accused of a “pattern of problematic behavior” which can become the basis of an “expedited 3020-a hearing” in which a hearing must be completed in one day (half day to each side) within 20 days that the teacher requests a hearing. The decision must be made within 15 days of the hearing date.

Problematic:  Under our present contract there is a provision for time and attendance expedited hearings under 3020-a. These expedited hearings may not result in termination and while they were problematic on their own the issues involved (as far as the charges were concerned) were clear; you were either at work or not. The explanations were generally unconvincing to Marty Scheinman (an arbitrator selected by the UFT for these expedited hearing) but as long as teachers knew they weren’t going to be terminated they reluctantly accepted either the agreement or decision.

The proposed contract goes over broad. What is considered problematic is itself problematic. After I researched the term problematic behavior in the case law I found references to special education students who brought IDEA cases against the DOE for failing to provide needed services. These students’ behavior was termed problematic. For a teacher I could find no case involving problematic behavior so the arbitrators are left to discern this provision without our rich history of 3020-a hearings as precedent or guidance.

While the burden still rests on the DOE (it is, after all a 3020-a hearing) the expedited nature of the proceeding might and probably hurt an accused teacher. There are no time limits for the DOE to provide charges or serve the written statements of problematic behavior. Under the language of the proposal there is no clear right to grieve the first (or second, for that matter) written notice of problematic behavior. Clearly, by definition, ATRs will have no relationship with the school they have been determined to be problematic yet they (and their representatives) will be put on a crash course to prepare for the hearing which might end in the ATRs termination. While Mulgrew cited the phrase “justice delayed is justice denied” as an argument for the diminution of our 3020-a rights the fact is there is no justice in ramming through a hearing that the accused has no time or ability to defend. This is class Star Chamber procedure.

The acceptance of this procedure as a perceived benefit signals our union’s position in future contracts where it appears all teachers will “enjoy” the benefit of expedited and ill-defined termination proceedings.

This proposal is anathema to the good order of the teaching profession and must be completely understood before it is blindly accepted.

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