Unconscionability And The UFT Contract

by Betsy Combier, Editor, Parentadvocates.org
LINK

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.