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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.

Absent Teacher Reserve and Vacancies Agreement, November 2008

Memorandum of Agreement entered into this _______day of November, 2008 by and between the New York City Board of Education (hereinafter "DOE") and the United Federation of Teachers, Local 2, AFT, AFL-CIO (hereinafter the Union).

All terms and conditions of the current collective bargaining agreements between the parties remain in full force and effect. This side agreement assists in using talent and resources more effectively:
  1. In recognition of the realities of the evolving budget situation and a pool of available qualified, experienced teachers, the Chancellor will convey to principals that though they continue to have final say over teacher hiring decisions it is his clear preference that the Absent Teacher Reserve (ATR) pool be used as the first option in filling new and existing vacancies. Towards that end, the Chancellor will send a letter to principals strongly urging them to consider and interview members of the ATR pool to fill vacancies before considering other candidates, explaining the significant financial incentives created herein for them to do so, and underscoring that, as the city confronts the current fiscal crisis, responsible management principles require a commitment to actively and in good faith pursue hiring ATRs prior to filling open positions.
  2. The DOE will also send principals lists of ATRS and their license areas and district/superintendency.
  3. "ATR" refers to all UFT-represented titles.
  4. When a centrally-funded ATR is hired to fill a regular position in a school (other than the school from which the ATR was excessed), on or after November 1st of the calendar year in which they were excessed, central DOE will pay the difference between the actual salary of the teacher and a starting teacher salary, and then, in subsequent years, will continue to pay the difference between the actual salary and the subsequent steps on the salary scale (for example, in year 2, the difference between actual salary and step 2A on the salary scale). This subsidy will terminate once the excessed employee has been in the position 8 years.
  5. Until November 15, 2010 a school that hires a centrally-funded ATR to fill a regular position (other than a school from which the ATR was excessed) on or after November 1st of the calendar year in which they were excessed, in addition to being charged in accordance with ¶ 4 above, central DOE will credit the hiring school's budget one-half of the starting teacher salary that would otherwise be paid by the school under ¶4 above.
  6. After November 1, principals can offer to hire centrally-funded ATRs for the balance of the school year on a provisional basis whereby ATRs accepting this offer can be excessed, regardless of seniority, at the end of the school year in which they are hired, or can opt to be placed in excess again at that time. If the ATR is not excessed again at the end of the school year, and does not opt to be placed in excess at that time, the ATR will become a regularly-appointed pedagogue at the school. The subsidies provided for in ¶ 4 & ¶ 5 above will not apply to ATRs hired provisionally pursuant to this paragraph, but will apply should such an ATR become a regularly-appointed pedagogue at the school.
  7. There will be a city-wide posting consisting of all schools that have a high enough rate of absences to benefit from a full-time ATR and that do not have an ATR already assigned, or have enough students to warrant one or more additional ATR's. With principal approval of adding one or more ATRs, centrally-funded ATR's may apply to transfer into the district/superintendency and be placed in the selected school as an ATR up to a limit of one (1) ATR per 500 students, with city-wide seniority determining priority among multiple applicants.
  8. Excessed pedagogues will not be separated from other job applicants at job fairs, though they will be given the option to decline to attend briefing sessions for new teachers.
  9. ATR's will be used for classroom assignments, e.g. push-in, pull-out, intervention, remediation, to cover day-to-day and long-term teacher absences, to reduce class size, and other assignments within the teacher job description.
  10. DOE will make its best efforts to modify its systems so that, by school year 2009-2010, applicants for specific vacancies in the open market or the excess hiring system will be notified when their application is received, if they are hired and if the position has been filled with another applicant.
  11. It is the mutual objective of the DOE and UFT in reaching this side agreement to reduce the size of the excess pool by 1) eliminating any financial disincentives to fill open positions out of the ATR pool; 2) creating a financial incentive for the school to hire out of the ATR pool; and 3) improving processes and procedures that will facilitate the hiring process for ATRs. The UFT and the DOE will review the results of this side agreement after it has been in operation for one year and, on that basis, will work collaboratively to determine if it is necessary to find additional solutions aimed to reduce the size of the ATR pool in a manner that serves the best interests of the students of New York City public schools and reflects the need to address the fiscal challenges we face together.
  12. This agreement will expire on December 1, 2010 although paragraphs 4, 5 & 6 will continue to apply to hiring done on or prior to that date, according to the specific terms set forth above.
  13. The UFT will hold its arbitration (case number A-079-C16257) in abeyance to allow this agreement time to go into effect.
Agreed to this ______ of November, 2008.
For the Board of Education For the United Federation of Teachers

12 Employees at Biondi Schools Receive Backpay and Offers of Reinstatement

Twelve laid off employees at Biondi Schools in the Bronx and in Yonkers to receive backpay and offers of reinstatement
Twelve employees at the Biondi Elementary School in the Bronx, NY and at the Biondi Middle and High School in Yonkers, NY, who were laid off during bargaining for an initial collective-bargaining agreement, have received backpay and immediate offers of reinstatement as part of a settlement agreement reached on April 14, 2014.  
The employees were laid off by Leake and Watts Services (the Employer), a non-profit agency in New York that provides special education at the Biondi Schools, among other places.  On March 28, 2014, the National Labor Relations Board directed NLRB Region 2 –Manhattan  to seek an order in Federal court requiring the Employer to reinstate the laid off employees, to rescind unilateral changes that had been made to the employees’ health insurance, to provide requested information to the Union, and to bargain in good faith with the Union.  This temporary injunctive relief was sought to protect the right of the employees to have their chosen bargaining representative, Workers Essential at Leake and Watts, New York State United Teachers, AFT (the Union), to advocate on their behalf in collective bargaining and to prevent erosion of support for the Union due to the Employer’s alleged unlawful activities.  
On April 14, 2014, before the petition for injunctive relief was filed in Federal court, Administrative Law Judge Lauren Esposito approved a global settlement agreement.  While not admitting liability, the Employer agreed to offer reinstatement to the laid off employees,  to provide them with backpay, to pay out-of-pocket medical expenses incurred by bargaining unit employees as a result of the unilateral changes to the employees’ health insurance, and to bargain in good faith with the Union.  The Employer also agreed to post an e-mail a notice that addressed the alleged violations and advised employees of their rights under National Labor Relations Act.