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| Jeff Kaufman |
The “Problematic” Language is Not the Only Part of the
Agreement that is Problematic
LINK
Absent Teacher Reserve
Video
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.
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.