Betsy Combier Files a Freedom of Information Request to Obtain the Information Given Out At The NYC DOE February 24, 2015 Secret Meeting on 3020-a Hearings

On February 24, 2015, the New York City Department of Education held a mandatory meeting at Tweed for all arbitrators and all NYSUT and Department of Education attorneys who work on 3020-a cases in NYC.

New rules on how to proceed with 3020-a arbitration in NYC were discussed.
Among those rules, which have been told to me by 5 arbitrators, are:

1. speed up the cases by doing closing quickly the last day of testimony - do not allow any time for the Respondent to get the Respondent's transcripts.

2. No character witnesses

3. Only 10 minutes for a break off the record to create questions for a witness, not 20 as stated in the former agreement between the UFT and DOE.

4. allow no time after the last witness' testimony to make closing arguments, limit closing arguments to the specifications.


5. If a party wants to go off the record, the reason and time off the record must be stated on the record.

There are many violations of arbitration, law, and policy in New York City's 3020-a which harm Respondents if you do not know where the hidden obstacles are. I dont say this to urge charged employees to settle, I am posting my comments to show you what a secret minefield has been created that anyone can overcome, if the right defense is presented. No arbitrator wants his or her name in a lawsuit or in a newspaper or blog, and I never write about any person while they are going through a 3020-a. After the hearing, as a reporter, if there has been any wrong-doing or any violation of protected rights, I will post here.

One of my goals is to expose all the prejudicial and illegal policies which diminish and harm tenured DOE employees who are brought to 3020-a either for misconduct or incompetency.

I asked a lawyer that works with me on 3020-a to send the hosts of this meeting, Adam Ross, lawyer for the UFT, Claude Hersh (NYSUT NYC) and General Counsel Courtenaye Jackson-Chase, an email, asking to be invited as a private attorney who works on 3020-a. We were going to invite all private attorneys. Here is Claude Hersh's response::

From: Claude Hersh [mailto:chersh@nysutmail.org]

Sent: Tuesday, February 17, 2015 1:32 PM
To: 
Subject: Re: Meeting February 24th

Mr.

Adam Ross, the General Counsel of the UFT, and Courtenaye Jackson-Chase, the General Counsel of the DOE, are responsible for organizing the meeting.  They are aware of your request.

Claude I. Hersh

Thank you,

CLAUDE I. HERSH

Assistant General Counsel

New York State United Teachers

52 Broadway, 9th Floor

New York, New York 10004

212-533-6300

Fax: 212-228-9253

chersh@nysutmail.org

Here is Courtenaye's response:

From: Jackson-Chase Courtenaye [mailto: CJackson-Chase@schools.nyc.gov]

Sent: Wednesday, February 18, 2015 10:37 AM
To:  Lamont Naeemah; Brantley Laura; DaCosta Dennis; chersh@nysutmail.org; Adam Ross
Subject: RE: Meeting February 24th

Good morning ,

Unfortunately we have limited space for the meeting on the 24^th, but we will hold a briefing for private attorneys in the near future.

Thank you for writing,

Courtenaye Jackson-Chase

We never heard from her again, despite a follow-up email. So I filed a Freedom of Information request:

Betsy Combier, Editor / Reporter 

NYC RUBBER ROOM REPORTER

212-794-8902
                                                        betsy.combier@gmail.com                                                                                                                                                                                                                                         March 17, 2015

 Mr. Joseph A. Baranello

Central Records Access Officer

Office of the General Counsel
New York City Department of Education
52 Chambers Street
New York, NY 10007

JBaranello3@schools.nyc.gov
FOIL@schools.nyc.gov

Dear Mr. Baranello:

Under the provisions of the New York Freedom of Information Law, Article 6 of the Public Officers Law, I hereby request to receive E-mail copies of:

1) any and all documents, letters, emails, agendas, videos, tapes, or any communications relating to invitations to the plenary meeting at Tweed on February 24, 2015 at 4:00PM.

2) All invitees to the February 24, 2015 meeting.

3)  All agendas, speakers and hosts of the February 24th 2015 4PM meeting at Tweed.

4) any and all written or recorded discussions, emails, notes, and correspondence with any participant at the meeting to/from any other participant who attended this 4PM meeting or attended another meeting either before or after the 4PM meeting.

5) any and all policy statements, directives, procedures or other information given out to any and all attending the meeting(s) at Tweed concerning this feb. 24th meeting.

If the records have been removed from their original locations, please cause a diligent search to be conducted of all appropriate file rooms and storage facilities.

If any record has been redacted, please identify which categories of information have been redacted, and cite the relevant statutory exemption(s).

If you have any questions relating to the specific record(s) or portion(s) being sought, please phone me at 212-794-8902 so that we may discuss them.

RELEVANT ADVISORY OPINIONS

www.dos.state.ny.us/coog/ftext/f13952.htm

www.dos.state.ny.us/coog/ftext/f14287.htm 

RELEVANT LOCAL LAW

As you know, the Freedom of Information Law requires that an agency respond to a request within five business days of receipt of a request.  Therefore, I would appreciate a response as soon as possible and look forward to hearing from you shortly.  If for any reason any portion of my request is denied, please inform me of the reasons for the denial in writing and provide the name and address of the person or body to whom an appeal should be directed.

                                                                   Sincerely,


                                                                   Betsy Combier

David never received any further information. But I received the acknowledgement below of my FOIL request from:

Alba Miosotis <MAlba6@schools.nyc.gov>	Mar 25 (6 days ago)
to me, Baranello, Beaufils

Ms. Combier,

Attached please find a letter concerning above-referenced FOIL request.

Mio Alba

NYC Department of Education

52 Chambers Street,

New York, N.Y. 10007

 and signed by the Records Access Officer, Joseph Baranello.

$29.95/hour is the lowest salary at Tweed? To download emails and redact?


Joseph Baranello is the very same person who sent angry emails out to his boss, Courtenaye Jackson-Chase, when I posted his facebook page and his improper, disrespectful comments about Santacon (see here as well) and the Jewish celebration of sukkot. So sad, that the FOIL office has to belittle people and is protected by the massive business known as the Department of Education. Joe should be reported to the NYC Bar.




Stay tuned.



Joseph Baranello

Right To Work Gains Momentum

Right-wing legislators and pressure groups like the American Legislative Exchange Council continue their push to expand “right to work” across the country. Despite protests,
Wisconsin became the 25th state with such a law.

Right-to-Work Threats, State by State

March 25, 2015 / Dan DiMaggio

LINK

Right-wing legislators and pressure groups like the American Legislative Exchange Council continue their push to expand “right to work” across the country, though it appears Wisconsin will be the only state to enact it in 2015.

Such laws allow private sector workers represented by unions to dodge paying their fair share of dues. Wisconsin becomes the 25th state with such a law; the previous two were Indiana and Michigan, both in 2012.

According to the National Conference of State Legislatures, related bills were introduced in 20 states last year. Visit their database to track the progress of this year’s legislation. Here’s the status of some of 2015’s crop:

The Missouri House approved a right-to-work bill, and a different version is scheduled for Senate debate, but Democratic Governor Jay Nixon has said he will refuse to sign any such law.

A right-to-work bill was approved by New Hampshire’s House March 11, but the Senate deadlocked. Right-to-work legislation previously made it through both chambers in 2011, but then-Governor John Lynch vetoed it.

On March 10 the New Mexico Senate Public Affairs Committee voted 5-3 to table a right-to-work bill. It had passed the Republican-controlled House 37-30.

In West Virginia, thousands of union activists rallied outside the capitol March 7. Right to work stalled out this session, but leaders in the Republican-controlled legislature have already arranged a study on its economic effects, to be used in next year’s push.

LOCAL VERSION

In some states where right-to-work proponents have been frustrated by legislators or governors, efforts have shifted to the local level.

Warren County, Kentucky, in December became the first U.S. county to pass right to work. Eleven other Kentucky counties quickly followed suit. Unions have sued to overturn the measures, arguing that federal labor law only allows right to work at the state level.

Illinois Governor Bruce Rauner has proposed legislation to allow voter referendums on county or municipal right to work—with the aim of staving off Kentucky-style legal challenges. Illinois’s attorney general says Rauner’s idea is illegal.

These efforts follow last year’s failed proposal by Maine Governor Paul LePage to set up “Open for Business” zones, where a right-to-work policy would have applied to any large company that promised to invest $50 million and create 1,500 jobs in the state.

PUBLIC SECTOR

Rauner is trying to bring right to work to Illinois’s public sector, but the comptroller has refused to implement his executive order, citing the attorney general’s opinion that it would be illegal. Unions have sued to block it.

In March a Kansas Senate committee passed bills to ban dues deduction from the paychecks of state, municipal, and school district workers, and to limit public sector bargaining to wages. One would also eliminate the state’s public employee relations board. Both bills are pending before the full legislature.

Right-wing legislators in the Oklahoma Senate have introduced similar legislation prohibiting paycheck deductions.

Fighting right to work in your area? Send dispatches to dan@labornotes.org.

Just Cause and Disparate Treatment

THE JUST CAUSE STANDARD is incompatible with favoritism or discrimination. Employers must treat employees who engage in the same type of misconduct alike.

An employer commits “disparate treatment” if, without a justifiable basis, it imposes a markedly harsher penalty on one employee than on another who violated the same or a highly similar policy or rule. Disparate treatment violates just cause whether it stems from favoritism; personal hostility; racial, ethnic, gender, religious, or anti-union bias; inadvertence; sympathy; or mistake. The union does not need to prove the reason (and usually should not attempt to do so). The proper remedy is to reduce the grievant’s sanction to the lowest level imposed on others.

The following cases illustrate disparate treatment:

• A trucking company suspended a driver for thirty days for speeding. A year earlier, it suspended another driver for one day for the same infraction.

• A government agency fired a worker who reported to work under the influence. On previous occasions, it allowed employees to work despite clear signs of inebriation.

• A supervisor saw a worker driving a forklift backwards and charged her with a safety violation. On an earlier occasion, he simply told a worker to turn the lift around. 

MAKING THE CASE

A union seeking to make a disparate treatment defense must identify at least one other employee (called a “comparable”) who violated the same or a very similar rule as the grievant but was given a substantially lesser penalty. It must also show that the comparable’s infraction was as serious as that of the grievant and that the comparable’s record was not appreciably stronger. In most cases, the union will need information from the comparable’s personnel file.

If the union knows the names of workers who received lighter penalties, it should request copies of their personnel files. Otherwise, it should submit the following written information request:

Please furnish the union with a list of each employee and former employee who, within the past five years, was charged with __________. For each such employee please provide a copy of the notice of discipline and a copy of the employee’s personnel file.

Grievance tip: The personnel files of employees who received the same penalty as the grievant can also be a goldmine. For example, the employer may have fired Worker A for a second or third offense while discharging the grievant after a single infraction.

How far back can the union go? No fixed rule limits how far back a union can go to prove disparate treatment. Many arbitrators accept cases as old as five to seven years. Some go back even further. Cases more than ten years old are likely to be rejected, especially if new management has taken charge.

Note: Arbitrators sometimes excuse past leniency if societal views on an offense have hardened. Examples include sexual harassment, safety, drug use, and violence. Penalties imposed before the union negotiated its first contract may also be rejected.

How many needed? A single comparable, especially if recent, can establish disparate treatment. The union does not have to prove a “past practice.” An exception may apply to an attendance case in a large enterprise; because employees can fall through the cracks, an arbitrator may insist on more than one case of unequal treatment.

Grievance tip: Stewards should make entries in their notebooks or on their computers whenever they learn of an employee who openly violates a company policy without being penalized. Such incidents can be invaluable when defending other employees.

Settlements. A comparable employee may have received a lesser penalty due to a grievance settlement or a “last-chance agreement.” Review the agreement. If it states that it is “without prejudice” or is “non-precedential,” an arbitrator is likely to reject it as evidence of disparate treatment.

Supervisors. If comparables cannot be found within the bargaining unit, the union should consider nonunit personnel such as supervisors, office staff, and engineers. When a rule applies to all employees in a facility—a ban on fighting, for example—the equal treatment rule applies. An employer may not impose a substantially harsher penalty on a bargaining unit member than it imposed on a nonmember who committed the same offense.

Note: Under U.S. labor law, a union has a right to examine the personnel file of a supervisor or other non-unit employee if it has a factual basis for believing that the person engaged in similar misconduct as the grievant and if the rule in question applies to all employees.

Grievance tip: Stewards should make dated notebook entries whenever they observe a supervisor violating a rule or policy. 

VALID DISTINCTIONS

An employer can defeat a disparate treatment claim if it has a valid basis for imposing a harsher penalty on the grievant. For instance, in comparison with prior offenders, the grievant may have:

• A more egregious disciplinary record 
• Considerably less service time 
• Committed a more severe or dangerous infraction 
• Acted intentionally 
• Been warned recently for committing a similar violation 
• Fewer mitigating or extenuating circumstances 
• Refused to accept responsibility 
• Threatened witnesses 
• Been uncooperative during the investigation

Example: A worker was fired for smoking in the plant. Although the company only gave written warnings to previous offenders, an arbitrator rejected the union’s claim of disparate treatment because the grievant, unlike the others, smoked in an area where items were flammable.

Not every distinction between employees justifies a harsher penalty. Among the excuses arbitrators often reject are the following: 
• The supervisor who punished the grievant has a more demanding disciplinary philosophy than other supervisors. 
• The grievant is a union steward or officer. 
• The penalty given the comparable was a mistake.

Example: While differences in service time or past discipline can justify differences in penalties, wide disparities, for example, between a warning and a discharge, are frequently regarded as violations of the equal treatment principle. 

QUESTIONS AND ANSWERS

Cross-unit comparison

Q. A worker was fired for taking home scrap. Can we cite a member of another union in the facility who was only suspended for five days for a similar offense?

A. Yes. Employees who are subject to the same or similar rules should be issued the same or similar penalties, regardless of bargaining unit.

One vs. many

Q. Over the past five years, six employees were charged with failing to lock out their machines during repairs. The company fired five but gave one a 30-day suspension. Yesterday, another worker was fired for the offense. Can we argue disparate treatment?

A. Yes. The fact that most offenders were fired is beside the point. The significant fact is that the employer gave special treatment to a similarly-situated employee.

Post-discipline comparable

Q. We filed a grievance for an employee who was fired for refusing an order. A month before arbitration, the company issued a written warning to a worker for a similar transgression. Can we cite the warning as evidence of disparate treatment?

A. Yes. Most arbitrators say disparate treatment can be proven by subsequent events.

Negligence is negligence

Q. Employee M was fired after backing his truck into a loading dock and causing $8,000 in damages. Two years ago, the company suspended employee T for a similar accident with damages of $500. Can we claim disparate treatment?

A. Yes. When negligent acts have the same potential for causing harm, arbitrators often insist that employers apply similar penalties, even if the actual damages are significantly different.

Similar highs

Q. The company fired a worker who tested positive for marijuana. A year ago an employee who came to work drunk was suspended for two weeks. Disparate treatment?

A. Yes. Treating employees who commit drug offenses more harshly than employees who commit alcohol offenses violates the equal treatment principle.

<>Holding steward to higher responsibilities

Q. A steward was suspended for loafing, a heavier penalty than is usually applied for this offense. During the second-step grievance meeting, the general manager said that the penalty was justified because “stewards are supposed to set an example.” Does this give us a case?

A. Yes. Other than illegal strikes and refusals to obey, an employee’s status as a steward does not justify enhanced punishment. <p

Failure to investigate others</p

Q. Company policy requires employees to be drug-tested if they have an accident that causes lost time or a need for medical care. A worker who went home after a fall was tested and fired for cocaine. Can we argue disparate treatment because two other employees and a supervisor who incurred lost-time injuries were not tested?

A. Yes. As one arbitrator explained: “Disparate treatment arises when the grievant has been treated unequally with respect to notice, application of a rule, investigation, proof, or penalty.” Investigating the grievant but not the other employees violates the equal treatment principle.

Reset

Q. After we won an arbitration case by pointing out that employees who violated the company’s “zero-tolerance” fighting policy have not always been fired, the company posted a notice that in the future it would discharge all offenders. Does this preempt future disparate treatment claims?

A. Possibly. Although the logic is not apparent, many arbitrators overlook past favoritism if an employer makes a public announcement that a penalty will be applied in all future cases.

Possible repercussion

Q. If we cite an employee who received a lenient penalty for the same offense, could management increase the penalty to make it consistent?

A. No. As explained in Chapter 3, the double jeopardy rule prevents an employer from increasing a previously assessed penalty.

This is a sample chapter from Just Cause: A Union Guide to Winning Discipline Cases by Robert M. Schwartz. 
You can order Just Cause by downloading an order form or by going to our online store.