Join the GOOGLE +Rubber Room Community

Friday, January 23, 2015

Martin Scheinman and The Retiree Retro Issue (November 2014)

Martin Scheinman

Arbitrator to help resolve retiree retro issue

A new arbitration decision has cleared a pathway for paying recent retirees the lump-sum retroactive payments they have been expecting.
One of the independent arbitrators who helped the UFT and the Department of Education reach a new collective-bargaining agreement last spring has offered his services to find a way to make up the $60 million shortfall in the settlement fund set up to make whole all UFT members who retired between Nov. 1, 2009, and June 30, 2014.
The arbitrator, Martin Scheinman, wrote in his Nov. 17 decision that he would determine how to cover the shortfall by adjusting the contract’s terms.
“Out of a multiyear package costing billions of dollars, such modification shall not be difficult and shall be relatively minor,” he wrote. “I also conclude such an approach would be reasonable, equitable and would serve the purpose for which the Settlement Fund was created.”
UFT President Michael Mulgrew said he was eager to work with the arbitrator to swiftly resolve the issue.
“An arbitrator has now said that our members should receive all the money they are entitled to,” he said. “We accept his offer to quickly work out the details. We appreciate working with the city getting this contract done and will now work out this detail to make sure everyone is made whole.”
During the contract ratification process, the UFT explained that all its retirees who were in service at the time covered by the contract would receive full retroactivity for the two 4 percent wage increases arising from the 2009–11 period. The union said that the retroactive monies would arrive in a one-time, lump-sum payment to those submitting retirement papers by June 30, 2014.
Scheinman said it was “readily discernible” from reading the Memorandum of Agreement that the goal shared by both sides was to make the retirees whole, but the $180 million set aside to pay the retroactive wages was not adequate to cover the number who opted to retire. According to the Teachers’ Retirement System, there was a 48 percent increase in retirements by UFT members employed by the DOE at the end of the 2013–14 school year compared to the end of the previous school year.
While he concluded that the city’s obligation to fund the retirees’ claims was capped at $180 million, Scheinman offered to find alternatives to make up the shortfall to avoid any reduction in payments.

Re-posted From 2013: Chapter Leaders and Freedom of Speech

Chapter Leaders and Freedom of Speech in NYC Public Schools
Link to US Supreme Court Decisions Involving the First Amendment

Policy and practice are out of sync and the United Federation of Teachers (UFT) is missing in action.That's why chapter leaders are being brought to mandatory arbitration under "Just Cause" for termination, and why this is all wrong. Many government officials look at speaking out as a matter of national security and against public policy.

In NYC, UFT Chapter Leaders are being charged and brought to 3020-a quickly, just like the teachers they are supposed to represent. As a result of this process very few people want to be Chapter Leaders. Mayor Mike Bloomberg built his 3-term mayoralty on getting the tenure laws changed or made so meaningless that no tenured teacher remains in the public school system, over which Bloomberg has total control.

So far, Mike Bloomberg has failed to be successful as the "education mayor". He is bothered, sources say, because he failed to make the changes to the teaching force that he wanted and tenure rights still exist.

Dennis Walcott
For the past several years, he has encouraged, through his puppet NYC DOE Chief Officer Dennis Walcott, the removal of Chapter Leaders (CL) from NYC public schools. Chapter Leaders get in the way. They want to stop the removal of a teacher for no reason; they will grieve something the principal does to a staff member, and sometimes they will win the grievance, which is not good. Any act or speech which makes the Department of Education or a member of the administration "look bad" is punished with charges and threatened with termination, because the machine works only when all systems face the same direction. The UFT is missing in action as the CL's rights are steadily and constantly ignored and denied.

1. The contentious situation between principals and Chapter Leaders

There is a current disconnect between policy and practice in NYC concerning the rights of chapter Leaders. According to the Chapter Leader Handbook, CLs are the collective voice of the union staff in the school. As the voice of the many, and elected to office, CLs who take their responsibilities seriously will speak on the members' behalf when necessary, and tell the principal what the staff is concerned about. bad move, although this is a duty of the CL.

Here is an excerpt from the UFT Chapter Leader Handbook:

Ways to keep your chapter informed –
1) Hold regular chapter meetings in your school or site. To bolster attendance,publicize the meeting date, time and location in advance and prepare an agenda that covers timely topics. Invite members to ask questions and raise issues, and then brainstorm how the chapter can tackle those issues. Report on your monthly consultation meeting with the principal and solicit suggestions about what needs to be on the agenda of the next one. Report on other UFT activities to your chapter and promote the union by explaining the actions and positions it takes and talking up union victories.
2) Publish a chapter newsletter. As chapter leader, you should publish a newsletter, whether printed or electronic, as frequently as your time allows and the situation requires. The weekly Chapter Leader Update is an excellent source of content for your newsletter (just cut and paste relevant parts), but always add your own school’s activities in the mix.
3) Use your school’s UFT bulletin board. Every school must have a bulletin board reserved in an accessible place for the UFT (see Article 19F of the UFT/DOE contract). Keep your bulletin board useful by posting up-to-date information about the union’s activities, including budget and other legislative fights, as well as important grievance and arbitration decisions and collective-bargaining updates. Post all UFT materials on the bulletin board as soon as you receive them. Invite members to get involved in union initiatives.
4) Face-to-face communication. Personally approach members who are directly affected by the issues. Make a point of introducing yourself to new members in your school and offer them your support.
Hold Monthly Consultation Meetings with the Principal – Improvements in your school are up to you, and your members. The principal must meet monthly with a UFT consultation committee to discuss matters of school policy and implementation of the contract. (Agree. Art. 19H) The UFT chapter should decide how it wishes the school procedures and routines to be changed and give guidance to the committee that meets with the principal. Minutes of these meetings should be made available to the chapter members preferably through the chapter newsletter or at chapter meetings.

Legislation and political action:
Political action, including legislative efforts, are vitally important to the welfare of our schools, our members and our union. Because education is a public function, publicly funded and regulated by the city and state and to a lesser extent the federal government, it’s crucial for union members to be politically involved. Rights that we have won at the bargaining table can be weakened or nullified by legislation. Legislative campaigns are a staple of our political work, and chapter leaders are important to their success. Every chapter should have a committee that is active in the union’s political work.

Organizing a legislative campaign
Elect or appoint a COPE/legislative representative for the chapter, along with a committee of
assistants so that there is one person to cover each floor, department or lunch period. That way your team can reach everybody to distribute information and materials, to collect back completed letters if you are doing a letter-writing campaign, and also to solicit COPE checkoff cards. Make sure to pass on information from the union dealing with legislation to the legislative representative and his/her committee.

Letter-writing campaigns
Be sure to follow UFT instructions in addressing letters to the chairperson of the committee considering a particular bill in each house, to legislators from each member’s home district, and to key people as directed by the UFT. Always identify bills by their bill numbers. Keep letters short, to the point and personal. Provide sample letters. AVOID FORM LETTERS.
Create a routine for writing letters. Devote one lunch period to it, or set up a legislative corner with stationery and directions in the faculty lounges and workrooms. Have all the completed letters mailed by the school legislative committee. Keep track of members who have participated in your letter-writing effort.

Mike Mulgrew

A critical responsibility for you and your political action team is the collection of COPE payroll deduction cards from each member. COPE is an acronym for Committee on Political Education. COPE is the union’s political action arm. UFT members make voluntary contributions to COPE so that the union can make political contributions to candidates who share our concerns about education, human rights and labor issues. Members need to fill out only one card one time in their career. If they are returning from a leave, they should check their payroll stub to see if deductions are being made. In addition to collecting COPE cards, it is important to encourage members to volunteer for the UFT’s telephone banks and other political activities.

UFT endorsements
For local (New York City) races—Mayor, City Council, Borough President, District Attorney—
recommendations are made to the UFT Executive Board and Delegate Assembly. For statewide and national races, recommendations are made to the NYSUT Board of Directors. Generally, new people running for office are screened at the borough, district or city level. Incumbents’ voting records are very carefully scrutinized, as well as their activities in their home districts.

Creating parent support:
Meet and confer with the Parent Association – Parents of your school can be strong allies. Reach out to the leaders of the PA/PTA and develop ongoing communications. Alert them to your chapter’s priorities and program when appropriate and advisable and find out what issues are of concern to parents. The chapter leader should confer with PA/PTA leaders on issues such as school-based management, safety and improvement of school-wide programs. Parents also might be interested in learning more about UFT-sponsored programs and materials that offer direct help to families, such as Dial-A-Teacher, the union’s annual parent conference and the UFT Scholarship Program. Make sure Dial-A-Teacher information is distributed as soon as it arrives. It really helps students complete their homework. Parent outreach is of the greatest importance to the UFT, because from partnership comes
progress for all our kids. The UFT has a great parent liaison in every borough (contact them through the borough offices, listed at the front of this manual), along with conferences, workshops and committees to help engage parents in all critical areas of their children’s education. School + parents + students = success.

Contract enforcement/conflict resolution:
Your job is multifold – In addition to your work in building the chapter and organizing your school, you have an important role in resolving grievances and enforcing various contracts. It is important that you deal with situations in the school in a way that demonstrates that the UFT is concerned about members’ professional welfare, and that it stands ready and able to help them. One of the purposes of the grievance procedure is to secure the satisfactory resolution of disputes. That is why the UFT places so much emphasis on the “conference” rather than the “hearing” as a step in the procedure. This is by no means merely a semantic difference. It is a frank recognition that there must be free communication and mutuality of striving in order to reach such resolutions.
A word of caution – Don’t let personal likes and dislikes influence your decisions. Always keep in mind the need for unity in the chapter. If a problem seems likely to arouse dissension within the chapter, try to handle it so as to secure a consensus rather than a simple majority. Seek assistance from your district representative if you need it.

Chapter elections and referenda:
There are a variety of elections that may be conducted in your school under your direction. The procedures for properly running those elections are contained in the booklet How To Run A Chapter

The underlying assumption is that the CL is protected by the First Amendment and the Collective Bargaining Agreement, and his or her speech is protected when he/she meets with a principal about staff concerns. This is no longer true, at least in the minds of principals.

For many years principals have not given any special consideration to anyone in the CL elected position. In fact, as their "job" is not just to teach, but to file grievances against the principal, grieve and report all violations of the contract and law, and in general watch out for every staff member's health, safety, and welfare. A principal who sees these responsibilities as an obstruction of, and hindrance to, the leadership required, may, and will, go after charging the CL and removing him or her from the school.

The process available to principals to charge and remove employees who "get in the way" gives no special consideration to CLs who, a principal may say, is either incompetent as a teacher or commits corporal punishment. Nor should they. However, when a CL speaks out as a CL on behalf of the constituents who elected him/her, policy considerations and the Collective Bargaining Agreement give the CL a "right" to say what the many cant.

Yet in practice, large numbers of Chapter Leaders are brought to 3020-a for simply asserting the concerns of the staff. It is essential to keep in mind that labor arbitration systems are the result of negotiated arrangements between often powerful institutional parties who are concerned with collective, as opposed to, individual rights. (Alexander v Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147, 7 F.E.P. cases 81 (1974)). When a CL is brought to arbitration and the issue under review becomes one of whether or not the CL has the right to speak out about collective concerns, then an arbitrator should give special attention to the "right" of the CL to say what these concerns are, pursuant to the CBA, and this speech is protected. As the context of the speech under review here incorporates public employees, the standard of review is raised to a level where additional questions such as "bad faith" and "just cause" must necessarily be attached to outcomes of the protected speech.

Thus, if a CL speaks out as a messenger of information and concerns from the staff to the principal, and is subsequently punished, policy and practice are not in sync.

In labor arbitrations arbitrators are selected pursuant to, and derive their authority from, the collectively bargained agreement. They are constrained to avoid dispensing their own brands of industrial justice. (United Steelworkers of America v. Enterprise Wheel and Car Corp., 363 U.S. 593, 80 S. Ct. 1358, 4 L.Ed.2d 1424, 46 L.R.R.M. 2423 (1960)).

Martin Scheinman and Dan McRay, in their very interesting article "Labor Arbitration and the First Amendment" (ADR News November 2011/January 2012, p9, 32-39) write that:
"Arbitral standards of just cause place primary emphasis on whether the employer has been harmed as the justification for discipline - rather the offensiveness of the speech or conduct" and, "'Just cause' is the typical standard an employer must meet in order to discipline an employee protected by a collective bargaining agreement. Lurking in the background when the employer is a government entity is the First Amendment and whether it requires some different test or heightened restriction on discipline of speech than just cause requires."

Scheinman and McRay ask,
(a) can a just cause analysis allow a public employee to be disciplined for engaging in conduct protected by the Constitution?

(b) If not, should the application of the just cause standard include an explicit analysis of First Amendment cases?

They argue that First Amendment jurisprudence does not just focus on employer harm...(but also) whether the speech is on a matter of "public concern" (i.e., "newsworthy"). They review the termination of a teacher who worked for the NYC Board of Education and was also a leader of the North American Man/Boy Love Association (NAMBLA). This organization encouraged sexual activity between adult men and underage boys. The arbitrator in that case ruled that the employer could, indeed, terminate the teacher because of his political expression and association as well as because his presence in the school would cause too great a disruption of the normal day. (p. 33).

Scheinman and McRay continue,
"Government employers have less authority than private employers to restrict free speech of their employees because the First Amendment only applies to government action. However, the government has greater authority to restrict the speech of its employees than it does members of the general public because of its obligation to ensure the efficiency of its operations....public employees do not give up all their First Amendment rights when they accept employment with the government. The Supreme Court has consistently ruled a government has no right to discipline an employee for outside political speech or associations absent a showing of harm to the operations of the employer." (pp. 34-35)

Under the Pickering test (Pickering v. Board of Education of Township High School, 391 U.S. 563 (1968)) the court first determines whether the employee is speaking on a matter of public concern as opposed to a private matter. Because speech involving matters of public concern is closer to the "core" of the First Amendment, a government employer has less authority to impose discipline than for speech involving private concerns. The Supreme Court has defined a matter of public concern to be a "subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public at the time of publication." (p. 35). City of San Diego v. John Roe, 543 U.S. 77, 83-84 (2004).

"If the matter is of public concern, under the Pickering test the burden shifts to the employer to show the reason for the discipline was not to penalize the employee for the speech, but rather because there is a substantial showing that the speech is, in fact, likely to be disruptive to government operations." (Waters v Churchill, 511 U.S. 661, 674 (1994).

Scheinman and McRay believe that "Proof of demonstrated harm to the employer is a more reliable standard.....even if the employer is harmed, the employee might still win if he or she has a sufficient "interest" in the speech....The greater the interest of the employee, the more harm the employer must show to justify discipline. The lesser the interest of the employee, the less harm the employer must show." (p. 38)

2. Implied covenant of good faith

The Chapter Leader may rely on the contract and the CL duties and responsibilities as a part of a common law employment “contractual” doctrine. This 'doctrine', agreed to in the UFT-DOE Bargaining Agreement, guarantees a safe environment in which to work and offers an implied in law covenant of good faith and fair dealing. Rosen v Gulf Shores,Inc. 610 So. 2d 366, 369-70 (Miss. 1992). Express or implied in fact promises usually obligate the employer to continue employment as agreed to in the bargaining agreement until the occurrence of a condition subsequent, which is any fact the existence or occurrence of which by agreement of the parties operates to discharge a duty of performance after it has become absolute. In the instant case CL and employer agreed to continue working together with both sides protecting and preserving rights of the other in terms of safe and secure environment, etc. Restatement of Contracts § 250(b) (1932); Murray §101, at 553-56. American Bank Stationery v Farmer, 106 Nev. 698, 799 P.2d 1100, 1102 (1990).

In Rethinking Wrongful Discharge: A Continuum Approach by Robert C. Bird, (University of Cincinnati Law Review, Winter, 2004, 73 U. Cin. L. Rev. 517) Bird writes:
“Employers acting with just cause treat their employees with punctilious concern for fairness and equity. Only the most qualified employees are promoted. Office politics and arbitrary decision making do not infect the employment relationship…….. Whenever the employer acts, it subjectively believes that it has the company's altruistic motives in mind and objectively possesses substantial evidence or good reason to support its decision. Anything less than substantial evidence cannot justify the employer's conclusion that the employee is "guilty" of misconduct. Finally, the employer's disciplinary action is evenhanded, proportionate to the proven offense, and considers the employee's length of service with the company. If the employer fails to achieve any or all of these high standards, it risks punishment in a court of law. This is the idealized domain of "just cause" employment.”

Estelle D. Franklin asks questions in her Maneuvering Through the Labyrinth: The Employers' Paradox in Responding to Hostile Environment Sexual Harassment-A Proposed Way Out, 67 Fordham L. Rev. 1517, 1562 (1999) (citing Enterprise Wire Co., 46 Lab. Arb. Rep. (BNA) 359 (1966) (Daugherty, Arb.)):
“The arbitrator, as stated by Franklin, articulated the following factors: (1) Did the company give to the employee forewarning or foreknowledge of the possible or probable disciplinary consequences of the employee's conduct? . . . . (2) Was the company's rule or managerial order reasonably related to (a) the orderly, efficient, and safe operation of the company's business and (b) the performance that the company might properly expect of the employee? . . . . (3) Did the company, before administering discipline to an employee, make an effort to discover whether the employee did in fact violate or disobey a rule or order of management? . . . . (4) Was the company's investigation conducted fairly and objectively? . . . . (5) At the investigation, did the [factfinder] obtain substantial evidence or proof that the employee was guilty as charged? . . . . (6) Has the company applied its rules, orders, and penalties evenhandedly and without discrimination to all employees? . . . . (7) Was the degree of discipline administered by the company in a particular case reasonably related to (a) the seriousness of the employee's proven offense and (b) the record of the employee in his service with the company? Id. (citing Enterprise Wire, 46 Lab. Arb. Rep. (BNA) at 363-64)). The standard was applied strictly, the failure to satisfy even one of the seven factors would preclude a finding of just cause. Id. (citing Enterprise Wire, 46 Lab. Arb. Rep. (BNA) at 362); see also Grief Bros. Cooperage Corp., 42 Lab. Arb. Rep. (BNA) 555 (1964) (Daugherty, Arb.)."

3. Cases
The Department wants arbitrators at 3020-a hearings to believe that a finding of “Just Cause” is subjective and discretionary. In New York State and New York City it is not, at least in disciplinary hearings where public school tenured teachers are involved.

Richard Santer, appellant, v Board of Education of East Meadow Union Free School District

Like other public employees, teachers "do not leave their First Amendment rights at the schoolhouse door, even though it is plain that those rights are somewhat diminished in public employment" (Melzer v Board of Educ. of City School Dist. of City of New York, 336 F3d 185, 192, cert denied 540 U.S. 1183, 124 S. Ct. 1424, 158 L. Ed. 2d 87). HN5 In determining whether a disciplinary measure taken against a public employee violates the employee's First Amendment rights, a court must first determine whether the speech that led to the discipline related to a matter of public concern. If so, the court must balance free-speech principles against the threat to effective government operation presented by that speech (see Pickering v Board of Educ. of Township High School Dist. 205, Will Cty., 391 U.S. 563, 88 S. Ct. 1731, 20 L. Ed. 2d 811; Melzer v Board of Educ. of City School Dist. of City of New York, 336 F3d at 193; Rankin v McPherson, 483 U.S. 378, 384-388, 107 S. Ct. 2891, 97 L. Ed. 2d 315). The government bears the burden of showing that the disciplinary measure is justified (see United States v Treasury Employees, 513 U.S. 454, 466, 115 S. Ct. 1003, 130 L. Ed. 2d 964; Rankin v McPherson, 483 U.S. at 388; Melzer v Board of Educ. of City School Dist. of City of New York, 336 F3d at 193).

Santer's "speech" regarding collective bargaining issues indisputably addressed matters of public concern (see Clue v Johnson, 179 F3d 57, 61; Boals v Gray, 775 F2d 686, 693). Moreover, despite the evidence establishing that the manner in which the protest was carried out interfered with the safe and effective drop-off of students (see Matter of Trupiano v Board of Educ. of E. Meadow Union Free School Dist., 89 AD3d 1030, 933 N.Y.S.2d 106), we find that the District failed to meet its burden of demonstrating that Santer's exercise of his First Amendment rights so threatened the school's effective operation as to justify the imposition of discipline (see Rothschild v Board of Educ. of City of Buffalo, 778 F Supp 642, 656).
The Supreme Court of the United States has stated that HN6 "the vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools" (Shelton v Tucker, 364 U.S. 479, 487, 81 S. Ct. 247, 5 L. Ed. 2d 231). The disciplinary measures imposed on Santer would likely have the effect of chilling speech on an important matter of public concern—the negotiation of a collective bargaining agreement.

In the Matter of the Application of Lisa Capece f/k/a LISA GRANDE, Petitioner, against Margaret Schultz, Individually and in her capacity as Community Superintendent of Community School District 31, COMMUNITY SCHOOL DISTRICT 31, by its Trustees and/or Directors; and THE NEW YORK CITY DEPARTMENT OF EDUCATION, Respondents.

In her verified petition, petitioner alleges that she was subjected to harassment and discriminatory treatment at the hands of the administration of P.S. 1, in particular Principal Gordin and Assistant Principal Lisa Arcuri, at least in part in retaliation for her union activities. In support, petitioner reiterates that she received solely satisfactory evaluations, letters of praise, and commendations from the previous administration and her colleagues for the prior two and a half years of her probation, as evidenced by, inter alia, the six initial "Supervisor Observation Forms", and APPR's dated June 6, 2005, June 1, 2006 and June 18, 2007, some of which were authored by Principal Gordin, herself. According to petitioner, everything changed after March 15, 2007, "in apparent revenge" for her continuing activities as the UFT co-chapter leader. It is further alleged that "in order to create their false and fabricated file" of unsatisfactory performance, Principal Gordin and co-conspirator Assistant Principal Arcuri engaged in "an intense, guerilla campaign of intimidation, criticism and unwarranted attacks upon her…and a pattern of issuing her conflicting instructions and engaging in discriminatory treatment." By way of example, petitioner notes that in her final June 18, 2007 APPR, although she received an overall "satisfactory" rating, three of the twenty-three categories were rated "unsatisfactory" by Principal Gordin based upon her alleged manipulation of test score data using a "skewed" analysis to compare the performance of petitioner's students against other students. Allegedly, no other fifth grade teacher was evaluated in this way. In addition, petitioner claims that during the observations of her teaching performance by Principal Gordin on or after March 15, 2007, the latter engaged in a series of disruptive actions calculated to intimidate petitioner and disrupt her lessons from proceeding as planned. Illustrative of the foregoing, is the Principal's purported sorting through items on and inside petitioner's desk while the latter was trying to teach, examining folders that were irrelevant to the lesson, and interrupting petitioner during "guided reading" and "share time". Petitioner also claims to have been "denied continued enrollment" in a literacy workshop for teachers due to her observance of a Catholic holy day of obligation which happened to coincide with the first day of the workshop. It is claimed that none of her colleagues were similarly penalized. Her petition also includes other instances of alleged harassment and abuse on the part of Principal Gordin in support of the contention that her termination was unjust and that she was "singled-out by an administration that took revenge for her serving as an advocate for unionized colleagues."

Stated alternatively, judicial review of the discharge of probationary employee is limited to whether the determination was made in bad faith or for an improper or impermissible reason (see Matter of Swinton v Safir, 93 NY2d 758, 763, 720 N.E.2d 89, 697 N.Y.S.2d 869; Matter of Johnson v Katz, 68 NY2d 649, 650, 496 N.E.2d 223, 505 N.Y.S.2d 64). In such cases, it is the employee who "bears the burden of establishing such bad faith or illegal conduct by competent evidence rather than speculation " (Matter of Rossetti-Boerner v Hampton Bays Union Free School Dist., 1 AD3d at 368). Were it to be held otherwise, substantial evidence of, e.g., bad faith, would be required in every case of a probationer's dismissal, thereby standing the probationary process on its head (see Matter of Cipolla v Kelly, 26 AD3d 171, 812 N.Y.S.2d 462). Thus, the law has developed that the appropriate standard of review to be applied in these types of cases is whether the determination to terminate petitioner's probationary employment was arbitrary and capricious (see Von Gizycki v Levy, 3 AD3d 572, 574, 771 N.Y.S.2d 174).

Consonant with the foregoing, it is the Court's opinion that petitioner herein has sustained her evidentiary burden by the production of sufficient evidence to raise a material issue of fact as to whether or not her discontinuance was made in bad faith, i.e., as a "retaliatory measure designed to punish her at least in part for her exercise of her constitutional right to engage in activities as a member of the local teachers' union" (Matter of Tischler v Board of Educ., Monroe Woodbury Cent. School Dist. No. 1, 37 AD2d 261, 263, 323 N.Y.S.2d 508).

Here, the evidence before the Court indicates that the unsatisfactory performance evaluations and alleged incidents of professional misconduct occurred solely within the period that she was engaged in union activities. This is also the same period during which she filed the harassment grievance against Principal Gordin. In fact, even the recommendation of discontinuance by the majority of the members of the Chancellor's Committee was forced to concede that the onset of petitioner's "negative evaluations…[happen to] coincide with her…election as the union's co-chapter leader." All teachers have the right of free association and union membership as guaranteed by the First Amendment, and where the dismissal of a probationary teacher represents a substantial interference with his or her First Amendment rights, "such action cannot be permitted to stand unless it can be shown that the conduct in question has a clear relationship to the maintenance of an efficient educational system, and the dismissal was motivated by a desire to benefit the system rather than to interfere with the exercise of his or her constitutional rights" (id. at 264).

Under these circumstances, since the retaliatory nature of petitioner's dismissal cannot be determined on the facts thus far adduced and the reasonable inferences that may be drawn therefrom, judicial review is mandated (see Matter of New York City Dept. of Envtl. Protection v New York City Civil Serv. Comm., 78 NY2d 318, 323, 579 N.E.2d 1385, 574 N.Y.S.2d 664), and the matter must proceed to trial (CPLR 7804[h]; see Martinez v. State Univ. of N.Y.-College at Oswego, 13 A.D.3d 749, 750-751; cf. Matter of Anonymous v Commissioner of Health, 21 AD3d 841, 844, 801 N.Y.S.2d 302; but see Matter of Johnson v Katz, 68 NY2d at 650; Matter of Weintraub v Board of Educ. of City School Dist. of City of NY, 298 AD2d 595, 748 N.Y.S.2d 685).
Accordingly, the petition is granted to the extent that the parties are to appear for a Preliminary Conference on September 15, 2009 at 9:30 A.M.

Local Union 1392, International Brotherhood of Electrical Workers, AFL-CIO, Petitioner, v. National Labor Relations Board, Respondent; Indiana & Michigan Electric Co., Intervenor

No. 85-5221


786 F.2d 733; 1986 U.S. App. LEXIS 23325; 121 L.R.R.M. 3259; 104 Lab. Cas. (CCH) P11,797

February 13, 1986, Argued
March 26, 1986

PRIOR HISTORY: On Petition for Review of an Order of the National Labor Relations Board.


PROCEDURAL POSTURE: Petitioner union filed a petition for review of a decision by respondent National Labor Relations Board, which ruled in favor of the employer. Respondent found that the employer did not violate § 8(a)(1) and (3) of the National Labor Relations Act when it imposed a harsher discipline on 2 union officers than on 10 other employees.

OVERVIEW: Petitioner union filed unfair labor practice charges against an employer under § 8(a)(1) and (3) of the National Labor Relations Act (Act) because the employer imposed a harsher discipline on 2 union officers than it did on 10 other employees for an unauthorized work stoppage. Respondent National Labor Relations Board found no violation and dismissed the complaint. Petitioner sought review and the court denied the petition and ordered enforcement of respondent's decision. The court held that an employer could impose selective discipline of a union official based on his union status if the union had made a "clear and unmistakable" waiver of its officials' statutory right to be free from such disparate treatment. The court found that the contractual language in this case showed petitioner's intent to waive its officials' right to be free from selective discipline when they engaged in unauthorized work stoppages. The court held that the union employees were bound by the waiver. The court concluded that respondent's interpretation of the collective bargaining agreement was reasonable and consistent with the policies of the Act.

OUTCOME: The court denied petitioner union's petition for review of a decision by respondent National Labor Relations Board, and ordered enforcement of respondent's decision to dismiss petitioner's complaint. The employer could impose selective discipline of a union official based on his union status because petitioner had made a "clear and unmistakable" waiver of its officials' statutory right to be free from such disparate treatment.

CORE TERMS: union official, work stoppage, discipline, steward, unauthorized, contractual, selective, participated, no-strike, labor practice, statutory right, contractual language, unmistakable, unfair, union officers, illegal strike, valid waiver, collective bargaining agreement, superseniority, rank-and-file, disparate, administrative law, suspensions, harsher, plant

Governments > Legislation > Statutory Remedies & Rights
Labor & Employment Law > Collective Bargaining & Labor Relations > Discipline, Layoff & Termination
Labor & Employment Law > Discrimination > Disparate Treatment > Employment Practices > Adverse Employment Actions > Discipline

An employer may impose selective discipline of a union official based on his union status if the union has made a "clear and unmistakable " waiver of its officials' statutory right to be free from such disparate treatment.

Governments > Legislation > Statutory Remedies & Rights
Labor & Employment Law > Collective Bargaining & Labor Relations > Discipline, Layoff & Termination
Labor & Employment Law > Collective Bargaining & Labor Relations > Strikes & Work Stoppages
A valid waiver of an employee's statutory right renders the right unprotected under the National Labor Relations Act. Clearly, rank-and-file employees may be discharged for disobeying a contractual no-strike clause. A valid waiver of union officials' protected rights should have the same effect.

Labor & Employment Law > Collective Bargaining & Labor Relations > Strikes & Work Stoppages

A union's assumption of the duty to end an unauthorized work stoppage necessarily imposes a concomitant duty upon its officials to implement that obligation.

Labor & Employment Law > Collective Bargaining & Labor Relations > Arbitration > Judicial Review of Awards > General Overview
Labor & Employment Law > Collective Bargaining & Labor Relations > Federal Preemption
Labor & Employment Law > Collective Bargaining & Labor Relations > Interpretation of Agreements

The National Labor Relations Board's interpretation of a collective bargaining agreement is entitled to deference if it is reasonable and consistent with the policies of the National Labor Relations Act.

COUNSEL: Laurence J. Cohen, Robert D. Kurnick, and Victoria L. Bor, (argued), Sherman, Dunn, Cohen, Leifer, Counts, Washington, District of Columbia, for Appellant.

Guy Farmer, (argued), Jonathan A. Cohen, Vedder, Price, Kaufman, Kammholz & Day, Washington, District of Columbia, and Fredric L. Sagan, Senior Labor Counsel, American Electric Power Ser. Corp., Columbus, Ohio, for Intervenor.

Elliott Moore, Deputy Associate General Counsel, National Labor Relations Board, Washington, District of Columbia, and Fred Havard, (argued) and William Little, Regional Director, Region 25, National Labor Relations Board, Indianapolis, Indiana, for Appellee.

JUDGES: Keith and Martin, Circuit Judges; and Weber, * District Judge.
* Honorable Herman J. Weber, United States District Judge for the Southern District of Ohio, sitting by designation.



BOYCE F. MARTIN, JR., Circuit Judge.
Local 1392 of the International Brotherhood of Electrical Workers petitions this Court for review of a decision of the National Labor Relations Board in favor of the employer, Indiana & Michigan Electric Company. 273 N.L.R.B. No. 193 (1985).
In November, 1978, Local 1392 filed unfair labor practice charges against Indiana & Michigan alleging that the employer had violated sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act by imposing harsher discipline on two union officers than on ten other employees, all of whom had participated in the same unauthorized work stoppage. After an investigation, the Board's General Counsel issued a complaint against the employer. The administrative law judge upheld the unfair labor practice charges, finding that the employer had violated the Act. On review, the NLRB reversed the administrative law judge's decision and dismissed the complaint. The Union appeals this dismissal.
The facts of this case are straightforward and undisputed. On August 21, 1978, fifteen employees in the line department at Indiana & Michigan's Muncie, Indiana plant staged an unauthorized work stoppage. The employer issued three-day suspensions to the ten rank-and-file members who participated in the work stoppage, and five-day suspensions to the two instigators of the incident and two union stewards. 1 The employer based its harsher discipline of stewards Ridley and Maxwell on their "greater responsibility [**3] to end the unauthorized work stoppage"; the company did not contend that the stewards led or actively promoted the misconduct.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
1 The Union's highest official at the plant was not suspended because the employer's investigation revealed he attempted to persuade the employees to return to work.

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
The issue presented by these facts is whether an employer's selective discipline of a union official, based on his union status, violates section 8(a)(3) of the NLRA. The Board's inconsistency on this issue 2 was resolved by the Supreme Court's decision in Metropolitan Edison v. NLRB, 460 U.S. 693, 75 L. Ed. 2d 387, 103 S. Ct. 1467 (1983), which held that HN1 an employer may impose selective discipline in this situation if the union has made a "clear and unmistakable " waiver of its officials' statutory right to be free from such disparate treatment. Id. at 707. The parties agree on the applicability of the legal principles of Metropolitan Edison to this case; they disagree as to whether their particular contractual language constitutes the requisite "clear and unmistakable" waiver.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
2 The Board's most definitive holding on this issue prior to Metropolitan Edison was in Precision Castings Co., 233 N.L.R.B. 183 (1977), in which it held that selective dismissal of a shop steward who participated in and made no effort to terminate an illegal strike constituted discrimination based solely on the holding of union office and thus was violative of sections 8(a)(1) and 8(a)(3). Before Precision Castings, the Board, on several occasions, had found no unfair labor practice in the dismissal of union stewards based on their participation in illegal strikes. See, e.g., Chrysler Corp., 232 N.L.R.B. 466 (1977); Super Value Xenia, 228 N.L.R.B. 1254 (1977).

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
The Metropolitan Edison court, in reaffirming union officials' statutory right to be free from selective discipline based on their union status, held that a general no-strike clause was insufficient to establish waiver of such a protected right. Id. at 707-08. The court recognized, however, that "a union and an employer reasonably could choose to secure the integrity of a no-strike clause by requiring union officials to take affirmative steps to end unlawful work stoppages." Id. at 707. Specifically, the court ruled that "a union may waive this protection by clearly imposing contractual duties on its officials to ensure the integrity of no-strike clauses." Id. at 710.

We agree with the Board that Indiana & Michigan's contract with Local 1392 imposed affirmative duties on union officials sufficient to establish a waiver of those officials' section 8(a) 3 right to be free from disparate discipline. The relevant contractual language provides:
The Union agrees that, in the event of any violation (other than lockout) of the provisions of the foregoing paragraph, it will in good faith and without delay publicly disavow such violation, exert itself to bring about a quick termination of such violation and insist that the employee or employees involved cease such violation. To that end the Union will promptly take whatever affirmative action [**6] is necessary. If the Union has not authorized, participated in or condoned such violation and fulfills its obligations under this paragraph with respect to any such violation, the Company agrees that it will not sue the Union for any damages resulting from such violation.
Art III, § 2.

The Union argues that because the language of the contract refers to the union as an entity, and not to its individual officers, the union officers owe no duty to the employer. It correctly notes that the contractual assumption of these duties imposes damage liability on the union under Carbon Fuel v. Mine Workers, 444 U.S. 212, 216-18, 62 L. Ed. 2d 394, 100 S. Ct. 410 (1979), and contends that this liability is the extent of the employer's remedy for breach of the provision. The Union bases its argument on the well-established principle of agency that an agent is liable only to the principal for a breach of a duty owed to a third party.

The Union's reliance on agency principles in this context is misplaced. A valid waiver of an employee's statutory right renders the right unprotected under the National Labor Relations Act. Clearly, rank-and-file employees may be discharged for disobeying a contractual no-strike clause. A valid waiver of union officials' protected rights should have the same effect. The District of Columbia Circuit assessed a similar argument advanced by the Board as "wholly unconvincing," Fournelle v. NLRB, 216 U.S. App. D.C. 173, 670 F.2d 331, 339 & n. 16 (D.C. Cir. 1982), and we agree.
In a case decided before Metropolitan Edison, the Third Circuit found the language of a collective bargaining agreement imposed specific enforceable duties on union officials. Gould, Inc. v. NLRB, 612 F.2d 728 (3d Cir. 1979), cert. denied, 449 U.S. 890, 101 S. Ct. 247, 66 L. Ed. 2d 115 (1980). The contractual obligations assumed by the union in that case were very similar to those agreed to by Local 1392. The language of the Gould contract, however, imposed these duties specifically upon "the Union, its officers and representatives" (emphasis added) rather than on the Union alone. Id. at 730, n. 3.

This difference in language cannot hold the legal significance attributed to it by the Union in this case. Obviously, unions act only through their officers. A union's assumption of the duty to end an unauthorized work stoppage necessarily imposes a concomitant duty upon its officials to implement that obligation. We believe that the contractual language in this case illustrates the intent of the Union for its officials to attempt to prevent unauthorized work stoppages, and that this language constitutes a "clear and unmistakable waiver" of those officials' right to be free from selective discipline. 3 This waiver is the result of the specific additional duties assumed by the union under the contract, and is not necessarily inherent in an employee's position as a union official. NLRB v. Babcock & Wilcox Co., 697 F.2d 724, 732-33 & n. 9 (6th Cir. 1983). Compare Indiana & Michigan Electric Co. v. NLRB, 599 F.2d 227, 230 (7th Cir. 1979).

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
3 In its amicus brief, the Chamber of Commerce notes that imposing these obligations on union stewards is the logical corollary to the award of superseniority against layoff permitted the officials because of the importance of their function. Dairylea Cooperative, Inc. 219 N.L.R.B. 656 (1975). This interesting argument is not persuasive here, both because we have no evidence before us concerning the parties' agreement on the contractual issue of superseniority, and because this Court has already rejected the notion of a higher responsibility imposed on union representatives by virtue of their office. NLRB v. Babcock & Wilcox, 697 F.2d 724, 732 (6th Cir. 1983).

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

The Board's interpretation of a collective bargaining agreement is entitled to deference if it is reasonable and consistent with the policies of the Act. NLRB v. City Disposal Systems, 465 U.S. 822, 829-30, 79 L. Ed. 2d 839, 104 S. Ct. 1505 (1984); NLRB v. Local 534, Construction & General Laborers' Union, 778 F.2d 284, 287 (6th Cir. 1985). The Board's interpretation of the language of this contract was reasonable, consistent with the policies of the Act, and in accord with the Supreme Court's pronouncements in Metropolitan Edison. The petition of the Union is therefore denied, and the order of the Board is enforced.

NY State Governor Andrew Cuomo: I Will Get Rid of The Teachers In This State

Andrew Cuomo

Andrew Cuomo to New York State: Your Teachers Stink. I Will Fire Them. I will Break Their Union.

Daniel Katz, PhD.
The gauntlet that New York Governor Andrew Cuomo and New York Regents Chancellor  Merryl Tisch picked up with their public correspondence in December has been thrown down.  The Governor announced his plans to revamp and revise education in New York with his State of the State address on January 21st, and it was accompanied by a book detailing his policy proposals.  On teacher evaluation, Governor Cuomo is delivering a massive change — and a direct challenge to community control of their teacher workforce.  If the governor gets his way, 50% of teachers’ evaluations will be controlled by students’ annual progress on standardized tests, and no teacher rated “ineffective” in either half of the evaluation will bescored higher than “developing.”   The other 50% of annual evaluations will be comprised of two observations, one by a school administrator and another by an “independent observer” in the form of an administrator from another district or a state approved outside agency.  The so-called “independent observer” observation will count for 35% of the evaluation.  Local administrators are to be restricted to 15%.
New York State principals?  Andrew Cuomo says you cannot do your jobs.  New York State communities?  Nobody in your town is qualified to evaluate your children’s teachers.  Andrew Cuomo wants to take that away for Albany.
Governor Cuomo insists that these draconian measures are necessary because only a third of New York students scored as proficient or highly proficient on the new Common Core aligned standardized examinations, and by his logic that means the teacher evaluation system, which currently weights the results of those exams for 20%, is “baloney” because only 1% of teachers were found ineffective.  However, tying a criticism of the teacher ineffectiveness to the CCSS aligned exams is flagrantly mendacious because “proficient” was never tied to “grade level” or “passing”;  it was tied to SAT scores loosely predictive of college success.
Governor Cuomo’s teacher evaluation plan is set to punish teachers for not graduating vastly more students ready to succeed in college, as measured by one test score, than currently attend college.
What can reasonably be predicted as an outcome of this?  Plenty.  And none of it will be pretty.
First, this policy will fall heavily upon districts with high levels of poverty which are tightly concentrated because of New York’s appallingly high Residential Income Segregation Index.  We know from disaggregated PISA data that schools with high levels of poverty struggle in standardized test achievement compared to schools in affluent communities. Following Governor Cuomo’s logic it is not that these schools and their teachers struggle with the long established deprivations of poverty upon their student population and would benefit from aggressive plans of economic renewal and integration; it is that their teachers are ineffective and need to be fired.
Second, no teacher in New York will be actually safe no matter how good they are or how talented their students.  The value-added models (VAMs) of teacher performance based on standardized tests are by now subject to so much research demonstrating their unreliability that using them at all is indefensible.  The American Statistical Association (ASA) warned last year that teacher input can only account for 1-14% of student variability on standardized tests, and VAM generated rankings of teachers are not stable, meaning a teacher can be in the top 20% in one year and slide below the median in a subsequent year.  If you think that your child attending a selective public school with a math teacher whose students all pass a challenging algebra examination will have that teacher spared via VAMs — think again.  Teachers who are excellent by every other conceivable model of assessment can be rated as the “worst” grade level teacher in New York City via value-added modeling.
And Governor Cuomo wants that to be 50% of teacher evaluations.
The predictable outcome of this will be an objectively worse education for nearly every student in the state.  Consequences from the No Child Left Behind law’s focus on test-based accountability include a steady narrowing of school curricula to subjects that are tested, leaving science, the social studies, the arts, and health as dwindling portions of public education.  Teaching to the test as is common practice in “no excuses” charter schools will become a prominent methodology in historically struggling schools, and it will grow in currently successful schools as well.  Teachers and administrators will have little choice — with so much riding on VAMs that unstable and able to find teachers of advanced students in the bottom 10% of teachers, test preparation as curriculum will spread.  Further, as experienced teachers are pushed out, the teacher workforce will become younger, assuming that New York State schools can possibly entice new teachers to start a career under these conditions.  These will be novices whose classroom skills will be on a steep learning curve for their early years, and many of them will be forced out by VAMs before reaching the point where their skills start to level off.
A less experienced teacher workforce teaching more and more to the test — THAT is the likely outcome of Governor Cuomo’s evaluation proposals.  There will also be no local measure that can preserve a teacher in his or her job because the only local component of the evaluation system – local administrator observations – will be restricted to 15%.  Are you a principal whose teachers work in underfunded facilities with students who live in poverty?  Tough.  Are you a parent whose child’s teacher works with gifted students in a curriculum accelerated 2-3 years beyond the test?  Tough.  Are you a school board member who wants to preserve the social studies, sciences, art, music, and health?  Tough.  85% of your teachers’ evaluations are outside the input of any local stakeholders; Albany will be in control.  And Governor Cuomo will hold nearly three quarters of a potential increase in aid for schools hostage unless he gets his way.
It is impossible to not connect the dots here.  Among Governor Cuomo’s most reliable donors are Wall Street supporters of charter school expansion who can turn such schools into revenue streams for private corporations using public money.  Charter schools, among whose strongest supporters at the Thomas B. Fordham Institute recently admitted are in the business of pushing out harder to educate children, have been turned into a way to monetize our public education budgets.  Governor Cuomo, who raised half of his $40 million election war chest from just 341 donors, owes that sector.
The only entity with enough members and resources to resist that is the NYSUT.
Most of Governor Cuomo’s teacher evaluation plans (and his other education proposals) will make our schools objectively worse places to learn with many fewer experienced teachers and a diminishing curriculum.  However, they will make the teachers’ union much weaker with an unstable and uncertain cadre of members who have less experience and no practical job security — and who will not be able to effectively resist more and more of our public schools turned over to private interests.
Everything about this is wrong.

Carmen Farina Builds Her Home Ship: Superintendents Have The Power at the NYC Department of Education

Carmen Farina

Fury at Fariña’s push for enhanced superintendent power


Schools Chancellor Carmen Fariña announced a plan Thursday to restore a centralized system and give more power to superintendents that critics immediately slammed as lacking accountability.
“What is she and the mayor prepared to hold themselves accountable for, in terms of raising student achievement?” asked former Deputy Chancellor Eric Nadelstern.
“If you can’t measure it, you can’t manage it. There’s a lot of talk about accountability, but it seems to be a return to a time where there is little or no accountability.”
Fariña plans to dissolve school support networks by the end of the summer and shift their responsibility to 45 superintendents, who would report to Department of Education headquarters. Principals will retain control over hiring decisions, except in cases of struggling schools that will have a separate process.
The networks were established by the Bloomberg administration with the intention of dispersing power from central headquarters.
“Superintendents will be responsible for getting their schools the tools they need to succeed,” said Fariña at an Association of a Better New York breakfast.

Farina puts superintendents back in charge

Most of 55 networks created by Bloomberg given the boot

Miller Photography
Chancellor Carmen Fariña announces her restructuring plan during the Association for a Better New York breakfast meeting on Jan. 22.
Schools Chancellor Carmen Fariña announced on Jan. 22 the end of the 55 school networks created by the Bloomberg administration and the introduction of a new structure that gives greater oversight and responsibility to superintendents.
"Beginning in the fall of 2015, superintendents will support and supervise schools, period," Fariña said during remarks at an Association for a Better New York breakfast meeting. 
She also announced the creation of seven Borough Field Support Centers — two in Brooklyn, two in Queens and one in each of the other boroughs. The centers will be staffed with experts in instruction, operations, student services, and working with English language learners and special education students. 
Principals, she noted, will retain control over their budgets and hiring.
The new support centers will open in the summer and the new system will launch in September.
UFT Michael Mulgrew applauded the restructuring.
"It's a welcome contrast to the previous administration, which left schools to sink or swim," he said. "Chancellor Fariña's initiative is designed to provide schools with the tools and advice they need to help them become and stay successful."
In the previous structure created by former chancellor Joel Klein, principals contracted with a network to provide an array of operational and academic support services. Schools from different boroughs often belonged in the same network, making coordination difficult. Many educators derided the networks for their inconsistency and their lack of accountability. The network system also sidelined superintendents, who had almost no staff and served mainly to evaluate principals.
In the new structure, each superintendent will have six staff members, including representative s responsible for family engagement.
Fariña said the new structure will give her a clearer picture of what’s working and what’s not, and superintendents will understand what is expected of them. The centers will also promote one of her key beliefs: Collaboration is better than competition to help schools succeed. 
"The central element of our new approach is creating clear accountability and giving superintendents the authority and resources they need to improve what happens in our schools and in our classrooms," she said.
The move was long expected. Fariña has expressed her preference for clear lines of authority. In laying the groundwork for the change, Fariña had superintendents reapply for their jobs last summer, and all new superintendents must now have at least 10 years of teaching experience, with at least three years as a principal. 
Not all the networks were banished. Fariña praised the nonprofit organizations that performed well, including New Visions for Public Schools, the Urban Assembly and CUNY, as valued partners that will continue providing support to their schools as affinity groups. But those groups will now report to the superintendent and be held accountable for results, she said.