Bad Faith Bargaining: Union Fails To Communicate With Employer's Designated Collective Bargaining Rep

OCTOBER 23, 2013 by ADMIN

PERC Examiner Finds that Union’s Refusal to Communicate with Employer’s Designated Collective Bargaining Rep is a ULP

By Therese Norton

LINK

Both unions and employers have the right to designate who represents them in the collective bargaining process. In Kiona Benton School District, PERC Hearing Examiner Guy Coss ruled, without a hearing, after a motion for “summary judgment”, that the Kiona Benton Education Association breached its duty to bargain in good faith by refusing to bargain with the School District’s designated collective bargaining representatives.

In this case, the District notified the union twice, and in writing, who it designated as its collective bargaining representatives. The union responded that it would only communicate with the superintendent and the union would “no longer” communicate with the employer’s designated representatives. The union argued that the employer essentially waived its right to designate a collective bargaining representative because it did not only use its designated representatives for collective bargaining purposes. The union also argued that the employer had been uncivil and difficult to deal with.    

Examiner Coss rejected both arguments explaining that the union’s refusal was “clear and unequivocal”: the union refused to “evercontact the employer’s designated representatives for any reason whatsoever;” and the union unilaterally “dictate[d] who the employer’s representative would be.”  The Examiner also explained that the uncivil behavior of the employer was “not material” because if the union had any complaints about the employer, the proper course of action would be for the union to file a complaint with PERC. Based on these reasons, the Examiner granted the employer’s motion for summary judgment.

The Examiner reiterated that the right to choose a representative extends equally to both the union and the employer.

“It is clear that both unions and employers have an important, though not absolute, right to designate those representatives that they feel are best qualified and positioned to represent them in collective bargaining.”

He continued by explaining,

“The Commission’s rules do not require parties’ representatives to be licensed attorneys or to hold any other license, training, or experience. It is up to each party to choose their own representatives based on the level of knowledge (legal or otherwise, experience, and training they feel is necessary to represent them.”

FILED UNDER: BAD FAITH BARGAINING, DUTY TO BARGAIN, PUBLIC SECTOR COLLECTIVE BARGAINING RIGHTS

 

What is a "Sexually Hostile Environment" in the Classroom?

Appeals Court Orders New Trial in Case Alleging Sexually Hostile Classroom

By Mark Walsh on February 5, 2015 8:55 AM

LINK

A federal appeals court has revived a lawsuit brought on behalf of a Pennsylvania high school student that alleged a high school history teacher created a sexually hostile environment in the classroom by, among other things, showing nude pictures of murder victims.

A panel of the U.S. Court of Appeals for the 3rd Circuit, in Philadelphia, ruled 2-1 to order a new trial in the civil lawsuit against Bruce H. Smith Jr., who was a 20th century history teacher at Pleasant Valley (Pa.) High School in 2007 when a female student identified in court papers as M. Young found many of his teaching methods offensive.

Court papers say Smith displayed photos of, among others, the nude body of Charles Manson murder victim Sharon Tate as part of a lesson about the "undercurrent of the hippies." Smith also allegedly said that women were not suitable to be U.S. president because they get their "monthly visitor"—or menstrual period.

The teacher also once compared the beauty typified by the "Gibson girl" of the early 20th century with Victoria's Secret models, discussing pushup bras and whether students thought one model's "breasts were firm enough," according to the student's trial testimony.

"It always came back to women," Young testified, according to court papers. "It was always degrading women." 

After Young's parents complained to the principal, Smith was suspended, but he was later reinstated and his teaching methods were monitored more closely. 

Young and her parents sued Smith over the allegedly sexually hostile environment in the classroom. The suit also named the principal, the superintendent, and the Pleasant Valley school district as defendants, claiming that Young faced retaliation for her complaint.

The case has a long and complex procedural history. A jury in a 2011 trial ruled against Smith and the school district and awarded some $325,000 in damages. But the trial judge tossed out the verdict and ordered a new trial.

In 2013, a new trial judge dismissed the suit's claim of sexually hostile environment against the teacher, and a jury ruled for the school district and administrators on the retaliation claims.

The family appealed those decisions to the 3rd Circuit court. In its Feb. 4 decision in Young v.Pleasant Valley School District, the appeals court panel issued a split decision.

The panel unanimously upheld the dismissal of the retaliation claims against the school district and administrators. 

"Here, the Youngs did not present sufficient evidence to allow a reasonable jury to conclude that the School District's alleged retaliatory acts were committed pursuant to an official policy or custom, as is required to establish Section 1983 municipal liability," the appeal court said.

However, the panel held 2-1 that Smith was not entitled to judgment as a matter of law on the Youngs' hostile educational environment claim.

"A reasonable jury could have found that Smith created a hostile educational environment," Judge D. Michael Fisher wrote for the majority. "Over the course of one semester, a classroom filled with 16- and 17-year-old students was regularly subjected to references to sex and graphic depictions of nudity and violence that degraded women."

"Such a classroom environment could make a reasonable female teenager feel uncomfortable, and it did in fact cause M. Young discomfort to the point of nausea according to her testimony," Fisher added. "Because the Youngs presented sufficient evidence to create a genuine issue of fact for trial, we vacate the District Court's grant of summary judgment and remand for a new trial."

 

The dissenter, Judge Thomas M. Hardiman, (pictured above) said that "only an environment permeated with discriminatory intimidation, ridicule, and insult will satisfy the onerous standard for a hostile environment."

"The majority concludes that Smith's classroom environment could make a female teenager 'feel uncomfortable' and could cause 'discomfort.' But that is not enough" under the proper legal standard to allow the claim to go to trial, Hardiman said.

Bad Faith Bargaining: Kiona Benton Education Association Breached Its Good Faith Bargaining Obligation

 

AUGUST 29, 2014 by ADMIN

PERC Affirms Ruling Union Improperly Circumvented Employer’s Designated Collective Bargaining Rep

By Therese Norton
LINK

In Kiona Benton School District, the Public Employee Relations Commission affirmed Examiner Coss’s finding that the Kiona Benton Education Association, the Union that represents certain teachers in the School District, breached its good faith bargaining obligation under State collective bargaining laws by refusing to communicate with the District’s designated collective bargaining representatives.

Twice, the District sent emails notifying the Association of its two designated representatives and, if those individuals were not available, that the Association could contact the Superintendent of the District. The Association responded by email to one of the designated representatives indicating that the Union’s representative would not contact the designated point of contact and would only communicate with the Superintendent.

On Appeal, the Association argued that it did not commit a refusal to bargain unfair labor practice, because the District had repeatedly departed from its direction and a different Employer representative communicated directly with the Association regularly.  The Association also argued that the two designated individuals were unavailable or unqualified to respond when the Association contacted another Employer representative.

The Commission was not persuaded and found that the Association’s arguments were “attempts to justify” its actions.  The Commission reasoned that regardless of the Union’s explanation, the fact remains that the Union representative put in writing his refusal to communicate with the Employer’s designated representative.  The Commission determined that the response from the Union was “a clear refusal to communicate with the employer’s designated collective bargaining representative.” Therefore, the Commission concluded that the Union’s refusal interfered with the Employer’s right to select its representative for collective bargaining.

The Commission distinguished between Union officials’ right to lobby public officials on public issues and when a Union official commits an unfair labor practice by circumventing the Employer’s chosen bargaining representative.  In this case, the Commission explained that the District had designated a primary representative and the Association crossed the line into an unfair labor practice when it specifically informed the District that it would not communicated with that designated individual.

For a more about this case, please refer to our previous blog article.

Editor’s Note [Chris Casillas]: This case should not be viewed as prohibiting or limiting the ability of a union to directly contact and petition the elected representative(s) of an Employer.  In fact, PERC reaffirms in this case that Unions have such a right.  What set this case apart was that the Union officials repeatedly refused to funnel their communications through the Employer’s designated bargaining representatives, and instead sought to contact the School Superintendent directly on matters of collective bargaining.  While both sides have to respect who the other side has designated as their bargaining representatives, this does not mean that the Union is prohibited from seeking out and petitioning their elected officials to lobby on behalf of their members.

FILED UNDER: BAD FAITH BARGAINING

 

In Washington State, PERC Examiner Finds Bad Faith Bargaining

PERC finds Deputy Sheriff’s Association Bargained Regressively on Eve of Interest Arbitration

By Therese Norton

LINK

Both employer and union can violate their good faith bargaining obligations under the state collective bargaining laws when one party advances proposals prior to interest arbitration that are regressive from proposals made earlier in negotiations. In Spokane County (Spokane County Deputy Sheriff’s Association), PERC Examiner Stephen W. Irvin found, and the Commission affirmed, that the Spokane County Deputy Sheriff’s Association breached its good faith bargaining obligations by submitting a regressive wage proposal after impasse and shortly before the parties’ scheduled interest arbitration hearing.

The Association had initially tied its wage proposal to the Consumer Price Index (CPI); however, the Examiner had concluded that prior to arbitration the Association severed the tie to the CPI when conveying its wage proposal to the interest arbitration panel, resulting in an escalated wage demand.

The Association argued that it never intended to tie its wage proposal to CPI-U, because its proposal was meant to offset the potential of significantly higher out-of-pocket medical costs. The examiner evaluated the union’s overall bargaining behavior and concluded, “Despite the employer’s insistence on a wage freeze for 2012 and 2013, the possibility existed that the parties could have reached a settlement on the courthouse steps prior to interest arbitration.  The window of opportunity for a negotiated settlement closed abruptly, however, when the union switched courses on its wage proposal following months of bilateral negotiations and mediation in which it consistently maintained its initial proposal to link wage increases to CPI-U.”

Regressive bargaining occurs when one party at the bargaining table in some manner evidences an attempt to make a proposal less attractive. The Commission has determined, and the Washington Supreme Court has affirmed, that interest arbitration represents a continuation of the collective bargaining process and of the parties’ obligation to bargain in good faith. In this case, the union argued that its wage proposal did not infect the bargaining process, because the bargaining process was finished once impasse was declared.  The examiner disagreed, explaining that impasse can and should be broken if possible, even after the Executive Director has certified the matter for interest arbitration. “Offers can be changed after interest arbitration has been invoked, particularly when there is an apparent attempt to narrow the parties’ differences.”

The examiner explained the impact of the Association’s behavior. “Instead of narrowing the parties’ differences, the union frustrated the collective bargaining process by making its wage proposal less attractive to the employer and making it less likely that the parties would be able to reach agreement.”

Examiner Irvin also rejected the union’s argument that the employer’s complaint was not timely. The examiner determined that it was reasonable for the employer to conclude that the union’s subsequent email regarding its wage proposal was tied to CPI-U as it had been in its initial proposal. Therefore, the examiner determined that the employer knew of the change in the union’s position and filed its complaint within the six months statute oflimitation.

As a remedy, Examiner Irvin ordered the union to cease and desist from its illegal activity, to post appropriate notices, and to enter the interest arbitration hearing with the initial wage proposal it provided to the employer in which the wages were tied to CPI.

Editor’s Note (Chris Casillas): This case is a good reminder that the good faith bargaining obligation does not cease to operate once an impasse is reached and the parties have been certified for interest arbitration.  There is a statutory obligation that all collective bargaining be done in “good faith.”  The interest arbitration process was designed to be a final step in the process to reach a new collective bargaining agreement, but it is still a part of the collective bargaining process as a whole.  As such, both the employer and union must act in a manner that each side would reasonably believe could bring the parties closer to a deal rather than escalating any demands, and such an obligation continues through the arbitration process.  

FILED UNDER: BAD FAITH BARGAINING

 

The NYC Department of Education and The Employment of Investigators at OSI, DOI, SCI, OEO

I am re-posting a very important post written by Francesco Portelos for his blog, Protectportelos.org, on the taxpayer fraud at the DOE.

We are paying for the DOE/DOI/SCI/OEO/OSI investigators to investigate us. And it all starts with asking "where is the money?" Similarly, "where do my tax dollars go?" We, the general public, have no way to counter their rulings except in expensive and time-consuming litigation.

I have posted many times that on May 23, 2000 our current Chancellor, Carmen Farina, called me up at home screaming, cursing, and verbally attacking me after I asked where the money was going that had been given to PS 6 and PS 198 for the Arts. I listened to 20 minutes of horror. It was quite a shock, because at the time I was new to the public school system, and had worked with Carmen for 2 years on setting up a project called the Arts Together Community Partnership, my idea.

No one told me that after I asked where the grant money went, I, my children, and my life would be harassed, investigated, and harmed.

My point is this: if you see something in a school that you think is a violation of law, rights, or theft, report it, in writing and in detail, to a person outside of the ring of thieves DOE/DOI/SCI/OEO/OSI, like a lawyer, the police, the District Attorney. Document everything, who you go to, who you talk to, etc. This is VERY important.

 And if you are told that you must go speak with an investigator, GO!!! but be cautious in answering their questions, as their goal is to charge you with whatever happened. And always assume that everything you say to anyone is being taped.

Betsy Combier

The Special Commissioner of Investigation’s Hand is in the Pocket of the Chancellor?

 SEPTEMBER 26, 2013

SCI Richard Condon is in the Pocket of the DOE Dennis Walcott?

Part 1 of the EducatorFightsBack.org’s  SCI Series

The Special Commissioner of Investigation’s Hand is in the Pocket of the Chancellor?

Relax…it’s a question, not a statement. Notice the “question mark” at the end? Just a quick thank you to my public school teachers for teaching me proper punctuation and grammar. Any mistakes you see with commas and wrong use of capitals are mostly my lack of proofreading. Sorry, but I’m fighting for my career and trying to be a father and husband, so these posts are often written and posted quickly. Never written without thought though.

In any case, back to the question above. The Special Commissioner of Investigation’s Hand is in the Pocket of the Chancellor? I’m simply asking who pays Special Commissioner of Investigation Richard Condon and the rest of the investigators and lawyers of SCI. Not a valid question? I mean two of them, Mr. Martucci and Mr. Romano, paid a visit to my father-in-law this past summer at his job, while my family and I were in Greece. That is three months after the 14 month investigation on me was over (See report here).

More recently, the day before my 3020-a termination hearing was tostart, the two investigators came back and visited my mother-in-law at her apartment where she watches my two boys. That was just two weeks ago today. To make it even more interesting, she told me they were playing with my son. Hmm….I mean I know I have been a big job security for the over 13 investigators, but I don’t think we are at the level where they can come “gaga googoo” with my kids. Apparently there are even more investigations on me and that brings the number up to a whopping 38 . Yes, 38 investigations on me that all started afterI questioned the budget and put in my own complaint about my principal’s alleged financial misconduct. By the way, SCI did not take that case and referred it to the DOE’s Office of Special Investigation (OSI). Yes for over 600 days the DOE has been investigating the DOE.

This brings us to the meat and question of this post. Who investigates what and who is paying for it. You would agree that following the papertrail is important as “Cash is King”, correct?

The DOE has two investigative bodies that are under the jurisdiction of Chancellor Dennis Walcott. That is OSI and OEO (Office of Equal Opportunity. Now OSI typically takes cases of corporal punishment of students and OEO handles discrimination and harassment. I italicized the word typically for a reason. SCI, who works under the NYC Department of Investigation (DOI), takes on “more serious” cases and can defer cases to OEO and OSI, so some cases not involving corporal punishment, harassment and discrimination can be investigated by OSI and OEO if referred.

Are you still following? Maybe this will help:

DOI—->SCI

DOE—-> OSI and OEO

Now seeing this and watching the news when Richard Condon is talking about some higher profile investigation, you would think that SCI is unbiased, a body way above the DOE and therefore impartial, right? They owe no allegiance to the DOE, so why would any SCI investigation and finding be flawed or biased. A United Federation of Teachers (UFT)lawyer once told me “The DOE is scared of SCI and hates them, because SCI investigates them.” <cough>bullsh*t<cough>.

You see, while I was in educator exile I did a little investigating of my own and this is what I found:

By using the website www.seethroughny.net, you are able to put in any city employee and see their salary for the last few years. You can also see their overtime and per-session. What interested me the most is that you can actually also see where the money comes from. Let’s take a look and compare, shall we?

Here is DOE Chancellor Dennis Walcott’s:

Notice the Agency that pays him is the Department of Education?

Next we enter an arbitrary DOE lawyer like David Brodsky

Now let’s pop in the Commissioner of the NYC Department of Investigation, which is above SCI and separate from DOE.

Rose Gill Hearn Payroll

Ok, that makes sense. She is paid from the budget of the Department of Investigation.

Now Let’s just plug in Richard Condon in the search. Should be DOI as well, right?

Ehhh…wrong.

Wait…What the what? Richard Condon get’s paid from the budget of the DOE? The same body he investigates?

There must be some mistake. Let’s enter another SCI employee like Chief Investigator Thomas Fennell. By the way, I know way too many names of investigators for being a mild-mannered tech teacher. Mr. Fennell assigns cases and I believe also refers or even decides not to investigate them.

What? Paid from the DOE as well? I did this for all the investigators I know and all the same. Even the lawyers who were involved in denying my whistleblower complaint.

What? You want more proof that the DOE pays Richard Condon and his office from their $25 billion budget?

Ok, well look what else I found when I looked at my own school’s budget and expenditures from 2010-2011. Looks like we paid about $6,637 to the Special Commissioner of Investigation. Unless I’m reading it wrong. Click Here for School budget link

Finally….I simply asked SCI who pays them.

Response below

———-

From: Ann Ryan <aryan@nycsci.org>
Date: Tue, May 28, 2013 at 4:02 PM
Subject: Request for information
To: “Mr. Portelos” <mrportelos@gmail.com>

Dear Mr. Portelos:

I have been asked to respond to the e-mail request for information you made on May 15, 2013 at 12:58 p.m. to, it appears, www.nyc.gov.  That inquiry was ultimately forwarded to me.  You asked:

“Is the Special Commissioner of Investigation [(“SCI”)] a totally separate entity from the NYC Dept of Education?  Does it receive any funding from the NYC DOE budget?” 

The answers to these questions can be found in the Executive Order which established SCI.  This document can be found on SCI’s website.   

Section 1 of Executive Order No. 11 of 1990 requires the Commissioner of Investigation to appoint a Deputy Commissioner of Investigation for the New York City School District, “who shall be independent from the Board of Education.”

Section 5 requires that “[t]he salary and expenses of the Deputy Commissioner and his or her staff shall be borne by the Board of Education, within a budget allocation mutually agreed upon by the Board of Education and the City, provided however, that such budgetary allocation will be sufficient to ensure the effective and independent performance of the duties and responsibilities of the Deputy Commissioner.”

(Subsequently, Executive Order No. 34 of 1992 changed the title “Deputy Commissioner” to the “Special Commissioner of Investigation.”)

Very truly yours,  Ann Ryan, SCI

————————————-

And there you have it.

Let’s just look at this analogy here. One SCI investigator once said to me “You are always using analogies. It’s probably because you are a teacher.”

Imagine you owned a house and you needed an inspector to check on some violations. You call Jim Bob Inspection and pay Jim Bob to come and investigate for any violations or issues. He investigates and you cut him a check. Once he leaves he sends you a report with his findings and on top of that calls the Department of Buildings who then fines you. Yes, you paid Jim Bob and yes he investigated, but in the end he found thatyou had violations. Not a likely story?

Did you follow that analogy? How impartial is impartial? So is the commissioner’s hand in the pocket of the chancellor? Not physically, but it appears Chief Financial Officer Michael Tragale cuts them a check.

Also check out Betsy Combier’s coverage here: Two Reports, “Investigating The Investigators”, and ‘The Gill Commission Report’ (1990) Dont Improve New York City Public Schools

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