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Friday, April 24, 2015

Why Do Grievants Lose Their Grievance Hearings? Hearing Officer Marcel Kshensky Explains

Most people who have been through the grievance process at either 49-51 Chambers Street, 6th floor, or at 65 Court Street in the offices of Appeals and Reviews , leave thinking one or the other of the statements below are true:

1. Gosh, my UFT/DC37/CSA Rep. did a great job!! I'm sure that I won!!

2. There is something wrong with this process, the principal/AP/Respondent didn't show up and just spoke by telephone, and I was not allowed to speak/enter documents/have witnesses.

And then, after several weeks or months, you find out you lost.

The grievance procedure is a scam, charade, theatrical performance, etc., played out by all parties excluding you, the grievant, who may be thinking that all due process rights are being honored. Nope, not at all, sorry. The reps and hearing officers know this. But no one challenges the status quo. I want to add that this is in no way an attack on the individuals who hear/represent/testify at these hearings. They do their job. I expose the process they use, and the rules or policies they use to justify their actions.

See Marcel Kshensky, Susan Holtzman, and "Sham Closings"

Here is what the public knows about Hearing Officer Pedro Crespo: 
An Investigation Into Misconduct in Community School District 7

Susan Vairo

In 2013 I was hired as the paralegal at a 3020-a of a UFT Chapter Leader at C.S. 133 who was charged with 3020-a after the principal, Susan Vairo, took all employees off of the ATS and allowed access only after classes were over for the day. A teacher with a full program was given the duty of getting on the ATS for any employee who needed to view the information. This was a severe hardship for everyone. My client, the Respondent, spoke to the Principal as the Chapter Leader, and he questioned this policy. He was retaliated against and charged with 3020-a.

The arbitrator, Roy Watanabe, asked us - the attorney (Fred A.) and paralegal (me) to provide him with a brief on the Chapter Leader's First Amendment rights to speak within the school as the elected Chapter Leader, and we did this. Watanabe did not agree that the CL had any right to question Ms. Vairo, who was removed from the school by Superintendent Gale Reeves

Superintendent Gale Reeves
 and given a desk job at Tweed. The CL was given a fine and made an ATR.

Before the CL was charged with 3020-a, he grieved what the Principal was doing to him as the CL, and was shocked to find that he lost the grievance. He testified that he was not allowed to have any witnesses.

Marcel Kshensky

The DOE Attorney at the 3020-a, Lisa McFadden, (49-51 Chambers Street, Room 604, 212-374-4204)

brought in the Hearing Officer as a rebuttal witness. The Hearing Officer was Marcel Kshensky, a person who, in my opinion, should not be a hearing officer.  Ms. McFadden asked Mr. Kshensky to testify about how the grievance procedure worked.

I uploaded Kshensky's testimony at the CL's 3020-a on January 7, 2013 (I re-formatted the testimony so that it would not be in columns).

His testimony was that he is a consultant for the Office of Labor Relations but he does not work for the Department of Education.

Huh? I really don't get that. So who pays him?

And there are several shocking bits of information in the pages below which Grievants probably don't know.

1. Karen Solimando, Deputy Director of the Office of Labor Relations under David Brodsky, signs the Chancellor's name on all decisions after she writes them. The paperwork for every part of the grievance is done at OLR, and never leaves the building or goes to anyone outside of the Department of Education .In my opinion, this is not fair to the grievant, because Ms. Solimando does not attend the hearings, cannot determine credibility, and has only the scribbled notes of the hearing officer to work with. It seems to me that the decision is made in an arbitrary and capricious manner, without basis in the facts, only the paperwork submitted by the DOE Principal.

And then there is Hearing Officer Pedro Crespo.

Labor Relations

The Office of Labor Relations (OLR) provides daily support and guidance to both school-based and non school-based supervisors citywide concerning all labor relations matters including contract interpretation and employee performance/discipline. OLR advocates on behalf of principals and other DOE supervisors at contract arbitration hearings, as well as administers the Expedited Time and Attendance Process, which is an effective tool for principals to address tenured pedagogues in their schools with problematic time and attendance records.
David Brodsky
2. The Department of Education, Office of Labor Relations, and the UFT all know that the UFT Collective Bargaining Agreement does not allow anyone to grieve a letter to file, yet all of the above parties allow the grievant to go to Step 3(2?) at 49-51 Chambers Street, anyway. What a waste of time and money.

I have spoken to several UFT Reps who are not happy with this grievance procedure, but tell me, "that's the way it is".

Also, there is a limited number of grievances allowed to be heard each school year. I heard that the number is 200. If you are 201, forgetaboutit.

Francesco Portelos has also written about this process, see:

UFT and DOE agree: If it’s not in the contract, you could be made an ATR at anytime. Francesco writes about Marcel Kshensky:

Listen carefully as Marcel Kshensky asks “Where is that written?” in reference to the statement that a teacher cannot be made an ATR based on a 3020-a hearing.  When my rep states it’s “not in the contract,” Marcel responds “Right, but it doesn’t prohibit it.” <——-?

Again, the chancellor’s representative is basically saying if the contract doesn’t say the DOE can’t do something, then therefore it can.

Make sure you catch the so-called "signature" of Carmen Farina on his grievance.

That is not her signature, it's Karen Solimando, writing Carmen Farina's signature.

Betsy Combier 

Carmen Farina

Arbitration Advocacy - Excerpts