MORE Caucus Demands That The UFT Files Grievances For Members

The UFT Won’t File Grievances

Posted bymorecaucusnyc

June 18, 2020Posted inContract, Observation Report for UFT Leadership, remote learning

If Educators Can’t File Grievances, Do We Have a Union Contract?

Over the week of March 9, it became increasingly clear that schools needed to close in New York City. Schools were already closed or closing in many states and Greater New York, as the most densely populated metropolitan area in the country, was at a higher risk of rapid spread than anywhere else. 

By the end of the week, the UFT leadership began its ‘fight’: vowing to file a labor complaint, considering a lawsuit against the DOE, and eventually claiming it would file an injunction with the Supreme Court (as if they would care more than De Blasio). 

Meanwhile, rank and file UFT members were organizing to protect themselves and their students. Job actions such as sick outs, walk-ins, and walk outs were discussed and planned in many union chapters across the city. De facto sick outs among educators and families alike were already happening for the entire week prior, and it was obvious the time to shut the schools had already passed. 

At this point, UFT leadership and rank-and-file members agreed on the problem, but not the solution. 

On Sunday March 15, facing rock bottom student and teacher attendance the next day, Mayor De Blasio finally closed the schools. Analysis since then has come to the consensus that it was the militancy of rank and file members, not the abstract legalese of the UFT leadership, that forced the schools to close. 

Nevertheless, from March 17-19, public educators were told to report to school in order to transition to remote learning for the foreseeable future. Why was it necessary to ask educators to travel across the city to meet physically to learn how to teach remotely? No one knows, and no one remembers any valuable training happening. Two months later, over 100 educators have died, 16% of students still do not have access to remote learning, and about 50% overall do not actively participate. It’s as obvious as ever that the DOE and UFT were unprepared and incompetent in this crisis. 

Now, the UFT doesn’t have the backs of its members. In April, almost 300 rank-and-file members filed grievances against DOE administration, citing violations of contractual provisions related to health and safety, as the DOE clearly violated health advisories from federal, state, and its own city government in allowing schools to remain open during the weeks of March 9 and March 16. The grievants wanted paid sick days added for all members, both those who reported and those who stayed home in order to protect themselves.

Instead of fighting for these members’ rights, UFT district representatives repeatedly told UFT rank and file members that grievances could not be filed. However, no written agreement between the UFT and DOE stipulates this. Further, there is a statute of limitations for filing grievances; if the DOE has not agreed to waive these limitations, the DOE could reject the grievances, as the time for filing those has already expired. Rather, the UFT was refusing to pursue these grievances, and by extension refusing to fight for the dignity of members who were put in harm’s way in March. 

The UFT leadership has gone from an incompetent adversary of the DOE to a willing accessory in direct violations of educators’ health and safety. The message regarding grievances is that they are closed and indefinitely suspended. 

Immediately, the UFT needs to do the following: 

• file all grievances for teachers remotely, the same way teachers are teaching remotely
• negotiate a  strong contract for online learning similar to that of the United Teachers of Los Angeles
• establish a specific and thorough safety plan for re-opening schools
• prepare rank-and-file for potential work actions in the fall, through political education and reorganization of the union to democratize it and maximize rank-and-file voice and action

During this time, more than ever, the UFT needs to be active, militant, and transparent to organize membership for fights ahead. This is no time to let the grievance process lapse. These actions towards members by the  UFT leadership show bad faith in representation and a lack of basic solidarity. The time to show resolve and strength is now. We’re fighting, we’re watching what our union leadership does, and we’ll remember it. 

by Derek Hafner, David Price, Caroline Sykora, Marian Swerdlow, and Andrew Worthington, all rank-and-file members of the United Federation of Teachers

Matter of Anna Finkelstein v Board of Education and the Importance of the UFT Grievance Process

Decision by a Panel of the Appellate Division, First Department in Matter of Finkelstein v. Board of Education, __A.D. 3d__, N.Y.L.J. 5/15/17 p. 19 col. 3 [1st Dept. 2017] reversing Justice Alice Schlesinger’s ruling on behalf of a probationary teacher, appearing in the May 15th New York Law Journal.

It underscores the importance of availing oneself of existing grievance procedures set forth in the collective bargaining agreement (C.B.A.), and a willingness (at least by this appellate panel) to excuse (or ignore) the investigator’s written report as a perceived “technical violation” of the  C.B.A.

She was deemed entitled to nine days pay, pursuant to Education Law Sec. 3019-a, due to insufficient advance notice of her termination of employment.

Matter of Finkelstein v Board of Educ. of the City Sch. Dist. of the City of N.Y.

2017 NY Slip Op 03850

Decided on May 11, 2017

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on May 11, 2017 
Sweeny, J.P., Richter, Andrias, Feinman, Kahn, JJ.

3959 101540/14 

[*1]In re Anna Finkelstein, Petitioner-Respondent,

v

Board of Education of the City School District of the City of New York, et al., Respondents-Appellants.

Zachary W. Carter, Corporation Counsel, New York (Deborah A. Brenner of counsel), for appellants.

Office of Richard E. Casagrande, New York (Gregory M. Ainsley of counsel), for respondent.

Order and judgment (one paper), Supreme Court, New York County (Alice Schlesinger, J.), entered February 16, 2016, denying respondents' cross motion to dismiss the amended petition, or, in the alternative, to submit an answer, granting the amended petition, which sought, inter alia, to annul the determination of respondents, dated December 23, 2014, discontinuing petitioner's probationary employment, and ordering that she be reinstated with full salary and benefits retroactive to September 30, 2014, unanimously reversed, on the law, without costs, the judgment vacated, the petition granted only to the extent of awarding petitioner nine days' pay in accordance herewith, and the cross motion granted to the extent of dismissing the petition insofar as petitioner seeks reinstatement of her probationary employment, retroactive pay in excess of nine days salary and benefits.

Petitioner failed to avail herself of the grievance procedure set forth in her collective bargaining agreement before commencing the instant action seeking relief under CPLR article 78 (see Matter of Gil v Department of Educ. of the City of N.Y., 146 AD3d 688 [1st Dept 2017]; see also Matter of Sapadin v Board of Educ. of City of N.Y., 246 AD2d 359, 360 [1st Dept 1998]), and the court erred in relieving her of her obligation to exhaust her administrative remedies.

In any event, a probationary employee may be terminated for "almost any reason, or for no reason at all," as long as it is not "in bad faith or for an improper or impermissible reason" (Matter of Swinton v Safir, 93 NY2d 758, 762-763 [1999]; see also Matter of DeVito v Dept. of Educ. of the City of N.Y., 112 AD3d 421 [1st Dept 2013]). "[T]he burden falls squarely on the petitioner to demonstrate, by competent proof, that a substantial issue of bad faith exists, or that the termination was for an improper or impermissible reason, and mere speculation, or bald, conclusory allegations are insufficient to shoulder this burden" (Matter of Che Lin Tsao v Kelly, 28 AD3d 320 [1st Dept 2006] [internal citations omitted]; see also Matter of Witherspoon v Horn, 19 AD3d 250 [1st Dept 2005]).

The record shows that petitioner's dismissal was made in good faith and was based on substantiated findings after an independent investigation demonstrating that she neglected her duties and falsified records (see Matter of Thomas v Abate, 213 AD2d 251, 252 [1st Dept 1995]). The investigator's delay in publishing the written report amounted to a mere technical violation of the collective bargaining agreement, as petitioner received timely notice of the allegations, as well as an opportunity to respond, prior to the issuance of the report (see Matter of Freytes v City of New York, 146 AD3d 678 [1st Dept 2017]). The court's conclusion of bad faith stemming from the lateness of the report was purely speculative (see Thomas, 213 AD2d at 252).

However, petitioner is entitled to nine days' pay pursuant to Education Law § 3019-a [*2]because she was given inadequate notice of her termination (id.; see Matter of Tucker, see Matter of Tucker v Board of Educ., Community School Dist. No. 10, 82 NY2d 274 [1993]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 11, 2017

CLERK

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

•  David Brodsky, Director
     (212) 374-7954
  DBrodsky@schools.nyc.gov

Karen Solimando, Deputy Director
(212) 374-7990
KSolimando@schools.nyc.gov

• Dimitrios (Jim) Gounelas,Deputy Director, Arbitration
  (212) 374-7926
  DGounelas@schools.nyc.gov
  
  

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