Thursday, December 29, 2005

Appellate Court Affirms Right to Union Representation During Disciplinary Interview

The Appellate Division, Second Department affirmed a transit authority employee’s right to have his union representative present during an interview he believed to be disciplinary. In affirming this right Justice Cozier of the Brooklyn Appellate Court found that this right, first affirmed for private sector employees by the US Supreme Court in NLRB v. Weingarten (and referred to as “Weingarten” rights—no relation to our esteemed president) applied equally to pubic employees in New York.

On April 24, 2001 the New York City Transit Authority received a written complaint from one of its employees alleging that Igor Komarnitskiy, a fellow employee and member of the Transport Workers Union, Local 100 made a racial slur. That same day a supervisor requested that Komarnitskiy prepare a written memorandum, known as a G-2 form, responding to the allegation. Thereafter, Komarnitskiy requested and was allowed to privately meet with a TWU Shop Chair at TWU's office, wherein the TWU Shop Chair assisted him with preparing the G-2 form.

After Komarnitskiy submitted the completed G-2 form to the petitioner, the petitioner requested that he prepare a second G-2 form in the office of its superintendent based upon its concern that the TWU Shop Chair either prepared the initial G-2 form or influenced its contents.

Although Komarnitskiy requested that the TWU Shop Chair be present in the superintendent's office while Komarnitskiy prepared the second G-2 form, the Transit Authority denied such request, requiring him to prepare such form in the presence of management, without any union assistance.

On May 8, 2001, TWU filed with the New York State Public Employment Relations Board an improper practice charge against the Transit Authority alleging that the TA interfered with TWU's ability to represent its members in violation of Taylor Law § 209-a(1)(a) and (c) by failing to recognize the employee's right under such law to have union representation while being questioned regarding an incident which could result in disciplinary action. In response, the TA filed its answer, maintaining, among other things, that a union member has no right to have a union representative present when interviewed by a supervisor regarding an incident occurring in the workplace.

PERB found that the TA had violated the Taylor Law and found that rights guaranteed under Weingarten were equally applicable to public sector employees. Under Weingarten the Supreme Court found that the right to union representation at investigatory interviews was based on the basic right of employees to engage in union and concerted activity under the National Labor Relations Act. It is an unfair labor practice to interfere with, restrain, or coerce employees in the exercise of their rights.

The Second Department affirmed the reasoning in the PERB decision. The Court found that despite some cases holding that individual rights are not specifically protected under the Taylor Law the right of representation was basic to the Act.

The Transit Authority can seek permission to appeal to the state’s highest court, the Court of Appeals.

Wednesday, December 28, 2005

Contract Implementation Woes Beginning: Union and DOE Disregard Staff Rights

In blatant disregard of members’ contractual and democratic rights the Union and the DOE, in at least one district, has decided that they know better than the members in deciding how to use the 37 ½ minutes mandated under the new contract.

In a PERB complaint filed yesterday Jeff Kaufman alleges that in the Alternative High School District, the Special Rep and Superintendent fashioned a secret deal that prevented Chapter Leaders and UFT members the right to vote on whether they wanted to change the contractually mandated 37 ½ minute period. They decided that the election, normally required under contract rules, was not “necessary.”
The election, referred to as an SBO election, permits individual schools to modify contract provisions, like the 37 ½ minute period, in a way that better serves the school. Any modification requires 55 percent of school staff to approve it for the modification to become effective.

SBO provisions have always been controversial since they permit changes in a Union ratified contract by a slim majority of staff members. In previous contracts a 75 percent, super-majority was required.
In their secret deal the Special Rep and Superintendent “decided” that the 37 ½ minute period was unnecessary in alternative high schools and forced those schools to accept the extra time added to each teaching period. A number of UFT members in at least two schools wanted the opportunity to decide this contract modification in the democratic process of an SBO election but were prevented from holding the election by this “deal.”

The PERB complaint which seeks immediate rescission of the secret deal alleges as follows:

1. On or about November 12, 2005 United Federation of Teachers (UFT) members ratified a modification of the collective Bargaining Agreement (CBA) between the UFT and the Board of Education of the City of New York (DOE).
2. The CBA was ratified by the DOE on or about November 28, 2005.
3. The agreement provides, in relevant part, for a change in the way the school day is constituted effective February 1, 2006.
4. This change modified the prior CBA by providing at paragraph 7:
“1. Teacher contract Article 6 shall be replaced and amended as follows:
A. School Day
The school day for teachers serving in the schools shall be six hours and 20 minutes and such additional time as provided for below and in the by-laws. The gross annual salary of employees covered by this agreement will be increased in accordance with the salary schedules herein.

  1. The parties agree, effective February, 2006, to extend the teacher work day in “non Extended Time Schools” by an additional 37 ½ minutes per day, Monday through Thursday following student dismissal. Friday's work schedule will be 6 hours and 20 minutes. The 37½ minutes of the extended four (4) days per week shall be used for tutorials, test preparation and/or small group instruction and will have a teacher student ratio of no more than one to ten. In single session schools, the day will start no earlier than 8:00am and end no later than 3:45pm.

  2. Multi-session schools that cannot utilize the additional time in this manner due to space or scheduling limitations will have a 6 hour 50 minute day.

  3. During the ratification process the UFT engaged upon a campaign to convince its members that the then proposed 37 ½ minute period was not required to be a formal instructional period but rather a time when tutoring and small classroom instructions were meant for struggling students.

  4. Shortly after the ratification of the CBA the DOE confirmed this interpretation by issuing through its labor relations counsel’s office, by Daniel Weisberg, an implementation memo which reiterated that the 37 ½ minute period was not for formal instruction and that formal lesson plans would not be required.

  5. The CBA created three exceptions to this new 37 ½ period. For multi-session schools, schools with different start times for staff and students, the CBA provides that where this period cannot be utilized a uniform 6 hour and 50 minute day without the 37 ½ period will be implemented. Additionally District 75 schools (Special Education district) require a uniform 6 hour and 50 minute day without the 37 ½ period unless the principal and Chapter Leader (local UFT leader) agree to implement the 37 ½ minute period. The third exception is contained in the School Based Option (SBO) provision of the CBA.

  6. The SBO provisions provides at Article 8 Paragraph 4(b) as follows:

  7. B. School-Based Options

  8. The Union chapter in a school and the principal may agree to modify the existing provisions of this Agreement or Board regulations concerning class size, rotation of assignments/classes, teacher schedules and/or rotation of paid coverages for the entire school year. By the May preceding the year in which the proposal will be in effect, the proposal will be submitted for ratification in the school in accordance with Union procedures which will require approval of seventy-five (75) percent, and effective September, 2002, fifty-five (55) percent of those voting. Resources available to the school shall be maintained at the same level which would be required if the proposal were not in effect. The Union District Representative, the President of the Union, the appropriate Superintendent and the Chancellor must approve the proposal and should be kept informed as the proposal is developed. The proposal will be in effect for one school year.

  9. Should problems arise in the implementation of the proposal and no resolution is achieved at the school level, the District Representative and the Superintendent will attempt to resolve the problem. If they are unable to do so, it will be resolved by the Chancellor and the Union President. Issues arising under this provision are not subject to the grievance and arbitration procedures of the Agreement.”

  10. Upon information and belief no other modification of the CBA is permitted without UFT membership approval.

  11. The undersigned is the duly elected Chapter Leader for Austin H. MacCormick Island Academy, a DOE high school located on Rikers Island serving incarcerated adolescents. Island Academy is a school located within the Alternative High School District. He is also a duly elected member of the UFT Executive Board representing all of the DOE’s high schools.

  12. Chapter Leaders are charged with the responsibility of implementing the CBA at the local school level. Among the Chapter Leader’s responsibilities include implementation of the SBO provisions by conducting elections of the Chapter where modifications are agreed to by the Chapter Leader and principal. Should less than 55 percent of the local chapter not agree to the proposed CBA modification that modification is not implemented and the CBA provisions govern.

  13. On or about December 15, 2005 I received an email from Marc Korashan, UFT Special Representative assigned by the UFT to represent all UFT chapters in the Alternative High School District, District 79. This email stated, in relevant part:

  14. “D79 the schools that are multisited can be seen as multi-session and be allowed to go to the 6 hour 50 minute day. I disucssed this with the Superintendent and we agreed on this. These schools have small classes already and many have pm school where students can earn credits. They will get the most productive use of the time by increasing the day. This also does the least damage to the existing after school programs and the members earning per-sesion dollars for pm school. This does not require an SBO vote.”

  15. Upon information and belief this “agreement” to deprive Alternative High School UFT Chapter Leaders and members of their contractual right to democratically decide what, if any, CBA modifications should be made at their respective schools.

  16. Both the DOE and UFT had ample opportunity to modify school day schedules in the CBA which was ratified as evidenced by the District wide exception in District 75.

  17. Several attempts were heretofore made to void the “agreement” entered into between Marc Korashan and the Superintendent, Timothy Lisante, all with negative results. These included requests to meet with the UFT President, Randi Weingarten and the Secretary, Michael Mendel.

  18. This charge seeks the voidance of the “agreement” entered into between Marc Korashan and Superintendent Timothy Lisante and the restoration of the duly ratified CBA in the Alternative High School District.
No date has been set for further proceedings.

Wednesday, December 21, 2005

From the Teachers at Health Professions

To Transit Workers Union Local 100:

We, the teachers of Health Professions High School are in solidarity with the striking transit workers of TWU Local 100. We recognize that their strike is in the interest of the working class.

We would like to thank you for fighting back against fines, threats, and the power of the MTA, the city, and state governments. Thank you for, as Bloomberg says, “immorally and selfishly” breaking the anti-union, anti-working class, and unjust Taylor Law. By fighting for what is right, you illustrate the essence of justice and morality to all workers and students.

While the strike will cause short term suffering for workers living in New York, it is a sacrifice that benefits and supports workers everywhere in the long term. The strike exposes the underlying problem of the working class’ eroding standard of living due to rent, gas, and food prices rising faster than our wages. Executives use the lowest wage they can pay one union to set the pattern of bargaining for future union negotiations; you are forcing them to raise the wage for all bargaining in future union negotiations.

Thank you, the transit workers of the TWU for not just fighting over the narrow demands of wage increases and pensions, but against dangerous speed ups, toxic work conditions, and the general interests of the working class. Your working conditions are our living conditions, because we must ride the transit system on a daily basis. Your solidarity across racial and gender lines will help all who must work for a living. When unionized workers’ rights erode, the non-unionized workers suffer even more.

Thank you for not “eating your young” so that only one section of the TWU benefits, and illustrating solidarity across age, time, and experience barriers. You are fighting to raise the future wages of our students, as the rights you fight for now will set the pattern of bargaining for them in the future. We will support you by joining your picket lines during our off hours, raising funds for your sacrifice, distributing this letter, and by raising awareness of your struggle among students, parents, and staff.

You are fighting to preserve the legacy of a union’s power by fighting for your own self-interests, as opposed to hoping for the goodwill of the MTA at the bargaining table. You said that “cutbacks means fight back” and you meant it. Thank you for being an example to all workers in this time of unions capitulating to the bosses’ demands and thus sacrificing our living standards. We thank you, support you, and are emboldened by your actions.

In Solidarity,

The Teachers of Health Professions High School
UFT Chapter

Thursday, December 15, 2005


By James Eterno

The Fighter or the Appeaser

     Ever since the membership was convinced to accept a substandard contract that gives away many of our rights, the UFT leadership has been talking tough about the next round of bargaining coming ahead in 2007.  President Randi Weingarten has said that her goal is to possibly return the UFT to a “No Contract=No Work” policy.  That would mean the October 12, 2007 date when our current contract expires would be a real deadline.  There would be tremendous pressure on the city to negotiate a new contract with favorable terms for us because if the city would not settle the contract on time, we would be prepared to go out on strike.  (The Transport Workers Union Local 100 has a No Contract=No Work policy in dealing with NYC Transit.)  Randi is talking real militancy, right?  Well, maybe not.

     At the same time that she is telling us we have to be ready to have a credible strike threat and a meaningful deadline, Randi is urging us to send postcards to Governor George Pataki in which we urge the Governor to sign a Taylor Law reform bill passed by the State Legislature that would allow the city to delay for six months after the date that our contract expires.  Then, after the six months are over, the impasse procedure that leads to the same mediation and arbitration process that resulted in the horrific givebacks in the current contract (37.5 minute extended time small group instruction sessions, hall and cafeteria duty, longest school year in the region, loss of the right to grieve letters to our files) would automatically commence.  

In the last round of bargaining, ICE representatives spoke out strongly at the Executive Board against going to arbitration because we knew we would lose.  However, Randi ignored us back then and now she is asking us to lobby the governor for a bill that would get us to arbitration even sooner in the next round and lead to a further erosion of what remains of our rights.

     Which Randi do we believe?  Is it the tough talking Randi who wants a “No Contract=No Work” militant union?  Or is it the conciliatory Randi who wants us to push a bill that would allow the city to stall for six months after our contract expires and then sends us right back to mediation and arbitration where we will lose again?  Only in the bizarre world of the UFT could the leadership push militancy and conciliation at the same time.  Talk about a contradiction.  It leads me to believe that Norman Scott is right and the renewed militancy is a mere facade for the members and there is no true reform going on in the UFT.    

Sunday, December 11, 2005

New Contract Demonstrates DOE Plan to Pit CSA Against UFT

The current confusion over the implementation of the new contract is turning out to be a first look at just how the DOE will cause principals to absorb all of the blame for the contract’s failure. It is no secret that by shifting an unprecedented amount of discretion to principals the UFT leadership will join in this attack. In the end, no doubt, the teachers and students will suffer.

Two cases in point.

Under the new contract many schools will be starting a 37 ½ minute period for struggling students. The contract states, quite clearly, “The parties agree, effective February, 2006, to extend the teacher work day in “non Extended Time Schools” by an additional 37 1/2 minutes per day, Monday through Thursday following student dismissal. Friday's work schedule will be 6 hours and 20 minutes. The 37 1/2 minutes of the extended four (4) days per week shall be used for tutorials, test preparation and/or small group instruction and will have a teacher student ratio of no more than one to ten. In single session schools, the day will start no earlier than 8:00am and end no later than 3:45pm.

The leadership’s massive spin machine “sold” this provision to the membership guaranteeing that this would not turn into another class period. The most blatant signal that this is or is not a “teaching period” is whether a lesson plan is required and whether it may be formally observed. As to the lesson plan we were and are continually assured that this is not necessary. No quick answers on formal observations yet but it is hard to imagine how they could be permitted if no lesson plans are required.

Then comes the regional principal meetings in which regional superintendents throughout the city are ordering their interpretation of this period. Are lesson plans required? No, according to at least one regional superintendent.

“But what happens when I walk into a classroom and no learning seems to be taking place?” a principal asks.

“Ask for a lesson plan,” is the reply.

Another issue starting to boil came up in these regional meetings. Under no circumstances may any teacher opt out of the 37 ½ minute period. That includes deans, programmers and other comp time positions. Disruptive students in this period under this plan will, we surmise, be supervised by supervisors.

And we haven’t even discussed Circular 6R. Stay tuned. It gets worse.

Tuesday, December 06, 2005

Executive Board Report - December 5, 2005

It’s hard to believe that we are on the cusp of a new contract and there is little to do at the Executive Board. One report from districts and one resolution. Of course, there were questions and I took a point of personal privilege to indict the leadership on the way they have handled my case and my school’s chapter. (The sole report was a defense of my accusation).

First, the resolution. We unanimously agreed to support the graduate teaching assistants currently on strike at New York University.

Second, the questions. On October 6, 2005 I was removed from my teaching position pending an investigation to be preformed by the Department of Corrections. At the time I was assured by the Union’s leadership that a PERB charge would be filed with all deliberate speed.

I met with NYSUT lawyers and was assured that this matter has a top priority and would be brought to a hearing as soon as possible. A resolution by the Executive Board and then the Delegate Assembly was passed unanimously in my support and ordered the filing of the PERB charge.

By December 5th, almost two months after I was removed and assured that the charge would be filed expeditiously the charge was still not filed. I asked why not and miraculously the charge was filed today.

The second question dealt with the way in which my Chapter was handled and is being handled by the Union in my absence. I designated two interim Chapter Leaders who have been in constant communication with me. The principal refuses to deal with me about Union issues. When I complained at a previous Executive Board meeting as to why my Chapter was being neglected by the Union, Randi ordered two District Reps, Marc Korashan and Rona Frieser to go to Rikers.

The reports I received about the meeting were appalling. The DR’s met with the principal without the interim Chapter Leaders (who knows what deals were made). When issues were raised concerning a major change in how staff gets to the school at least one member was told to change schools. This after working at Rikers for over 12 years.

Rona Frieser felt compelled to answer my allegations by reporting on a “wonderful” meeting she had with Rikers staff. The security problem was referred to the safety department of the Union and I was not allowed to ask questions of her.

At no time did the DR’s report to the interim Chapter Leaders or me about any of the actions they intend to take or the referrals they allegedly made. No plans to revisit or further report to Executive Board were made.

While I realize these issues directly affect me (and I am reluctant to raise them) I realize that there is no protocol or plan by the Union on how to deal with removed Chapter Leaders.

When a Chapter Leader is removed from a school the whole school is affected. The Union leadership’s complacency with dealing with this issue is further evidence of their disconnect with the membership.

Sunday, December 04, 2005

Taking the Initiative in Labor Relations

If our past experience negotiating against a “formidable adversary” as our leadership calls Bloomberg and Klein produced a wholesale erosion of our basic rights as union members the interpretation stage of this new document will lead us further away from our professionalism and our right to be a positive force in the schools.

One of the most basic concepts in any negotiation is setting the parameters or playing field. Once you’ve set the boundaries for negotiation you’ve taken the upper hand. When the infamous “eight page contract” was announced early in our negotiations our leadership fought back proclaiming that our contract evolved from many years of negotiation and we were not scraping it.

Yet our leadership went ahead to fact-finding where the fact-finders set the parameters. We plunged forward and “used the fact-finding as a vehicle” despite the anti-union provisions called for.

Then came the contract with all of its provisions insuring that principals have complete discretion in most of the important issues in the school and eviscerating the grievance procedure not to miss potty patrol.

So the leadership’s public relations spin machine decides to find a myriad of ineffective ways to work around all of our givebacks.

Our leadership was out-foxed again. The DOE issued an implementation memo and set the parameters of negotiation yet again. Where is OUR implementation memo? Isn’t the contract half ours?

Our leadership, despite the years of experience in negotiation, approached and continues to accept the DOE’s lead. The DOE does and our leadership reacts.

When are we going to learn?