Tuesday, May 19, 2009


Howard Solomon is the Director of the UFT Grievance Department. He is an intelligent person whose work I generally respect. For this reason, I cannot understand why he presented a Power Point piece at the May 13 Delegate Assembly that basically said teachers never had it so good when it comes to combating letters to our files.

Let’s take apart the Power Point slides he showed us piece by piece. First, Solomon displayed a totally deceptive comparison of grievances on letters in the file from before and after the 2005 giveback laden Contract. Solomon claimed that before the 2005 Contract, the UFT lost 95-98% of letter in the file grievances in arbitration. This is called selective, misleading use of data.

The base year that Solomon used to prove his point was 2004-05. What he neglected to mention was that it was in the 2002 Contract that the UFT started their “Givebacks R Us” strategy when they initially modified the letters in the file provision. Let’s look at Contractual Article 21A5 before 2002 and then compare it with the 2002 version.

1995-2000 Contract Article 21A5
Material will be removed from the files when a teacher’s claim that it is inaccurate or unfair is sustained.

2000-2003 Contract Article 21A5 approved in 2002
Material will be removed from the files when a teacher’s claim that it is inaccurate or unfair is sustained. However, effective September, 2002, material that a teacher claims is inaccurate or unfair may be rewritten so as to be accurate and/or fair only by agreement of the parties or upon the order of the arbitrator mutually agreed upon to hear grievances arising under this provision, pursuant to Article 22C.

You see ladies and gentlemen the UFT began modifying our Contract to our detriment earlier than is widely believed. That is why Solomon’s Power Point presentation last week used the 2004-05 school year to make the case that before 2005 we lost most of the arbitrations on letters in the file. We lost them because the Unity negotiating team weakened Article 21A5 back in 2002. In 2005 and 2006 they merely finished us off and left us almost totally at the mercy of administration.

The current Contract Article 21A5
Members may not grieve material in file, except that if accusations of corporal punishment or verbal abuse against a UFT-represented employee are found to be unsubstantiated, all references to the allegations will be removed from the employee’s personnel file.

However, the teacher shall have the right to append a response to any letter. If disciplinary charges do not follow, the letter and response shall be removed from the file three years from the date the original material is placed in the file.

This provision is totally useless. Teachers don’t get a letter for the file if corporal punishment charges are unsubstantiated. In addition, who cares if someone can remove a letter after three years if there are no disciplinary charges? After three years, material is not normally admissible in 3020A hearings (the process to terminate a tenured pedagogue) unless something is criminal. For untenured teachers, after three years, someone can already be terminated in a million different ways. Why do you think so few teachers are clearing out older material from their files? It’s a waste of time basically.

The new 21A5 leaves us almost completely vulnerable as we must fight letters based on other Contractual articles which means we can only battle file letters in a much more limited procedural way.

To elucidate the argument that before 2002 Article 21A5 carried some weight, we must return to 1997-98, the second year I was Chapter Leader at Jamaica High School. That was the year Circular 6 was implemented for the first time.

At the time the principal of Jamaica High School decided that she was going to show how tough she was by making the new C6 professional assignments rigorous. She had the assistant principals call in every teacher to go over the expectations for their professional activity period and then she had the AP’s put letters in every teacher’s file based on their C6 expectations. We immediately cried foul. This is not what the self directed professional period or teacher files were for.

21 teachers filed grievances and the District Representative at the time, Danny Foceri, said that we should handle each grievance separately as they were distinct letters. I’ll never forget scheduling 21 Step I conferences. We lost each grievance at Step I but before they went to Step II, UFT Special Representative Howard Solomon, yes the same Howard Solomon who now runs the Grievance Department, was called and intervened on our behalf.

We won all 21 cases soon thereafter. In addition, the principal was ordered to remove the letters from the files of the other 68 teachers who did not grieve. Why did we win? The established standards of fairness said that teacher files were not to be used to set someone up on expectations for anything including a self directed professional assignment. Grievance precedent said that files were to criticize or commend a teacher.

Under the 2002 rules, the arbitrator could rewrite the letters. Under current rules, that principal could have easily filled up the files with anything she wanted as there is no rule in another Contractual article that forbids the principal from filling teacher files with expectations about professional activities. To put it another way, all of those arbitration precedents on what the standard for unfairness meant are now gone from the grievance process.

In 1999, a year after the C6 letter grievances, the same Howard Solomon was assigned to Jamaica High School as part of a settlement between the Board of Ed and the UFT, worked out when we took the principal to the Public Employees Relations Board for anti union activities. Howard did a good job back in 1999 by coming to Jamaica on a regular basis to help us reach settlements of some labor-management issues.

One of the issues was that a coordinator was writing observation reports without the principal also observing. This was obviously unfair. Howard worked out an agreement where all of the letters this coordinator wrote were removed from the files because they were unfair. Without the unfair or inaccurate standard, there might not be a way to remove those observations now and if it were untenured teachers, they would be in jeopardy of being terminated.

In those days, at least there was a chance to get something before an independent arbitrator when we could grieve letters and observations. The only changes that could be made in letters were parts could be stricken or the whole letter was removed. If we were successful in clearing out some of the file through the grievance process, then the person had a chance in their review.

Many of us knew of occasions where administrators would back off after going through the grievance process and being worn out or losing. Now untenured people are called “at will employees” by a Board administrator in one of those web-casts for principals on how to attack teachers. “At will” is the term for employees who can be fired for almost anything by management. What is the purpose of having a union and paying dues if our untenured colleagues can be terminated at will?

To further make this point, look at the evidence on how many teachers are now being denied tenure or compelled to extend their probation. DOE figures show huge increases in the number of teachers being denied tenure since the 2005 Contract was implemented. We’ve made it so easy for them to get us.

Randi Weingarten claimed a big victory last year because the State Legislature passed a law saying we can’t be denied tenure based on student test scores. If ever there was a hollow win, this was it. The DOE does not need to judge us on student test scores; they can fire non tenured teachers now based on one lousy observation report according to their web-cast. The UFT has made our members easy targets with the givebacks in recent Contracts. If you want even more evidence, look at how the rubber rooms have filled up in the last few years.

At last week’s presentation, Howard Solomon also told us about how we can no longer be disciplined for bulletin boards, classroom furniture and the exact duration of lesson units. Principals can easily work around this provision and the Office of Labor Relations tells them how to do it in their 2007 Q&A.

Another Power Point slide told us to use Contract Article 1 to ask to speak to a principal with our concerns. This is another exercise in futility because there is no leverage behind a teacher meeting with the principal. In the past, the threat of multiple grievances was one way to keep a principal from getting out of control.

The counterargument the Unity faithful will give is that the incidents at Jamaica that I referred to happened back in the nineties when we had a friendly Chancellor, Rudy Crew, and we wouldn’t win them now under Joel Klein. We knew what Klein’s agenda was by 2005. That is why Randi should have listened to ICE back then and not given an inch in Contract negotiations. Selling off our rights was a mistake. Telling us now how wonderful things are is just as foolish as it provides members with a completely false sense of security.

You’ve heard my evidence. What about your schools? We really would like to know what is going on everywhere. Is Howard Solomon’s rosy scenario reality?

To see the entire power point presentation go to Under Assault.


Anonymous said...

Thank you, James, for an excellent analysis of Solomon's presentation. The members at my school DO NOT FEEL protected from unfair letters in the file. The untenured teachers have been bombarded this year with file letters and there is not much that can be done, despite Solomon's assurance to the contrary. At the presentation, I understood him to say that a U observation could be grieved if there was not a pre- and a post-conference and he confirmed this to me when I went up to him afterwards. Well, I asked my DR this same question, and surprise, the answer was "if there is just a post-observation conference, then the letter stands". It's hard to trust any of them.

Anonymous said...

What effect does removing "untimely" letters have. I still cannot seem to get a clear answer on this after numerous requests. The answer is not clear.
Can the removal of untimely letters have a protective effect?
Subs are getting letters about performance issues in schools that placed them on their "do not call list" dating back to 2004. What can be done to stop them from sending these untimely reports? They are racking them up to use against subs for possible "disciplinary action". It's horrible!

JW said...

Anon. 12:35 -
Yes, DRs and union execs frequently contradict each other. Sometimes the DR doesn't know enough or is going on what's been done traditionally. It is troublesome and makes you feel you're in quicksand.

I go with this rule: if you see a clear violation of contract, then you can feel comfortable grieving.

In the case of pre-obs and post-obs, the contract specifically calls for both: "The second model, known as Formal Observations (Component B), is the traditional classroom observation by a principal or supervisor which includes pre- and post- observation conferences and written feedback/comments."

The question is, though, if they don't OFFER one of these to you, and you neglected to ASK for it, are they obligated to give it to you? Certainly if they refused to give it to you, they're in violation. But if they say to your request: Sure, let's meet, I don't see a violation, and therefore I don't see how you can get a U observation reversed using obstinacy or neglect as a factor.

Maybe when the DR said if there was just a post-obs. conference, then the letter stands, they were thinking along the lines above: that if you didn't bother to ask for a pre-obs (which you had the right to do), then tough luck for you when it comes down as a U.

The point is, if something is not spelled out, an arbitration Step III needs to happen to resolve the issue for you and everyone else after you. So as long as there is a real violation, grieve and force a Step III so a refinement can be made and precedent set. If a rule has already been established, you'll find out one way or other during the grievance process.

You'll always be denied at Step I and II -- that's the way the UFT negotiated it, it seems. At the very least they did not see these pro forma denials coming. It's also true that some people have had to badger the union to take their grievance to Step III, because there are not a lot of slots and an effort will be made to "encourage" you to walk away, even if your grievance has a lot of merit.

I think too you have to balance your pushing a grievance through all the steps against what effect doing this fight might have on the relationship you have with your principal.

Anonymous said...

James, are the teacher files and ratings public information?


Letter 'R Us said...

Care to comment, Howard?

James Eterno said...

2:41 a.m. Please address that question to Jeff. He would know better than anyone.

James Eterno said...

To 12:35 p.m.-

All formal observations need a pre and post observation conference. What constitutes a pre conference is more complicated. if the teacher is in danger of getting a U rating, then there has to be an individual pre observation conference and if there wasn't one, the observation should be grieved.

If a satisfactory teacher did not request an individual pre-conference in writing, then what constitutes a pre-conference is not so cut and dry.

For an informal observation, no pre conference is needed but a post observation conference is required before the informal observation can go in the file.

We just had this last part confirmed at a recent Chancellors' level grievance.

Woodlass said...

Just saying that almost the full Power Point presentation is posted over at Under Assault.

Anonymous said...

I just read over at Gotham Schools that she can live with a mayor-controlled PEP. She makes me sick.

Anonymous said...

It's Randi's Post Op Ed. Unbelievable

Anonymous said...

Jeff, I'm referring my 2:41 A.M. question to you.

Are the teacher ratings and files public information?

The following legal opinion leads me to think that they are, at least in part:


Jeff Kaufman said...

I have not been successful in obtaining observation reports but ratings have been available. I strongly suggest you try. The Committee on Open Government provides only advisory opinions. Make the request and if denied appeal.

Anonymous said...

Jeff, can you give further information and details as to exactly what happened when you tried to obtain observation reports and ratings?

What reasons were given for denying access to observation reports?

Did you request ratings for specific people or for an entire school?

Anonymous said...

Good piece. I sent it around to my CL and Delegate

John Elfrank-Dana said...

Hey James,

Got a teacher (tenured) whom the AP is gunning for. During a pre-ob with her and the AP the teacher (in danger of getting a U based on previous class visits) asked the AP what day and subject she'd be visiting. The AP refused to be pinned down and just said, "I'm too busy, but will be in within the next two weeks".

Referring to Chancellor's Reg #80 a teacher who is in danger of getting a U is entitled to a pre-observation where the "content of the lesson" is discussed. We grieved the subsequent U observation (like I had to tell you she got a U in the end) on the grounds she didn't get a proper pre-ob based on Chancellor's reg #80. Our understanding is that to discuss the "content of the lesson" one would have to talk about a particular subject on a particular day.

The kicker is, if I am correct, that even if we win that grievance her U observation STAYS IN THE FILE.

How can that be a good thing?

John Elfrank-Dana
UFT Chapter Leader
Murry Bergtraum High School

James Eterno said...

It doesn't help anyone.