If there is no deal by January 17, 2013, the city stands to lose $300,000,000 in state aid. The stakes are quite high. However, New York State Law gives the UFT some leverage in the bargaining. Here is what the law says (paragraph 8 of Section 3012-c of State Education Law) about the link between a new collective bargaining agreement and a new evaluation system:
Notwithstanding any other provision of law, rule or regulation to the contrary, all collective bargaining agreements applicable to classroom teachers or building principals entered into after July first, two thousand ten shall be consistent with requirements of this section. Nothing in this section shall be construed to abrogate any conflicting provisions of any collective bargaining agreement in effect on July first, two thousand ten during the term of such agreement and until the entry into a successor collective bargaining agreement, provided that notwithstanding any other provision of law to the contrary, upon expiration of such term and the entry into a successor collective bargaining agreement the provisions of this section shall apply. Furthermore, nothing in this section or in any rule or regulation promulgated hereunder shall in any way, alter, impair or diminish the rights of a local collective bargaining representative to negotiate evaluation procedures in accordance with article fourteen of the civil service law with the school district or board of cooperative educational services.
Section 3012-c is the new evaluation system that grades teachers based on student growth on test scores as well as observations. The key line is, "Nothing in this section shall be construed to abrogate any conflicting provisions of any collective bargaining in effect on July first, two thousand ten during the term of such agreement and until the entry into a successor collective bargaining agreement." What that means in English is that the new evaluation system by law does not take effect until we have a contract to replace the one that was in effect on July 1, 2010. Our last contract expired way back on October 31, 2009. The Triborough Amendment to the Taylor Law keeps that contract in place until we have a new one. Our last salary increase was May 19, 2008. Contract negotiations right now are stalemated and have gone to fact finding. A non binding recommendation will be made by a three person state panel at some point in the near future. Almost every other city union received 4% + 4% raises without givebacks in the current round of bargaining. We should expect the same because of pattern bargaining which links all city union raises in contract negotiations.
Please note that I don't see anything in the law that prevents the UFT from making a side agreement with the DOE that just covers the evaluation system. However, since the law links the evaluation system to having a new contract and we haven't had a raise in four and a half years, the UFT would be giving away its bargaining leverage if we agreed to decouple the contract from the new evaluation system. Mulgrew and company are not stupid. Unless the people who call them complete sellouts are right, it is unlikely that the UFT will agree to any evaluation system that isn't tied to a new contract.
Unfortunately, Governor Cuomo's January 17, 2013 deadline for an agreement on evaluations is looming and cannot be ignored. I don't mean to sound uncaring here but that $300 million is a drop in the bucket in a city education budget that has over $20 billion in it. My school is supposed to get some of that School Improvement Grant state money. The Principal informed the School Leadership Team that the money is being held up. I am not surprised as it would seem that the city knows there is little chance of a deal being reached on the evaluation system and they are prepared to lose the funds.
What will happen between now and January 17th? Expect a great deal of bad press attacking the UFT from the New York Post, Daily News, Gotham Schools, NY Times, E4E, etc... The media will put pressure on us to make a deal on the evaluation system without getting a new contract. They will say that we don't care about the children. In actuality, we are the ones who care about the students. A bad evaluation system that makes us do more teaching to tests will have an extremely adverse impact on the kids. Will the UFT stand up to the press attacks? I see three possibilities as to what will happen when the clock runs out in mid January:
1. There will be a grand bargain that gives teachers a contract, settles the Absent Teacher Reserve question (I don't believe the UFT will allow ATRs to be fired if they can't find a job within a specific period of time), and creates a new evaluation system. We will not be happy with whatever is negotiated as far as rating teachers is concerned because our jobs will depend in part on what NYC Educator rightly calls junk science. However, we would receive those retroactive salary increases and maybe a little more money to persuade us to accept an evaluation system that we probably won't like. We would also probably agree to some kind of Newark style merit pay for teachers rated highly effective. I see a grand bargain as very possible especially if Cuomo and AFT President Randi Weingarten step in to "help out" the negotiations and pressure Mayor Bloomberg to concede a little. The UFT leadership is usually willing to give in but there are lines they have not crossed and hopefully will not.
2. There will be no agreement on the evaluation system or the contract and the UFT will take the hit. I see this as quite possible. Mulgrew then emerges as a hero to the teachers for standing up to the mayor and the state right before the UFT election. He will be given credit even though the membership is not mobilized and is pretty much demoralized. We can't put any real pressure to move negotiations to make contractual gains. The question is not whether we will have a good evaluation system. What we are asking is, "How bad will it be?" If there is no deal, the usual suspects will attack us and life will go on. Bloomberg will threaten layoffs and the press will continue to condemn us but we will have our jobs. The contract and evaluation system will not be settled until we have a new mayor who will inherit the problem. I think if you polled the UFT membership, this is the scenario a strong majority would probably vote for.
3. We have a side agreement that settles the evaluation system but the contract remains unsigned. I can't see the UFT giving up the bargaining power the law gives us on this issue. It is the only leverage we have to obtain a new contract. Fact finding is not binding on either side. At the DA, Mulgrew sounded as if he would be willing to lose the $300 million in state funds. Was he just saber rattling? Showing the Legislature and Cuomo how unreasonable Bloomberg has been in negotiations would not be that difficult. The UFT would be extremely foolish to accept a new evaluation system without a contract unless it is a really fair system. Can you see the Mayor agreeing to a system that is favorable to teachers? I can't. Remember, the DOE seems to be pricing into this year's equation that the School Improvement Grants won't be coming. I will check for an update on this at school to make sure that the money still has not come on our budget.
The State can always extend the deadline for an agreement but then we still end up back with the three possibilities for how this will play out unless the politicians try to change the law to take away our bargaining power. Since Bloomberg is a lame duck and the UFT and NYSUT did very well endorsing candidates in the last election, I don't see the law being changed.
I am certainly open to any other ideas on how this plays out. Please send us your scenarios.