Friday, September 30, 2005

Let's Get the Petition Signed

It is clear that momentum against using the fact-finding as a “vehicle” is building. As teachers learn about the full nature of the givebacks contemplated reaction is varies from complete disbelief to pure anger. How dare the City attempt to bust our Union? How dare the Union not wage a full and total campaign against this document?

Many of our members who have voiced their anger and frustration at accepting any part of this fact-finding have been called a variety of names. Some, incredible as it may seem, have been called “anti-union.” There have been incidents where members expressing a different point of view than our leadership have been prevented from distributing leaflets and gathering signatures on a petition call for a vote of the membership to determine whether the membership wants to use the fact-finding as a vehicle.

Our Union is large. So large that we have not had a general membership meeting in years. Our policy making body, the Delegate Assembly, contains numerous voting members who will not work in schools under the provisions we use as a “vehicle.” The DA contains retirees and a network of dues paid members who clearly present a conflict of interest when they vote on contract issues.

As a result the Delegate Assembly can be manipulated by the leadership to follow no matter where the leadership says to go. Any dissension is met with clear violations of the Union’s constitution which dictate how all Union meetings must run. It is beyond cavil that these rules be followed to protect the free exchange of ideas. Yet, in a startling admission at the last Executive Board meeting our Secretary, Michael Mendel, in consultation with our President, Randi Weingarten, determined that these rules need not be followed because they actually “discourage” debate.

We are at a crossroads. The Mayor knows it. Our leadership knows it. And a good percentage of our membership knows it.

Let’s get the petition signed and deliver a clear message to our leaders…you are out of step with the members who work day in and day out teaching the children of this City. Don’t destroy what it took 40 years to build.

Monday, September 26, 2005

Executive Board Hears Tale of Done Deal

Tonight’s Executive Board meeting sent a clear message. We are not only to accept a contract based on the fact-finding report we are taking the report as our contract. With one modification it appears that a contract has all but been signed.

At the Executive Board meeting Weingarten reported on her one hour bargaining session today letting out that the City is ready to drop the fact-finder’s demand for 10 free coverages in the secondary schools for our allowing them to implement the Lead Teacher Postitions provisions slated in the fact-finder’s report to be used in the future.

While the fact-finding is, on a whole, anti-union and anti-teacher, the Lead Teacher Position provisions stand out as examples of how badly this Mayor wants to destroy our Union.

At page 49 of the fact-finding Lead Teacher Positions “would select some of the City/DOE’s most talented teachers and place them in high-need schools. The lead teacher position financially rewards teachers who are particularly effective in the classroom.”

Merit pay based on what standard? The fact-finders answer that question.

“We recommend, however, that the Chancellor have the authority to select the schools in which lead teachers shall be placed as well as to determine the total number of lead teacher positions to be created.”

Checkmate! Not only do we get merit pay (lead teachers will make $10,000 per year more) but the DOE gets to put these UFT/AP’s in any school they want. There goes any right to your position.

Do you think after we give up grieving letters to the file we will be able to grieve involuntary transfers of lead teachers, selection of lead teachers or any aspect of this merit pay policy?


In its just issued annual report, the Public Employment Relations Board cited the lack of strike activity last year among public sector unions as the signal that impasse procedures and the parties’ “professionalism” work.

The reports states, in relevant part:

"In reviewing our case activity for FY 2004-05 and the directors’ reports on their program areas, it appears that the public sector labor community has reached a new level of understanding of their rights and responsibilities under the Taylor Law.

"In support of this conclusion, I note that no illegal work stoppages (strikes) were reported in the 2003 and 2004 calendar years, and none has been reported thus far this year. This marks the longest continuous period without a strike in PERB’s 38 year history and fulfills a major objective of the law – to ensure the orderly and uninterrupted operations and functions of government.

"Perhaps the lack of strike activity can be attributed to the parties’ proper use of our impasse resolution procedures. While the Office of Conciliation received 14% more impasses in FY 04-05 than in the prior fiscal year, the percentage successfully resolved at the mediation stage continued at more than 80% for the second successive year. These statistics demonstrate the effectiveness of the statutory impasse resolution procedures and evidence the good faith efforts of the parties in their willingness to resolve their conflicts when assisted by a third party neutral."

Given this climate will our Union buck the trend?

Saturday, September 24, 2005

A Pocket Guide to Respond to Pro Fact-finding Report Arguments

Unity is running around selling the Fact Finding Report by making five basic points:

Unity points are underlined and the ICE responses are bolded.

If we don't accept the Fact Finding Report as a framework for negotiations we have to go on strike immediately and it will be a long strike.

This is absolutely false since all that happens if we don't accept the Report is that we go back to square one in negotiations like when we voted no to the proposed Contract in 1995. If we do not accept the Fact Finding report, we could easily strengthen our bargaining position by holding a press conference in Great Neck or Scarsdale, proposing the learning conditions they have out there and then saying, "It's not the Contract Stupid." We could also state that it's the class of our urban students that determines why they get a second class education. Taking away teacher professionalism in NYC will only make the disparity in education worse.

The Fact Finding Report is much better than the eight page contract Bloomberg originally proposed. Bloomberg and Klein are the toughest negotiators we have ever faced and this is no regular time for labor with conservatives in control. Unity is stressing the parts of the contract that we maintain, particularly tenure, instead of what we lose.

This is an absurd argument as you don't thank your employer for only taking away two thirds of your rights instead of all of them. It is a bit like Mexico claiming victory after the Mexican War because they only lost half of their country to the US but they salvaged half. Tenure is a state law that predates the UFT. It has very little to do with our contract. Keeping a right we enjoy under state law is no victory in negotiations.

The Taylor Law actually works to our advantage here as it maintains all of our rights including longevity and step increases until we have a new Contract. Unlike in the private sector, we are under no pressure to concede a thing. Think of the retroactive money we will eventually get if we strengthen our hand as forced savings, albeit without interest.

If we accept the Report as merely a framework (a starting point) for negotiations, we will improve upon it at the bargaining table in final negotiations.

This is the most ridiculous of their arguments. Let history be your guide on this one. Look at the Fact Finding Reports from 1993 and 2002 and you will notice that the final contracts were almost identical to the Fact Finding Reports. In terms of extended time, the actual contract was worse in 2002 than the fact finding report. The fact finders recommended one late day every week and in the final contract there were two late days a week. The provision on extended time was so flawed it has been renegotiated three times. We certainly didn't make gains after either Report came out. What makes anyone think we can improve upon this report with Bloom/Klein? (ICE believed Fact Finding would fail; we warned Randi of this and voted against going to Fact Finding last November. We are tired of saying we told you so.)

We take the moral high ground with the public if we accept the Report.

More nonsense as the public will see us as weak if we just accept losing our basic right to grieve a letter in the file and agreeing to two more periods a day where the principal can assign us; that is roughly a 30% increase in time where the principal can direct us for an 11% increase. It's really a decrease of close to 20%. Maybe we'll get pity but not support.

We should demand more and not appease the Bloomberg and Klein union busting team. Demanding a Long Island/Westchester style contract with class size limits in the twenties will show the public who really cares about the students. Once again I repeat we should be in front of Great Neck or Scarsdale Schools publicizing over and over again the following argument: "It's not the contract stupid; it's discrimination against our working and lower class urban students."

After we reject the fact finding report, we need to organize chapters for the fight of our lives to get what we want for our students and ourselves. Militancy should be built up and then we should be ready to talk about real industrial action when we're ready, perhaps in tandem with other unions as they do in Europe. How about an alliance with the transit Workers?

Unity is claiming that it's not so bad that we can't grieve letters for the file since the DOE uses them anyway in disciplinary hearings after we win arbitrations and have them removed from files.

This argument while it has some validity is flawed because grieving letters in the file is our first line of defense as a union and it will be gone. Non-tenured teachers will have no independent forum for recourse to try to remove the letters. Also, many strong chapter leaders use the letters to slow administration down or stop them when they go after people. Many grievances are resolved by the Principal and Chapter Leader at Step I. Why would administration stop at the school level if they know they can't be challenged? We will be sitting at the mercy of the principal if this fact finding report is used as a framework for a contract.

Other lowlights worth Mentioning That Unity is not even bothering to defend.

Twelve free coverages instead of two in secondary schools.

A return to cafeteria duty, potty patrol and other administrative assignments at the discretion of the principal

30 minute small class instruction period is a prelude to having us teach a full extra class next time.

Principal's discretion for transfers and excessed teachers further limiting our rights.

What happened to "let teachers teach" and ending DOE micromanagement? The fact finders forgot about it and so has Unity.

One Teacher's Struggle to Teach

(The following is a letter received from David Roemer, a former physics teacher and UFT member. I asked David to recount his experiences fighting for his job. Although the Second Circuit Court of Appeals denied his appeal yesterday David believes his fight was not in vein if we learn something from it. A true educator.)

Dear Brothers and Sisters:

I was terminated from my position as a tenured physics teacher at Edward R. Murrow High School in June 1998 as a result of a majority report of a panel convened to hear and determine charges brought against me pursuant to section 3020-a of Education Law. After unsuccessfully suing the Board of Education and the Public Employment Relations Board in state court, I filed a federal lawsuit in February 2001. The United States District Court dismissed the lawsuit in January 2004 and the order was affirmed by the Second Circuit in September 2005. All of the papers in the case are on my website at

I began teaching at Midwood High School in Brooklyn in September 1984 with a license to teach Physics and General Science. In February 1990, I was excessed and transferred to Erasmus Hall High School where, I taught general science courses. At Erasmus Hall High School I attended many workshops and seminars and developed a learner- centered method of teaching science.
At every lesson I distributed a handout which explained the science concepts the students were expected to learn and which listed activities, problems, and questions the students worked on in class.

With this approach, students could learn from my oral presentation, from my written explanation, by doing the activities, and by having one-on-one conversations with me or their classmates. The children in my classes could learn at their own pace according to their individual learning styles.

In September 1994, I transferred to Edward R. Murrow High School. I employed the method of teaching I developed at Erasmus to teach Regents Physics. My supervisors at the new school, being accustomed to more highly-structured lessons and satisfied if not proud of their student’s progress in science, gave my lessons unsatisfactory ratings.

I applied for conciliation under Article 24 of the collective bargaining agreement. In December 1994, the Director of Related Staff Services of the Office of the Chancellor sent a letter authorizing conciliation for "the approach that should be used for the teaching of Physics." The conciliation process provided for the assignment of a conciliator who would attempt to draft an agreement binding on both sides and including an enforcement paragraph.

My supervisors did not attempt to conciliate, and, in May 1995, I filed a grievance against them and made it clear that my teaching would not change in the new academic year.

The Principal denied the grievance in June 1995, but stated falsely that the conciliator terminated the conciliation process. In fact, the conciliator did not terminate the process until November 1995.

The Superintendent denied my grievance in September 1995 and the UFT refused to go to step 3 in November 1995. However, I appealed to the Grievance Committee of the AdCom, who sent me a letter in February 1996 saying the disagreement about teaching should be settled by the conciliation process.

In March 1996, I was removed from the classroom for disciplinary purposes and, in November 1996, the Board of Education publicly voted to terminate me. At the public meeting, I addressed the members of the Board of Education and explained my method of teaching science.

In April 1997, at pre-hearing conferences with a hearing officer held pursuant to Education Law, the dispute was settled. I agreed to be suspended without pay for two months and to give up my appointment to Edward R. Murrow High School by transferring to another school. I did not see any injustice in having to leave Edward R. Murrow. However, I was indignant over the loss of two months pay when I carried out my professional obligations in a way that was above reproach. My belief then and now and I said so the Second Circuit, that the filing of charges against me under Education Law was a hoax, a fraud, and a crime. Their motive for filing charges was to avoid the conciliation process and the step 3 grievance hearing.

What happened next illustrates the adage, "Oh what a tangled web we weave when first we practice to deceive." In violation of Education Law, the Board of Education did not implement the settlement and disciplinary hearings took place. In June 1998, the majority of the panel said I should be terminated and the minority said I should be allowed to transfer to another school with no other penalty.

I retained an attorney filed a petition to vacate the findings of the panel. Unfortunately, the papers this attorney submitted contained only trivial technicalities. I discharged him and hired a second attorney who advised me that I had no grounds for suing in state court.  I filed additional papers pro se in an attempt to explain the case to the state judge, but my lawsuit was dismissed.

The grounds for dismissing my federal lawsuit was that the matter was already decided in state court. I argued that I did not get a full and fair opportunity to litigate in state court because the defendants did not answer my real complaint which was contained in the additional papers I filed.

I also argued in federal court that section 3020-a(5) was unfair because teachers were not allowed to appeal arbitration awards on the grounds that they are arbitrary and capricious, which is the standard of Article 78 of the Civil Practice Laws and Rules of New York. Prior to 1994, teachers and boards of education were allowed to sue under Article 78. The Education Department of New York State vigorously opposed the change because it makes it virtually impossible for boards of education to appeal irrational decisions by hearing officers. The district court ruled that the law was not unconstitutional.

It is my belief that the Second Circuit did not read my brief or the papers I filed asking them to sanction the New York City Law Department for violating Disciplinary Rules in the Lawyer's Code of Professional Responsibility.

Very truly yours,

David Roemer

Friday, September 23, 2005

"F" Status "Memorandum of Agreement" Repeats Mistakes of the Past

While the vast majority of our members are full time employees a significantly growing minority of less than full time employees has found its way into our membership. In the DOE we call these members F Status employees.

Part time and non-standard work hours give employees choice and flexibility in work arrangements but they also pose problems for unions.

These arrangements help both full time and part time employees until management uses non-standard employment as a way to avoid paying benefits and other compensation. In our schools this was accomplished through excessing and filling positions with F Status pedagogues.

While it is not clear how long this practice was going on it came to a head in 2004. Grievances were filed and on September 1 both Joel Klein and Randi Weingarten signed a “Memorandum of Agreement” withdrawing the grievance and setting forth “guidelines for creating F Status positions. Excessing rules were also laid out.

When creating a new F Status positions the DOE and our Union agreed that the DOE will consider every one or more F Status positions in a single school that equal 1.0 FTE (a position equaling 5 days per week) in the same license as one full time position. Only if no appointed teachers are reasonable available (through excesses, transfers and/or new hires assigned by DHR) may such school create F Status positions equaling 1.0 FTE.

Now here’s the rub…

A school will be allowed to create such F status positions in order to accommodate a hardship for a previously appointed pedagogue or “because of the particular needs of the program.”

We haven’t learned. We lost summer school grievances because the “new” summer school program was allegedly different. What is to say what the particular needs of the program are?

This “agreement” sunsets on September 15, 2006 or “unless anew collective bargaining agreement between the parties supersedes.”

Anyone taking bets on what the “new” collective bargaining agreement contains?

Thursday, September 22, 2005

Removal of Step II Grievance at UFT Request is Harmful to Members

by Ira Goldfine

The depth of analysis of ICE people on the fact-finders report being sent across the "wires"   has been really great. I would like to deal with one issue in the report that has been mostly ignored. The report calls for a change in the contract that the UFT suggested and that is the elimination of step 2 from the grievance procedure. Although in the current environment this seems off the top of ones head a no-brainer, this has major long-term negative implications and is nothing more than a total gutting of the grievance procedure and the irony is it was suggested by the UFT.1) I think we all can agree that step 1 is nothing more than "going through the motions" since the person hearing the grievance is usually the person (or a subordinate)  who took the action that caused the grievance in the first place. 2) Since only the UFT has the right to decide which grievances will go to Step 3 and Arbitration, the elimination of step 2 in essence takes the power of grievance totally away from union members! All they will be able to do is file a step 1 and lose and then the UFT will have sole power to decide if their grievance has merit. What a disaster!3) It was the UFT back in the 70's that "won" from the BOE the right to be the sole decider of which grievances went to step 3. Remember it was the ACLU in a step 3 grievance that won the right of members to distribute literature in mailboxes of colleagues. Luckily that was before we lost the right to go to step 3.4) Many cases at step 2 have been won with and without the UFT's support because of internal politics in the districts. The very first mailbox case was won in District 16 at step 2.5) It is unacceptable to say that because the current mayor/chancellor have twisted the step 2 process so much as to make it useless that it follows that we should discard the step 2 grievance altogether. They will be around for at most 4 years -- you don't change contracts on the basis of a what the current mayor is doing. UNITY has allowed the grievance procedure to be decimated and now has "won" the capability of controlling the entire grievance procedure and leaving the membership with NO rights at all.

Unity Uses Unfair Tactics to Push their "Vehicle" For a Contract on Us at DA

By James Eterno, UFT Chapter Leader Jamaica HS, HS Executive Board Member

Tuesday's special Delegate Assembly was another exercise in futility for those of us who favor full and fair debate. The DA is the highest policy making body of the UFT.  Chapter Leaders and Delegates from every school are represented there.  Non teaching chapters and retirees are represented also. 

Knowing full well that they might lose if there were an open discussion on the subject of the fact finding report that contained givebacks for teachers that would reduce the UFT to little more than a dues collecting organization whose members would have few of the rights they now enjoy, UFT President Randi Weingarten and her Unity caucus leadership had to resort to making up biased rules of procedure to push through a resolution that will allow the UFT to continue negotiations with the city based upon a fact finding report that is so loaded with givebacks that any real union leader would have three words to say about it : "Dead on Arrival".

According to the UFT Constitution, Roberts Rules of Order should be used at the Delegate Assembly and all other bodies of the UFT.  Randi Weingarten violated those rules so much at Tuesday's DA that it rendered whatever came out of the meeting meaningless. 

Roberts Rules are there to ensure fairness in a deliberative body.  Watch CSpan for a few minutes when Congress is in session and it will be clear that the presiding officer in either the House of Representatives or the Senate does not engage in debate.  The Chair is supposed to be impartial in order to make sure the debate is fair.  The presiding officer should leave the chair and speak from the floor if he/she wishes to engage in debate on an issue and then not return to the chair until the matter that he/she spoke on is voted on.  A neutral chair is a fundamental rule of debate.  President Weingarten violated the rule when she started speaking in favor of a resolution to use the fact finding report with all of its givebacks as a vehicle to jump start negotiations on a new contract. 

When Jeff Kaufman, a trained lawyer and now a teacher as well as chapter leader and UFT Executive Board Member from ICE rose to a point of order saying that Weingarten was violating a basic rule by speaking in favor or a resolution from the chair because the chair has to be impartial, Weingarten arrogantly refused to rule on his point of order, nor did the UFT Parliamentarian.  Randi just kept on speaking, and speaking and speaking.  (A point of order takes precedent over a speaker who is speaking in favor of a motion according to Roberts Rules because a point of order is saying that a rule is being violated.).  

Randi went on filibustering for another forty minutes in favor of using the fact-finding report as a vehicle to jump start negotiations.  After she finally finished, Kaufman asked that the Union's parliamentarian rule on his point of order and amazingly he ruled against Roberts Rules.  He said that Kaufman had no right to interrupt Randi.  She was allowed to speak in favor of the resolution and then preside over the debate as the impartial chair.  The ruling was a disgrace!  

Kaufman also asked if the opposition could now have equal time (40 minutes) to speak against the resolution.  Weingarten said she would allow a speaker against but she was silent as to the time that would be allowed for the opposition.  Carolyn Eubanks from John F. Kennedy HS took the floor to speak but after about a minute, Weingarten's followers from the Unity Caucus began to shout her down.  This tactic was not surprising since Unity Caucus members are tightly controlled by the leadership of the UFT. 

Unity members sign a membership obligation where they agree to support the decisions of the caucus in union and public forums.  Most receive perks from the Union in exchange for their absolute loyalty to the caucus.  Some get to go on all expense paid trips to conventions while others get part time after-school union jobs.  At the top of the Unity food chain are the people who are relieved from full time teaching duties in schools and instead work all day for the Union. 

These are the folks who have the six figure salaries and receive a NYC as well as a UFT pension when they retire.  While many of these individuals are hard working union supporters, they are also loyal to Unity caucus.  Add to this that there are 300 retiree delegates who all belong to Unity and enjoy their perks and you can see why the opposition from the schools has a difficult time breaking through at the DA. Many delegates don't even show up because of the futility of fighting the well oiled Unity machine whose main aim it would seem is to protect itself.
When Eubanks finished her speech in opposition to the resolution on the fact-finding report, Randi then called on David Peccararo, a Unity member from Beach Channel HS.  David spoke in favor of the resolution to use the fact-finding report as a vehicle to get us a contract.  A person opposed should have been called next, right. 


Randi called on Michelle Bodden, the Unity VP for elementary schools who voted twice previously in favor of the resolution at the Administrative Committee (11 Union officers) and the Executive Board (89 member body that directs the affairs of the UFT).  I couldn't take yet another direct assault on democratic procedures so I rose to a point of order.  I was so angry that the role of the chair was being totally abused by Weingarten. 

I questioned the Parliamentarian's competence and cited Roberts Rules chapter and verse by stating that the chair is supposed to alternate between those who favor and those who oppose a resolution during a debate.  Randi at first hesitated but when I would not relent she backed off and for at least a few minutes she alternated between those who were for and those who were against the resolution.   However, by that time it was clear that those in favor of the resolution were on the side of the chair.  The whole process made a mockery of Union democracy.

Soon thereafter, Sam Lazarus, Chapter Leader from Bryant HS, made a motion to amend the resolution by taking out the clause that says that the fact-finding report could be used as a vehicle to get us a contract and Sam said we should just stick to the other parts of the resolution that called for us to step up our action campaign and have a deadline for negotiations. 

Marilyn Voight Downey was given a couple of minutes to speak in favor of the amendment and then there was a Unity speaker against.  The vote on the amendment which was a reasonably fair debate was closer than the vote on the original motion where the chair was clearly biased. The Union told the Post that it was 80% in favor of Randi's position and today that figure moved up to 90% in favor of Randi on the UFT website.  The reality is that it was a  more divided house and the Daily News story was much more accurate than the Union spin about the raucous tone of the meeting and anger on both sides  .  

Ever wonder why so many UFT members don't trust the Union's leadership?  We try to be good trade unionists but we are thwarted at every turn by a leadership that will use any means at its disposal to have its way.  I would like to pose a challenge to the people who run the UFT: level the playing field and level with us. Follow Roberts Rules of Order.  Let the UFT Constitution be more than words on paper.   If you can prevail in a fair fight, then so be it.  However, the way it is now it's about as democratic as a Soviet style government. 
Educate yourselves fellow UFT members.  It's your union.  Recapture it!

(I consider myself pro-union but pro-fairness.)

Wednesday, September 21, 2005

Who Runs Our Union?

It’s not difficult keeping the faithful in line.

Last night, in an unprecedented disregard for union democracy Randi Weingarten rammed a resolution through the Delegate Assembly which gives tacit support to the most anti-union fact-finding report ever offered to New York City teachers.

You know, I’m not even angry by the rulings of a parliamentarian that demonstrates either a complete lack of knowledge of established rules to run a meeting or a conscious decision to provide erroneous legal advice for the purpose of manipulating our Delegates.

You know, I’m not even angry by full time Union trough-feeders who double dip their income with our dues and tax dollars and won’t work under this proposal and try to scare delegates into believing that only by using this fact-finding report as a vehicle will the world be safe and our Union will be saved.

You know, I’m not even angry by the multitudes of retired members waving their voting cards and contributing their precious votes to a decision that only currently working members will live under.

So, how can this be?

She can’t control the membership.

We can sing Solidarity Forever. We can accuse those who attempt to permit a free exchange of opinion of being divisive. We can try to scare the living hell out of members.

But we can’t convince our members that the fact-finding report is the basis of anything other than the recycle bin.

There is little doubt in my mind that the resolution that passed last night will do nothing to ensure that our teachers will be allowed to teach, that we will receive a salary that, at least, keeps pace with inflation, and that we won’t be forced to giveback most of the power our Union has in the schools.

So, why am I not angry?

Because we have 120,000 voting members.

Tuesday, September 20, 2005

Rejecting the Fact-finding Is the Only Option

by Ellen Fox

After many months of shilly-shalling over terms of a contract that is already almost two and a half years overdue, a panel of three "independent" "fact-finders" released a 51-page report last Monday.  Your UFT Leadership is now offering that report as the “basis" of a contract that would cover the period of time from when the last contract expired (May 31, 2003) to June, 30, 2006 - a total of 37 months.
The recommendations of the "fact-finders" offer few benefits, and many, many givebacks.  Members really owe it to themselves to check the facts out in the original 51 page report.  (For convenience sake, people could simply read the "Recommendations" section, which begins on page 36.)  Unfortunately, the UFT leadership hasn't gotten hard copies of the document into members' hands.  People must go to the on the web to read it.
In the meantime, the UFT has made copies of a "fact sheet" ---a 2- page digest of some of the salient parts of the report.  Because the Union is attempting to "sell" a very bad proposal, this document highlights in bold-face the very few "advantages," and obscures or minimizes many of the most serious drawbacks.
If the proposal actually makes it to a contract vote, UFT leadership will attempt to frighten members into accepting it by claiming that their only alternative is a protracted and onerous strike.  This is definitely NOT the case.  We all owe it to ourselves and our colleagues to REJECT THIS PROPOSAL, and VOTE NO!

Monday, September 19, 2005

Tempers Flare At Executive Board Meeting: Fact-finding “Vehicle” Taking Us For a Ride

While UFT Executive Board meetings have had their moments of contention tempers grew to a melting point this evening in what some have said is a rehearsal for the showdown at the Delegate Assembly meeting tomorrow at the Brooklyn Marriot.

The Executive Board is heavily composed of paid Union officials but a few “school-based” members serve. When HS Rep James Eterno complained that few of the voting members would ever have to live under the provisions of a contract based on the severe givebacks outlined in the fact-finding report tempers boiled over. Papers flew, voices raised and we were attacked.

There is little doubt that the members have reacted negatively toward the fact-finding despite the claims of the Union leadership. It is clear that our leadership will still try to claim victory in the jaws of defeat. Give up on this senseless document. No self-respecting union person would even consider any part of this anti-union document.

The following is the text of the Resolution passed tonight over the objection of the opposition caucuses. The Delegates and Chapter Leaders vote on this tomorrow. Tell your reps not take this vehicle down a long road to hell!


Whereas, UFT members have been without a current contract for 28 months and without a salary increase since September 2002; and

Whereas, the UFT has waged an extensive campaign including 5,000 actions culminating in a 20,000 member rally at Madison Square Garden to build public support and convince the administration to conclude a fair agreement; and

Whereas, the administration has adamantly refused to bargain a fair contract leaving the union to exhaust its last legal recourse — fact finding, which has just concluded with the release of a non-binding report; and

Whereas, the report has pluses and minuses; it recommends an 11.4% pay increase, protects tenure and provides job security for excessed teachers, but — seeks more time from educators and gives principals more discretion; be it

Resolved, that despite its problems and subject to working out acceptable language and changes, we use the fact finding report as a vehicle to conclude negotiations on an agreement within the next few weeks; be it

Resolved, that the UFT continue the aggressive action plan that we started last winter to demonstrate the urgency of the contract issue; be it

Resolved, that the October Delegate Assembly be moved to early October to review the status of negotiations; and be it further

Resolved, that if negotiations have not produced a contract by that time, the October Delegate Assembly consider the Union's options including a strike authorization secret ballot vote by the membership and/or a mayoral endorsement.




The fact-finding report has been widely reported as providing us with an 11% increase in pay. When the actual numbers are crunched, however, we end up losing, in secondary schools, over 20% in real wages.(Elementary teachers lose slightly less). This is not a “time for money” swap. This is “legal robbery.”

Let’s Do The Math....

For Principal Controlled Time:

Five  42  minute average periods =                             210       minutes per day
PD (Daily Average - 60 minutes divided by 5) =        12       minutes per day
Total                                                                               222       minutes per day

Five  41 minute periods + 1 (loss of self-directed
              prof. period) =                                               246       minutes per day
Small Group Instruction =                                            30       minutes per day
Additional coverages and loss of 3 days vacation
             (1520 minutes divided by 190 school days,
            the highest no. of days in Metro area) =             8      minutes per day
Faculty and Department conferences (80 mins
            X 16 divided by 190)                                         6.7   minutes per day
                                                                                   290.7   minutes per day

Net increase is 68.7 minutes per day or 31 %!
The proposal is for 11% leaving a net pay cut of 20 %!

Sunday, September 18, 2005

Five Minutes to Midnight for Teacher Unionism in NYC?

by Michael Fiorillo

The recently released Fact Finder's report is a clear result of the current UFT leadership's catastrophically misguided policies and their effects on teachers and the school system at large. Unless the premises and specific recommendations of this report, and the leadership's efforts to sell it, are decisively rejected by the membership, teachers and students in NYC will suffer its consequences for years to come.

Perhaps the most significant misstep by Randi Weingarten occurred in the run-up to the 2002 contract, when, without consulting the Executive Board or the Delegate Assembly of the union, she unilaterally gave her blessing to mayoral control of the schools. This was both politically unnecessary and strategically disastrous. The union had long successfully blocked mayoral control of the schools, previously preventing Giuliani from gaining that prize, and while the city's elites had long clamored for it, there were neither parents marching in the streets demanding it, nor Democratic leaders in the state legislature insisting on it. Nevertheless, with no consultation or internal debate whatsoever, Randi Weingarten allowed it to happen. This was a strategic blunder of immense proportions, since it combined and concentrated the power of our adversaries, the Board of Ed and the mayor, which had previously been split. And toward what end? It was done solely to obtain the short term gain of an inferior contract. These results show how the current regime's lack of real internal democracy and poor judgment (to be as polite as possible) have combined to lead us to our current dilemma.

The leadership's next stumble was to place its hopes in the Fact Finding process itself. Faced with an anti-union billionaire executive whose opening negotiating position meant the complete loss of union rights and protections, Randi made a conscious decision not to rejuvenate and mobilize the chapters for meaningful struggle, but to place our fate in the hands of the lawyers. She also put our fate in their hands after signaling her intentions to sell off our time for some extra money. Although she has denied this repeatedly to the membership, she never refuted New York Times’ reporter Steven Greenhouse's December '04 article where she admitted to it.

Her desperate need to appear "responsible," clearly stemming from the union's fundamental weakness under her reign, has placed us in a corner that we must now fight our way out of.  

Should the Fact Finder's report become the contract, as happened in 1995 and 2002, we will be that much closer to the endgame that Bloomberg, Klein, the Gates and Broad Foundations, numerous right-wing think tanks and the general corporate consensus about public education foresee: complete management control of instruction and working conditions in the schools, as a prelude to their ultimate privatization.

What Weingarten/Unity Will Do, and What We Must

The basic drift of their campaign to force this contract on us has been established: Randi has made a few mutterings about things she doesn't like in the report, but has accepted it as a "framework." Given the experiences in 1995 and 2002, we can expect them to negotiate a contract based on the report essentially term for term. The next step for her will be to attempt to frighten the membership by posing a false choice: accept the Fact Finder's terms or strike immediately. Of course, Weingarten/Unity have made no preparations whatsoever for a strike, and if they are honest with themselves they probably know that they could not even pull one off. The purpose of the strike talk is to scare the membership into accepting a contract that will lead to the final dissolution of the union as anything other as a machine for dues collection.

In the short time available to us, we must do everything we can to discredit this report and Weingarten/Unity's disgraceful incompetence that led up to it:

     - we must speak with everyone - colleagues, parents, the press, etc. - to expose and discredit the terms of this report and the process by which it came to pass

     - we must do everything possible to convince our colleagues and fellow union members that this leadership can no longer defend and represent  us, and that we must defend ourselves, first by rejecting Weingarten/Unity's scare talk, and then rejecting the contract proposal that she brings before us.

     - we must rebuild the union, chapter by chapter, starting in our own schools, by letting everyone know that we can continue to work under the terms of the contract we currently have until we have built sufficient strength to take the offensive

This may sound too ambitious, especially given the speed at which things will be happening. But Weingarten/Unity are on the defensive, as last Friday's Daily News headline showed. They are scared and weakened, and that does give us a real opportunity to re-direct the debate on this contract and influence the tremendous discontent that teachers are feeling.

Fun Fact-Finding Facts

by Sam Lazarus, Chapter Leader, Bryant High School

Do you know that if the fact-finders report is accepted by our union that you work day will be a bit different?

Here's why:

-         You will come into work to do new and interesting tasks.  It could be a clerical job in the attendance office; it could be hall patrol or cafeteria duty.  An imaginative principal could come up with even more interesting ideas.

-         You will be told to cover yet another class, one of 12 for which you will receive no pay-nothing like unpaid labor to help build one's enthusiasm for the job.

-         You will deliver small group instruction to small groups of students every day for 30 minutes which is only 10 minutes added onto the 20 minutes which was in the last contract.  Some of you might detect a pattern here.

-         With all this new activity, it is important to keep smiling and to watch one's step because now a supervisor can place a disciplinary letter in your file without any possibility for you to grieve it.  Here too, creative principals might feel free to use their imagination while putting pen to paper.

-         Equally important is for one to be happy in one's school because with the elimination of seniority transfers you can be assured of being in the same school for your entire career.

We can have all these changes just by accepting the fact-finders report


WE CAN SAY NO TO THE FACT FINDERS REPORT, say no to longer days, longer years, more work, and less respect.  We can send the message that each one of these provisions is unacceptable and stand up as union members for our profession and for our dignity.

A Day in the Life Under the Fact-Finder’s Contract

Act I, Scene I

Place: Time clock area. Teacher walking in. Principal standing by the clock.
Time: June 2006, Contract based on fact-finding report is in effect

Principal: Whoa, Mr. Jones. Clock in!
Mr. Jones: But it’s just one minute past and there was a fire on the subway.
Principal: Sounds like not only are you late but you’re insubordinate as well. Thanks to our new procedures here is your letter to the file. (Hands paper printed from portable printer).
Mr. Jones: Let me get my Chapter Leader.
Principal: Not necessary. Just wait three years and if I don’t give you a “U” or bring you up on disciplinary charges it will be removed.

Act I, Scene II

Place: Chapter Leader and Mr. Jones meet in hall.
Time: Later that same day

Mr. Jones: Can I see you in your office later? I just got a letter in my file.
Chapter Leader: Are you kidding? I don’t have an office anymore. The principal uses it for small group instruction.
Mr. Jones: Well, where can I see you about this letter in the file? (Handing document)
Chapter Leader: (Reading) Oh, this just says you are always late, insubordinate and your breath stinks. Don’t worry.
Mr. Jones: Can’t we grieve it?
Chapter Leader: What does “grieve” mean?

Act I, Scene III

Place: Lunchroom
Time: Lunch Time

Principal: Mr. Jones, what are you doing here? (Ducks from tray of food thrown by student)
Mr. Jones: You assigned me here.
Principal: Oh no. You belong in the boys’ bathroom taking notes. Where are your notes? (Handing document from portable printer)
Mr. Jones: Oh no. Another letter to the file?
Principal: Do I detect some insubordination? (Tries to get another paper out of the portable printer but it gets jammed). Damn, I can’t get another letter out for you. I’ll get you next time.

Act I, Scene IV

Place: Outside of boys’ bathroom
Time: Later

Principal: Mr. Jones, you’re late for your coverage.
Mr. Jones: But, I’ve done 10 unpaid coverages already this year.
Principal: You’re lucky my printer is out of paper.

Act I, Scene IV

Place: Auditorium
Time: Later

Mr. Jones: (yelling) O.K., children we are here for small group instruction.
Johnny: I can’t hear you.
Mr. Jones: I know there are ten classes in here but there is nowhere else to go.
Mary: I heard Mrs. Smith got suspended without pay, is that true?
Mr. Jones: Sorry, Mary. I can’t comment on that.
Charlie: Mr. Jones since this is our last day of school will you be transferring to another school?
Mr. Jones: I tried Charlie but no one would take me.
Charlie: But you have 35 years teaching.
Mr. Jones: It doesn’t matter anymore.
Susie: How long do we have to sit here?
Mr. Jones: You know, 30 minutes.
Susie: Don’t you get a break?
Mr. Jones: No not anymore. We still have lunch…… I think.

Act I, Scene V

Place: Local bar where teachers frequent. Group of teachers talking.
Time: After last day of school

Mr. Jones: Thank God this year is over. I can’t take it any more.
Ms. Smith: I got “U” rated and the Union said nothing could be done about since my file now takes up two file cabinets.
Mr. Ronco: Yeah, that Chapter Leader has it easy. You know, he forgot what the word grievance means. What did you choose for your professional period?
Mr. Jones: Your school still has professional periods? We call them 9th periods.
Ms. Smith: Well, got to go. Have a great summer!
Everyone: (in unison) What are talking about? We have to come back in August!

Friday, September 16, 2005

Fact-finding Report Spells the End of the Contract and Our Union As We Know It

By James Eterno

        The fact-finding report is out.  It is filled with givebacks that will set us back ages by fundamentally altering the administration-union relationship in the schools in favor of management.  These recommendations basically spell the end of the UFT as it currently exists and operates in the strong chapters. Everyone should go to and read the report very carefully to see how badly we will be treated if we are to accept it.  The givebacks the arbitrators suggest are horrific.

          The losses include: the principal having the right to send us back to hall patrol, cafeteria duty or potty patrol, a longer year, a longer day that includes two extra periods where the principal will assign us, ten extra unpaid coverages, the elimination of our right to file grievances on disciplinary letters in the file, principal’s discretion as opposed to seniority in all transfers, plus weaker due process and excessing rights and a zero % raise in year one.  

           We have been bitterly complaining for over two years about how administration has been micromanaging us.  Wasn’t “Let Teachers Teach” our big slogan at rallies?  The Fact Finders didn’t even address our issues concerning micromanagement.  Instead of moving us forward, they decided to take us back to a new Dark Age where we will be modern day serfs beholden to the lord principals who can assign us as needed and fill up our files with disciplinary letters and we won’t be able to fight back.  Shockingly, the response from the Union to this draconian document has not been complete outrage.  
         In the Thursday, September 15, 2005 NY Post, UFT President Randi Weingarten said that the recommendations “have the potential to form a basis for a negotiated settlement.”  

Any real union leader would tear the report into pieces and publicly say two simple words: NO WAY!

          UFT leadership is spinning the report by saying that it is only a framework and it will be improved upon in subsequent negotiations.  We only have to look at history to see the absurdity of this argument.  In 1993 the final contract was essentially the same as the Fact Finding Report that was issued back then.  In 2002, the final Contract was in some ways worse than the Fact finding Report, but very similar.  First, while arbitrators were deliberating, we were told by Union leaders in early 2002 that any extended time would be utilized by adding two or three minutes to our current teaching periods and we wouldn’t even notice it.  Then, the Fact Finding Report was released and it said we should add time to the school day in exchange for more money but buried in the report they suggested blocking the time to add one late day every six days for professional development and using the rest of the added time for instruction.  At the time Weingarten assured us we would have “voice and choice” in how the extended time would be used.  We didn’t know that the voice and choice would be the voice of management choosing how we should spend the additional time.

          In the final 2002 Agreement Weingarten and then Chancellor Harold O Levy negotiated, there were two late days instead of one and it was left up to the discretion of the Superintendent as to how extended time would be used. We were placed at the mercy of administration in most schools.  The extended time provision was so flawed it has subsequently been renegotiated three times.  Does anyone seriously believe we will significantly improve on anything that it is in the current Fact Finding Report in final negotiations with current Chancellor Joel Klein?  

          Also, we should not buy the argument that Bloomberg and Klein are the toughest negotiators ever and this is the best we can do. UFT leaders made the same argument when Rudolph Giuliani was Mayor and they wanted us to swallow a Contract that included two years with no raises in 1995.  Former President Sandra Feldman told us we had to be smoking something if we thought we could do better battling this very tough Mayor Giuliani.  All of our enemies are formidable.  We should not appease them by agreeing to massive givebacks.  They have the classic bully mentality; they’ll only get worse if we keep giving in to their demands.

          As for moral high-ground with the public, a union that surrenders basic rights merely appears weak to the people.  Maybe we’ll get public pity but that will not strengthen our bargaining position. Bloomberg thinks he’s invincible.  Only through strength will we gain respect.            

          What should we do?  We can do nothing at all and at least we will still keep all of our rights as the Taylor Law maintains our current Contract until we have a new one.  I understand that many chapters are not ready to strike at this point.  We must organize chapters and prepare to be able to take industrial action so we can win, perhaps in tandem with other unions as they do in Europe.  Right now we should not accept the Fact Finding Report.  We should blame the Fact-Finders for not addressing our core micromanagement issues.  We should then ask that negotiations continue and work to build militancy.  If the City still insists on trying to destroy our Contract, then I suggest we go to the other extreme and demand and publicize the same Contract that teachers in surrounding districts have.  New Rochelle was mentioned in the Fact Finding Report and their union recently agreed to a contract where top pay will rise to $116,000 per year.  

          Teachers in many surrounding districts earn six figure salaries, have class sizes around twenty, are paid thousands of dollars extra if they volunteer for cafeteria duty and they have full tenure protections as well as a shorter school year than us.  Don’t city students deserve the same learning conditions as students in the suburbs?  Let’s move forward not backwards. Do not accept the Fact Finding Report as a framework for negotiations.  Let us not doom ourselves to micromanagement that will be much worse than we have already seen.    

A Lesson From Chicago

by George Schmidt

The last time Chicago struck, in September 1987 (hard to believe it's 18 years ago), the leadership of the Chicago Teachers Union was so unprepared for the strike that we didn't even have picket signs printed up.

The media and our enemies made big of the fact that the union didn't really want a strike. The first two days were chaotic, but by the end of the third day we had things shut down tight. And that went on for another 14 days. The frenzy with which our enemies went after us during those days (once the police were called saying that I had threatened scabs with a gun on the north side high school picket line and searched my car top to bottom) was unmatched, but as a result of the strike they were set back more than five years in their attempts to strip Chicago teachers of their rights.

Ironically, test scores went up by the end of the 1987-1988 school year higher than at any time during the 1980s (Chicago has always had annual testing; only high stakes since mayoral control in 1995).

The reason?

The strike produced more unity than had ever been seen among teachers before. Everyone worked harder than ever before, because during the strike we had become a militant community. Not one of the mostly illusory "gains" since mayoral dictatorship was put into Chicago in 1995 has exceeded what we did as teachers in 1987-1988 after shutting down the school system for the entire month of September.You can build a movement during a strike, and the attacks on teachers and unions give everyone a chance to see class forces in action and learn from it.

Every teacher who plays "Good teacher bad teacher" before a strike has to confront the sheer dishonesty of the attacks from the media and ruling class during the strike.It would be nice to go to war (striking) with militant union leaders. But, as Lincoln learned long before other said it, you go to war with the generals you have and win with the privates who are willing to fight like hell.In May 1988, the year after that strike, I ran for President of the Chicago Teachers Union against Jacqueline Vaughn and got 40 percent of the vote.

That combination of things (strike and militant election fight) bought us another few years before we allowed ourselves to be weakened in the face of corporate "school reform."

(George Schmidt has been involved in the Chicago Teachers’ Union movement and has been following our Union for many years)

Thursday, September 15, 2005

Breaking Out of the Boxes

Being able to define our options is no different than using our fact-finding report as the basis of negotiation. Last night our president tried desperately to “control” the reaction to this report by employing some very obvious and disrespectful tactics to our Chapter Leaders.

Right down to props on the stage Randi tried to give the appearance we were having a chat with about 800 of our schools’ leaders. How do we, as a Union, react to a fact-finding report which not only is replete with givebacks but fundamentally disrupts the power dynamic in our schools by giving over “discretion” to the principals in some very basic labor relations areas? (No one has even mentioned the provisions in the report about performance based pay and salary differentials based on school taught).

Rather than deal with this anti-union report our leadership has embraced it and will no doubt try to sell it to our members by promising to “tweak it.”

But how do you convince 800 Chapter Leaders to sell it to their members? The way that was chosen was to define the “options” available and label all of the opposition as only demanding to wait.

What are the options? According to Randi the options are take this report as the contract or “reject” it and go out on strike…immediately. It’s like asking the condemned which method he wishes to be executed.

The second method to sell this is to dominate the discussion. Randi tried to control the comments of the Chapter Leaders. No doubt there were brain-storming sessions well into the night to prepare. Yet, try as she might each speaker, which was allowed to speak, spoke about how this report cannot be accepted in any form. As a result attempts to recognize paid union staff to deflect these comments were obvious tactics that showed how desperate the situation is. Additionally, though it was supposed to be a “discussion” Randi made sure she commented on every comment and filibustered most of the evening.

Obviously planning for effective action is something that must be done over a period of time. While we have lost a lot of time we have not lost our will to have our Union act like a union. We cannot let the discussion be framed by those who have vested interests in maintaining their positions.

Randi, if you don’t lead us to prevent the wholesale surrender of our rights we will lead you. Our members will clearly not put up with this report as the basis of anything other than a post-mortem of our union.

Wednesday, September 14, 2005

Fact-finding Panel Offers Roadmap to Hell

Despite an alleged news “embargo” the media has already let the cat out of the bag. Last night’s Executive Board meeting, originally put over a day to receive the fact-finding report, was chaired by Weingarten to hold a “discussion” about whether the report should be used as the basis of our contract negotiations or whether we should strike.

While it was clear which direction she preferred it was disappointing to read in the New York Times this morning that the “choice” was already made.

We all know what a strike will mean to our Union. It is not a secret that we have done nothing to prepare ourselves to raise a credible threat. When the original 8 page contract proposal was first offered two years ago many of us urged that we start preparing for a strike. We were personally attacked and labeled as “crazies” for even mentioning the “S” word in its full length.

Now we know. We will accept anything as long as our union leaders can keep feeding at the trough. In fact our dues were just increased over a dollar a month.

The fact-finding report is a document of complete givebacks. We do not “win” anything when the mayor allows us to teach. Tenure, job security and other supposed wins were clever negotiating tactics that our leadership swallowed hook, line and sinker.

The Times article was not fully accurate. The fact-finding report must be read in its entirety. Every Union member will get a copy shortly and the Chapter Leaders will get one this afternoon at the meeting. The following is some of the “lowlights” without the “spin.”

1.     10 more minutes each day added to our “100 minutes”:  30 MINUTES MORE OF TEACHING TIME EACH DAY


3.     HALL DUTY


First year -ZERO
Second year - 2%
First six months of third year - 3.5% (almost half of which is paid for with givebacks)
Second six months of third year -  5.5% (all of which is paid for with givebacks)

Tuesday, September 13, 2005

Judge Settles Nagging Question: The Board of Education is Not a Legal Entity

There are times when the law is not only difficult to understand it can create unnecessary hurdles for the unsuspecting. Witness the case of Evander Childs High School student, Jamie Perez.

Jamie was slashed in the face by two fellow students on January 9, 2003. An action was commenced on his behalf alleging negligence on the part of the defendant, City of New York. The City decided to move to dismiss the case, not on any meritorious defense but rather on the basis that if there is any liability for the slashing it is on the “Department/ Board of Education” and therefore the City is not liable.

Justice Edgar Walker in rejecting the City’s slick move found that, despite their argument to the contrary there is no legitimate separate legal entity that is the Department or Board of Education. Prior to Mayoral control in 2002 the Justice admitted that the City lawyers had a point but under the new rules nothing could be further from the truth.

The Court wrote, “while the Board of Education continues to exist (denominated in it's by-laws as the Panel for Educational Policy), its former powers and duties are exercised by the mayor through his or her employee, the chancellor. Furthermore, the only power granted to the Board with respect to litigation, contained in Education Law §2590-g(6) is to "[a]pprove litigation settlements only when such settlements would significantly impact the provision of educational services or programming within the district." [Emphasis added.] It is not argued or alleged that the outcome of this action would have any impact on the provision of educational services or programming.

“In addition to having no executive or administrative powers, the Board of Education has no offices and no staff. Education Law §2590-b(1)(a). The Court is left to wonder where and on whom one serves an entity which by law has no offices and no staff? More importantly, assuming that, in the appropriate circumstances, the Board of Education/Panel for Educational Policy may be sued, what is the liability of an entity which has no executive power, performs no administrative functions and is not authorized to supervise or administer the operations of any school with the city school district of the city of New York? Given its limited power, authority, and functions, what did the Board/Panel do or fail to do in this case? What ability did it have to prevent the plaintiff's injuries?“

Thus, by judicial opinion, it is now precedent; the Board of Education has no legitimate legal function. Did we need this case to prove that? See Perez v. City of New York, 2005 NY Slip Op 25374, Supreme Court, Bronx County, September 9, 2005.

Monday, September 12, 2005

Suspended Tenured Teacher Gets Rehearing After Being Found Guilty of “Improper” Use of the Internet

By all accounts Luther Stephney was an exemplary 2nd grade teacher. He taught since 1999 and obtained tenure in 2001. He also coached several sports teams in the Peru Central School District, a small district in rural upstate Clinton County.

Stephney’s classroom was wired for the internet and monitored by security software. Well, during one period in the winter of 2004, while there were no students in the classroom, Stephney decided to explore the underbelly of the internet and used search terms “too offensive to repeat here.”

After the computer locked him out he immediately went to his supervisor and told him what he had done. The district brought seven charges against the respondent, including insubordination, neglect of his duties, searching for and viewing inappropriate, immoral and obscene images on the internet and violating the District's internet policy. The hearing officer suspended him for the rest of the 2004-2005 school year and retained jurisdiction for two years to make certain Stephney did not violate the policy again.

While this “transgression” might seem less dangerous in our district the Court’s reversal of the hearing officer’s penalty is worth noting. The Court reversed the penalty finding that “A court may intervene in arbitration on public policy grounds only in exceptional cases; they must be cases in which "public policy considerations, embodied in statute or decisional law, prohibit, in an absolute sense, particular matters being decided or certain relief being granted by an arbitrator" (Mtr of New York City Transit Authority v Transport Workers Union of America, 99 NY2d 1, 7 (2002), quoting Mtr of Sprinzen, 46 NY2d 623, 631 (1979).”

The Court found that the hearing officer exceeded his authority and violated public policy by imposing the penalty that he did. In finding the violation of public policy the Court cited the Court of Appeals case in which the UFT won enforcement of an arbitration despite the City’s insistence that it violated public policy. (This was the case in which the principal of a District 26 school selected a less senior teacher for a per session activity).

The Court also defined the source of the public policy implicated by a school district’s internet policy. It stated, “while the internet provides a wonderful addition to the teaching tools available in schools, its presence also presents the possibility for damaging and far-reaching abuse. For precisely that reason, the federal legislature passed the Child Internet Protection Act which aims to protect children from pornography available on the internet. The hammer to ensure this event is avoided is the federal government's control of the purse strings. This case involves a guardian, custodian and role model for seven and eight-year old children placing pornography on computers the children access on a regular basis.” Board of Education, Peru Central School District, v. Luther Stophney, 2005 NY Slip Op 25371, Supreme Court, Clinton County, July 6, 2005.

Saturday, September 10, 2005

How Long Can You Keep Your Cap On in a Storm

To say there is incredible political pressure to lift the Charter School cap in our state is an understatement. There is little question that most people see the charter movement as a way to loosen union control of our schools. In a disturbing article, published today in the New York Times, David Herszenhorn reports that City has offered to cover the cost of two thirds of the construction of new charter schools. Additionally other money sources from the state would be found as well.

As the exclusive bargaining representative of DOE teachers and staff the UFT does not have to organize new schools opened up the DOE. When a charter school opens it is a different story.

Last year we were duped into believing that by opening a union run charter school we would help stem the tide of non-unionized charters by demonstrating that a union run school (with all the contract trimmings) would flourish and prove to the world that the contract (and unionization) was not an impediment to effective schools. Although not said at the time it was clearly believed that we could hold the cap (currently limited to 100) to prevent a mass migration of public schools turning into publicly funded and privately run charters. This was based on our political strength since the cap was state legislated and we believe we still have influence.

Even if every new Charter school became UFT organized the City would still push for them. Under the Charter laws new schools have a certain and short period of time to “prove” themselves. This proof is demonstrated through testing and those schools that do not make the “grade” have their charters removed. Imagine if the City could shut down every public school that did not make the grade!

Adding to this disturbing trend is the position our Union must now make in reaction to this political firestorm. Since we now “own” a piece of this “movement” Randi responded to the City’s offer by saying “rather than pushing to lift the cap on charter schools, Mr. Klein and the administration should be fighting Albany to resolve a dispute over standardized testing that will require the city's third, fifth and seventh graders to take two different sets of reading and math tests this year.”

Good way to keep your cap on!

Wednesday, September 07, 2005

Teacher Discipline: Where the Rubber Meets the Room

Back in 1839 Charles Goodyear accidentally touched his sulfur-laden hands with a substance he had been working on for over seven years to make useful. This substance fell into a vat on a stove and became the precursor of vulcanized rubber.

While Goodyear’s serendipitous discovery yielded a great benefit for us all it is less clear what benefit its namesake, the “rubber room” has had for our members.

The “rubber room” is the place where suspended teachers report every school day instead of their assigned schools. It is unclear how the place was named. Some say it derived from the “rubber-gun” squad (suspended police officers) or that it was named because after a short time suspended teachers feel like banging their heads against the wall.

Under state law teacher suspensions are handled differently than most of the rest of the civil service. Education Law Section 3202-a(b), which contains most of the disciplinary procedures for teachers provides that “The employee may be suspended pending a hearing on the charges and the final determination thereof. The suspension shall be with pay, except the employee may be suspended without pay if the employee has entered a guilty plea to or has been convicted of a felony crime...”

Additionally our contract provides similarly that “Any teacher who is suspended pending hearing and determination of charges shall receive full compensation pending such determination and imposition of any penalty except as set forth in Article 21G4.”

At first blush this procedure appears rational and protective of teachers. After all a person accused of a disciplinary violation is protected from loss of pay (although not loss of reputation) while an investigation is being done. Under provisions of the Civil Service Law other civil servants can be suspended, without pay, for up to thirty days. It seemingly protects the City (and children) by removing a potentially dangerous person from the school.

Seen at this level the policy seems fair but we know different. Since the DOE is given unfettered discretion to reassign a teacher to the rubber room there is little downside to making an incorrect decision. While the children end up suffering (along with the teacher) the DOE can use this power in a very disruptive political fashion. Thus teachers disfavored by a principal can be subjected to this power to quash union activity or other purposes not directly associated with teaching.

In the course of contract negotiations the DOE totally manipulated a couple of extreme cases to demonstrate that we should be giving concessions in this area. Randi took the bait and in a clearly ill-advised statement agreed that the policy did not remove the “dangerous teachers” from the system fast enough. Thanks for your support.

It is difficult to defend child abusers, pedophiles and others who should not be near children let alone be teaching them. However, the last that I looked our law and contract are based in our society’s fundamental notions of due process…the right to a fair shake. When we throw our accused to the lions we might as well not have a union.

Under the Civil Service Law city employees are entitled to notice of the charges and specifications against them at the end of their 30 day suspension or they must be reinstated. Rather than allow the DOE to abuse our suspension procedures in furtherance of their own political agenda let’s change the contract to require detailed notice of the charges or reinstatement within a reasonable time and the ability to test the DOE’s decision to assign one of our members to the “rubber room.”

While certain time limits were imposed in the last contract the fact that there is no incentive for the DOE to investigate has shown that these provisions are totally useless.

Rather than agree with the anti-union rhetoric our leaders should be molding the discussion in a way that protects our members and our children.

Tuesday, September 06, 2005


For the third successive year UFT members return to work without a labor Agreement.  While the UFT did not even mention the lack of a Contract in its latest email newsletter to chapter leaders, there was news in the Queens Chronicle where UFT President Randi Weingarten said, “If there’s not a contract, I think things will get very bad in the school system as the year progresses.”  

As most of you probably received a letter from the President outlining our plight, I will summarize the situation briefly: there is a fact finding panel that is weighing the demands of the UFT and the City/Department of Education and they will release non binding recommendations soon that could serve as the basis for a final settlement.  In 2002 and 1993 fact finder’s reports were accepted by both sides and ended up being used as the foundations for new Contracts.

The City is offering us the same 4% total spread out over three years that DC 37 received in the latest round of contract settlements that the city says presents a pattern that other municipal unions must accept.  The UFT is asking for 19% over three years so we can start to catch up with what suburban teachers earn.  For those of us who are hoping that the police union’s arbitration settlement could help us as incumbent officers received two raises of 5% per year, it must be pointed out that the police were only able to significantly beat the DC 37 pattern by slashing pay for new officers, thus saving the city almost $50,000 per new hire.  Due to a possible teaching shortage, I very much doubt the UFT and city will come up with a similar arrangement for us.

I read the Union’s arguments closely in June and the UFT readily accepts the reality of the DC 37 pattern being very important in determining our settlement.  The UFT argued in fact finding, “Perhaps the 'pattern' provides a starting pointing for negotiations or creates a framework for negotiations to take place, and such would not be inappropriate." (Page 15S of the supplement to the NY Teacher; June 9, 2005) 

If we argued in June that the DC 37 pattern can be used as a framework for the UFT, then can we logically expect arbitrators to recommend a raise for us that would be more than four times greater than DC 37’s basic increase?  The 19% we are asking for does not fit into any basic framework that the DC 37 pattern set so I really doubt we can come anywhere near 19% without major givebacks such as a longer year and a longer day.  The only way to significantly beat the meager DC 37 pattern without givebacks is to really fight.

Written by James Eterno

Monday, September 05, 2005

UFT Endorsement Policy Needs to be Examined

We can debate the efficacy of UFT political office endorsements especially in light of recent experience but little is widely known about the process of these endorsements. There is little doubt that both candidates and our Union take the endorsement process seriously yet our membership does not have a clue about how and why these endorsements are made.

The process begins with boro reps and “selected” others interviewing candidates who express an interest in a UFT endorsement and generally have completed a questionnaire. This group then forwards, through our political liaison, recommendations for endorsement to the Executive Board and then on to the Delegate Assembly where the endorsement recommendation is usually followed.

The current election cycle demonstrated just how secretive the process is and how defensive the leadership became when the process was challenged. There are currently several candidates in the Democratic primary for the office of Public Advocate. Since the incumbent, Betsy Gotbaum, was such a favorite of our leadership there really was no need to go through the process. When questioned about the process at the Executive Board the leadership became very defensive first suggesting that other candidates had not expressed their desire to address the Executive Board as had been done in the previous election and that it was long standing UFT policy to endorse incumbents unless they turned on us. (In other words don’t pick the best candidate; maintain the status quo).

While the candidates eventually did address the Executive Board the fervor that enveloped demonstrated just how flawed our candidate selection process is. (How did Pataki get endorsed, but I digress).

There are published guidelines (AFSCME and Fire Fighters) and even NYSUT has issued criteria to be utilized but our Union leadership would rather keep this process in the dark corners of 52 Broadway.

The gravamen of NYSUT endorsement policy, at least as laid out by Mark Vona of the Eden Teachers Association in a column in the New York Teacher seems to rest on not whether the candidate is good for the office but whether that person represents our Union’s interests. I guess this justifies a Pataki endorsement or a couple of arch-conservative New York City Council candidates who support gun licenses for our students.

As with much that we are fighting the endorsement process and COPE in general needs to be more democratic. Other unions have not had a problem involving the membership in this process. We need to open those windows in 52 Broadway.

Thanks to New York State and New York City law the contributions by our Union are disclosed. Two weeks ago we gave $200,000 to a new entity the UFT Victory Account and you can track their state contributions at this site. Previous years were filed under UFT COPE and are located here. City contributions can be found here. There are some interesting disclosures.

Sunday, September 04, 2005

The Origins of the Taylor Law

Contrary to popular belief there has never been a “legal” right to strike for public employees in New York State. As noted by Justice Emilio Nunez in Board of Education v. Albert Shanker[1], “from time immemorial, it has been a fundamental principle that a government employee may not strike.” While Nunez described public employee strikes as the “indulgence of arbitrary self-interest at the expense of the public” he tried to put the new Taylor Law (in effect for just over two weeks when he wrote his decision) into historical perspective.

Prior to legislation in 1947 the common law of New York clearly made public employee strikes illegal. They were subject to court injunction and fines and imprisonment, though rare, were clearly available.

In 1947, with the rise of labor unions and the experience of Truman’s nationalization of the mines under John L. Lewis, Governor Dewey signed into law the Condon-Wadlin law. This law was incredibly harsh with severe penalties for public employee concerted action. The Condon-Wadlin law, as originally enacted, consisted of six subdivisions, the first three respectively defining a strike, prohibiting a strike and prohibiting a consent to strike. Subdivision 4 provided for termination of employment of strikers qualified by conditional re-employment In subdivision 5 a striking public employee was barred, for three years, for an increase in pay and was placed on probation for the next five years. Subdivision 6, provided for a hearing, including notice, examination and confrontation under oath and a record. A determination was subject to judicial review including whether or not there was discretion in any imposed penalty. Punishment was subject to judicial modification.

Because of arguments that the penalties were onerous and oppressive, for two years between April 23, 1963, and July 1, 1965 there was an experimental legislative amendment of the penalty provision in subdivisions 5 and a new subdivision 7 was added. The restriction on the increase of compensation was reduced from three years to six months and the probationary period from five years to one year. A new provision imposing a fixed penalty in the nature of a fine amounting to two days' pay for each day of striking and moreover, additional punishment--removal, suspension without pay up to 60 days, an additional sanction--was authorized.

In January 1965 members of the Social Service Employees Union working at New York City’s Welfare Department walked off their jobs for 28 days. 5,000 workers were subject to the two days’ pay for each day of striking provision, return to probation and were threatened with automatic dismissal. Nineteen union officials were held in contempt and three were jailed for refusing to call off the strike.[2]

While the statute was tested for constitutionality the union leaders were released from prison and the Legislature eventually granted amnesty to the striking workers.
There was a continuous effort to repeal Condon-Wadlin but it wasn’t until New Year’s Day 1966 when 30,000 employees of the New York City Transit Authority went on strike that pressure to change the law went to the boiling point. The strike resulted in the jailing of the TWU president and lasted 12 days.

Three days later Governor Rockefeller appointed a committee to study public sector employee relations. He appointed George W. Taylor, a respected authority on labor relations from the University of Pennsylvania as chairman.

By April 1966 Taylor’s committee issued their final report which called for the repeal of Condon-Wadlin. Borrowing on the private sector’s National Labor Relations Act the legislation proposed would grant public employees the right to organize and bargain collectively and require public employers to recognize and negotiate with employees’ representatives. Unlike the NLRA the Taylor committee continued the Condon-Wadlin prohibition on strikes and set up a Public Employment Relations Board to settle disputes and impose sanctions for striking public employees.

Due, in part, to Mayor Lindsay’s insistence that New York City have the power to set up its own public employment relations board enactment of the Taylor committee’s recommendations did not take place until a year later, April 21, 1967 with an effective date of September 1, 1967.

With the Taylor Law barely 10 days old the UFT collected 40,000 resignations from teachers in what they argued was not a strike since no one could be forced to work, even under the Taylor Law. Justice Nunez was not persuaded by this argument and Shanker was jailed and the union severely fined after a bitter and lengthy teachers’ strike.

[1] 54 Misc.2d 91, 283 N.Y.S.2d 548 (Sup.Ct., 1967)
[2] City of New York v. Social Service Emp. Union, 48 Misc.2d 820, 266 N.Y.S.2d 277 (Sup.Ct., 1965)

Saturday, September 03, 2005

Terminated Probationary City Employee Wins Major Victory in Disability Case

In a case that can have some far reaching implications a terminated probationary sanitation worker got his formally dismissed case sent back to the federal district court from the 2nd Circuit Court of Appeals. Anthony P. Capobianco, Jr. in Capobianco v. City of New York, decided yesterday, convinced the Second Circuit that his dismissal may have been the result of the Sanitation Department’s illegal discriminatory action.

Union reps and advisors often advise terminated probationers that “you don’t have a prayer” when it comes to fighting a dismissal. While fighting an unjust probationary dismissal is difficult there are avenues. Capobianco offers one such avenue.

Anthony Capobianco wanted to be a sanitation worker most of his adult life. He took the test in 1983 and 1990 and scored perfect tests but he had vision problems. Since sanitation workers drive vehicles good sight is a bona fide occupational qualification (which means criteria in which a potential employer could legally not discriminate against you by refusing to hire you).

His vision problems were eventually corrected by cataract surgery and the DOS initial rejection of him in 1997 became an acceptance in 1998. He disclosed his vision problems on his employment application.

Initially he was assigned to a day shift on a two-person truck. Things went well until he was assigned to the night shift. At this point he had great difficulty driving and was diagnosed with night blindness. After being assigned to desk duty he was placed on limited duty which permitted day driving only.

He received satisfactory ratings and after several months was eventually discharged.

In order to maintain a claim in federal court under the Americans with Disability Act (ADA) and the New York State and City Discrimination laws it is normally necessary to file appropriate complaints with those agencies. In Capobianco’s case the EEOC (the federal agency handling these complaints) determined he had a viable claim and authorized him to sue in court. There are a number of ways to commence disability discrimination lawsuits but this is probably the most common one utilized.

After he commenced his court case the district court dismissed his claim finding that the City (DOS) could dismiss a probationary employee for any or no reason at all. The Second Circuit reversed finding that probationary employees may not be dismissed for discriminatory reasons and sent the case back to district court for trial.

There are a number of similar cases involving DOE employees. In one unreported case a social worker who also suffered from night blindness had difficulty driving to school. He got along great with the principal and the principal gave him “flex time” so he could avoid the harsh morning sun when he drove.

Of course things didn’t continue to go well with the principal (that’s a shock) and the principal decided to withdraw his accommodation. The Medical Bureau blindly (no pun intended) followed the principal and the social worker went to his union rep who told him that flex time was not appropriate under the social work contract and there was nothing that could be done about it.

The social worker hired his own attorney at considerable expense and recently the court ordered that the flex time be restored.