Sunday, December 02, 2012


We have been asked what we think will happen concerning the deadline for implementing a new teacher evaluation system.  Since 20-40% of a teacher's annual evaluation will be based on growth in student test scores (what has been proven to be junk science) and the other 60% will be based on the notorious Danielson framework, teachers are justifiably nervous.

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.


Jeff Kaufman said...

Excellent analysis. Of course the conspiracy minded believe that the deal is already worked out and the parties are using the January deadline to squelch opposition to the deal from all sides. I agree that wholesale layoff of ATRs is not possible (mostly due to state law protections rather than any sense of protecting more experienced teachers) but some deal will work to allow ATRs to be hired without financial penalty to a school's budget and then deal with the rest that don't find a job by using the new evaluation system to terminate their positions.

There is little prospect that the factfinding will do anything before January. Expect complete sellout on evaluations.

reality-based educator said...

I wish scenario #2 would come to pass, but my experience as a UFT member for 12 years tells me that #3 is in the cards.

The UFT and the NYSUT won the lawsuit against the NYSED over the 40% VAM and still let Cuomo bully them to an agreement last February that was damaging to teachers.

I see no reason why the last part of the sell-out to the February agreement shouldn't come to pass now.

And I guess I'm just too cynical, but I never thought a contract was in the works as part of the eval deal.

Here is a question for you: what happens after Bloomberg leaves? Do things get any better?

NYCDOEnuts said...

I don't think those conspiracy minded people would be so inclined if the leadership of their union had bothered to be clear with the rank and file as to whether or not there would be a deal WITH (or without) a contract in the first place.

Honestly, why is this topic even fodder for bloggers and union activists? Why do we have to be guessing about it? And why do we need to analyze the law, or the union's track record, or both, just to make a reasonable guess? In a real (not unbelievably crazy, totally unacceptable) scenario, we'd be able to simply pick up a phone, call the union and ask.

Anyway, I did, before the rant, want to leave another possibility:

Since the membership would essentially get to vote on the eval deal if they were also voting a contract, a possible scenario might be for the new "eval-tied" contract to be voted down.

That's why I think the third scenario is a bot more likely than you might think.

Chaz said...

First, I agree with RBE that scenario #3 is the most likely scenario. Especially, after long-term Unity hack, Peter Goodman, went to great pains to point this out on the Gotham Schools comment section.

Second,NYCDOEnuts comment is exactly the point. The UFT's secrecy, lack of transparency, and their failure to listen to the rank and file allow for the speculation when none should be needed.

James Eterno said...

So cynical everyone. Why would the UFT leadership give away their bargaining leverage for a mere pittance in state aid? it's up to us to put the pressure on the leadership.

Anonymous said...

James, Thank you for the answer as it was my question on your previous blog post that "Looking into the Crystal Ball on the New Evaluation System & Contract" derives from.

Peter Lamphere said...

I have to agree with RBE and NYCDOENuts... Despite all of Mulgrew's words on this issue, I think the pressure to settle the evaluation matter from the governor will outweigh the union leadership's own self-interest in waiting to make a deal with the next mayor.

However, hope for the best, prepare for the worst:

We should advocate hard for outcome #2 and prepare for both outcomes #2 and #3.


Anonymous said...

I am totally one of those conspiracy folks who believe a back door sell out deal will happen. The pressure from the media/NY State/NYC will cause Mulgrew to crack. The worst case scenario is if the UFT makes back door deal on the evaluations by simply agreeing to an ammendment to our current contract. We'll have no chance to vote on it and it will be served up like a bad breakfast when we wake up one morning in January.

Anonymous said...

James, remembered when you said that you stand by your math and yet the UFT decided with the DoE to have us work 3 days during the cancelled February break.

Thank you for the indepth analysis of edlaw 3012-c and I agree with #2 and those who also favor that option. But, we will get a snow job from the UFT. We shouldn't have to work during those days, but the UFT dropped the ball on the rank and file. I feel that all the members will be hurt by the UFT's next decision, to give in on accepting the New Evaluation System without getting a contract. They have done it in the pass with these so called "Amendments". The union leadership decided to apply for the RttT and now we are in this situation. I can see it now if Mulgrew sells us out. The Unity Caucus going to every school campaigning feverishly to explain why you should vote for him and the E$E voting for him because they got what they wanted. Spin, spin, spin.

NYCDOEnuts said...

I wish they would try coming to my school.

Anonymous said...

It is up to teachers to force the leadership to do right by us.

Anonymous said...

I believe 100% Mulgrew will cave in and sell us out with no
new contract. However, I like to find out the Why of things.
That is what we don't know but need to start asking. Questions. Like what does Bloomberg have on Mulgrew?
Seriously this needs to be investigated. Something is not right when any union leader caves so easily and so often.

Anonymous said...

The $900 million in no-bid contracts and consultants for te DOE must be addressed in public.

Unknown said...

I agree that the law affords UFT negotiators some leverage but the quid pro quo is that Cuomo probably received assurances from the UFT that they would accept the teacher evaluations as part of a new contract. Bloomberg is the wild card here because he doesn't want to grant retro pay(close to 1 billion dollars) and he wants to be able to lay off ATRs. Aside from DC 37 what other city union received 4%? Bloomberg is not going to agree to retroactive pay for the uniformed services or the UFT and he or the next mayor will declare a fiscal emergency to justify not doing so. As for "merit" pay, I know that Weingarten pushed it on the Newark teachers but hasn't it already gone bust in NYC? The UFT would gladly take a deal on the teacher evals combined with a 4% retro and a lesser amount for the new contract plus merit pay but I don't think this mayor, or the next will give it to them because they do not face sufficient pressure to do so and they are quite willing to conform to the fiscal constraints that come from not taxing the rich. A mass movement is required but the Unity leadership doesn't know how to do this and they are frightened by the prospect) Correct me if I'm mistaken but the $300 million is supposed to go for new programs and assessments. In other words the money is another handout to private contractors and testing companies and will not go to improve learning or working conditions. After the initial wave of union bashing and hand wringing by the media the full picture will emerge and opposition to race to the top will grow. Bloomberg's stubborness will make it impossible for the UFT to come up with a contract they can comfortably ride to re election on so they will in my opinion sit tight and wait for the next mayor. The biggest looser here aside from the contractors and testing companies will be Cuomo but I don't think he has much leverage with Bloomberg to force him to the table. I think its scenario #2 and I think this would be the best we can expect from this leadership. From the leadership's point of view I think they would prefer to go into the election without a contract then face the membership after caving into Bloomberg.

Anonymous said...

Has anyone ever gotten any benefit out of receiving an observation report?

Rumor has it that a state appellate court made a finding that there are no facts and no statistics in observation reports.

There are only four categories of information in observation reports:

1) advice

2) criticisms

3) evaluations

4) recommendations

How will observation reports be used to "prove" that a lesson was "highly effective," "effective," "developing," or "ineffective"?

Zachary Stieber said...

Hi James,

Good afternoon! I'm a reporter with The Epoch Times. I am very interested in what you have to say, as it appears you represent a perspective that is not seen much in the medias you listed.

Can we set up a short phone interview today?

Please email me at


Anonymous said...

The question for James and Peter Lamphere has to be is MORE prepared to respond to any of the above 3 options. We must have an opposition voice to Unity that is in the wake of the Newark deal, obviously getting ready to sell us out. I really want to hear Julie and the other leaders on this topic. We all know a UFT led by MORE would fight against this corruption, but we must hear MORE now

Anonymous said...

I agree. Where is the opposition voice?

James Eterno said...

Sean- The uniform services and just about every other city union settled on the 4%+4% for the last round of collective bargaining years ago. The uniform services settled that round before the last mayoral election. We were singled out for punishment in the last round.

ed notes online said...

I heard the UFT is sending people into the schools to begin softening them up for what I believe is 3. So I'm a conspiracy theory buff.
Yes, James, I believe Mulgrew was sabre rattling at the DA but always watch what they do not what they say. I'm also suspicious about the timing of this all given the UFT elections. Unity knows that the elections is so set up they can't lose but the margin of victory is crucial to them. With New Action out there to siphon votes for Mulgrew the final number they can claim means a lot to them. The bad timing of the loss of vacation days and the possible sellout may push then to push back the election for a few months (which they can do) to wait for the storm to pass.

Anonymous said...

Mulgrew is going to sell us out!! Its a Mafia!! Bloomberg and Mulgrew! I want to know when all of the teachers are going to get the balls up to stick together and do something!! The principals and assistants principals are a bunch of liars and are just as corrupt at Mulgrew and Bloomberg. They are walking into classrooms writing snapshots, informals/formals based on how if they like the teacher or not...they make up nothing but lies.Its just not fair! They are part of the Education Mafia! Teachers need to put together a class action suit against this , but we need to UNITE!!! It will continue if we dont. If they want to evaluate a teacher let the State send people into schools randomly who DONT have any connection to the under qualifed administrators in the schools. We are highly educated we shouldnt feel like bums on the side walks that applied for a job.