MAJOR TEACHERS UNION WINS GRIEVANCE THAT SCHOOL BUILDINGS ARE UNSAFE TO WORK IN

I have been arguing since March that because UFT members are contractually entitled to a safe work environment (Article 10F), there is nothing to fear if people stay out of unsafe buildings. A major teachers union has agreed with that position and filed a grievance on the matter. That union is not the UFT, of course, but the Chicago Teachers Union.

The Chicago Public Schools started the 2020-2021 school year remotely for students and most teachers but forced certain CPS clerks to return to school buildings. The CTU immediately grieved that the schools were not safe and an arbitrator issued a decision yesterday siding with the union. This is part of the email from CTU announcing the ruling:

The arbitrator’s ruling that CPS buildings are “not safe and healthful” was built on extensive evidence of grave deficiencies in school buildings, 60 percent of which have no central HVAC system. Less than 5 percent of schools have any air purification system installed, 50 percent have non-functional critical components of their air circulation systems, and only 9 percent of CPS schools have air filtration systems that meet public health recommendations for COVID-19 safety (i.e., MERV 13 or portable HEPA filters).

I don't know what the statistics for buildings with MERV 13 filters are for NYC but I gather they have not been installed in most schools.

Here is a major part of the Chicago ruling:

  SUMMARY FINDINGS AND ORDER

This expedited arbitration proceeding arose from an August 21, 2020 Union grievance asserting that compulsory, full-time work inside CPS school buildings violates Article 14-1 of the parties’ labor contract, which states: “14-1. Safe and Healthful Working Conditions. Bargaining unit employees shall work under safe and healthful conditions.” A hearing was conducted remotely on September 15 and 16, 2020, and the parties have submitted post-hearing briefs which have been reviewed and considered in this ruling.

For the reasons stated in a separate Opinion, I make the following findings:

1. Reporting to work inside CPS school buildings increases the danger of infection by COVID-19, an airborne, highly communicable, deadly, and still not fully understood disease;

2. The only way to eliminate the risk of COVID-19 infection and death is for School Clerks, School Clerk Assistants, and Technology Coordinators to work remotely;

3. Although the Board has made efforts to mitigate the risk, subjecting these employees to increased risk of COVID-19 infection for work that can be performed remotely does not fulfill CPS’s contractual promise that its employees work in “safe and healthful conditions”;

4. On this record, it cannot be determined that each school building is safe and healthful to work in and in accordance with the Precautionary Principle, it is better to err on the side of allowing remote work, where feasible, since the extent of the inherently hazardous conditions presented by COVID-19 in each school building is unknown.

5. Allowing these employees to work remotely, where it is feasible to do so, properly balances employer and employee needs that are necessary to fulfill CPS’s contractual promise to provide a safe and healthful workplace for its employees.

Based on the foregoing, I find insufficient evidence that the Board’s school buildings are safe and healthful for these employees to work in; that the Board does not sufficiently mitigate the risk to these employees by directing them to work full time inside school buildings when certain duties can be performed remotely; and that CPS has therefore violated Article 14-1.

Although I think the CTU did right by their members by filing this grievance while the UFT just dithers and delays, the CTU didn't pull all of their members out of unsafe buildings, and one teacher who worked in a building to distribute supplies to students died from COVID-19.

Once again, from the CTU email:

The Union also learned this week of COVID-19 cases at a total of four schools — Lane Tech High School, and Canty, Mt. Greenwood and Funston elementary schools.

Funston teacher Olga Quiroga had gone into her building just before the beginning of the school year and worked through Sept. 10 to help distribute supplies to families and complete other duties. Her family took her to the emergency room on September 11. She passed away on Thursday, Oct. 1.

“It’s tragic that this ruling — which irrevocably establishes that CPS schools are not yet safe to reopen — has come too late to have helped protect Olga’s life or protect other workers from COVID infection,” CTU President Jesse Sharkey said. “We expect CPS to move immediately to protect the rest of our members in buildings by allowing them to begin working remotely today, as those workers did effectively from March through August.”

In NYC, we have different contractual language and it might be better to head right to court. We haven't done that. We do have language from the Chapter Leader Handbook (I believe based on arbitration precedent) that allows UFT members to take what is called self-help to disobey an administrator's orders under certain very limited conditions.

This is what we said on the matter in March and it is worth repeating again:

If any insane administrator questions someone [refusing to go into an unsafe building], I consulted the UFT Chapter Leader Handbook about self-help. Self-help is when an employee is insubordinate by defying an order from a supervisor. Normally, a teacher should obey an order that violates the Contract and then grieve.  However, the Handbook provides three justifications for an employee to be insubordinate. Two of them apply to our current situation:

First, the employee has a reasonable belief that carrying out the order will endanger the employee's health.

Second, carrying out the order will threaten the safety of others.

Entering buildings that may have coronavirus would seem to apply to both justifications.

Please stay safe everyone and think long and hard before you enter any DOE building during the current COVID-19 pandemic until they are truly safe.