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legal wrangling

City: Turnaround staffing complaints weren’t arbitrable after all

The city’s case for reinstating thousands of hiring decisions at 24 struggling schools relies on the argument that an arbitrator should never have considered reversing them in the first place.

Since January, the city has been trying to carry out a controversial overhaul process known as “turnaround” at the schools. To follow state and federal rules about staffing in turnaround schools, the city had to engineer what amounted to overnight school closures. But the UFT and the Council of School Supervisors and Administrators argued that the changes were “sham closures” designed for political ends and so did not qualify the city to use the staffing rules it had invoked. On Friday, an arbitrator, Scott Buchheit, agreed with the unions.

The city voluntarily entered into the arbitration process in May at a State Supreme Court judge’s urging in order to speed the resolution of the unions’ complaint. Buchheit is one of several arbitrators that the city and teachers union have jointly agreed should hear contractual disputes.

But in a suite of legal papers filed late Monday, the city suggests that the Buchheit should have declined to consider the unions’ complaints. The main petition says that city lawyers argued to Buchheit that he should toss out the grievances before him because the union contracts did not define closure; arbitrators are barred from superseding state laws; and the Department of Education cannot bargain away power over classroom standards.

But Buchheit didn’t listen, so his ruling should be overturned, the petition says.

In a supporting affidavit, Marc Sternberg, the Department of Education official in charge of the turnaround process, argues that letting the arbitrator’s decision stand, even temporarily, would cause “irreparable harm” to the department’s effort to improve the schools by September.

The argument goes beyond what Bloomberg indicated on Monday. Bloomberg suggested that the city would seek to have the arbitrator’s ruling put on hold until his full rationale was made public, which might not happen until the end of the month.

It is also seen as unlikely to gain traction when Judge Joan Lobis considers the city’s petition next week, after she returns from vacation. Lobis is the judge who urged the city and unions into the binding arbitration process in the first place. She is also the judge who overturned the city’s plans to close 19 schools in 2010, voiding a Panel for Educational Policy vote in the process.

The city’s petition to the court is below. Its supporting documents, including Sternberg’s affidavit, can be found here.

  • Invictus

    The imbeciles at the DoE are truly a bunch of sore losers.  Good luck with dealing with Judge Lobis.  

  • Paladin55

    Bloomberg is the megalomanic who just keeps on giving…
    Not sure who his “God” is, but this seems to define him:divine right of kings - the doctrine that kings derive their right to rule directly from God and are not accountable to their subjects.I am waiting for him to call out the police and the national guard, and have them arrest the arbitrator and occupy the 24 schools in question.

  • Turnaround Observer

    If the judge did not consider the dispute arbitrable, then she wouldn’t have urged both sides to accept binding arbitration.  All parties agreed on the selected arbitrator, the details of the dispute, and the remedy should the UFT and CSA prevail.

    The mayor can, and probably will, close these 24 schools next year as part of the normal closing process.  Why delay implementation of the arbitrator’s ruling for even a week?  Doesn’t that do harm?

  • cj

    So maybe I’m missing something.  They agree to go to arbitration, set up a protocol of hat happens if they lose the arbitration and after they lose argue the issue was not arbitrable.  Something seems crazy here or am I missing something?

  • cj

    Cab’t find the Sternberg affadavit on the link provided?  Is it there?

  • Mr. Flerporillo

    To me, it looks like the City may have rolled the dice on arbitration rather than risk what it might have feared would be an adverse ruling from the court on the union’s application for an injunction; and then, in the arbitration, fight the union on both jurisdictional grounds and the merits.  High-risk, although I’m missing tons of details.  

    I haven’t seen the transcript of the hearing at which the judge “urged” the parties to arbitrate.  But it would be reasonable to expect the judge to expect the DOE to explain why it didn’t make this jurisdictional argument to the court before agreeing to submit the question of arbitrability to the arbitrator.  Not sure what wrinkles there may be under state law, but under federal law, if the DOE agreed to submit the question of arbitrability (i.e., whether the arbitrator had the power to decide the dispute) in the first instance, it couldn’t expect a court to review that question de novo.  I’d be surprised if it were any different under state law. 

  • Mr. Flerporillo

    Intended to post as a reply to cj’s post re “am I missing something”:

    I think we’re all missing a lot of information.  But based on just the information we have, if I were this judge, the first question I want the DOE to answer is why they didn’t make this argument to me back in May when I was suggesting that the parties take the dispute to arbitration.  If I don’t get a good answer to that question — and I can’t imagine what a good answer could be — then I’m rubber-stamping the award unless the DOE can convince me in 60 seconds that it’s completely obvious that the arbitrator blew the jurisdictional question.

  • Mr. Flerporillo

    I know grand language is fun, but as a reality-check, you probably wouldn’t have found Henry XIII, Hirohito, or Kim Jong-Il down at 60 Centre Street groveling before a judge whose courtroom looks like the break room at the post office.

    If Bloomberg thought his position was worth fighting for in the first place, he’s going to fight in every available forum until he’s lost and has no other forum. The UFT would do the same.  It’s litigation, and although it’s often unpleasant and always too expensive, there’s nothing improper about it. On the contrary, it’s the way we protect rights and ensure the fair application of the law.

  • Still a Newtown student

    Is this what the rest of the year is going to be like, where everyone is watching closely as to what happens next?

    This is how it’s been for me: I don’t know if any other Newtown student is following the story, but I have been especially paying attention to Gotham Schools for the past two weeks, and the situation only continues to escalate. I want to go on with my summer vacation without having to worry whether my school is going to be there next year!

    This is going to be a long summer.

  • Future ATR

    Don’t forget, if these 24 turnaround schools went through and they were considered new schools, their stats would not count for two years.  Plenty of time for Bloomberg’s graduation rates to look wonderful at the end of his term.  Nadelstern is correct, it’s about making Bloomberg look good and it’s not for the kids as Bloomberg says.  Why does anyone believe his lies?

  • Paladin55

    Perhaps you can say this if you are looking at this incident in isolation, but he has a rather substantial body of work to analyze. You see him as someone who will do everything he can to get something accomplished. I see him as someone unable to accept the fact that he cannot get everything he wants accomplished because he does not have absolute control- and I see this as something symptomatic of more serious problem in how sees his role as mayor.

    When you look at his reign as mayor, you can actually see similarities between his way of thinking and, sometimes acting, with those rulers we now know as  ”enlightened monarchs.”

    Getting the Council to throw out term limits to satisfy his whim, taking complete control of the education system, the disgraceful appointment of Kathy Black, and other non-educators as Chancellor, his reaction to the Council overruling his veto of the living wage act, his handling of the turnaround issue, his reaction to the arbitrator, Sodagate, and other actions and reactions show a man who is not at ease in a democratic, rule by law system. I’m sure others can come up with other instances where he has been heavy-handed, if you even want more evidence.

    I actually like the way he approaches many social issues. Enlightened monarchs did good things too, but like Bloomberg, they abused their power at some point, even if it was for what they thought was a good cause.

    Found this online- a comment about Bloomberg’s company from someone who worked there.  Substitute “teachers” for “developers” and “education” for “products” and it is an interesting read.:

    “Decisions about products are made without much input from the developers… (M)anagers and business people were in a world of their own, and developers are treated as contractors when it comes to their influence over products.”

    “Very poor testing and development environment. Time was never allotted for testing software, and the development environment was often broken or not a good proxy for the production system.”

    The writer’s solution:

    Advice to Senior ManagementYou hire a lot of very smart people. Try to let them use their brains. Maybe take a note from Google or Facebook on how to run an office full of developers.

  • http://www.facebook.com/profile.php?id=100002397245457 Mary Conway-Spiegel

    Yes, Newtown student this is what it’s going to be like.  Congratulations on following this story – you deserve a huge reward.  
    Keep looking into how education “works” in New York City.  Keep being curious.  Keep being exasperated…then go to the beach.

  • http://ednotesonline.blogspot.com/ Norm


    The city voluntarily entered into the arbitration process in May”
    Come on. Voluntarily? They will make the argument a shotgun was pointed at them. Or better, the devil made them do it.

  • Bellstar8

    Newtown Student—
    Your school will be there! Keep your head up! Have a great summer!

  • Anonymous

    In general, Mr. F., I appreciate your comments on this site.  I am pissed and angry about the way the teachers are being treated, but I need to hear an objective, legal perspective.  Thanks.

  • Lilone385

    As reported by others on this forum, there are principals who have not been allowed back into the building. The new “principals” are continuing to make their changes and are going forward as though the decision made through the arbitration never happened. Why is this mayor allowed to play by his own set of rules? Why does he feel he is above the law?! And why is he getting away with it?! It is absolutely deplorable that this mayor feels that he has absolute power and does not have to abide by the ruling. We all knew he would appeal, but I did not think he would go about it in this disgusting and humiliating manner. Not “allowing” principals into the building. Continuing all plans like the closings were not reversed. Why isn’t this in the news?! This is a violation of basic rights. Bloomberg needs to be exposed for what he truly is.

  • Invictus

     The City is attempting the squeeze as much damage as possible until they are stopped outright. 

    Nevertheless, asides from this phyrrhic victory, all schools will have gone through irreparable damage, which will be used by the DoE to hammer the nail at coffin of these historical schools.

    It is possible that the City and the DoE will be stuck with costly lawsuits even after the Supreme Leader leaves, this is the worst part of it all, as city citizens will take a hit….this sort of dirty tactics are typical of private enterprise, to gamble with someone else’s money and lives.

    I truly hope when all appeals have been exhausted that the City and the DoE will be hammered with  a  judgement that will cost their duplicity greatly.

  • Student Advocate

    Dear UFT,

    Pease put together a unified message for all your members.  Please get the ear of our media and inform the public of the facts concerning this arbitration decision.  The schools, parents and students need to be clear.  Press Conference?  Public Service announcement for Gotham Schools or some sort of UFT blog keeping us up to date?  Letter to the families of the students attending these 24 schools in need of extra support?  Is there anyone at the UFT officies who can type a letter or article explaining exactly where we stand and whether or not there is any merit to the City’s alleged loop hole claim?  Isn’t this the respectful, professional and ethical thing to do?

    Signed,

    Can’t believe we are still this confused and uncertain at this time and that the UFT officials not directly connected to the arbitration process have not been working tirelessly to combat the city’s claims and give UFT members and all the parents and students some peace of mind. 

  • someone who cares

    Ms. Radovich, the new principal at Flushing High School is keeping the name Rupert B. Thomas Academy.  Doesn’t this go against the arbitrator’s ruling?  Who cares if they already have letterheads with that name on it.  I wish we would get a straight answer for a change. 

  • Sarah

    This makes no sense! The name should not be kept. Summer school starts July 8 we will just have to see what it’s called then! I got my fingers crossed and I hope it stays FHS instead of RBTAFC :D

  • JusticeForAll

     

    What the mayor did to our students, teachers, and schools
    was unconscionable. The process by which the mayor chose to get rid of staff
    has been compared to that of Nazism, Stalinism, and Napoleonism. The
    psychological, emotional, and mental turmoil the staff and students of all these schools endured
    during this process was heart-breaking. Our school was a fantastic
    school with a terrific, upbeat, caring, smart, hardworking staff until this year, when we received a new principal to “clean out” the school (a pattern of his, I hear).
    Guests used to comment on how wonderful our school was–on how great the
    students and staff were. The behavior exhibited by some of these principals
    would never have been tolerated in teachers, so why the double-standard? Of
    course there were problems, but nothing compared to those of truly failing schools.
    The mayor claimed that this process would get rid of “ineffective”
    teachers. If that were the case, why were many of our best, well-loved, and
    highly qualified teachers let go? Why were some teachers who were the heart and soul of our
    school–who helped with extracurricular activities, tutored students every day,
    worked on Saturdays, Sundays, evenings (with no extra pay), listened, guided,
    advised, consoled, and cared, let go? Why were teachers who had never in their
    careers had a bad rating suddenly given unsatisfactory ratings for things as
    silly as not having an “Aim” on the board, and why were these
    “ineffective” teachers not offered help to “improve” as per
    the contract? Why did the “interview” process consist of the same
    five questions, without allowing the teachers to speak about their
    contributions, experience, and qualifications?  Isn’t the purpose of an
    interview to allow the interviewees to sell themselves and not to regurgitate
    rote answers to preselected questions? Why go through it at all when it was
    obvious that whoever the principal wanted to stay stayed? We had excellent
    teachers retire early because they didn’t want to end their careers being branded as “ineffective”. The
    students of one of these teachers complained that the new math teacher who replaced
    him “didn’t know how to teach” and they wanted their former teacher
    back.

    No, Mayor Bloomberg. Your reform is not about the students. If it were,
    you would not send principals to these schools whose sole purpose is to demoralize,
    humiliate, and fire teachers. You would send in leaders who encourage, support,
    and inspire teachers to do their best and who help the weaker teachers improve.
    But that’s not what it’s about to you, and now everyone knows it. Only 40+ of
    approximately 200 teachers at our school were asked to stay. Are you saying we
    had 160 ineffective teachers at our school? I think not. Your stats are flawed,
    the standardized tests are flawed, the teacher evaluations you wanted to
    implement were flawed, the four-year graduation rate plan is flawed, the Leadership
    Academy principals are flawed, and the DOE leadership is flawed. Honestly. It
    is the DOE that should be “turned-around”.

  • Sarah

    It’s called flushing high school during summer school. I thought the name changed July 1? And the old principal is still available!

  • Sarah

    Well said!

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