Sunday, March 2, 2008

What's all this about arbitration?

Everyone and his uncle knows that the grievance system we had a couple of years ago was dismantled by the present contract.

In its place, a denial at Step I means that the grievant and UFT rep get to face off at Step II against the Chancellor’s rep (who runs the hearing), the principal (most likely phoning in from a remote site), and reps from the district and Human Resources.

At this point the whole thing, which seems pretty much rigged against members in the first place, comes to a complete halt unless the UFT grievance team comes riding in like knights in shining armor to take the case forward to arbitration.


I’ve had an overwhelming urge in recent weeks to re-acquaint myself with Article 22.C of the contract, which constitutes the arbitration process being practiced these days.

The essential points are these:
— A denied Step II doesn't, as mentioned above, go automatically to arbitration;

— You can’t get to the arbitration stage without going through the other steps (obviously), unless it’s a class size or group size issue or for some reason the Chancellor’s office missed the deadline at Step II;

— The notice of arbitration filed by the UFT gives a brief statement of the issue and the provision in the Agreement that’s been violated;

— The panel of arbitrators includes 7 people already agreed upon by the UFT and the Board to serve for renewable one-year terms. There’s a process for not renewing the services of any of these arbitrators at year’s end, and if a replacment arbitrator isn't installed in time, no problem: the same “normal” number of dates have to be scheduled in any case (in another process);

— The parties stipulate the facts beforehand where possible;

— They agree to make expeditious decisions and will not normally file briefs or order transcripts;

— The American Arbitration Association’s voluntary arbitration rules relating to the hearings, fees, and expenses apply;

— The arbitrator can’t go against or modify anything in the contract, cannot make any decision “involving Board discretion” in the contract (unless he feels the Board disregarded something in it, discriminated against the individual, or acted capriciously), and can’t interfere with the Board’s by-laws, etc.;

— The decision the arbitrator is final and the parties must abide by it;

— The arbitrator can determine a remedy, including back pay, but not a monetary penalty;

— The Board agrees to apply the arbitrator’s rulings in all similar situations, and UFT agrees it will bring no new grievances or continue any old ones that are similar to those already resolved by arbitration.

At the same time all this is going on, Article 22.D says that the Board can continue acting against you until the final decision comes down. Moreover, the UFT can't pursue a grievance on anything outside the contract without your consent (there seems to be a typo in that clause: D.2.: “in behalf”), and you get to retain any rights granted by other protections, like Section 15 of the NYS Civil Rights Law and the State Ed Law.
(Actually, I’m not sure about this last item, because that Section 15 seems to contradict the paragraph in section C.c., which says the arbitrator’s decision is “final”:

§ 15. Right of appeal not to be denied. . . . a citizen shall not be deprived of the right to appeal to the legislature, or to any public officer, board, commission or other public body, for the redress of grievances, on account of employment in the civil service of the state or any of its civil divisions or cities.

But, heck, I’m not a lawyer.)

What really made me look into this whole issue of arbitration more deeply was the an article by Stephanie Mencimer in the March/April issue of Mother Jones called “Don’t Tell it to the Judge,” which gives some background into what she calls an “arbitration trend” in this country.

She says that after the Supreme Court ruled in 1984 that Congress had created a “national policy favoring arbitration,” there was a dramatic increase in mandatory binding arbitration. That’s not our problem here, since we're not dealing here with mandatory anything, but what she says about arbitrators is very disturbing:
Justice Hugo Black once observed [that] arbitrators can be “wholly unqualified” to oversee complicated cases. Indeed, private arbitrators aren’t required to follow the law or established precedent, or even issue written decisions. Many have legal backgrounds, but there is no standard dictating that they be lawyers or credentialed in any way — yet their decisions can’t be appealed.

In a series of decisions, Mencimer says, courts have ruled “that an arbitration decision can stand even if it’s legally wrong and causes ‘substantial injustice.’” Furthermore, “courts shouldn’t review arbitrators’ decisions even when they are ‘wacky,’” and people challenging arbitration awards in court “ought to be sanctioned.” WOW.

If there is a national trend toward arbitration, it doesn't seem to be a positive thing, and we need to be vigilant.


Perhaps UFT management is being deliberately obscure on our grievance/arbitration process, not to mention way short on documentation, so that they can continue to play games and make private deals with the other side. In any case, there’s a whole lot of stuff we’re not being told much about . . .

. . . Like if it’s true what I heard, that the UFT and the Board have to agree on winning roughly the same number of cases.

. . . Like the names of the arbitrators, and their backgrounds. In the past, we used to go up against people we knew: the superintendent and their creepy little hit-people that came into the building from time to time. Tell us some more about these people, on the UFT website if you'd like, and prove to us you’re taking this seriously.

. . . Like the "normal" number of cases that grievance teams in each borough are taking to arbitration, perhaps even broken down by category.

. . . Like if the parties are supposed to stipulate the facts beforehand “whenever possible,” what reasons might there be for not being able to do this.

. . . Like if the parties would “not normally file briefs or order transcripts,” when would doing such things be actually appropriate and called for.

. . . Like when Leo Casey a couple of years ago — having already admitted that the UFT only takes the strongest cases to arbitration because of scheduling restraints (probably to keep the stats higher as well) — defended the UFT’s record of successful results this way:
As a general rule, the UFT has a very strong win rate at arbitration, with victories in well over half of the cases we take. This is considered a very high union success rate within the industrial relations field. Most of the credit for that rate belongs to our UFT grievance department, but it also indicates that the DOE is pursuing cases which should have been settled without arbitration, because the position on their side simply lacked merit. (Oct. 12, 2005):
then it follows that if many of the Board’s cases “lacked merit” way back in 2005, what must it be like now in this current free-for-all, where principals and administrators are having a field day with immoral and improper attacks and are being shamelessly backed by chancellor’s lackeys. Let's hear whether with all the increasingly aggressive, malicious, union-bashing, and possibly discriminatory Board practices going on, the union has started to balk at the limit on the number of cases they can take to arbitration.

. . . And another thing for Casey. He said back on Oct. 4, 2005 that the UFT was attempting to streamline things: "by eliminating a redundant step in the grievance process, in which the superintendent invariably ruled against the grievant, we have made some progress in this area.” Well, I was told by someone in the union only recently that the chancellor’s reps at Step II are ruling against members practically all the time, and that grievants should actually expect denials at that level. So, I’d like an update on the “progress” Casey thought the union was making , with some figures please, because it seems to me we’re just being blown out of the water by a higher level of blowfish.

. . . And lastly, if the arbitrators’ rulings must, as it says in the contract, be carried forward and applied to similar cases now and future, I’d really, really like to see a list of these rulings on the UFT website, so we all can figure out the substance and extent of this new era of post-contractual law.

4 comments:

Anonymous said...

A very well thought out anaylysis of the grievance process. It's a stacked deck.

Chaz said...

Very good. However, you dare say that the great Leo Casey would actually lie about the grievance reduction at Step II? Leo never lies, just ask him! I could write a book on the half truths good old Leo has stated on behalf of the 2005 union contract and it's aftermath.

It doesn't surprise me that at Step II, Chancellor's representative, that thw teachers loses. The Chancellor is anti-teacher so why should his representive have a fair hearing?

Susan said...

Arbitration is a total joke. I was sorry I ever went through the process, which was totally rigged, complete with the district suborning perjury, falsifying documents, and bribing witnesses. Now I am without a career at all.

UnderAssault said...

I'm sorry to hear your bad experience with arbitration.
Have you been keeping up with the Pakter hearing at Ednotes? Here's the latest: http://ednotesonline.blogspot.com/2009/08/pakter-whacked-her.html