BOE Vs UFT 3020-A Arbitrator Lawsuit - All Papers Filed

FILED: NEW YORK COUNTY CLERK 09/26/2013
NYSCEF DOC. NO. 1
INDEX NO. 451734/2013 RECEIVED NYSCEF: 09/26/2013
::i:::_:"_yl:Y
-against-
SUPREME COURT OF THE STATE OF NEW YORK
.........._x
INDEX NO. DateFiled: September26,2013
SUMMONS
BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEV/ YORK,
Plaintift
LTNITED FEDERATION OF TEACHERS, Defendant
YOU ARE HEREBY SUMMONED to answer the complaint in this action and to serve a copy of your answer on the PlaintifPs attorney within 20 days after the service of this
summons, exclusive of the day of service (or within 30 days after the service is complete
if this
summons is not personally delivered to you within the State of New York); and in case of your
failure to appear or answer, judgment

demanded in the complaint.
will be taken
against you
by default for the relief
The basis for venue is the place of Defendant's business and the county in which
the action arose pursuant to CPLR 504(3), which is New York County.
Dated:
New York, New York September 26,2013
MICHAEL A. CARDOZO
Corporation Counsel of the City of New York Attorney for Plaintiff 100 Church Street, Room 2-143 New York, New York 10007-2601 (212) 3 72
By:
Assistant Counsel
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::it:::v_Yt:li
-against-
...........x
COMPLAINT
Index No.
Plaintift
LINITED FEDERATION OF TEACHERS,

Defendant.
Plaintiff, Board of Education of the City School District of the City of New York ("DOE"), by and through its attorney Michael A. Cardozo, Corporation Counsel of the City of
New York, as and for its complaint against Defendant United Federation of Teachers, alleges follows:
as
1.
This action seeks a determination that the United Federation of Teachers
("UFT") has violated a validly enforceable agreement between the DOE and the UFT which
increased the number of arbitrators (also referred to as "hearing offrcers") who sit on a rotational
panel. Arbitrators from this panel preside over disciplinary
hearings held as
a result of
disciplinary charges brought by DOE against nonsupervisory pedagogical personnel pursuant to

New York Education Law Section3020-a.
2.
Under New York Education Law Section3020, the DOE and the UF-T are
authorized to modify, by agreement, the disciplinary procedures set forth under Education Law Section 3020-a, including, but not limited to, the procedures by which disciplinary charges are
filed and adjudicated, as well as the procedures for disciplinary hearings and the selection of
arbitrators.
3.
The UFT has breached such a valid and enforceable agreement, entered
into between the parties, that acts, inter alia, to modify the arbitrator selection process set forth in Education Law Section 3020-a(3).
4. 5.
The UFT has continually failed to agree to a full panel of 39 arbitrators as
mandated by the agreement.
Where, as here, a
full panel has not been
agreed upon, an alternative
arbitrator selection process, utilizing a third-party, is available. However, the UFT has now
refused to participate even
agreement.
in this alternative arbitrator selection
process provided
for in
the
6.
The UFT's failure to agree violates the explicit terms of the parties'
agreement, and frustrates
the agreement's stated purpose the timely adjudication of
disciplinary charges to obviate the backlog of disciplinary cases, which unnecessarily impacts
schools, students, and, as most charged employees remain on payroll throughout the disciplinary
process, the DOE's measured fiscal resources.
7.
Moreover, as this agreement serves to modify the disciplinary procedures
under Education Law Section3020-a, the UFT's twofold refusal -- to either agree to a full panel
or to engage in the very process designed to resolve such disagreement -- thwarts the express
statutory imperative of that provision: the expeditious adjudication of accusations of misconduct
and incompetence against individuals charged with the education of children in New York City
public schools.
THE PARTIES
8.
Plaintiff DOE is organized under and exists pursuant to the New York
State Education Law, and maintains its principal place of business in New York County.
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9.
Defendant UFT
is an unincorporated labor
organization that
is
the
recognized bargaining agent
for all
nonsupervisory pedagogical personnel and classroom
paraprofessionals employed by the DOE,
THE APRIL LETTER AGREEMENT
10.
The DOE and the UFT are parties to a letter agreement, dated April
15,
2010 (the "April Letter Agreement"). A copy of the April Letter Agreement is annexed hereto as
Exhibit ("Ex.") "1."

1
l.
The April Letter Agreement sets forth, and otherwise memorializes,
various accords between the DOE and the UFT conceming the procedures for investigating
alleged acts of pedagogical personnel misconduct and adjudicating any resulting disciplinary
charges against personnel brought pursuant to Education Law $ 3020-a.
12.
In reaching the April Letter Agreement, the DOE and the UFT sought to
expedite the process by which disciplinary charges are adjudicated, thereby averting lengthy delays, reducing the large backlog
of disciplinary
cases, and ensuring compliance
with
the
procedures set
forth in the parties' collective bargaining agreement ("CBA") and
the
requirements mandated by Education Law Section 3020-a.
13.
Under Education Law Section 3020, the DOE and the UFT may modify
such
by agreement the procedures set forth in Education Law Section 3020-a and, "[w]here
procedures are so modified
. compliance with such modified procedures shall satisfy any

compliance
provision
of this chapter that requires
with section 13020-al of this
article."
Education Law $ 3020()(a).
14.
Indeed, and as authorized by Education Law Section 3020, Article 2l(G)

and provides
of the parties'CBA expressly pertains to "Education Law $ 3020-a Procedures,"
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that "[t]enured teachers facing disciplinary charges filed . . . will be subject to Section 3020-a of the Education Law as modified by paragraphs 1-10 below."
15.
Under Article 21(G) of the CBA, the DOE and UFT have established
rotational panel of arbitrators, (referred to in the April Letter Agreement as "hearing officers").
Arbitrators from this panel preside over pedagogical personnel disciplinary cases, conduct the evidentiary hearings held pursuant
to
Education Law
3020-a, and, when hearings have
concluded, determine whether charges were sustained and, as warranted, assess an appropriate
penalty to be imposed by the DOE.
16.
Under the April Letter Agreement, the DOE and the UFT agreed that the
number of arbitrators on the rotational panel would be increased as follows: Incompetence Cases shall be heard by a panel hearing officers.
of of
14
Misconduct Cases shall be heard by a panel hearing officers.
25
April Letter Agreement, Ex. "1," at 6.
17.
The April Letter Agreement further provides that
hearing officers, including the possibility of agreeing to increase or decrease the number of hearing officers on either the incompetence or misconduct panels on either a temporary or permanent basis, and (iii) to discuss the appropriateness of the number of probable cause arbitrators, including the possibility of agreeing to increase or decrease the number of probable cause arbitrators. If the DOE believes there is a need for more hearing officers to comply with the timelines set forth in this Agreement, it shall request that the
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Representatives of the UFT and DOE shall meet monthly, or less frequently if the UFT and DOE agree, for the first year of this Agreement and at least twice a year thereafter (i) to agree on the number of hearing offlrcers hearing expedited cases, (ii) to discuss the appropriateness of the number of
UFT agree to increase the number of
hearing officers and the UFT shall not unreasonably deny an increase,
April Letter Agreement, Ex. "1," at7., THE UFT'S BREACH OF THE APRIL LETTER AGREEMENT
18. 19.
At no time since the parties' entered into the April Letter Agreement
have
there been a full panel of 39 arbitrators, despite repeated insistence from the DOE.
In
201 1-2012, DOE and
UFT were able to seat 24t arbitrators. In 2012-
2013, DOE and UFT were able to seat 20 arbitrators, However, all of these arbitrators were not
seated at the same time, and some did not serve the
full school
year.
20.
Beginning in July 2013, given the failure to reach a full panel in the prior
years, a consequent preexisting backlog, and the anemic pace at which selections had proceeded, due to the UFT's intransigent delay, the DOE sought to expedite the selection process, with no
SUCCESS
21.
By letter, dated September 19,2013, Dennis M. Walcott, Chancellor of
DOE ("Chancellor Vy'alcott"), wrote to Michael Mulgrew, President of the UFT, with respect to
the number of arbitrators who
will hear disciplinary cases under Education Law $ 3020-a for the
2013-2014 school year. A copy of the September 19,2013,letter is annexed hereto as Exhibit
,r2.r,
22.
Chancellor Walcott advised that, under the April Letter Agreement, the
"parties agreed to create two panels of a total of 39 arbitrators to hear 3020-a cases (25 for
misconduct and 14 for incompetence)," and noted that "[t]o date, only 18 arbitrators have been
' The 201 l-2012 panel decreased to 18 arbitrators due to resignations,
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appointed to the 3020-a panels, far below what was agreed to by the parties." September 19, 2073,letter, E;x. "2," at
(emphasis supplied).
23.
Chancellor Walcott further advised that the delays caused by the UFT and [New York State United Teachers] for this school year, as well as in prior years, undermine the intent of the April 2010 Letter Agreement, and have caused a backlog to develop and continue to grow. The current backlog of hearings needing assignment to an arbitrator far exceeds the number of cases that could be heard in a school year by 18 arbitrators. The arbitrators assigned to hear misconduct cases already have several cases assigned to them. Additional cases are being prepared to be charged or have been charged and will need to be assigned to arbitrators, fuither increasing their caseloads. Likewise, the arbitrators handling incompetence cases aheady have cases assigned to them. Adding additional cases to the arbitrators' calendars directly impacts the ability to resolve cases in accordance with the timelines in the collective bargaining agreement, its amendments and the Education Law.
September 19, 2073, letter, F,x. "2," at
24.
The reduction and future prevention of this backlog, as well as compliance

express justifications
with statutorily mandated timeframes, were
for the DOE and the UFT to
increase the arbitrator panel from 20 arbitrators, fixed under Article
2l(G) of the parties' CBA,
to 39 arbitrators, provided under the April Letter Agreement.
25.
In his September 19,2013,letter, Chancellor Walcott noted that the UFT's
"continued failure" to agree to a full complement of arbitrators had delayed "timely adjudication
of charges," resulting in untenable salary and benefit costs to the DOE. See September 19, 2013,
letter, 8x, "2," at
7,
26.
Moreover, Chancellor V/alcott observed that the
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UFT's actions appear motivated by a desire to force the DOE to agree to a modification of the April Letter Agreement which would reduce the total number of arbitrators assigned to hear 3020-a cases to a number well below that in the April Letter Agreement. The reduction in the number of arbitrators sought by the UFT would result in a panel that is entirely inadequate to address the existing backlog of 3020-a cases and will ensure that there will be a backlog of 3020-a cases going forward.
September 19,2013,letter, F,x. "2," at 7-2.
27.
that
Chancellor V/alcott advised the UFT, in his September 19, 2013, letter,
hearings can
"it is critical that additional arbitrators be selected immediately in order that
commence and we can keep the backlog from growing." September 19,2013, letter,
Ex."2,"
at
2.
Further, Chancellor Walcott noted that, in an attempt to resolve the issue, the DOE and UFT
had discussed a possible decrease to the number of arbitrators, for the 2013-2014 school year,
with the DOE offering to seat 30 arbitrators, for the present school year only, Id.
28.
Under Article 2l(G)(2) of the CBA, which, by its terms, modifies the
disciplinary procedures set forth in Education Law Section3020-a, in the event that the DOE and
UFT cannot agree to a full complement of arbitrators on the arbitration panel, "additional
impartial arbitrators shall be selected by the parties in accordance with the American Arbitration
Association (AAA) procedures (strike and rank method) from list(s) provided by the AAA until
the desired number , . . is reached to establish such permanent panel,"
29.
Accordingly, in the closing paragraph of his September 19,2073, letter,
Chancellor Walcott sought the UFT's immediate confirmation that the DOE would agree to a
panel of 30 arbitrators, and that the selection of all remaining arbitrators would be completed by October
4,2013. If the UFT failed to agree, Chancellor Walcott advised, the DOE would
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pursue all legal remedies available to
it including,
but not limited to, invoking its right under the

collective bargaining agreement to use the arbitrator selection process provided by the American Arbitration Association (AAA) procedures.
September 19,2073,letter, F;x. "2," at 2 (footnote omitted),
30. By letter, dated September 20, 2013, Michael Mulgrew responded on

behalf of the UFT to Chancellor Walcott's September 19,2013,letter. A copy of the September
20,2013, letter is annexed hereto as Ex. "3."
31. In that letter, despite declaring the UFT's avowed commitment to the
terms of the April Letter Agreement, the UFT failed to mention, much less agree to, either the
DOE's proposed panel of 30 arbitrators, or an adherence to a October 4,2073, deadline for full panel arbitrator selection. The UFT's letter studiously ignored these subjects, and instead
focused on its stated preference for a mediation process, in lieu of disciplinary hearings, as well as the UFT's view
-- previously
expressed, as noted
in Chancellor Walcott's September
19,
2013,letter -- that the UFT believed the panel required fewer arbitrators. See September 20,
2013,letter, which is annexed hereto as Ex, "3."
32.
Accordingly, as the UFT's September 20,2073, letter made clear that the
parties cannot agree to a full complement of panel members, by letter, dated September 23,2013,
the DOE wrote to the American Arbitration Association ("AAA"), pursuant to CBA Article 2l(G)(2), to request its assistance in f,rlling the panel of arbitrators that preside over Education
Law $ 3020-a hearings. A copy of this letter, dated September 23, 2013, from Courtenaye
Jackson-Chase, DOE General Counsel, to Jeffrey T. Zaino, AAA, is annexed hereto asx. "4."2
The September 23'd letter, includes, as an exhibit, the portions of the CBA cited herein
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33.
On September 24,2013, the AAA advised the DOE and the UFT that it
would hold a conference call on September 26, 2013, and likely could begin the alternative
selection process on September 27,2013.
34.
By letter, dated September 24, 2013, the UFT advised the AAA --
and
DOE -- that "there is no need for AAA involvement in the selection process and that [DOE's]
request is in violation of the applicable collective bargaining agreements." UFT letter, dated
September 24,2073, from Adam S. Ross, UFT General Counsel, to Jeffrey
annexed hereto as Ex.
T. Zaino, AAA,
"5."
The UFT's September 24rh letter suggested that the parties had yet to reach
35.
the point at which agreement on arbitrators had failed and, incredibly, asserted that as the parties
had agreed to fourteen arbitrators for the 2013-2014 school year panel, and because lists
proposing twenty additional names of arbitrators had been exchanged, "there is no reason to believe that additional mutually agreeable arbitrators cannot be selected. . .
u5r"
."
UFT letter, Ex.
at2.
36.
Yet, even assuming an unlikely consensus on the twenty proposed names,
with only fourteen arbitrators agreed upon, rudimentary math shows that the number required for
a
full panel -- 39 -- will not be reached.
37. 38.
Moreover, the UFT's September 24th letter purposely ignores critical
details, thereby proffering a rosier scenario than reality presents.
Accordingly, by subsequent letter, dated September 25,2013, to the AAA,
the DOE responded to the UFT's misleading assertions, and clarified -- and contextualized -- the past and present status of arbitrator selection.
A copy of this letter, dated September 25,2013,
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from Courtenaye Jackson-Chase, DOE General Counsel, to Jeffrey T. Zaino, AAA, is annexed
hereto as Ex. "6."
39.
Among other things, the DOE informed AAA as follows:
The last time that the UFT and DOE were able to mutually agree and select a panel of arbitrators was during the 2010-2011 school year. Pursuant to the April 15, 2010 agreement, both the DOE and the UFT selected and empaneled the full complement of 39 arbitrators during that school year. We have, however, been unable to agree on the selection of 39 panel members in subsequent school years 20112012 and 2012-2013. The inability to jointly select a full panel has contributed to the current backlog of well over 400 cases, with employees waiting many months before their disciplinary cases can be heard, well over the 60 days mandated by the Education Law and the April 15, 2010 agreement.
September 25,2013, letter, Ex. "6."
40.
assertions to the
The DOE fuither corrected the notable misperception caused by the UFT's
AAA:
school year, the DOE and UFT invited 14 arbitrators to the panel, it is imperative to note that only 5 arbitrators accepted the invitation. This year, a total of 14 were invited and thus far only 7 have accepted. This month, the DOE and UFT proposed arbitrators, but none have been invited as the UFT has not agreed as to when they will be ready to move forward with the selection ptocess. At the current rate of proposal and selection we will be well within the next school year before a panel is seated. This is unacceptable, as, in addition to the large backlog of cases, the DOE already has more than 150 cases to move forward through the 3020-a process this year and it is only September.
V/hile
it is true that during the 2012-2013
September 25, 2013, letter, Ex. "6."
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41.
Thus, the DOE reiterated its request to the AAA for assistance, under its
procedures, in filling the full arbitrator panel
It is clear that the parties have not been able to reach agreement in seating the full complement of arbitrators for the 3020-a panel for the past two school years and there is no reason to expect that this year will be any different. V/e must act swiftly to seat a full panel to comply with the letter and spirit of the April l5th agreement, and we again request that the AAA, in accordance with the agreed-upon procedures for arbitrator selection for Education Law 3020-a hearings with the UFT, commence the strike and rank process until the 39 arbitrators are selected for the panel.
September 25, 2013, letter, Ex.
"6."
42. 43. 44.
On September 26,2013, the AAA advised DOE that, because the UFT did
not consent to utilizing the AAA process to seat a full panel, the AAA would not proceed.
The UFT's continual failure to agree to a full compliment of arbitrators
has resulted in a backlog of approximately 400 cases.
Pursuant to the CBA, and the April Letter Agreement, while awaiting their
disciplinary hearing and pending
the arbitrator's ultimate post-hearing determination,
nonsupervisory pedagogical personnel continue
to receive full
salary and benefits, with
exceptions only for certain serious misconduct and sexual offenses involving students or minors.
45.
Thus, by failing to agree to a full arbitrator panel, the UFT grossly delays
the adjudication of disciplinary cases, and causes an untenable backlog of charged personnel, awaiting hearings -- for months on end -- during which time they are entitled to full salary and
benefits,
46.
This harms the interests of schools, students, other teachers, and the DOE.
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47,
The DOE's invocation of the alternative selection process, utilizing the

ensure the prompt selection
AAA's strike-and-rank procedure, will
of a full
complement of
arbitrators for the panel, and, once established, will further ensure compliance with the mandates of Education Law Section 3020-a. AS AND FOR A FIRST CAUSE OF ACTION
48,
paragraphs numbered
Plaintiff repeats and realleges each and every allegation set forth in
"l" through"4T" as if fully set forth herein.

The UFT has breached the April Letter Agreement by continually refusing
49.
to agree to a full panel of arbitrators, thereby delaying timely adjudication of disciplinary charges against DOE employees and, resultantly, imposing additional salary and benefit costs on the DOE, a needless tax on its limited budgetary resources.
50.
Moreover, the April Letter Agreement and the provisions set forth in
Article 2l(G) of the CBA constitute express agreements between the DOE and the UFT to
modify the disciplinary procedures contained in Education Law Section 3020-a, as authorized by
Education Law Section 3020. Thus, the UFT's refusal to participate in the alternative selection process, outlined
in Article 2I(G)(2) of the CBA, and previously practiced by the parties,
constitutes not only
breach
of contract, but also a violation of
proceclural agreements
functionally equivalent, by virtue of Education Law Section 3020, to statutory mandates.
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WHEREFORE, Plaintiff DOE demands judgment:
a,
Adjudging, determining, and declaring that the UFT breached the April
Letter Agreement and CBA Article 2l(G)(2);
b.
Directing the UFT to participate in good faith, and pursuant to CBA
Article 2l(G)(2),
in
selecting additional impartial arbitrators in
accordance with the American Arbitration Association (AAA) procedures
(strike and rank method) from list(s) provided by the AAA until 39
arbitrators are selected to establish the parties' permanent panel.
c. Such other, further, and different relief as this Court may deem just and
proper, together with the costs, including attorneys' fees,
disbursements of this action. Dated:
and
MICHAEL A. CARDOZO Corporation Counsel of the City of New York Attorney for Plaintiff 100 Church Street, Room 2-143 New York, New York 10007-2601 (212) 356-2472
By:
Counsel
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NYSCEF DOC. NO. 2
MICHAEL A, CARDOZO Corporalion Counsel
Crv oF NEW Yonr LaW DnpnRTMENT

Tne
CHURCH STREET NEW YORK, NY IOOOT
IOO
MAX\ryELL D. LBIGHTON
phone: (212) 356-2472 fax: (212) 788-8877 email : mleighto@law.nyc, gov
September 26,2013
Supreme Court of the State of New York County of New York 60 Centre Street New York, New York 10007 Attn: County Clerk
Re
the Ci Federation of Teachers
To Whom It May Concern

Please accept this summons and complaint for filing and issue an index number without fee, and mark the same as acceptable for filing. This fee exemption is being claimed pursuant to CPLR $ 8019(d). Thank you for your cooperation.
Sincerel
Assistant Corporation Counsel

NYSCEF DOC. NO. 3

NYSCEF DOC. NO. 4
Department of Educatlon
Dennis M, Walcott, Chancellor
Office of the Ghancellor

62 Chambers Sfreet I New York I NY 10007
2125740200 lel I 2123746680 fax dmwalcotl(Dsohools.nyc,gov emdl
September 19,2013
Michael Mulgrew, President United Federation of Teachers 52 Broadway New York, New York 10004
Dear Mr. Mulgrow,
As you know, at the close of the last school year we again began discussing the number of arbitrators who will hear disciplinary cases under Education Law section 3020-a for the 20132014 school year. Pursuant to the collective barganing agreement and lEtter agreement dated April 15,2010 (the "April Letter Agreement"), the parties agreed to create two panels of a total of 39 arbiators to hear 3020-a cases (25 for misconduot and 14 for incompetence).
To date, only 18 arbitrators have been appointed to the 3020-a panels, far below what was agreed to by th parties. The delays caused by the UFT and NYSUT for this school yea, as well as in prior years, undermine the intent of the April 2010 Letter Agreement, and have caused a backlog to develop and continue to grow. The cunent backlog of hearings needing assignment to an arbitrator far exceeds the number of oases that could be heard in a school year by 18 arbitrators. The arbitrators assigned to hear misconduot oases already have several cases assigned to them. Additional cases are being prepared to be charged or have been charged and will need to be assigned to arbitrators, further increasing their caseloads. Likewise, the arbitrators handling incompetence cases already have cases assigned to them. Adding additional cases to the arbitrators' calendars direotly impacts the ability to resolve cases in accordance with
the timelines in the collective bargaining agreement, its amendments and the Education Law.
The continuing failure to have a full panel of arbitrators in place is having an unacceptable impact on our schools, This is unfair to our principals, to other teachers in our
''"scholsiand'most-impftantly;"to'our-'students;"-{here-is'a''backlog"'oteachers'who''have"been'- "" charged and, in the Department's opinion, should be terminated from employment with the Department, Although the UFT agreed to expedite the adjudication of such charges, its continuing failure to agree to a full panel of arbitrators not only delays timely adjudioation of oharges for these teachers but, also, results in an extended reassignment period during which the Depaftrnent is required to pay such teachers full pay and benefits; in short, creating long-term, costly, de facto indivdualized reassignment centers.
'
The UFT's aotions appear motivated by a desire to force the DOE to agree to a modification of the April Letter Agreement which would reduce the total number of arbitrators
assigned to hear 3020-a cases to a number well below that in the April Letter Agreement. The reduction in the number of arbitrators sought by the UFT would result in a panel that is entirely inadequate to address the existing baoklog of 3020-a oases and will ensure that there will be a backlog of 3020-a cases going forward,
In an attempt to resolve this issue, the parties discussed the possibility of decreasing the number of arbitrators to hear 3020-a cases for the ounent sohool year only. To this end, on Monday September 75,2013, the Department ofiered to seat 30 arbihators for the2O73-2014 sohool year only. At that time, the UFT, through NYSUT, asserted that only 24 arbitators were needed. You informed us that you would review our proposal and inform us whether you can agree to 30 arbitrators.
Even though the Department maintains that the backlog would not be eliminated if we reduce the number of arbitrators, it is critical that additional arbihators be selected immediately in order that hearings can commence and we can keep the backlog from growing, Thus, we seek your confirmation by the close of business tomorrow, September 20, 2073, that the UFT will agree to a panel of 30 arbiators, with selection to be completed in accordance with the terms of the contract by October 4,2073, Should the UFT fail to agree to this, the DOE will pursue all legal remedies available to it including, but not limited to, invoking its right under the collective bargaining agreement to use the arbitror selection process provided by the American Arbitration Association (AAA) proceduresr.
Sincerelv.
,_
^-
)-ur
Dennis M. Walcott Chancellor
Where the parties cannot agree to a full complement of panel members, additional impartial aritrators shall be selected by the partles in accordance with the American Aritration Association (MA) procedures (strike and rank method) from llst(s) provided by the ARn untll the desired number is reached to establish such perrnanent panel,

NYSCEF DOC. NO. 5
^a.
UFT
Unlted Federaton of Teachrs
AUnhtolF/N,,4
September 20,2013
Denris Walcott Chancellor City School District of the City of New York 52 Chambers Street New York, New York 10007
Dear Chancellor Walcott,
I write in response to yow letter dated September 19,2013 conceming the appointment of arbitrators for Education [w $ 3020-a hearings. The United Federation of Teachers ("UFT") stands by the commitments made in the April 2010 agreement with the Board of Education of the City School District of the City of Ncw Yorlc (the "DOE"). The Union has always wanted a swift, fair adjudication of $3020-a charges so that educators who should be in the classroom are returned to teaching and those who should not be with students are promptly removed from the profession. We have also wanted the process to be efcient for the taxpayers of the City of New York. Unfortunately, it seems the DOE is singularly focused on the number of arbitrators to the exclusion of all else, in an apparent effort to justifr the swelled number of lawyers on the central DOE budget, even going so far as to cancel a mediation prooess that has been very effective,
While the process of selecting arbitrators would be expedited if the DOE would propose more qualiflted candidates, just since August, the UFT has agreed to invite 14 arbitrators to the Panel, in addition to the approximately 16 we invited last year. We continue to work with your staff to find mutually agreeable arbitrators and even exchanged proposed lists as recently as September 6th. In addition, several arbitrators have lefr the panel in recent years because they were not promptly being paid by SED. Thanks in part to the UFT's advocaoy, the arbitrators are now being paid, so we expect to have an easier time going forward.
Most troubling is the DOE's decision to abandon a mediation process that has been exceptionally effective at producing voluntary pre-trial settlements, thereby eliminating the need for more expensive hearings, In the limited time we have had mediation, 39 out of 55 cases (71,%) were resolved without the need for ar arbitrator or an arbitration. If the DOE was truly interested in rcsolving cases efficiently, it would agree to our proposal to keep this process in place permanently. Indeed, we have repeatedly asked the
52 Broadway, NewYork, NY 10004 pi212,777.7500 www.uft,org
Offlcer: M16aal Mulgrw
Ps/darl, Emll Plstrmoaco Secretary, LeRoy garr.Asslsfanl Secrelary, Mel Aaronson Trcsurat, Mona Romln Asstslant Treasuel Vlco Presldents: Karn Altord, csrmen Alvarz, ctlin Forllno, Anne Goldman, Janella Hlnds, Sterllng Roberson
DOE to work with us to establish a meaningful pre-charge process for resolving cases, but you have refilsed to do so. We also believe that DOE attomeys continue to not fully utilize hearing days in violation of the 2010 agleement. Moreover, you have mischaracterized the conversations between the UFT and DOE as well as the 2010 agreement. The letter commits the Union and DOE to regular conversations about the "appropriateness of the number of farbitrators]" and during these conversations we have expressed our view that, particularly with greater effrciency at the DOE, there would be no need for the number of arbihators the DOE believes neoessary, Nevertheless, we remain committed to ensuring there is no backlog and that oases proceed along the timelines set forth in our agreements. lndeed, contrary to your assertions, the misconduct panel is proceeding to hear cases charged right before the summer break, The number of oases awaiting hearing on the competency panel is, in large part, still within the timelines provided by the agreement and attributable to the DOE's practice of charging large numbers of cases at the same time at the end of the
year.
In sum, the facts are very different than the claims made in yow letter. Instead of ultimatums and threats, it would be better for teachers, students, and taxpayers if we reestablished the mediation program and returned to the business of promptly selecting arbitrators,
2^u
Michael Mulgrew
President
Sincerely,
United Federation of Teachers

NYSCEF DOC. NO. 6
Department of Eduoatlon
Dennlc M, Walcolt, Chanaelloi
Courtenaye Jackeon-Chase General Counsel
September 23,2013
Jeffrey T. Zaino American Arbitration Association Vice Presidenl - Laor, Employment and Elections Division 120 Broadway, 21" Floor New York, New York 10271 Dear Mr. Zaino,
The New York Ci$ Department of Edubatlon requests the American Arbihation Association's assistance in fllllng our panel of arbitrators that preside over hearings pursuant to Education Law 3020-a. ln accordance with Article 21G2 of the collectlve bargainlng agreoment etween the New York Clty Department of Education ("DOE) and Unlted Federation of Teachers ("UFT") (see attached), "when tho parties cannot agree to a full complement of panel members, additional impartial arbitrators shall bs selected by the partles ln accordance with the American Arbitration Association (AAA)' strike and rank process until the requlslte number of arbitrators are ernpanelled. After d.iscussions that have laeted an extended period of tlme the parties have been unable to agree on a full conplement of arbitrators and require 20 more arbitratore at this timo to fill their Education Law 3020-a panel. For your reference
I have also attached the letter agreement between the parties dated April 15,
2010 (see pp. 6-7) wherein the parties agreed to increase the size of the 3020-a panel.
We kindly request a conference call as soon as possible to initiate the selection process,
Thank you for assistance in this matter.
Slncerely,
&r",/*'g/"' /,(4 " eh"ar

Gourtenaye Jackson-Chase
GeneralCounsel
Cc: Adam Ross, UFT David Brodsky, NYCDOE
Oflloe of the General Counsel
Telephono:
212-374-3440
52 Chambers Street o Room 320
New York, NY 10007
Fax 212-374-5596
$3020-a Procedures Tenured teaohers facing disoiplinary oharges filed, or in thc case of Seotion I "Time and Attendanoo", discline pursuant to that Section, wilf be subjeot to Section 3020-a of the Education Law as modifisd by paragraphs 1-10 below.
G. Educatlon Law
lime and Attendance the Board .seeks to discipline a tenured pedagpgue regarding absences *d/9i lateness but scsks a penalty shori of rmination, the following expedited procedure will
If
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that it intends to bring disciplinary action against the employeo -seotion. The Board will inolude in this notice the the employee pursuant to this other documentation it intends to introduce at the employL' attendanoe record and any section tho arbiffator may award any pona, this pursuant to hearing and a statoment that
apply: ''
i.
Board
will notify
or take other action, short of termination. V/ithin 15 calondar days following this notice, the employee must notiry the Board in writing of the nature of hiBVrer defess and submit any documentation s\hc intends to submil into evidenoe as woll as a medical rolease for any medical doouments related to
either party believos that it roquires additional doouments, it may request a telephonic oonference with the arbitrator, Tho oxpedited hearing will oocur within one month of the Board's notifcation to the hearing wll be informal and the normal rules of trial apply, The arbitr f the hearing. The
such defense
If
binding on all parties' The award may be hearing and any findings shall be binding on
abssnce and lateness The situation but in no sohedule, staggored on I dat per hearing arbttrator wilt hear 4 cases -The parties may expand the number of cases hoard will one case take more than % a day,
introduoed agred upon between th On-o arbitrtor, .tlie parties may expand I oases hereunder,
2. Rotational Panel As disoussed and. agrecd uPon, all
is if neoessary.
in a day if they dccm it Praotical.
to both sides, however, if the parties membe, additional irnpartial arbitrators s with the Amerioan Arbitration Association from lis(s) provided by the A\rav{ until the
Panel members shall serve for a maximum of a onc'year term. At the expiration panol, and if such term, tho parties must agree to havo arbitrators oontinue to serve on the prior not, replaoement membsrs will be elected by the method outlinsd above. Removal mutual to.thc ond of the one-year term must be for good and sufficient cause upon agreement of the parties, must agree to tho following to serve on the rotational
terms:
sucrl permaneffi panel,
implemontation of a permanont arbitrat
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CHANcBLLoR
IOOOT
IOEL I, KLEIN, Cfiancelbr

S2CHAMEERS STRBBT. NEW YOK. NY
April 15,2010
Michael Mulgrew, Presdent
United Federation of Teachers 52 Broadway, l4rh Floor New York, New York 10004
Dear Mr, Mulgrew:
This letter will oonfrm the mutual understandings and agreements between the Board of Education of the City School District of the City of New York ("DOE") and the United Federation of Teachers ("UFT'). Nothing in this Agreement shall constitute a waiver or modification of any provision of any collective bargaining agroement, letter (including but not lmited to the June 27,2008letter from the Chancllor to the President of the UFT) or other agreement between thc DOE and the UFT except as speoifically set forth herein, Nothing in this agreement shall be construod to oonvert non-mandatory subjeots of bargaining into mandatory subjects of bargaining. As used herein, the term "CBA" shall refer to the colleotive bargaining agreement covering teachers and corresponding provisions of othel UFT-DOE colleotive bargaining agreements.
The long delays that have arisen in the current process ofinvestigating alleged aots of misconduct and adjudioating charges pursuant to Education Law g 3020-a benofit neither the DOE nor the employees represented by the UFT, Tho DOE and the UFT are committed to pnsuring that the agreements reached here will be cartied out so that those delays will be ended and ths procoss outlined in the law, tho contracts between the parties, and this Agreernent will be
adhered to.
For purposes of this Agroement, all timelines shall be measured in oalendar days, but shallnot include the summer break, all reoess periods and holidays. Resstgnment
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'""' Mlsatilidtt Cases (l:e:,'any asu dfitd by theD t dal'xlsively orriinariiy with an employee's behavior, not his or her pedagogy): Ponding investigation of possible misconduct and completion of the $ 3020-a hearing, the DOE may reassign an employee only to (i) a DOE administrative offics to do work o'onsistent with law (an "Adminishative Office Assignmont") or (ii) an administrative assignment within his or her sohool with a program consisting of Professonal or Adminishative Activities (as listed in CBA Articles 7(,\)(6)(a), ((tXa)fGx4xg)fl), orl(-K)(j)(d))other than-items #t-(smallgroupinstructionf#2{one-toone tutoring), #3 (advise student aotivities such as clubs, teams or publioations) and #7 (conflict rosolution for students), whioh shall be saheduled consistent with CBA Article 7(B)(2)(c) regardless ofthe division in which the employee works ('Administrative School Assignment").
Where tho Chancellor or his designee determines that it is in the best interests of the school system that an employee accused of sexual misconduct as defined in CBA Article 21(G)(6) or sorious financial misoonduot involving more than $1,000 not be allowed to work in an Administrative Offrco Assignrnent or an Administrative School Assignment pending the outcome of the investigation, the DOE may suspend the employee with pay rather than reassign him/hor, The determination of the Chanoellor or his designee to suspend an employee with pay shall be in writing. Prior fo a suspension from all duties with pay, the Chancellor ot his designee shall consult with the UFT President or his designee. The DOE shall prefer ohmges pursuant io Education Law $ 3020-al within 60 days of an employee being reassigned or suspended, except in cases where the reassignment or suspension was oaused by (i) an allegation of sexual misoonduct as defined in CBA Article 2I(G)(6) that is being investigated by the Spocial Commissioner of Investigation for the New York City School Dstriot ("SCI"), (ii) an allegation of serious financial misconduot involving more than $1,000 that is being investigated by SCI, (iii) criminal charges pending against the employee, (iv) an allegation of serious assault that is being investigated by SCI, (v) an allegation of tampering with a witness or evidence, where the allegation of tampering is being investigated by SCI. In cases where the 60 day period does not apply, when SCI issues a report or, in the oase of oriminal oharges, the employee notifies the DOE of the disposition of the criminal case pursuant to Chanoellor's Regulation C-l05, the DOE shall have 15 days to bring $ 3020-a charges against the employee or return the employee to his or her prior assignment. Nothing heren shall waive any limitations period for the btinging of charges pursuant to Education Law $ 3020-a. The Chancellor or his designee and the President of the UFT or his designee shall meet monthly, or less frequently f the UFT and DOE agree, to review the status of these cases. At the end of the ftrst year of this Agreemont, and in subsequent yoars if requested by the UFT, the DOE and the UFT will meet to review the issue of investigations and reassignments extending beyond 60 days and, if there has been a significant increase in tho number of suoh investigations and roassignments, to negotiate ways to addrsss this issue. Except in those cases where the DOE is not required to prefer charges within 60 days, should the DOE not prefer $ 3020-a charges within 60 days, the employee shall be roturned to his/her prior assignment. If an employee is returned to his/hei prior assignment, adverse action shall not be taken against the employee solely because of the reassignment. If $ 3020-a oharges are preferred subsequent to the expiration of the 60 day period, the employee may then again be reassigned to an Administrative Offrco Assignment or an Administrative School Assignment or, where the Chancellor or his designee determines that it is in the best interests of the school system that an employee accused of sexual misconduct as defined in CBA Article 21(G)(6) or sorious finanoial misoonduct involving more than $1,000 not be allowed to work in an Administrative Office Assignment or an Administrative School Assignment pending the - *-tito-it of thd'invetigation; $uspnd'the emlyee with'py rather thn reassig'him/her pending determination of the $ 3020-a charges. The determination of the Chancellor or his designee to suspend an employee with pay shall be in witing, Prior to a suspension from all duties with pay, the Chancellor or his designee shall consult with the UFT President or his
' Probatlonarv emBloyeegwllleasslgned ln the same manner as tenured employees-under-thlggreement le, to an Adrnlnlstratlve Offlce Asslgnment, Admlnlstrative School Asslgnment, or suspenslon wlth pay (lf permltted by thls Agreement). This Agreement shall not be construed to create tenure or Educatlon Law $ 3020-a rlghts for an
emPtoYee,
'designee, An employee's assignment pending investigation and/or a hearing shall not be raised at the hearing or deemed relevant in any way to the determination of the charges, any penalty issued or the adjudioation ofany issue n the hearing.
Incompetence Cases (i.e., any case deemed by the DOE o deal exclusively or ptimarily with an omployee's pedagogy) - Pending the bringing of Eduoation Law $ 3020-a oharges for alleged incompetence and completion of the $ 3020-a hearing, tho DOE may reassign an employee only to an (i) Administrative Offioe Assignment or (ii) an Administrative Sohool Assignment, The DOE shall prefer oharges pursuant to Eduoation Law $ 3020-a within 10 days of an empleyee being reassigned. Should the DOE not prefer $ 3020-a charges within 10 days, the employee shall be tetumed to his/her prior assignmont. If an employeo is returned to his/her prior assignment, adverse action shall not be taken against the employee solely beoauso of ths roassignment. If $ 3020-a charges are prefened subsequent to the expiration of the 10 day period, the employee may then again be reassigned to an Administrativo Office Assignment or an Administrativo School Assignment ponding dotermination of the $ 3020-a chargos.
Tolling: If the DOE gives a roassigned employee 48 hours notice of an interview which may lead to disciplinary action and the reassignod omployee either fails to appear on the scheduled day or fails to notiff the DOE that s/he is invoking any right he/she may have to not answer questions, the DOE shall reschedule the interview within a reasonable period of time and the time betweon the originally scheduled interview and the lescheduled interview shall not count owards the applicable 60-day or lO-day lmts on the lengfh of time an employee may be 'Where principal sohedules an interview which may lead to a reassigned or suspended with pay. disciplinary action of an employee that has been given an Administrative School Assignment and 48 hours notice is not required by the CBA, Chanoellor's regulations, or law, the following shall apply; If the reassigned employec eithe fails to appear on the scheduled day or fails to notify tho principal that s/he is invoking any right he/she may have to not answor quostions, the principal shall roschedule the interview within a reasonable period of time and the time between the first sheduled interview and the rsscheduled interyiew shall not count towards the applicable 60-day or 10-day limits on the length of time an employee may be reassigned. Nothing herein shall consttute a waiver or alteration of any right the DOE may have to compel an employee to attend an interview whiohmay lead to disciplinary action or any right an employeo may have to not answsr questions.
Semlce of Charges
In order to mke the process as efficient as possible, service of notice of the nature of the charges --and,tho,aotual ohargas shll be oonsolidaed and sorved iogother.upon an omloyeo'along,with speoifioations and, in incompetence cases, a bill of particulars, Nothing n this Agreemont shall alter a Respondent's entitlement, if any, to a bill of particulars in misconduct cases.
.
Prc bable Cause Delermlnllons In addition to the enumerated acts set forth in CBA Article 2l(GX5), sgrious misconduct shall also inolude actions that would constitute a class A-I or A-II folony or any folony defined as a violent felony offense in NY Penal Law $ 70.02. An indictment on a class A-I or A-II felony, an indictrnent on any felony defned as a violent felony offense in NY Penal Law S 70.02, ot a felony indictmEnt on any other conduct that constitutes serious misconduot pursuant to CBA Artiole 21(GX5) shall create a rebuttable presumption of probable cause,
was based on an indiotment pursuant to CBA Articto 21(G)(5), the employee shall remain off payroll pending the disposition of the criminal case. The DOE shall have 15 days after the employeo notifies the DOE of the disposition of the criminal case pursuant to Chancollor's Regulation C-105 to bring Education Law $ 3}2}-aoharges based on the same conduct as \ilas at issue in the criminal case. If the DOE prefers $ 3020-a charges on the same conduct a$ was at issue in the oriminal case within tho 15 days, and the employee was convioted in the criminal case of any offense that constitutes sorious misconduct, helshe shall remain off payroll until a deoision in the $ 3020-a oase and such g 3020-tcase shall be oompleted within the timeframes for hearings set forth in this Agreement, If the DOE prefers $ 3020-a oharges on the same onduot as was at issue inthe criminal case within the 15 days, and the employeo was acquitted of all offenses that constitute serious misconduct, the DOE shall reassign the employee to an Administrative Office Assignment or an Administrative School Assignment, suspond the employee with pay (if permitted pursuant to this Agreement) or request a second probable cause hearing to continue the suspension without pay until the final outcome of the g 3020-a hearing and such $ 3020-a case shall be oompleted within the timeftames for hearngs set forth in this Agreement. Ifthe DOE does not bring Eduoation Law $ 3020-a chargos within thosd 15 days, the employee shall be restored to the payroll effective as of the date the disposition of the oriminal case and returned to his/her prior position.
If a finding of probable cause
If a finding of probable cause was based on criminal oharges pursuant to CBA Article 21(GX6),
the DOE shall have 15 days after the employee notifies the DOE of the disposition of the oriminal charge pursuant to Chanoellor's Regulation C-105 to bring Education Law $ 3020-a charges based on the same conduct as was at issue in the oriminal charge. If the DOE brings such a $ 3020-a charge, the employee shall remain off payroll until a decision in tho g 3020-a cass and such $ 3020-a oase shall bo comploted within the timeframes for hearings sot forth in this Agreement. If the DOE does not bring $ 3020-a charges based on the same conduct as was oharge within notiffing tho,DoE of the
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Nothing in this.Agreement shall alter the provisions of CBA Artiole 21(cX5) and (6) with respect to entitlement to back pey. The DOE agrees to meet on a bimonthly basis with the UFT to assess the status of investigations extending beyond 60 days where the employeo has been suspended without pay, Tlmcframetor Herings
Within 10 - 15 days of DOE's receipt of the request for a hearing from an employee charged under Education Law $ 3020-a, a pre-hearing conference shall be held. Both Education Law
$ 3020-a and the collective bargaining agreements require hearings, including closing statements, to bo completed within sixty (60) days of the pro-hearing oonfrenoe and a deoision to be rendered within thirfy (30) days of the final hearing date, The UFT and DOE agree this timeflame must be adhered to by all parties to the hearingS and strictly enforced by hearing offcers. Hearing officers shall establish atrial schedule at the pre-hearing oonferenoe to ensure that hearings are completed within the required statutory and oontraotual timeframes and onsure an equitable distribution of days between the DOE and the charged employee. Eduoation Law $ 3}2}-apermits "limited extensions" beyond the 60 days where it is determined that "extraordiny sircumstanoes" warrant, "Extraotdinary ciroumstances" shall bE construed nanowly by hoaring officers so that tho granting of "lirnited extensions" allowing hearings to last beyond sixty (60) days is the exception and not the rule. Pursuant to CBA Artiole 21, aheang offtcer may be removed prior to the end of his or her one-year term only for good and suffioient cause, whch may include failure to comply with this Agreement, upon mutual agreement of the
UFTandDOE,
If ths hearing officer dotermines that a necessy witness is a former student who is unavailable beause he/she is resding outside ofNew York City ora cuffent student who is unavailable beoause he/she has left New York City for an extended period of time, this shall constitute an
"exhaordinary oirumstanoe." In such a case, the hearing officer shall schedule the heing to begin or continue as soon as possible given the availability of the witness as demonstrated to the hoaring offrcer.
Arbitrators sorving on the oompetence panel must agree to provide seven (7) consecutive hearing datas as defned in CBA Article 2l(G)Q)@) per month for the months of September through Juns and two (2) hoaring dates for the months of July and August, Dlscovery nd Testlmony
In order to comply with timelines for hoarings, the UFT and DOE agree that hearings must be held in as efficient a mannor as possible. Disputes relatng to documsnt production, witness lists and other procedural issues often consume hearing time and should be dealt with to the maximum oxtent possible in the pre-hearing conferenqe, To that end, the UFT and DOE have already agreed in the June 27 ,2008 letter fi'om the Chancellor to President of the UFT to certain discovery prooedures.
The hearing process itself oan be conducted in a more effrcient manner that allows for issues to be fully and fairly litigated. To accomplish this, the parties to the hearings shall adhere to the
"
"' -fttlltrvlng girldl lnes : "
1.
2, 3.
It is the intent of the UFT and DOE that, to the exent praotioable, hearing days shall be fully utilized, that hearing days not end before 5pm and the partios to the hoaring have multle witnesses ready to testify to avoid the loss of part of the day, Where a hearing day is not fully used, the unused time will be counted towards the
allocated Attorneys shall not meot with others between direct and cross examination for longer han20 minutes, except in unusual circumstances,
4, 5. 6,
Hoaring Officers shall ensure that qoss-oxamination is not used by either party as a dilatory taotio in order to reduce one of the parties' allotted time to present its case. Bvidence shall be limited to relevant matters. Rebuttal shall be used only to deny some affirmative fact that the opposing party has tried to provo, Dwing rebuttal, a party to tho hearingmsy not offer proof to corroborate ovidenoe that has alroady beon presented by that party or prooftending merely to support that party's caso aftor the opposing party has rested,
at the pre-hearing confetence, either party may introduoe (i) relevant background evidenco about a witness by affidavit from the witness; (ii) an affidavit from a doctor's offrce attesting to an employee's visit or non-visit on a particular date; (iii) an affdavit attesting to tho date of an employee's anest, the charge (if any) against the anested employee, and tho disposition of that charge; Such a witnsss may be cross,oxamined regarding any matter
If relevant and requested
discussed in an affidavit,
lf relevant, a (i) business record, (ii) attendance list from a facu meeting, orientation and/or training session, or () any human resorrce document submitted by a respondent (e,g, absence or sick note) may be admitted with an affrdavit from a custodian of tho record, without tho need for live testimony from a wiress to authenticate ths document,
A paty to the hearing or the hearing offcer may request an unedited copy of the relevant transoript if a certified transoript is not available when needed. The unavailability of a certified transcrt shall not exouse adherence to the time limitations for completion of a hearing and
issuance of a dooision.
Non-Termnation Cases
The oxpedited hearing process as described in CBA Article 21(GX3) shall be utilized as set forth therein, with the following modification: If the DOE deoides not to seek a penalty of more than a suspension of4 weeks or an equivalent finc, the case shall be heard under the expedited rocedures provided in CBA Article 2l(GX3), without tho need for the employee to accept an offer of expedited arbitration.
A separato traok of "non-termination" oases will be estblished with a separate panel of additional hearing officers that exclusively hears expedited cases.
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The number of heing offcers shall b as follows: Incompetence Cases shall be heard by a panel of 14 hearing officors.
Misconduct Cases shall be heard by a panel of 25 hearing officers, Expedited Casos shall be heard by a panol of hearing officers, the size of which set by the UFT and DOE as described below,
will
be
Representatives of the UFT and DOE shall meet monthl or less frequently if the UFT and DOE agtee, for the first year of this Agreement and at least twice a year thereafter (i) to agreo on the number of hearing officers hearing expedited cases, (it) to disouss the appropriateness of the number of hearing offcerS, including the possibility of agreeing to increase or decrease the number of hearing officers on either the incompetence or misconduot panels on either a temporary or permanont basis, and (iii) to disouss the appropriateness of the number of probable cause arbitrators, including the possibility of agreeing to increase or deorease the number of probable oause arbitators. If the DOE believes thore i's a need for more hearing officers to oomply with the timelines set forth in this Agreenient, it shall request that the UFT agree to incroase the numbor of hearing officers and the UFT shall not urueasonably deny an inorease.
Dectslotts Bpth Bducation Law $ 3020-a and the collective balgaining agreements require decisions within 30 days of the oornpletion of the hearing.
Meellng wlth the Pnel of Herlng Olficers

The Chancellor and tho President of the UFT will personally, jointly meet with the panel of hearing offltcors annually to impress upon the hearing offlrcers that both parties to this Agreement are serious about meeting the timelines in the law, the collective bargaining agreements, and this Agreernent. Tho Charcellor and the Presdent will urge the hearing offrcers to striotly control the hearings and require all parties to tho hearing to conform to the timelinos provided horen. They will assure the hearing offcers that no hearing officer will be romoved by eithor party to this Agreement for enforcing these rulos.
Medltlon otEtlucatlon Law $ 3020-a chges

This seotion, "Mediation of Eduoation Law $ 3020-a oh&rges," shall apply to all employees with pending Education Law $ 3D2}-acharges on or before September 1, 2010 or being investigated on or beforo Soptember 1,2010 and the investigation results in $ 3020-a oharges. The parties to tho $ 3020-ahearings shall begin mediating suoh cases upon the signing of this Agroement.
The UFT and DOE shall agree on hearing offioers on the rotational panel that shall ssrve as mediators one day per month (in addition to their required hearing days that mont. The UFT
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DgEtryI1t:.9io.iytv,ryt9crl9diato1 nof ounently
Ttr,ln l of|egi1e,olfi:o:,
Each caso subjoot to mediation shall be assignod, on a rotational basis, to a mediator, other than the hearing offrcer assigned to decide the case. The employoe (and the employee's ropresentative, if any) and a representative of the DOE with authority to negotiate settloment agreements (subject to final supervisory approval) shall meet with the-mediatorfho mediator shall-work informal to-assist-the charged-employee DOE in reaching, if possible, a volunary, negotiated resolution of the Education Law $ 3020-a charges, The mediator shall not deoide the merits of the Education Law g 3020-a oharges or
impose a deoision. Insead, the mediator shall help the charged employee and the DOE to, possble, agree on a mutua acceptablo resolution,
if
No mediator shall be compelled to or voluntarily disclose (including in any subsequent procdedings under 93020-a of the Eduoation Law) any informaton learned during the mediation.
Backlog Effective the first day of the 2010-2011 sohool year, all employees who, prior to August 3 1, 2010, have been (i) removed from their positions and assigned to a tomporary roassignrnent center or (ii) charged pursuantto Educaion Law $ 3020-a shall be reassigned to an Administrative Office Assignment or an Adminisftativc Sohool Assignment or suspended with pay (if permitted by this Agreemont).
For all employees oharged prior to August 3t,2070, the requirement that the pre-heing conference be scheduled within 10-15 days of tho charge shall not apply, but the $ 3020-a hearing and deoision shall be compleed by Decernber 31, 2010.
For all employees who were assigned to a TRC prior to Agust 31, 2010 and were not charged prior to August 31, 2010, the 10 or 60 day period to charge an employee or rctum himlher to his/her prior assignment, shall run from Soptembor l, 2010. Bffective September l,20l0,the parties will implement the new timelines set forth in this Agreement, which shall apply to all cases charged after September 1, 2010,
Sincerely
Joel I. Klein
Chancellor New York
of Education
and Aooopted By:
Michael Mulgrew
PrBsident United Federation of Teaohers

NYSCEF DOC. NO. 7
NUe UFT
Unl6d Federation ol Teachrs
By E-Mal and Overnight Mail Adam S. Ross Direct Dial: 212-7 01 -9 420 ARoss@uft.org
September 24,2013
Jeffrey T. Zaino Amerioan Arbitraton Association Vice President - Labor, Employment and Elections Division 120 Broadway, 21't Floor
New Yorlc, New York 10271,

Dear Mr, Zaino,
At this time, the United Federation of Teachers (UFT) respectfully zubmits that there is no need for AAA involvement in the selection process and that Ms. Jackson-Chase's request is in
violation of the applicable collective bargaining agreements.
write in response to DOB General Counsel Courtenaye Jackson-Chase's letter to you dated September 23,2013 requesting the assistance of the American Arbitration Association (AAA) in selecting hearing officers for the rotational panel hearing Eduoation Law $3020-a cases (Panel),
Ms. Jackson-Chase's letter cites Article 2l(G)(2) of the collective bargaining agreement between the Board of Education of the City School District of the City of New York (dlbla "the Department of Eduoation" or "DOE") and the IIFT covering teachers. That provision (and conesponding provisions in other UFT-DOE collective bargaining agreements covering
pedagogues) states:
[P]anel members must be agreeable to both sides, howevet, if the parties cannot agree to a full complement of 20 panel members, additional impartial arbiations shall be selected by the parties in accordance with the American Arbitration Association (AAA) procedures (strike and rank method) from list(s) provided by the AAA until the desired number (20) is reached.... UFT-DOE CBA covering Teachers, Article 21(c)(2)(emphasis added).r
tNotably,
to the extent the DOE believes the provisions of Afiicle 21(G)(2) authorize the AAA to be involved in the selection of any additional hearing officers provided for in the letter agreement April 15, 2010, the UFT need not address that issuo at this time, for the reasons stated below.
52 Broadway, NewYork, NY 10004 p:212.777.7500 www,uft,org

Ofllcero: Michael Mulgrew Prssidenl, Emll Pltromonaco sacrclaty, LeRoy Ban Ass/slant Sewelary,Ml Aronson lfeoauel Mona Romin .qssislanl Trcasurt Vl Presldents: Karon Alford, Carmen Alvarz, Catallna Forllno, Anne Ooldman, Janella Hlnds, Slerllng Roerson
Page2
The UFT's attorneys work with the UFT's Grievance Department and the Offrce of the General
Counsel of the New York State United Teachers OIYSUT) to propose highly qualified arbihators to the DOE that we believe will be "agreeable to both sides". Likewse, the DOE proposes arbitrators to the UFT that the UFT evaluates in conjunction with NYSUT. This process has filled, and continues to fill, vacancies on the Panel,
At this time, the partieq have not reached the point where we cannot agree on potential Panel members. Just since August, the UFT and DOE have agreed to invite 14 arbitrators to the Panel, in addition to the approximately 16 we invited last year. As recently as September 6th the parties exchanged proposed lists of arbitrators consisting of twenty names of arbitrators and there is no reason to believe that additional mutually agreeable arbitrators cannot be selected from those, and/or subsequent, lists.
Accordingly, on behalf of the UFT and our colleagues in NYSUT, I respectfully request that the AAA refrain from becoming involved in the contractual selecton process unless and until such time as it becomes appropriate in accordanae with the terms of the applicable collective bargaining agreements.
Adam S. Ross
General Counsel
United Federation of Teachers
a:
Courtenaye Jackson-Chase, Esq,, NYCDOE David Brodsky, Esq., NYCDOE Carol Gerstl, Esq., UFT Claude Hersh, Esq., NYSUT Ellen Gallin-Procida, Director of Grievance Department, UFT

NYSCEF DOC. NO. 8
Departmsnt of Educatlon
Donrils M, Walcott, Chancsllor
Courtonayo Jackson.Ghase General counsel
September 25,2013
Jeffrey T. Zaino Arnarican Arbitration Associatlo n Vice President - Labor, Employmont and Elsctions Division 120 Broadway, 21st Floor New York, New York 10271
Dear Mr, Zaino, 2013, which asserts that the DOE and the UFT and NYSUT have een successful in prior etforts to select arbitrators fot the panels seated to hear disciplinary cases pursuant to Education Law 3020-a during the
I write in response to the letter from UFT General Counsel Adam Ross dated September 24,
2011-2012 and 2012-2013 school years and that the American Arbitration Association's involvement is
not necessary at this time, The last time that the UFT and DOE were able to mutually agree and select a panel of arbitrators was during the 2010-2011 school year. Pursuant to the April 15, 2010 agroement, both the DOE and the UFT seleoted and empaneled the full complement of 39 arbitrators during that
school year, We have, however, een unable to agree on the selection of 39 panel members in ' subsequent school years 201'l-2012 and 2012-2013. The inability to jointly select a full panel has
contributed to the current backlog of well over 400 cases, with ernployees waiting many months before their disciplinary cases can be heard, well over the 60 days mandated by the Educatlon Law and the April 15, 2010 agreement.
Whilo it ls true that during lhe 2012-2013 school year, the DOE and UFT invited 14 aritrators to the panel, it is imperative to note that only 5 arbitrators accepted the invitation. This year,a totalof 14 were invited and thus far only 7 have accepted. This month, the DOE and UFT proposed arbitrators, but none have been lnvited as the UFT has not agreed as to when they will be ready to move forward wlth the selection process, At the current rat of proposal and selection we will be wellwithin the next school year before a panel is seated, This is unacceptable, as, in addition to the large backlog of cases, the DOE already has more than 150 cases to move forward through the 3020-a process this year and it is
only September.
It is clear that the parlies have not been able to reach agreement in seatlng the full cornplement of aritrators for the 3020-a panel for the past two school years and there is no leason to expect that this year will be any different, We must act swiftly to seat a fullpanel to comply with the lette and spl!!of lhe
procedures for arbltrator selection for Educ,ation Law 3020-a hearings with the UFT, commence the strike and rank process untll the 39 arbitrators are slected for the panel,
Courtenaye J General
Gc: Adam Ross, UFT
hase
David Brodsky, NYCDOE

ffice of tho Genoral Counsel o 2 Chambors Street
Telephone:
212-374-3/,40
Room 320 New York, NY 10007 Faxi212-374-559

NYSCEF DOC. NO. 9
:3]:::T'_Y:?.T
...........x
AFF'IDAVIT OF SERVICE
Index No.: 45173412013
Board of Education of the City School District of the City of New York, P I aintiff-Petiti oner, -againstUnited Federation of Teachers, Defendant-Respondent.
STATE OF NEW
YORK YORK
)
:
SS,:
coLrNTY OF NEW
Jason Dyer, being duly sworn deposes and says that:
l. 2.
The deponent is not a party to the action and is l8 years of age or older.
On September 27tn, 2013 the deponent served the annexed Summons &
Adam S. Ross, United Federation of Teachers, Attorney for the Defendant 52 Broadway, New York, NY 10004
Complaint upon the following person or persons:
The number of copies served on each of said persons was The method of service on each of said persons was:
1.
Pursuant to CPLR 2103(bX3), where the person served is an attorney, where a person is in charge of the office, by leaving the
s) with such
Jason Dyer
Sworn to before me this
27rh day of September,2073. t
'-
At IAS Part _ of the Supreme Court of the State of New York, held in and for New York County at the Courthouse located at 60 Centre Street, in the Borough of Manhattan, day City and State of New York on the _ 2013 of
PRESENT:
HON
Justice of the Supreme Court
SUPREME COURT OF THE STATE OF NEW YORK COLINTY OF NEW YOR
BOARD OF EDUCATION OF TI]E CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK,
INDEX NO. 451734t2013

Date Filed
plaintiff,
-against-
ORDER TO SHOW CAUSE
I-INITED FEDERATION OF TEACHERS,

Defendant.
Upon the annexed affirmation of MAXWELL D. LEIGHTON, dated September
30, 2013,
in support of plaintiffs
motion for a preliminary injunction; the afhrmation of
Naeemah Lamont, dated September 27,2013, in support of
plaintiffs motion for a preliminary

s
injunction; the affirmation of Laura Brantley, dated September 27,2013, in support of plaintiff
motion for a preliminary injunction; the Summons and Complaint, and the exhibits annexed
thereto; it is hereby
ORDERED, that defendant shall show cause before this Court, at an LA.S. Part
thereof, located in Room
_,
at the New York County Courthouse, 60 Centre Street,

duy of October,2013,
New York, New York, on the _
at
o'clock in the fore/aftemoon
of that day, or as soon thereafter as counsel may be heard, why an order should not be made and
entered herein:
A. Enjoining
the defendant from refusing to participate in, or otherwise delaying,
the arbitrator selection process, and directing defendant to participate in good
faith, and pursuant to Article 2l(GX2) of the parties' collective bargaining

agreement, in selecting additional impartial arbitrators in accordance with the
American Arbitration Association (AAA) procedures (strike and rank

method) from list(s) provided by the AAA until 39 arbitrators are selected to
establish the parties' permanent panel; and
B,
and
Granting such other and further relief which the Court deems just and proper;
IT IS FURTHER
ORDERED, that sufficient reason appearing therefore, let service of a copy of
this order to show cause, together with a copy of the papers on which it is based, on defendant, or any of its officers, or attorneys for defendant by personal service as provided in the New York
Civil Practice Law and Rules on or before the

good and sufhcient service on defendant; and it is further
day
of
October, 2013, be deemed
ORDERED, that papers in response to the relief requested herein, if any, shall
be
served by electronic mail upon the Corporation Counsel of the City of New York (attention:
Maxwell Leighton [mleighto@law.nyc.gov]), and all other parties or their attorneys to this
action, on or before October
_,
2013, and that reply papers,
if
any, shall be served upon
parties who have appeared in this action on or before October
_,2013.
ENTER:
J.S,C.

NYSCEF DOC. NO. 11
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YOR
BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK, Plaintiff,
-against-
Index No, 451734113
UNITED FEDERATION OF TEACHERS,

Defendant.
AFFIRMATION OF MAXWELL D. LEIGHTON IN SUPPORT OF PLAINTIFF'S APPLICATION FOR A PRELIMINARY INJUNCTION
MAXWELL D. LEIGHTON, an attorney duly admitted to practice before
the
courts of the State of New York, hereby aff,rrms, under penalty of perjury and pursuant to Rule
2106 of New York Civil Practice Law and Rules ("CPLR"), that the following is true and
correct:
1.
am an Assistant Corporation Counsel in the offlrce of Michael A.
Cardozo, Corporation Counsel
of the City of New York, attorney for plaintiff Board of
Education of the City School District of the City of New York ("DOE") in the above-captioned proceeding, This affirmation is based on the books and records of the DOE and on conversations
with employees of BOE,
2.
submit this affirmation
in
support
of plaintifls application for
preliminary injunction, seeking an order from the Court that directs the defendant United
Federation of Teachers ("UFT") to participate in good faith, and pursuant to Article 21(G)(2) of
the parties' collective bargaining agreement,
in selecting additional
impartial arbitrators in
accordance with the American Arbitration Association

are selected to establish the parties' permanent panel.
("AAA") procedures until 39 arbitrators
A.
Background
3.
The DOE and the UFT are parties to a letter agreement, dated April
15,
2010 (the "April Letter Agreement"). A copy of the April Letter Agreement is annexed to the Complaint as Exhibit ("Ex.") "1."
4.
The April Letter Agreement sets forth, and otherwise memorializes,
various accords between the DOE and the UFT concerning the procedures for investigating
alleged acts of pedagogical personnel misconduct and adjudicating any resulting disciplinary
charges against personnel brought pursuant to Education Law $ 3020-a.
5.
In reaching the April Letter Agreement, the DOE and the UFT sought to
expedite the process by which disciplinary charges are adjudicated, thereby averting lengthy delays, reducing the large backlog
of disciplinary
cases, and ensuring compliance
with
the the
procedures set
forth in the parties' collective bargaining agreement ("CBA") and
requirements mandated by Education Law Section 3020-a.
6.
Under Education Law Section3020, the DOE and the UFT may modify
such
by agreement the procedures set forth in Education Law Section 3020-a and, "[w]here
procedures are so modiflred
. compliance with such modifred procedures shall satisfy any
provision
of this
chapter that requires compliance
with section 13020-a] of this
article."
Education Law $ 3020($(a).
7.
Indeed, and as authorized by Education Law Section 3020, Article 21(G)
of the parties' CBA expressly pertains to "Education Law $ 3020-a Procedures," and provides
that "[t]enured teachers facing disciplinary charges filed . . . will be subject to Section 3020-a of
the Education Law as modif,red by paragraphs 1-10 below,"
8,
Under Article 2l(G) of the CBA, the DOE and UFT have established
rotational panel of arbitrators, (referred to in the April Letter Agreement as "hearing officers").
to Education Law $ 3020-a, and, when
hearings have
9.
Under the April Letter Agreement, the DOE and the UFT agreed that the
number of arbitrators on the rotational panel would be increased as follows Incompetence Cases shall be heard by a panel of 14 hearing officers,
Misconduct Cases shall be heard by a panel hearing officers.
of
25
April Letter Agreement, Ex. "1," at6
10.
The April Letter Agreement further provides that
hearing officers, including the possibility of agreeing to increase or decrease the number of hearing oftcers on either the incompetence or misconduct panels on either a temporary or permanent basis, and (iii) to discuss the appropriateness of the number of probable cause arbitrators, including the possibility of agreeing to increase or decrease the number of probable cause arbitrators. If the DOE believes there is a need for more hearing officers to comply with the timelines set forth in this Agreement, it shall request that the UFT agree to increase the number of hearing
officers and the UFT shall not unreasonably deny an
lncrease.
Representatives of the UFT and DOE shall meet monthly, or less frequently if the UFT and DOE agree, for the first year of this Agreement and at least twice a year thereafter (i) to agree on the number of hearing offtcers hearing expedited cases, (ii) to discuss the appropriateness of the number of
April Letter Agreement, Ex, "7," at'/.
11. 12.
At no time since the 2010-2011 school year
has there been a
full panel of
39 arbitrators, despite repeated insistence from the DOE,
The DOE has repeatedly sought the UFT's compliance with the April
Letter Agreement, most recently by letter, dated September 79,2013, from Dennis M. Walcott, Chancellor of DOE ("Chancellor Walcott"), to Michael Mulgrew, President of the
September 19,2013, letter, which is annexed to the Complaint as Ex.
UFT.
See
"8." l8
arbitrators
13.
the
Chancellor Walcott advised, inter alia, that "[t]o date, only
have been appointed to the 3020-a panels, far below what was agreed to by the parties[,]" and
further that
"delays caused by the UFT and [New York State United Teachers] for this
school year, as well as in prior years, undermine the intent of the April 2010 Letter Agreement, and have caused a backlog to develop and continue to
grow," September 19,2073,letter, Ex.
"2r" at 1'
14.
The reduction and future prevention of this backlog, as well as compliance
with statutorily mandated timeframes, were express justifications for the DOE, and the UFT to
increase the arbitrator panel from 20 arbitrators, fixed under Article
2l(G) of the parties'CBA,
to 39 arbitrators, provided under the April Letter Agreement.
15,
In his September 19,2013,letter, Chancellor Walcott also noted that the
UFT's "continued failure" to agree to a full complement of arbitrators had delayed "timely
adjudication
of
charges," resulting
in
L
untenable salary and benefit costs
to the DOE.
See
September 19,2013, letter,Ex."2," af
16. In its letter response,
dated September 20, 2073, the UFT evinced no
intent to comply with the terms of the April Letter Agreement, See September 20,2073,Ietter, from Michael Mulgrew to Chancellor Walcott, which is annexed to the Complaint as Ex. "3."
17.
Under Article 21(GX2)
of the CBA, which, by its
terms, expressly
modifies the disciplinary procedures set forth in Education Law Section3020-a, in the event that
the DOE and UFT cannot agree to a full complement of arbitrators on the arbitration panel, "additional impartial arbitrators shall be selected by the parties in accordance with the American Arbitration Association (AAA) procedures (strike and rank method) from list(s) provided by the
AAA until the desired number . . . is reached to establish
such permanent panel."
18,
As the parties plainly cannot agree to a full complement of arbitrators for
the rotational panel, the DOE requested, by letter, dated September 23,2013, that the AAA assist the parties in filling the panel of arbitrators that preside over Education Law $ 3020-a hearings.
See September 23, 2073, letter, from Courtenaye Jackson-Chase, DOE General Counsel, to Jeffrey T. Zaino, AAA, which is annexed to the Complaint as Ex, "4."
19.
On September 24,2013, the UFT advised the AAA and the DOE that it
believed AAA involvement to be premature and, further suggested, in any event, that Article
2l(G)(2) of the CBA, which stipulates that involvement, does not apply to the April Letter
Agreement. See letter, dated September 24,2013, lrom Adam S. Ross, UFT General Counsel, to
Jeffrey T, Zaino, AAA, which is annexed to the Complaint as Ex. "5."
20,
By subsequent letter, dated September 25,2013, to the AAA, the DOE
responded to the UFT's misleading assertions, and clarified -- and contextualized -- the past and
present status of arbitrator selection,
A copy of this letter, dated September 25,2013, from
Courtenaye Jackson-Chase, DOE General Counsel, to Jeffrey'1. Zaino, AAA, is annexed to the
Complaint as Ex. "6."
21.
Among other things, the DOE informed AAA as follows:
The last time that the UFT and DOE were able to mutually agree and select a panel of arbitrators was
during the 2010-2011 school year. Pursuant to the
April 15, 2010 agreement, both the DOE and the UFT selected and empaneled the full complement
of 39 arbitrators during that school year. We have, however, been unable to agree on the selection of 39 panel members in subsequent school years 20112012 and 2012-2013. The inability to jointly select a full panel has contributed to the current backlog of well over 400 cases, with employees waiting many months before their disciplinary cases can be heard, well over the 60 days mandated by the Education Law and the April 15, 2010 agreement.
September 25,2013, letter, Ex.
"6,"
22.
assertions to the
The DOE further corrected the notable misperception caused by the UFT's
AAA:
the 2012-2013 school year, the DOE and UFT invited 14 arbitrators to the panel, it is imperative to note that only 5 arbitrators accepted the invitation. This year, a total of 14 were invited and thus far only 7 have accepted. This month, the DOE and IIFT proposed arbitrators, but none have been invited as the UFT has not agreed as to when they will be ready to move forward with the selection process. At the current rate of proposal and selection we will be well within the next school year before a panel is seated . This is unacceptable, as, in addition to the large backlog of cases, the DOE already has more than 150 cases to move forward through the 3020-a process this year and it is only September.
While
it is true that during
September 25,2013, letter, Ex.
"6."
23,
Thus, the DOE reiterated its request to the AAA for assistance, under its
procedures, in filling the full arbitrator panel
It is clear that the parties have not been able to

reach agreement in seating the full complement of arbitrators for the 3020-a panel for the past two school years and there is no reason to expect that this year will be any different, We must act swiftly to seat a full panel to comply with the letter and
spirit of the April 15th agreement, and we again request that the AAA, in accordance with the agreed-upon procedures for arbitrator selection for Education Law 3020-a hearings with the UFT, commence the strike and rank process until the 39 arbitrators are selected for the panel.
September 25,2013, letter, Ex. "6,"
24.
On September 26,2013, the AAA advised DOE that, because the UFT did
not consent to utilizing the AAA process to seat a full panel, the AAA would not proceed. See
Complaint,n"42."
B.
Injunctive Relief Standard
25.
To obtain the remedy of a preliminary injunction, under Article 63 of the each
Civil Practice Law and Rules ("CPLR"), a plaintiff must satisfy
of the following
prerequisites: (a) a clear right to the relief sought (also articulated as a likelihood of success on
the merits); (b) that it
will suffer irreparable injury if the injunctive relief is not granted, and (c)
that the balance of the equities tips in its favor. See Doe v. Axelrod, 73 N,Y.2d 748,750, (1988);
W.T. Grant v. Srogi, 52 N,Y.2d 496, (1981); Cohen v. State f)en' tof Soc Services 37 A.D.2d
626 (2d Dep't 1971), aff d, 30 N,Y,2d 571 (1972).
C.
Plaintiff Meets the Standard for Injunctive Relief
26. 27.
Plaintiff can show a likelihood of success on the merits, and thus its
application for a preliminary injunction should be granted.
The April Letter Agreement is a valid and enforceable contract, which
provides, unambiguously, that 39 arbitrators will be seated for the rotational panel presiding over
disciplinary cases held pursuant to Education Law Section 3020-a.
28.
The LIFT has continually been in breach of the April Letter Agreement,
despite the best efforts of the DOE seeking compliance,
29.
While the parties were able to select and empanel 39 arbitrators for the
2010-2011 school year, which immediately followed the
April Letter Agreement, for

jointly
the
subsequent two school years, 2011-2012 and 2012-2013, the parties were unable to
a
select
full panel.
See Complaint,'1T"39,"
30. 31, 32.
This has resulted in a sizeable backlog, with approximately 400 cases to
move forward through the Section 3}2}-adisciplinary process. See Complaint,
flfl "39," "43."

be
Now, a month into the 2013-2014 school year, the parties continue to
unable to jointly select a full panel.
Moreover, the UFT has refused
to participate in the AAA
arbitrator
section process, a mechanism previously recognized and agreed to by the parties, which exists to resolve the precise predicament that the DOE now faces.
33.
The UFT has no basis, whatever, for its claim that the mandate of the
a rotational panel comprised
April Letter Agreement -that it has been satisfied.
of 39 arbitrators -- is in reach, much less
34.
To the contrary, as noted above, and as the DOE has clarified for
the
AAA, in two school years following the 2010-2 I school year, and now, for this school
the rotational panel has fallen far short of the 39 arbitrator mandate.
year,
35.
This number is not an aspirational goal, but a practical need, given the of the April Letter Agreement, but now, due to the
case backlog, previously reduced as a result
UFT's continual delay, altogether excessive and damaging to the interests of the DOE and, one
would presume, of the UFT.
36. In its September 24th letter, claiming that AAA involvement was
premature, the UFT implies, in a footnote, that the AAA procedure set forth in Article 2l(G)(2)
is not applicable to the April Letter Agreement. See letter, dated September 24, 2013, from
Adam S. Ross, UFT General Counsel, to Jeffrey T. Zaino, AAA, which is annexed to the
Complaint as Ex. "5,"
37. If the UFT seeks here to ripen that implication into argument, such a
contention should be discarded,
38.
Education Law Section3020(4)(a) provides:
Notwithstanding any inconsistent provision of law, the procedures set forth in section [3020-a] of this article and section 12590-j(7)l of this chapter may be modif,red by agreements negotiated between the city school district of the city of New York and any employee organization representing employees or titles that are or were covered by any memorandum of agreement executed by such city school district and the united federation of teachers on or after June tenth, two thousand two.
39.
Education Law Section 3020-a(3) ("Hearings") outlines the process by
which an arbitrator (or "hearing ofhcer")
will be selected --
involvin g, inter alia, the State
commissioner of education and the American Arbitration Association -- and provides that
[nlot later than ten days after the date the commissioner mails to the employing board and the employee the list of potential hearing officers and biographies provided to the commissioner by the association, the employing board and the employee, individually or through their agents or representatives, shall by mutual agreement select a hearing officer from said list to conduct the hearing and shall notify the commissioner of their selection.
Education Law $ 3020-a(3)(bxii).
40.
The statute further provides that
ten days after receiving the list from

9
the employing board and the employee fail to agree on an arbitrator to serve as a hearing officer from said list and so notify the commissioner within
[i]f
the
commissioner, the commissioner shall request the association to appoint a hearing officer from said list. Education Law $ 3020-a(3)(bxiii).
4l.
Accordingly, the statutory process sets forth a mechanism to resolve
dispute, between the employing board and the representative of the employee, as to the selection
of an arbitrator.
42, 43.
However, as authorized by Education Law Section 3020(a)(a), the DOE
and the UFT entered into an agreement that modifies the statutory process,
Article 21(G) of the parties'CBA expressly pertains to "Education Law
3020-a Procedures," and provides that "[t]enured teachers facing disciplinary charges filed . .
will
be subject to Section 3020-aof the Education Law as modified
by paragraphs 1-10 below."r
44.
Under Article 2l(G)(2) of the CBA, the DOE and UFT have established a
rotational panel of arbitrators, (refened to in the April Letter Agreement as "hearing officers").
to
Education Law
$ 3020-a, and, when hearings
have
45,
Further modifying the statutory process, Article 2l(G)(2) provides that in

the
the event that the DOE and IJFT cannot agree to a full complement of arbitrators on
arbitration panel, "additional impartial arbitrators shall be selected by the parties in accordance
with the American Arbitration Association (AAA) procedures (strike and rank method) from
' A "opy of this, and other relevant portions of the CBA, is attached to the letter, dated September 23,2013, from Courtenaye Jackson-Chase, DOE's General Counsel, to Jeffrey T. Zaino, AAA, which is annexed to the Complaint as Exhibit "4,"
10-
list(s) provided by the AAA until the desired number . . . is reached to establish such permanent panel."
46.
While Article 2l(G)(2) set the rotational panel size at20 arbitrators, under
the April Letter Agreement, the DOE and the UFT agreed that the number of arbitrators on the panel would be increased to 39 arbitrators. See April Letter Agreement, which is annexed
as
Exhibit
"l"
to the Complaint, at 6.
47.
Accordingly, as both agreements, Article 2l(G)(2) and the April Letter
Agreement, modify the statutory process by which arbitrators are selected mechanism
--
including the
for resolving selection disputes -- the UFT carrot credibly contend that AAA
intervention is unavailable,
48.
Indeed, the assertion that the AAA process does not apply, when it plainly
stands in the stead of the statutory process, and where the parties clearly are unable to agree to a
full arbitrator panel, ignores the statutory scheme and violates public policy.
See Cohoes Cit),
Sch. Dist, v. Cohoes Teachers Ass'n, 40 N,Y.2d 774,778 (NLY, 1976) ("We have sought to make
it clear, however, that the general rule that any matter in controversy between
a board of
education and its teachers may be the subject of collective bargaining is limited by plain and
clear, rather than express, prohibitions

instances
in the statute or decisional law as well as in
some
by fpublic] policy, whether derived from, and whether explicit or implicit in statute or
decisional law, or in neither.") (citations and quotations omitted).
49.
The processes set forth in Education Law Section 3020-a constitute
statutory imperative that disciplinary hearings against pedagogical employees proceed fairly and
expeditiously. While Education Law Section 3020 permits the DOE and the UFT to modify
those processes, they cannot abrogate that imperative. "Specifically, where, as here, public
-11-
policy concerns are implicated, a school district will not be deemed to have waived its statutory
rights under the Education Law without an explicit agreement between the parties or compelling
evidence that the school district made a conscious decision to do Cent. Sch. Dist
so."
Consedine v. Portsville
l2 N.Y.3d 286,294 CN,Y. 2oo9)
50.
Here, self-avowedly, Article 21(G) of the CBA modifies the disciplinary
process set forth in Education Law Section 3020-a. Specifically, for the purposes relevant here,
Article 21(G)(2) provides the arbitrator panel, to be agreed on by the DOE and UFT, and, for
disagreement, sets forth a alternative process involving the AAA.
51.
The April Letter Agreement, referencing, inter alia, Article 2l(G), made
its purpose absolutely clear:
The long delays that have arisen in the current process of investigating alleged acts of misconduct and adjudicating charges pursuant to Education Law $ 3020-a benefit neither the DOE nor the employees represented by the UFT, The DOE and the UFT are committed to ensuring that the agreements reached here will be carried out so that those delays will be ended and the process outlined in the law, the contracts between the parties, and this Agreement will be adhered to. April Letter Agreement, which is annexed to the Complaint
as
Exhibit
"l,"
52.
Thus, the UFT's refusal to participate in the alternative selection process,
outlined in Article 2l(G)(2) of the CBA, and previously practiced by the parties, constitutes not
only a breach of contract, but also a violation of procedural agreements functionally equivalent,
by virtue of Education Law Section 3020, to statutory mandates.
53.
The UFT's continual delay in the arbitrator selection process, resulting in
an inability to seat a full panel, coupled now with its refusal to participate in the very process to
12-
resolve this precise circumstance, violates the April Letter Agreement, and undermines the intent
of both that agreement, and the Education Law.
54.
Further, plaintiff plainly establishes irreparable harm,
55, A party must prove irreparable harm to be imminent,
not remote or
speculative. See Golden v. Steam Heat,216 A.D.2d440 (2d Dept. 1995); see also Valentine v.
Schembri, 212 A.D.2d 371 (1st Dep't 1995)(reversing grant of preliminary injunction because
allegations of irreparable harm from loss of health insurance were speculative). Forthe purposes
of a preliminary injunction, "irreparable" harm is "a continuing harm resulting in substantial

prejudice by the acts sought restrained if permitted to continue pendente lite." Chrysler Corp. v.
Fedders Corp., 63 A.D.2d 567, 569
(lst Dep't
1978).
56.
As noted above, and set forth in the Complaint, and the DOE afhrmations
that accompany this application, the delays caused by the UFT for this school year, as well as in
prior school years, and its refusal to participate in the AAA process, irreparably harm the DOE.
57.
Pursuant to the CBA, and the April Letter Agreement, while awaiting their
disciplinary hearing and pending
the arbitrator's ultimate post-hearing determination,
nonsupervisory pedagogical personnel continue
to receive full
salary and benefits, with
exceptions only for certain serious misconduct and sexual offenses involving students or minors.
See Complaint, fl
"45."
Thus, by failing to agree to a
58.
adjudication
full arbitrator panel, the UFT delays the of

charged personnel,
of disciplinary
cases, and causes an untenable backlog
awaiting hearings -- for months on end -- during which time they are entitled to full salary and
benefits. See Complaint, fl "45."
-13-
59.
Accordingly, the DOE is ineparably harmed because, by failing to agree
to a full panel, and refusing to participate in the AAA process, the UFT limits, unjustifiably, the
number of arbitrators to preside over, and reduce, a tremendous backlog of disciplinary cases, This constraint thereby extends -- unreasonably -- the time during which the DOE must employ -
- and pay -- those charged personnel who are subject to termination.

letter, which is annexed to the Complaint as Exhibit "2,"
See September 19, 2013,
60.
This delay also impairs the effectiveness of DOE's ability to discipline its
employees, maintain its position in the community and safeguard the children entrusted to its
care.
See 94,
'I\zfnffer
nf T)nrroles r Rri Of
F'rhrc
87 A.D.3d at 857
(lst Dep't 20ll)
("Petitioner's unacceptable behavior compromised his ability to function as a teacher and the
school's position in the community,"); see also Matter of Bd. of Educ. of Cit)' Sch. Dist. of Cit),
of NY v Ostrin,2012 NY Slip Op 30737U (N.Y, Sup. Ct. Mar.21,2012) ("This
Court
recognizes the public policy of ensuring the safety and welfare of school children, particularly
because of the important role teachers play in their students' lives,")
6L
Such harm cannot be repaired.

schools,
62. Further, delayed disciplinary hearings impact DOE's

administrators, other teachers, and students, causing harm
educational needs,
to their budget, staffing and
63.
Assuaging these very considerations led to the April Letter Agreement,
As the UFT has breached this agreement, and refused to engage in an alternative process to
arrive at a full panel, and address the backlog, it has caused irreparable harm.
64.
Finally, a plaintiff seeking a preliminary injunction must also demonstrate
that the balance of the equities tips in its favor. The UFT cannot point to any possible harm, let
-t4-
alone ineparable harm, resulting from participating additional impartial arbitrators

arbitrator, full panel, clearly
in the AAA
selection process
to select
39-
to establish the parties'
permanent rotational
panel. A
will
expedite the process of adjudicating disciplinary hearings and
reducing the existing backlog.
65.
adjudication
Indeed, the UFT does not disagree, having claimed to want a "swift, fair
of
$3020-a charges." September 20, 2013, letter, which
is
annexed
to
the
Complaint as Exhibit "3."
66.
Under the April Letter Agreement, the DOE and the UFT agreed to
rotational panel composed of 39 arbitrators. The continuing failure to have a full panel of
arbitrators can be remedied -- as per the parties' own agreement -- by initiating the AAA process.
67
As such, the balance of the equities tips in favor of the DOE, which seeks
cases, reduce and prevent further backlog, and resolve
to swiftly adjudicate disciplinary

quickly
as possible
--
as
-- the employment status of personnel presently not teaching students, No prior application has been made for the relief requested herein.
68.
- 15-
\ilHEREFORE, plaintiff respectfully requests that the annexed Order to Show

Cause be signed, and that the Court grant
plaintiff s application for a preliminary injunction by
issuing an order enjoining the defendant from refusing to participate in, or otherwise delaying,
the arbitrator selection process, and directing the defendant to participate in good faith, and
pursuant
to Article 2l(G)(2) of the parties' collective
bargaining agreement,
in
selecting
additional impartial arbitrators in accordance with the AAA procedures until 39 arbitrators are
selected to establish the parties' permanent panel, and for such other and further relief as this
Court deems just and proper,
Dated:
GHTON
-16-

NYSCEF DOC. NO. 12

NYSCEF DOC. NO. 13

NYSCEF DOC. NO. 14

NYSCEF DOC. NO. 15
THe CIw oF NEW Yonx

MICHAEL A, CARDOZO
Corporalion Counsel
Law DnpaRTMENT
CHURCH STREET NEV/ YORK, NY IOOOT
IOO
MAX\ryELL D. LEIGHTON
phone: (212) 356-2472 fax: (212) 788-8877
email : mleighto@law.nyc.gw
September 27,2013
Supreme Court of the State of New York County of New York 60 Centre Street New York, New York 10007 Attn: County Clerk
Re: Bd. of Educ. v. United

Index No. 451734113 To Whom It May Concern:
Federation of Teachers
Please accept this Request for Judicial Intervention and proposed Order to Show Cause without fee, and mark the same as acceptable for filing. This fee exemption is being claimed pursuant to CPLR $ 8019(d).
Thank you for your cooperation.
Maxwell Assistant C
Counsel

NYSCEF DOC. NO. 16

NYSCEF DOC. NO. 17
NEV/ YORK SUPREME COURT
::ill:"_Y.:?Y
BOARD OF EDUCATION
..._.._._..x
AF'FIDAVIT OF SERVICE
Index No.: 45173412013
UNITED FEDERATION OF TEACHERS

x STATE OF NEV/
YORK YORK
Law Dept No,: 201 3-045987
) : )
SS.:
coLrNTY OF NEW
JASON DYER, being duly sworn deposes and
says that:
, 2.
1
The deponent is not a party to the action and is l8 years of age or older.
On October l'L 2013 the deponent served the Order to Show Cause upon the
following person or persons:

Adam S. Ross, United Federation of Teachers Attorney for the Defendant 52 Broadway NYC NY 10004
J
The number of copies served on each of said persons was The method of service on each of said persons was:
1.
Pursuant to CPLR 2103(bX3), where the person served is an attorney, where a person is in charge of the offrce, by leaving the paper(s)
person,
J
Sworn to before me this l't day of October ,2073
MOSES S, WILI.IAMS Commissroner of Deeds Crry o' t'J.'vr 'iork No 2-j2722 Celrf .ct,J f:irdd'n New york Countv
.-o'.':S,.io -.^lre: 1..,
.lO
j-
NOT

NYSCEF DOC. NO. 18
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ------------------------------------------------------------------- X BOARD OF EDUCATION OF THE CITY SCHOOL : DISTRICT OF NEW YORK, : : Plaintiff, : Index No. 451734/2013 : -against: : UNITED FEDERATION OF TEACHERS, : : Defendant. : ------------------------------------------------------------------- X
DEFENDANT UNITED FEDERATION OF TEACHERS MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFFS MOTION FOR A PRELIMINARY INJUNCTION
STROOCK & STROOCK & LAVAN LLP 180 Maiden Lane New York, New York 10038 (212) 806-5400
TABLE OF CONTENTS Page TABLE OF AUTHORITIES .......................................................................................................... ii PRELIMINARY STATEMENT .....................................................................................................1 STATEMENT OF FACTS ..............................................................................................................4 ARGUMENT ................................................................................................................................12 POINT I THE BOE CANNOT ESTABLISH A LIKELIHOOD OF SUCCESS ON THE MERITS AS DISCUSSIONS ARE ONGOING ......................................14 A. B. POINT II THE BOE HAS NOT ESTABLISHED IMMINENT IRREPARABLE HARM ...................................................................................................................19 A. B. C. D. POINT III A BALANCE OF THE EQUITIES TIPS DECIDEDLY IN THE UFTS FAVOR .................................................................................................................23 CONCLUSION ..............................................................................................................................24 The BOEs Purported Economic Loss Does Not Constitute Irreparable Harm.....19 The Injunction Is Not Necessary To Protect Childrens Safety .............................20 The Relief Requested Is Not Likely To Prevent The Alleged Harms ...................21 The BOE Cannot Claim Delay As A Harm When It Has Contributed To The Delay ......................................................................................................................22 The UFT Has Not Breached The April Letter Agreement Or The CBA ...............15 Discussions Regarding The Number Of Arbitrators Are Explicitly Authorized Under The April Letter Agreement And Cannot Form The Basis Of A Breach ...18
TABLE OF AUTHORITIES Page(s) CASES Amarant v D'Antonio, 197 A.D.2d 432 (1st Dept. 1993) .............................................................................................22 Destiny USA Holdings, LLC v. Citigroup Global Markets Realty Corp., 24 Misc.3d 1222(A) (Sup. Ct. Onondaga Cnty. July 17, 2009) ..............................................12 Electrolux Corp. v Val-Worth, Inc., 6 N.Y.2d 556 (1959) ................................................................................................................22 Golden v. Steam Heat, Inc., 216 A.D.2d 440 (2d Dept. 1995) .............................................................................................19 IDT Corp. v Tyco Group, 13 N.Y.3d 209 (2009) ........................................................................................................16, 17 IDT Corp. v Tyco Group, S.A.R.L., 104 A.D.3d 170 (1st Dept. 2012) .............................................................................................17 McNiece v. Sohmer, 29 Misc. 238 (Sup. Ct. N.Y. Cnty. 1899) ................................................................................13 Municipal Labor Committee v. City of New York, No. 101028/2013 (Sup. Ct. N.Y. Cnty. Sept. 4, 2013) ..............................................................1 Municipal Labor Committee v. City of New York, No. 652814/2013 (Sup. Ct. N.Y. Cnty. Sept. 30, 2013) ............................................................1 Rentways, Inc. v O'Neill Milk & Cream Co., 308 N.Y. 342 (1955) ................................................................................................................14 Second on Second Cafe, Inc. v. Hing Sing Trading, Inc., 66 A.D.3d 255 (1st Dept. 2009).........................................................................................12, 19 Sherman v Pace Univ., 17 A.D.3d 282 (1st Dept. 2005)...............................................................................................22 St. Paul Fire and Marine Ins. Co. v. York Claims Serv., Inc., 308 A.D.2d 347 (1st Dept. 2003).......................................................................................13, 19 W.W.W. Assoc., Inc. v Giancontieri, 77 N.Y.2d 157 (1990) ..............................................................................................................14
ii
STATUTES Educ. Law 3020 .............................................................................................................................4 Educ. Law 3020-a ..........................................................................................................................4 Educ. Law 3020-a(2)(b) ...............................................................................................................20 OTHER AUTHORITIES Melissa Russo and Tom Burke, I-Team: Arbitrators for Teacher Misconduct Cases Are Quitting, http://www.nbcnewyork.com/investigations/I-Team-Arbitrators-ForTeacher-Misconduct-Cases-Are-Quitting-157386515.html ....................................................21
iii
PRELIMINARY STATEMENT This application is nothing more than an attempt by the Board of Education of the City School District of the City of New York (BOE) to circumvent the agreed upon process of proposing arbitrators and jointly selecting a panel with the United Federation of Teachers (UFT). Instead, just like in other areas where the City of New York has recently been rebuffed by the courts in seeking to arrogate to itself decisions that must be made jointly, the BOE has made a unilateral determination that the AAA should appoint arbitrators.1 Because of its dislike for due process arbitration provisions required by law, the BOE and the Chancellor (appointed by the Mayor) are eager to manufacture alleged failings of the teacher disciplinary process and create a political maelstrom around such purported failings rather than work with the UFT to ensure that the process functions fairly and expeditiously and as agreed upon. The BOE and UFT are parties to a letter agreement dated April 15, 2010 (the April Letter Agreement), modifying the existing collective bargaining agreement (CBA) to increase the number of arbitrators (also sometimes referred to as hearing officers) designated to hear disciplinary charges preferred against teachers and other tenured pedagogues. The Agreement requires that the parties agree on the arbitrators. Contrary to the BOEs implication, the UFT has and continues to engage in the selection process in good faith. In fact, the BOE admits that there are presently outstanding a list of 20 proposed arbitrators from both sides and that, in the last two years, the parties have agreed on 30 arbitrators. The UFT has communicated its willingness to continue discussions of those proposals. The BOEs failure to respond shows that if any party
The Citys effort to enact changes unilaterally were most recently rebuffed in two cases concerning health benefits. See Municipal Labor Committee v. City of New York, No. 652814/2013 (Sup. Ct. N.Y. Cnty. Sept. 30, 2013) (granting a preliminary injunction preventing the City from unilaterally issuing a request for proposals to procure employee health benefits in violation of a letter agreement requiring that the City and the union jointly participate in all aspects of the procurement process); Municipal Labor Committee v. City of New York, No. 101028/2013 (Sup. Ct. N.Y. Cnty. Sept. 4, 2013) (enjoining the City from unilaterally proceeding with an eligibility audit for dependent health benefits where the process for conducting the audit needed to be collectively bargained.)
has breached the Agreement or acted in bad faith it is the BOE by attempting to strong-arm the UFT through this action rather than doing the work necessary for achieving consensus. Indeed, aside from the use of conclusory statements (intransigent delay, continued failure to agree), there are no allegations by the BOE rising to the level of breach. As set forth in detail below, it was the UFT and its affiliate, New York State United Teachers (NYSUT), that (i) initiated the arbitrator selection process months prior to the start of the school year, (ii) unsuccessfully urged the BOE to agree not to drop any existing arbitrators from the panel, (iii) twice proposed lists of additional arbitrators, and (iv) prepared the invitation letters distributed to existing and newly selected arbitrators. The BOE omits this collaboration in its presentation of the facts, with the Complaint jumping directly from a conclusory (and inaccurate) statement that the BOE initiated discussions in July 2013 (Complaint, 20) to the BOEs sudden letter, dated September 19, 2013, threatening litigation and demanding the UFT assent to its unreasonable demands within 24 hours (Complaint, 21). The productive and mutual process that took place in the intervening period as well as the BOEs own actions that resulted in six fewer panel members are glaringly missing. The BOEs complaint focuses almost exclusively on an exchange of letters in quick succession between September 19 and September 25, seemingly designed to serve only as exhibits to this Complaint rather than good faith attempts to select arbitrators. The BOE takes the position that if there are not 39 agreed-to arbitrators who accept positions at the very start of the school year, the UFT necessarily breached the April Letter Agreement. That is neither the fact nor the law. Agreements to agree, such as the one at issue here, require good faith efforts on both sides which, particularly where, as here, success also
depends upon the consent of the proposed arbitrators, is not guaranteed to produce the desired results. Nor would the BOEs sought-after injunction cure this difficulty. Accordingly, the BOE cannot meet the requirements for a standard preliminary injunction, let alone the mandatory one they seek, granting them the ultimate relief they desire: compelling the UFT to affirmatively participate in the American Arbitration Associations (AAA) selection process. The BOE has no likelihood of success on the merits because, while not all 39 arbitrators have been selected and accepted, the UFT has and continues to work with the BOE towards that goal. The BOE also cannot claim any imminent irreparable harm, for mere delay in processing disciplinary charges is (1) not a new occurrence either for the parties or other school districts within the State; nor does it (2) necessarily increase personnel costs or harm students. Where a teacher should not be permitted to continue in a classroom, the BOE currently has the authority to reassign that teacher. Likewise, any claimed increased cost is premised on a presumption that does not follow experience: that a significant portion of the charges will be sustained and the teachers terminated. That has simply not been the case. To be clear, the UFT has, by the BOEs admission, agreed on arbitrators (at least 14 of them) in recent months. The UFT has also repeatedly proposed arbitrators, ten of which are outstanding. Contrary to the implication of the BOE, the UFT is not responsible for the rate at which agreed-upon arbitrators accept or decline invitations. This last issue is of vital import as it falls outside the agreement and the power of the parties as well as the power of the AAA. Thus, the AAA process, identified by the BOE as a silver bullet, offers no guarantee of coming to a panel of 39 arbitrators as the arbitrators on the AAA lists are equally free to decline an invitation to join the panel. Indeed, some of the arbitrators who have declined the parties invitation to join the panel are also on the AAA list.
Finally, while the BOE spends much space in its papers demonstrating that the April Letter Agreement is part of the existing CBA so as to invoke the AAA process contained in the CBA (not the April Letter Agreement), the BOE overlooks entirely that disputes among the parties as to the implementation of the CBA are to be arbitrated, not litigated. Accordingly, the UFT intends to move to dismiss or stay this action and compel arbitration of the issue. The matters raised are already the subject of a grievance filed on October 4, 2013, by the UFT. STATEMENT OF FACTS Pursuant to State Education Law, tenured pedagogues have certain due process rights. See generally, Educ. Law 3020 and 3020-a. These rights include the preferring of charges and a hearing before an impartial hearing officer to determine whether there exists just cause for discipline. The State Education Department (SED), pursuant to statute, pays the hearing officers out of State appropriations. Also pursuant to Education Law, the parties may collectively bargain and, within certain restrictions, agree to a modification of the statutory process. That is precisely what they have done. Article 21(G) of the CBA between the UFT and the BOE covering teachers (and corresponding portions of other CBAs), sets forth a modified Educ. Law 3020-a process. Among the modifications collectively bargained was the creation of a standing rotational panel of arbitrators, agreed to by both parties, that would hear disciplinary charges. The 2007-2009 CBA provided for 20 arbitrators. The UFT, through its state affiliate, NYSUT, typically provides legal representation to its members in the event disciplinary charges are preferred. Claude Hersh, Assistant General Counsel for the New York City Office of the General Counsel of NYSUT, oversees the provision of those services and works with UFT General Counsel, Adam Ross, in administering the Article 21(G) process.
The April Letter Agreement In an effort to facilitate the disciplinary hearing process, the parties entered into the April Letter Agreement, which, inter alia, amended Article 21(G), increasing the number of arbitrators to 39. (Complaint, Ex. 1). The Agreement also provided a mediation program designed to resolve cases more expeditiously so they would not require hearings before arbitrators. In the year following the agreement, both parties were able to agree to, and seat, 39 arbitrators. (Affirmation of Claude I. Hersh in Opposition to Plaintiffs Application for a Preliminary Injunction, dated October 16, 2013 (Hersh Aff.), at 4). Additionally, during that first year, the mediation program proved successful, resulting in some 46% of all cases submitted to mediation settling, without need to resort to a hearing. (Hersh Aff., 5). Of the cases involving alleged misconduct (ATU cases) submitted to mediation, 43% were settled. Of the competency cases submitted (TPU cases), 56% were settled. Indeed, even without a formal mediation process, during the 2009-10, 2010-11 and 2011-12 school years, settlements ranged from 63% to 75% of all cases heard that year. (Hersh Aff., 5).2 The vast majority of cases either settled or resulted in some form of punishment other than termination. (Id.) While setting 39 as the target number, the April Letter Agreement also recognized that adjustments may be necessary, explicitly providing Representatives of the UFT and DOE shall meet monthly, or less frequently if the UFT and DOE agree, for the first year of this Agreement and at least twice a year thereafter (i) to agree on the number of hearing officers hearing expedited cases, (ii) to discuss the appropriateness of the number of hearing officers, including the possibility of agreeing to increase or decrease the number of hearing officers on either the incompetence or misconduct panels on either a temporary or permanent basis, and (iii) to discuss the
2
The UFT believes the settlement figures are so compelling that in addition to discussing the possibility of a standing mediation process with the BOE, it has submitted a contract demand in the statutory fact finding impasse resolution process currently ongoing between the parties.
appropriateness of the number of probable cause arbitrators, including the possibility of agreeing to increase or decrease the number of probable cause arbitrators. If the DOE believes there is a need for more hearing officers to comply with the timeliness set forth in this Agreement, it shall request that the UFT agree to increase the number of hearing officers and the UFT shall not unreasonably deny an increase. (April Letter Agreement, p. 7) (emphasis added). This provision allows the parties to discuss further changes to this number of arbitrators going forward. After the first year of the April Letter Agreement, the process for selecting arbitrators was complicated by external factors that the BOE attempts to down-play in an effort to blame the UFT. SED, responsible for providing compensation for the arbitrators, until recently had a history of failing to pay at all or on time. This caused a number of arbitrators to decline invitations to join the panel, and prompted existing arbitrators to quit. In 2012, the accumulation of back pay was so great, that 10 of the 24 then-seated arbitrators quit and a group of 33 arbitrators sued the State for $5.1 million in back pay. (Hersh Aff., 6). Thus, while the parties were able to seat 39 arbitrators the first year, they have been unable to do so in the subsequent years despite continuous efforts to propose candidates, agree and send invitations. Needless to say, panel positions became considerably less attractive to potential arbitrators when it became clear compensation would be lacking. Multiplying the burden, the BOE declined to continue the mediation program. Arbitrator Selection For The 2013-14 School Year Recognizing the difficulties in identifying mutually agreeable, qualified arbitrators who would be willing to accept a role on the panel, it was the UFT that contacted the BOE well before the start of the school year to commence the selection process. On June 27, 2013, Mr. Hersh contacted Naeemah Lamont, Director of the Teacher Performance Unit of the BOE, and
Laura Hemans Brantley, Director of the Administrative Trials Unit of the BOE, suggesting that the parties begin discussions regarding the 2013-2014 panel of arbitrators. (Email from Claude Hersh, June 27, 2013, Hersh Aff., Ex. 1) Both parties participated in a conference call on July 8, 2013 to discuss the desirability of a mediation program as well as the selection of arbitrators. In advance of the call, Mr. Hersh recommended to the BOE that the parties agree to forgo the option of dropping arbitrators from the then existing panel: At this time, the UFT is not interested in dropping anyone from the Panel and hopes that we can just invite everyone back since we really need to have cases start moving immediately in September. (Email from Claude Hersh, July 1, 2013, Hersh Aff., Ex. 2). Nevertheless, during the July 8 call, the BOE insisted that it intended to drop three arbitrators. (Hersh Aff., 8). To balance the panel, the UFT also determined to discontinue three arbitrators, which, along with one resignation, combined to reduce the number of existing arbitrators to 13. Despite precipitating a substantial drop in the number of arbitrators, the BOE claimed on July 8 that it was anxious to achieve a full complement of arbitrators. (Hersh Aff., 9). The UFT shared the goal of selecting an appropriate number of acceptable arbitrators. The parties agreed to each propose some 10-15 arbitrators in the following few weeks. Accordingly, on July 23, 2013, both sides exchanged lists of proposed arbitrators, with the BOE proposing 15 names and the UFT 12. (Email from Claude Hersh, July 23, 2013, Hersh Aff., Ex. 3.; Email from Naeemah Lamont, July 23, 2013, Hersh Aff., Ex. 4). On a July 24 call, the BOE approved draft invitation letters that Mr. Hersh had previously offered to prepare, but for which he needed certain information from the BOE. The parties also discussed the reassignment of cases and the approval of arbitrators. (Hersh Aff., 11).
On July 29, 2013, each party agreed to six of the arbitrators proposed by the other party. (Email from Claude Hersh, July 29, 2013, Hersh Aff., Ex. 5; Email from Laura Brantley, July 29, 2013, Hersh Aff., Ex. 6). Additionally, two arbitrators were on both lists, for a total of 14 newly agreed to arbitrators. Thus, contrary to the BOEs implication, the selection process has been proceeding apace. On August 1, 2013, the BOE finally provided the information necessary to finalize the invitation letters. Mr. Hersh completed the invitation letters and some 27 letters (13 to existing arbitrators and 14 to newly selected arbitrators) were sent out on August 15, 2103. (Hersh Aff., Ex. 7). As of August 29, 2013, four BOE-nominated arbitrators declined, two UFT-nominated arbitrators declined, one arbitrator nominated by both parties declined, as well as one existing arbitrator, bringing the total to 19 potential arbitrators. (Hersh Aff., 14). (Had the BOE agreed to mutually forgo dropping existing arbitrators, that number could have been 25). The parties thereupon moved to continue the process, holding another call on August 29, 2013, with both sides again agreeing to submit new lists of arbitrators. (Hersh Aff., 15). On September 6, 2013, each party submitted a list of 10 proposed arbitrators to the other. (Email from Claude Hersh, September 6, 2013, Hersh Aff., Ex. 8; Email from Naeemah Lamont, September 6, 2013, Hersh Aff., Ex. 9). On September 16, 2013, the UFT, together with Mr. Hersh, met with BOE representatives to discuss the parties experience with cases settling and the number of arbitrators the each party believed to be necessary. At this meeting, the BOE indicated it would agree to 30 arbitrators. Given the significant rate at which cases settled, the UFT proposed that in conjunction with a mediation program similar to that adopted in 2010 and temporarily reinstituted during Summer 2013, it believed 24 arbitrators would be sufficient. (Hersh Aff.,
17). At no time did either the UFT or Mr. Hersh state that the UFT declined to continue the selection of arbitrators or refuse to work towards a panel of 39 arbitrators if agreement on a lower number could not be reached. Nor did the BOE provide at that time, or has it provided since, a response to the lists of proposed arbitrators exchanged on September 6, 2013. (Hersh Aff., 18). Instead, some three days later, the BOE sent a letter accusing the UFT of unspecified delay, demanding that the UFT agree by the next day to select 30 arbitrators within the subsequent 14 days. (Complaint, Ex. 2). Despite the many months of progress made by the parties, the letter threatened immediate legal action against the UFT if it did not consent within the unreasonable and arbitrary one-day timeframe. The letter inexplicably held the UFT solely responsible for there not being more arbitrators who accepted positions. The BOE made no reference to the fact that many of the arbitrators that had been proposed so far had declined the invitation. The letter neither discussed the BOEs own decision to drop arbitrators against the UFTs wishes at the beginning of the process nor did it address the fact that the UFT currently had an outstanding list of proposed arbitrators awaiting the BOEs response. The BOEs letter also made no mention of the UFTs proposal to continue the successful mediation program that it had refused to continue. Instead, the BOE claimed that the difficulty in selecting arbitrators was entirely due to the UFT attempting to negotiate with the BOE for a smaller number of arbitrators: The UFTs actions appear motivated by a desire to force the DOE to agree to a modification of the April Letter Agreement which would reduce the total number of arbitrators assigned to hear 3020a cases to a number well below that in the April Letter Agreement. (September 19, 2013 Letter, Complaint, Ex. 2). In fact, no modification is necessary, as the April Letter Agreement explicitly provides that the parties should meet to discuss whether more or fewer arbitrators would be appropriate.
Thus, the BOEs threats were based on nothing more than the UFT exercising its right under the April Letter Agreement to engage in such discussions. The letter contained the following ultimatum: We seek your confirmation by the close of business tomorrow, September 20, 2013, that the UFT will agree to a panel of 30 arbitrators, with selection to be completed in accordance with the terms of the contract by October 4, 2013. Should the UFT fail to agree to this, the DOE will pursue all legal remedies available to it including, but not limited to, invoking its right under the collective bargaining agreement to use the arbitrator selection process provided by the American Arbitration Association (AAA) procedures. (September 19, 2013 Letter, Complaint, Ex 2). The BOE provided no justification for either the September 20 date or the October 4 date. Furthermore, the BOE provided no explanation for how, in light of the difficulties the parties had faced thus far in agreeing to arbitrator candidates and in getting those candidates to accept invitations, the UFT could possibly comply with this demand. The following day, on September 20, 2013, the UFT answered the BOE, but the BOE offered no response to that answer or on the now two-week outstanding list of proposed arbitrators. (Hersh Aff. 24). Instead, on the next business day, September 23, 2013, the BOE wrote directly to the AAA attempting to unilaterally activate the contractual impasse resolution process provided in the CBA without the parties having actually reached an impasse as to the selection of arbitrators. (Complaint, Ex. 4). (Indeed, contrary to the conclusion drawn by the BOE, with 19 arbitrators selected and 20 outstanding proposals, the parties could have, assuming the arbitrators accepted, achieved the BOEs goal of 30 arbitrators rather than engage in litigation). Similar to the BOEs September 19, 2013 letter, this letter provided no background
10
as to the parties progress in selecting arbitrators and difficulties in obtaining acceptances from those they invited. Instead, it merely stated that the parties had been unable to agree thus far. Again, the following day, the UFT responded by letter dated September 24, 2013. (Complaint, Ex. 5). The UFT informed the AAA that as the parties continue to negotiate the selection of arbitrators, the provision cited by the BOEapplicable to instances where the parties cannot agreehad not been triggered. The UFT requested that the AAA refrain from becoming involved until it was actually appropriate for it to do so under the CBA. The BOE wrote again to the AAA on September 25, 2013, admitting that the parties have been agreeing on arbitrators and inviting them to join their panel, but attempting to somehow blame the UFT for the low acceptance rate. (Complaint, Ex. 6). Moreover, having identified an important reason for the inability to employ a full complement of arbitrators, the BOE failed to indicate how the parties would fare any better in an AAA process, where the arbitrators are similarly free to decline the invitation. Likewise, the BOE acknowledged that there were outstanding lists of arbitrators, but for the first time blamed the UFT for not being prepared to proceed. Yet, the BOE had itself not responded to the UFTs list. The letter went on to insist that the AAA commence the selection process over the UFTs objection. Recognizing that it would be inappropriate to intervene without the support of both parties, the AAA rejected the BOEs request to intervene on September 26, 2013. (Hersh Aff., 27). On the same day, the BOE commenced this action. The following day, the BOE requested a mandatory injunction seeking to compel UFT participation in the AAA process despite the BOE still not having responded to the UFTs September 6 list of proposed arbitrators. Despite the BOEs obstructionist behavior, the UFT continues to believe the parties can make progress in their selection of arbitrators. Accordingly, on October 15, 2013, the UFT
11
issued a letter to the BOE pointing out that there are still outstanding lists and inviting the BOE participate in an exchange of comments: The UFT remains ready to provide you with names of agreeable hearing officers from your list. I write to inquire whether the DOE is prepared to do the same from the UFT list. (Hersh Aff., Ex. 10). ARGUMENT The BOEs application for a preliminary injunction does not even attempt to conceal its mandatory nature, seeking to enjoin the UFT from refusing to participate in the AAA arbitrator selection process, i.e., requiring that the UFT give up its contractual right to propose and jointly select arbitrators with the BOE and skip directly to an impasse resolution mechanism, despite there being no existing impasse. See Destiny USA Holdings, LLC v. Citigroup Global Markets Realty Corp., 24 Misc.3d 1222(A), *7 (Sup. Ct. Onondaga Cnty. July 17, 2009) (A mandatory injunction . . . directs a party to perform a specific act to maintain the status quo). Yet, the BOE has not addressed the standard for a mandatory injunction, let alone satisfied its requirements. It is black letter law that [t]he party seeking a preliminary injunction must demonstrate a probability of success on the merits, danger of irreparable injury in the absence of an injunction and a balance of equities in its favor . . . . Moreover, a mandatory preliminary injunction . . . by which the movant would receive some form of the ultimate relief sought as a final judgment, is granted only in unusual situations, where the granting of the relief is essential to maintain the status quo pending trial of the action . . . . [C]ourts are generally reluctant to grant mandatory preliminary injunctions . . . and such relief will be granted only where the right [thereto] is clearly established . . .. Second on Second Cafe, Inc. v. Hing Sing Trading, Inc., 66 A.D.3d 255, 264-65 (1st Dept. 2009)) (internal citations omitted) (emphasis added). See also Destiny USA Holdings, LLC v.
12
Citigroup Global Markets Realty Corp., 24 Misc.3d 1222(A), *7 (Sup. Ct. Onondaga Cnty. July 17, 2009) (Generally, New York courts consider mandatory injunctions to be among the most severe of remedies. . . . It has been said that mandatory injunctions can be fraught with extreme danger and should, therefore, be granted only with extreme caution.) (internal citations omitted); McNiece v. Sohmer, 29 Misc. 238, 240 (Sup. Ct. N.Y. Cnty. 1899) (Mandatory injunctions are at all times granted with extreme caution, and, as a general rule, are never granted pendente lite, or where the relief asked for is doubtful.) (internal citations omitted) The injunction sought by the BOE here would provide the BOE precisely what the courts have cautioned against: the ultimate relief soughtnamely, allowing the AAA to select arbitrators through the strike and rank method rather than requiring the BOE to discuss and jointly select arbitrators with the UFT pursuant to the agreementand destroy rather than preserve the status quo, as currently the parties each have outstanding lists of proposed arbitrators. (Hersh Aff., 18, 27-28; Leighton Aff., 22). New York courts have held that under these very circumstances a mandatory injunction should not be granted. St. Paul Fire and Marine Ins. Co. v. York Claims Serv., Inc., 308 A.D.2d 347, 349 (1st Dept. 2003) (A mandatory injunction should not be granted, absent extraordinary circumstances, where the status quo would be disturbed and the plaintiff would receive the ultimate relief sought, pendent lite). The BOE cannot demonstrate any of the required elements for a preliminary injunction nor can it demonstrate the extraordinary circumstances necessary for a mandatory injunction. As a result, the injunction should be denied.
13
POINT I THE BOE CANNOT ESTABLISH A LIKELIHOOD OF SUCCESS ON THE MERITS AS DISCUSSIONS ARE ONGOING The BOEs allegations of breach and bad faith are based on two suppositions: the BOEs belief that the arbitrator selection process is taking too long, and the BOEs view that the UFTs requests that the parties agree on fewer than 39 arbitrators together with a mediation process constitutes bad faith. Neither of these arguments can sustain the BOEs breach of contract claim. First, though the BOE repeats in several places that the UFT has caused unacceptable delay, it points to no actual facts supporting that conclusion, nor any supporting case law. Indeed, in service of this wholly conclusory argument, the BOEs Complaint strategically leaves out any discussion of the work and progress made by the parties in selecting arbitrators during the past school year or between June and September of this year. See discussion supra, at 6-10. Instead, the Complaint goes from incorrectly stating that it was the BOE who initiated discussions in July 2013 (Complaint, 20), immediately to the BOEs September 19 letter threatening legal action if the UFT did not acquiesce to the BOEs unreasonable demands within 24 hours (Complaint, 21). This action was commenced a mere seven days after that initial letter. Nor is the fact that there are not now 39 selected arbitrators determinative. First, that fact alone does not demonstrate which party has breached, if any. Nor does it mean the parties are necessarily at an impasse. The selection process moves in rounds and must respond to the independent actions of the invited arbitrators in accepting or declining the invitations. The BOE takes far too narrow a view of the CBA and April Letter Agreement, focusing on one or two specific provisions out of context. See generally, W.W.W. Assoc., Inc. v Giancontieri, 77 N.Y.2d 157, 162 (1990); Rentways, Inc. v O'Neill Milk & Cream Co., 308 N.Y.
14
342, 347 (1955) (holding that interpreting a provision in light of the contract as a whole is a cardinal principle of contract law). Looking at the contract in its entirety, neither issue cited by the BOE can sustain a cause of action for breach of contract, as all of the UFTs actions have been within its rights under the CBA and the April Letter Agreement. Moreover, as the UFT will set out in its anticipated motion to compel arbitration, disputes as to the meaning of the Agreement and the parties compliance therewith fall squarely within the CBAs arbitration clause and have no place before this Court.
A.
The UFT Has Not Breached The April Letter Agreement Or The CBA The BOE claims that the UFT has breached the CBA and the April Letter Agreement by
failing to comply with the arbitrator selection process in Article 21(G)(2). That provision states: As discussed and agreed upon, all parties would be served better by the implementation of a permanent arbitration panel. The panel members must be agreeable to both sides, however, if the parties cannot agree to a full complement of 20 panel members, additional impartial arbitrators shall be selected by the parties in accordance with the American Arbitration Association (AAA) procedures (strike and rank method) from list(s) provided by the AAA until the desired number (20) is reached to establish such permanent panel. CBA Article 21(G)(2) (emphasis added). Thus, the contract explicitly states that both sides must agree to all arbitrators. This does not mean that each side is forced to agree to empanel every arbitrator proposed by the other side, nor could the BOE so argue, as it has no more agreed to all of the UFTs proposed arbitrators than the UFT to its. Rather, the agreement requires only that each side must negotiate in good faith in attempting to agree on arbitrators. This is precisely what the UFT has done. As the BOE cannot allege that the UFT has breached the CBA simply by failing to agree with every arbitrator the BOE has proposed, the BOE bases its Complaint on the argument that the naked fact of not yet having 39 arbitrators itself indicates a breach and the UFTs refusing to
15
participate in the AAA selection process is evidence of the UFTs breach. The contract clearly states, however, that this alternate selection process becomes mandatory only if the parties cannot agree to a full panel. There is no contractual deadline for the negotiations. The mere fact that there are now fewer than 39 arbitrators empaneled speaks more to the difficulty in obtaining acceptances from arbitratorswhich is outside either partys controlthan it does to any inability to agree on arbitrators to invite. Indeed, the fact that there are presently 20 proposed arbitrators outstanding, in and of itself demonstrates that the parties are still in the process of selection and not yet at impasse. If any party has declined to continue with the process it is the BOE by hiding behind this action and failing to respond to the UFTs invitation to meet and discuss the outstanding names. Ultimately, the BOE argues that because there is not a full panel of arbitrators right now, the joint selection process has failed. (See Leighton Aff. 31). But this is not how the Court of Appeals has interpreted agreements to agree like Article 21(G)(2) of the CBA and the April Letter Agreement. In IDT Corp. v Tyco Group, 13 N.Y.3d 209 (2009), the Court of Appeals examined a similar agreement to agree. There, pursuant to a settlement agreement, the parties had agreed to negotiate a contract regarding the right of use of fiber optic capacity. The parties negotiated on and off for three years before the plaintiff brought an action for breach of contract based on the defendants failure to agree. The Court stated that the failure to agree on terms within three years was not sufficient evidence for a breach of the agreement. Id. at 214. The Court also held that the defendants submission of contract terms that were inconsistent with the settlement agreement did not constitute a breach of the settlement agreement, nor did it constitute bad faith negotiations. As a result, the Court of Appeals affirmed the dismissal of plaintiffs complaint.
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Id. at 215. The plaintiff was only allowed to proceed with its action once it had amended its complaint to include the allegation that the defendant had told the plaintiff that the defendant was disavowing the agreement and refusing to engage in further negotiations. IDT Corp. v Tyco Group, S.A.R.L., 104 A.D.3d 170, 176 (1st Dept. 2012). Under IDT Corp., the BOE cannot succeed in its action for breach of contract as there is no indication that the parties have reached an impasse. At no time has the UFT stated that it has refused to consider any additional arbitrators. And, importantly, at no time has the UFT refused to engage in discussions regarding the BOEs proposed arbitrators. On the contrary, all indications are that such discussions are currently ongoing. Even if this Court were to accept all of the allegations in the Complaint and supporting affirmations as true, all that would demonstrate is that the BOE is prematurely rushing into court. The BOE does not dispute that both parties have outstanding lists of proposed arbitrators. Indeed, the UFT has reached out to the BOE, re-affirming its willingness to continue discussions regarding the outstanding list. The BOE, however, claims that all of this is irrelevant, as even if all outstanding lists are agreed upon by both parties there will still be fewer than 39 arbitrators. But the BOE provides the Court with no reason to think that the currently outstanding lists represent the end of joint selection process. The UFT is willing to continue providing names until both parties agree on 39 arbitrators, or agree that some lower number of arbitrators is appropriate. The BOE, on the other hand, essentially asks this Court to rewrite its Agreement with the UFT such that the BOE would not have to work with the UFT, but simply defer all decisions regarding arbitrators to the AAA.
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B.
Discussions Regarding The Number Of Arbitrators Are Explicitly Authorized Under The April Letter Agreement And Cannot Form The Basis Of A Breach The BOE also implies that the UFTs belief that fewer than 39 arbitrators are necessary
indicates bad faith sufficient to support a breach. But this ignores the full scope of the Agreement between the parties. While the April Letter Agreement sets the number of arbitrators at 39, the very next paragraph provides: Representatives of the UFT and the DOE shall meet monthly, or less frequently if the UFT and DOE agree, for the first year of this Agreement and at least twice a year thereafter (i) to agree on the number of hearing officers hearing expedited cases, (ii) to discuss the appropriateness of the number of hearing officers, including the possibility of agreeing to increase or decrease the number of hearing officers on either the incompetence or misconduct panels on either a temporary or permanent basis, and (iii) to discuss the appropriateness of the number of probably cause arbitrators, including the possibility of agreeing to increase or decrease the number of probable cause arbitrators. (Complaint, Ex. 1, p. 7) (emphasis added). The Complaint suggests that the UFT has caused delay in the selection process by suggesting that fewer than 39 arbitrators are needed. (Complaint, 31, 49; Complaint, Ex. 2). However, the April Letter Agreement explicitly states that this number is open to discussion. Indeed, if suggesting fewer than 39 arbitrators actually constituted a breach or bad faith negotiation, the BOE would have breached the April Letter Agreement when it made its offer of 30 arbitrators in the September 19th letter to Michael Mulgrew. Thus, the BOE has failed to allege any facts that would support a finding that the UFT acted either in bad faith or breached the April Letter Agreement. Moreover, as the Agreement is part of CBA, any alleged breaches are subject to arbitration, not litigation.
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POINT II THE BOE HAS NOT ESTABLISHED IMMINENT IRREPARABLE HARM To obtain a mandatory injunction, the BOE must allege that the status quo will be upset by some sort of extraordinary harm, which can only be prevented by the injunction sought.3 St. Paul Fire, 308 A.D.2d at 349. Additionally, the harm must be imminent, and not remote or speculative. Golden v. Steam Heat, Inc., 216 A.D.2d 440, 442 (2d Dept. 1995). Putting aside that the BOE is not seeking to maintain the status quo, but rather destroy the status quo and obtain the ultimate relief, the BOEs allegations fall short of the standard for a mandatory injunction on every level.
A.
The BOEs Purported Economic Loss Does Not Constitute Irreparable Harm The BOE alleges that, by failing to agree to a full panel of 39 arbitrators by a date certain
(a requirement not found in the April Letter Agreement), the UFT has slowed the disciplinary process, forcing the BOE to continue paying personnel longer than necessary. (Leighton Aff. 59). Even if paying teachers salaries could constitute an irreparable harm, which arguably it cannot, in this context that harm is completely speculative. The BOEs asserted personnel savings are built upon an assumption that, given past experience, is unlikely to be realized. Specifically, this allegation assumes that every teacher brought before arbitration on disciplinary charges will actually be terminated. This is not the case. The vast majority of cases either settle or result in some other form of punishment besides termination. (Hersh Aff., 5). The April Letter Agreement, for example, allowed for a mediation program to run in conjunction with the expedited arbitration process. Some 46% of all cases submitted to the mediation program settled short of termination. (Id.) Indeed, prior to the
Contrary to the BOEs assertions, it is not the UFTs obligation to demonstrate irreparable harm in order to avoid a mandatory injunction. (Leighton Aff., 64). Rather, as discussed supra, the burden is on the party seeking the injunction. See Second on Second Caf, 66 A.D.3d at 264-65.
3
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formal mediation process, during the 2009-10, 2010-11 and 2011-12 school years, settlements ranged from 63% to 75% of all cases heard in a given year. (Id.) Thus, the BOE dramatically overestimates any financial harm it might experience.
B.
The Injunction Is Not Necessary To Protect Childrens Safety In addition to the purported economic harm, the BOE further alleges that the injunction is
necessary to discipline employees and safeguard children entrusted to its care. (Leighton Aff. 60). However, the BOE already has the tools needed to accomplish these goals. New York Education Law 3020-a(2)(b) permits the BOE to remove a teacher from the classroom pending adjudication and, per the April Letter Agreement, once a teacher is charged he or she can remain re-assigned out of the classroom. Such ability is not in any way impacted by not having a full complement of arbitrators. Simply stated, there is no harm as to student safety, never mind the extraordinary circumstances required for a mandatory injunction. As to employee discipline, the speed of the arbitration process has nothing to do with whether legitimate charges are eventually adjudicated. If a legitimate charge is leveled at an employee, that employee will be disciplined. Even if the BOEs application would speed up the process, and as discussed below there is no reason to believe it would, if the process is delayed some period due to a limited number of arbitrators it simply would not cause the type of harm that warrants the extraordinary remedy of a mandatory injunction. Moreover, one of the primary purposes of the April Letter Agreement was to expedite the processing of disciplinary charges, which for many years had taken longer than desired by both parties. Although the process has improved, the timeframes have not yet reached the goal of either the UFT or the BOE. Some delay, however, while the parties continue the arbitrator selection process is hardly new, let alone an imminent and irreparable harm requiring a mandatory injunction.
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C.
The Relief Requested Is Not Likely To Prevent The Alleged Harms The BOEs request for an injunction is premised on the assumption that the AAA process
will more swiftly provide for a full complement of 39 willing arbitrators. The BOE fails to mention, however, that the additional arbitrators it seeks are independent agents in this process. One of the challenges that has stymied both parties thus far is that, until recently, due to problems with the SED payment system, many arbitrators were getting their fees late, if they got them at all. (Hersh Aff., 6; Complaint, Ex. 3). Indeed, in April 2012, a group of 33 arbitrators sued SED for $5.1 million in back pay, and in June 2012 10 of the 24 arbitrators empanelled by the parties for the 2011-12 school year quit due to the SEDs payment policies and delinquencies.4 As a result of the ongoing problems with arbitrator compensation, only five of the 14 arbitrators invited to join the panel for the 2012-13 school year accepted the offer and this year a total of 14 arbitrators have been invited but only seven have accepted. (Complaint, Ex. 6). These compensation issues directly impact the proposed AAA process for empanelling a full complement of arbitrators. The BOE has offered no explanation, nor is there one, as to how the mandatory injunction might make potential arbitrators more likely to accept future invitations, whether the invitation comes from the AAA or directly from the parties. (The BOE has also failed to address the very likely overlap between the arbitrators being proposed by the parties and those on the AAAs roster.) Further, the BOE asserts that at no time since entering into the 2010 Agreement have the parties agreed upon a full complement of 39 arbitrators. (Leighton Aff., 11). While that assertion is untrue and contradicted by their own submissions admitting that in the first year, prior to SED payment issues, 39 arbitrators were appointed, to now argue that not
Melissa Russo and Tom Burke, I-Team: Arbitrators for Teacher Misconduct Cases Are Quitting; available at: http://www.nbcnewyork.com/investigations/I-Team-Arbitrators-For-Teacher-Misconduct-Cases-Are-Quitting157386515.html.
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having a full complement of arbitrators is causing some sort of extraordinary, irreparable harm requiring a mandatory injunction is disingenuous.
D.
The BOE Cannot Claim Delay As A Harm When It Has Contributed To The Delay New York Courts have denied injunctions to parties whose conduct contributed to or
exacerbated the harm that the party seeks to remedy. See, e.g., Electrolux Corp. v Val-Worth, Inc., 6 N.Y.2d 556, 564 (1959) (denying plaintiffs injunction against defendants unlawful business practice where plaintiff knew of the business practice and kept silent while it was profitable for plaintiff to do so); Amarant v D'Antonio, 197 A.D.2d 432, 434 (1st Dept. 1993) (denying plaintiffs motion to enjoin conduct in violation of an agreement when defendants conduct was caused by plaintiffs own violation of a different agreement); Sherman v Pace Univ., 17 A.D.3d 282 (1st Dept. 2005) (denying injunction of allegedly exorbitant fees when plaintiff failed to pay overdue account for three years). The BOE alleges that the UFTs actions have delayed the selection of arbitrators and the resolution of 3020-a proceedings. However, the BOE fails to acknowledge its own actions and inactions. First, it was the BOE who rejected the proposal to retain all of the arbitrators from the existing panel, resulting in six panel members being dropped. Second, the BOE declined to continue a successful mediation program, despite its proven ability to expedite the resolution of cases and more efficiently utilize hearing days. Finally, the BOE still has not responded to the proposed arbitrators exchanged on September 6, 2013, despite the UFTs invitation to discuss. Had the BOE agreed to the 10 arbitrators proposed by the UFT (as it now demands the UFT summarily agree to imposition of arbitrators through a AAA process), the panel could (if the arbitrators accepted) be much closer to full capacity. Such behavior cannot justify the injunction the BOE seeks.
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POINT III A BALANCE OF THE EQUITIES TIPS DECIDEDLY IN THE UFTS FAVOR If granted, this mandatory injunction would deprive the UFT (and its members) the benefit of its bargain. One of the key services the UFT provides for its members is preservation of due process rights. The teachers represented by the UFT are entitled to have their interests represented at all stages of the arbitration process, including the selection of the arbitrators themselves. To accomplish this objective, the UFT entered into an agreement to agree with the BOE on arbitrators to hear disciplinary disputes. This agreement ensures that all chosen arbitrators have the UFTs (and the BOEs) approval and that they will provide fair adjudication of the represented employees. The BOEs mandatory injunction seeks to avoid this negotiated agreement by forcing the UFT to utilize impasse proceduresnamely, the strike and rank process administered by the AAAwhere no impasse exists. Discussions are ongoing between the parties. Skipping ahead to impasse while the parties are still engaged in the joint selection process improperly strips the UFT of a meaningful role in the selection and approval of arbitrators, putting at risk the fair adjudication of represented employees. As discussed supra, the harms that the BOE alleges are neither irreparable nor extraordinary. Moreover, the purported harms are unlikely to be mitigated by the injunction sought. On the contrary, should the injunction be granted, the UFT would be denied the opportunity to fully represent its members. Given that discussions are still ongoing between the parties, granting the preliminary injunction would cause serious and irreparable harm to the UFT, and without any actual benefit to the overall process. Thus the balance of the equities favors the UFT.
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CONCLUSION Wherefore, for the reasons set forth herein, as well as those described in the accompanying Affirmation of Claude I. Hersh, the UFT asks that the Court deny the BOEs application for a preliminary injunction.
Dated:
October 16, 2013 New York, New York STROOCK & STROOCK & LAVAN LLP
By:
/s/ Alan M. Klinger Alan M. Klinger, Esq. Dina Kolker, Esq. Beth Norton, Esq. 180 Maiden Lane New York, New York 10038 (212) 806-5400 Counsel for Defendant UFT
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NYSCEF DOC. NO. 19
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK x BOARD OF EDUCATION OF THE CITY : SCHOOL DISTRICT OF THE CITY OF NEW : YORK, : : Plaintiff : : -against: : UNITED FEDERATION OF TEACHERS, : : Defendant. : : x
Index No. 451734/13 AFFIRMATION OF CLAUDE I. HERSH IN OPPOSITION TO PLAINTIFFS APPLICATION FOR A PRELIMINARY INJUNCTION
CLAUDE I. HERSH, an attorney duly admitted to practice before the Courts of the State of New York, hereby affirms the following to be true under penalty of perjury: 1. I am the Assistant General Counsel for the New York City Office of the General
Counsel of the New York State United Teachers (NYSUT). NYSUT is a Statewide umbrella organization affiliated with Defendant, United Federation of Teachers (UFT), that, inter alia, provides tenured pedagogues charged with misconduct or incompetence the option of having a NYSUT attorney represent them in their 3020-a proceeding without fee. I oversee the provision of those services and work closely with the UFT to administer and monitor the disciplinary process applicable to New York City teachers. I submit this affirmation in support of Defendants opposition to Plaintiffs application for a mandatory injunction requiring the UFT to participate in the an arbitration selection process through the American Arbitrators Association (AAA). I am fully familiar with the facts set forth below:
The April Letter Agreement 2. In order to expedite the scheduling of Education Law 3020-a hearings, both the
UFT and the Board of Education of the City School District of the City of New York (BOE) agreed to modify their existing Collective Bargaining Agreement (CBA), memorialized in a letter agreement signed by both parties on April 15, 2010 (April Letter Agreement). Complaint, Ex. 1. 3. The Agreement provides, inter alia, for an increase in the number of arbitrators
from 20 to 39, while giving the parties the right to discuss that number if either party believes it is too high or too low. It also provided for a mediation program designed to resolve cases quickly so they would not have to be scheduled for hearings in front of arbitrators. 4. 39 arbitrators. 5. During that first year the mediation program also proved to be very successful, In the year following the Agreement, both parties were able to agree to, and seat,
resulting in some 46% of all cases submitted to mediation settling, without need to resort to a hearing. Of the cases involving alleged misconduct (ATU cases) submitted to mediation, 43% were settled. Of the competency cases submitted (TPU cases), 56% were settled. Indeed, even without a formal mediation process, during the 2009-10, 2010-11 and 2011-12 school years, settlements ranged from 63% to 75% of all cases heard that year. The vast majority of cases either settled or resulted in some form of punishment besides termination. 6. After that first year, however, unanticipated problems developed. It became
apparent that the State Education Department (SED), responsible for providing compensation to the arbitrators, had continually failed to pay the arbitrators on time and in some cases not at all. This caused a number of arbitrators to quit the panel and others to decline invitations to join 2
the panel. In 2012, the accumulation of back pay was so great, that 10 of the 24 then-seated arbitrators quit and a group of 33 arbitrators sued SED for $5.1 million in back pay. See Melissa Russo and Tom Burke, I-Team: Arbitrators for Teacher Misconduct Cases Are Quitting; available at: http://www.nbcnewyork.com/investigations/I-Team-Arbitrators-For-TeacherMisconduct-Cases-Are-Quitting-157386515.html (accessed October 16, 2013). Thus, while the parties were able to seat 39 arbitrators the first year, they have had difficulty in the subsequent years. Exacerbating the issue, despite the programs initial success, the BOE declined to continue the mediation program after the first year, thus adding to the arbitration case load. Arbitrator Selection For the 2013-14 School Year 7. On June 27, 2013, I contacted Naeemah Lamont, Director of the Teacher
Performance Unit of the BOE and Laura Hemans Brantley, Director of the Administrative Trials Unit of the BOE, suggesting that the parties begin discussion regarding the 2013-2014 panel of arbitrators as early as possible. See Email from Claude Hersh, dated June 27, 2013, annexed as Exhibit 1. Both parties participated in a conference call on July 8, 2013. Prior to that call, I suggested in an email that both parties agree to not drop any arbitrators from the panel: At this time, the UFT is not interested in dropping anyone from the Panel and hopes that we can just invite everyone back since we really need to have cases start moving immediately in September. See Email from Claude Hersh, dated July 1, 2013, annexed as Exhibit 2. 8. Nevertheless, on the July 8 call, the BOE advised that the BOE would be
dropping three arbitrators. To balance the panel, the UFT also determined to discontinue three arbitrators, which, along with one resignation combined to reduce the total number of arbitrators to 13.
9.
Despite precipitating a substantial drop in the number of arbitrators, the BOE
claimed on July 8 that it was anxious to get to a full complement of arbitrators. The UFT and NYSUT shared the goal of selecting an appropriate number of acceptable arbitrators. During the conference call, both parties agreed to propose 10-15 arbitrators. 10. On July 23, 2013 I sent a list to the BOE on behalf of the UFT and received a list
from the BOE of proposed arbitrators. See Email from Claude Hersh, dated July 23, 2013, annexed as Exhibit 3; Email from Naeemah Lamont, dated July 23, 2013, annexed as Exhibit 4. 11. A follow-up call occurred the next day, during which the BOE approved of draft
invitation letters which I had previously offered to prepare, but was awaiting certain information from the BOE. The parties also discussed the reassignment of cases and approval of arbitrators. 12. On July 29 2013, each party agreed to six of the arbitrators proposed by the other
party. See Email from Claude Hersh, dated July 29, 2013, annexed as Exhibit 5; Email from Laura Brantley, dated July 29, 2013, annexed as Exhibit 6. Additionally, two arbitrators were on both lists, for a total of 14 newly agreed to arbitrators. Thus, contrary to the BOEs implication, the selection process has been proceeding apace. 13. On August 1, 2013, the BOE finally provided the needed information to finalize
the invitation letters. I worked to complete the letters and sent them out on August 15, 2013. All-in-all, some 27 arbitrators (13 existing and 14 newly selected) received invitation letters. Copies of the invitation letters are annexed as Exhibit 7. 14. As of August 29, 2013, four BOE-nominated arbitrators declined, two UFT-
nominated arbitrators declined, one arbitrator nominated by both parties declined, as well as one existing arbitrator, bringing the total number of potential arbitrators to 19. Had the BOE agreed to mutually forgo dropping existing arbitrators, that number could have been 25. 4
15.
The parties thereupon moved to continue the process, holding another conference
call on August 29, 2013 and, again, both sides agreed to submit new lists of arbitrators. 16. On September 6, 2013, on behalf of the UFT, I exchanged a list of 10 proposed
arbitrators with the BOE. See Email from Claude Hersh, dated September 6, 2013, annexed as Exhibit 8; Email from Naeemah Lamont, dated September 6, 2013, annexed as Exhibit 9. 17. On September 16, 2013, I, together with UFT representatives, met with BOE
representatives to discuss how many arbitrators were needed in light of the parties experience with how many cases typically settled in the early stages. The BOE indicated it would agree to 30 arbitrators. Given the significant rate at which cases settled, the UFT proposed that 24 arbitrators would be sufficient, together with a mediation program similar to the one adopted in 2010 and temporarily reinstituted during Summer 2013. 18. At no time did either the UFT or I state that the UFT declined to continue the
selection of arbitrators or refuse to work towards a panel of 39 arbitrators if agreement on a lower number could not be reached. Nor did the BOE provide at that time, or since, a response to the lists of proposed arbitrators exchanged on September 6, 2013. 19. Instead, some three days later, the BOE sent a letter accusing the UFT of
unspecified delay, demanding that the UFT agree by the next day to select 30 arbitrators within the subsequent 14 days. See September 19, 2013 BOE letter, Complaint, Ex 2. Despite the many months of progress made by the parties, the BOE threatened immediate legal action against the UFT if it did not consent within the unreasonable and arbitrary one-day timeframe. The letter inexplicably held the UFT entirely responsible for there not being more arbitrators who accepted positions. The BOE made no reference to the fact that many of the arbitrators that had been proposed so far had declined the invitation. Nor did the letter discuss the BOEs own 5
decision to drop arbitrators at the beginning of the discussion process. Nor did the BOEs letter address the fact that the UFT currently had an outstanding list of proposed arbitrators awaiting the BOEs response. And the BOEs letter made no mention of the successful mediation program that it had recently discontinued (and which it knew was subject to an ongoing collective bargaining fact finding process under the auspices of the Public Employment Relations Board). 20. In that same letter, Plaintiff claimed that the difficulty in selecting arbitrators was
entirely due to the UFT attempting to discuss with the BOE that fewer arbitrators would be appropriate: The UFTs actions appear motivated by a desire to force the DOE to agree to a modification of the April Letter Agreement which would reduce the total number of arbitrators assigned to hear 3020-a cases to a number well below that in the April Letter Agreement. September 19, 2013 Letter, Complaint, Ex. 2. 21. In fact, no modification is necessary, as the April Letter Agreement explicitly
provides that the parties should meet to discuss whether more or fewer arbitrators would be appropriate. Thus, the BOEs threats were based on nothing more than the UFT exercising its right under the April Letter Agreement to engage in such discussions. 22. The letter contained the following ultimatum:
We seek your confirmation by the close of business tomorrow, September 20, 2013, that the UFT will agree to a panel of 30 arbitrators, with selection to be completed in accordance with the terms of the contract by October 4, 2013. Should the UFT fail to agree to this, the DOE will pursue all legal remedies available to it including, but not limited to, invoking its right under the collective bargaining agreement to use the arbitrator selection process provided by the American Arbitration Association (AAA) procedures.
September 19, 2013 Letter, Complaint, Ex. 2. 23. The BOE provided no justification for either the September 20 date or the
October 4 date. Furthermore, the BOE provided no explanation for how, in light of the difficulties the parties had faced thus far in agreeing to arbitrator candidates and in getting those candidates to accept invitations, the UFT could possibly comply with this demand. 24. The following day, on September 20th, the UFT answered the BOE, but the BOE
offered no further response to that letter or the then two-weeks outstanding list of proposed arbitrators. See September 20, 2013 UFT letter, Complaint, Ex 3. Rather, on the next business day, September 23, 2013, the BOE wrote directly to the AAA attempting to unilaterally activate the contractual impasse resolution process provided in the CBA without the parties having actually reached an impasse as to the selection of arbitrators. See September 23, 2013 BOE Letter, Complaint, Ex. 4. (Indeed, contrary to the conclusion drawn by the BOE, with 19 arbitrators selected and 20 outstanding proposals, the parties could have, if the arbitrators accepted, achieved the BOEs goal of 30 arbitrators rather than engage in litigation). Similar to the BOEs September 19 letter, this letter provided no background as to the parties progress in selecting arbitrators and difficulties in obtaining acceptances from those they invited. Instead, it merely stated that the parties had been unable to agree thus far. 25. Again, the following day, the UFT responded by letter dated September 24, 2013.
See September 24, 2013 UFT Letter, Complaint, Ex. 5. The UFT informed the AAA that as the parties continue to discuss the selection of arbitrators, the provision cited by the BOE applicable to instances where the parties cannot agree had not been triggered. The UFT requested that the AAA refrain from becoming involved until it was actually appropriate for it to do so under the CBA. 7
26.
The BOE wrote again to the AAA on September 25, 2013, admitting that the
parties had been agreeing on arbitrators and inviting them to join their panel, but attempting to somehow blame the UFT for the low acceptance rate. See September 25, 2013 BOE Letter, Complaint, Ex. 6. Moreover, having identified an important reason for the inability to employ a full complement of arbitrators, the BOE failed to indicate how the parties would fare any better in an AAA process, where the arbitrators are similarly free to decline the invitation. Likewise, the BOE acknowledged that there were outstanding lists of arbitrators, but for the first time blamed the UFT for not being prepared to proceed. Yet, the BOE had itself not responded to the UFTs list. The letter went on to insist that the AAA commence the selection process over the UFTs objection. 27. Recognizing that it would be inappropriate to intervene without the support of
both parties, the AAA rejected the BOEs request to intervene on September 26, 2013. On the same day, the BOE commenced this action. The following day, the BOE requested a mandatory injunction seeking to compel UFT participation in the AAA process despite the BOE still not having responded to the UFTs September 6 list of proposed arbitrators. 28. Despite the fact that the BOE has, apparently abandoned negotiation in favor of
litigation, the UFT remains willing to continue discussions over potential arbitrators. Indeed, to make that clear, on October 15, 2013, the UFT issued a letter to Plaintiff confirming that it remains ready to provide the names of agreeable arbitrators from the BOEs list, and asking whether the BOE is prepared to do the same. See October 15, 2013 UFT Letter, annexed as Exhibit 10.

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SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK --------------------------------------------------------------------BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK, Plaintiff -againstUNITED FEDERATION OF TEACHERS, Defendant. ---------------------------------------------------------------------
x : : : : : Index No. 451734/2013 : (IAS Part 62 : Wright, J.) : : : : : x
DEFENDANT UNITED FEDERATION OF TEACHERS MOTION TO DISMISS OR, IN THE ALTERNATIVE, TO STAY LITIGATION PENDING ARBITRATION
TABLE OF CONTENTS Page TABLE OF AUTHORITIES .......................................................................................................... ii PRELIMINARY STATEMENT .....................................................................................................1 STATEMENT OF FACTS ..............................................................................................................3 ARGUMENT ...................................................................................................................................9 POINT I A. B. POINT II A. B. C. D. THE BOES BREACH OF CONTRACT CLAIM FAILS AS A MATTER OF LAW .....................................................................................9 The UFT Has Not Refused To Agree To Arbitrators ................................10 The UFT Has Not Refused To Submit To AAA Arbitration.....................12 ALTERNATIVELY, THIS ACTION SHOULDBE STAYED PENDING RELATED ARBITRATION...................................................14 The April Side Letter Is Covered By Article 22(C) of The Collective Bargaining Agreement..............................................................14 The Matters At Issue In The Instant Proceeding Are Within The Scope Of The Arbitration Agreement ........................................................19 The UFT Has Complied With The Agreement To Arbitrate .....................20 The Claims Included In The UFTs Grievance Are Not Time Barred .........................................................................................................20
CONCLUSION ..............................................................................................................................21
TABLE OF AUTHORITIES Page(s) CASES Application of Wells Fargo Armored Serv. Corp., 97 A.D.2d 75 (1st Dept 1983) ................................................................................................20 Cohoes City Sch. Dist. v. Cohoes Teachers Association, 40 N.Y.2d 774 (1976) ..............................................................................................................17 Consedine v. Portville Central Sch. Dist., 12 N.Y.3d 286 (2009) ........................................................................................................17, 18 Harris v Seward Park Hous. Corp., 79 A.D.3d 425 (1st Dept 2010) ................................................................................................9 IDT Corp. v Tyco Group, 13 N.Y.3d 209 (2009) ..............................................................................................................11 IDT Corp. v Tyco Group, S.A.R.L., 104 A.D.3d 170 (1st Dept 2012) ............................................................................................11 La Potin v Julius Lang Co., 30 A.D.2d 527 (1st Dept 1968) ................................................................................................9 Leon v Martinez, 84 N.Y.2d 83 (1994) ..................................................................................................................9 Matter of Depew Police Benevolent Assoc., Inc., 25 PERB 3009 (1992) ...........................................................................................................18 Morris v 702 E. Fifth St. HDFC, 46 A.D.3d 478 (1st Dept 2007) ................................................................................................9 New York State Housing Finance Agency Employees Assn v. New York State Housing Finance Agency, 183 A.D.2d 435 (1st Dept 1992) ............................................................................................20 Rockland County v. Primiano Const. Co., Inc., 51 N.Y.2d 1 (1980) ..................................................................................................................14 UFT v. BOE, Case No. 13 390 01257 91, AAA Opinion ..............................................................................15 UFT v. Department of Education, Case No. 13 390 1318-11, AAA Opinion ................................................................................15 ii
UFT v. Department of Education of the City of New York, Case No. 13-39000968-09, UFT Case No. C16976 ................................................................15 STATUTES CPLR 213(2) ..................................................................................................................................21 CPLR 3211(a)(7) .............................................................................................................................9 CPLR 7502(b) ..........................................................................................................................20, 21 CPLR 7502(c) ................................................................................................................................20 CPLR 7503.....................................................................................................................................14 CPLR 7503(a) ....................................................................................................................14, 20, 21 Educ. Law 3020 ...........................................................................................................3, 16, 17, 18 Educ. Law 3020-a ..............................................................................................................3, 16, 17 Educ. Law 3020-a(1)-(2) ...............................................................................................................3 Educ. Law 3020-a(3)(b)(i) .............................................................................................................3 Educ. Law 3020(4).........................................................................................................................3 OTHER AUTHORITIES Brief of Petition Board of Education of the City School District of The City of New York, Matter of Board of Educ., 46 PERB 4563 (2013) ..............................................................................................................17 Melissa Russo and Tom Burke, I-Team: Arbitrators for Teacher Misconduct Cases Are Quitting; available at: http://www.nbcnewyork.com/investigations/I-TeamArbitrators-For-Teacher-Misconduct-Cases-Are-Quitting-157386515.html. ...........................5
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PRELIMINARY STATEMENT By the instant Complaint, the Board of Education of the City School District of the City of New York (the BOE), seeks to circumvent the parties agreed-upon approach to selecting arbitrators to hear disciplinary matters brought against United Federation of Teachers members. To avoid discussions with the UFT, the purpose of which are to mutually select a panel of arbitrators who would be knowledgeable in both labor and school matters, the BOE has concocted a purported breach by the UFT and asks this Court to order the parties to utilize a third party (the American Arbitration Association) to assign arbitrators. This manufactured alleged failing of the teacher disciplinary process is designed by the BOE and the Chancellor (appointed by the Mayor) to generate political waves, rather than work with the UFT to ensure a properly functioning process. Indeed, the existence of such alleged breach is belied by the very facts contained in the Complaint and supporting affidavits. Accordingly, the Complaint should be dismissed or, at the least, stayed, pending arbitration. The BOE and UFT are parties to a letter agreement dated April 15, 2010 (the Side Letter), modifying the parties existing collective bargaining agreement (CBA) to increase the number of arbitrators (also sometimes referred to as hearing officers) designated to hear disciplinary charges preferred against teachers and other tenured pedagogues. The Side Letter requires that the parties agree on the arbitrators. The BOE takes the position that if there are not 39 agreed-to arbitrators who accept positions at the very start of the school year, the UFT necessarily breached the Side Letter. That is neither the fact nor the law. Agreements to agree, such as the one at issue here, require good faith efforts on both sides. Such agreements cannot measure breach purely by whether or not the goal has yet been realized, here a full complement of arbitrators. Rather, the inquiry is whether efforts are being made by each side to move towards consensus. This is particularly true where, as here, the process also depends upon the
consent of third parties, the arbitrators, who are free to decline invitations to join the panel. Contrary to the BOEs implication, the UFT has and continues to engage in the selection process in good faith. Indeed, in the couple months leading up to the BOEs commencement of this action, the parties were able to agree on 14 new arbitrators that were invited to join the panel. More recently, the parties have agreed on and invited an additional 17 arbitrators to join the panel and confirmed its commitment to continue that process. Thus, the UFT has not breached its agreement to agree. Likewise, the Side Letter does not mandate that the parties submit to the AAA process at the whim of any one party. To be clear, the UFT does not contest that AAA process is the ultimate mechanism for an inability to agree on a full panel complement (recognizing the parties have a right to discuss the appropriateness of that number). Rather, the UFT contests whether the current situation calls for that final result. Indeed, the UFT maintains that resort to AAA arbitration is, at this time, premature for the parties are engaged in discussions per the Side Letter and making progress towards the desired end. Accordingly, the facts alleged fail to support a claim for breach of contract. However, even if a breach were plead, this proceeding is not the proper forum in which the claim should be adjudicated. The matter at issuenamely, the enforcement of a provision of the collective bargaining agreement between the parties that has been modified by the Side Letterfall squarely within the arbitration provision of the governing collective bargaining agreement. In this regard, the UFT has filed a contractual grievance on the very facts at issue in this litigation. Because the arbitration provision of the collective bargaining agreement covers the matters at issue, and the grievance process has been commenced, this Court should issue an order staying the action pending the outcome of that grievance and arbitration process. Similar
grievance and arbitration provisions are quintessential components of both collective bargaining agreements and labor relations in general. The parties have well-established machinery in place on both sides that routinely addresses issues involving the interpretation of the CBA and related side letters through this process. The suggestion by the BOE at argument on October 17, 2013, that this one particular portion of the CBA should be excluded from the scope of the arbitration clause finds no support either in the language of the CBA, Side Letter or the cases cited, which simply require that waiver of a statutory right by the BOE be clear and explicit. There is no statutory right to not arbitrate the interpretation of the Side Letter. To the contrary, the statute explicitly makes virtually all procedural aspects of the disciplinary process including selection of hearing officers subject to collective bargaining agreements, and thus, necessarily, the arbitration clauses almost universally contained therein. STATEMENT OF FACTS Pursuant to State Education Law, tenured pedagogues have certain due process rights. See generally, Educ. Law 3020 and 3020-a. These rights include the preferring of charges and a hearing before an impartial hearing officer to determine whether there exists just cause for discipline. Educ. Law 3020-a(1)-(2). The State Education Department (SED), pursuant to statute, pays the hearing officers out of State appropriations. Educ. Law 3020-a(3)(b)(i). Also pursuant to Education Law 3020(4), the parties may collectively bargain and, within certain restrictions, agree to a modification of the statutory process. There is no dispute between the parties that selection of arbitrators, the number of arbitrators or the use of a standing panel of arbitrators fall within the scope of permitted modifications. That is precisely what the parties have accomplished. Article 21(G) of the CBA between the UFT and the BOE covering teachers (and corresponding portions of other CBAs), sets forth a modified Educ. Law 3020-a process. Among the modifications collectively bargained was the creation of a standing rotational panel 3
of arbitrators, agreed to by both parties, that would hear disciplinary charges. The 2007-2009 CBA provided for 20 arbitrators. The Side Letter In an effort to facilitate the disciplinary hearing process, the parties entered into the April Side Letter, which, inter alia, amended Article 21(G), increasing the number of arbitrators to 39. (See Side Letter, Exhibit 1 to the Complaint. A copy of the Complaint with exhibits is annexed to the accompanying Affirmation for Alan M. Klinger, dated October 29, 2013 (Klinger Aff.), as Exhibit 1.) The Agreement also provided a mediation program designed to resolve cases more expeditiously so they would not require hearings before arbitrators. (Id.) In the year following the agreement, both parties were able to agree to, and seat, 39 arbitrators. (Complaint 11.) Additionally, during that first year, the mediation program proved successful at settling a number of cases without a hearing. (Complaint, Ex. 3.) While setting 39 arbitrators as a target, the April Side Letter also recognized that adjustments may be necessary, explicitly providing Representatives of the UFT and DOE shall meet monthly, or less frequently if the UFT and DOE agree, for the first year of this Agreement and at least twice a year thereafter (i) to agree on the number of hearing officers hearing expedited cases, (ii) to discuss the appropriateness of the number of hearing officers, including the possibility of agreeing to increase or decrease the number of hearing officers on either the incompetence or misconduct panels on either a temporary or permanent basis, and (iii) to discuss the appropriateness of the number of probable cause arbitrators, including the possibility of agreeing to increase or decrease the number of probable cause arbitrators. If the DOE believes there is a need for more hearing officers to comply with the timeliness set forth in this Agreement, it shall request that the UFT agree to increase the number of hearing officers and the UFT shall not unreasonably deny an increase. (Complaint, Ex. 1 (emphasis added).) This provision allows the parties to discuss further changes to this number of arbitrators going forward.
After the first year of the Side Letter, the process for selecting arbitrators was complicated by external factors that the BOE attempts to down-play in an effort to blame the UFT. SED, responsible for providing compensation to the arbitrators, until recently was failing to pay at all or on time. Indeed, in April 2012, a group of 33 arbitrators sued SED for $5.1 million in back pay, and in June 2012 10 of the 24 arbitrators empanelled by the parties for the 2011-12 school year quit due to the SEDs payment policies and delinquencies.1 In 2012-2013, only five of the 14 arbitrators invited to join the panel accepted the offer and this year a total of 14 new arbitrators have been invited but only seven have accepted. (Complaint, Ex. 6.) Thus, while the parties were able to seat 39 arbitrators the first year, they have been unable to do so in the subsequent years despite continuous efforts to propose candidates, agree and send invitations. (Complaint, 18-19.) Needless to say, panel positions became considerably less attractive to potential arbitrators when it became clear compensation would be lacking, though, more recently, this issue has been rectified by SED. Multiplying the burden, the BOE declined to continue a successful mediation program that reduced the number of cases. (Complaint, Ex. 3.) Arbitrator Selection For The 2013-14 School Year Recognizing the difficulties in identifying mutually agreeable, qualified arbitrators who would be willing to accept a role on the panel, in July 2013, the UFT and the BOE began the process of choosing arbitrators. (Complaint, 20.) From July through early September, the BOE and the UFT held discussions and exchanged multiple lists of arbitrators. (Complaint, Ex. 3.) In just those two months, the parties were able to agree on 14 new arbitrators to invite to the panel.2 (Complaint, Exs. 3 and 6.) Of those 14, seven accepted the invitation, together with
Melissa Russo and Tom Burke, I-Team: Arbitrators for Teacher Misconduct Cases Are Quitting; available at: http://www.nbcnewyork.com/investigations/I-Team-Arbitrators-For-Teacher-Misconduct-Cases-Are-Quitting157386515.html. 2 This belies any contention that the UFT has moved only after the filing of this suit.
those invited back from the prior year, bringing the total number up to 19. (Complaint 22.)3 On September 6, 2013, each party exchanged lists of 10 names, producing 20 proposed candidates. (Complaint, Ex. 5.) Subsequent to the filing of the Complaint, and as discussed on a conference call with the Court on Thursday, October 24, 2013, the parties have invited another seven arbitrators from the September 6, 2013 lists and on October 22, 2013 exchanged new lists of 10 names each. On October 28, 2013, the parties agreed to invite another 10 arbitrators. Despite its own acknowledgement in the Complaint that lists of proposed arbitrators had been exchanged less than two weeks beforehand, the BOE on September 19, 2013, sent a letter accusing the UFT of unspecified delay and demanding that the UFT agree by the next day to select 30 arbitrators within the subsequent 14 days. (Complaint, Ex. 2.) Although many months of progress had been made by the parties, the September 19th letter threatened immediate legal action against the UFT if it did not consent within the unreasonable and arbitrary one-day timeframe. This letter inexplicably held the UFT solely responsible for there not being more arbitrators who accepted positions. The BOE made no reference to the fact that many of the arbitrators that had been proposed so far had declined the invitation. Nor did the letter address that the UFT had at that time an outstanding list of proposed arbitrators awaiting the BOEs response. (Id.) The September 19th letter also made no mention of the UFTs proposal to continue the successful mediation program that the BOE had refused to continue. Instead, the BOE claimed that the difficulty in selecting arbitrators was entirely due to the UFT attempting to negotiate with the BOE for a lesser number of arbitrators: The UFTs actions appear motivated by a desire to force the DOE to agree to a modification of the April Letter Agreement which would reduce the total number
Although the Complaint indicates that as of September 19, 2013, there were only 18 arbitrators selected, the parties have agreed before this Court that there are currently 19 arbitrators empaneled for the 2013-14 school year. (Klinger Aff., 3.)
of arbitrators assigned to hear 3020-a cases to a number well below that in the April Letter Agreement. (Complaint, Ex. 2.) Contrary to the BOEs assertions, however, no modification is necessary, because the Side Letter explicitly provides that the parties should meet to discuss whether more or fewer arbitrators would be appropriate. (Complaint, Ex. 1.) Thus, the BOEs threats were based on nothing more than the UFT exercising its right under the Side Letter to engage in such discussions. The September 19th letter contained the following ultimatum: We seek your confirmation by the close of business tomorrow, September 20, 2013, that the UFT will agree to a panel of 30 arbitrators, with selection to be completed in accordance with the terms of the contract by October 4, 2013. Should the UFT fail to agree to this, the DOE will pursue all legal remedies available to it including, but not limited to, invoking its right under the collective bargaining agreement to use the arbitrator selection process provided by the American Arbitration Association (AAA) procedures. (Complaint, Ex 2.) The BOE provided no justification for either the September 20 date or the October 4 date. Furthermore, the BOE provided no explanation for how, in light of fallout from SEDs prior failure to pay arbitrators on time, the UFT could possibly comply with this demand in the time-frame provided. While the payment issue has now been resolved, it takes time some for the impact to be realized. The following day, on September 20, 2013, the UFT answered the BOE, but the BOE offered no response to that response or on the now two-week outstanding list of proposed arbitrators. (See generally, Complaint.) Instead, on the next business day, September 23, 2013, the BOE wrote directly to the AAA attempting unilaterally to activate the contractual impasse resolution process provided in the CBA without the parties having actually reached an impasse as to the selection of arbitrators. (Complaint, Ex. 4.) Similar to the BOEs September 19, 2013 7
letter, this letter provided no background as to the parties progress in selecting arbitrators. Instead, it merely stated that the parties had been unable to agree thus far. (Id.) Again, the following day, the UFT responded by letter dated September 24, 2013. (Complaint, Ex. 5.) The UFT informed the AAA that since the parties were continuing to negotiate the selection of arbitrators, the provision cited by the BOEapplicable to instances where the parties cannot agreehad not been triggered. The UFT requested that the AAA refrain from becoming involved until appropriate for it to do so under the CBA. (Id.) The BOE wrote again to the AAA on September 25, 2013, admitting that the parties have been agreeing on arbitrators and inviting them to join their panel, but attempting to somehow blame the UFT for the low acceptance rate. (Complaint, Ex. 6.) Moreover, having identified an important reason for the inability to employ a full complement of arbitrators, the BOE failed to indicate how that issue would be ameliorated. Indeed, the parties have been proposing and inviting arbitrators that are on the AAA list as well. Likewise, the BOE acknowledged, for the first time in this entire letter exchange, that there were outstanding lists of arbitrators, but blamed the UFT for not being prepared to proceed. (Id.) The letter went on to insist that the AAA commence the selection process over the UFTs objection. (Id.) Determining that it would be inappropriate to take action at this juncture, the AAA rejected the BOEs request to intervene on September 26, 2013. (Complaint, 42.) On the same day, the BOE commenced this action. The following day, the BOE requested a mandatory injunction seeking to compel UFT participation in the AAA process. In response to the BOEs premature invocation of AAA arbitration, the UFT filed a grievance on October 4, 2013. (Klinger Aff., Ex. 3.) The UFT alleged that the BOE had violated the CBA in two ways. First, the BOE had asked for AAA arbitration before the parties
reached a point where they could not agree to future arbitrators in violation of Article 21(G)(2) of the CBA.4 Second, the BOE had refused to discuss any change in the number of arbitrators on the panel, in violation of the Side Letter. That grievance is currently pending before the Chancellor who, pursuant to the CBA, is required to issue a decision on or before Monday, November 4. (CBA, Article 22(B)(1)(b), Klinger Aff., Ex. 4.) Presumably, the Chancellor will not agree with the UFT that he and the BOE have violated the CBA by their actions, in which instance the UFT intends to pursue arbitration pursuant to Article 22(C) of the CBA. ARGUMENT POINT I THE BOES BREACH OF CONTRACT CLAIM FAILS AS A MATTER OF LAW When considering a motion to dismiss under CPLR 3211(a)(7), a court is obligated to accept all alleged facts as true, and give the non-moving party the benefit of all possible inferences. Leon v Martinez, 84 N.Y.2d 83, 87 (1994). However, the court is not obligated to consider conclusory allegations. Nor does the court need to consider any allegations contradicted by documentary evidence attached to the complaint itself. See La Potin v Julius Lang Co., 30 A.D.2d 527, 528 (1st Dept 1968). To sufficiently plead a cause of action for breach of contract, a plaintiff must allege (1) a valid agreement between the plaintiff and defendant, (2) performance by the plaintiff, (3) breach by the defendant, and (4) damages. See Harris v Seward Park Hous. Corp., 79 A.D.3d 425, 426 (1st Dept 2010); Morris v 702 E. Fifth St. HDFC, 46 A.D.3d 478, 479 (1st Dept 2007). Here, the breach of contract falls short of these pleading standards. Neither party disputes that the CBA or the Side Letter are binding on the parties. And, without conceding the merits of such allegations, the BOEs complaint does allege the BOEs performance and damages. The
4
Copies of the relevant provisions of the CBA are annexed to the Klinger Aff., Ex. 4.
complaint, however, does not allege any actions by the UFT that could be considered a breach of the agreement. The BOEs claim that the UFT has breached the CBA is based on two allegations. First, the BOE alleges that the April Side Letter was breached by the UFTs failure to agree to a full panel of arbitrators. (Complaint, 49.) Second, the BOE alleges that the UFT breached by refusing to participate in the AAA process. (Complaint, 50.) These general allegations, however, are contradicted by factual allegations made earlier in the complaint. Looking at the specific facts alleged by the BOE, it is clear that the Complaint does not allege any conduct by the UFT that has breached the CBA or the Side Letter. A. The UFT Has Not Refused To Agree To Arbitrators The BOE first claims that the UFT has breached the CBA and the Side Letter by failing to agree to a full panel of arbitrators. (Complaint 49.) This conclusion seems to be based on two allegations: (i) that the parties have not yet agreed to a full complement of arbitrators, and (ii) that the UFT did not respond to the BOEs ultimatum contained in the BOEs September 19, 2013 letter to the UFT. (Complaint, 18; Complaint, 31-32.) Neither allegation can sustain a claim for breach of contract. The applicable section of the CBA explicitly states that both sides need agree to all arbitrators: As discussed and agreed upon, all parties would be served better by the implementation of a permanent arbitration panel. The panel members must be agreeable to both sides, however, if the parties cannot agree to a full complement of 20 panel members, additional impartial arbitrators shall be selected by the parties in accordance with the American Arbitration Association (AAA) procedures (strike and rank method) from list(s) provided by the AAA until the desired number (20) is reached to establish such permanent panel. (CBA Article 21(G)(2) (emphasis added), Klinger Aff., Ex. 4.) This does not mean that each side is forced to agree to empanel every arbitrator proposed by the other side. Indeed, the 10
purpose of a mutually selected standing panel is to identify people with relevant experience in labor and educational issues, not merely a set of warm bodies. Rather, the agreement requires only that each side must negotiate in good faith in attempting to agree on arbitrators. The complaint provides no factual allegations that the UFT has done otherwise. IDT Corp. v Tyco Group, 13 N.Y.3d 209 (2009), is instructive, finding that simple failure to agree so far, without more, cannot be the basis of an action for breach of contract. There, pursuant to a settlement agreement, the parties had agreed to negotiate a contract regarding the right of use of fiber optic capacity. The parties negotiated on and off for three years before the plaintiff brought an action for breach of contract based on the defendants failure to agree. The defendant moved to dismiss the complaint. In affirming the dismissal, the Court of Appeals stated, inter alia, that the alleged failure to agree on terms within three years was not sufficient to state a claim for a breach of the agreement. Id. at 214. The Court affirmed the dismissal of the plaintiffs complaint. Id. at 215. The plaintiff was only allowed to proceed with its action once it had amended its complaint to include the allegation that the defendant had told the plaintiff that the defendant was disavowing the agreement and refusing to engage in further negotiations. IDT Corp. v Tyco Group, S.A.R.L., 104 A.D.3d 170, 176 (1st Dept 2012). That is not the situation here. The BOE cannot succeed in its action for breach of contract for it does not, and cannot, allege that the parties have reached an impasse. The Complaint does not allege that the UFT has stated that it has refused to consider any additional arbitrators. Nor does the Complaint allege that the UFT has refused to engage in discussions regarding the BOEs proposed arbitrators. On the contrary, the evidence is that such discussions are currently ongoing and, in fact, since the commencement of this action the parties have agreed to invite another 17 arbitrators to join the
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panel (see pg. 6-7, supra). As such, the complaint cannot sustain a cause of action for breach of contract based on the UFTs supposed refusal to agree to arbitrators. Neither can the second allegation, the UFTs failure to accept the BOEs ultimatum sent on September 19, 2013, form the basis for a cause of action for breach of contract. As noted above, the October 4 deadline set by the BOE has no basis in the CBA or in the Side Letter. Neither agreement provides any deadlines for selection of arbitrators, nor does it give either party the power to set deadlines. Furthermore, while the UFT did not directly reference the BOEs ultimatum in its response letter on September 20, 2013, this cannot plausibly be read as a refusal to agree to arbitrators or a refusal to continue discussion. In both the September 20th response letter, and in the September 24, 2013 letter to the AAA, the UFT makes clear that it is ready and willing to continue exchanging lists and discussing arbitrators. (Complaint, Ex. 3 (We continue to work with your staff to find mutually agreeable arbitrators and even exchanged proposed lists as recently as September 6th); Complaint, Ex. 5 (At this time, the parties have not reached the point where we cannot agree on potential Panel members. there is no reason to believe that additional mutually agreeable arbitrators cannot be selected from [already proposed], and/or subsequent lists).) Thus the BOEs unilateral ultimatum cannot manufacture a breach of contract. B. The UFT Has Not Refused to Submit to AAA Arbitration It is further alleged in the Complaint that the UFT has breached the Side Letter by refusing to participate in AAA arbitration. (Complaint 50.) As a threshold matter, the AAA arbitration process is contained in the CBA, not the Side Letter. Moreover, the AAA arbitration process only becomes appropriate if the parties cannot agree to a full complement of [39] panel members... (CBA Article 21(G)(2) (as modified by the Side Letter), Klinger Aff., Ex. 4.) But, as stated above, the BOE has not alleged that the parties cannot agree, only that they have not 12
yet done so. (Complaint 18, 43.) Thus AAA arbitration is inappropriate at this time, and cannot be a basis for breach of contract. Even if AAA arbitration is appropriate, the UFT has never refused to participate, and the Complaint provides no factual allegations to the contrary. In support of its claim that the UFT has refused to participate in AAA arbitration, the BOE offers only the UFTs letter to the AAA on September 24, 2013. (Complaint, 34-37, Ex. 5.) However, no such refusal is contained within this letter. Instead, the letter merely sets out the UFTs position that AAA arbitration is not appropriate at this point: At this time, the United Federation of Teachers (UFT) respectfully submits that there is no need for AAA involvement in the selection process and that Ms. Jackson-Chases request is in violation of the applicable collective bargaining agreements. (Complaint, Ex. 5.) The letter further states that the CBA requires AAA arbitration only if the parties cannot agree on arbitrators. It continues with the UFTs belief that, since discussions are ongoing, it is not the case that the parties cannot agree. The letter includes some additional factual context to the BOEs letter on September 23, 2013, and then concludes as follows: Accordingly, on behalf of the UFT and our colleagues in NYSUT, I respectfully request that the AAA refrain from becoming involved in the contractual selection process unless and until such time as it becomes appropriate in accordance with the terms of the applicable collective bargaining agreements. Id. The BOE does not allege any other statement from the UFT regarding the AAA selection process. Nor does it provide any communication from the AAA asking the UFT to participate in its selection process, as there was none. As a result, the BOE cannot, and does not, point to any instance of the UFT actually refusing to participate in AAA process.
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POINT II ALTERNATIVELY, THIS ACTION SHOULD BE STAYED PENDING RELATED ARBITRATION As raised in prior argument before the Court, the UFT believes that, if a breach is to be considered, this is the wrong forum and the Court should stay the action pending arbitration of the related grievance pursuant to CPLR 7503(a). CPLR 7503(a) states: Where there is no substantial question whether a valid agreement was made or complied with, and the claim sought to be arbitrated is not barred by limitation under subdivision (b) of section 7502, the court shall direct the parties to arbitrate. CPLR 7503. An order to compel arbitration should be granted if (1) there is a valid agreement, (2) the issue to be arbitrated falls within the scope of this agreement, (3) the parties have complied with any preconditions to arbitration set forth in the agreement, and (4) the claim is not time barred. See Rockland County v. Primiano Const. Co., Inc., 51 N.Y.2d 1, 6-8 (1980). CPLR 7503 goes on to state: If an issue claimed to be arbitrable is involved in an action pending in a court having jurisdiction to hear a motion to compel arbitration, the application shall be made by motion in that action. If the application is granted, the order shall operate to stay a pending or subsequent action, or so much of it as is referable to arbitration. Id. Here, the UFT has initiated a grievance that will result in arbitration pursuant to a valid arbitration agreement. The claim is within the scope of the agreement, and it is not time-barred. Furthermore, the issues involved in the arbitration are the same as the issues involved in the instant action. Therefore, the Court should grant motion to compel arbitration and stay litigation. A. The Side Letter Is Covered By Article 22(C) Of The Collective Bargaining Agreement Article 22(C) of the CBA provides for the arbitration of disputes under the agreement. It expressly states: 14
A grievance dispute which was not resolved at the level of the Chancellor under the grievance procedure may be submitted by the Union to an arbitrator for decision if it involves the application or interpretation of this Agreement. Furthermore, the BOE concedes that the Side Letter modifies, and thus is part of, the CBA. See Affirmation of Maxwell D. Leighton in Support of Plaintiffs Application for a Preliminary Injunction (Leighton Aff.), 36-37, 46-47 (Klinger Aff., Ex. 2.) There is no substantial question that the above arbitration agreement is valid as the parties have arbitrated under this clause untold times, concerning the interpretations of CBA language, as well as side letters and other BOE policies covered by the CBAs grievance and arbitration provision. See e.g., UFT v. Department of Education of the City of New York, Case No. 13-39000968-09, UFT Case No. C16976, AAA Consent Award (S. Buchheit, June 12, 2011) (resolving arbitration held pursuant to the CBA regarding the BOEs unilateral changes to the definition of corporal punishment contained in a Chancellors Regulation that violated a letter agreement between the parties) (Klinger Aff., Ex. 5); UFT v. Department of Education, Case No. 13 390 1318-11, AAA Opinion and Award (C. Wittenberg, Dec. 9, 2011) (finding in an arbitration held pursuant to the CBA that the BOE violated the policy contained in Department of Education Special Circular 8 regarding para-professionals clocking in and out) (Klinger Aff., Ex. 6); UFT v. BOE, Case No. 13 390 01257 91, AAA Opinion and Award (R. Berger, Nov. 18, 1991) (finding in an arbitration held pursuant to the CBA that the BOE violated, inter alia, Article 6B of the CBA, as modified by a separate letter agreement between the parties) (Klinger Aff., Ex. 7.) Accordingly, the UFT and the BOE are parties to an agreement to arbitrate any alleged violation of the CBA or the Side Letter. The BOE suggested to this Court during oral argument on its motion for a preliminary injunction that the parties process for selecting arbitrators, including the AAA impasse process, is somehow statutorily exempted from the broad grievance and arbitration provision contained in 15
the CBA. (Klinger Aff., 2.) This argument finds no support in either the CBA or the statute. Indeed, not only has the BOE failed to cite to any meaningful support for this position, the BOE argued the opposite in its application for a preliminary injunction. The BOE asserts not only that the AAA process provided for in the CBA applies to the Side Letterindeed, that is the entire basis of their actionbut also that the AAA process stands in the stead of the statutory process. (Leighton Aff., 48.) The BOE then proceeds to cite a couple of cases for the proposition that where the BOE waives a statutory right, such waiver must be clear and explicit. (Leighton Aff., 48-49.) While the argument, as written, seems to claim that the BOE has not waived its right to the AAA impasse process, it simultaneously admits that the statutory arbitrator selection and impasse process is different from and has been replaced by the process contained in Article 21G and the Side Letter. (Leighton Aff., 47.) Thus, setting aside whether the UFT agrees with this waiver argument, the fact is that the CBA does contain an impasse resolution process utilizing the AAA, albeit a different one than provided in the statute. Indeed, it is hard to see the point of the BOEs argument as the BOE has brought a breach of contract claim seeking to enforce the CBA and Side Letter, not the statute. At argument, the BOE attempted to transform this argument regarding the availability of an impasse resolution process into an argument that such process cannot fall within the contractual grievance and arbitration mechanism. It is hard to discern what statutory right the BOE believes is being waived by operation of the grievance process. Proceeding to contractual arbitration over whether the BOE properly invoked the AAA process does not constitute a waiver of that process. Moreover, Education Law 3020 explicitly provides that the procedures set forth in Educ. Law 3020-a may be modified by agreements negotiated between [the parties] and that the
16
parties have negotiated such modifications. Indeed, the BOE acknowledges as much. (Leighton Aff., 49-50.) By explicitly authorizing that labor and management may modify certain Education Law 3020-a procedures by collective bargaining agreement, the Legislature implicitly recognized that the enforcement of such modifications will be subject to contractual enforcement mechanisms contained in those CBAs typically, a grievance and arbitration process. That is precisely what occurred here. There is no indication in statute or in the CBA that this one provision for the resolution of impasse in arbitrator selection should be carved out.5 The BOEs cases are not to the contrary. The BOEs reliance on Cohoes City Sch. Dist. v. Cohoes Teachers Association, 40 N.Y.2d 774, 778 (1976), is misplaced in that the Court of Appeals there found that a board of education could not relinquish through the collective bargaining process its authority and responsibility to make tenure decisions. 40 N.Y.2d at 778. As set forth above, and as the BOE has acknowledged, that is not the situation here where the ability to modify the arbitrator selection process has been specifically authorized by statute. Education Law 3020 expressly provides for collectively bargained modifications to the procedures set forth in Education Law 3020-a. Consedine v. Portville Central Sch. Dist., 12 N.Y.3d 286 (2009), is equally inapposite. There, the Court of Appeals found that, although the board could waive its statutory right to
Although the BOE here argues that certain components of Education Law 3020-a may not be waived or made subject to contractual grievance and arbitration processes specifically, the selection of arbitrators in other proceedings involving the same parties, the BOE has argued that all of Section 3020-a may be altered through collective bargaining. In its briefing to the Public Employment Relations Board (PERB) in connection with ongoing contractual impasse resolution proceedings between the parties, the BOE argued that [s]ection 3020 provides for the possibility of negotiated alternative disciplinary procedures and that the section expressly provides that the parties may agree to alternative procedural mechanisms through collective bargaining from those specified in Section 3020-a. Brief of Petitioner Board of Education of the City School District of The City of New York, Matter of Board of Educ., 46 PERB 4563 (2013), excerpted as Ex. 9 to the Klinger Aff. The BOE did not assert or acknowledge any limitation to the scope of such bargaining, let alone the carve-out from the grievance and arbitration process it posits here.
17
discharge a probationary employee at any time during the three-year probationary period, it had not in that case expressly done so. Id. at 293-94. Not only has the BOE expressly agreed to modification of the 3020-a process and inclusion of that modification in the CBA containing the grievance and arbitration provision, but there is no statutory right pertaining to such grievances. The statutory right is to a certain arbitrator selection process. By the BOEs explicit admission, it agreed to modify that process. (Leighton Aff., 47.) In so agreeing, it made the modification part of a CBA which contains an arbitration provision. The BOE could have, but did not, bargain for language excluding Article 21G from the grievance process. There is no basis in Consedine, statute or contract to exclude Article 21G or any discrete portion thereof from the arbitration provision. That is consistent with the statutory authorization found in Education Law 3020 for the parties to modify the process by collective bargaining agreement. Indeed, the BOE here seeks to enforce the contractual provisions, not any statutory right. The BOE asks this Court to order the parties abide by the terms of the CBA with regard to the Side Letter and at the same time argues that subjecting the negotiated modifications to the grievance and arbitration procedure contained in the same agreement would somehow violate public policy. They cannot pick and choose which parts of an agreement they wish to enforce and which to unilaterally avoid. The Legislature clearly intended that the BOE and the UFT could modify the statutory requirements at issue here through collective bargaining. Once collectively bargained, such modifications are not distinct from the remainder of the CBA, but become part and parcel of the agreement between the parties, including the applicable grievance and arbitration procedure, which are among the core of a bargaining agents statutory responsibilities and their availability is one of the fundamental reasons employees choose to be represented by a union. Matter of Depew Police Benevolent Assoc., Inc., 25 PERB 3009 (1992) (Klinger Aff., Ex. 8.)
18
B.
The Matters At Issue In The Instant Proceeding Are Within The Scope Of The Arbitration Agreement The UFTs grievance specifies two issues: First, the UFT alleges that the BOE has
violated the CBA by prematurely invoking the AAA arbitration process, contrary to Article 21(G)(2). Second, the UFT alleges that the BOE has violated the April Side Letter by refusing to discuss the appropriate number of arbitrators needed on the panel. (Klinger Aff., Ex. 3.) Both claims clearly fall within the scope of the arbitration agreement as they both allege violations of the CBA on the part of the BOE. The first claim underlying the grievance directly addresses the allegation in paragraph 50 of the Complaint, where the BOE alleges that the UFT violated the CBA by refusing to participate in AAA arbitration. When the grievance is put in front of the arbitrator, however, the arbitrator will necessarily need to determine whether the BOEs invocation of the AAA process was appropriate in order to fully arbitrate the grievance. If it is determined that the BOE improperly asked for AAA intervention, then the UFTs actions with regard to the AAA cannot form the basis for a breach of contract claim. Since the arbitrators determination of the first claim in the grievance would determine the viability of the BOEs cause of action, that issue is clearly involved in the instant action. The second claim underlying the grievance will also require the arbitrator to discuss matters that are involved in the instant action. In order for the arbitrator to determine whether the BOE has breached the agreement by failing to discuss in good faith number of arbitrators needed, the arbitrator will need to examine the conduct of both parties during those discussions and determine whether or not they have been living up to their contractual obligations. The arbitrators determination on this issue will directly affect the viability of the BOEs allegation
19
that the UFT has improperly delayed the selection of arbitrators. Thus, the issues raised by the second claim in the grievance are clearly involved in the instant action. Because the matters at issue here plainly fall within the arbitration provision of the CBA and the arbitration of the grievance would directly affect the viability of the BOEs cause of action, this action should be stayed pending that arbitration. If, at the conclusion of the arbitration, there are still issues remaining, this action can be resumed at that time. C. The UFT Has Complied With The Agreement To Arbitrate When determining whether an agreement to arbitrate has been complied with, courts look to see whether there are any preconditions set up by the parties before they may access the arbitral forum. In the labor context, however, such questions, are matters for the arbitrator to decide. Application of Wells Fargo Armored Serv. Corp., 97 A.D.2d 75, 77 (1st Dept 1983) (citing Wiley & Sons v. Livingston, 376 U.S. 543 (1964)) ([in] arbitrations arising out of labormanagement agreementscompliance with the grievance steps has been determined to be a question of procedural arbitrability to be determined by the arbitrator). It is generally recognized in the labor context, that the filing of a grievance, as the UFT has done here, is a necessary prelude to arbitration and all that is required to trigger protections pertaining to arbitration. See e.g., New York State Housing Finance Agency Employees Assn v. New York State Housing Finance Agency, 183 A.D.2d 435 (1st Dept 1992) (court rejected as at odds with the plain purpose of CPLR 7502(c) respondents argument that no injunction could be sought until the grievance procedure had been exhausted and arbitration commenced). D. The Claims Included In The UFTs Grievance Are Not Time Barred For the purpose of determining whether a complaint is time-barred, CPLR 7503(a) refers to CPLR 7502(b), which states that an arbitrable claim is time-barred if it would have been barred by the statute of limitations if asserted in court. Here, the UFTs grievance alleges breach 20
of contract, for which there is a six year limitations period. CPLR 213(2). The first allegation, improper invocation of AAA arbitration, occurred on September 24, 2013. The second allegation, refusal to negotiate as to number of arbitrators, does not have a specific date of occurrence, but could not have occurred before the April Side Letter was signed on April 15, 2010. Thus, both claims fall within the statute of limitations, and neither is time-barred by CPLR 7502(b). The claims sought to be arbitrated plainly meet the conditions set out under CPLR 7503(a). As a result, the order to compel arbitration and stay the instant action should be granted. CONCLUSION For the reasons set forth herein, the UFT respectfully requests that this Court issue an order dismissing this action in its entirety and for such other and further relief as the Court deems just and proper or, in the alternative, stay the instant action pending arbitration of the underlying issues and issue an order compelling the BOE to arbitration pursuant to the Collective Bargaining Agreement between the parties. Dated: New York, New York October 29, 2013 Respectfully submitted, STROOCK & STROOCK & LAVAN LLP By: /s/ Alan M. Klinger Alan M. Klinger, Esq. Dina Kolker, Esq. Beth A. Norton, Esq. 180 Maiden Lane New York, New York 10038 (212) 806-5400 Counsel for Defendant UFT
Of Counsel: R. Mac Stone
21

NYSCEF DOC. NO. 42
Index No. 451734113
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK
BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK, Plaintiff,
-against-
LINITED FEDERATION OF TEACHERS,

Defendant.
PLAINTIFF'S MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANT'S MOTION TO DISMISS OR, IN THE ALTERNATIVE, TO STAY LITIGATION PENDING ARBITRATION
MICHAEL A. CARDOZO
Corporation Counsel of the City of New York Attorney for Plaintiff 100 Church Street, Room 2-143 New York, N.Y. 10007-2601
Of Counsel: Tel:
Maxwell D. Leighton (212) 3s6-2472
Our No. 2013-045987
SUPREME COURT OF THE STATE OF NEW YORK COI-INTY OF NEW YO
Plaintift
-againstIndex No. 451734113 LA.S. Part 62 (V/right, J.)
I-INITED FEDERATION OF TEACHERS,

Defendant.
PLAINTIFF'S MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANT'S MOTION TO DISMISS OR, IN THE ALTERNATIVE,
TO STAY LITIGATION
ARBITRA
PENDING
Plaintiff, the Board of Education of the City School District of the City of New York ("DOE"), has commenced this breach of contract action seeking a determination that the
defendant, the United Federation
of
Teachers ("UFT"), has violated
a validly
enforceable
agreement, a letter agreement dated
April 15, 2070, between the DOE and the UFT ("April
Letter Agreement"). That agreement increased -- to 39 -- the number of arbitrators (also referred
to as "hearing officers") who sit on a rotational panel, from which arbitrators are drawn to
preside over disciplinary hearings held as a result
of disciplinary
charges brought by DOE
against nonsupervisory pedagogical personnel pursuant to New York Education Law Section
3020-a. Furthermore, under the parties' collective bargaining agreement ("CBA"), any inability
to agree to a full complement of 39 arbitrators shall trigger an alternative arbitrator selection

process held under the auspices of the American Arbitration Association
("AAA"). As set forth

has
in plaintiffs complaint, and in its pending motion seeking injunctive relief, the UFT
continually failed to agree to a full panel of 39 arbitrators as mandated under the agreement and,
further, upon DOE's invocation of the AAA selection process, has refused to participate in that
alternative procedure. The UFT's failure has been typified by repeated delay, over the years, and
throughout the selection process, including, and immediately up to, the parties' appearance
before this Court, on October 17,2013, on
plaintifls motion for injunctive relief.
The defendant has now moved to dismiss this action or, in the alternative, to stay
litigation pending arbitration. This tactic is yet another attempt to delay the selection process, by jettisoning this Court's oversight, and landing the dispute in a slow slide of arbitration, Indeed,
the UFT admits in its Octob er 29rh moving papers, candidly, that since October lTth -- the date
of
the Court's intervention -- the selection process has markedly accelerated, with the
parties
agreeing to invite seventeen arbitrators, nearly doubling, in twelve days, the number previously agreed to, at
a glacial pace, in the three-and-a-half months that followed the conclusion of
the
last school year. This sheer fact bespeaks the breach better than anything else. While the UFT
seeks
to elide its obligation and excuse its breach, relying on a case concerning the condition
within a contract, it ignores the fundamental principle that, under New
precedents that can reside
York law, all contracts imply a covenant of good faith and fair dealing in the course of
performance.
It is the UFT's
conduct of continual delay -- until the Court interceded -- that
impelled the DOE to commence this action, and seek immediate relief from the Court.
As the BOE has aheady emphasized to this Court, the April Letter Agreement,
and the requirement that the rotational panel have 39 arbitrators, is not some aspirational goal,
but rather is a practical need, given the disciplinary case backlog, which is excessive
damaging to the interests of the DOE and, presumably, of the
reasons set forth herein, defendant's motion should be denied.
and
UFT, Accordingly,
and
for the
STATEMENT OF F'ACTS The Court is respectfully refened to the complaint filed in this action, fot
statement of material and pertinent facts.
a
ARGUMENT
POINT
SHO
Defendant does not dispute that the complaint sufficiently sets forth (1) a valid agreement,
DEFENDANT'S MOTION
TO
DISMISS
(2) the DOE's
performance, and (3) the DOE's damages, but asserts that the
complaint does not allege actions by the UFT that could be considered a breach of any
agreement. To the contrary, it does.
A.
April Letter Agreement

Under the April Letter Agreement, the DOE and the UFT agreed that the number
of arbitrators on the rotational panel would be increased to a total of 39.

Agreement, Ex. "1 i'
See
April Letter
which
at 6.1 However, other than for the 2010-2011 school year,
immediately followed the April Letter Agreement, the rotational panel has not, to date, had a full complement of 39 arbitrators, See Complaint,
atn'39."
The failure to have a full complement
of arbitrators has caused an enorrnous backlog of disciplinary cases and impeded the DOE's
ability to comply with the procedural and timing mandates for adjudicating such cases under
Education Law $ 302-a, Id.
Rather than proceeding
expeditiously as it has now, only upon the
commencement of this lawsuit -- the UFT delayed the selection process, The parties exchanged
Unless otherwise indicated, all referenced exhibits are annexed to the complaint
arbitrator lists in early-September, but the UFT did not respond as to when it would be ready to
move forward with the selection process until after this action was filed.2
"Under New York law, all contracts imply a covenant of good faith and fair dealing in the course of
performance
encompass[ing] any promises which a reasonable
person in the position of the promise would be justified in understanding were included." Mt' Qinoi LI
'l'hp'IOOQ ^levqn
o#a
nntrifr 'l-nrcf
2013 N,Y Sip Op, 5667 (1st Dep't
2013). Defendant has violated that covenant, as pleaded in the complaint, by delaying -- without
warrant -- the selection process. The UFT attempts to excuse this conduct, claiming no breach,
in various ways, none of which should be accepted by the Court.
First, the UFT frames the contractual obligations under the April Letter
Agreement under the requirement of mutual agreement of all arbitrators. Presented thus, the
UFT contends that it cannot have breached the April Letter Agreement, as the contract merely
requires agreement, and that, as a condition precedent to obtaining 39 arbitrators, the failure to
agree cannot constitute a
breach. To that end, defendant relies solely on IDT Corp. v. Tyco
Group, 13 N.Y.3d 209 (2009), which held that, in the context of a settlement agreement, the parties' failure to agree on terms, while negotiating a service contract, over the course of three years, was insufficient
to
state
a claim of a
breached settlement agreement. Under this

a
formulation, the UFT posits that attaining the mandated 39 arbitrators is first subject to
condition
mutual agreement
and no contractual breach can flow from the UFT's
unreasonable delay
in selecting arbitrators from the DOE's list. Indeed, and reasoning under
IDT Corp., the UFT asserts that the only event suffrcing to cause breach would be a statement of
2
Indeed, the UFT did not address the selection for the early-September list exchange until weeks later, on October l5th, two days before the parties were to upp.t before the Court,
outright refusal to participate in the selection process. That is, the UFT could delay, as it has
here, for weeks -- and perhaps interminably -- but only
if it
asserted a refusal to participate at all
could the contract be deemed breached. Such a situation cannot be harmonized with the
principles of good faith and fair dealing inherent in every contract. Indeed, such conduct has
been rejected by the Court of Appeals'.
o'a
party to a contract cannot rely on the failure of another

the
to perform a condition precedent where he has frustrated or prevented the occurrence of
condition." ADC Orange. Inc. v. Coyote Acres. Inc., 7 N.Y.3d 484,490 (2006). Indeed, "every
contract implies that neither party
will do anything to prevent performance by the other party,
and a party who violates this rule, which is founded in fair dealing, may not rely on such failure
to excuse his own nonperformance." Bass v. Sevits,78 A.D.2d926,927 (3d Dep't 1980).
Not only does the UFT's suggestion, that they can delay indefinitely without
breaching the contract as long as they do not outright "refuse" to participate, offend guiding
contract principles, it violates the very stated reason that the April Letter Agreement was formed:
The long delays that have arisen in the current process of investigating alleged acts of misconduct
and adjudicating charges pursuant to Education Law $ 3020-a benefit neither the DOE nor the employees represented by the UFT. The DOE and the UFT are committed to ensuring that the agreements reached here will be carried out so that those delays will be
ended and the process outlined in the law, the contracts between the parties, and this Agreement
will
be adhered to.
April Letter Agreement, Ex. "7," at 7.
The UFT also appears to rely on the April Letter Agreement's
language
concerning adjustments to the number of arbitrators on the panel, citing the applicable provision:
Representatives of the UFT and DOE shall meet monthly, or less frequently if the UFT and DOE agree, for the first year of this Agreement and at least twice a year thereafter (i) to agree on the
number of hearing officers hearing expedited cases, (ii) to discuss the appropriateness of the number of
hearing officers, including the possibility of agreeing to increase or decrease the number of hearing officers on either the incompetence or misconduct panels on either a temporary or permanent basis, and (iii) to discuss the appropriateness of the number of probable cause arbitrators, including the possibility of agreeing to increase or decrease the number of probable cause arbitrators. If the DOE believes there is a need for
more hearing officers to comply with the timelines set forth in this Agreement, it shall request that the UFT agree to increase the number of hearing officers and the UFT shall not unreasonably deny an
increase.
April Letter Agreement, Ex. "1,"
a"
7. The DOE
certainly does not dispute the existence of this
provision, but notes that the UFT has grossly amplified the import
of its language. In
the
provision, the parties have agreed to discuss increasing or decreasing the number of arbitrators
on the rotational panel. V/ithout agreement to the contrary, however, the number of arbitrators is
set at 39 and both parties must comply with this agreed-upon
number. Nothing in this
language
can countenance a delay to the exchange of arbitrator lists and selection from that
list. Yet that is
precisely what the UFT sought to do, preceding and precipitating this action. As alleged in the
complaint, by letter, dated September 19, 2013, Dennis
M. V/alcott,
Chancellor
of
DOE
("Chancellor Walcott"), wrote to Michael Mulgrew, President of the UFT, with respect to the
number of arbitrators who
will
hear disciplinary cases under Education Law $ 3020-a for the
2013-2014 school year. See September 19,2013,letter, F;x. "2."
Therein, Chancellor V/alcott advised that, under the April Letter Agreement, the
"parties agreed to create two panels of a total of 39 arbitrators to hear 3020-a cases (25 for
misconducf and 14 for incompetence)," and noted that "[t]o date, only 18 arbitrators have been
appointed to the 3020-a panels, far below what was agreed to by the parties," September 19, 2013,letter, 8x."2," at 1 (emphasis supplied). Chancellor Walcott further advised that the delays caused by the UFT and [New York State United Teachers] for this school year, as well as in prior years, undermine the intent of the April 2010 Letter Agreement, and have caused a backlog to develop and continue to grow. The current backlog of hearings needing assignment to an arbitrator far exceeds the number of cases that could be heard in a school year by l8 arbitrators. The arbitrators assigned to hear misconduct cases already have several cases assigned to them. Additional cases are being prepared to be charged or have been charged and will need to be assigned to arbitrators, further increasing their caseloads. Likewise, the arbitrators handling incompetence cases already have cases assigned to them. Adding additional cases to the arbitrators' calendars directly impacts the ability to resolve cases in accordance with the timelines in the collective bargaining agreement, its amendments and the Education Law.
September 19,2013,letter, F'x. "2," at I
As the complaint notes, and as DOE has made clear to the Court, the reduction
and future prevention
of a disciplinary
case backlog, as
well as compliance with statutorily
mandated timeframes, were express justifications for the DOE and the UFT
to
increase the
arbitrator panel from 20 arbitrators, fixed under Article 21(G)

arbitrators, as provided under the April Letter Agreement.
of the parties' CBA, to 39
In the September 19,2013 letter, Chancellor V/alcott further observed that the
UFT's actions appear motivated by a desire to force the DOE to agree to a modification of the April Letter Agreement which would reduce the total number of arbitrators assigned to hear 3020-a cases to a number well below that in the April Letter Agreement. The reduction in the number of arbitrators sought by the UFT would result in a
7
panel that is entirely inadequate to address the existing backlog of 3020-a cases and will ensure that there will be a backlog of 3020-a cases going
forward.
September 19,2073, letter, F;x. "2," at 7-2'
In
response, the UFT essentially confirmed that observation, asserting that
"it
seems the DOE is singularly focused on the number
of arbitrators to the exclusion of all else, in
an apparent effort to justify the swelled number of lawyers on the central DOE budget, even
going to far as to cancel a mediation process that has been very effective." September 20,2013, letter, Ex. "3," at
l.
The "singular focus," however, derives only from the explicit language in
39 red
the April Letter Agreement, which unambiguously increased the rotational panel to
arbitrators. Moreover, the mediation program referred to by the UFT is nothing but a
herring, as the program existed as a way to eliminate the then-existing disciplinary case backlog:
This section "Mediation of Education Law $ 3020-a charges," shall apply to all employees with pending Education Law $ 3020-a charges on or before September l, 2010 or being investigated on or before September 1, 2010 and the investigation results in $ 3020-a charges.
April Letter Agreement, Ex. "1,"
at7,
By the plain terms of the agreement, the parties agreed
that, moving forward, future backlog would be prevented with the appointment of 39 arbitrators, not with a mediation program.
Indeed, not only does the
April Letter Agreement provide for
non-binding
discussion between the parties as to the number of arbitrators on the rotational panel, to the
degree that the number need be modified, the agreement explicitly favors an increase, not a decrease:
"If
the DOE believes there is a need for more hearing offlicers to comply with the
timelines set forth in this Agreement, it shall request that the UFT agree to increase the number
of
hearing off,rcers and the UFT shall not unreasonably deny an increase."
April Letter
Agreement, Ex.
"l
i' at7. No mirroring language
exists in the agreement conceming a decrease,
Defendant asserts that, so long as it has not stated a refusal to participate, it has satisfied the obligations of the April Letter Agreement. Yet the UFT's'most recent conduct -leading to the selection of seventeen arbitrators -- in the mere twelve days that elapsed between
the October
77rh appearance
before the Court, and the October 29th date of the UFT's motion
papers, when contrasted with the UFT's delay in the arbitrator selection process in the weeks and
months that preceded, makes clear its breach, and the basis for denying its motion.
B.
Article 2l(G)(2) of the Parties' Collective Bargaining Agreement

Under Article 2l(G)(2) of the CBA, in the event that the DOE and UFT cannot
agree to a
full complement of arbitrators on the arbitration panel, "additional impartial arbitrators
shall be selected by the parties in accordance with the American Arbitration Association (AAA)
procedures (strike and rank method) from list(s) provided by the AAA until the desired number
.
, , is reached to establish such permanent panel," Given the UFT's statement, that it believed
mediation and a smaller arbitration panel should be agreed to, and the UFT's delay -- including a
lack of response -- to scheduling selection from the arbitrator lists that had been exchanged in
early-September, in late-September the DOE sought to implement the AAA alternative selection
process.
In asserting lack of breach, the UFT essentially parrots the same argument made
as
to arbitrator selection -- that the process is catalyzed only when the parties cannot agree, and
that, no matter what the delay, the inability to agree has yet to happen. Thus, the UFT contends that the AAA process would be triggered only when the UFT has stated, unequivocally, that it
will not participate in the selection process, and would not give rise even where its delay works
to frustrate the ability of the parties to agree. Likewise, the UFT asserts that it did not breach the
alternative selection provision, because it merely advised the AAA that the process was not now
"appropriate," and that the UFT has never advised that
it
rejected, outright, the AAA
involvement at any time. V/ith such wily semantics, the UFT would arrogate to itself the power
to delay the selection process -- preventing a full 39-arbitrator
panel3
-- and, moreover,
to
prevent any remedy to the DOE for that delay. As noted above, that outcome cannot be reconciled with the stated intent
of the April Letter Agreement, committing the
parties to
"ensuring that the agreements reached here will be carried out so that those delays will be ended
and the process outlined in the law, the contracts between the parties, and this Agreement adhered
will
be
to,"
Indeed,
it is a fundamental principle that "[c]ontracts or statutes
are to be read and
understood according to the natural and obvious import of the language, without resorting to subtle and forced construction for the purpose of either limiting or extending their operation,"
Schoonmaker v. Ho}rt, 148
N.Y, 425,431 (1896). The purpose of the April Letter Agreement
was to avoid delays -- the UFT's conduct is anathema to that goal, and demonstrates its breach.
Accordingly, defendant's motion to dismiss should be denied.
POINT
II
DEFENDANT'S MOTION TO STAY LITIGATION PENDING ARBITRATION

SHOULD BE DENIED
The UFT contends, in the alternative, that this action should be stayed pending arbitration
of its grievance concerning the DOE's invocation of the AAA process.
While
defendant describes,
3
in its motion
papers, the necessary elements
for an order to
compel
The UFT has asserted that, because it cannot control whether a selected and invited arbitrator will agree to join the rotational panel, the UFT cannot be held accountable for an incomplete panel. This argument is yet another red herring. DOE holds the UFT accountable -- as should this Court -- for its conduct in the selection process, which provides the only opportunity for arbitrator appointment. It is the UFT's delay in selecting and inviting as large a pool of arbitrators as possible which has resulted in the lack of a full, 39-arbitrator panel.
- 10-
arbitration, the DOE asserts that the resolution of the dispute as to the alternative arbitrator
selection process, while contained in the parties' CBA, is not subject to arbitration.
Both sides agree, it is clear, that Education Law $ 3020(4Xa) permits the DOE
and the UFT to modify the disciplinary procedures contained
in Education Law $ 3020-a.
Moreover, the parties agree that the April Letter Agreement itself modifies, and is a part of,
Article 21(G) of the CBA, which, by its own preamble, specifically modifies Education Law
3020-a. The parties dispute, however, whether the statutory permission to the DOE and the UFT
to modify the procedures of $ 3020-a within a collective bargaining agreement can place the
resolution of disputes concerning those modif,red disciplinary procedures within the grievance
and arbitration proceeding.
Education Law Section 3020(a)(a) provides:
Notwithstanding any inconsistent provision of law, the procedures set forth in section [3020-a] of this article and section t2590-j(7)l of this chapter may be modified by agreements negotiated between the city school district of the city of New York and any employee organization representing employees or titles that are or were covered by any memorandum of agreement executed by such city school district and the united federation of teachers on or after June tenth, two thousand two,
The UFT asserts that, by this language, the State Legislature "implicitly
recognized" that disputes over such modiflrcations
will be subject to the CBA's
grievance and
arbitration process. Yet Education Law Section 3020@)(a) further provides that
[w]here such procedures are so modified: (i) compliance with such modified procedures shall satisfy any provision of this chapter that requires compliance with section [3020-a] of this article . , ,
,
Accordingly, the Legislature directly links compliance with modified procedures in the CBA with statutory compliance with Section 3020-a. DOE disagrees that the mechanism
-11-
for resolving compliance disputes, which the UFT asserts, owing to statutory silence, must
be
situated in the grievance and arbitration procedure. Rather, "whers public policy concerns are
implicated, a school district
will not be deemed to have waived its statutory rights under the
Education Law without an explicit agreement between the parties or compelling evidence that
the school district made a conscious decision to do so." Consedine v. Portsville Cent. Sch. Dist.,
l2 N,Y.3d 286,294 (2009).

While defendant declares Consedine "inopposite," plaintiff asserts that the case's principle still adheres. That is, unless the statute directs it, or the CBA explicitly expresses the parties' agreement that the resolution of disputes under Article 2l(G) shall be determined under
the grievance and arbitration process of the CBA, the DOE cannot be deemed to have waived a statutory right -- the determination of compliance with the modified procedures -- which is a
matter for this Court's determination.
Accordingly, defendant's motion to stay this litigation pending arbitration should

be denied.
t2-
WHEREFORE, plaintiff respectfully requests that the defendant's motion be

denied in its entirety, and for such other and further relief as this Court deems just and proper.
Dated:
New York, New York November 7,2013
MICHAEL A, CARDOZO
Corporation Counsel of the City of New York Attorney for Plaintiff 100 Church Street, Room 2-143 New York, New York 10007 (2r2) 3s6By:
Maxwell
Assistant Counsel
.13-

NYSCEF DOC. NO. 43
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK x BOARD OF EDUCATION OF THE CITY : SCHOOL DISTRICT OF THE CITY OF NEW : YORK, : : Plaintiff, : : -against: : UNITED FEDERATION OF TEACHERS, : : Defendant. : : x
Index No. 451734/13 (IAS Part 62 : Wright, J.) AFFIRMATION OF ADAM S. ROSS
ADAM S. ROSS, an attorney duly admitted to practice before the courts of the State of New York, affirms under penalty of perjury that the following is true and correct: 1. I am General Counsel for Defendant, United Federation of Teachers (UFT). I
submit this affirmation in further support of the UFTs Motion to Dismiss or, In the Alternative, Stay Litigation Pending Arbitration. I am familiar with the proceedings and documents related to the above-captioned matter and make this affirmation based upon personal knowledge and my role as General Counsel.
2013-2014 Arbitrator Selection 2. I have been fully involved in the 2013-2014 arbitrator selection process pursuant
to the parties collective bargaining agreement (CBA) and Side Letter. 3. As part of that process, on September 6, 2013, the UFT and the BOE exchanged
lists of proposed arbitrators. 4. Also as part of that process, I, together with Claude Hersh, Assistant general
Counsel for the New York Office of the General Counsel of New York State United Teachers,
met with representatives of the Board of Education of the City School District of the City of New York (BOE) on September 16, 2013 to discuss the appropriate number of arbitrators. The BOE indicated it would agree to a panel of 30 arbitrators. It is the UFTs position that fewer than 39 arbitrators are needed and that the program would benefit from reinstitution of a mediation process to more quickly address the significant portion of disciplinary cases which typically result in settlement. See also Affirmation of Claude I. Hersh, dated October 16, 2013, 17, previously submitted in opposition to the BOEs application for a preliminary injunction, a copy of which is annexed hereto as Exhibit 1. 5. At no time during the selection process has the UFT taken the position that it will
not select any further arbitrators. Indeed, the UFT has consistently reiterated its willingness to continue with the selection process despite the BOEs efforts to abandon discussions in favor of the AAA arbitrator selection process. In the UFTs experience, the AAA process typically works through a strike and rank method, with no limit on the number of strikes permitted. Typically, a single AAA list, after the parties have made their selections, results in the appointment of one arbitrator. 6. In connection with the arbitrator selection process, on October 4, 2013, after
discussions with me, Mr. Hersh sent an email to the BOE addressing the assignment of arbitrators on the panel as well as addressing the then outstanding lists of proposed arbitrators. Mr. Hersh advised the BOE that its General Counsel, Courtenaye Jackson-Chase, should contact me (as typically occurs) to continue discussions regarding arbitrator selection. A copy of the October 4, 2013 email is annexed as Exhibit 2.
7.
Having not heard from the BOE regarding the outstanding lists, on October 15,
2013, I send a letter reiterating the UFTs readiness to continue with the selection process. A copy of the October 15, 2013 letter is annexed as Exhibit 3. 8. 9. Ms. Jackson-Chases response letter is annexed hereto as Exhibit 4. At the time of the October 17, 2013 hearing before this Court, the parties had
empaneled 19 arbitrators to hear disciplinary matters. 10. On October 17, 2013, the BOE selected three arbitrators from the September 6,
2013 list. A chain of emails between the representatives of the BOE and the UFT on October 17th and 18th regarding arbitrator selection, including the October 17, 2013 email from Naeemah Lamont to Claude Hersh, et al., is annexed as Exhibit 5. 11. The following day, the UFT selected three arbitrators from the BOE's September
6 list and suggested the parties attempt to each select a fourth. The October 18, 2013 email from Claude Hersh to Naeemah Lamont, et al., is included within Exhibit 5. In the same email, the UFT also agreed to exchange another list of proposed arbitrators on October 22, 2013. The BOE declined to select a fourth arbitrator, but indicated its willingness to exchange new lists on October 21 or 22. The October 18, 2013 email from Naeemah Lamont to Claude Hersh, et al., is included within Exhibit 5. 12. On October 21, 2013, the UFT selected a fourth arbitrator from the September 6
list. The UFT also confirmed it would be prepared to provide a list of 10 proposed arbitrators the following day and would discuss future list exchanges. The October 21, 2013 email from Claude Hersh to Naeemah Lamont is annexed as Exhibit 6. 13. On October 22, 2013, the parties exchanged lists of 10 names each. The BOE
indicated it would be prepared to select names on Friday. The UFT asked to make selections on 3
Monday, to allow time to research proposed arbitrators from outside the New York City area about whom sufficient information could not immediately be obtained. The UFT requested that the BOE provide information about the individuals it proposed to accelerate the process. The UFT also stated that it would be prepared to discuss further lists once the parties have a sense of how many arbitrators would be selected from the current lists. The BOE asserted that weekly list will still be needed. A copy of the October 22, 2013 email from Naeemah Lamont to Claude Hersh, et al., is annexed as Exhibit 7. A copy of the October 22, 2013 email chain between representatives of the BOE and the UFT is annexed as Exhibit 8. 14. On October 28, 2013 the UFT selected four names from the October 22 list. The
BOE selected six names form the same list. The parties discussed by email how the invited arbitrators should be assigned within the panel. A copy of the October 28, 2013 email chain between representatives of the BOE and the UFT is annexed as Exhibit 9. 15. Having not received any further communications from the BOE regarding the
exchange of lists, per my instruction, on November 8, 2013, Claude Hersh emailed the BOE proposing another exchange of lists for November 12, 2013. The November 8, 2013 email from Claude Hersh to Naeemah Lamont, et al., is annexed as Exhibit 10. 16. On November 12, 2013, per the UFTs suggestion, the parties exchanged lists of
ten new arbitrators each. Copies of the UFTs and BOEs November 12, 2013 emails proposing arbitrators are annexed as Exhibit 11. 17. Thus, since the October 17, 2013 hearing before the Court, the parties have agreed
to invite another 17 arbitrators to join the panel, with the UFT having agreed to 8 and the BOE having agreed to 9. In all, since July, the UFT has selected 15 arbitrators and the BOE has selected 16. As of November 13, 2013, 22 arbitrators have accepted positions on the panel, with 4
seven invitations still outstanding and a pending list of 20 names which the parties are considering. Grievance and Arbitration Process 18. The instant matter is not the first time the UFT has filed a grievance under Article
21G of the parties collective bargaining agreement (CBA), providing a modified disciplinary process pursuant to Education Law 3020(4). 19. Education Law 3020(4) explicitly authorizes the parties to agree, through
collective bargaining and with certain limitations, to an alternative disciplinary process, including establishing a rotational panel of arbitrators and setting out a process for their selection. The statute makes compliance with that contractual process sufficient for the BOE and the UFT to satisfy the requirements of 3020-a. The law provides no restriction on the parties ability to utilize a grievance and arbitration process to enforce the contractual disciplinary process. See Mem of Assembly Rules Comm, 2002 NY Legis Ann at 62, annexed hereto as Exhibit 12 (This part [of Section 3020(4)] authorizes the City of New York and the United Federation of Teachers to modify the current disciplinary procedures with an alternative process by notwithstanding provisions of law inconsistent with the bargaining agreement. This bill will only be effective upon ratification of the contract.); Office of Mayor of City of New York Mem in Support, Bill Jacket, L 2002, ch 93, annexed as Exhibit 13 (accord). 20. UFT records demonstrate that prior grievances alleging violations of Article 21G
were processed by the BOE in the same manner as other grievances, with no objection having been raised on the grounds now being used to avoid the proper grievance and arbitration process. 21. Annexed hereto are several examples of grievances alleging violations of Article
21G. In each case, the Step 2 decision is provided. Per the CBA, at Step 2, a grievance is heard 5
by the Chancellor of the BOE or his/her designee and a written determination issued. The UFT may file demands to arbitrate a grievance denied at the Step 2 level. 22. Attached as Exhibit 14 is a true and correct copy of UFT v. Department of
Education of the City of New York, Case OLR #071847, UFT Case #C15504 (Step 2 Determination, June 22, 2007) (determining union initiated grievance asserting a violation of Article 21G(5) on the merits). 23. Attached as Exhibit 15 is a true and correct copy of DePrima v. Department of
Education of the City of New York, Case OLR #100666, UFT Case #R40554 (Step 2 Determination, Oct. 20, 2009) (determining grievance asserting a violation of Article 21G(5) on the merits), along with the subsequent demand for arbitration filed by the UFT with the BOE pursuant to the contractual grievance and arbitration process. 24. Attached as Exhibit 16 is a true and correct copy of Velocci v. Department of
Education of the City of New York, Case OLR #070977, UFT Case #K30772 (Step 2 Determination, Feb. 12, 2007) (determining grievance asserting a violation of Article 21G on the merits), along with the subsequent demand for arbitration filed by the UFT with the BOE pursuant to the contractual grievance and arbitration process. 25. Attached as Exhibit 17 is a true and correct copy of Settles v. Department of
Education of the City of New York, Case OLR #051669, UFT Case #R27091 (Step 2 Determination, Oct. 13, 2005) (determining grievance asserting a violation of Article 21G on the merits), along with the subsequent demand for arbitration filed by the UFT with the BOE pursuant to the contractual grievance and arbitration process. 26. Indeed, I have been advised by Ellen Gallin Procida, Director, UFT Grievance
Department, who represented the UFT in the underlying grievance in this matter, that during the 6
Step 2 hearing held on November 7, 2013, the BOEs advocate did not argue that disputes regarding the application of Article 21G are not grievable. Rather, the BOE argued the merits of the grievance.
Dated: New York, New York November 13, 2013 __/s/ ADAM S. ROSS____ ADAM S. ROSS

NYSCEF DOC. NO. 44
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK x BOARD OF EDUCATION OF THE CITY : SCHOOL DISTRICT OF THE CITY OF NEW : YORK, : : Plaintiff : : -against: : UNITED FEDERATION OF TEACHERS, : : Defendant. : : x
Index No. 451734/13 AFFIRMATION OF CLAUDE I. HERSH IN OPPOSITION TO PLAINTIFFS APPLICATION FOR A PRELIMINARY INJUNCTION
CLAUDE I. HERSH, an attorney duly admitted to practice before the Courts of the State of New York, hereby affirms the following to be true under penalty of perjury: 1. I am the Assistant General Counsel for the New York City Office of the General
Counsel of the New York State United Teachers (NYSUT). NYSUT is a Statewide umbrella organization affiliated with Defendant, United Federation of Teachers (UFT), that, inter alia, provides tenured pedagogues charged with misconduct or incompetence the option of having a NYSUT attorney represent them in their 3020-a proceeding without fee. I oversee the provision of those services and work closely with the UFT to administer and monitor the disciplinary process applicable to New York City teachers. I submit this affirmation in support of Defendants opposition to Plaintiffs application for a mandatory injunction requiring the UFT to participate in the an arbitration selection process through the American Arbitrators Association (AAA). I am fully familiar with the facts set forth below:
The April Letter Agreement 2. In order to expedite the scheduling of Education Law 3020-a hearings, both the
UFT and the Board of Education of the City School District of the City of New York (BOE) agreed to modify their existing Collective Bargaining Agreement (CBA), memorialized in a letter agreement signed by both parties on April 15, 2010 (April Letter Agreement). Complaint, Ex. 1. 3. The Agreement provides, inter alia, for an increase in the number of arbitrators
from 20 to 39, while giving the parties the right to discuss that number if either party believes it is too high or too low. It also provided for a mediation program designed to resolve cases quickly so they would not have to be scheduled for hearings in front of arbitrators. 4. 39 arbitrators. 5. During that first year the mediation program also proved to be very successful, In the year following the Agreement, both parties were able to agree to, and seat,
resulting in some 46% of all cases submitted to mediation settling, without need to resort to a hearing. Of the cases involving alleged misconduct (ATU cases) submitted to mediation, 43% were settled. Of the competency cases submitted (TPU cases), 56% were settled. Indeed, even without a formal mediation process, during the 2009-10, 2010-11 and 2011-12 school years, settlements ranged from 63% to 75% of all cases heard that year. The vast majority of cases either settled or resulted in some form of punishment besides termination. 6. After that first year, however, unanticipated problems developed. It became
apparent that the State Education Department (SED), responsible for providing compensation to the arbitrators, had continually failed to pay the arbitrators on time and in some cases not at all. This caused a number of arbitrators to quit the panel and others to decline invitations to join 2
the panel. In 2012, the accumulation of back pay was so great, that 10 of the 24 then-seated arbitrators quit and a group of 33 arbitrators sued SED for $5.1 million in back pay. See Melissa Russo and Tom Burke, I-Team: Arbitrators for Teacher Misconduct Cases Are Quitting; available at: http://www.nbcnewyork.com/investigations/I-Team-Arbitrators-For-TeacherMisconduct-Cases-Are-Quitting-157386515.html (accessed October 16, 2013). Thus, while the parties were able to seat 39 arbitrators the first year, they have had difficulty in the subsequent years. Exacerbating the issue, despite the programs initial success, the BOE declined to continue the mediation program after the first year, thus adding to the arbitration case load. Arbitrator Selection For the 2013-14 School Year 7. On June 27, 2013, I contacted Naeemah Lamont, Director of the Teacher
Performance Unit of the BOE and Laura Hemans Brantley, Director of the Administrative Trials Unit of the BOE, suggesting that the parties begin discussion regarding the 2013-2014 panel of arbitrators as early as possible. See Email from Claude Hersh, dated June 27, 2013, annexed as Exhibit 1. Both parties participated in a conference call on July 8, 2013. Prior to that call, I suggested in an email that both parties agree to not drop any arbitrators from the panel: At this time, the UFT is not interested in dropping anyone from the Panel and hopes that we can just invite everyone back since we really need to have cases start moving immediately in September. See Email from Claude Hersh, dated July 1, 2013, annexed as Exhibit 2. 8. Nevertheless, on the July 8 call, the BOE advised that the BOE would be
dropping three arbitrators. To balance the panel, the UFT also determined to discontinue three arbitrators, which, along with one resignation combined to reduce the total number of arbitrators to 13.
9.
Despite precipitating a substantial drop in the number of arbitrators, the BOE
claimed on July 8 that it was anxious to get to a full complement of arbitrators. The UFT and NYSUT shared the goal of selecting an appropriate number of acceptable arbitrators. During the conference call, both parties agreed to propose 10-15 arbitrators. 10. On July 23, 2013 I sent a list to the BOE on behalf of the UFT and received a list
from the BOE of proposed arbitrators. See Email from Claude Hersh, dated July 23, 2013, annexed as Exhibit 3; Email from Naeemah Lamont, dated July 23, 2013, annexed as Exhibit 4. 11. A follow-up call occurred the next day, during which the BOE approved of draft
invitation letters which I had previously offered to prepare, but was awaiting certain information from the BOE. The parties also discussed the reassignment of cases and approval of arbitrators. 12. On July 29 2013, each party agreed to six of the arbitrators proposed by the other
party. See Email from Claude Hersh, dated July 29, 2013, annexed as Exhibit 5; Email from Laura Brantley, dated July 29, 2013, annexed as Exhibit 6. Additionally, two arbitrators were on both lists, for a total of 14 newly agreed to arbitrators. Thus, contrary to the BOEs implication, the selection process has been proceeding apace. 13. On August 1, 2013, the BOE finally provided the needed information to finalize
the invitation letters. I worked to complete the letters and sent them out on August 15, 2013. All-in-all, some 27 arbitrators (13 existing and 14 newly selected) received invitation letters. Copies of the invitation letters are annexed as Exhibit 7. 14. As of August 29, 2013, four BOE-nominated arbitrators declined, two UFT-
nominated arbitrators declined, one arbitrator nominated by both parties declined, as well as one existing arbitrator, bringing the total number of potential arbitrators to 19. Had the BOE agreed to mutually forgo dropping existing arbitrators, that number could have been 25. 4
15.
The parties thereupon moved to continue the process, holding another conference
call on August 29, 2013 and, again, both sides agreed to submit new lists of arbitrators. 16. On September 6, 2013, on behalf of the UFT, I exchanged a list of 10 proposed
arbitrators with the BOE. See Email from Claude Hersh, dated September 6, 2013, annexed as Exhibit 8; Email from Naeemah Lamont, dated September 6, 2013, annexed as Exhibit 9. 17. On September 16, 2013, I, together with UFT representatives, met with BOE
representatives to discuss how many arbitrators were needed in light of the parties experience with how many cases typically settled in the early stages. The BOE indicated it would agree to 30 arbitrators. Given the significant rate at which cases settled, the UFT proposed that 24 arbitrators would be sufficient, together with a mediation program similar to the one adopted in 2010 and temporarily reinstituted during Summer 2013. 18. At no time did either the UFT or I state that the UFT declined to continue the
selection of arbitrators or refuse to work towards a panel of 39 arbitrators if agreement on a lower number could not be reached. Nor did the BOE provide at that time, or since, a response to the lists of proposed arbitrators exchanged on September 6, 2013. 19. Instead, some three days later, the BOE sent a letter accusing the UFT of
unspecified delay, demanding that the UFT agree by the next day to select 30 arbitrators within the subsequent 14 days. See September 19, 2013 BOE letter, Complaint, Ex 2. Despite the many months of progress made by the parties, the BOE threatened immediate legal action against the UFT if it did not consent within the unreasonable and arbitrary one-day timeframe. The letter inexplicably held the UFT entirely responsible for there not being more arbitrators who accepted positions. The BOE made no reference to the fact that many of the arbitrators that had been proposed so far had declined the invitation. Nor did the letter discuss the BOEs own 5
decision to drop arbitrators at the beginning of the discussion process. Nor did the BOEs letter address the fact that the UFT currently had an outstanding list of proposed arbitrators awaiting the BOEs response. And the BOEs letter made no mention of the successful mediation program that it had recently discontinued (and which it knew was subject to an ongoing collective bargaining fact finding process under the auspices of the Public Employment Relations Board). 20. In that same letter, Plaintiff claimed that the difficulty in selecting arbitrators was
entirely due to the UFT attempting to discuss with the BOE that fewer arbitrators would be appropriate: The UFTs actions appear motivated by a desire to force the DOE to agree to a modification of the April Letter Agreement which would reduce the total number of arbitrators assigned to hear 3020-a cases to a number well below that in the April Letter Agreement. September 19, 2013 Letter, Complaint, Ex. 2. 21. In fact, no modification is necessary, as the April Letter Agreement explicitly
provides that the parties should meet to discuss whether more or fewer arbitrators would be appropriate. Thus, the BOEs threats were based on nothing more than the UFT exercising its right under the April Letter Agreement to engage in such discussions. 22. The letter contained the following ultimatum:
We seek your confirmation by the close of business tomorrow, September 20, 2013, that the UFT will agree to a panel of 30 arbitrators, with selection to be completed in accordance with the terms of the contract by October 4, 2013. Should the UFT fail to agree to this, the DOE will pursue all legal remedies available to it including, but not limited to, invoking its right under the collective bargaining agreement to use the arbitrator selection process provided by the American Arbitration Association (AAA) procedures.
September 19, 2013 Letter, Complaint, Ex. 2. 23. The BOE provided no justification for either the September 20 date or the
October 4 date. Furthermore, the BOE provided no explanation for how, in light of the difficulties the parties had faced thus far in agreeing to arbitrator candidates and in getting those candidates to accept invitations, the UFT could possibly comply with this demand. 24. The following day, on September 20th, the UFT answered the BOE, but the BOE
offered no further response to that letter or the then two-weeks outstanding list of proposed arbitrators. See September 20, 2013 UFT letter, Complaint, Ex 3. Rather, on the next business day, September 23, 2013, the BOE wrote directly to the AAA attempting to unilaterally activate the contractual impasse resolution process provided in the CBA without the parties having actually reached an impasse as to the selection of arbitrators. See September 23, 2013 BOE Letter, Complaint, Ex. 4. (Indeed, contrary to the conclusion drawn by the BOE, with 19 arbitrators selected and 20 outstanding proposals, the parties could have, if the arbitrators accepted, achieved the BOEs goal of 30 arbitrators rather than engage in litigation). Similar to the BOEs September 19 letter, this letter provided no background as to the parties progress in selecting arbitrators and difficulties in obtaining acceptances from those they invited. Instead, it merely stated that the parties had been unable to agree thus far. 25. Again, the following day, the UFT responded by letter dated September 24, 2013.
See September 24, 2013 UFT Letter, Complaint, Ex. 5. The UFT informed the AAA that as the parties continue to discuss the selection of arbitrators, the provision cited by the BOE applicable to instances where the parties cannot agree had not been triggered. The UFT requested that the AAA refrain from becoming involved until it was actually appropriate for it to do so under the CBA. 7
26.
The BOE wrote again to the AAA on September 25, 2013, admitting that the
parties had been agreeing on arbitrators and inviting them to join their panel, but attempting to somehow blame the UFT for the low acceptance rate. See September 25, 2013 BOE Letter, Complaint, Ex. 6. Moreover, having identified an important reason for the inability to employ a full complement of arbitrators, the BOE failed to indicate how the parties would fare any better in an AAA process, where the arbitrators are similarly free to decline the invitation. Likewise, the BOE acknowledged that there were outstanding lists of arbitrators, but for the first time blamed the UFT for not being prepared to proceed. Yet, the BOE had itself not responded to the UFTs list. The letter went on to insist that the AAA commence the selection process over the UFTs objection. 27. Recognizing that it would be inappropriate to intervene without the support of
both parties, the AAA rejected the BOEs request to intervene on September 26, 2013. On the same day, the BOE commenced this action. The following day, the BOE requested a mandatory injunction seeking to compel UFT participation in the AAA process despite the BOE still not having responded to the UFTs September 6 list of proposed arbitrators. 28. Despite the fact that the BOE has, apparently abandoned negotiation in favor of
litigation, the UFT remains willing to continue discussions over potential arbitrators. Indeed, to make that clear, on October 15, 2013, the UFT issued a letter to Plaintiff confirming that it remains ready to provide the names of agreeable arbitrators from the BOEs list, and asking whether the BOE is prepared to do the same. See October 15, 2013 UFT Letter, annexed as Exhibit 10.

NYSCEF DOC. NO. 45
Stone, Mac
From: Sent: To: Subject: Claude Hersh <chersh@nysutmail.org> Friday, October 04, 2013 9:45 AM DDaCosta2@schools.nyc.gov Case Assignments
Dennis:IspoketoAdamRossaboutassigningcases.Hewouldlikeus toassignallthecasestothepresentTPUarbitrators.Thiswould includetheoutstandingcasesassignedtoMarcWintersandArthurMatthews.Hopefully,wecansettlesomeofthe casesattheprehearingconferences.Inregardstoaddingnewarbitrators,CourtenayeJackson ChaseshouldcallAdamifshewantstodiscussthatissue.Iamat PERBthismorningbutwillbeinmyofficelaterthisafternoonifyouwanttodiscuss.Thanks,Claude LEGALLYPRIVILEGEDANDCONFIDENTIAL Theinformationcontainedinthisemailislegallyprivilegedandconfidential.Itisintendedonlyfortheuseofthe individualorentitynamedabove.Ifthereaderofthismessageisnottheintendedrecipient,youareherebynotified thatanydissemination,distributionorcopyofthisemailisstrictlyprohibited.Ifyouhavereceivedthisemailinerror, pleaseimmediatelynotifymeatchersh@nysutmail.organddestroyallhardcopiesandanycopiesthatmaybeonyour computer. Thankyou, CLAUDEI.HERSH AssistantGeneralCounsel NewYorkStateUnitedTeachers 52Broadway,9thFloor NewYork,NewYork10004 2125336300 Fax:2122289253 chersh@nysutmail.org

NYSCEF DOC. NO. 46

NYSCEF DOC. NO. 47

NYSCEF DOC. NO. 48
Stone, Mac
From: Sent: To: Subject: Kolker, Dina Wednesday, November 13, 2013 11:09 AM Stone, Mac FW: UFT Proposed Arbitrators
From: Lamont Naeemah [mailto:NLamont@schools.nyc.gov] Sent: Friday, October 18, 2013 4:41 PM To: 'chersh@nysutmail.org'; DaCosta Dennis; Brantley Laura; Pope Marvin Cc: 'adonnell@nysutmail.org'; 'ilappin@nysutmail.org'; Jackson-Chase Courtenaye; Cooney Tracy; Adam Ross; Carol Gerstl; Ellen Procida Subject: Re: UFT Proposed Arbitrators
Claude: ThankyouforgettingbacktomeregardingtheUFTsthreeselections.Atthistime,theDOEisunabletochoosea fourtharbitratorfromtheUFTsSeptember6thlist.However,thatinnowaypreventstheUFTfrommakingafourth selectionfromtheDOEslist,ifyousochoose. Withregardtotheexchangeoffuturelists,asIpreviouslyindicated,theDOEispreparedtoexchangelistsonMonday. HoweverwewouldbehappytoagreetoamutualexchangeonTuesdayOctober22ndifthatworksbetterfortheUFT. Additionally,thepartiesarewellawareoftheSEDpaymentissues.Howeveraspastproposedcandidateshave indicated,theyarelesslikelytohaveavailabilityintheneartermthelongerittakesforustoselectthem. Ifindeedthepaymentissueshavebeenessentiallycorrectedasyouhaveindicated,thentheDOEwouldhaveno objectiontoconsideringarbitratorswhohaveresignedordeclinedappointmentduetononpayment. TheDOEstandsreadytosetupaweeklylistexchangewiththeUFTuntilwecanobtainafullpanel.Althoughyou indicatedthattheUFTisreadytodiscussfuturelists,pleaseadviseastowhethertheUFTwillagreetoaweekly exchange. NaeemahLamont Director,TeacherPerformanceUnit NYCDepartmentofEducation OfficeofTheGeneralCounsel 51ChambersStreet,Room611 NewYork,N.Y.10007 Tel:(212)3746034
1
Fax:(212)3749298 NLamont@schools.nyc.gov ConfidentialityNotice:Thisemailcommunicationandanyattachmentsmaycontainconfidentialandprivileged informationfortheuseofthedesignatedrecipientsnamedabove.Ifyouarenottheintendedrecipient,youare herebynotifiedthatyouhavereceivedthisttcommunicationinerrorandthatanyreview,disclosure,dissemination, distributionorcopyingofitoritscontentsisprohibited.Ifyouhavereceivedthiscommunicationinerror,pleasenotify meimmediatelybyreplyingtothismessageanddeletingitfromyourcomputer.Thankyou. From:ClaudeHersh[mailto:chersh@nysutmail.org] Sent:Friday,October18,20133:12PM To:DaCostaDennis;BrantleyLaura;PopeMarvin;LamontNaeemah Cc:ArianaA.Donnellan;IsabelLappin;JacksonChaseCourtenaye;CooneyTracy;AdamRoss;CarolGerstl;Ellen Procida Subject:RE:UFTProposedArbitrators Naeemah: TheUFTselectsthefollowingarbitratorsfromyourlist: 1.JeffreySelchick 2.LelaPorterLove 3.EdmundGerber Also,theUFTisinvestigatingwhetheritcouldselectafourtharbitratorfromyourlist.Pleaseadviseusifyouwouldbe abletochooseafourtharbitratorfromtheUFTlist. WewouldbereadytoexchangeanewlistoftenarbitratorsonTuesday,October22,2013.Wearealsoreadyto discusstheexchangeoffuturelists. Finally,manyarbitratorseitherresignedfromthePanelordeclinedourinvitationtojointhePanelbecauseNewYork Statewasnotpayingthem.Thatproblemhasbeenessentiallycorrected.Therefore,wethinkitisappropriateto considersomearbitratorswhohadpreviouslyresignedordeclinedappointment.
From: Claude Hersh [mailto:chersh@nysutmail.org] Sent: Friday, October 18, 2013 03:12 PM To: DaCosta Dennis; Brantley Laura; Pope Marvin; Lamont Naeemah Cc: Ariana A. Donnellan <adonnell@nysutmail.org>; Isabel Lappin <ilappin@nysutmail.org>; Jackson-Chase Courtenaye; Cooney Tracy; Adam Ross <ARoss@uft.org>; Carol Gerstl <cgerstl@uft.org>; Ellen Procida <eprocida@uft.org> Subject: RE: UFT Proposed Arbitrators Naeemah: The UFT selects the following arbitrators from your list: 1. Jeffrey Selchick 2. Lela Porter Love 3. Edmund Gerber Also, the UFT is investigating whether it could select a fourth arbitrator from your list. Please advise us if you would be able to choose a fourth arbitrator from the UFT list. We would be ready to exchange a new list of ten arbitrators on Tuesday, October 22, 2013. We are also ready to discuss the exchange of future lists. Finally, many arbitrators either resigned from the Panel or declined our invitation to join the Panel because New York State was not paying them. That problem has been essentially corrected. Therefore, we think it is appropriate to consider some arbitrators who had previously resigned or declined appointment. We look forward to your response. Claude
LEGALLY PRIVILEGED AND CONFIDENTIAL The information contained in this e-mail is legally privileged and confidential. It is intended only for the use of the individual or entity named above. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copy of this e-mail is strictly prohibited. If you have received this e-mail in error, please immediately notify me at chersh@nysutmail.org and destroy all hard copies and any copies that may be on your computer. Thank you, CLAUDE I. HERSH Assistant General Counsel New York State United Teachers 52 Broadway, 9th Floor New York, New York 10004 212-533-6300 Fax: 212-228-9253 chersh@nysutmail.org >>> "Lamont Naeemah" <NLamont@schools.nyc.gov> 10/17/2013 1:52 PM >>> Claude: As indicated in our previous communication, the DOE is ready to select from the list exchanged on September 6th.
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The DOE selections are as follows: James Gross James Markowitz James Cooper Please immediately advise us as to the UFT's selections. Additionally, please be advised that the DOE is prepared to exchange a new list of 20 additional arbitrators for your consideration. We can provide you with this list on Monday October 21st. In the interest of efficiency, I think that it would behoove the parties to be thoughtful when selecting arbitrators for consideration. In order to have the best chance at finding qualified arbitrators who are likely to accept the parties invitation to the panel, it would be best if we do not propose arbitrators who have repeatedly declined previous invitations. It would also serve the process if we do not propose arbitrators who have previously quit the panel or arbitrators who the parties previously removed from the panel, as such selections inevitably serve to only to delay the process. Please also be advised that going forward, the DOE is prepared to send a list of 20 names each week until we have reached a full complement. Please advise as to whether or not the UFT will be prepared on Monday October 21st to exchange a list of 20 additional arbitrators and if the UFT is amenable to a weekly list exchange of 20 names until such time that a full panel is reached. Naeemah Lamont Director, Teacher Performance Unit NYC Department of Education Office of The General Counsel 51 Chambers Street, Room 611 New York, N.Y. 10007 Tel: (212) 374-6034 Fax: (212) 374-9298 NLamont@schools.nyc.gov Confidentiality Notice: This e-mail communication and any attachments may contain confidential and privileged information for the use of the designated recipients named above. If you are not the intended recipient, you are hereby notified that you have received this communication in error and that any review, disclosure, dissemination, distribution or copying of it or its contents is prohibited. If you have received this communication in error, please notify me immediately by replying to this message and deleting it from your computer. Thank you.
-----Original Message----From: Lamont Naeemah Sent: Tuesday, September 10, 2013 1:01 PM To: 'Claude Hersh'; DaCosta Dennis; Brantley Laura; Pope Marvin Cc: Ariana A. Donnellan; Isabel Lappin; ARoss@uft.org Subject: RE: UFT Proposed Arbitrators The DOE will be ready to provide you with our selections from your proposed list by this Thursday. Will the UFT be able to do the same? Naeemah Lamont Director, Teacher Performance Unit NYC Department of Education Office of The General Counsel 51 Chambers Street, Room 611 New York, N.Y. 10007
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Tel: (212) 374-6034 Fax: (212) 374-9298 NLamont@schools.nyc.gov Confidentiality Notice: This e-mail communication and any attachments may contain confidential and privileged information for the use of the designated recipients named above. If you are not the intended recipient, you are hereby notified that you have received this communication in error and that any review, disclosure, dissemination, distribution or copying of it or its contents is prohibited. If you have received this communication in error, please notify me immediately by replying to this message and deleting it from your computer. Thank you.
-----Original Message----From: Claude Hersh [mailto:chersh@nysutmail.org] Sent: Friday, September 06, 2013 12:01 PM To: DaCosta Dennis; Brantley Laura; Pope Marvin; Lamont Naeemah Cc: Ariana A. Donnellan; Isabel Lappin; ARoss@uft.org Subject: UFT Proposed Arbitrators The UFT proposed the following arbitrators for the UFT/DOE 3020-a Panel. Please note that some of these arbitrators previously served but resigned because of payment issues. Since the arbitrators are now being paid, I believe they may be willing to return to the panel. 1. James Gross 2. James Markowitz 3. Eric Lawson 4. Jack Tillem 5. Melissa Biren 6. Mattye Gandel 7. Paul Zonderman 8. Stephen Bluth 9. James Cooper 10. Susan Brown
******************************************************************************* The views, opinions, and judgments expressed in this message are solely those of the author. The message contents have not been reviewed or approved by the UFT. *******************************************************************************

NYSCEF DOC. NO. 49
Stone, Mac
From: Claude Hersh [mailto:chersh@nysutmail.org] Sent: Monday, October 21, 2013 06:51 PM To: DaCosta Dennis; Brantley Laura; Pope Marvin; Lamont Naeemah Cc: Ariana A. Donnellan <adonnell@nysutmail.org>; Isabel Lappin <ilappin@nysutmail.org>; Jennifer Hogan <jhogan@nysutmail.org>; Oriana Vigliotti <ovigliot@nysutmail.org>; Jackson-Chase Courtenaye; Cooney Tracy; Adam Ross <ARoss@uft.org>; Carol Gerstl <cgerstl@uft.org>; Ellen Procida <eprocida@uft.org> Subject: Re: UFT Proposed Arbitrators Naeemah: First, the UFT is also willing to invite Thomas Hartigan. Second, in response to Laura's email earlier today, I need to discuss with the UFT how many of the new arbitrators to invite to TPU and ATU. We should be able to provide a response tomorrow. Third, the UFT expects to be able to exchange a list of ten (10) arbitrators tomorrow. At this juncture, the UFT believes that the exchange of lists will have to be discussed further. Claude
LEGALLY PRIVILEGED AND CONFIDENTIAL The information contained in this e-mail is legally privileged and confidential. It is intended only for the use of the individual or entity named above. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copy of this e-mail is strictly prohibited. If you have received this e-mail in error, please immediately notify me at chersh@nysutmail.org and destroy all hard copies and any copies that may be on your computer. Thank you, CLAUDE I. HERSH Assistant General Counsel New York State United Teachers 52 Broadway, 9th Floor New York, New York 10004 212-533-6300 Fax: 212-228-9253 chersh@nysutmail.org

NYSCEF DOC. NO. 50
Stone, Mac
From: Lamont Naeemah [mailto:NLamont@schools.nyc.gov] Sent: Tuesday, October 22, 2013 3:01 PM To: Adam Ross; 'chersh@nysutmail.org'; DaCosta Dennis; Brantley Laura; Pope Marvin Cc: 'adonnell@nysutmail.org'; 'ilappin@nysutmail.org'; Jen Hogan; Oriana Vigliotti; Jackson-Chase Courtenaye; Cooney Tracy; Carol Gerstl; Ellen Procida Subject: Re: UFT Proposed Arbitrators
TheDOEproposesthefollowingarbitratorsforyourconsideration. EugeneGinsberggood JospehP.Spinola IreneC.Warshauerfromwayupstate,mostlycommercialexperience RichardLutringer SteveSkulnik EdwardBattisti RobertAhern AlexiaK.Blake ElliotH.Shaller MaryJaneBolter

NYSCEF DOC. NO. 51
Stone, Mac
From: Sent: To: Subject: Stone, Mac Wednesday, November 13, 2013 12:09 PM Stone, Mac FW: UFT Proposed Arbitrators
From: Lamont Naeemah Sent: Tuesday, October 22, 2013 5:42 PM To: 'Adam Ross'; Oriana Vigliotti; Brantley Laura Cc: adonnell@nysutmail.org; chersh@nysutmail.org; ilappin@nysutmail.org; Jen Hogan; Jackson-Chase Courtenaye; DaCosta Dennis; Pope Marvin; Cooney Tracy; Carol Gerstl; Ellen Procida Subject: RE: UFT Proposed Arbitrators
Adam: AstheDOEisalsounfamiliarwithmanyofthearbitratorsontheUFTslist,wehavealreadyinitiatedtheprocessof researchingtheseindividualsbyusingthebasicconventionalmethods.However,ifMondayworksbetterfortheUFT sothatyoumayhavemoretimetoresearchtheindividualsfromourlist,theDOEhasnoobjectiontothat. Inaddition,baseduponhistoricalacceptancerates,itisreasonableforustoassumethatwewillneedtoexchangelists beyondthelistswhichwereexchangedtoday.Assuch,weshouldatleastagreetoexchangingweeklylistsintheshort term.Doyouagreethatthisisareasonableapproachuntilafullpanelcanbereached?

Naeemah Lamont Director, Teacher Performance Unit NYC Department of Education Office of The General Counsel 51 Chambers Street, Room 611 New York, N.Y. 10007 Tel: (212) 374-6034 Fax: (212) 374-9298 NLamont@schools.nyc.gov
Confidentiality Notice: This e-mail communication and any attachments may contain confidential and privileged information for the use of the designated recipients named above. If you are not the intended recipient, you are hereby notified that you have received this communication in error and that any review, disclosure, dissemination, distribution or copying of it or its contents is prohibited. If you have received this communication in error, please notify me immediately by replying to this message and deleting it from your computer. Thank you.

From: Adam Ross [mailto:ARoss@uft.org] Sent: Tuesday, October 22, 2013 4:05 PM To: Lamont Naeemah; Oriana Vigliotti; Brantley Laura Cc: adonnell@nysutmail.org; chersh@nysutmail.org; ilappin@nysutmail.org; Jen Hogan; Jackson-Chase Courtenaye; DaCosta Dennis; Pope Marvin; Cooney Tracy; Carol Gerstl; Ellen Procida Subject: RE: UFT Proposed Arbitrators
Naeemah, WewillneeduntilMondaytorespondtothelistsothatwecanusetheweekendtoresearchtheindividualstheBoard hasproposed;manyofthesepeopleweareunfamiliarwith.Anyinformationyoucanprovideaboutthem(e.g., resumes,decisions)wouldbehelpful.Onceweseehowmanypeopleareselected,wecanthendecidewhetherthere isaneedtoexchangefurtherlistsand,ifso,determinewhentodoso. Best, Adam

Adam S. Ross, Esq. General Counsel United Federation of Teachers 14th Floor 52 Broadway New York, NY 10004 (212) 701-9420
CONFIDENTIALITY NOTICE: This communication (including any attachments) is confidential and privileged. The information is intended for the sole use of the addressee. If you are not the intended recipient, you are advised that any disclosure, copying, distribution, use, or the taking of any action in reliance upon this communication is prohibited. If you have received this communication in error, please notify the sender by electronic mail or by telephone (212-701-9420) immediately and delete this communication (including any attachments).

From: Lamont Naeemah [mailto:NLamont@schools.nyc.gov] Sent: Tuesday, October 22, 2013 3:15 PM To: Oriana Vigliotti; Brantley Laura Cc: 'adonnell@nysutmail.org'; 'chersh@nysutmail.org'; 'ilappin@nysutmail.org'; Jen Hogan; Jackson-Chase Courtenaye; DaCosta Dennis; Pope Marvin; Cooney Tracy; Adam Ross; Carol Gerstl; Ellen Procida Subject: Re: UFT Proposed Arbitrators
TheDOEwillbepreparedtomakeselectionsfromtheUFT'slistbyFriday,October25th. PleaseadviseastowhethertheUFTwillbepreparedtodothesame. Thanks.

From: Oriana Vigliotti [mailto:ovigliot@nysutmail.org] Sent: Tuesday, October 22, 2013 03:02 PM To: Brantley Laura; Lamont Naeemah Cc: Ariana A. Donnellan <adonnell@nysutmail.org>; Claude Hersh <chersh@nysutmail.org>; Isabel Lappin <ilappin@nysutmail.org>; Jennifer Hogan <jhogan@nysutmail.org>; Jackson-Chase Courtenaye; DaCosta Dennis; Pope Marvin; Cooney Tracy; 'ARoss@uft.org' <ARoss@uft.org>; Carol Gerstl <cgerstl@uft.org>; 'eprocida@uft.org' <eprocida@uft.org> Subject: UFT Proposed Arbitrators The UFT proposes the following arbitrators for the 3020-a Panel:
Marlene Gold (please note that as of 1/1/13 Ms. Gold will no longer be chair of OCB and has agreed to serve on the UFT/DOE contract arbitration panel as of that date) Gary Kendellen
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Michael Lazan Joseph Licata Daniel Brent Mariann Shick Ira Lobel Stuart Pohl Fred Denson Louis Verrone Oriana Vigliotti, Esq. New York State United Teachers Office of General Counsel 52 Broadway, 9th Floor New York, NY 10004 (212) 533-6300
******************************************************************************* The views, opinions, and judgments expressed in this message are solely those of the author. The message contents have not been reviewed or approved by the UFT. ******************************************************************************* ******************************************************************************* The views, opinions, and judgments expressed in this message are solely those of the author. The message contents have not been reviewed or approved by the UFT. *******************************************************************************

NYSCEF DOC. NO. 52
Stone, Mac
From: Sent: To: Subject: Stone, Mac Wednesday, November 13, 2013 12:21 PM Stone, Mac FW: UFT Proposed Arbitrators
From: Oriana Vigliotti [mailto:ovigliot@NYSUTMAIL.ORG] Sent: Tuesday, October 29, 2013 11:35 AM To: Brantley Laura; Lamont Naeemah; Adam Ross Cc: Ariana A. Donnellan; Claude Hersh; Isabel Lappin; Jen Hogan; Jackson-Chase Courtenaye; DaCosta Dennis; Pope Marvin; Cooney Tracy; Carol Gerstl; Ellen Procida Subject: RE: UFT Proposed Arbitrators
Naeemah, The UFT will agree to invite 8 arbitrators to the TPU panel and 2 arbitrators to the ATU panel. From your original list we suggest moving Eugene Ginsberg from ATU to TPU to come to 8 TPU and 2 ATU from your proposal of 7 TPU and 3 ATU. Other than that, your original list is acceptable. I will send the invitations out no later than this Thursday. Also, in your email you indicate that we are still waiting to hear back from 6 of the arbitrators invited last week. We are actually waiting to hear back from 5, as both James Cooper and Jeffrey Selchick declined our offer. Finally, please note that the UFT's engagement in the current arbitrator selection process is in no way a waiver of the UFT's right to enter into discussions regarding the appropriateness of the number of hearing officers. -Oriana
Oriana Vigliotti, Esq. New York State United Teachers Office of General Counsel 52 Broadway, 9th Floor New York, NY 10004 (212) 533-6300 >>> "Lamont Naeemah" <NLamont@schools.nyc.gov> 10/28/2013 5:53 PM >>>
Oriana, Fromthe7invitationswhichweresentoutthispastFriday(5invitationsforTPUand2forATU),wearestillwaitingto hearbackfrom6ofthosearbitrators.Asyouknow,JamesCooperhasalreadyrespondedandhedeclinedthe invitationtojointheATUpanel.WhileTPUhasthepotentialtogain5additionalarbitratorsfromtheoutstanding invitations,ATUisonlyleftwith1possiblearbitratorappointmentfromthisroundofinvitations. Atthistime,ifweonlyinvite1additionalarbitratortotheATUpanelfromthecurrentlist,thatwouldonlyallowfor2 additionalarbitratorstobeseatedtothemisconductpanel.

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AstherecontinuestobeaneedforadditionalarbitratorsonboththeTPUandATUpanelandsincethepartiesneedto makeeveryefforttoseatthefullpanel,theDeptwillagreetoinvite8arbitratorstoTPUand2arbitratorstoATU. PleaseadviseastowhethertheUFTwillagreetothiscompromise. Thanks.


From: Oriana Vigliotti [mailto:ovigliot@nysutmail.org] Sent: Monday, October 28, 2013 5:17 PM To: Brantley Laura; Lamont Naeemah; 'ARoss@uft.org' Cc: Ariana A. Donnellan; Claude Hersh; Isabel Lappin; Jennifer Hogan; Jackson-Chase Courtenaye; DaCosta Dennis; Pope Marvin; Cooney Tracy; Carol Gerstl; 'eprocida@uft.org' Subject: RE: UFT Proposed Arbitrators
Naeemah, In light of the current composition of the Panel and the outstanding invitations, the UFT would be willing to agree to 9 TPU invitations and 1 ATU invitation. -Oriana
Oriana Vigliotti, Esq. New York State United Teachers Office of General Counsel 52 Broadway, 9th Floor New York, NY 10004 (212) 533-6300>>> "Lamont Naeemah" <NLamont@schools.nyc.gov> 10/28/2013 5:07 PM >>>
Oriana: AstherecontinuestobeaneedformorearbitratorsonboththeATUandtheTPUpanel,theDOEsuggeststhatthe partiesinvite7arbitratorstoTPUand3toATU.

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Wesuggestthatthefollowingarbitratorsbeinvitedtotherespectivepanelsasfollows: TPUMarleneGold,MichaelLazan,DanielBrent, EliotH.Shaller,EdwardBattisti,MaryJaneBolter,LouisVeronne ATUIraLobel,MariannSchick,EugeneGinsberg Pleaseadviseastowhetherthisisacceptable.


From: Oriana Vigliotti [mailto:ovigliot@nysutmail.org] Sent: Monday, October 28, 2013 2:34 PM To: Brantley Laura; Lamont Naeemah; 'ARoss@uft.org' Cc: Ariana A. Donnellan; Claude Hersh; Isabel Lappin; Jennifer Hogan; Jackson-Chase Courtenaye; DaCosta Dennis; Pope Marvin; Cooney Tracy; Carol Gerstl; 'eprocida@uft.org' Subject: RE: UFT Proposed Arbitrators
Laura and Naeemah, The UFT proposes that the parties invite all 10 newly-agreed upon arbitrator selections to the TPU panel. Please advise if this is acceptable. -Oriana
Oriana Vigliotti, Esq. New York State United Teachers Office of General Counsel 52 Broadway, 9th Floor New York, NY 10004 (212) 533-6300>>> "Brantley Laura" <LBrantley@schools.nyc.gov> 10/28/2013 12:31 PM >>>
TheDepartmentselectsthefollowingarbitratorsfromtheUFTslist: 1. LouisVerrone 2. IraLobel 3. MariannSchick

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4. MarleneGold 5. MichaelLazan 6. DanielBrent Thanks, Laura

From: Lamont Naeemah Sent: Monday, October 28, 2013 11:29 AM To: 'ovigliot@nysutmail.org'; Brantley Laura; 'ARoss@uft.org' Cc: 'adonnell@nysutmail.org'; 'chersh@nysutmail.org'; 'ilappin@nysutmail.org'; 'jhogan@nysutmail.org'; Jackson-Chase Courtenaye; DaCosta Dennis; Pope Marvin; Cooney Tracy; 'cgerstl@uft.org'; 'eprocida@uft.org' Subject: Re: UFT Proposed Arbitrators
Ok
From: Oriana Vigliotti [mailto:ovigliot@nysutmail.org] Sent: Monday, October 28, 2013 11:12 AM To: Brantley Laura; Lamont Naeemah; 'Adam Ross' <ARoss@uft.org> Cc: Ariana A. Donnellan <adonnell@nysutmail.org>; Claude Hersh <chersh@nysutmail.org>; Isabel Lappin <ilappin@nysutmail.org>; Jennifer Hogan <jhogan@nysutmail.org>; Jackson-Chase Courtenaye; DaCosta Dennis; Pope Marvin; Cooney Tracy; Carol Gerstl <cgerstl@uft.org>; 'Ellen Procida' <eprocida@uft.org> Subject: RE: UFT Proposed Arbitrators Naeemah, Let's exchange at 12:30. -Oriana
Oriana Vigliotti, Esq. New York State United Teachers Office of General Counsel 52 Broadway, 9th Floor New York, NY 10004 (212) 533-6300>>> "Lamont Naeemah" <NLamont@schools.nyc.gov> 10/28/2013 10:42 AM >>>
TheDOEispreparedtoexchangeliststoday.Pleaseadviseastowhattimeyouwouldliketodoso. Thankyou.
Naeemah Lamont Director, Teacher Performance Unit NYC Department of Education
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Office of The General Counsel 51 Chambers Street, Room 611 New York, N.Y. 10007 Tel: (212) 374-6034 Fax: (212) 374-9298 NLamont@schools.nyc.gov

NYSCEF DOC. NO. 53
Stone, Mac
From: Sent: To: Cc: Subject: Claude Hersh <chersh@nysutmail.org> Friday, November 08, 2013 1:10 PM Dennis DaCosta; Laura Brantley; Marvin Pope; Naeemah Lamont; Tracey Cooney Jennifer Hogan; Lena Ackerman; Oriana Vigliotti; Richard Casagrande; Adam Ross; Carol Gerstl; Ellen Procida Exchange of Arbitrator Lists
I am writing to suggest that we exchange our next list of 10 arbitrators on Tuesday, November 12, 2013. Please advise if this is acceptable to the DOE. Thanks, Claude
LEGALLY PRIVILEGED AND CONFIDENTIAL The information contained in this e-mail is legally privileged and confidential. It is intended only for the use of the individual or entity named above. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copy of this e-mail is strictly prohibited. If you have received this e-mail in error, please immediately notify me at chersh@nysutmail.org and destroy all hard copies and any copies that may be on your computer. Thank you, CLAUDE I. HERSH Assistant General Counsel New York State United Teachers 52 Broadway, 9th Floor New York, New York 10004 212-533-6300 Fax: 212-228-9253 chersh@nysutmail.org

NYSCEF DOC. NO. 54
Stone, Mac
From: Sent: To: Cc: Subject: Brantley Laura <LBrantley@schools.nyc.gov> Tuesday, November 12, 2013 4:05 PM Claude Hersh Oriana Vigliotti; Adam Ross; Cooney Tracy; Lamont Naeemah; DaCosta Dennis; Pope Marvin Arbitrators for the 3020-a Panel
Goodafternoon, TheDepartmentproposesthefollowingarbitratorsforthe3020aPanel: 1. HowardN.Beldock 2. GloriaJohnson 3. LeonaBeane 4. ReginaWaynesJoseph 5. HowardS.Eilen 6. ThomasRinaldo 7. StuartPohl 8. LiseGelernter 9. HaroldRichman 10. SallySteinbergBrent Thanks, Laura
Stone, Mac
From: Sent: To: Cc: Subject: Oriana Vigliotti <ovigliot@nysutmail.org> Tuesday, November 12, 2013 4:05 PM Laura Brantley; Naeemah Lamont Claude Hersh; Jennifer Hogan; Dennis DaCosta; Marvin Pope; aross@uft.org; cgerstl@uft.org; eprocida@uft.org UFT Proposed Arbitrators
The UFT proposes the following arbitrators for the 3020-a Panel:
Lise Gelernter Albert Appell James Cashen Stephen Bluth Melissa Biren Stuart Bauchner Roger Maher Peter Adomeit Jay Siegel Ruth Raisfeld
Oriana Vigliotti, Esq. New York State United Teachers Office of General Counsel 52 Broadway, 9th Floor New York, NY 10004 (212) 533-6300

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NYSCEF DOC. NO. 61
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK --------------------------------------------------------------------BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK, Plaintiff -againstUNITED FEDERATION OF TEACHERS, Defendant. ---------------------------------------------------------------------
x : : : : : Index No. 451734/2013 : (IAS Part 62 : Wright, J.) : : : : : x
DEFENDANT UNITED FEDERATION OF TEACHERS REPLY BRIEF IN FURTHER SUPPORT OF MOTION TO DISMISS OR, IN THE ALTERNATIVE, TO STAY LITIGATION PENDING ARBITRATION
TABLE OF CONTENTS TABLE OF AUTHORITIES .......................................................................................................... ii PRELIMINARY STATEMENT .....................................................................................................1 ARGUMENT ...................................................................................................................................6 POINT I THE BOES CONCLUSORY ASSERTIONS OF DELAY ARE INSUFFICIENT TO SUPPORT A CLAIM OF BREACH........................6
A. That Fewer Than 39 Arbitrators Have, At This Point, Accepted Positions On The Panel Is Not Evidence Of Breach................................................8 B. The BOE Has Failed To Allege Facts Demonstrating A Delay, Let Alone An Unreasonable Delay ............................................11 C. The BOEs Unilateral And Premature Invocation Of the AAA Process Cannot Manufacture A Breach ............................................................15 POINT II THE BOE HAS EXPLICITLY AGREED TO ARBITRATE DISPUTES REGARDING THE SIDE LETTER AND AAA RESOLUTION PROCESS ................................................................................16
CONCLUSION ..............................................................................................................................20
TABLE OF AUTHORITIES Page(s) CASES 511 W. 232nd Owners Corporation v Jennifer Realty Co., 98 N.Y.2d 144 (2002) ........................................................................................................10, 11 ADC Orange, Inc. v Coyote Acres, Inc., 7 N.Y.3d 484 (2006) ................................................................................................................11 Bass v Sevits, 78 A.D.2d 926 (3rd Dept 1980) ..............................................................................................11 Bd. of Ed. of Union Free School Dist. No. 3 of Town of Huntington v Associated Teachers of Huntington, Inc., 30 N.Y.2d 122 (1972) ..............................................................................................................17 Consendine v. Portsville Central School District, 12 N.Y.3d 286 (2009) ....................................................................................................5, 16, 17 Fowler v Am. Lawyer Media, Inc., 306 A.D.2d 113 (1st Dept 2003) ..............................................................................................6 IDT Corp. v. Tyco Group, S.A.R.L., 13 N.Y.3d 209 (2009) ......................................................................................................2, 9, 10 IDT Corp. v. Tyco Group, S.A.R.L., 104 A.D.3d 170 (1st Dept 2012) ..............................................................................................9 La Potin v. Lang Co. Inc., 30 A.D.2d 527 (1st Dept 1968) .................................................................................................6 Mason v. Mason, 41 A.D.2d 607 (1st Dept 1973) ..............................................................................................18 Mt. Sinai Hospital v The 1998 Alexander Karten Annuity Trust, 2013 N.Y. Slip Op. 5667 (1st Dept 2013) ..............................................................................10 STATUTES Education Law 3020-a ................................................................................................4, 13, 16, 18 Education Law 3020(4)...............................................................................................................16 Education Law 3020(4)(a) ................................................................................................4, 16, 17
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PRELIMINARY STATEMENT By this action, the Board of Education of the City School District of the City of New York (BOE) seeks to manufacture a delay in agreeing to arbitrators as an excuse to abort the mutual arbitrator selection process and prematurely invoke the AAA process. Yet, in so doing, the documentary record shows that the BOE first attempted to coerce the United Federation of Teachers (UFT) into agreeing to prematurely utilize the AAA process under threat of litigation and now attempts to foist sole responsibility for the pace of selection of arbitrators onto the UFTs shoulders. But, an agreement to agree on a panel of arbitrators, like the Side Letter at issue here, is bilateral and requires action by both sides to achieve its desired result. Put simply, the clich that it takes two to tango is apt here: Both sides need to agree to select arbitrators. To fault the UFT for making researched choices as to which arbitrators it proposed and agreed to, when the parties have proposed the same number of arbitrators and struck and agreed to nearly the same number of arbitrators begs the question: if this is breach, has not the BOE also breached the agreement? Moreover, as shown below, that the BOE recites a mantra of delay does not in fact make it valid. Just as the BOE could have, but did not, simply agree to the arbitrators proposed by the UFT, so too, the UFT has a right under the Side Letter to make a reasonable study of the proposed arbitrators, selecting those it believes to be qualified and appropriate. Yet, the BOEs case rest on an inexplicable (and unsupported) assertion that it is solely the UFTs actions that have resulted in fewer than 39 arbitrators accepting positions to date. The fact is the BOE fails to assert facts from which it could reasonably be concluded that the UFT delayed or halted the selection process in bad faith. To be clear, that it has taken the parties some time to work through rounds of proposed arbitrators even if it could be characterized as delay alone is not
sufficient to state a claim for breach of the Side Letter. That is precisely what the Court of Appeal held in IDT Corp. v. Tyco Group, S.A.R.L., 13 N.Y.3d 209 (2009), finding that a delay there of three years (a far cry from the few weeks alleged at best) while the parties negotiated an agreement was insufficient to sustain a claim for breach on a motion to dismiss. The BOE has presented no authority to the contrary. Thus, mere delay particularly of the short nature asserted by the BOE here is not sufficient to state a claim for breach. Accordingly, if failure to agree to all the arbitrators proposed by the other side is evidence of breach as the BOE seems to argue then the BOE is equally guilty. That, of course, is not the measure of breach, particularly in cases such as these where the agreement requires that the parties mutually agree to the selected arbitrators, setting no time frame within which agreement must be reached. That the BOE would like the process to have moved more quickly is not determinative. The BOE could have taken steps on its part to propose additional names and select additional arbitrators, just as it suggests the UFT might have. Nonetheless, the process has progressed both before and after the commencement of the action. To date, 22 arbitrators have accepted positions on the panel, with seven invitations outstanding, bringing the parties closer to the 30 arbitrators the BOE stated in its September 19, 2013 letter would be acceptable. Hardly evidence of bad faith or breach. Contrary to the BOEs rhetoric, the selection process has continued despite the interruption of the BOEs threatening letters, unilateral resort to the AAA and commencement of this action, not because of it. Although not reflected in the Complaint, the BOE now argues that one of the precipitating factors to its suit was the UFTs supposed failure to immediately respond to the lists of arbitrators exchanged on September 6, 2013. As proof of this alleged delay, the BOE asserts that the UFT did not address the lists until October 15, 2013. That allegation, 2
however, is directly contradicted by the facts, demonstrating that it was the BOE who ignored the lists, preferring to unilaterally skip ahead to the AAA resolution process. Indeed, after the exchange of lists on September 6th, the process continued with the parties meeting in person on September 16, 2013 to discuss the appropriate number of arbitrators. (See accompanying Affirmation of Adam S. Ross, dated November 13, 2013 (Ross Aff.), 4). On September 19th, the BOE sent its letter making no mention of the outstanding lists of arbitrators and positing an ultimatum: either the UFT agree within 24 hours to select 30 arbitrators within the following 15 days or the BOE would resort to legal remedies. (Complaint, Ex. 2).1 There is no basis in the Side Letter or law empowering the BOE to set such unilateral and arbitrary deadlines and demands. In its response letter, the very next day, the UFT noted the outstanding lists and reiterated its readiness to continue with the ongoing process. (Complaint, Ex. 3). Rather than respond to the UFT, the BOE went directly to the AAA. (Complaint, Ex. 4). Again, the UFT responded referencing the outstanding list and reiterating its willingness to continue with the process. (Complaint, Ex. 5). It was only at this point that the BOE even mentioned the outstanding lists in its subsequent letter to the AAA, and then, only to dismiss the importance of the lists because they did not represent, in the BOEs mind, a silver bullet solution that would achieve a full panel in one step. (Complaint, 35-36, Ex. 6). The UFT again suggested that BOE representatives contact the UFT to continue the process by email on October 4, 2013 (Ross Aff., 6, Ex. 2). It was only after all these efforts that the UFT sent its October 15, 2013 letter not, as the BOE posits, addressing the issue for the first time in weeks, but, again addressing an open issue that the BOE chose to avoid (Ross Aff., 7,Ex. 3). The letters and emails speak for themselves, contradicting the BOEs assertions. Accordingly, the BOEs claim for breach of
A copy of the Complaint with exhibits is annexed as Ex. 1 to the Affirmation of Alan M. Klinger (Klinger Aff.), submitted with the UFTs moving papers as Ex. 1.
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contract based upon the UFTs supposed delay of a couple of weeks in responding to the September 6 lists (from which the parties have since made selections and exchanged further lists), should be dismissed. However, even if a breach were plead, this action should be stayed pending resolution of the UFTs already-filed grievance through the parties grievance and arbitration process set out in Article 21 of the parties collective bargaining agreement (CBA). (Klinger Aff., Ex. 4) The BOEs contorted argument for redrafting the parties CBA to exclude Article 21G (modifying Education Law Section 3020-a) from the explicit and broad arbitration provision finds no support in the law or the sole case relied upon by the BOE. As a threshold matter, the BOE cannot dispute that Education Law 3020(4)(a) explicitly authorizes the parties to agree to a different disciplinary process in a collective bargaining agreement. Nor does the BOE dispute that the parties have made just such an agreement. Indeed, the BOEs claim itself is telling, for it has brought a straightforward breach of contract claim seeking to enforce the CBA, not any proceeding attempting to enforce unspecified statutory rights. The BOEs argument, that somehow just Article 21G of the CBA takes on the qualities of a statute that may not be waived, is contrived at best. The language the BOE relies on, without any citation to authority, simply states that where the parties have opted to replace the statutory process with a contractually agreed-to process, they cannot be faulted for failing to also comply with the statute i.e., compliance with the contractual process is deemed to comply with the statutory requirements nothing more, nothing less. The language says nothing about arbitration. In fact, even if the language did somehow link the CBA provision with the statute, that would not create an inconsistency. Allowing the parties to arbitrate the implementation of the contractual process in no way constitutes a waiver of any right under the statute that has 4
not been already waived by the BOEs explicit agreement to Article 21G. Put simply, there is no statutory right to be free from the contractual grievance and arbitration process. Nor is there a statutory right to a breach of contract cause of action to enforce either the statute or the CBA. The statute, aside from authorizing modification in a CBA, does not address the grievance and arbitration process at all. Moreover, even if the BOEs argument were to be accepted, the BOE itself admits that the matter would be arbitrable if the CBA provided an explicit agreement to arbitrate. The BOE has little choice but to so concede because the sole case it relies upon, Consendine v. Portsville Cent. Sch. Dist., 12 N.Y.3d 286, 294 (2009), authorizes waiver of statutory rights so long as it is explicit. Here, Article 22 of the CBA, which was agreed to by the BOE in the same manner as Article 21G, explicitly defines a grievance to include any violation, misinterpretation or inequitable application of any provisions of this Agreement. (Article 22.A (emphasis added), Klinger Aff., Ex. 4). This Agreement is plainly the CBA, which includes Article 21G. There is no limiting language contained anywhere in the CBA or the Side Letter that would permit the BOE to rewrite the definition of a grievance to exclude Article 21G. Indeed, as discussed infra, in those few instances where the parties have excluded a provision from the grievance process, they have done so explicitly. Indeed, as shown below, this is not the first time the UFT has filed a grievance under Article 21G; prior grievances were processed by the BOE in the same manner as other grievances, with no objection ever having been raised on the grounds now being concocted to avoid the proper grievance and arbitration process. Likewise, at the Step 2 hearing on the grievance in this matter, the BOE failed to raise an arbitrability argument. Thus, if the Court does not dismiss the BOEs claims as a whole, the action should at least be stayed pending resolution of the parties contractual grievance and arbitration process. 5
ARGUMENT POINT I THE BOES CONCLUSORY ASSERTIONS OF DELAY ARE INSUFFICIENT TO SUPPORT A CLAIM OF BREACH A search of the BOEs Complaint and brief in opposition reveals a paucity of facts alleged in support of the claimed breach. Indeed, the Complaint contains no facts to support the conclusory allegation that the UFT engaged in intransigent delay. In considering a motion to dismiss, [v]ague and conclusory allegations, such as those relied upon here, are insufficient to sustain a breach of contract cause of action. Fowler v Am. Lawyer Media, Inc., 306 A.D.2d 113 (1st Dept 2003) (quoting Gordon v Dino De Laurentiis Corp., 141 A.D.2d 435, 436 (1st Dept 1988)). Equally insufficient are any factual allegations contradicted by documentary evidence attached to the complaint itself. See La Potin v. Lang Co. Inc., 30 A.D.2d 527, 528 (1st Dept 1968). As set forth below, the BOEs claims rest almost entirely on conclusory assertions of delay that find no support in the documentary record. The BOEs basic claim is that the UFT continually failed to agree to a full panel of 39 arbitrators (Complaint, 4). But in all the briefing before this Court, the BOE fails to explain how the UFT fail[ed] to agree. (This is particularly puzzling given the parties having agreed on which existing panel members to invite back, then agreed on 14 new arbitrators to invite and, more recently, agreed on some 17 more arbitrators to invite.) The Side Letter and the CBA explicitly require that both parties agree to each arbitrator. At no time did the UFT assert, nor does the BOE claim, that the UFT declined to propose or select any additional arbitrators. Indeed, since June 2013, when the current process began, the parties have proposed, struck from each others lists and agreed to almost the exact same number of arbitrators: with the UFT selecting 15 new arbitrators and the BOE selecting 16 new ones. (Ross Aff., 17). 6
The BOEs asserted failure to agree actually reduces to a claim of brief delay for weeks (BOE Br., p. 5) in responding to one of the several lists of proposed arbitrators (BOE Br., p. 4). 2 But even that assertion of delay stands upon few factual allegations and is belied by the documentary evidence. First, the Complaint does not mention the September 6 exchange of lists (or any prior exchange), except to note that, in the BOEs view, the existence of the lists was immaterial to the commencement of this action because, even if the parties had agreed to invite all 20 arbitrators at the end of September, it would not have immediately resulted in selection of all 39 arbitrators.3 This self-proclaimed entitlement to have the entire panel chosen in one sitting, and refusal to accept that selection occurs in rounds, appears to be at the heart of the BOEs impatience and claim that the UFT failed to agree. The BOE indicates in its Complaint that it would rather jump ahead to the AAA process than continue to work with the UFT on the proposed lists. (See Complaint, 35-41) Yet, the Side Letter does not give the BOE that right. In fact, the AAA process would similarly operate in rounds, with typically one arbitrator chosen from each list. (Ross Aff., 5). Thus, setting aside for now the progress made by the parties between June and September 6, 2013 determining which arbitrators to invite back from the prior year and selecting 14 new arbitrators to invite the BOEs factual allegations of delay focus almost entirely on the BOEs series of letters to the UFT and the AAA, all written within a span of some 10 days. In so doing, the BOE asserts but a few facts: (1) there are not yet 39 arbitrators who have accepted positions on the panel (Complaint, 18, 22; BOE Br., p. 3); (2) the UFT did not agree to the
References to BOE Br. are to the BOEs Memorandum of Law in Opposition to the UFTs motion to dismiss, or, in the alternative for a stay. 3 Yet even assuming the unlikely consensus on the twenty proposed names, with only fourteen arbitrators agreed upon, rudimentary math shows that the number required for a full panel 39 would not be reached. (Complaint, 36).
ultimatum contained in the BOEs September 19 letter (that the UFT agree within 24 hours to select 30 arbitrators in 15 days) (Complaint, 31-32); and (3) the UFT disputed the BOEs premature invocation of the AAA process, explicitly stating by letter it believed the parties should continue the ongoing selection process (Complaint, 31-32). As set out below, none of the BOEs facts, either individually or combined in the context of the parties selection process, can support a claim that the UFTs actions rise to the level of breach. A. That Fewer Than 39 Arbitrators Have, At This Point, Accepted Positions On The Panel Is Not Evidence Of Breach For some inexplicable reason, the BOE asserts that, despite the process requiring mutual consent from the parties (and ultimate consent from the invited arbitrators), it is the UFT that is solely to blame for the absence of 39 arbitrators. There is no support for this conclusion either in the law or in the facts alleged by the BOE. Indeed, buried in a footnote, is the BOEs reluctant admission that the UFT does not control how many arbitrators accept positions. Instead, the BOE is forced to clarify what it actually accuses the UFT of: DOE holds the UFT accountable as should this Court for its conduct in the selection process, which provides the only opportunity for arbitrators appointment. It is the UFTs delay in selecting and inviting as large a pool of arbitrators as possible which has resulted in the lack of a full, 39-arbitrator panel. (BOE Br., p. 10, n. 3). Again, the BOE does not specify what conduct by the UFT it believes constitutes delay. Moreover, as explained infra, the UFT and the BOE have selected and invited virtually the same number of arbitrators. Thus, it is not clear how the UFT interfered with the parties ability to invite as large a pool of arbitrators as possible. That the BOE would like the selection process to move more quickly does not constitute breach and cannot shift sole responsibility to the UFT. The BOE could have agreed to more of the arbitrators proposed by 8
the UFT. It did not. Just as the UFT did, the BOE exercised its right under the Side Letter to select those arbitrators it felt more qualified for the positions and strike those from the UFTs list that it did not. Indeed, the purpose of the process is to ensure a panel that both sides has confidence in, not simply to identify 39 randomly chosen individuals. That the process has not proceeded as fast as the BOE would like (through no small part due to the BOEs own actions), does not license the BOE to carve out the UFTs rights to select (and not select) arbitrators while continuing to reserve that right to itself. Simply not acquiescing to each demand made by the other side as neither the UFT nor the BOE has done here does not support a claim for breach. That is precisely what the Court of Appeals decision in IDT Corp. v. Tyco Group, S.A.R.L., 13 N.Y.3d 209 (2009), stands for. In IDT Corp., the Court of Appeals affirmed the trial courts grant of a motion to dismiss, stating, inter alia, that the alleged failure to agree on terms within three years was not sufficient to state a claim for breach of the agreement. Id., at 214. The IDT Corp. Court did not find persuasive that the parties had not yet reached agreement, despite three years of effort. Here, the alleged facts are far less compelling for the parties have reached numerous agreements (agreeing to invite some 31 new arbitrators) and the asserted delay to the extent it exists at all was but a couple of weeks. As here, the agreement in IDT Corp. required consent from both sides and did not provide a specific time period in which agreement must be reached. Indeed, in IDT Corp. , the plaintiff was allowed to proceed with its action only when it amended the complaint to assert that defendant had disavowed the agreement and refused to engage in further discussions. IDT Corp. v. Tyco Group, S.A.R.L., 104 A.D.3d 170, 176 (1st Dept 2012). While, contrary to the BOEs mischaracterization, the UFT does not assert that complete disavowal of the agreement is the only circumstance in which a claim for breach may 9
be stated, the instant facts are categorically different, with discussions ongoing since this past June, save for the interruption caused by the BOEs threats. Moreover, the BOE has presented no authority that would support its claim that the facts it alleges are sufficient to state a claim for breach. Nor can the BOE distinguish the decision in IDT Corp. Instead, the BOE resorts to hyperbole, incorrectly characterizing the UFTs position as stating that no amount of unreasonable delay can ever give rise to a claim of breach. But, the key distinguishing factor is the BOEs characterization of the delay as unreasonable. The BOE has not alleged any facts to support a claim of unreasonable delay on the part of the UFT either before the litigation commenced or since. Indeed, as set out in detail infra at 11-15, the UFT does not believe the facts alleged demonstrate any delay, let alone delay that could support a finding of bad faith. Nor can the BOEs general reference to the covenant of good faith and fair dealing rescue its claim. (BOE Br., p. 4). In that regard, the BOE relies upon Mt. Sinai Hospital v The 1998 Alexander Karten Annuity Trust, 2013 N.Y. Slip Op. 5667 (1st Dept 2013), for the unastonishing proposition that all contracts have an implied covenant of good faith and fair dealing. However, the BOE cites no cases suggesting that the few weeks of delay in one step of a multi-round process could constitute a violation of that covenant. In Mt. Sinai, the court considered a delay of 12 years, in the face of explicit contract language requiring that the at-issue claim be presented within two years. Thus, if anything, the case militates for dismissal given how de minimis the allegations here are by comparison. Similarly, the Court of Appeals case relied upon by Mt. Sinai for the same proposition, 511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 N.Y.2d 144 (2002), provides no assistance to the BOE. First, that case addressed an alleged delay of 10 years, again much longer 10
than the one at issue. Second, in holding that the plaintiff met the threshold on a motion to dismiss, the Court specifically relied upon the existence of allegations describing specific actions taken by the defendant, demonstrating that the delay was in bad faith. Id. at 152, 154. The BOE provides no such specific allegations here.4 B. The BOE Has Failed To Allege Facts Demonstrating A Delay, Let Alone An Unreasonable Delay Turning to the actual factual allegations in the Complaint, they are few and reveal a picture quite different from the BOEs rhetoric. First, the Complaint skips over almost entirely the progress made by the parties from July to early September in determining which panelmembers to invite back and agreeing on 14 new arbitrators to invite: Beginning in July 2013, given the failure to reach a full panel in the prior years, a consequent preexisting backlog, and the anemic pace at which selections had proceeded, due to the UFTs intransigent delay, the DOE sought to expedite the selection process, with no success. (Complaint, 20).5 The Complaint provides no facts to support the characterization of intransigent or any other delay. The Complaint then leaps immediately to the BOEs September 19th letter threatening legal actions. (Complaint, 21). There are no factual
4
The BOEs reference to ADC Orange, Inc. v Coyote Acres, Inc., 7 N.Y.3d 484 (2006), and Bass v Sevits, 78 A.D.2d 926 (3d Dept 1980), is likewise unhelpful. Both cases are cited for the proposition that a party cannot rely on the failure of the counterparty to perform under the contract when the party is responsible for frustrating the counterpartys performance. (BOE B. P. 5.) In each of those cases when the court speaks of reliance on the failure of a counterparty to perform, the court is referring to situations where the liable party tried to excuse its own non-performance based on the counterpartys non-performance. See ADC Orange, Inc., 7 N.Y.3d at 488; Bass, 78 A.D.2d at 926. But the UFT has never relied on the BOEs non-performance in this manner. In fact, unlike the defendants in ADC Orange Inc. and Bass, the UFT has fully performed under the contract, and has no need to try to excuse any alleged non-performance. Thus, these cases are totally inapposite to the present dispute.
5
Not only are the statements in this paragraph vague and conclusory, but they are also demonstrably wrong. The UFT has submitted documentary evidence, not challenged by the BOE, demonstrating that it was the UFT who initiated discussions regarding selection of arbitrators at the end of June 2013, with the goal of moving the process forward. (See Affirmation of Claude I. Hersh, dated October 16, 2013 (Hersh Aff.), 7, Ex. 1, annexed to the Ross Aff. as Exhibit 1). The UFT has also presented evidence that it attempted to persuade the BOE to not drop any of the arbitrators on the prior years panel, so as to minimize the number of new arbitrators that would be necessary. (Hersh Aff., 7-8, Ex. 2). Nonetheless, on July 8, the BOE advised that it would be dropping three arbitrators.
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allegations as to any specific actions (or inactions) taken by the UFT between July and September 19, 2013. However, the BOE has acknowledged in this proceeding that progress was made in that period of time. Indeed, it is only since the UFT reiterated its willingness to select arbitrators from the lists exchanged on September 6, 2013 that the BOE has pointed to those lists as supposed evidence of delay. (BOE Br., p. 4). However, a review of the facts alleged by the BOE leading up to the commencement of this action, and the subsequent actions taken under the supervision of the Court, demonstrate precisely what the UFT has maintained: that the selection process was and continues to be ongoing and that the UFT has acted in good faith and has not at any point refused to participate in the process. Beginning with the September 6 lists, it is clear the UFT endeavored to move the process along. The UFT referred to the outstanding lists and its willingness to continue discussions when responding to each of the BOEs threatening letters. Thus, the UFTs reminding the BOE of the lists after the commencement of the action demonstrates that the UFT has been willing to continue the process despite the BOE having interrupted it with unnecessary litigation, not because of it. Indeed, the facts reveal that it was the BOE who attempted to cut-off the selection process in favor of its unilateral invocation of the AAA process and litigation, and that temporarily delayed the parties work towards selection of a full panel: September 6 (Friday): Lists of proposed arbitrators are exchanged by the UFT and the BOE. (Complaint, Ex. 3) September 10 (Tuesday): The BOE emails the UFT proposing an exchange of selected names for September 12 (Thursday). (Ross Aff., Ex. 5). September 16 (Monday): Representatives of the UFT and the BOE meet to discuss the appropriate number of arbitrators. (Ross Aff., 4). September 19 (Thursday): The BOE sends a letter to UFT threatening that unless the UFT agrees to select a panel of 30 arbitrators by the next day, with selections to be completed by October 4 (15 days later), the BOE will pursue all legal 12
remedies including AAA arbitration. The BOE makes no mention of the pending lists of arbitrators. (Complaint, Ex. 2). September 20 (Friday): The UFT responds to the BOEs letter, stating that it believes negotiations are still productive and ongoing, and reminds that there are pending lists of arbitrators. The BOE does not respond to this letter. (Complaint, Ex. 3). September 23 (Monday): The BOE sends a letter to the AAA, unilaterally invoking intervention, stating [a]fter discussions that have lasted an extended period of time the parties have been unable to agree on a full complement of arbitrators and require 20 more arbitrators at this time to fill their Education Law 3020-a panel. The BOE does not mention any other facts regarding the negotiations or the outstanding lists of 20 arbitrators. (Complaint, Ex. 4). September 24 (Tuesday): The UFT sends a response letter to the AAA, reiterating that negotiations are still ongoing; reaffirming its continued commitment to continue the process; and noting the pending lists of arbitrators. The UFT asks the AAA not to become involved prematurely. (Complaint, Ex. 5). September 25 (Wednesday): The BOE sends a second letter to the AAA, responding to the UFTs letter. The BOE complains about the pace of the parties progress and asks the AAA to speed things along. For the first time in its series of letters, the BOE acknowledges the outstanding lists, stating [t]his month, the BOE and UFT proposed arbitrators, but none have been invited as the UFT has not agreed as to when they will be able to move forward with the selection process. The BOE ignores the UFTs two prior mentions of the lists in its letters. The following day, the BOE files suit. (Complaint, Ex. 6) September 26 (Thursday): The AAA informs the BOE that it will not intervene, since there is no agreement between the BOE and UFT about whether intervention is appropriate. The BOE files suit for breach of contract against the UFT. September 27 (Friday): The BOE applies for a preliminary injunction against the UFT. October 4 (Friday): Claude Hersh, on behalf of the UFT, continues discussions regarding arbitrator assignments and selection of arbitrators from the September 6, 2013 lists with Dennis DaCosta, Deputy Director, BOE Teacher Performance Unit. (Ross Aff., 6). Mr. Hersh sends Mr. DaCosta a follow-up email, advising that, with regard to continuing selection, BOE General Counsel, Courtenaye Jackson-Chase should contact UFT General Counsel, Adam S. Ross to discuss. (Ross Aff., Ex. 2). October 15: Mr. Ross writes to Ms. Jackson-Chase reiterating that [t]he UFT remains ready to provide you with names of agreeable hearing officers from your [September 6] list. (Ross Aff., 7, Ex. 3). October 16: Ms. Jackson-Chase writes to Mr. Ross, asserting that the UFTs letter indicating its continued readiness to discuss the September 6 list is somehow 13
evidence of delay. The letter suggests that selection from that list would be pointless as it would not result in the appointment of a full contingent of arbitrators. (Ross Aff., 8, Ex. 4). Finally, rather than suggest a time to select arbitrators, the BOE demands that the UFT prove its commitment to selecting arbitrators by acquiescing to the BOEs unilateral (and premature) invocation of the AAA process. Id. October 17: Court appearance on the BOEs application for a preliminary injunction. That afternoon, the BOE selects three arbitrators from the UFTs September 6 list. (Ross Aff., 10, Ex. 5). October 18: The UFT selects three arbitrators from the BOEs September 6 list and suggested the parties attempt to each select a fourth. The UFT also agrees to exchange another list of proposed arbitrators on October 22, 2013. (Ross Aff., 11, Ex. 5). The BOE declined to select a fourth arbitrator, but indicates its willingness to exchange new lists on October 21 or 22. Id. October 21: The UFT selects a fourth arbitrator from the September 6 list. The UFT also confirms it will be prepared to provide a list of 10 proposed arbitrators the following day and would discuss future list exchanges. (Ross Aff., 12, Ex. 6). October 22: The parties exchanged lists of 10 names each. The BOE indicates it will be prepared to select names on Friday. The UFT asked to make selections on Monday, to allow time to research proposed arbitrators from outside the New York City area about whom information could not immediately be obtained. The UFT requested that the BOE provide information about the individuals it proposed, to accelerate the process. The UFT also states that it will be prepared to discuss further lists once the parties have a sense of how many arbitrators would be selected from the current lists. The BOE asserts that weekly list will still be needed. (Ross Aff., 13, Ex. 8). October 24: Follow-up conference call with the Court. The UFT and the BOE agree to continue to make exchanges of proposed arbitrators. October 28: The BOE selects six names from the Oct. 22 lists. (Ross Aff., 14, Ex. 9). The UFT selects four names. The parties discuss how the invited arbitration should be assigned within the panel. Id. October 29: UFT serves its motion to dismiss or, alternatively stay this proceeding. November 7: BOE serves its opposition brief. November 8: Having not received any further communications from the BOE regarding the exchange of lists, the UFT proposes another exchange on November 12, 2013. (Ross Aff., 15, Ex. 10). November 12: The parties exchange lists of 10 names each. (Ross Aff., 16, Ex. 11).
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This timeline demonstrates an ongoing, mutual process. True, the BOE might prefer the process move more quickly and, apparently, would prefer to utilize the AAA rather than do the work of proposing and selecting arbitrators with the UFT, but those desires cannot transform the UFTs good faith efforts into a breach. The CBA and Side Letter require that the parties mutually agree on the arbitrators. Such agreement has been progressing, despite the BOEs resort to litigation. While the UFT does not believe that 39 arbitrators are needed (and has raised that with the BOE, particularly if the parties return to the previously successful mediation adjunct), the facts demonstrate that the parties have moved steadily to their goal. Presently, 22 arbitrators have consented to join the panel, with seven invitations still outstanding. This brings the parties within striking distance of 30 arbitrators, the figure which the BOE indicated in its September 19 letter would be acceptable. And, should this not occur, the exchange of lists would continue. C. The BOEs Unilateral And Premature Invocation Of the AAA Process Cannot Manufacture A Breach The BOE attempts to summarily dismiss the UFTs argument that resort to the AAA procedure was premature by calling it semantic (BOE Br., pp. 9-10). Yet, the propriety of the BOEs attempt to unilaterally invoke the AAA process is at the heart of the matter, requiring an arbitrator to interpret the parties agreement and determine whether under the current circumstances the contract requires the parties to resort to the AAA process (as the BOE asserts) or not (as the UFT asserts). If the arbitrator determines that invocation of the AAA process was, as the UFT urges, premature, then the UFTs actions cannot form the basis of an alleged breach. In either event that the UFT has taken the position that the contract does not require resort to a dispute resolution process at this point is not itself evidence of breach. All it evidences is that 15
the parties disagree as to the application of a term of the CBA precisely the situation in which the grievance and arbitration process should operate. POINT II THE BOE HAS EXPLICITLY AGREED TO ARBITRATE DISPUTES REGARDING THE SIDE LETTER AND AAA RESOLUTION PROCESS As a threshold matter, the BOEs contrived reading of Education Law 3020(4), is contrary to the plain text of the statute, as well as its legislative history. The BOEs attempts to set up a false conflict between the statutory language and the application of the grievance and arbitration provision of the CBA. The plain language of the statute provides that collectively bargained alternatives to the process contained in 3020-a are permissible notwithstanding the existing provisions of law. While the BOE attempts to make much of the second part of that paragraph, that merely provides that where an alternative process has been contractually agreed to and followed, there can be no claim that either the BOE or the UFT failed to adhere to the statute. 6 It does not, as the BOE seems to imply, provide a mechanism by which compliance with the contractual procedure will be determined. Nor has the BOE invoked any such process. The BOE has commenced an action for breach of the CBA. It has not sought to enforce any statutory rights. Indeed, there is no statutory right to a rotational panel (of 39 , or any other number of arbitrators, mutually agreed to by the parties or otherwise).
6
This part [of Section 3020(4)] authorizes the City of New York and the United Federation of Teachers to modify the current disciplinary procedures with an alternative process by notwithstanding provisions of law inconsistent with the bargaining agreement. This bill will only be effective upon ratifications of the contract. (Mem of Assembly Rules Comm, 2002 NY Legis Ann at 62, annexed as Exhibit 12 to the Ross Aff.). The Memorandum in Support of the bill issued by the Office of the Mayor of the City of New York contains the same language in its summary of the amendment. (Office of Mayor of City of New York Mem in Support, Bill Jacket, L 2002, ch 93, annexed as Exhibit B to the Ross Aff.). The BOE suggests that this authorization is specifically limited to just that portion of the CBA specifically addressing the Section 3020-a process and should be read in isolation from the rest of the CBA. The legislative history does not support this type of restriction, stating notwithstanding provisions of law inconsistent with the bargaining agreement, full stop. It does not say inconsistent with only those portions of the bargaining agreement that modify 3020-a. Thus, contrary to the narrow interpretation offered by the BOE, the summary suggests that the bill was intended to allow the entire CBA, including Article 22(C), to modify 3020-a.
16
Thus, there is no inconsistency between enforcement of the contractual grievance and arbitration process and the language of 3020(4)(a). The BOEs reliance on Consendine v. Portsville Cent. Sch. Dist., 12 N.Y.3d 286, 294 (2009), fails to advance its cause. As shown below, that case merely holds that waiver of a statutory right need be clear, a proposition neither relevant nor in dispute here. The BOEs citation to Consendine does not alter this conclusion. Here, there is no statutory right to be free from the contractual grievance and arbitration process. Just the opposite, public policy favors resolution of labor disputes through the grievance and arbitration process. See Bd. of Ed. of Union Free School Dist. No. 3 of Town of Huntington v Associated Teachers of Huntington, Inc., 30 N.Y.2d 122, 131 (1972) (citations omitted) (It is of more than passing significance that the Taylor Law explicitly vests employee organizations with the right to represent public employees not only in connection with negotiations as to the terms and conditions of employment but also as to the administration of grievances arising thereunder. Indeed, it is the declared policy of this State to encourage public employers and employee organizations to agree upon procedures for resolving disputes. And arbitration is, of course, part and parcel of the administration of grievances.). Indeed, the language relied upon by the BOE is itself a waiver of the requirement to comply with statute, stating that compliance with the contractual procedures obviates any required compliance with statute. Finally, even assuming the BOEs argument is correct, it admits that the issues at hand would be arbitrable where the CBA explicitly expresses the parties agreement that the resolution of disputes under Article 21(G) shall be determined under the grievance and arbitration process of the CBA (BOE Br., p. 12). But that is precisely what the BOE and UFT have agreed to. Article 22 of the CBA explicitly defines a grievance to mean a claimed 17
violation, misinterpretation or inequitable application of any provisions of this Agreement. (Article 22, Klinger Aff., Ex. 1). The term this Agreement plainly refers to the CBA, which contains the AAA dispute resolution provision the BOE is attempting to enforce. That portion of the CBA, which provides for a 20 arbitrator panel, is modified by the Side Letter, which, because the BOE wishes to invoke the AAA process, it argues is part of the CBA. The BOE never attempts to explain why it believes it has explicitly agreed to Article 21G of the CBA (containing the AAA process), but somehow not Article 22, making the grievance process applicable to the entire agreement. Article 21G of the CBA which the BOE attempts to enforce is plainly part of this Agreement. The BOE explicitly agreed to Article 22 (grievance and arbitration), just as it explicitly agreed to Article 21G (modifying the 3020-a process). Indeed, in those few instances where the parties intended to exclude a contractual right from the grievance process, they did so explicitly. (See e.g., Article 21, Due Process and Review Procedures, Subsection A(5) (Members may not grieve material in file, except); Article 8, Education Reform, Subsection B (Issues arising under this provision are not subject to the grievance and arbitration procedures)). Accordingly, there is no basis on which the BOE can pick and choose which portion of the CBA it will and will not adhere to. Contrary to the BOEs assertion that the UFT is relying on statutory silence (BOE Br., p. 12) in support of its claim, the UFT relies on explicit contractual language agreed to by the BOE. Thus, even if the Court were to accept the BOEs tortured reading of the statute and the Consendine case as requiring some explicit statement that the BOE agreed to arbitrate dispute regarding the implementation of Article 21G, the result would be the same the matter is properly subject to the grievance and arbitration process.
18
This result would be consistent with the parties past practice. The UFT has grieved other violations of Article 21G. In each instance, the Chancellors representative at Step 2 of the grievance process determined the issue on the merits, never once indicating that claims under Article 21G were not arbitrable. (See Ross Aff., 21-25, Exs. 14-17). Indeed, at the Step 2 hearing on the underlying grievance in this matter, the BOE argued the merits of the grievance and did not assert an arbitrability challenge. (See Ross Aff., 26). The BOE has articulated no basis on which it may selectively carve Article 21G out of the CBA, let alone portions of Article 21G. Accordingly, this grievance should be treated no differently than others and processed in the regular manner through the grievance and arbitration machinery.
19
CONCLUSION For the reasons set forth herein and in the UFTs moving papers, the UFT respectfully requests that this Court issue an order dismissing this action in its entirety and for such other and further relief as the Court deems just and proper, or, in the alternative, stay the instant action pending arbitration of the underlying matter and issue an order compelling the BOE to arbitrate pursuant to the Collective Bargaining Agreement between the parties.
Dated: New York, New York November 13, 2013 Respectfully submitted, STROOCK & STROOCK & LAVAN LLP By: /s/ Alan M. Klinger Alan M. Klinger, Esq. Dina Kolker, Esq. 180 Maiden Lane New York, New York 10038 (212) 806-5400 Counsel for Defendant UFT
Of Counsel: Beth A. Norton R. Mac Stone
20

BOE Vs UFT 3020-A Arbitrator Lawsuit - All Papers Filed

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BOE Vs UFT 3020-A Arbitrator Lawsuit - All Papers Filed

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FILED: NEW YORK COUNTY CLERK 09/26/2013

NYSCEF DOC. NO. 1

INDEX NO. 451734/2013 RECEIVED NYSCEF: 09/26/2013

SUPREME COURT OF THE STATE OF NEW YORK

failure to appear or answer, judgment

by default for the relief

New York, New York September 26,2013

SUPREME COURT OF THE STATE OF NEW YORK

LINITED FEDERATION OF TEACHERS,

This action seeks a determination that the United Federation of Teachers

panel. Arbitrators from this panel preside over disciplinary

disciplinary charges brought by DOE against nonsupervisory pedagogical personnel pursuant to

The UFT has continually failed to agree to a full panel of 39 arbitrators as

mandated by the agreement.

full panel has not been

agreed upon, an alternative

in this alternative arbitrator selection

agreement, and frustrates

the agreement's stated purpose the timely adjudication of

Moreover, as this agreement serves to modify the disciplinary procedures

recognized bargaining agent

nonsupervisory pedagogical personnel and classroom

paraprofessionals employed by the DOE,

THE APRIL LETTER AGREEMENT

Exhibit ("Ex.") "1."

The April Letter Agreement sets forth, and otherwise memorializes,

cases, and ensuring compliance

forth in the parties' collective bargaining agreement ("CBA") and

requirements mandated by Education Law Section 3020-a.

. compliance with such modified procedures shall satisfy any

of this chapter that requires

with section 13020-al of this

Education Law $ 3020()(a).

Indeed, and as authorized by Education Law Section 3020, Article 2l(G)

of the parties'CBA expressly pertains to "Education Law $ 3020-a Procedures,"

3020-a, and, when hearings have

Misconduct Cases shall be heard by a panel hearing officers.

April Letter Agreement, Ex. "1," at 6.

The April Letter Agreement further provides that

UFT agree to increase the number of

201 1-2012, DOE and

UFT were able to seat 24t arbitrators. In 2012-

By letter, dated September 19,2013, Dennis M. Walcott, Chancellor of

' The 201 l-2012 panel decreased to 18 arbitrators due to resignations,

September 19, 2073, letter, F,x. "2," at

The reduction and future prevention of this backlog, as well as compliance

with statutorily mandated timeframes, were

for the DOE and the UFT to

increase the arbitrator panel from 20 arbitrators, fixed under Article

2l(G) of the parties' CBA,

to 39 arbitrators, provided under the April Letter Agreement.

In his September 19,2013,letter, Chancellor Walcott noted that the UFT's

Moreover, Chancellor V/alcott observed that the

"it is critical that additional arbitrators be selected immediately in order that

Accordingly, in the closing paragraph of his September 19,2073, letter,

pursue all legal remedies available to

but not limited to, invoking its right under the

30. By letter, dated September 20, 2013, Michael Mulgrew responded on

20,2013, letter is annexed hereto as Ex. "3."

in Chancellor Walcott's September

UFT letter, Ex.

Yet, even assuming an unlikely consensus on the twenty proposed names,

full panel -- 39 -- will not be reached.