Dispute

American Arbitration Association
Resolution Serv ices Worldwide

New York Labor Center

July 6, 2012

1633 Broadway, Floor 10, New York, NY 10019·6708 telephone: 212·484·3266 facsimile: 212-307·4387 internet: http://www.adr.org/

Ellen Procida Director, Grievance Department New York State United Teachers 52 Broadway, 16th Floor New York, NY 10004 David Brodsky, Esq. Department of Education - City of New York 49-51 Chambers Street 6th Floor New York, NY 10007 Bruce Bryant, Esq. Council of Supervisors & Administrators 40 Rector Street 12th Floor New York, NY 10006 Re: 13 39001302 12 United Federation of Teachers and Council of Supervisors & Administrators and Board Of Education/City of New York Grievances: Dear Parties: By direction of the Arbitrator, enclosed please find his Opinion in the above-captioned matter. The Arbitrator's bill for services will follow at a later time. Please note that when paying the Arbitrator, checks should be prepared and mailed directly to the Arbitrator, not to the American Arbitration Association. Also, please be advised that it is the AAA's policy to retain awarded cases for a maximum period of fifteen (15) months from the date of the transmittal letter. Therefore, please take note that the above referenced physical case file will be destroyed 15 months from the date of this letter. In the normal course of our administration, the AAA may maintain certain documents in our electronic records system. Such electronic records are not routinely destroyed and do not constitute a complete case file. Thank you for choosing the American Arbitration Association, VI: 24 PLA Schools

Mediation • Arbitration • Elections • Education • Training

Sincerely. Jeffrey Kriegsman Jeffrey Kriegsman Senior Case Manager

2124843241
kriegsmanj@adr.org Enclosure cc: Scott E. Buchheit, Esq. Seth Blau, Esq. Kerri Crossan, Esq. David Grandwetter, Esq.

AMERICAN

ARBITRATION

ASSOCIATION

In the Matter UNITED

of Arbitration

Between LOCAL 2 ;

FEDERATION

OF TEACHERS, "UFT"

COUNCIL OF SCHOOL SUPERVISORS ADMINISTRATORS, LOCAL 1 "CSA" and NEW YORK CITY DEPARTMENT

AND

OF EDUCATION "DOE"

AAA CASE NO. 13 390 01302 12

This filed by

is a consolidated the UFT and CSA

proceeding following

involving the DOE's

grievances decision to

close twenty-four schools space. expedited and open

(24) persistently 24 "new"

lowest achieving the same

("PLA") physical on an

schoo l.s in ' moved a to

These

grievances pursuant

were to

arbitration and

basis,

Stipulation

Order

1 Whether the 24 schools are "new" schools within the meaning of Article 18D of the CBA is at issue in this case. The term "new", as well as "old", are generally used throughout this Opinion without prejudice to the position of either side.

1

("Stipulation") agreed

upon

by

the

parties

to

resolve

litigation before the Supreme Court of the State of New York, County of New York. Pursuant to this Stipulation, the arbitration hearing took place at the New on York Office of in the American 2012.

Arbitration

Association

various

dates

June,

Throughout this proceeding, the DOE was represented by David Brodsky, Director of the Office of Labor Relations. N. Grandwetter, Esquire, represented the CSA. Procida, Director the of the Grievance/ persons David

Ellen Gallin DOE, the

Arbitration testified at

represented

UFT.

Various

arbitration hearing, including the Mayor of New York, the Chancellor of the DOE of Education of the City, the

President of the CSA, and the President of the UFT.

UNIONS PROPOSED ISSUE Did the Board of Education violate the CSA and UFT Collective Bargaining Agreements including, but not limited to, Article VII (L) of the CSA Agreement and Articles 17B and 18D of the UFT Agreement, and corresponding articles of other agreements, by its decision to excess/remove CSA and UFT represented employees, including Principals, APs, Teachers, etc., from 24 schools, and/or require certain of them to reapply for their positions for the 2012-2013 school year? If so, what, in consideration of and consistent with, but not limited to, the Stipulation and Order of the parties in Index No.: 600002/2012, shall be the remedy?

2

DOE PROPOSED ISSUE 1. Whether the instant grievance is arbitrable pursuant to Article 22C of the UFT teachers' collective bargaining agreement (and corresponding provisions in the functional chapter collective bargaining agreements) and Article X (c) of the CSA collective bargaining agreement. 2. Did the Department of Education violate Articles 2, 17B, 18D, 20, and 21G of the UFT teachers' collective bargaining agreement (and corresponding provisions in the functional chapter collective bargaining agreements) and Article 2, 7J, 7L, and 18 and the CSA collective bargaining agreement when it closed the following 24 schools: If so, what consistent with the limitations in arbitral authority in the collective bargaining agreements - are the appropriate remedies?

***

CONTRACT PROVISIONS UFT/DOE CONTRACT Article Seventeen - Retention, Excessing and Layoff B. Excessing Rules - Appointed Teachers

***

Article Eighteen - Transfers and Staffing

• **
D. Staffing New or Redesigned Schools

The following applies to staffing of new or redesigned schools ("Schools")

3

***
3. If another school(s) is impacted (i.e., closed or phased out), staff from the impacted school(s) will be guaranteed the right to apply and be considered for positions in the School. If sufficient numbers of displaced staff apply, at least fifty percent of the School's pedagogical positions shall be selected from among the appropriately licensed most senior applicants from the impacted school(s), who meet the School's qualifications. The Board will continue to hire pursuant to this provision of the Agreement until the impacted school is closed.

CSA/DOE CONTRACT Article VII L. Excessing Rules

***

FACTS Prior to the 2011-2012 school year, 33 schools

identified as PLA by the New York State Education Department ("SED") were deemed eligible to receive Federal School to the

Improvement Grant

("SIG") program

funds pursuant 1965

Elementary and Secondary Education Act of

("ESEA").

SIG funds are available to qualifying schools in the 20112012 and 2012-2013 school years. To receive the funds,

schools need to implement one of

four federally approved

4

improvement Closure.2

models:

Transformation,

Restart,

Turnaround

or

2

An SED release, dated January 21, 2010, contains a chart summarizing the four Intervention Models as follows: Intervention Models Summary of Required Components

Turnaround

Model

Replace the principal and replace In New York, there are at least 50% of the staff; two versions of the Turnaround model: in one Implement Incentives (financial, version, a school is career) to promote recruitment and phased out and replaced retention of high quality staff; by a new school over Adopt a new school governance time. In the second structure; Use student performance version, the existing data to inform and differentiate school remains open, instruction; Increase learning but the school is time; Provide appropriate socialcompletely redesigned. emotional supports and community(The provisions of oriented services to students existing collective bargaining agreements remain in effect.)

Restart

Model

A restart model may Convert or close the school and include either re-open under a charter school conversion of a school operator; charter management to a charter school or organization (eMO), or education the replacement of amanagement organization (EMO) public school by a new (EMOs must first be approved charter school that will by the Legislature). serve the students who would have attended the Enroll in the restart school, within the grades it serves, public school. Under any former student who wishes to certain circumstances attend the school. districts may also enter into contracts with the State University of New York, 5

As set forth in the footnote, schools that choose to implement the Transformation or the Restart models are

required to submit signed commitment letters stating that the district, teachers' and principals' unions will modify or in New York City, The City University of New York, for them to manage public schools.

Transformation Model A school that opts for Similar to the Turnaround Model a transformation model Uses a rigorous and equitable does not close but evaluation system for teachers rather remains and principals and rewards school identified as leaders, teachers, and other staff persistently lowest who, in implementing this model, achieving until it have increased student demonstrates improved achievement and high school academic results. (An graduation rates, and identifies/ LEA with more than 9removes those who, after ample persistently lowest professional development, have achieving schools (New not increased student achievement. York City) may not use this model for more than 50% of identified schools. See Page 45 of USDOE RTTT Application.)

School Closure

Close the school and enroll the students who attended the school in higher achieving schools in the LEA.

6

their cbas in order to implement the provisions of Section 3012-c of the Education Law. This statute governs how

annual professional performance reviews will be conducted in the future. In July, of 2011, the DOE in and UFT entered of the into a

Memorandum

Agreement

furtherance

DOE's

application to SED to receive funds under the Transformation and Restart models. To qualify for SIG funding under these

models, SED required the parties to agree by December 31, 2011 on a teacher evaluation system. During the fall of

2011, the DOE engaged in separate negotiations with the UFT and CSA regarding the evaluation systems for the 33 schools, with most of the negotiations DOE be informed possible involving the to UFT the UFT. it did On not

December believe

30, the it would

that

reach

agreement

on all The

performance review matters and terminated negotiations. DOE then notified the CSA that because

it was unable to

reach agreement with the UFT, there would be no point in continuing negotiations with it. Approximately two weeks later, on January 12, 2012,

Mayor Michael Bloomberg gave his Annual State of the City Address. The Mayor then publicly declared for the first

time that the DOE would no longer pursue the Transformation

7

and

Restart

models

in the

33 schools,

but

instead

seek

to

implement The schools.3

the Turnaround DOE had by

model. time decided to close to close the 33

this

By law,

any proposal

a DOE school

must

be made at least six months year. 2012 Thus, to issue the DOE had

prior to the start of the school a statutory Impact deadline of March and 6, to

Educational

Statements closures. after nine

("EIS")

notify the public While analysis, should schools be at

of the proposed the EIS, and

preparing the DOE

performing of the 33

further schools the 24

determined from in the

that

removed issue

closure to be

list, closed

leaving and

this

case

replaced. to an the DOE the new

The DOE submitted place effort these to 24

voluminous schools them did not items into for

applications the

to SED seeking model use in of the for on a

Turnaround The

qualify model on

SIG

funding. agreement were

Turnaround and

require that

between

UFT/CSA

required agreement

Transformation evaluation

model,

specifically

system.

Despite the fact that the instant case revolves around the DOE's decision to close 24 schools (and open 24 new schools), the DOE did not use the school Closure model. According to the DOE, it would only use the Closure model if the physical building was being permanently closed and abandoned, which did not here occur.
3

8

The approval public

DOE for

also school

went

through and

the

process

of This

seeking inc 1uded Policy

closures

openings.

hearings,

approval

by the Panel

for Education

and application The Turnaround schools the DOE

to the SED for approval. made clear to the UFT and CSA that the

model

it intended June on the

to use involved reopening 1. old would

closing

the 24 in

effective buildings because at those

30 and July 24

24 new to

schools the

same

According schools be were

DOE's all to L

reasoning, teachers Article of the

closing, pursuant

schools

excessed

Seventeen CSA CBA,

("17,,)4 of the UFT CBA and Article
as their positions would no longer

VII

exist.

The DOE further

reasoned

that when the new schools pursuant

opened on of

July 1, they could be staffed Article According schools

to the provisions were new

180 of the UFT Contract, to need Article not 180, for

as they

schools. the

pedagogical 50% of

positions

hire

more

than

"appropriately school. and

licensed most senior applicants" In response UFT that filed the the to the DOE's instant

from the impacted intended action,

the CSA

grievances. action

Both would

Unions violate

contended various

DOE's

planned

contractual
4

provisions,

as the closings

were "shams".

Although Article numbers are in word form in the UFT CBA, for simplicity purposes numerical designations are used throughout this Opinion.
9

While the grievances and the applications of the DOE to the SED remained pending, the DOE began the process of As

staffing the 24 new schools consistent with its plan.

the deadlines for closing the old schools and opening the new schools approached, the Unions sought Court intervention to prohibit the DOE from staffing the new schools in the manner it desired. In particular, the Unions cormnenced a

proceeding by Order to Show Cause seeking to enjoin the DOE in hiring decisions of certain staff prior to the resolution of the grievances. On or about May 31, 2012, the parties resolved this litigation by entering into the Stipulation. place the matter before the undersigned They agreed to expedited later than in this

in an

arbitration hearing , with the Award June 29, 2012. The parties also

issued no set

forth

Stipulation the remedy to be granted were the grievances to be sustained. By letter dated June 22, 2012 to Dennis M. Walcott, Chancellor of the DOE, SED Commissioner John B. King, Jr. set forth determinations concerning matters relevant to the 24 schools. follows: I am writing to inform you of my decision to conditionally approve the New York City Department of Education's (NYCDOE) 2012 School Improvement Grant The first paragraph of the letter stated as

10

(SIG) application for funding to support Turnaround model implementation in 24 schools previously approved to implement Transformation or Restart models. I am also writing to inform you that I have approved the Schools Under Registration Review (SURR) plans submitted by the New York City Department of Education in May for these persistently lowest achieving schools. commissioner King went on to specify in this letter that his conditional approval of the plans was contingent upon the DOE's ability to meet relevant staff replacement requirements and other items. Concerning the staffing

matter, Commissioner King wrote as follows: First, SIG approval is contingent on the NYCDOE satisfying the staffing requirements for implementing the Turnaround model through the guidelines outlined in Article 180. We are aware of the pending arbitration proceedings with the UFT and the CSA concerning your ability to implement the Article 180 process. We are not a party to those proceedings and make no comment on them in this letter. On June
26,

the

instant

arbitration

proceeding

concluded.

On June 29, the undersigned issued his expedited This expedited Opinion now follows.

Award in this matter.

POSITIONS OF THE PARTIES The DOE, CSA and UFT all presented vigorous and

extensive argument in support of their positions.

They did

so orally through opening and closing arguments, as well as

11

by

submission

of

written

argument.

Brief

summaries

of

positions of the parties follow. The Unions present an assert that the DOE waived defense when it its right to agreed in the

arbitrability

Stipulation to arbitrate the grievances.

The Unions fUrther

contend that in any event the grievances are arbitrable, as they involve a dispute over interpretation and application of the UFT and CSA CBAs. As to the merits of the

grievances, the Unions argue that the closings of the 24 schools are a "sham", and the 24 old schools and 24 new schools are one and the same schools. The DOE asserts that it did not waive raise an arbitrability defense. that for no less than three its right to

The DOE further contends independent reasons the

grievances are not arbitrable. If the merits are nonetheless considered, the DOE asserts that the 24 schools are in fact new. In addition, the DOE argues that in the past the

Unions have accepted without grieving the closing of old schools and opening of new schools in the same fashion as occurred with the 24 schools now at issue. The DOE urges

that the grievances be denied in their totality.

12

OPINION5 This such the is a case of Contract function of interpretation. is to interpret the parties As in any

case, my essential intent and

and apply to

understanding

themselves

the provisions The first

of their CBA which are at issue. issue before I conclude me that is whether the the grievance intended is and

arbitrable. understood

parties

that disputes

such as this would be arbitrable.6

Al though the CSA and UFT CBAs do not have identical language in every respect, there is no dispute that the grievances filed by the CSA and OFT should be decided in identical fashion. More specifically, both grievances will either be found arbitrable or not arbitrable. If arbitrable, both grievances will either be sustained or denied for all 24 schools. If sustained, the remedy for both grievances will be identical, specifically the remedy set forth in Paragraphs eight (8) through eleven (11) of the Stipulation. Given the uniformity of outcome for both grievances, for purposes of clarity and simplicity I will analyze this case only from the perspective of the UFT/DOE CBA. The result that follows, however, will be equally applicable to the CSA grievance. The CSA was an equal participant in this proceeding and was fully involved in presenting evidence and argument supporting its position that the grievances should be sustained.
5

I reject the Union's contention that the Department waived its right to contest arbitrability because it entered into the Stipulation to resolve this dispute through arbitration. As properly stressed by the Department, Paragraph 21 of the Stipulation specifies that the 13

6

More arbitrable grievance

specifically, because the parties it

I

find within

the the

grievance definition

to of

be a 22

falls

set forth in their CBA. a grievance as follows:

In Article

of the CBA they define

A "grievance" shall mean a complaint by an employee in the bargaining unit (1) that there has been as to him/her a violation, misinterpretation or inequitable application of any of the provisions of this Agreement or (2) that he/she has been treated unfairly or inequitably by reason of any act or condition which is contrary to established policy or practice governing or affecting employees, except that the term "grievance shall not apply to any matter as to which (1) a method of review is prescribed by law, or by any rule or regulation of the State Commissioner of Education having the force and effect of law, or by any bylaw of the Board of Education or (2) the Board of Education is without authority to act.
Tl

For two primary within

reasons,

what

the Union

alleges

falls

well

this definition the Union

of grievance. alleges that there 17 has and/or been 18 a of

First, "violation, the CBA in

misinterpretation" general, the and

of Article 180

Article

in particular. 24 schools 180. are By

Most not its

importantly, new schools

Union the

argues

that of

the

within

meaning

Article

Stipulation shall "not constitute a waiver of any other contractual or legal right, claim or defense related to the underlying grievances". Arbitrability is certainly a defense that a party is entitled to make in an arbitration proceeding. Accordingly, the Department has every right here to have the arbitrability issue addressed and resolved.

14

explicit "(s)taffing The because

terms,

Article

180

is

only

applicable

to

new or redesigned reason the

schools".? grievance that Articles of is arbitrable has and/or is been 18. is an The

second the

Union

alleges of

there 17

"inequitable" common Ly unjust". unjustly purposes teachers

application

understood According

meaning to the

"inequitable" the DOE

"unfair, and for

Union,

unfairly

used the procedures for which they

set forth in these Articles not intended, schools,

were

i.e. , removing without regard

from positions because

at the old

to seniority, teachers. Article

they were perceived

to be undesirable to apply are other to

The Union asserts 17/18 for these

that it is inequitable purposes are when there and

contractual address

provisions

which

intended

designed

the problems the

of ineffective of the

teachers. eBA, and the allegations raised by

Given raised the

language Union, the

by the

I rej ect

the

three

reasons

DOE as to why are that closure

grievance

is not

arbitrable.

Those a

reasons school the

(1) the eBA is silent on what constitutes school; (2) the eBA matters from expressly of law;

or new from

limits (3) any

Arbitrator policy

interpreting the DOE

and, away

public

prevents

bargaining

7

Redesigned

schools

are not at issue in this case. 15

statutorily standards As correct school of this

vested

power

pertaining

to

the

maintaining

of

in the classroom. to the first of these reasons, while the DOE is a

that the CBA is silent concerning closure I have or new school,

what constitutes that

it is incorrect to make

because as to

no authority

a determination for the mill" what the word

what these terms mean. arbi tration intended contained task. to for be an the

It is "grist to an

of labor parties or term this any, for

arbitrator meaning of

decide

undefined commonly be

in a contract. it on otherwise, the

Arbitrators there of

perform if

Were

would an

little, to

restriction itself within the

ability words

employer are

define

undefined

which

routinely

contained

a cba. to the second reason why the DOE asserts that

Turning the grievance what myself is

is not arbitrable, in the

the DOE incorrectly requires me to

argues involve

alleged

grievance are

in matters

which

specifically

excluded The Union

from

the

contractual

definition

of a grievance.

asks only

that I interpret not ask, for with

and apply its rights under the CBA. It does that 2590-h not, I of opine the on whether Law the
I

example, Section

DOE I

complied will any not

Education not,

and

do so. made

I need under

and will Law.

interfere includes

with the

decision

Education

This

16

determination 2012, (also) Schools the New in

of SED Commissioner he to advises inform

King,

issued Walcott

on June that "I

22, am the by

which

Chancellor you that
I

writing Under York

have

approved submitted for

Registration City DOE

Review of

(SURR) plans in May

Education schools", that
I

these

persistently Nor is the

lowest achieving Union asking

i.e. the 24 schools. decide what school in

improvement

model,

if any, should or could be implemented

the 24 schools, on whether the

and I will not do so. 24 schools are or are

I will also not opine not entitled to SIG

funds.
I

reject of

any the and

contention DOE and/or

by the new

the SED

DOE about is

that whether opened

the a is a

determination school is

closed

another

school

determinative new school

of what the parties to any be for

intended of at

and understood Article the is

purposes expressed the

180.

Notwithstanding hearing

opinions this

arbitration that the Law

concerning is

point, and

fact

Commissioner while

interpreting

applying the CBA.

Education

I am interpreting The Union this written argues point.

and applying with The

particular following, succinctly set

persuasiveness forth in the this

concerning Union's principle:

submission,

summarizes

17

Ascertaining the parties' intent underlying a contract provision is a matter of case-by-case adjudication. See Evans v. Famous Music Corp., 1 N.Y.3d 452, 458 (2004) ("It is well settled that our role in interpreting a contract is to ascertain the intention of the parties at the time they entered into the contract."). Even in those situations where the language in a contract is identical to that of a statute, the Supreme Court has held that "(P)arties do not necessarily endow statutory language in a contract with the scope of a statute." Skelly Oil Co. v Phillips Petroleum Co., 339 U.S. 667, 678 (1950). Simply stated, the "same words, in different settings, may not mean the same thing." Carey v. Cuomo, 858 F.Supp. 385, 389(S.D.N.Y. 1994). The court's analysis in Major Oldsmobile, Inc. v. General Motors Corp., No. 93 Civ.2189, 1995 WL 326475 *4 (S.D.N.Y. May 31, 1995), is instructive. There, the court held: The legal standards applicable to issues of statutory interpretation have evolved separately from those involving matters of contract interpretation. Thus, despite the fact that in this case the statutory and contractual language are essentially identical, it is theoretically possible that the application of each set of legal standards would yield divergent results ...For example, the legislature may have intended the statutory language to have a different meaning than the one contemplated by the contracting parties, even though the contract's drafters may have merely parroted the language of the existing statute. In the instant case, given that Education Law Section 2590-h had not yet been written at the time the parties placed parties the language of Article 180 into their CBA, the

obviously could not have

intended and understood

that compliance with the procedures set forth in Section 2590-h was sufficient, in and of itself, to create a new school for purposes of Article 180. In addition, there is

18

nothing Section

in

the

CBA

that

makes

the

DOE's

compliance the

with

2590-h

automatically

trigger

excessing of

provisions Article and the

of Article

17 and/or the new school provisions both Section both of 2590-h these from and the

180.

Moreover,

ESEA, are

regulation on the issue

empowering

statutes, school

silent

of excessing

staff

or what

constitutes

a new school. that a determination made

The SED itself has recognized under Education In his letter Law is distinct to Chancellor states that

from one made under the CBA. Walcott the of June is 22, 2012, of the

Commissioner instant

King

SED

aware your

arbitration

proceeding

" ...concerning

ability

to implement those

the Article and

180 process. make no

We are not a party to on them in that this his

proceedings

comment was of

letter".

If Commissioner was

King

the

belief

determination and enforcing it is unlikely language in

preclusive

of an arbitrator under

interpreting Article 180,

the rights

of the parties

that he would letter.

have included the DOE

such deferential is correct was for that made SIG

his

While as

Commissioner within funding, remains the

King's context

comment, of his

quoted

above, approval schools,

conditional for 24 new was

and not his approval that Commissioner King

the fact of

completely

cognizant

19

the fact that it is an arbitrator, has the authority As to the that away of to interpret third public any DOE

not the Commissioner, 180.

who

and apply Article argument on

arbitrability, the DOE to from the that not

specifically bargaining maintenance this

policy

prevents power

Statutory in the

pertaining

standards

classroom, issue

I conclude before me is

argument

is misplaced.

The

whether wi thin before new.

the DOE has the authority the meaning of Education

to close and open a school Law. Rather, the issue old or of an to as to

me focuses There is

on staffing no public

for a school, against

whether staffing

policy

existing Article

school that results 17. by In the addition, Union,

from excessing the parties'

done pursuant CBA does,

emphasized

contain

procedures

pursuant

which ineffective without the resort with where

teachers

can be removed 180. While

from the classroom not like a

to Article which these

the DOE may work, this in

speed

procedures I make

is not the

situation

a decision

will

result

DOE

being without Given authority grievance.

recourse of

to deal with ineffective above, in I act

teachers. with of on my the my

all as

the

consistent the merits

Arbitrator I am keenly

resolving of the

aware

restrictions

20

authority consistent

contained

in Article

22C of the CBA and I will act

with those restrictions.s to the merits and of the grievance, of the parties it is clearly that the DOE from The For and

Turning the intent

understanding 17 and/or with

cannot the

use Article

18 as a means whom it

to remove

classroom

teachers

is dissatisfied. this statement.

DOE itself example,

has explicitly

acknowledged

in a July 8, 2011 memorandum Veronica Chief Conforme, then

to Superintendents Chief for Financial the DOE, is

Principals, and now

Officer wrote not a

Operating are

Officer that

" (p)rincipals permissible

also

reminded

excessing

way to deal with unsatisfactory

teachers."

"The arbitrator shall limit his/her decision strictly to the application and interpretation of the provisions of this Agreement and he/she shall be without power or authority to make any decision: 1. Contrary to, or inconsistent with, or modifying or varying in any way, the terms of this Agreement or of applicable law or rules or regulations having the force and effect of law; 2. Involving Board discretion under the provisions of this Agreement, under Board by-laws, or under applicable law, except that the arbitrator may decide in a particular case whether the provision was disregarded or applied in a discriminatory or arbitrary or capricious manner so as to constitute an abuse of discretion, namely whether the challenged judgment was based upon facts which justifiably could lead to the conclusion as opposed to merely capricious or whimsical preferences or the absence of supporting factual reasons. 3. Limi ting or interfering in any way with the powers, duties and responsibilities of the Board under its by-laws, applicable law, and rules and regulations having the force and effect of law."
8

21

The weight

of evidence,

however, establishes

that a

wish to avoid undesirable teachers was the primary, if not exclusive, reason why a decision was made to close the 24 old schools and then open 24 new schools. To his credit, In his

Mayor Bloomberg has been transparent on this issue.

State of the City Address given on January 12, 2012, the Mayor repeatedly 24 made clear that the DOE's based new upon plan the

concerning the

(then 33)

schools was

desire to change staffing in the classroom.

In particular,

Mayor Bloomberg said the following concerning this matter: We need to be able to identify those ineffective teachers and give them the support they need to grow. And if that doesn't work, we need to be able (to) move them out. A real evaluation system that is based on measurable and principal improvement in student performance assessment and allows us to make real changes is the only way we can do that. We have a model that works well in deciding tenure and this should be exactly the same process. But when we tried to get approval for such a system for just 33 struggling schools - 33 out of 1,700 - the UFT insisted on provisions that would make it even harder to remove ineffective teachers. Not easier, but harder. As a result, those 33 schools lost $58 million in School Improvement Grants from the State. And if nothing changes, it could cost students in every borough hundreds of millions of dollars in federal Race to the Top funds. Well, I can tell you this: We're not going to accept that. We're not going to wait around while ineffective teachers remain in those schools. Under a school turnaround program already authorized by Federal and State law and consistent with a provision of the existing union contract, the City can form school-based committees to evaluate teachers on merit and replace up to 50 percent of the faculty.

22

Under this process, the best teachers stay; the least effective go. And now, that is exactly what will happen. We plan to move forward with this approach for the 33 schools that should've gotten state grants. We believe that when we take this action, we will have fulfilled the State's requirements and the schools will be eligible for the $58 million in funding. But this is about much more than the money. The students in those 33 schools deserve effective teachers. And so does every student in every school. Our 1.1 million school children can't afford to wait. There is too much at stake. They are counting on us - and we will not let them down. These remarks by the Mayor leave no reasonable doubt about what he considered to be of major importance when switching to the Turnaround model: remove from the classroom the immediate ability to perceived to be

teachers

ineffective.

This emphasis on changing up to half of the

teaching staff without regard to seniority was completely consistent with the Mayor's longstanding dislike of the

seniority requirements for excessing which are set forth in Article 17 and the law. Indeed, the Mayor has previously

attempted to have both the Contract and applicable statute changed so as not to require "last-in-first-out" excessing. Suffice it to say that at the arbitration hearing the Mayor reaffirmed his dislike of the so-called "LIFO" system for excessing. Other evidence and testimony presented at the

arbitration hearing cast further light upon the thinking of

23

the

Mayor

and/or

DOE

officials

on

this

matter.

CSA

President Ernest Logan, UFT President Michael Mulgrew, and UFT Assistant to the President Michael Mendel testified that they had conversations with the Mayor and/or DOE officials about the change from Transformation to Turnaround, and the accompanying closing/opening of the schools. the credible testimony of all three men, According to

these officials

emphasized their desire to quickly deal with the perceived problem of ineffective teachers. There is still another reason why I conclude that the DOE's strategy concerning the closing/opening of the 24

schools was primarily, if not exclusively, designed to avoid the Article 17 requirement that excessing be done by

seniority.

In a memorandum to Principals issued on January

12, 2012, only hours after Mayor Bloomberg's State of the City speech, Deputy Chancellor Mark Sternberg wrote about the Mayor's speech. that As a technical matter, conversion to the Turnaround model will require that the DOE close your school at the end of the school year and will work with you to open a new school with a new DBN in its place effective July 1, 2012. While Sternberg testified at the arbitration hearing that his reference to "a technical matter" was about a Sternberg stated in this memorandum

24

requirement of

the Turnaround model,

and

not

the

school

closings, the SED has stated in writing that in New York State the Turnaround model does not involve school closings. More specifically, in a document dated January 21, 2010, which addressed the issue of FLAs and SIG funding, the

Turnaround intervention model was described as follows: In New York, there are two versions of the turnaround model; in one version, a school is phased out and replaced by a new school over time. In the second version, the existing school remains open, but the school is completely redesigned. (The provisions of existing collective bargaining agreements remain in effect. ) Furthermore, in a detailed attachment to this same document, no mention was made of school closings as part of the

Turnaround model. Thus, not only was a school closing/opening not a

"technical" requirement for Turnaround, as set forth by the SED in this document, it was not any requirement at all. addition, whenever the DOE had previously used In the

Turnaround model, it used the phase-out/phase-in version of that intervention, which does not involve a school closing such as now at issue. Accordingly, when it came to the 24

schools, the DOE used a variation of the Turnaround model the SED had said did not exist, and the DOE itself had never before used. This action clearly was taken in order to

25

avoid

Article

17 excessing

rights

and

replace

as much

as

half of the staff pursuant The precedent, management for purposes seniority directly Awards excess Union that argues it

to Article persuasively, a proper

180. with exercise when ample of done the legal DOE's

is not to excess

rights

employees

primarily

of circumventing

the contractual

and statutory while not

rights of those employees. "on point", stand

In addition,

the Union cites a number that

of arbitration DOE may not

that

for the proposition when their While than positions, here the

the

employees to

in substantial dispute

part, on

continue whether

exist. rather is

focuses

schools, there

individual

positions, of the

continue in

to exist,

some

applicability

reasoning

these cases to the situation

now before me. of whether or not the 24 of Article

This brings me to the question new 180. not, and schools were in fact new within

the meaning

If the Union is correct it follows the DOE that Article to

in its assertion

that they are to them teachers 17. the

180 is not applicable do any excessing of

is obligated

from those 24 schools pursuant In deciding meaning of what

to the terms of Article a new for school reasons

constitutes I am not,

wi thin

Article

18,

previously of

stated, bound by the SED determinations Education Law. It does not follow,

made for purposes that

however,

I am free

26

to create the

my

own definition. of evidence to

It is well the contrary,

set tIed a term

that, that

in is

absence

undefined consistent

ln a cba is intended with common usage. instance,

by the parties

to be defined

In this is "never

the common

usage this

definition

of "new" it is what 18D.

existing

before".

Given

definition,

apparent

that there is no single a new school within

litmus test concerning the meaning of Article

constitutes Rather,

a number of relevant

considerations

must be examined

in order to make this determination. The the same evidence here establishes schools that much which would remain

in the 24 new

from that

had existed day.

in the old schools The new schools old schools. would the

that had "closed"

only the previous

would be housed

in the same buildings

as the

In many instances, to the name the

the name of the new schools In 18 of would student size 24

be similar 24 schools, the

of the old school.9 of new the old

Principals in the

schools The

remain

Principals would as remain the

schools. unchanged, patterns

population and source,

essentially feeder

ln both for these

student

For example, The Angelo Patri Middle School would become the Innovative School of Excellence at the Angelo Patri Campus. The John Dewey High School would become the Shorefront High School of Arts and Sciences at John Dewey Campus. The August Martin High School would become the School of Opportunities at the August Martin Campus.
9

27

middle schools/high schools would remain unchanged.

Indeed,

all students from an old school would be guaranteed a seat in the new school. Alumni associations from the old schools would be encouraged to be active and participate in the life of the new school. For the most part, the programs and

courses in the new schools would remain the same as at the old schools. In addition, none of the schools would lose (EPOs) which they previously had

the Educational Partners

when the plan was to place them into the Restart model. The evidence is also clear that the changes made for the 24 schools can all be made, indeed have been made, for existing schools without being closed. things as academies, admission vertical These include such small learning career like.

academies,

communities,

modifications,

advisories, and the

technology education, on-line grade books,

The totality of these changes, individually or collectively, do not give rise to the conclusion that the 24 schools

"never existed before" for purposes of Article 180. Although the DOE cites the 2008 closing of three

schools in the Bronx (PS 156, PS 220 and MS 201) as evidence supporting the proposition that the 24 schools presently at issue are truly new, I conclude otherwise. It is correct

that for those three schools the old schools closed and new schools immediately opened, in the same buildings, and that

28

no grievance however, The Director

was

filed.

In at least two of these

schools,

there was a major testimony of the of

shift in the focus of the school. Julian of Cohen, Deputy Executive was Bronx was PS and in

Office

Postsecondary

Readiness, those Cohen PS 156 and closed

illuminating schools and

concerning the 24

the differences schools now at

between issue. with

personally 220. the

familiar

with

what when there

occurred the was old a

According new schools

to Cohen, opened

schools

major

difference

philosophy existed in

and vision the old

in the new schools schools. with with a a PS new 156

from that which had was replaced PS theme, had 220 and by a

performance replaced designed existed. Thus, 220 had by to

school, a be school more

Principal. Leader what

was was

Young than

nurturing

previously

while various things

the

new

schools in

that

replaced and

PS

156 and

changes such as

structure the

programming, and were

invol ving infusing

changing

math

curriculum

more technology the broader of the

into the school, context

these changes change were

done within very nature

of a sweeping schools truly

in the just from

school.

The new

not

better

than the old schools,

they were

different

the old schools.

29

It is, therefore, not surprising that the UFT filed no grievances over the 2008 closing of these schools and the reopening of new schools. The UFT had apparently come to

the reasonable conclusion that the schools which came into existence on July 1 were in fact new schools within the meaning of Article 180. The same circumstances do not exist for the 24 schools now at issue. While efforts have been made to make the new

schools better than the old ones through certain changes in structures and programming, for the most part these changes have not been made with a different philosophy and vision for the schools like that which existed in 2008 with the Bronx schools. The Union also argues persuasively that even were the three Bronx schools closed in 2008 substantially similar to the 24 schools, this would not constitute a waiver of the Union's position in the instant case. The citing of three

schools, within the context of approximately 140 that have been small closed a during the to the Bloomberg any administration, of is too or

sampling by

show Union.

pattern This

agreement is

acquiescence

conclusion

well

supported by arbitration precedent, including a recent Award of Arbitrator Tener involving these parties (AAA Case No. 13 390 01234 12).

30

This difference

brings between

me

to

what

is

perhaps

the

heart

of

the

what was considered created under whether

when deciding Education

whether

a new school was being I must consider created within

Law and what

in determining the meaning

a new school has been 180 of the Contract. the 24 schools to be

of Article

It is apparent

that the DOE considered upon be was

new, in large part, based half the of the change staff in would

the assumption Sternberg "huge"

that at least testified of a that new

new. a

staffing

component

school.

In addition,

in each of its SIG submissions the DOE represented screened changes at and hired that

to the

SED for the 24 schools, believes that the newly

\\(t)he DOE will be

staff

among the most important In effect, the reason schools

(the) New School. ..". in large part, that

the DOE has

concluded,

it can change half of the staff is because new schools, as evidenced by the fact

the 24 that it

are

will change half of the staff. reasoning cannot use for purposes the end

I cannot adopt this circular interpretation. 180 being The DOE invoked as

of contract

result

of Article

justification I cannot

for why it is permitted any assumption that

to invoke Article Article that 180 the will

l8D. be is for

make until

applicable fairly reasons

I first make new, i.e.,

a finding did

school exist,

considered

not previously change

other than the anticipated

in staff.

31

The

language The

of

Article of

l8D this

clearly provision

supports is

this

conclusion.

title

"Staffing that the

New ...Schools". then follow,

The preface to the five paragraphs Paragraph 3, which contains

including

language upon which the DOE now relies for staffing the 24 schools, states that "(t)he following applies to staffing of new ...schools." The only reasonable way to interpret this

language is that the parties intended and understood that only when a new school has been created can the DOE then take action to staff that new school pursuant to the terms of Paragraph 3 of Article 18D. provision provision school. Were I to rule otherwise, I would in large part strip seniority rights for excessing out of Article 17 of the CBA. Given the importance that the DOE places on composition of the teaching staff, it could represent that virtually any school for which it wanted to implement new staffing to to be be used used for to Article 180 is clearly a a new school, of not a a

staffing justify

the

creation

new

constituted a new school within the meaning of Article 18D. I realize, of course, that the DOE cannot simply close and open schools on its own, as there is a process it must follow to take such action. That process, however, is one

that is not designed to ensure that agreed upon rights in

32

the CBA are respected exist appeal

and followed. concerning

Similarly, any

while

there Law are

processes

Education

determinations not designed While concerning education

to open or close schools, to enforce

those processes

rights under the CBA. of the DOE witnesses the best possible or in I

I do not doubt the sincerity their desire to achieve

for students,

the fact remains

that, for better rights remain or not

worse, Article effect. It
1S

17 seniority not my

based excessing to opine

place

on whether

think such use of seniority in the City of New York. to enforce

is or is not good It is, however, rights contained

for education indeed

my place,

my obligation, CBA. Finally,

in the parties'

I have

been

acutely

aware

that

there

is much

at stake for the DOE in this arbitration. however, that there is much at stake

It is also true, Given

for the Unions.

the importance this since dispute the

of this matter my almost

to all concerned,

I have given attention After much have from

continuous proceeding reasons

professional commenced.

arbitration for the

deliberation, reached the 24 the

set

forth any with

above,

I

inescapable must

conclusion

that

excessing the

schools

occur

consistent

seniority cannot

based system

set forth in Article

17, and the schools

33

be

staffed

pursuant

to

Article

18D10•

It efforts

follows

that,

notwithstanding to the

the DOE's extraordinary the the Unions have of

and advocacy burden UFT and of CSA

contrary, that

met both

their the this

establishing should Award be of

grievances I have

sustained. June 29,

so ordered I

result

in my by

2012,

which

hereby

incorporate

reference.

Signed this 6th day of July, 2012. In light of this finding, and the desire that I issue this Opinion promptly, I will not make any determination as to whether the DOE's actions violated any other provisions of the UFT and CSA CBAs, as alleged in the original grievances.
10

34

/S/

SCOTT E. BUCHHEIT,

ARBITRATOR

State of New Jersey County of Camden /S/ Mattia R. Kazelis

My Commission Expires February 5, 2014

35