GRIEVANCE DEçISION

wlm36)
UFT Union Initiated [School Closings] UFT 2 (Fartr Practices) l7B (Excessing Rules - Appointed Teachers) 18D (St¿ffing New or Redesigned Schools) 20 (Matters Not Covered) 2lG @ducation Law $3020-a Procedures) 22 (Grievance Procedure) Conesponding Articles in other UFT Agreements. The Department is improperly closing schools and reassigning UFT rnembers. May 4,2012 Ellen Gallin-Procid4 Director, UFT Grievance Deparhnenl Diane Mazzola, IIFT Special Representative Karen Solimando, Deputy Director, Office of Labor Relations Ka¡en Sardoff, Offrce of Labor Relations

Llature of Grievan'ce: Date of Confe¡ence: Persons in Attendance:

Prior to the. outset of the conference, the undersigned asked the grievants the purpose of the Presence at the hea¡ing of Bqb Reich, the Council of School Supervisors a¡rd Administators (CSA) Director of Grievances. Ms. Gallin-Procida replied that Mr. Reich ssrves as a "resoìüce" to the UFT, is a former UFT mernber, has a historical perspective of the events and has information regarding school closings relevant to the confererce that she did not have. She f,nther stated that the UFT has the rightto invite whomever it wishes to grievance conferences. Ms. Solimando objected to Mr. Reich's presence on the basis that it is prejudicial to the DOE, there is no contaciual right to have Mr- Reich presenl, and Mr. Reích, who serves as Director of Grievances for another union, sen/es no legitirnate purpose in support of the UF'T's gnevance. The undersigned determined that Mr. Reich wa.s not permitted to remain at the conference; however, he was permitted to rernain in an adjoining conference room and be available to consult with the UFT during the conference. Further, Article 22 of the UFT Collective Bargaining Agreement (CBA) states:
In order to accomplish its stated purpose, a grievance conference must be attendêd by those individuals who may be able to promote resolution or, if resolution is not possible in a particular case, to provide the necessary information for a fai¡ determination of the grievance

The undersigned determined that Ms. Gallin-Procida and Ms. Mazzola were fuIly capable of arguing for the UFT, promoting a resolution and providing necessary information. Upon occasion, the undersigned has allowed non-participant observery from the UFT and from the DOE to attend grievance conferenges for training purposes. Mr. Reich was not there for that purpose a¡d does not possess information that would advance the purpose of the language citgd

Re: UI UFT [School Closingsl COLR#122136)

Page2

in Article 22- l\/k, Reich lefl the room and remained in the adjoining conference room. As a result, Ms. Gallin-Procida asked that the instant grievance be amended to include a violation of Article 22 aú. the undersigned agreed to consider herrequesl
The UFT representative stated that the following occu¡red and argued that the cited provisions the CBA were violated for the following reasons:

of

The DOE has initíated a "sham" closing of schools that will result in the improper søff. Thc CBA provides only three rnethods to remove staff: excessíng (Aficte l7B)¡ discþline (Article 21G); and school olosings (Article 18D). Further, Article 18D govems reassigurent of staffin schools that a¡e closed or re-stafled due to "redesign" ând not as a result of these "sham- closings. The DOE has violated all three A¡ticles in order to circumvent the CBA, thus denying UFT and CSA members the positions to which they are entitled.
reassignment of Tlre 24 schools scheduled to close in June 2012 will not reopen as trup new schools. They will reopen in September 2012 with new District Borough Numbers @BNs), in the same buildings, with the same student body, the same feeder pattems, the same programs: the same Educational Partnership Organizations (EPOs), and rnany with the same principal and assistant principals. Pa¡ents of the respective schools are beíng told by DOE officials that the new school o'sâule is the school" as the olosing school. Thus, these are "shaür" closings intended to circumvent the CBA's excessing rules. A closer look at the Educational hnpact Statement (EIS) for Dewey High Schoolreveals that it will reopen in September2Ql2 withthe same grade levels, same programs, same partner organizations, same core principles, samÇ admission process, same Career Technical Education (CTE) Program and same School Improvement Grant (SIC) funding. The word "sâme" is used throughout the EIS.

Further, emails sent to the 24 principals of the olosing schools refer to the closìngs as 'technical closings." The Mayor recently said the closings wore ameans to "get rid of teachers." Additionally, the 24 schools to be closed were previously slated to be placed in thc TransformatÍon or Resta¡t models as part of the Federal SIG program. A requirement of Tra¡sformation a¡rd Resta¡t was that the DOE and the UFT negotiate a teacher evaluation system for the leachers inthose schools in accordance with Education Law $3012-c. However, in December 20l7,when the teacher evaluation negotiations between the DOE and the UFT failed, it tiggered the DOE to identiff the24 schools for closing in June 2012. Essentially, this constitutes I "sham" closing.

Additionally, the UFT requests that the instant grievance be merged with the CSA grievance (OLR #122137) to be expeditiously heard by the same arbitrator with a ruling issued prior to June 30, 20L2.
As a ¡emedy, the UFT seeks:

r

The DOE to cease and desist reassigning UFT employees and requiring them to re-apply

Re:

UI UFT [School Closings] ALR_ft12213ó)

Page 3

¡ o

to work in the closed schoql when it reopens; A stop to the "sham" school closings; No staffrng changes be rnade prior to the arbitrator's ruling in the instant grievance that the UET has already placed on its June 2012 calendar.

DOE Administration stated th.at the following occun'ed and argued that the cited provisions of the CBA were not violated for the following reasons:
The DOE objects on the basis that the instant matter is not a¡bitrable and should be

dismissed. Specifically, school closings are govemed by Education Law $2590-h and not the parties' CBA. It is the DOE's decision as to whether a school should be closed. The process for closing a school pursuant to the statute, among other things, requires a vote by the Panel for Educational Policy (PBP), which, for the 24 schools at issue, took plãce on Apríl 26,2012.The PEP voted that the 24 schools will be closed effective at thc end of the 2011-12 school year, subject to the New York State Education Dep.artment (SED) review of the DOE's applications to close these schools. Accordingly, the question of whether a school closing is, in facq a closing, is not appropriate for the grievance procedures outlined in the CBA and, ultimately, arbitral review, as the arbitrator has no authority to rule on the validity of school c.losures. In the altetnative, on the merits, ttre DOE has closed many schools during Mayor Bloomberg's administration. Most of the schools closed thlough a "phase-ouf'process that took place over several years, but several closed immediately and were replaced by new sohools in the same maffrer lhe24 schools at issue will be. Most recently, in 2008, the DOE closed tluee schools that were directþ replaced by nelv schools in the same buildings. The Hunts Point School is currently located at 730 Bryant Aveûue in the Bronx, in a building which previously housed the School for Theater, Arts and Research. Additionally, the Young Leaders Elementaiy School, which is located at 468 East 140 Sheet in the Bronx, opened in a building which had previously housed the Mott Flaven Village School. Finally, the Performance School, located at 750 Concourse Village West in the Bronx, was preceded in the same building by the Benjamin Banneker School. In all three of these cases, the new schools opened in the old schools' buildings one day after the old schools closed, In all thrEe schools, the UFT participated in the Article l8D hiring ptocess, never lodging an objection as to the validity of those closures.
As in the past when a school closes, all stafffrom the 24 closing schools will be excessed and may apply to work in the new schools, with their rights governed by Article l8D of the CBA and corresponding CBA provisions for other UFT represented titles. This process does not violate the excessing rules of the CBA. -Moreover, A¡ticle 18D governs the staffing process for ncw schools and the rights of UFT represented enrployees in closing or phasing out schools. No violation of Article l8D has occurred.

Similarly, the UFT's argument that the DOE has circumvented the due process requirements set forth in Alticle 2lG is misplaced.

Re:

UI UFT [School Closings]

@-ilZZEO

Page 4

The UFT's claím of anti-union animus is baseless and without any supporting evidence. The struggling schoots at issue were designated as Persistently Lowest Achievìng (PLA) and SchoohÚìdei Registrarion Review (SURR) by the SED, The DOE and the UFT originatly attempted to ptace thesc schools in eithcr the Transforuration or Restart intervention models pursuant to the Federal SIG program. However, the DOE ultimately decided that the best -interventíon for these schoolì wãs to close them and has exercised its right under the Education

Law to do so. Lastly, the DOE also objects to the UFT's request to consolidate the hstant grievance with the CSA grievance (OLR +tZZtZl¡ as it is prejudicial 1o the DOE and there is no right under the CBA requiúng the DOE to grant such request.
The undersigned concludes tbat the foltowing happened and concludes that the ciæd provisions of the CBA were not violated for the following reasons:

It is clear tbat the DOE's authority to close a school is set forth and govemed bythe Education Law, not the parties' CBA. Therefore, issues pertaining to the validity of school

closures are not propyrly adjudicated tluoughthe parties' grievance machinery a¡rd arbitration process set forth inthe CBA.

To the extent t¡e instant gdevmrce needs to be addressed on the merits, the UFT claims tle DOE violated Articles 2 (Fuit Practices), l7B (Excessing Rules - Appointed Teachers), l8D (Stafñng New or Redesigned Schools), 20 (Matters Not,Covered) and 22 (Grievance Procedure)the Education ìfr nOe is closing tfe ã+ schools at issue pursuant to the process set forth inpractice, all UFTLaw. Therefore, inãccordarrce with the CBA, DOE poticy, and longstanding year' represented rtuft io these schools witl properly be placed in excess at the end of the school cited in its Articles T.å tat end, the UFT has failed to dernonstrate a violation of any of the to Article 18D, there is no violation since the staffing grìevance. Additionally, urith respect process for the new sohools has not yet commenced' The UFT's participation in the I 8D hiring prooess for tlte schools that previously closed a¡l and were replaced in the sa-e mantrer that will occru for the 24 schools at issue serves convincing èvidence that the LJFT tecogf¡zes these closures as valid. Contrary to the UFT's claims, the new'schools opened to replace the existing 24 schools will undergo silnificant structural and programmatic changes, which are explained in the EIS frlçd for each schqol as required by Education Law $2590-h'
The undersigned denies the UFT's request to merge its grievance with the CSA as grievance (OLR #l2tßÐ.No such right is contained in the CBA to merge a UFT gtievance DOE. iequested ùy the (JFT. Moreover, such merger would be urrfairly prejudicial to the

Lastly, the UFT's grievance to have Mr. Reich present at the hearíng is denied-

Re: UI UFT [School Closings] íOLR #122136)

Page 5

Accordingly, the grievance is denied in all respeots.
Heard by:

MARCEL KSHENSKY, EN.D.
Chancell or' s Representative

IT IS SO ORDERED:

f /o /,.
DENNIS M. W CHANCELLOR
Dated

MK

(QIß-#r2211Ð
Grievant: Union: Art icle(s)/Agreement: CSA Union lnitiated [School Closings and Excessing] CSA

II (Fafu Practices) XVIII @{atters Not Covered)
VIIJ (Summons, Discharge or Review)

VIIL
Natu¡e of Grievance:
Date of Conference: Persons in Attendance:

@xcessing Rules)

X (Grievance Procedure) The Department is improperly closing schools and reassigning
supervisory sta-ff. Møy 4,2012 Robert Reicl¡ CSÀ Grievance Director David Grandwetter, CSA Attomey Karen Solimando, Depufy Director, Office of Labor Relations Karen Sardofi Ofüce of Labpr Relations

Prior to the outset of the conference, the undersigned asked the CSA the purpose of the presence at the hearing of Ellen Gallin-Procida, the United Federation of Teachers (UFT), Director of Grievances. n¡t. Re¡ctr replied that Ms. Gallin-Procida se¡ves as a "lesourcd'to the CSA and has information regarding school closings relevant to the conference that he did not have. He further stated that the CSA has the right to invite whomever it wishes to grievance conferences. Ms. Solimando objected to Ms. Gallin-Procida's presence on the basis that it is prejudicial to the DOE, there is no conhactual right to have Ms. Gallin-Proc,ida presen! and Ms. Gallin-Proqida, who serves as Director of Grievances for another union, seryes no legitimate purpose in support of the CSA's grievance. Thç undersigred determined that Ms. Gallin-Procida was not permitted to remain at the conference; however, she was permitted to remain in an adjoining conference room and be available to consult withthe CSA dr¡ring the confErence. Further, The CSA CBA
states:

I¡ order to accorñplish its stated purpose, a grievance conferencc must be atænded by thoso individuals who may be able to promote resolution or, if resolution ib not possible in a partioular cas€, to provide the necessary information for a fair determination of the grievance
The undersigned determined that Mr. Reich and Mr. Grandwetter were fully capable of arguing for the CSA, promoting a resolution and providing fiecessary infonnation. Upon occasioû, the undersigned has allowed non-participant observers from the CSA and from the DOE to attend grievance conferences for training puqposes. Ms. Gallin-Procida was not there for that purpose uod do"r not possess information that would advance the purpose of the langrrage cited in the CSA CBA. Ms. Gallin-Procida left the room and remained in the adjoining conference room' As a result, Mr. Reich asked that the instant grievance be amended to include a violation of Article X and the undersigned agreed to consider his request.

Re:

UI CSA [School Closings and ExcessingJ

(QLRË!22]Ð

Page2

The CSA rcpresentative stated that the following occurred and argued that the cited provisions of the CBA were violated for the following reasons:
The DOE has initiated a "sham" closing of schools with reassignment of staff in violation of the Fair PracticÞs provision (Article II) : the Mafters Not Coveæd provision (Article XVII!, the Excessing provision (Article VIIL); the Summons, Discharge or Review provision (Article VnÐ; and the Grievance provision (Article X¡ of the CBA. The24 schools to be closed on June 30,2012 will rcopen in September with new District Borough Numbers (DBNÐ in the same buildings with the same student body, many with the same Principal and Assistant Principals. Thus, these a¡e "sham closings" intended to circumvent the CBA's excessing rules. Prior schools that closed were phased out over a tl¡ree year period-

Further, the DOE is prohibiæd frorn violæingNew York State Education Law $3012-c. New York State has permitted two types of school closures,påase out andredesign The instant closings of the i4 schools at issue a¡e neither. Thus, the CBA rnust rcmain in full force'Weiner a¡rd Marc Sternberg have stated that these are Additionally, Deputy Chancellors David for school closings don'l apply. They've also indicated "technícal" closìlgs a¡rd therefore, rules that principals of the reopened schools will select their Assistant Principals in violation of the CBA's excessing n¡les. Deputy Chancellor Shaet Srxansþ has also publicly stated thar the closed schools will reopen with the same prcgrams and extra curicular activities, frrther evidence ihat this is a "sham" closing.

As reuredy, ttre Union seeks: . The status quo to be maintained and the 24 schools not be closed; . No Principals or Assistant Principals be reassigned as a result of these closings; . The instant CSA grievance to be merged with the UFT grievance (OLR #122136)' to be expeditiouslyheard by the same arbitator with a ruting issued prior to June 30, 2012.

Administration stated. that the following occurred and argued that the cited provisions of the Agree,nrent were not violated for the following reasons:
The DOE objects on the basis that the instant matter is not arbitable and should be dismissed' Specifically, school closings are govemed by Education Law $2590-h and notthe parties' CBAtfis the DöE's decision asto whether a school should be elosed. The process for closing a school purzuant to the statute, among other things, requires a vote by the Panel for Educational poticy þnp), which, for the 24 schools at issue, took place on April 26'2012. The PEP voted that tÉe,24 schools wilt be closed effective at the end of the 20ll-12 school year, subject to the New york State Education Departrnent (SED) review of the DOE's applications to close these schools. Aocordingly, the question of whether a school closing is, in fact, a closing, is not appropriate for theþevance procedures outlined in the CBA and, uliimatcly, arbitral ieview, as thé arbitrator has no authority to rule on the validity of school closrues'

Re:

UI CSA [School Closings

and Excessine]

QLB-#12213?

Page 3

In the alternative, on the merits, the DOE has closed many schools during Mayor Bloomberg's administation. Most of the schools closed tlrough a 'þhase-out" process that took place over several years, but several closed immediately aûd were replaced by new schools inthe same manner the 24 schools at issue will be. Most recently, in 2008, the DOE closed th¡ee schools that were directly replaced by new schools in the same buildings. The Hunts Point School is currently located at73} Bryant Avenue in the Bronx, in a building which previously housed the School for Theater, Arts and Research. Additionally, tlie Young Leaders Elementary School, which is locaæd at 468 East 140 Stcet in the Bronx, opened in a building which had previously housed the Mott Haven Village School. Finally, the Performance School, located at 750 Con"ourse Village Wes! in the Brorx, was prec,eded in the same building by the Benjamin Banneker School. In all tlr¡ee of these cases, the new schools opened ín the old schoolso buildings one day after the old schools closed. ln atl th¡ee instances, there were no grievances from CSA objecting. to the validity of these closures. As in the past when a school closes, all staff from the 24 closing schools will be excessed and may apply to work in the new schools.
The DOE also objects to CSA's request to consolidate ihe instant grievance with the UFT grievance (OLR #122136) as it is prejudicial to the DOE. The undersigned concludes that the following happened and concludes lhat the cited provisions of the Agreement were not violated for the following leasons:
s authority to close a school is set forth and govemed by the Education Law, not the parties' CBA. Therefore, issues pertaining to the validþ of sc.hool closwes are not properly aOjudícated through the parties' grievance machinery and arbitration process set forth in

It is clear that ttre DOE
the CBA.

To the extent the instant gdevance neæds to be addressed on the merits, the CSA claims the DOE violated Article II (Fair Practices); A¡ticle VIIL @xcessing ); Article XVIII (Matters Not Covered); Article VIIJ (Summons, Discharge or Review) and Article X (Grievance Procedure). The DOÈ is closing the24 schools at issue pursuant to the process set forth in the Education Law. Therefore, in accordance with the CBA, DOE policy, and longstanding practice, all CSArepresented staff in these schools will properly be placed in excess at the end of the school year1.õ mat end, the CSA has faited to demonstrate a violation of any of the Articles cited in its grievance,
The lack of a grievance from CSA with respect to the previous schools that closed and were replaced in the same manner that will occur for the 24 schools at issue serves as convincing evidence that CSA recognizes these closures as valid.

Contrary to the CSA's claims, the new schools opened to replace the exísting 24 sohools will gndergo signíficant structural and programmatic changes, which are explained in the EIS filed for each school as required by Education Law $2590-h.

Re:

UI CSA [School Ctosings and Excessing] (OLR#IZI¡Z)

Page 4

The undersigned denies the CSA's request to merge its grievance with the UFT grievance (OLR #122136). No such right is containçd in the CBA to mergc a grievance as requested by the CSA. Moreover, such merger would be unfairly prejudicial to the DOE.

Lastly, the UFT's grievance to have Ms. Gallin-Procida present at the hearing is deníed Accordingly, tlre grievance is denied.
Heard by:

MARCEL KSHENSKY, Ep.D.
Chancellor' s Re,presentative

IT IS SO ORDERED:

t¿.DENNIS M. WALCOTT CFIANCELLOR
Dated

MK

Sign up to vote on this title
UsefulNot useful