A Shot Across the Bow: Who Will Prevail in the Upcoming UFT-DOE Negotiations? The Klein Take No Prisoners Approach or the Mike Bloomberg Win-Win Deal-Making?

 In Klein’s view, tenure is ‘ridiculous.’ ‘You cannot run a school system
that way,’ he says. ‘The three principles that govern our system are
lockstep compensation, seniority and tenure. All three are not right
for our children.’
Anthony Lombardi, the principal of an …elementary school …
Randi Weingarten would protect a dead body in the classroom.
That’s her job.
The Thirteenth Amendment freed the slaves, Klein wants to
rescind it, but only for teachers.
a senior teacher.
On the eve of the opening of school and the commencement of  contract negotiations the New Yorker, in a scathing article entitled, “Rubber Rooms: The Battle Over New York City’s Worst Teachers,” has joined the fray, pillorying the UFT, the NYC teacher union, for their defense of teachers.
Quoting Joel Klein and Dan Weisberg, former head of labor relations for the Department and currently general counsel and vice-president for policy at The New Teacher Project, formerly lead by Michelle Rhee, the writer Steven Brill portrays the union as defending teacher incompetence at all costs.
The timing of the article is not random, as UFT-Department negotiations begin Mike and Joel have fired the first shot across the union bow. 
The Absent Teacher Reserve (ATR) pool is portrayed as filled with burned out teachers who can’t or won’t look for jobs and are perfectly happy to collect their checks. “Klein told me (the author) that he plans to push for a time limit of nine months or a year for reserve teachers to find new positions, after which they would be removed from payroll.”
The article conducts lengthy interviews, quite unflattering, with two tenured teachers involved in the dismissal process, and attended one of the hearings, at the invitation of the teacher.
 Brill gloats over a case dealing with a teacher suffering from alcoholism issues, who was defended by the union, and, eventually was discharged. BTW, the Board once had an Employee Assistance Program (EAP) lead by Jim Ahearn. Jim did an exemplary job in guiding teachers to programs or to other professions. The EAP program is long gone …
Why does the union defend/represent all teachers?
As a union rep I provided the best representation possible … the union doesn’t hire teachers and we don’t judge teachers, and, unfortunately too many teachers are victims of principals. Hundreds of “rubber room” cases  are “resolved,” the teachers pays a meager fine and is returned to school. Disagreeing with one’s principal has become a capital crime. 
State law allows public employees to be represented by labor unions and clearly delineates the “duty of fair representation” (DFR) of the union.
The duty applies to virtually every action that a union might take in dealing with an employer as the representative of employees, from its negotiation of the terms of a collective bargaining agreement, to its handling of grievances arising under that agreement …  the courts have held that a union only breaches its duty if it acts arbitrarily, in bad faith or discriminatorily.
Each borough maintains a grievance committee, before a grievance is filed with the Chancellor the committee must approve the grievance. If the union turns down the grievance the member is informed and can appeal, first to the union staff director and ultimately to the union officers. Probationary teacher and paraprofessional discharge cases fall under the contract. The Union takes great care in making grievance representation decisions,
In order to state a prima facie breach of the duty of fair representation, a charging party must show that the exclusive representative’s conduct was arbitrary, discriminatory or in bad faith.

In order to state a prima facie case of arbitrary conduct violating the duty of fair representation, a charging party:

. . . must at a minimum include an assertion of sufficient facts from which it becomes apparent how or in what manner the exclusive representative’s action or inaction was without a rational basis or devoid of honest judgment. (Emphasis added.) [Reed District Teachers Association, CTA/NEA (Reyes) (1983) PERB Decision No. 332, p. 9, citing Rocklin Teachers Professional Association (Romero) (1980) PERB Decision No. 124.]

Tenured teacher discharge procedures fall under State law. In almost all cases the union provides legal representation. The Union and the Department have negotiated a range of provisions intended to expedite the process, unfortunately the Department has not hired sufficient attorneys and the cases take years instead off months.
The contract is a living document, at each set of negotiations the parties have negotiated significant changes:
* letter in the file grievances . Teachers may no longer file grievances asking that letters in the file, the most common grievance, be removed. They may respond to letters and, after three years, if the letter does not result in disciplinary action the letter is removed from the file at the request of the teacher.
* professional conciliation. UFT chapters may request conciliation for disputes arising out of curriculum mandates, textbook selections, program offerings and scheduling, instructional strategies.
* school-based options. The UFT Chapter, with a 55% positive vote, with the approval of the principal and the UFT and the Department may modify a number of sections of the contract.
Rubber rooms and ATR pools exist not because of the union contract, they exist because they serve a cynical political purpose for the Department, with children as pawns. Steven Brill is also a tool, carrying water for the Department. The battle, as Joel Klein states, is over tenure, teacher pay for performance (what Klein now calls lockstep compensation) and seniority. Joel wants an “at will” system, a school system in which principals hire and fire and pay is based on results as measured by test scores.
Bloomberg, on the other hand, has been much more willing to deal with the union, as the compromise over school governance shows. In exchange for the Mayor retaining full control of the Central Board (PEP) the law makes sweeping changes that challenge the current management structure.
The current round of negotiations, in which Bloomberg, not Klein plays the core role can resolve the outstanding issues.
Strictly enforced timelines, limiting the arbitration process to a specific number of dates for each side, requiring the Department, the charging party to move forward or dismiss the charges would expedite the process.
Excessed teachers (the ATR pool) should be assigned to a school for regular teaching duties at a budget “discount” for the receiving school, at the end of the school year the principal has the option of “absorbing” the teacher.
The teacher “buy-out” clause, aka voluntary severance, has not been implemented … if both sides cannot negotiate specific terms it should be decided by an arbitrator.
Joel Klein takes pride in his “take no prisoners” approach and basks in the adulation of his acolytes. Wasting hundreds of millions, teachers twiddling their thumbs in offices, may, to Joel, be worth the cost to achieve his ends. Nobody elected Joel.
Bloomberg, whether you like him or not, or intend to vote for him or not, is a nimble politician, and will see longer term benefit in standing at a podium with Mike Mulgrew praising a win-win contract then facing picket lines and a million enraged parents.

8 responses to “A Shot Across the Bow: Who Will Prevail in the Upcoming UFT-DOE Negotiations? The Klein Take No Prisoners Approach or the Mike Bloomberg Win-Win Deal-Making?

  1. After the November election Mayor Mike will have no further use for the union and if the teachers don’t like it, tough.

    The city (in case you haven’t noticed) is bankrupt, and a slew of taxes have already been raised, precluding further “revenue enhancement.” There WILL be layoffs and calls to first fire the “malingerers” in the ATR, guilty of not much more than being in the wrong school at the wrong time, and making too much to make them attractive, under “fair” school funding, to our new breed of button-down principals, many of whom have barely taught themselves.

    Stop separating Klein and Bloomberg, they are one. Mayor Mike is responsible for every nasty comment made against teachers and the atmosphere of disrespect toward the profession that has been created in NYC these past seven years.


  2. ace, did you write a letter to the editor of the new yorker? bob


  3. Steven Brill and The New Yorker have produced an article that wouldn’t pass muster in any J-101 course. It is-again-a blame the worker not the boss screed typical of a publication playing the capitalist rather than an esteemed member of the fourth estate.
    A thoughtful journalist would have spent a little time reading the NYS Commissioner of Education decisions which publish the arbitration hearings in this state. It is appalling. Over and over again, you can read of disciplinary actions against teachers taken by principals and superintendents that are fool-hardy and wasteful of the taxpayers’ money.
    A close read of the documents would lead one to believe that bad management is encouraged and rewarded in the education field.
    BTW, I did try to comment online to the Brill article, but there doesn’t appear to be a TNY comments page. As for writing the editor, what guarantee would there be that it would be published? Next to none would be my guess.


  4. Pingback: Remainders: One more day to weigh in on Race to the Top | GothamSchools

  5. Here are my thoughts on the NYer piece. Don’t really know what else to do with them.

    Go to the New Yorker’s webpage this week and you find an article in the center of the home page, entitled “The Rubber Room” by Stephen Brill. The article is described on the home page as “The battle over New York City’s worst teachers.” Click on the table of contents for the current issue. Underneath the article title, you see the descriptor “the battle to make teachers accountable.” Click on the article. Look at the top of your browser window and see the title of the webpage: “Joel Klein vs. New York City teachers.” Read the article and it becomes clear with whom Brill sides.

    There is an inherent contradiction in the school reform movement’s attitude towards students and teachers. 100% of students are capable of meeting the standards, according to the reformers. Any expectation other than one attesting that all children can achieve is “the soft bigotry of low expectations”. Different reformers pay varying levels of concern to factors such as student health, home life, and other factors outside the school. Most all of the reformers now agree with some variation on the theme that teacher quality is the determining factor in student achievement.

    Given the reformers’ rosy attitude towards the potential for all students to succeed, one might think they would focus on equipping today’s teachers to meet student needs. After all, if all students can meet the standards, given sufficient support, surely teachers, a population narrowed by both self-selection (those who want to teach) and credentialing (academic degrees, certifications, background checks) should be similarly able to rise to the challenge. Klein, and Brill, don’t think so. Their starting assumption is that a significant proportion of teachers are both ineffective and unfixable.

    Throughout the article, Brill treats school reformers as one voice, although one tends to believe he identifies most with those focused on downplaying the role of factors outside the school on student performance. These key reformers include Joel Klein and Arne Duncan, Chancellor of the New York City Public Schools and US Secretary of Education, two men with less than a full year of classroom teaching between them. Brill also accepts Klein’s claims without question, apparently limiting his research on these matters to press releases from the NYC Department of Education or the ever appearing campaign materials sent out incessantly by billionaire mayor Michael Bloomberg.

    Brill seems to accept the conventional wisdom of the conservative political movement which suggests that the private sector is more effective than the public sector. He cites Bloomberg’s media company “renowned for firing employees at will and not giving contracts even to senior executives” with seeming approval. He doesn’t mention the gender discrimination lawsuit currently faced by Bloomberg LP.

    Brill’s unquestioning acceptance of the public relations spin is evidenced in his citing improved graduation rates and test scores under Klein’s leadership. His test score citation must not take into account the NAEP results. The improved graduation rate is cited without mentioning the explosion of credit recovery programs, a process by which students may earn credits equivalent to a semester’s work by completing an extra project or taking a supplemental class that might only

    Brill’s article talks to some teachers in the rubber room and is generally dismissive of their complaints. One veteran teacher claims she was reassigned based on a vindictive principal after she served as a whistle blower. Brill notes that there is limited information about the particulars of the case as the teacher has refused to have her file unsealed, but goes on to cite parent websites praising the school and principal. It does seem no great journalistic feat for Brill to talk to five parents at the school who claim the teacher would have “nothing to blow the whistle about” because the principal is “spectacular.” This seems roughly equivalent to finding five drivers who have Goodyear tires on their cars and asking them if Lilly Ledbetter had any cause for complaint against her employer.

    Brill does make the concession that perhaps innocent teachers may be reassigned to the rubber room. He then proceeds to find the most unflattering cases possible to stereotype the reassigned teachers. Ignored are published cases of questionable reassignments, like the award winning teacher reassigned for corresponding with an incarcerated student through the mail while the teacher helped the student take academic exams. Or cases in which a teacher stays reassigned a year and a half after the principal rescinds the allegations.

    The New Yorker article doesn’t mention that the rubber rooms also house principals and other administrators accused of misbehavior. There’s no mention of the recently reassigned Brooklyn principal who was arrested for physically assaulting a teacher. In fact, there’s no discussion of the questionable track record the New York City Department of Education has in hiring principals, and in retaining principals unassigned to schools. There’s the one principal who made headlines for mandating a mathematically impossible grading system, refusing to distribute textbooks to students, and inappropriately using overtime payment to have teachers clean up the school before an important visit by central DOE officials. Despite leaving the school in March (school ends in June), this principal was paid a $15,000 bonus before moving onto an administrative position monitoring the time cards at a Staten Island rubber room where she had a physical altercation with a teacher. Two years after leaving the first school, failing to get a job at another school as principal, this individual continued to earn over $140,000 at an undefined administrative post.

    There’s the principal hired by the DOE and appointed two days after he was indicted for fraud that he allegedly perpetrated at a Philadelphia charter school. The charges included the potential for a $1.5 million fine and 120 years in prison. The other principal ousted for tampering with grades. Another principal resigned his principalship after daily protests by the staff, again reassigned to an undisclosed administrative position. Turns out that principal had resigned his previous position in Danbury, CT after less than a year amidst a similar controversy. The DOE apparently didn’t consider that history when hiring this principal who frightened a teacher’s aide into the hospital.

    Brill doesn’t have anything negative to say about management. This is despite the fact that it was under Klein that the reassinged (rubber roomed) teachers grew exponentially in quantity. Despite the fact that the Absent Teacher Reserve was created under Klein. And despite the fact that earlier this year, over 100 administrators (principals and assistant principals) didn’t have permanent jobs at a school, but were making six figure salaries.

    Klein’s Leadership Academy principals average seven years teaching experience and have virtually no experience as assistant principals. 59% of the first cohort of Leadership Academy principals were still DOE principals four years later. That means that 41% were no longer principals. For all of Brill and Klein’s “children first” spin, they choose not to recognize the impact that poor leadership can have on an entire school ecosystem, including both students and teachers.

    A quick look at Brill’s entry on Wikipedia pretty much solves any questions about Brill’s biases. There’s no shortage of anecdotes about Brill’s self-righteousness and disdain towards others. There’s also an extensive history of failed enterprises: Court TV, Brill’s Content (a magazine that was supposed to circulate half a million copies–know anyone who can remember it?), Clear Airport fast pass.

    What qualifies Brill to write about education? Well, he’s an Ivy League educated lawyer- a descriptor that he makes sure to highlight about several top DOE officials. Unfortunately, it’s not clear he knows what he’s writing about. His description of value added assessment differs from the standard based concept that the all students should meet standards. Brill says: “If, say, a student started the school year rated in the fortieth percentile in reading and the fiftieth percentile in math, and ended the year in the sixtieth percentile in both, then the teacher has “added value” that can be reduced to a number.” This is a fairly distressing understanding of value added, as all it does is compare students with others in the cohort. It says nothing about how all the students are performing, or what they’ve learned.

    It’s about as bad as the school administrator who told her staff that “we have to move our bottom third out of the bottom third.” That metaphor about shuffling deck chairs on the Titanic? Here’s where it makes sense. I look forward to Brill’s next article, in which he can explain how the 166 UFT contract is the root of all evil, but Michelle Rhee’s 200 page “learning framework” is the way forward.

    (I had some nice embedded links, but they disappeared.)


  6. Oh, it’s THAT Brill. Didn’t he used to be known as “Steve”?


  7. As a teacher in purgatory myself, I’m a little confused as to the nomenclature here: does “rubber room” refer to teachers under investigation (as in the New Yorker article) or to the ATR pool as a whole? There would seem to be a vast difference.


  8. The truth is the Department of Education will not allow us to use the online Open Market system to search for jobs.

    We ATRs are told by the DoE and the UFT to look for jobs. But how can we when the official transfer login site

    has the following “need not apply” message?:

    “Important Note to All Users – Read Before Attempting to Register or Log In:
    This system will not recognize user accounts from the Excess Staff Selection System or user accounts from prior Open Market periods. If this is your first login attempt for this Open Market period, please register as a new user.”

    A cookie must indicate that my PC belongs to an ATR, because this subtitle appears early in the webpage:
    Excessed Staff Selection System – Sign In

    Activists and reporters need to know: we cannot apply to schools even if we want to. This flies in the face of official policy saying that ATRs have priority.


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