The news of the movement of the court case regarding the closing-reopening of the turnaround schools to the arbitration arena is hopeful news. Not because it increases chances of winning the case, although I am more sanguine with arbitrators than judges, but because it increases the chances of a wider settlement.
The major players at the union and the department will be in a setting managed by a skilled arbitrator, perhaps, just perhaps, the arbitrator can guide the parties to mutually acceptable settlements.
The arbitration process operates under the rules of the American Arbitration Association (AAA) and the arbitrator comes from the panel approved by both parties. I have argued cases before the arbitrator on a number of occasions – he is enormously skilled.
The parties have already entered into a stipulation (see on Gotham Schools site here ) which outlines the parameters of the case.
- Both parties agree on the admissibility of documents and other facts that are not in dispute.
- The union is the “charging party,” the burden falls on the union to convince the arbitrator, by the “preponderance of evidence” of the correctness of their case.
- At the conference the parties agree upon the issue, the question before the arbitrator, i. e., Did the Department violate Articles xx of the Collective Bargaining Agreement when they xxx, and, if so, what shall be the remedy? In the previously agreed upon stipulation both the issue and the remedy have been agreed to.
- The union introduces evidence, by way of testimony and documents, both of which can be cross examined, followed by the department case, both sides can provide rebuttal testimony.
- The arbitrator will issue a decision and remedy, opinion to follow. The opinion is a lengthy summary of the case and the arbitrator’s reasoning in reaching his decision.
- The decision is final and binding.
An axiom of the arbitration process is that the best decision is written by the parties. As a case moves forward skilled arbitrators may attempt to move the parties to some sort of a compromise.
I was arguing a case for a number of teachers at a particular school in which a substantial amount of money was at issue. At the end of the arguments, but before the arbitrator rendered a decision we resolved the case. The department was concerned that if the union won the case and the same situation came up at other schools a cascading number of grievances could be costly. After consultation with the grievants we resolved the case – the grievants received their dollars and we crafted a stipulation narrowing the department’s possible future liability.
Another related case, the makeup of the hiring committee at the turnaround schools was just heard by another arbitrator in an expedited fashion.
Although the scheduled dates would not result in a decision until the end of June in the turnaround schools case the stipulation encourages the parties to move as expeditiously as possible.
The negotiations over the implementation of the teacher evaluation law fell apart at the end of the year when the department walked out and have only sputtered since then. PERB, at the request of the union has appointed a mediator, the department challenged the assignment of the mediator and the case has not moved forward. The State Education Department froze the federal State Incentive Grant (SIG) dollars and future grant applications are at risk.
With the right folks in the room it is possible that the parties can resolve a wider range of issues: The regulations governing the teacher evaluation law? Perhaps eliminating ATRs?
The Governor, the Regents and the Commissioner would love to have New York City, the gorilla in the room, resolve the issues and come up with a teacher evaluation plan. Hundreds of school districts around the State are awaiting the resolution in New York City.
The mayor continues to throw brickbats at the union and may, or may not, want to move the major issues to resolution.
An Assemblyman with a long memory – Alan Maisel – reminded me that in the 80s the Republicans in the legislature hammered the Democrats over a death penalty law. After years of trying they got the bill passed in Albany and overrode a gubernatorial veto. Maisel said it was a huge mistake for the Republicans: it took a great political campaign issue off the table.
Maybe Mayor Mike wants to continue the fight, maybe he sees some political value in hammering away at Mulgrew and teachers.
On the other hand to quietly resolve outstanding issues, to slide education over to the political edge, and spend his last 18 months in office fighting obesity or environmental issues might make political sense.
All contract disputes are eventually resolved. All parties stand on the steps of City Hall lauding the agreement. Will it be the current mayor or the next mayor?
At one of hizzoner’s eleven houses his top advisors are probably weighing pros and cans, and drawing straws for who tells the boss.