Monday, February 17, 2014

Francesco Portelos and the BOE-UFT Lawsuit - all 464 pages

Francesco Portelos posts the 464 pages of the NYC Board of Education (the name was never legally changed, folks!) v United Federation of Teachers and the discussion about who is delaying the hiring of arbitrators. It is so much fun reading about the games Naeemah Lamont, Dennis DaCosta (DOE Gotcha Squad) and Adam Ross and Claude Hersh play (UFT Gotcha Squad) except if you are charged with 3020-a.

If you are charged, and ask for a hearing without opposing the way probable cause was found, your rights are being denied to you.

Betsy Combier

Francesco Portelos

BOE vs UFT Arbitration Agreement Lawsuit – Update

On September 27, 2013 the education news was a buzz here in NYC over the lawsuit filed by Mike Bloomberg and the NYC DOE vs the United Federation of Teachers. The City was basically stating that the UFT was not holding up it’s end of the bargain to select enough arbitrators and reduce the backlog of exiled educators.
In my post, Mayor-UFT-DOE Blame Game on Rubber Rooms. I’m Not Buying It, I state that it’s not the number of arbitrators that’s the issue, but rather the ridiculously long and biased investigations. I have a case tracker page I’m working on that shows how long SCI, OEO and OSI investigations take….for no reason at all, except job security for those agencies.
In any case, that lawsuit seems to have faded away. I was bored one day during my lunch break in the Rubber Room. I looked up the index number of the case and downloaded all 464 pages. (Perhaps ATU wants to order SCI to confiscate the computer and check if it was lunch time and we can start this process from the beginning. )
I didn’t read all 464 pages yet, but skimmed and pasted the latest one below. It’s an excerpt from the UFT’s Motion to Dismiss. I don’t know what Bloomberg, Walcott and top DOE attorney Courtenaye Jackson-Chases plan was  with this, but it does not appear that the UFT was at fault.
—————-FROM UFT Court Papers
Beginning with the September 6 lists, it is clear the UFT endeavored to move the process
along. The UFT referred to the outstanding lists and its willingness to continue discussions when
responding to each of the BOE’s threatening letters. Thus, the UFT’s reminding the BOE of the
lists after the commencement of the action demonstrates that the UFT has been willing to
continue the process despite the BOE having interrupted it with unnecessary litigation, not
because of it. Indeed, the facts reveal that it was the BOE who attempted to cut-off the selection
process in favor of its unilateral invocation of the AAA process and litigation, and that
temporarily delayed the parties’ work towards selection of a full panel:
 September 6 (Friday): Lists of proposed arbitrators are exchanged by the UFT and
the BOE. (Complaint, Ex. 3)
 September 10 (Tuesday): The BOE emails the UFT proposing an exchange of
selected names for September 12 (Thursday). (Ross Aff., Ex. 5).
 September 16 (Monday): Representatives of the UFT and the BOE meet to
discuss the appropriate number of arbitrators. (Ross Aff., ¶ 4).
 September 19 (Thursday): The BOE sends a letter to UFT threatening that unless
the UFT agrees to select a panel of 30 arbitrators by the next day, with selections
to be completed by October 4 (15 days later), the BOE will pursue all legal remedies including AAA arbitration. The BOE makes no mention of the pending lists of arbitrators. (Complaint, Ex. 2).
 September 20 (Friday): The UFT responds to the BOE’s letter, stating that it
believes negotiations are still productive and ongoing, and reminds that there are
pending lists of arbitrators. The BOE does not respond to this letter. (Complaint,
Ex. 3).
 September 23 (Monday): The BOE sends a letter to the AAA, unilaterally
invoking intervention, stating “[a]fter discussions that have lasted an extended
period of time the parties have been unable to agree on a full complement of
arbitrators and require 20 more arbitrators at this time to fill their Education Law
3020-a panel.” The BOE does not mention any other facts regarding the
negotiations or the outstanding lists of 20 arbitrators. (Complaint, Ex. 4).
 September 24 (Tuesday): The UFT sends a response letter to the AAA, reiterating
that negotiations are still ongoing; reaffirming its continued commitment to
continue the process; and noting the pending lists of arbitrators. The UFT asks
the AAA not to become involved prematurely. (Complaint, Ex. 5).
 September 25 (Wednesday): The BOE sends a second letter to the AAA,
responding to the UFT’s letter. The BOE complains about the pace of the parties’
progress and asks the AAA to speed things along. For the first time in its series of
letters, the BOE acknowledges the outstanding lists, stating “[t]his month, the
BOE and UFT proposed arbitrators, but none have been invited as the UFT has
not agreed as to when they will be able to move forward with the selection
process.” The BOE ignores the UFT’s two prior mentions of the lists in its letters.
The following day, the BOE files suit. (Complaint, Ex. 6)
 September 26 (Thursday): The AAA informs the BOE that it will not intervene,
since there is no agreement between the BOE and UFT about whether
intervention is appropriate. The BOE files suit for breach of contract against the
 September 27 (Friday): The BOE applies for a preliminary injunction against the
 October 4 (Friday): Claude Hersh, on behalf of the UFT, continues discussions
regarding arbitrator assignments and selection of arbitrators from the September
6, 2013 lists with Dennis DaCosta, Deputy Director, BOE Teacher Performance
Unit. (Ross Aff., ¶ 6). Mr. Hersh sends Mr. DaCosta a follow-up email, advising
that, with regard to continuing selection, BOE General Counsel, Courtenaye
Jackson-Chase should contact UFT General Counsel, Adam S. Ross to discuss.
(Ross Aff., Ex. 2).
 October 15: Mr. Ross writes to Ms. Jackson-Chase reiterating that “[t]he UFT
remains ready to provide you with names of agreeable hearing officers from your
[September 6] list.” (Ross Aff., ¶ 7, Ex. 3).
 October 16: Ms. Jackson-Chase writes to Mr. Ross, asserting that the UFT’s letter
indicating its continued readiness to discuss the September 6 list is somehow evidence of delay. The letter suggests that selection from that list would be pointless as it “would not result in the appointment of a full contingent of arbitrators.” (Ross Aff., ¶ 8, Ex. 4). Finally, rather than suggest a time to select arbitrators, the BOE demands that the UFT prove its commitment to selecting arbitrators by acquiescing to the BOE’s unilateral (and premature) invocation of the AAA process. Id.
 October 17: Court appearance on the BOE’s application for a preliminary
injunction. That afternoon, the BOE selects three arbitrators from the UFT’s
September 6 list. (Ross Aff., ¶ 10, Ex. 5).
 October 18: The UFT selects three arbitrators from the BOE’s September 6 list
and suggested the parties attempt to each select a fourth. The UFT also agrees to
exchange another list of proposed arbitrators on October 22, 2013. (Ross Aff.,
¶ 11, Ex. 5). The BOE declined to select a fourth arbitrator, but indicates its
willingness to exchange new lists on October 21 or 22. Id.
 October 21: The UFT selects a fourth arbitrator from the September 6 list. The
UFT also confirms it will be prepared to provide a list of 10 proposed arbitrators
the following day and would discuss future list exchanges. (Ross Aff., ¶ 12,
Ex. 6).
 October 22: The parties exchanged lists of 10 names each. The BOE indicates it
will be prepared to select names on Friday. The UFT asked to make selections on
Monday, to allow time to research proposed arbitrators from outside the New
York City area about whom information could not immediately be obtained. The
UFT requested that the BOE provide information about the individuals it
proposed, to accelerate the process. The UFT also states that it will be prepared
to discuss further lists once the parties have a sense of how many arbitrators
would be selected from the current lists. The BOE asserts that weekly list will
still be needed. (Ross Aff., ¶ 13, Ex. 8).
 October 24: Follow-up conference call with the Court. The UFT and the BOE
agree to continue to make exchanges of proposed arbitrators.
 October 28: The BOE selects six names from the Oct. 22 lists. (Ross Aff., ¶ 14,
Ex. 9). The UFT selects four names. The parties discuss how the invited
arbitration should be assigned within the panel. Id.
 October 29: UFT serves its motion to dismiss or, alternatively stay this
 November 7: BOE serves its opposition brief.
 November 8: Having not received any further communications from the BOE
regarding the exchange of lists, the UFT proposes another exchange on November
12, 2013. (Ross Aff., ¶ 15, Ex. 10).
 November 12: The parties exchange lists of 10 names each. (Ross Aff., ¶ 16,
Ex. 11).15
This timeline demonstrates an ongoing, mutual process. True, the BOE might prefer the
process move more quickly and, apparently, would prefer to utilize the AAA rather than do the
work of proposing and selecting arbitrators with the UFT, but those desires cannot transform the
UFT’s good faith efforts into a breach. The CBA and Side Letter require that the parties
mutually agree on the arbitrators. Such agreement has been progressing, despite the BOE’s
resort to litigation. While the UFT does not believe that 39 arbitrators are needed (and has raised
that with the BOE, particularly if the parties return to the previously successful mediation
adjunct), the facts demonstrate that the parties have moved steadily to their goal. Presently, 22
arbitrators have consented to join the panel, with seven invitations still outstanding. This brings
the parties within striking distance of 30 arbitrators, the figure which the BOE indicated in its
September 19 letter would be acceptable. And, should this not occur, the exchange of lists
would continue.
The whole 464 pages of court documents are here: